Beard v. Young ( 1809 )

Overton J.

sitting alone. In modern times, court are much more liberal in allowing amendments than formerly. They will permit amendments at any stage of the cause, to come at justice, taking care the opposite party is not put in a worse situation. The laws discountenance, frivolous, or delatory objections—and upon this ground it is, that motions are entertained to set aside frivolous pleas in abatement. And so, it would seem, as to frivolous demurrers ; though this latter point, has been doubted, where the demurrant applies for time to agrue under the 26th Section of the act of 1724 C. 1. The substance of the amendment, proposed, goes to the merits of the action ; and the court will not, upon motion, determine the question of law arising on the replication ; unless it were evidently frivolous, which at present does not appear. According to the rules of practice, no argument, or trial, can take place at this term—therefore let the amendment be made, and the defendant may take issue or demur, as he thinks proper. In either case, the question will be examined at next term. The defendant will be in no worse situation.

The question of cost was reserved, at the request of the defendant’s counsel.