APRIL TERM, 1771.

#### Joseph Dashiel *against*Robert Heron.

THIS was an action on the case for special damage, sustained by the plaintiff, from the neglect of the defendant, as collector of *Pocomoke*District, in not giving a certificate, which by the duty of his office, he was obliged to do, by the act of 4 *Geo.*III. c. *15.*passed the 15th *Novem*ber.) 1763. The writ issued the 27th of May, 1768,

There were two counts in the declaration. The first, reciting the preamble, and several clauses of the act, set forth, that on the 4th of November, 1764<, the plaintiff was possessed of a schooner, called *Martha and*Eleanor, as of his own vessel, to wit, at *Dorchester*County, of which *John Irving*was then and there master. That the same vessel was then in this Province, in *Pocomoke District,*to wit, at the County aforesaid, at anchor, laden with the several commodities and goods of the plaintiff, to wit, tobacco, corn, hogshead staves, shingles, plank, oats and bread, bound on a voyage to *Barbadoes.*That the commodities were of the growth of the Province. That the defendant was then and there/ collector, and principal officer of the customs, in the same district of Pocomoke, and the same office of collector did then and there hold, and for a long time before, held and exercised. Wherefore, *John*Irving, then and there master, did then and there, according to the several acts of Parliament and laws, in such case made and provided, report and make known to the defendant, as collector, the then intended voyage of the said vessel, and also her lading ; and did then and there to the defendant, also tender and offer, that he, *John Irving,*would then and there enter into all such bonds, with such sureties as were required by law, and did then and there require the defendant as collector, he then and there being collector, to *386clear the said vessel, with her said lading, in his said office, and to grant him all proper and necessary dispatches, an<i certificates, whereby he might proceed with the same vessel and her lading aforesaid, on the intended voyage; J and although the defendant as collector, did then and there clear the vessel with her lading, and make, and deliver sundry dispatches and certificates; wherewith he did proceed on the intended voyage, and afterwards in 1765, did arrive in *Burbadoes.*Nevertheless, the defendant any certificate under his hand and seal, that bond had been given pursuant to the act of Parliament, to *John*Irving, did not , grant, wherefore he any certificate that bond had been given, could not produce, to the collector or other chief officer of the customs in *Burbadoes ;*whereby, and by force of the act, the vessel and goods became, and was forfeited and seized at *Burbadoes,*the 10th of *January,*1765. That the plaintiff afterwards, his vessel and goods thereby lost.

The second count set forth, that whereas, on the 24th of November, 1764, the plaintiff was possessed of one other schooner, called *Martha and Eleanor,*of less burthen than 100 tons, *John Irving*master; and the plaintiff then intending to lade the several other commodities and goods, the growth, product and manufacture of this Province, in -order to export the same to *Barbado es;*to wit, tobacco, &c. (as in *the first count.)*That *Irving*then being master, did, before the lading or taking on board any of the said commodities or goods, give bond, with one good and sufficient surety, in the penalty of 1,000/. sterling to the defendant, he then and there being collector, and principal officer of the customs at *Pocomoke*District, in this Province, in which same district the said vessel then was, ■(with condition, See.) and the same bond to the defendant,did deliver, and afterwards at the County aforesaid, the plaintiff, the several commodities and goods mentioned, did lade and put on board, and afterwards, *John Irving*did require the defendant, to clear the vessel with her said lading, and to grant him a certificate under his hand and ■seal, that such bond had been given pursuant to act of Par *387liament. And although the defendant did clear the vessel, whereby *Irving*did proceed to Barbadoes, and there after-wards, in 1765, did safely arrive. Nevertheless, &c. (Then follows what is set forth in the first count.) Damages alleged to be 2,000/. current money.

Several pleas were pleaded, and issue joined.

The following objections were made to the declaration,

1st. The statute requires the master to give bond with one surety to the collector of the port *-where he*lades, and neither count in the declaration alleges that the plaintiff’s vessel was laden within the defendant’s district, *ergo*not shewn that it was the defendant’s duty to take a bond.

2. It is not alleged that she was a *British*vessel.

3. Each count alleges, the vessel was seized and forfeited, but it is not shewn by whom, or how, or whether she was ever condemned.

4. It is not alleged who was collector at Barbadoes.

5. Nor is it alleged who was the security in the bond given, or that any bond was accepted.

6. When special damages are the gist of the action, they must be set forth fully and certainly.

In support of these objections it was observed:

That certainty is required in pleading; that *nonfeasance.*It was admitted, was a good cause of action against an officer of trust, as well as a misfeasance. *Garth.*487. That if a particular damage is necessary to support the action, such particular damage ought to be laid in a special manner, and it ought to be shewn in what it consists. Raym. 493. *Per Holt.*12 *Mod. 597.*All essentials, or the substance of the action, must be alleged. 4 *Bac. Abr.*8. That the plaintiff must set forth the causes of his complaint particularly, and in such a manner as to make it appear to the Court, that there is sufficient foundation for bringing the action. He must set forth in his declaration every mate*388rial thing, and without which, he could not be entitled to his action. 4 *Bac. Abr. 17.*It is a rule in law, that every man’s plea shall be taken most strongly against himself, because every man is supposed to be partial to himself, and to make the best of his own case. *Iiob.*242. *Rudiments of*Law, 269. 4 *Bac. Abr.*2. That if a declaration is not certain to every intent, but has two intendments, one which makes for the plaintiff, and the other against him, it is to be taken against him. *Plow.*202. That the plaintiff must shew his case within the act of Parliament, that is, that it was the duty of the defendant to grant a certificate. That whatever is necessary to support the plaintiff’s action, must be alleged. 1 *Stra.*6. 624. 4 Mod. *47.*Tjhat any thing which is right in the first count, cannot help any defect in the second, for though both are contained in one declaration, yet they are as distinct as if they had been in two several actions. 4 *Bac. Abr.*9. *Cro. Jac.*311. 2 Raym. 1035. 3 *Salk.*14. For where there are more than one count, the word *other*must be used for the same thing. 2 *Raym.*842. It can never be intended after a verdict, that a plaintiff proved more than his declaration. *Salk.*662. There is a difference where the plaintiff shews something, which discovers he has no cause, and when he only omits that, which was to maintain his action. Comyn, 301.

The plaintiff’s counsel moved the Court for leave to amend the declaration, in those parts objected to. The defendant’s counsel objected to this amendment, and alleged that this was the last term the action could continue; by the act of Assembly of this Province. That if the plaintiff was permitted to amend his declaration, the defendant ought to have an imparlance which could not be under the circumstances of the case, as an imparlance is from term to term.

*389
      *Johnson,*for plaintiff.

Originally, all pleadings were *ore*tenus, and if there was any material defect, it was immediately altered, so as to bring the merits of the case in question, and though the pleadings are now spread on paper, yet the same rule ought to prevail. 2 *Salk.*520. pi. 21. Amendments have always been allowed, after the pleadings w.ere recorded, in order to bring in the merits of the case. 1 *Burr.*320. 2 *Burr.*1098. 1 Barnes, 13, 14. 2 Barnes, 20. An amendment was allowed to prevent the statute of limitations, after issue was joined, and notice of trial was given. *Fitzg.*193. 2 Barnes, 4. 2 *Wils.*253. and also cited 2 *Stra. 787.*807. *Cro. Jac.*306. 2 *Stra.*1162. 1202. *And 109. 381.*2 *Stra.*734. 3 *Lev. 151. 1 Barnes, 7.*The Court will allow, or disallow amendments, as they tend *to*bring the merits of the case in question.

*Hall,*same side,

Considered this a point of great consequence to the peo,~ ple of this Provihce. As to pleading in general, see 4 *Bac. Abr.*1. If Croke, and the more ancient reporters, are examined, it will be found that nine causes in ten, were determined on some nicety in pleading. But after-wards Courts became more liberal, and were supported *by*acts of Parliament. The case in 3 *Lev. 347.*is similar to the one at bar. In *Carth.*185. an amendment was permitted, after joinder and argument on demurrer. In 2 *Salk. 517.*the counsel was reprimanded for introducing -sham pleas, as tending to *oust*the merits. In Lucas, 88, an amendment is considered as a matter of right.

*Goldsborough,*for defendant.

In England, actions are not tied up to time, but here, by our act of Assembly, causes cannot continue more than four terms. In 2 *Burrow, 750.*amendment was refused, *390where the party would be injured by it. If an amend» ment be made, the party is entitled to an imparlance. 2 *Stra. 950.*And an imparlance must be from term to term* * *Salk. 367.*If the declaration is incomplete, it is considered as null, therefore an imparlance ought to be allowed in the same manner as if a new declaration was filed. If it appear on the record, that an imparlance was denied, it will be error. 1 *Raym.*285. After demurrer, an amendment cannot be made without consent. 1 Raym. 668, 669. Amendment of the declaration after verdict, was not allowed. 2 *Wils. 147.*In ejectment, amendment not allowed without consent. 2 Barnes, 153, 154. If an amendment be granted without an imparlance, the defendant would be put in a worse situation, having relied on the defects of the declaration; to disprove which, the defendant cannot be ready, and the situation of the defendant ought to be considered as much as the plaintiff’s.

*S.*Chase, for defendant.

It is now too late to insert other facts in the declaration, to disprove which, the defendant cannot be ready, and the situation of the defendant ought to be considered as well as the plaintiff’s, Where the cause is by original, it is at the discretion of the Court, whether an imparlance will be allowed. Skinner, 2. When the defendant appears, and the parties,:by consent, obtain a day before the declaration, this is called *dies datus prece partium. A*day given before the Court, is called *dies*datus, but after it, is called an imparlance. 4 *Bac. Abr. 27.*If the defendant does not appear on a *dies*datus, the plaintiff cannot obtain judgment as he can on an imparlance. Moor, *79, A*distinction prevailed, where the writ was general, and the cause of action only in the declaration, and where the writ was special, and the declaration was mentioned in the writ. In the one case the party is entitled to an imparlance, in the other it is a favour qf the Court. *Vin.*Imparlance, 335. 4 *Bac. 27.*
      *391Si. *Gilb. C. B.*40. 43. 3 *Bl. Com.*272. 279. 286. On that principle in real actions, as dower, the defendant is not entitled to an imparlance* 2 Barnes, 2. On that principle our act of Assembly took away an imparlance, if the declaration issued with the writ, and was served twenty days before the return. It is the plaintiff’s right to enter *continuances by*imparlance, from the declaration to the judgment or issue. 2 Barnes, 269. One imparlance is the subject’s right after the declaration, and if refused, error lies. *Salk.*367. 1 *Raym.*80. *Comb.*13. *Latch.*188* 1 *Raym. 285.*3 *Salk.*186. 2 *Show.*310. 4 *Bac. Abr* 30.*If the plaintiff amends, the defendant may elect to have an imparlance or costs; if he accepts the costs fot amendment, it is intended he is satisfied. 2 *Stra.*950* 1 Barnes, 8. *Lilly,*59, 60. 12 *Mod.*442. A defective declaration, is the same as if there had been none, and by amendment it shall be accounted as a new declaration. *Fin. Emparlance,*335. 2 Lilly, 34, 35. An amendment is not to be granted, if it will prejudice or delay the party against whom the amendment is asked. 2 *Burr. 733,*756. The Courts in *England*have exercised a discretionary power, in granting amendments on the general principle, that the merits of the case may be tried. They have a right there to allow the party his imparlance, which our Courts have not. A general rule should be adopted by the Court, and they should not depend on the circumstances of each case* When it is said the Courts have a discretionary power, it is always to be understood a *legal*discretionary power. An individual should suffer, rather than introduce a general inconvenience. Common Law Judges are bound to "act under positive rules* Eveiy material thing to support the plaintiff’s action must be alleged, and any material point of declaration may be traversed by the defendant. 4 *Bac. Abr.*60. 65* *77.*The defendant comes prepared to try and give evidence, on facts alleged in the plaintiff’s declaration, and is not prepared to encounter other facts; therefore he would be surprised if he had not time to be prepared for them* It is for this reason that the *392Courts in England, on allowing amendments, will grant leave to plead *de novo.*2 Barnes, 13. 18.

The plaintiff alleges, that if there is no amendment, he is barred by the statute of limitations. This might be a motive to induce the Court to grant the amendment, if applied for in time, and if they could give the plaintiff his right of imparlance. This motion should be rejected, because the defendant on amendment, is entitled to imparlance, which it is not within the discretion of the- Court to grant, because it is against public convenience, and would operate injustice to the defendant.

Johnson, in reply.

The statutes from the time of the Henrys, have been continually made to allow amendments, in order to discountenance subtlety in pleading, and to bring back the law to its original purity. Our act of Assembly of 1763, is grounded on the same principles.

Imparlance does not necessarily imply a continuance to another Court, but may be to another day, during the same term. In some cases imparlance is not granted at all; as bn removals by *habeas*corpus, the proceedings are *de*novo, and on filing a declaration, no imparlance is allowed. The cause may be continued under the act of 1769, c. 23. on making an affidavit that material witnesses or testimony is wanting, and that the party has used his utmost endeavours to procure such witnesses or testimony. The cause may be continued till the last of the term, to procure the witnesses. When the doctrine óf pleading was extended to this Province, the doctrine of amendments was in like manner extended. If the defendant under a postponement, cannot procure his witnesses towards the close of the term, then under such circumstances, the cause may be continued under the act of 1769, c. 23s

*393
      *'Mall,*same side,

Mentioned the case of the Lord Proprietary v. Tamer*lane Davis’s Ex’r*in 1752, where an amendment was allowed at the last term of continuance, and cited 3 *Bh*Com. 407.

*Goldsborough*observed, that writs were formerly returnable to a particular day in the term, and the imparlance was *de die in diem,*but this practice has been since disused. 2 *Lili. Reg.*36.

*The Court*were of opinion, that the giving time for ten •days, or during the term, so that the cause could be tried, was sufficient, and that the amendments ought to be allowed, and granted the motion. The amendments were accordingly made.

The amendments being allowed, upon the filing of the declaration so amended, the defendant prayed an imparlance till the next term. But the Court were of opinion, that such an imparlance was not the right of the defendant, and refused to allow it. The defendant excepted.

At the trial of this cause, *John Hepburne, Daniel of St. Thomas Jenifer, John Leeds and Philip Thomas I.ee,*Esquires, were on the bench.

The cause was afterwards referred.