Reynolds v. Torrance ( 1812 )

Brevard, J.

In' this case I agree with my brethren that judg. ment must be given on the whole record ; that the plea is defective, and that the court ought to go back to the first fault, and give judg. ment on that. But I doubt whether the first fault is not with tho plaintiff. By craving oyer of the condition of the bond declared on, and setting it forth in the plea, it became part of the declaration. (Com. Dig. 479.)

Note. See the cases of Hays v. Spann, (2 vol. 494,) and Philips v. Willson, (2 vol. 477,) decided at Columbró, April, 1811, on the question of amendment. Also, 2 Wils. 173. 2 Burr. 820. See 7 Johns. 468, 3 Johns. 443. 2 Johns. 184. Cowp. 841. 1 Wils. 303. 5 East. 49. The superior court, where error is brought, may make such amendments as the court below may, when the superior court has the matter to amend by, as the inferior court has.

The replication ought to be conformable to the count, and answer the whole plea. The plea is admitted to be imperfect; but if the plaintiff does not demur to the defendants’ defective plea, but replies, and by his replication shews'that he has no cause of action,, judgment must be for the defendant. (Cro. Jac. 133. 8 Co. 133, b. Hob. 14. 5 Com. Dig. 468. 5 Co. 29, a.)

If the plaintiff had made an idle replication, on which the defendant could not rely, judgment ought to be for the defendant. (4 Co. 84, a. * Cro. Eliz. 815.) But here the replication was meant to conform to the declaration ; and if we take the replication and declaration together, no cause of action appears: for although it may be true that the defendant did not prosecute the injunction to effect, yet for any thing that appears, he may have satisfied the decree of the Court of Equity. (5 Com. Dig. 468, 351. 4th Edw. 8 Co. 120. 1 Sid. 440. 1 Ventr. 64.)

I concur with the other members of the court in opinion, that the motion should be granted, so far as respects the amendment; and that both parties may have leave to amend without paying costs. (2 Bur. 820. 2 Wils. 173.)

By the codRT, Brevard, Nott, and Colcock, (Bay, and Smith, absent.)

Motion granted, and both parties have leave to amend, without costs. Nott, and, Coecock, of opinion the plea was ill, as well as the rejoinder ; not being sufficiently full and conclusive.