Waples v. McIlvaine's Adm'r

By the Court. Harrington, Judge. The action does not abate by death. It is expressly saved by the act of assembly. (Code, § 2295.) The replevin bond is not taken under the act of assembly. (Code, 2651; 3 Harr. Rep., 113, Clark vs. Adair; 4 Ibid, 380, Plunkett vs. Moore.) The statute provides only for the replevin bond, in case of distress for rent; and makes the bond in such case assignable. (C ode, 2656.) In other cases the bond stands as at common law, both as regards its form and character. (4 Harr. Rep., 380.) It is not assignable at common law or under Digest, 42. It is not a money bond; but has a collateral condition. The plaintiffs then cannot sue as assignees of Zachariah P. Wilson, coroner; but must sue in the name of the coroner, though the suit may be marked for their use. On this ground the plaintiffs would have to be nonsuited, if the matter is not amendable. It is conceded that the previous practice of the court has not allowed of amendments of this nature, scarcely of any amendments, after the jury is sworn. But chapter 112 of the Revised Code was reported and passed avowedly for reforming the law of amendments, and of conforming our practice to the recent improvements in the practice both of the English and American courts. Its object is to remove from the administration of justice the stigma, too often applicable to it, of trying technical questions, rather than merits; and deciding causes on issues apart from the objects of the suit.. The illustration furnished by the present case is this. It is a suit on a replevin bond to the coroner for the use of these plaintiffs, to ascertain the defendant’s liability to them for a certain vessel seized and replevied; but instead of trying this question, the whole argument has been on the question whether the action should have been brought by plaintiffs, as assignees of the coroner, or by the coroner, for the use of plaintiffs. And the motion is to nonsuit the plaintiffs—to turn them out of court, where they have been since April, 185,0; and make them begin again, merely on this matter of form, not entering into the merits. In one sense, I agree that it is more than form. The plaintiffs cannot be assignees of a bond which is not assignable, as this is not; but in reference to the real objects of this suit, and the true merits *384 of this cause, it is utterly immaterial whether the plaintiffs have sued as the assignees, or the cestuis que use, of the officer who took the bond. It was taken for their benefit; it was designed to secure the return of their property or its value, in case the defendants should not establish their right to it; it is the purpose of justice and the object of this suit, to try this question of defendant’s liability in the matter; and that purpose ought not to be frustrated by any error, either in form or substance, that the pleadings may present. Code, § 2511, directs the court to allow amendments, before judgment, “ either in form or substance, of any process, pleading or proceeding,” and section 2515, authorizes the court to allow an amendment, even where the plaintiff has mistaken his form of action. There is no such mistake here ; the action is all right in form ; it is debt on a replevin bond; the proper parties are named, hut not in a proper manner; the process and pleading is improperly stated in the name of plaintiffs, as assignees of the coroner, instead of the coroner, for the use of plaintiffs. Houston, for plaintiff. Cullen, for defendant. We allow that matter to be amended on payment of costs. And we think this chapter in the new code, instead of being subject to the strictures applied to it in the argument, will be very beneficial in the administration of justice ; and in expediting the trial of causes on their proper issues. This is not giving a retrospective operation to the Revised Code. It is a question of the power and duty of the court, in reference to amendment at this time; in a cause, now fending. The case was then continued.