Kemmerer v. Young

The opinion of the court was delivered by Sergeant, J. By the act of the 21st of March, 1806, sec. 6, “ the defendant may alter his plea or defence on or before the trial of the cause.” As this cause was open for trial when the additional plea was filed, it fell within the words of the act of assembly. The court below supposed they were restricted by the former judgment of this court, reversing the first judgment, and remanding the cause, with [178] nstructions to proceed to the trial of the issue in fact. The judgment of this court did not divest any right the parties might otherwise possess after the cause was remanded. No decision took place here on the right of the defendants to add a new plea; nor was the judgment for the plaintiff in error a final judgment quod recuperet, but merely on the demurrer, that the plea was not sufficient in law, and that the cause should go back for trial on the other issue. Under these circumstances the defendants retained the right given them by the act of assembly, to add a plea before the trial of that issue. If it were not so, they would be without an opportunity to remedy their defective pleadings, and the merits would be sacrificed to form. For in the court below, the judgment on the plaintiff’s demurrer to the plea of the defendants was in favour of the defendants, and they could not then be expected to apply for leave to add a better plea. They had not, it would seem, even the usual opportunity of withdrawing a plea demurred to before judgment on the demurrer; because the objection to thé plea which ultimately prevailed, was not made in the court below, either by way of special demurrer, or on the argument as a ground of general demurrer. The defect in the plea was suggested when the case came up to this court by writ of error, Nor could the defendants alter their pleading here. Such is not the practice. This court adjudicates on what is before it, and sometimes remands with instructions, but does not undertake to mould the pleadings preparatory to a trial below. In Spackman v. Byers, 6 Serg. & Rawle, 385, even a release of damages beyond the amount in the narr. was not allowed, but the plaintiff was permitted to take down the record, that the court below might allow the amendment if they thought proper. In the present case, the record went back of course when the plea was overruled. In some instances, a judgment on a writ of error that a plea demurred to is defective, is final. But when there is another plea, and the cause is remanded for trial on that plea, the case stands in the court below subject to the provisions of the act of assembly, and the defendant may alter his defence on or before the trial, as in other cases. To be sure, a plea overruled by this court is not to be put in again. But a new and different plea is admissible. The new plea, however, is itself objected to as defective, in not stating that the question of the payment of the bond on which this suit is brought, was a matter in variance. I am inclined to think the averments in it sufficient. See 4 Rawle, 304. All that is required in a plea in bar is certainty to a common intent. But this it is admitted, was not the ground on which the court below struck off the plea; and.I feel averse to entertain objections started for the first time in this court, when the party has had the opportunity to make them below, and has not done so. Great injustice may be done by it. If the court below erred in the grounds on which they decided, the defendants ought to be restored to the position they [179] have lost, and the pleadings may be then adjusted so as to reach the merits. Judgment reversed, and venire facias de novo awarded.