Crawford v. Chandler

COLLIER, C. J. It is entirely competent for the Court to permit a party to withdraw or amend his plea at any time. And though by pleading to issue, the defendant impliedly assents that the cause of action is well stated by the plaintiff, or that he will for the present, forego any objection to its sufficiency, yet it is allowable for the defendant to withdraw a plea to the merits, with the permission of the Court, and interpose his demurrer. Whether leave will he granted thus to modify the' pleadings, depends upon the discretion of the Court, but that the power does exist so long as the cause is pending, though there may have been several trials, or mis-trials, we think will not admit of controversy. And even if the Court should unwisely exercise its discretion, the party aggrieved cannot be allowed to allege it on error. In respect to the objection, that the act of 1819 does not authorize a proceeding against a sheriff by notice, for the breach of duty alleged, it may be quite enough to say, that that question has been too often adjudged to be now considered open. [M’Whorter, et al v. Man’s, Min. Rep. 376; 1 Stew. Rep. 63; Hill v. The State Bank, 5 Porter Rep. 537; 3 Stew. Rep. 134; Godbold v. Planters’ and Merchants’ Bank, at last term.] These cases show, not only that the sheriff is chargeable for the failure to return & fieri facias, but he is liable to the full amount which it required to be made. The notice sufficiently indicates what judgment will be moved for, when it refers to the act of 1819, as regulating the proceeding. [63] It is not only free from' objection, but seems to have been formed by a studied regard to the case of Hill v. The State Bank, [5 Por* Rep. 637.] The judgment of the Circuit Court is reversed, and the cause remanded.