Ansley v. Wilson

Montgomery, Judge. Section 3450, of the Code, allows a defendant in fi. fa., who hag filed p,n affidayit of illegality to amend it instanter, by inserting new and independent grounds, provided he will swear that he did not know of such grounds when the original affidavit was filed. Here the defendant had full opportunity to amend his affidavit under this section, but neglected to do so, and permitted his illegality to be dismissed without offering to make the amendment. He has had his day in Court, and should not now be permitted again to delay the plaintiff in the assertion of her rights. Indeed, the record in this case has attached to it, by inadvertence we suppose, the agreed state of facts which properly belonged to the case of Wilson vs. Ansley, (preceding case,) from which it appears [282] that the plaintiff in fi. fa. is a lunatic, and under the decision in that case the proposed defense would not avail the defendant. Judgment reversed.