#### Thos. Davis & Archibald McNeil *v.*Theophilus Evans & others.

Cumberland.

A special demurrer being' filed to a declaration, and sustained, the Court will give leave to amend the declaration on payment of costs.

In this case a declaration had been filed, to which the Defendant demurred specially, and after argument at the spring term of 1812, Locke, Judge, sustained the demurrer, .but gave the Plaintiffs leave to amend on payment of costs. At spring term 1813, Williams for the Defendants, obtained a rule to shew cause why so much of the order as gave the Plaintiffs leave.to amend, should not he vacated, on the ground of error, irregularity, and want of authority in the Judge, to make such an order; and the case was sent to this Court upon this rule.

Bela Strong Esq. argued the case for the Plaintiffs j and all the objections urged by the Defendants against the order giving leave to amend, are noticed by him.

*203Two questions, only, seem to be presented by this rule, viz. \

I. Had Judge *Locke,*authority to make the order for amendment ?

IÍ. Was that authority properly exercised by him ?

I. As to the. Jh\si *question,*the Plaintiffs maintain that he had authority, for 1st. by the common law, amendments of the pleadings are allowable, until judgment given *;*2d. in this cause no judgment had been given j and, 3d. this action forms no exception to the above general >rule of amendments.

1. By the common law, amendments of the pleadings were allowable until judgment given.

Under this point, however, it will be necessary, for the purpose of coinciding with the. books, to remark, in the. first place, that the pleading's are considered to be *in paper*until judgment given, and, in the second place, that while the proceedings are considered to be *in paper,*they arc amendable by. the common law.

In the first place, then, lho pleadings are considered to be in paper until judgment given. *“*Pleadings are the mutual altercations between the Plaintiff and Defendant, which at present are set down and delivered into the paper office in writing, thong!) formerly they were usually put in by their counsel *ore tenus*or *viva voce*in Court, and then minuted down by the chief clerks or *prothonotaries;*whence in our old law, French, the pleadings were frequently denominated the parol.— (3 *BL Com.*293.) It is to he observed that the commentator lias not used the word recorded, but *“minuted down,*&c.” and he cannot mean that such a *minute*becomes that solemn *“*memorial, or remembrance, in rolls of parchment,” which *Coke*gives as the definition of a *record.*— (1 *Just.*260, a.) This distinction between the *minutes*and the *records*of the Court appears to have existed as early as the beginning of the reign of *Ed. I.**204when it was the practice to amend the. entries of judgments, by a recurrence to the minulcs of the Court.— , ^ vat, ...... (3 *BL Com**408*) And the same distinction is observa-^lc this day. “ Anciently ail pleas were *ore tenus,*at *bar.”*— Rush v. *Seymour, M.*11, *Ann B. R.*10 *Mod. Lucas’s Rep.*88.) But “the Judges were to record the parols deduced before them in *judgment.”*— (Bac. *Ah. Title amendment and jeofails (A) cites Britton*2 *; and see also*Tidd, 651.) Yet as no other time is mentioned for recording the parols, otherwise than “ *in judgment,”*it would seem that they are under no necessity to make such a record until the giving of judgment, and, in general, the practice of the English Courts is *so.*— (Tidd, 843-4-5.) But though the pleadings should be entered on the roll, the Courts (perhaps in consideration of their power to delay the enrolment,) still exercise the same authority over them until judgment, as if they had not been enrolled. It is, however, true, that *in Rohinson v. Raley,*after a trial in issues in fact, and upon a motion for leave to withdraw demurrers and amend,' (which was evidently before judgment,) Justice *Denison*said, *“*the Court cannot help seeing that this is upon record; here are verdicts and contingent damages found. Therefore, wre.cannot help this, I wish we could, because the merits seem to be with the Defendant. The cases of amendment cited, are where the whole are supposed to be *in paper,*or else the Court could not have done it. We have no authority to do this after it is plainly *upon record.”*— (E. 30. *Geo.*2. 1 *Burr.*316.) Yet if the entry of verdicts in that case was taken to bp such a record that the Court could not help noticing it and yielding to its restraint, they had, nevertheless, the power to set aside the verdicts, and in that w’ay so to remove, or alter that record, that the objection of Justice *Denison,*would wholly have vanished. As in the case of *Rex v. Philips, Mayor of Carmarthen,*where verdicts were had and entered under the direction of the Court, without *205prejudice to future trials ; the verdicts were set aside, and the Defendant had leave to amend his *plea.*— (E. SO. Geo. 2. 1 *Burr.*292.) So that the Court did give leave to amend, after the entry of verdict, in tiie face of the récord ; or the setting aside the verdict so removed or altered the record as to open the Court’s authority to amend. In the case last cited, *JaI. Mansfield,*said, *“*I have no doubt but that we may do this without the consent of the prosecutors.” — {1 *Burr.*306.) In *Gray*v. *Pindar,*also, after verdicts on issues in fact, an amendment was allowed notwithstanding the record.— (2 *Bos.*& *Pull.*427.) And see also, (7 *Burn.*& *East.*132, and *Tidd,*653.) So a verdict was set aside, and' the Plaintiff had leave to amend his declaration in the Circuit Court of the United States. *Wiihings*v. *Murphy, ad'r.*June, 1803. — (2 *Hay. Rep.*283.) And in this State, after a verdict had and entered, it was overturned, and the Defendant had leave to add such a plea as constituted a new defence. *Reid, ¿fie.*v. *Hester's ad'r.*June, *1804.*— (Rep. *'in Con. 488.)*The pleadings in North-Carolina, therefore, have been subjected to the control of the Court after verdict. Whatever, then, might have been the opinion of Justice *Denison,*the words of *Sir William Blackstone,*stating the authority and practice of the Court, in regard to the proceedings before them, seem, on the whole, to be well supported $ *“*for,” says he, “ they at present consider the proceedings as in *Jieri,*till judgment given.” — (3 *BL. Com.*407. See also 1 *Salk.*47, *case*2.) And so loug as the proceedings are considered to be in *fieri,*they are deemed also to be *in paper,*because only the practice of pleading *viva voce,*in Court, has been superseded by the delivery of the pleadings, in 'writing, and the parols, or pleadings, are not now, more than formerly, considered as records, until they are enrolled of record “ in judg*ment.”*— (Tidd, 651-2. 3 *Bla. Com.*293, *nt sup.)*But this point will receive further confirmation in attending *206to some of tho authorities which will hereafter be quoted.

In the second place, while the proceedings are con- * sidered to be *in paper,*they are amendable at the Common Naw. An amendment of a plea, was long ago (in the time of Ed. I.) allowed, after exception, ami the opinion of the Court declared by rule. *Coblcdike’s*case, cited by *Coke,*in *Calvin's*case — (7 *Co.*9, 6.) The words of Lord Chancellor *Ellesmere,*respecting the amendment in that case, are, iS this plea was *houlden*to bee insufficient ; and *thereupon,*the tenant *amended*ids plea, and *pleaded, further, otc.”*— (Ellesmere's opinion in Calvin’s case, *p.*92.) So it was'held by *North, Ch. J.*and *Seroggs, J.*after demurrer to a plea, and joinder, licit *e<*the Defendant ¡night have liberty *to amend before judgment given.”*— (Anon. *II.*28 and 29, *Car.*2, *C. B.*2 *Mad.*167.) While all is *in paper,*amendments are allowable *at pleasure.*— (1 *Salk. 47, case*1. S *Salk.*31.) And *before judgment,*while all tilings arc *in fieri,*the Court has power to allow amendments. — (1 *Salk.*47, *case*2.) After plea issue, and *record sealed up,*and just as it was going to be tried, *an amendment*was permitted. — (1 *Salk.*47, *case*3.) Though in the case of *Fox*v. *Wilbraham,*an amendment was refused after demurrer ; yet it did not seem to result, from any supposition, that the Court wanted *power,'*but from the consideration of *a hardship upon the demurrant*— (1 *Salk.*50, *case*11. *E. IS, W.*3, *S. C.*1 *L. Hay.')*And but for the authority of the case last mentioned, perhaps the same observation would have been applicable to the case of *Weeks*v. *Teaeh,*(which was at the next term after-wards,) where the Court, after demurrer, refused leave to amend without the consent of the *demurrant.*— (T. 13, *W.*3. 1 *Salk.*179. *S. C. L. Ray.*679.) “ The statute of amendment and jeofails, only touch pleadings of record ; *while pleadings are in paper they are amendable at Common Law.”*— (Rush v. *Seymour, ut supra.)*The Plaintiff had leave to amend his declaration. *“*The *207Court were clear that it might be done at any time whilst the .proceedings were *in paper*and by *Denison, ii it was amendment at the Common Law." Griffith-, g. t.*v. *Tlollyer*— (T. 29 & 30. Geo. 2. *B. 11. died,*2 *Burr.*1098.) “ After joinder in demurrer, by Plaintiff, he may amend his pleading or the Defendant may withdraw his demurrer, on payment of costs, *while the proceedings arc in paper,*but not after the demurrer is entered of *record.”*— (Bac. *M. title amendment aiul jeo-*fails.) The Courts “consider the proceedings as in *fieri,*till judgment given ; and, therefore, that till then, they have power to permit amendments by the Common Law, but when judgment is once given and enrolled, no amendment is permitted in any subsequent torn.” — (3 *Bl. Com.*407. See also *Tidd,*652 and 658-9.)

1. Objection of the Defendants. — Under the act of 1790, *ch.*3. *sec.*9, such matters as are specifically set forth, for causes of demurrer, are expressly excepted from the benefit of such amendments, as are provided for by the enacting clause *;*an amendment, therefore, of such particulars as are specially assigned for causes of demurrer, is unauthorised by the act of Assembly.

Answer of the Plaintiffs.. This objection,1 it is conceived, is wholly inapplicable to the present question. If an amendment had been asked for, which was *only authorised by the act of Assembly,*and that defect which was thus sought to be amended, bad been pointed out by a special demurrer, in such a case the Defendant’s objection, would seem to be of unanswerable validity. But the amendment, at present, under consideration, was asked for at *Common Law.*It will be incumbent, therefore, on the Defendant’s, in order to make their objection applicable, to shew either, *firstly,*that this amendment could not, before the act of 1790, have been made at the Common Law ; or, secondly, that the act of 1790, has abridged the Common Law powers of the *208Court, in such manner as that they can no longer reach a case like the present.

As to the *first*ground. It is taken for granted, and as undeniable, that the Common Law of England is in force here, so far as it has not been invaded by the constitution and laws of North-Carolina; and it is believed that sufficient common law authority has been already shewn, to warrant the court’s authority in making such an order for amendment.

As to the *second*ground. It is in be-L af of til# Plaintiffs contended. 1st. That the act of 1790 has not a more extensive operation than the English statutes of amendment and jeofails, and 2d. That neither the act of Assembly, or those English statutes, were ever intended, or ever held, to narrow the Common Law rule, of amendments. 1st. “ The act of 1790, is but a repetition of the provisions before made, by the acts of amendment and jeofails.” “ By this act nothing can be amended, but what the other party might have demurred to, and specially set down as the cause of his demurrer.” By the Court in *Cowper*v. *Edwards, adr.*&c. at Halifax, Oct. T. 1792. — (1 *May. Rep.*19-20.) It will, perhaps, be seen by any one, who shall examine this subject, that the above decision restrains the operation of the act of 1790, to the very same dimensions, which were before completely filled up by the operation of 27 *Elia, ch, 5 ;*and yet the authority of that decision has been since re-examined and *confirmed.*— (Troxler v. *Gibson,*1797. 1 *May. Rep.*466. By the first of these decisions *a writ,*though expressly named in the act, is held not to be amendable under it *•,*and by the second *matter of substance in pleading,*where the *form is unobjectionable,*is ■deprived of any amendatory benefits of the act of Assembly, and left to be decided upon Common Law principles. 2d. The act of Assembly could not have been intended to abridge Ihe Common Law powers of the Court, in cases of amendment. It either gave a *nexo*

*209*authority to amend,*or it did not. If it did, then, by the common understanding of mankind, an exception would not be deemed to have a wider construction than the *newly given authority*to which it has *relation;*but the Courts have said, as above, that the *provisions were ie-fore made*of which this act is *“hit a repetition.”*If it did not, then surely the exception is as nugatory as tiie enacting clause. At most, this act only confirmed an old authority without any enlargement or diminution ¿ for, by. the two last decisions, it appears, also, that the confirmation of this act, can extend no farther than to such amendments as were before allowed under the act of 27 *Elia, ch. 5.*So that the reason and construction of the statute of Elizabeth, seem perfectly applicable to the act of 1790 *;*and it will presently be shewn, that the 27 *Elia,*was never intended or held to narrow the Common Law. Besides, in the preamble of the act of 1790. *ch. 3,*it is, among other things, declared necessary "that the business of the said Courts, (Superior Courts of Law and Equity,) should be so arranged and expedited as to be less expensive to the suitorj” and the 9th section purports to give to those Courts an authority to disregard or amend certain defects, &c. Now, if the whole complexion of this act is observed, it would seem, very strange, that in giving to the Courts an authority, (which, perhaps, they were erroneously supposed to want,) for a given purpose, the act of Assembly should be so construed, as to diminish a power already possessed by them, for arriving at the very same object.— For it is one of the rules for the construction of laws, that if they can be made to harmonize together, the authority of both shall remain. Moreover, could the Legislature intend to *increase expedition,*and lessen the *suitor’s expense,*by giving greater force and efficacy to *formal objections upon a special de/imreer*than they were before allowed, and by thus ouiiging *suitors to pay the costs of two actions,*when amendments already authori-*210sed by the Common Law, under the direction of the Court, would render *one action*sufficient for a fair determination of the controversy upon its merits? It would be preposterous to answer in the affirmative.

That the English statutes of amendment and jeofails, were never intended to restrain the Common Law, will be evident, if we ascend to their cause. In the beginning of the reign of *Ed. I.*it appears, that amendments were made to an extent which cannot now, perhaps, be ascertained, but which was probably greater than is at present allowed, with tiie aid of all the numerous statutes on that subject. “ The *judgments*were entered up immediately by the clerks and officers of the Court j and if *any mis-entry -was made,*it was *rectified by the minutes*or by *the remembrance*of the Court itself.” — (S *Blac, Com.*408.) It was not until after the 17 *Ed.*1, that amendments began to be refused in cases where justice required them; but the prosecutions instituted by that monarch , against'the judges, occasioned such a strictness respecting amendments, as by its oppressive and intolerable weight made those statutes necessary. It was really *a departure fom the Common Law,*which they were called in to rectify. Thus, the fears or the *sullenness”*of the .fudges, produced those pitiful precedents, which afterwards came to be regarded as law *$*but by the aid of the Legislature, so *repeated.j*interposed, and by the liberality of the Courts, in modern times, the ridiculous strictness built upon those precedents is now disregarded, and the *Common Law is so far restored,*that amendments are now only refused *“*where they would work an injustice to one of the parties, or where he could not be put in as good a condition as if ins adversary had made no mistake.” — (3 *BL Com.*410.411. 2 *Burr.*756.) Thus, the intent and operation of the English statutes of amendment and jeofails, have apparently been to restore, and not to restrain the Common Law. That the only statute which *211has any application *to*the present question, was never held to confino the Common Law within narrower limits, will appear in answering- the following objection.

2(1. Objection of the Defendants. — Should amendments be allowed in those particulars that are specified as causes of demurrer, the act of 1790, requiring those causes to be assigned, would be without object, and would fail of having any effect.

Answer of the Plaintiffs. — If the Legislature has only confirmed a law which was before in full force, that cannot deprive the Plaintiffs of the benefits which they were entitled to under that law, for it would still remain in force after such a confirmation. But tins objection would rest upon the *construction*of the act of Assembly; and supposes for that purpose, that, having no other consequences than such as would destroy the Court’s power of amendment, at the Common Law, in cases like the present, the act must, 1 her of ore. be construed to produce that effect. Is not this reasoning- absurd ? But as this objection was, in fact, made, an attempt will he offered to shew that such a supposition is wholly erroneous; and if this attempt should be successful, the *last*objection of the Defendants will, of itself, sink into nothing-, and complete also the annihilation of the *first.*

The only English statute which seems to coincide with the act of 1790, upon the construction which this act has received, is, the statute of 27 *Elia. ch.*5, as has before been remarked. The substance of the act of Assembly, so far as it is now material to consider it, is as follows, viz. no “judgment,” or other proceeding-, shall bo “ reversed,” or otherwise overturned, “ for any defect or want of form, hut the said Courts, respectively, shall proceed and give judgment, accordingly as the right of the cause and matter in law shall appear unto them, without regarding any imperfections, defects or want of form in such *writ, declaration or other pleading, return, process or course- of proceeding whatsoever, except**212*those only in cases of demurrer, which the party demurring shall specially set down and express, together with the demurrer as cause thereof.*And the said Courts respectively shall and may, by virtue ot this act, from iime to time, *amend all and every such imperfections, defects and want of form, other than those only which the party demurring shall set down as aforesaid,*and may, at any time, permit either of the parties to amend any thing in the process or pleadings, upon such conditions as the said Courts, respectively, shall, in their discretion, and by their rules, prescribe.” Were it not that the authorities already cited, confine the operation of fyiis section of the act, entirely to cases where only a special demurrer is proper, and also limit its operation to that of the English statutes of amendment and jeo-fails *;*it could, perhaps, be insisted that the latter part of it, (which is to be found in none of those statutes,) is very clearly an express authority, in confirmation of the Common Law, and extending completely to the question now before the Court. For the act, after *once*declaring particularly an authority to amend whatever of faultiness in form, there may be, not specially assigned as cause of, demurrer, *goes on further*to declare a *discretionary power*in the Court -to *permit either of the parties,*at *any time*to *amend any thing*in the *process or pleadings.*But upon the supposition that the construction of the act is already fixed by authority, the statute of Eli-beth.will be introduced as the only *provision before made*of which the act of Assembly, then restrained in its construction, is *“ hut'a repetition,*and as furnishing at once the reason and the application of the act of 1790. *“*After demurrer joined and entered, in any action or suit in any Court of record within this realm, the Judges shall . proceed and give judgment according as the very right of the cause, and matter in law shall appear unto them, without regarding any imperfection, defect or want of fora in any writ, return, plaint, declaration, or other *213pleading, process or course of proceeding- whatsoever., except those only which the party demurring shall specially and particularly set down and express, together with his demurrer, and that no -judgment to be given, „ ° shall be reversed by any writ of error for any such imperfection, defect or want of form as is aforesaid, except only as is before excepted, &c.” It is to be observed upon this statute and the act of 1790, respecting the question now pending, that the latter so far as upon its given construction, it is at present applicable, is entirely copied from the former $ that both have reference to the same subject matter; both contemplate the same evil j and both allow the same remedy. Unless a new construction should be given to the act of 1790, they are exactly similar. Any objection that could be made to one, seems equally valid against the other. But let the operation and consequences of the statute of *Elizabeth*be examined, in reference to the Defendant’s objections under the act of 1790, and it is apprehended a complete answer will be furnished in favor of the Plaintiffs. 1. The practice upon demurrers was materially changed by this statute law. Before the pleadings came to be delivered in writing, the exceptions being taken *-Diva-voce,*were as well known apon a general demurrer as upon a special one. At the Common Law, therefore, the-demurrant might, upon a general demurrer, take advantage of all manner of defects as well in form (except duplicity) as in substance,- and after the pleadings were in writing, the Lawr was unaltered. On the contrary, if a special cause were assigned in the demurrer, he could only have advantage of the defect, thus particularly set dowrn. This statute law, however, gives him on the one hand, an opportunity upon a special exception set down against *the form*of the pleading, not only to insist upon that, but also to avail himself of any *substantial defects;*while, on the other hand,, upon a general demurrer, all faultiness in *the form*of the pleadings, will he, wholly *214disregarded or amended. 2. When the exceptions were no longer taken *viva voce*at bar, a general demurrer delivered m writing, did not, as at bar, disclose those particular defects which were the cause of the demurrer $ and the parties therefore went to argument, without knowing what they were to argue; and for this^rcason they must have been often taken by surprize, and thus a fruitful source of error must have been *opened*— (Tidd. 648 — 3 *Salk. 122*— Hob. 232 — 1 *Saund. 337, n.*3.) This statute law remedied that evil. 3. Before the statute of *Elizabeth,*if any defect, however formal or trifling, had been overlooked on arguing the demurrer, or if the judgment had been erroneous in respect of the smallest imperfection, all was liable to be torn assunder upon writ of error — (3 *Bl. Com.*411.) The preamble of that statute, seems to regard this circumstance as a principal evil which demanded its interference, for it complains that *“*judgments are often reversed by writs of error” in consequence of such imperfections,* and this evil was also in a great measure remedied by the statute. 4. Before this statute (if we are to believe its preamble) “ upon some small mistaking or want of form in pleading, judgments were oftentimes, upon demurrers in law, given otherwise than the matter in law, and the very right of the cause required, whereby the parties, were constrained either utterly to lose their right, or else, after long time and great trouble and expenses, to renew their suits.” But by this statute, judgment is to be given according to substantial right and justice, and all such small mis-takings and want of forms, are to be wholly disregarded, unless particularly set down and specified for solemn argument and consideration. And this alone would be a great advantage. But iti reality the statute has a wider effect, and furnishes a very complete remedy in respect to matters of form, when it is considered. 5. That *the very foundation on which the Defendant’s objections both rest,*is assigned as having been a particular object *215which the statute intended to present to the notice of the Common Law, for the purpose of inducing the application of a Common Law remedy. “ *The very intent of requiring mistakes in point of form to be shewn for cause of demurrer was, to give the party an opportunity of amending.”*— (Tidd. 656 *cites Str.*846.) And not only is this assertion strongly countenanced by the preamble to the statute of *Elite,*but also by that of our act of Assembly.

The *power*of the English Courts to allow amendments after *special,*as well as *general*demurrer, seems never to have been questioned as having been impaired by the statute of 27 *Elite';*for though amendments have been sometimes refused, the statute was never assigned as the reason of such *refusal;*and though they have been much, more frequently granted, it has always been at common law, and it does not seem ever to have occurred to the English Courts, that a special demurrer under the statute, presented any obstacle in their way. Thus it was granted *upon debate,*after *special*demurrer, *joinder and argument,*in *Bishop*v. *Stacy*— (M. *7*Geo. 3 *Sir. 954.)*After *special demurrer*to his declaration, the Plaintiff had leave to amend in *Polybank*v. *Hawkins*— (Doug 329— *315,) and also in *Luxton*v. *Robinson*— (Doug. 620' — ■ *598.) So after *special demurrer,*amendments were allowed in *Donelly*v. *Hunn*— (1 *Bos.*& *Pul.*448,) and *Hinder*v. *Paris*— (1 *II. Blac.*563.) And that amendments are usually allowed after *general and special demurrers*indifferently j (see *Cobledike’s case, uf*supra.'— *Jlnon.*2 *Mod.*167, *ut supra.*2 *Bos.*& *Pul.*153. *Ib.*284. *Morris*v. *Langdale. Ib.*359, *Hawlñns*v. *Eckles et al. Ib.*427, *Burgess*v. *Freélove*& *Gray*v. *Pindar. Ib.*446 *Bell*v. *Ba Costa.*1 *Mew. Rep.*62, *Bulpit*v. *Clarke.*2 *Mew. Rep.*118, *Rogers*v. *Imbleton. Ib.*362, *Be la me,*v. *Stewart,*and see also *Tidd.*656-7 and the cases there cited.) The statute of *Elite,*then most evidently was sever held to *restrain,*bat has been held to *aid and*as*216*sist ijie Common Law powers*of the Courts to allow amendments; and by the most forcible and intimate analogy, as well as by the authority of the cases in (1 Be?,) ^ seems that the act of 1790, also should not be allowed to produce any other consequences to the Common Law, than have followed upon the statute of *Elizabeth.*

*2.*In this case no judgment had been given. According to the practice of the Courts in this State, no records of judgment are ever formally drawn out and filed 5 but the short entries of the Clerk supply their place. The original order in this cause for amendment, was in fact, made in the Judge’s own hand-writing, on the back of the declaration, and copied from thence by the Clerk into his docket. These entries are, it is presumed, to be taken, according to their apparent meaning and intent, and will not be tortured into any thing else. If so, this entry 41 *demurrer sustained, with leave to amend on payment of*costs,” can never be received as a judgment, *it*has not a word that looks like a determination of the cause. Should it be said that the words “ *demurrer sus-iained,”*would of themselves import a judgment for the Defendant; the answer is, that the words which follow qualify and fix the meaning of the whole entry. Should it be said, that the order for amendment comes *after*the opinion of the Court that the demurrer should be sustained, and therefore that the order of amendment is *after*the judgment upon the *demurrer;*the answer is, that the whole entry must be taken together, and must be deemed simultaneous. The true meaning and intent of the entry then, was neither more or less than that it was the opinion of the Court that the demurrer was well taken, and that upon due consideration-of the matter, the Plaintiffs should, on payment of costs, have leave to amend their declaration. Besides, the application for amendment must have preceded this entry. In fact, it was made during the argument. Bat were it not so, *217die record was in the breast of the Court during the term, 1 *Inst.*2G0. *a.*and the Judge after an entry of judgment might at any time during the term have alter-cd or suspended the judgment by making this order for amendment, and it will not bo pretended that this order was made after the expiration of the term.

*3.*This action forms no exception to the above general rule of amendments. This is not a *penal action,*as' appears upon the face of the declaration. It is brought for *damages generally,*upon an act of the Assembly, which declares a public right and gives an action to such *persons only*as *may he aggrieved*by its violation. There is no *penalty*mentioned in the act. But were it *a penal action,*that quality would be no objection tó the power of the Court in allowing an amendment at the common law. In *Griffith q. t.*v. *Ilollyer, ut. sup.*which was a *penal action,*the plaintiff had leave to amend his declaration. In *Bondjiéld q. t.*v. *Milner, M.*1 *Geo.*3. 2 *Burr,*1098, which was *a. penal action,*though it was objected for the Defendant, that the statutes of amendment and jeofails did not extend to *penal actions;*nevertheless the Plaintiff had leave to amend his declaration. By Lord *Mansjield : “*To he sure the statutes of amendment do not extend to penal actions. This is an amendment at common law.” And by *Denison: “*There is no difference between civil and penal actions, where they apply as for an amendment at common law, and the proceedings are in paper.” In *Rex*v. *Wilkes,*an *information for a libel,*even after issue joined, was amended by a single Judge at Chambers, on hearing both sides, without consent on the part of the Defendant. (4 *Burr.*252r.) But if in this case the defendants are guilty, ought the Court, if it can possibly be avoided, to sanction injustice by allowing them to escape with impunity, because the Plaintiffs have unintentionally committed a fault in flic mode of setting forth their wrongs to the Court? Or should it at last appear that the Defendants are not *218guilty, ought the Court to assume their innocence without proof, and by prejudging the Plaintiff’s cause to deprive the latter of an ordinary trial, because tbeyhave filed a defective declaration ? It is presumed that this is not an age or a country where any Court, would willingly deprive a party of a fair trial. “The Court,” rsaid Lord *Mansfield*in *Mder*v. *Chip, II.*S3 *Geo.*2 — 2 *Burr. 756.*“The court has not used the same strictness of late years with regard fo amendments as they formerly did; and it is much better for the parties that they should not. However, the Court would always take care that if one party obtained leave to amend, the other should not be prejudiced or delayed thereby.” Mr. Jus-, lice *Ashton*in *Mace*v. *Fowell, ut sup.*said, 4‘ The Courts have gone a great way in allowing amendments for tbs furtherance of justice. They have amended in cases where 'the limited time of bringing an action would run against the Plaintiff, if he were put to bring a new one.” And (he Courts of North-Carolina cannot be less anxious to effect substantial justice than those of Great-Britain.

it may not perhaps be impertinent to remark, that some gentlemen of the bar, relying upon their own greater experience or superior skill in difficult cases, where they arex-conscious of possessing the darkest side, do sometimes oblige their professional opponent to draw out and file his pleading *inform,*for the express purpose of putting them to the torture of a special demurer, and of tjuls endeavouring to overturn a just action ora valid de-fence, upon questions that do not involve the merits of the controversy between the parties. , And in this country, where *pleading in form*is very little practised, and in consequence thereof, is perhaps neither very extensively or thoroughly understood, if objections to the form of pleading are to be entertained with a favorable ear, such gentlemen as are above alluded fo, will have it much more in their power to “ *entangle justice in a net of technical jargon,'9*(3 *81. Com.*411.) than was formerly the- case *219i» the English courts, where the *formalities*of special pleading, though universally and scientifically practised, became too troublesome for endurance, if “ *these opprobrious*niceties»” (S *Bl. Com.*411.) arc still to be regarded and rendered fatal to our pleadings ; in vain will a dozen English statutes, and our own act of 1790, have laboured to furnish an appropriate remedy. The liberality of the English courts, in the midst of their forms, instead of becoming an useful example, will be departed from, under circumstances more imperiously demanding its exercise 5 and a heavier evil will be produced in tho courts of this state than could ever have fallen among the well pracüsedlfüeadei's of Westminster Half. Even ire England it is not considered as very liberal to evade the merit of a case by an attack upon the *form of its pleadings. “*Where there are merits to be tried, (says Chitfy on pleading, 1 vol. G39,) it is in practice more liberal not to demur for a mere mistake in form.” And .here where forms are by common consent almost banished, such a practice of demurring specially, may without the imputation of undeserved severity, be well denominated *invidious.*

But the 01'der of Judge Locke, is supported by the practice of courts proceeding like ours, according to the course of the common law. Out of tho numerous precedents to be found in the books, only a few will be noted in this place 5 but it is conceived that they are exactly *in point,*and that they support every part of the Plaintiffs' argument and of the Judge’s order in this cause.

*Tippett*& *others*v. *May and two others, E.*29 *Geo.*3, 1 *Bos.*& *Pull.*411. In this cause there were declaration, plea, replication, *general demurrer*and joinder. After argument and *opinion given*by the Court, leave was given to amend on payment of costs.” This cause is cited to support any necessary amendment in the *substance*of this declaration.

*220*Donellt)*v. *Ihiun T.*39 *Geo.*3 1, (Bos. & *Full.')*448» la this case there were declaration, plea, *special demur;-' rer*and joinder. After the Plaintiff’s *argument'“*Mar-' shall Kei-jt. who was 1o have argued in support of the jilea, *finding the opinion of the Court to he against him*moved for leave to amend which was accordingly granted.” *FohjbarJi*v. *Hawkins, pi.*20, *Geo.*3, *{Bong.*329,) In tliis case there were declaration, *special demurrer*and joinder. After argument and opinion given, the Court were about to give judgment for the Defendant, but *Wood*moved for leave to amend,,which was granted on payment of costs.” *Luxton*v. *Robinson, pi.*21 *Geo. 3, {Doiig.*G20,) This case is¿ like the one last cited. And these precedents all go in support of amendments in *the form*of the declaration.

*Shum*& *others*v. *Farrington, H.*37 *Geo,*3, £l *Bos. and Full.*CAR.) In this case there were declaration, plea, replication, *special demurrer*and joinder. After argument and *opinion given,*“the Court were about,to give judgment for the Plaintiff, but on the application, of *he*, *Blanc*ga\e him leave to withdraw his demurrer and rejoin.” This case is cited in connexion with the others, to show that *tlic practice*of the English Courts has been (.o-extensi ve with thol r *powers,*in the whole extent, wherein the Jailor have been staled in behalf of the Plain tiff's.

On the *second question*made, therefore, the Plaintiffs fenchido, that .fudge *Locke*exercised with propriety the power which was vested in the court, by making the order for amending the declaration in this cause: because upon the first point it appears, that the exercise of that power was discretionary with him *;*and because • upon the second point, lie exercised it for the furtherance <¡f jus'iee, find according to the most usual and best approved practica <>f courts which have their proceedings ¡recording to the course of the common law.

If, *on the whole,*(hen, the Judge had authority to make . *Cris*order *hr*amendment, and if he has exercised that *221power with propriety, where is the *error, irregularity,*or *want of authority*which this rule contemplates as its only support? The Plaintiffs therefore, humbly hope, that the Defendant’s rule in this behalf will be discharged, and that they will be allowed the benefit of that order which was made in the Superior Court of Cumberland, for the amendment of their declaration.

By the Court.

This question is in effect, whether the Court below had power to allow the amendment, for if the Court had no authority, the granting of the order was a perfect nullity.

If a strict and literal construction be placed upon the act of 1790, it will be found that in no case whatever, can *matter of form*be amended, whereby any end is obtained 3 for by the words of the act, this power seems to be only exercisable as to imperfections, which are not set down as causes of Demurrer 3 and by the preceding part of the same act, such defects are cured by not being demurred to. The last part of the section however, has these general words, that the said Courts may *at any time*¡termit cither of the parties to amend *any thing*in the pleadings and process, upon such conditions as the said Courts respectively shall, in their discretion and by their rule prescribe.” Unless, therefore, the Courts under these last words, have power to permit the parties to amend in cases of special demurrer, the consequence would be, that the Plaintiff1 may be permitted to amend, in substance, though there be a general demurrer ,• and yet, as to a mere slip in matter of form, not essential to the justice of the case, which had been seised upon by a vigilant counsel, the hands of the Court would be completely tied. As therefore, this construction can be completely obviated by allowing to the latter words an import which they certainly bear, that of amending *any thing*at *any*time, we are of opinion, that it was competent for the Court below to make such order, and that the rule for setting aside the order be discharged.