Burk against Huber, 2 Watts 306

The opinion of the Court was delivered by Gibson, C. J. The point presented by the demurrer is an easy one. In the declaration, the plaintiff founds his title to recover on actual performance of his own covenant as a condition precedent, and in the replication he founds it on matter to excuse performance ; so that a finer example of departure in pleading could not be given. The vice is in the count which sets forth the case untruly; and in that predicament, no movement in a subsequent stage of the pleadings, but an amendment of the count, itself, can retrieve the original fault.

In availing himself of leave to amend, the plaintiff should have turned his attention there, and not to the replication. As to the supposed necessity for relaxing the rules of pleading in order to give the wider admission to principles of equity, if indeed an action of covenant, to recover damages for a disaffirmance of thecontract can admit of equitable principles, it was declared in Jordan v. Cooper, 3 Serg. <§■ Rawle 578, that the plaintiff must specially aver the fact on which he relies to excuse the want, of performance on his own part, in order to entitle him to a specific execution of t,he contract.

And at law, where such performance is equally a condition precedent to .the recovery of damages, lie must in like manner aver it, or, where such is the fact, allege that he was prevented or discharged from actual performance by him for whose benefit the covenant or condition was to have been performed. 1 Chitty’s PI. 317, 318. But, the defect was evidently amendable in the abstract; and the difficulty was in the circumstances of time and repetition.

I know of no case of amendment at common law after final judgment on demurrer; but I know of no inflexible rule which forbids it to be allowed at any time during the term. A court cannot be too liberal of its indulgence before the trial, or too strict in its construction of our statute, which authorises amendments after the jury are sworn.

No one appreciates more highly than I do that extreme accuracy in pleading which nothing but a compulsory observance of precedents and forms of practice can produce ; but I am unable to conceive why a party should be concluded by a variance, when the declaration or plea may be made to conform to the truth of the case without delay or injury to any one. Instead of encouraging laxity and negligence, amendments conduce essentially to certainty and precision ; especially with us who, for want of a class of the profession to attend to the pleadings, are untrained to accuracy-in the first instance.

An adherence to the narrow notions of antiquity on this subject, would be not only inconsistent with the spirit of modern practice, but peculiarly productive of injustice here. Unless for strong reasons to the contrary, I would say that an amendment on demurrer ought to be allowed, as long as the record remains in the breast of the court; for to say that the proceedings cease to be in fieri when judgment is signed, is to offer an objection more artificial than solid, and one which the court is competent to obviate in an instant, by ordering the judgment to be struck out.

That would, I admit, be a step in advance of any that has yet been taken ; but instances are not wanting of leave to amend after the delivery of the court’s opinion in favour of the demurrant, which with us is substantially the same thing. To recall the parties, might be viewed as going too far in England, where making up the roll and signing judgment are solemn matters; but here they may be restored to their former position in court by a stroke of the pen. In Ordroneaux v. Prady, 6 Serg. & Rawle 511, we have an instance of amendment after judgment, though not on demurrer; and in Spackman v. Byers, 6 Serg.

Rawle 385, we have another even after error brought, which, we may infer from Bailey v. Musgrave, 2 Serg. & Rawle 220, would not have been sustained by the appellate court, had the amendment been supposed to involve an excess of authority. There is certainly nothing peculiar in a judgment on demurrer; nor do I see any reason for a difference, whether the amendment is to sustain or to overthrow the judgment, provided it be indispensable to justice. Yet I would not press the doctrine beyond the bounds of mutual convenience.

Where the opposite party would receive a prejudice not admitting of compensation, and more especially when the party to be indulged has had an amendment already, further interference might with propriety be refused. But granting for the sake of the argument that the amendment ought to have been allowed, has the plaintiff a remedy here 1 In Renninger v.

Thompson, 6 Serg. & Rawle 2, it was said that matter of pure discretion is not the subject of a writ of error ; and if an example were necessary to the authority of the principle, it would be suggested by the discretionary power to grant new trials, which, as to the propriety of its exercise in the particular instance, was attempted to be drawn into question in this court in Burd v. Dansdale, 2 Binn. 80; or to relieve bail in a

summary way, which came up in Roop v. Meck, 6 Serg. & Rawle 542, where it was decided that error does not lie on an order to stay proceedings on the bail bond. In like manner it was said, in The King v. The Mayor and Burgesses of Grampond, 7 T. R. 699, that amendments by the inherent power of the court are reducible to no certáin rule, each particular case being left on its circumstances to the mere discretion of the judges ; and this sound principle has been sanctioned by this court in Benner v. Fry, 1 Binn. 369; Ordroneaux v. Prady, 6 Serg. & Rawle 510; Bailey v. Musgrave, 2 Serg. & Rawle 220; Clymer v.

Thomas, 7 Serg. & Rawle 180; and Proper v. Luce, 2 Penns. Rep. 65. It was recognised also in Woods v. Young, 4 Cranch 237, and the Marine Insurance Company v. Hodgson, 6 Cranch 217. But, on the other hand, it has been repeatedly adjudged, that the amendments prescribed by our act of 1806, are mandatory and not discretionary; and they have been recognised as subjects of error in Youngs. The Commonwealth, 6 Binn. 88 ; Glazer v. Lowrie, 8 Serg. & Rawle 498; Maus v. Montgomery, 10 Serg. & Rawle 192; Newlin v. Palmer, 11 Serg. & Rawle 110; as well as Clymer v. Thomas, and Proper v. Luce, already cited.

Now the amendment sought to be established here, not being within the statutes of jeofails, which respect but defects of form, must depend on the. common law powers of the court, and so be a subject of mere discretion, or else be demandable of right by force of the act of 1806, in which aspect alone it can be the subject of a writ of error. In the Farmers and Mechanics Bank v.

Israel, 6 Serg. & Rawle 293, it was said, the object of that act is to empower or require the courts to grant amendments after the jury are sworn, as amply as they would do before it; and to enable a judge at nisi prius to allow amendments which formerly could have been allowed but in bank. If such truly be the object, its corrective provisions are adapted exclusively to defects in an issue tried by a jury.

By the sixth section, which is the material one, it is enacted that a suit “shall not be set aside for informality, if it appear that the process has issued in the name of the commonwealth, against the defendant, for moneys owing or due, or for damages by trespass or otherwise, as the case may be ; and that the said process was served by the proper officer, and in due time.” Thus far it will not be pretended that the

section is applicable to the suit before us, which was not set aside for an informality, but for a substantial defect in the title set out; and thus far too, it must be conceded, that the idea of an amendment to cure even an informality is not suggested, much less to add an operative ingredient to the case appearing on the pleadings which the demurrant never intended to confess. The clauses quoted expressly relate to informalities which are not to be amended but disregarded; but the case before us contains a defect which, without amendment, must be fatal to it. “ Nor shall any plaintiff be nonsuit,” the

section proceeds, “ for informality in any statement or declaration filed, or by reason of any informality in entering a plea; but .when, in the opinion of the court, such informality will affect the merits, the plaintiff shall be permitted to amend his declaration or statement, and the defendant may alter his plea or defence, on or before the trial of such cause; and if, by such alteration or amendment the adverse party is taken by surprise, the trial shall be postponed to the next court.” Now not to insist on the popular sense of the word “ trial,” it is plain that these last mentioned provisions point directly to a decision of the merits by a jury : for no plaintiff becomes nonsuit for a variance or informality in the trial of an issue of law, or in the trial of an issue of fact, for having, as in the present case, set out no cause of action.

Indeed, the whole seems to be intended for emergencies arising in a trial by a jury; and if for any thing beside, it was to prevent a judgment from being reversed for defects in form which should need no amendment—such, for instance, as would be fatal to a judgment by default. Yet even if the general provision were applicable to a demurrer, it could not be intended for a demurrer after judgment or any other case that would require the court to unravel a part of what had been done. In Franklin v. Mackey, 16 Serg. & Rawle 117, it seems to have been taken for granted that the entire

section was intended for a trial by jury, and that the legislature had no more in view. It is probable that the penman of the act had nothing distinctly in his view. He was evidently not of the profession, else he would not have thought it necessary to provide that a plaintiff shall not be nonsuit for an informality in the entering of a plea. He probably intended that every cause should be tried on the merits without regard to the pleadings ; and we might possibly bring our case within the spirit if not within the letter of such an enactment.

But though intended to be remedial, it is not, I have said, to be construed with unrestrained liberality. In practice it is as often employed to baffle, as it is used to attain, the ends of justice; and as it was held in the case last quoted (where the judgment was reversed because the plaintiff had not been indulged with a third amendment), that it was the design of the act to allow amendments toties quoties and without stint, we ought to be cautious how we enlarge its bounds by construction.

We are of opinion that the demurrer was properly ruled ; but as the amendment does not fall within the act of 1806, we do not undertake to pronounce judicially on the propriety of its disallowance. Judgment affirmed.