Jeremiah Moore & Co. v. Cameron

By the Court.

Nisbet, J.

delivering the opinion.

[1.] By referring to the record and the report of this case, (10 Geo. 368,) when before brought up, I find that upon the calling of the case on the first term of the appeal, the defendants moved to dismiss, on the ground that the action could not be sustained, (it being complaint for rent) under the Act of 1847. This motion was granted, and the plaintiff excepted. We reversed that decision. When the case was called, it being the first term after the judgment of the Supreme Court was rendered, the defendants moved the Court to make a substantial amendment to their plea. The Court refused the motion, and defendants excepted. The question is, had the defendants the right at that time, and under the circumstances of the case, to amend their plea. We think they had. There was no trial of the cause at the first term of the appeal. Upon defendant’s motion it was dismissed. There was no occasion, therefore, for their moving then to amend. It being dismissed, and that decision reversed, and the cause ordered for a trial, as to the right of the defendants to amend, it was as if the case were called at the first term after the appeal. Then they usually have the right to amend. So in this case, they had, under the circumstances, when the case was called at the first term after the remittiter was received. (See 5th Rule of Court, Hotch. 943.) Upon this assignment the case must go back.

The suggestion of the presiding Judge to the plaintiff’s counsel, that it would be necessary for him to prove that the defendants rented the property from the plaintiff, was perfectly correct. It was not only the right, but it was the duty of the Court to make that or any other suggestion, which he saw was necessary to the rights of either party.