Rogers v. Niagara Insurance ( 1829 )

Per Curiam.

The court have power to grant the relief here sought, notwithstanding the lapse of time, if the facts of the case warrant their interposition. In the strictness of practice, the plaintiffs would be too late in their application. They should •have amended their pleading, by replying to the fourth plea without delay. Several terms elapsed between the rendition •of the judgment on the demurrer and the trial of the cause, and they may be considered as having elected not to amend. But strict practice,in this case, might “entangle justice in a net of form” without affording any particular advantage to the defendants.

The proceedings of the plaintiffs were all under the special advice of counsel, who supposed that they might disregard the judgment on the issue in law, and still try the issues of fact presented by the other pleas. In this they, were clearly mistaken. The fourth plea covered the whole cause of action, and a judgment in favor of the defendants, on a demurrer to it, was conclusive. The mistake was committed bythe counsel; and upon the whole case, we think that the purposes of iustice will be best subserved by setting aside the verdict and permitting the plaintiflslo amend their pleading. The defendants will not suffer in their rights by this course, as the plaintiffs must take issue upon the fourth plea without delay, and pay all the costs which have accrued up to this time.

Motion granted.

[A. G. Rogers, Att'y for the plffs. G. W. Strong, Att'y for the defts.]