#### Edward N. Rogers, George S. Rogers and Samuel Rogers *versus*The Niagara Insurance Company of New-York.

To an action upon a policy of insurance, the defendant pleaded the general issue and three special pleas in bar. The plaintiffs took issue upon the three first pleas, but demurred to the fourth. _ Upon the argument of the demurrer, the court gave judgment in favor of the defendants, with leave to the plaintiffs to withdraw their demurrer and take issue upon the plea. The plaintiffs, however, under the advice of counsel, went to trial upon the issue joined upon the three first pleas, taking no notice of the fourth plea, and the defendants entered up the judgment in their favor upon the demurrer.

At the trial of the cause upon thc’issues under'the three first#pleas, the presiding Judge decided that the *fourth*plea covered the whole cause of action exhibited in the first count of the declaration; and as that plea had been decided to be good, and the plaintiffs had permitted the defendants to enter up their judgment upon it, he excluded all the testimony offered to support the eount, and the plaintiffs were compelled to submit to a verdict against them.

Upon application to the court, setting forth that all the proceedings in the case had been under the advice of counsel, who supposed that the plaintiffs could proceed to trial under the other issues, without any embarrassment from the fourth plea, and the determination of the demurrer to it,—the court, notwithstanding the intervention of three terms between the rendition of the judgment on the demurrer and the verdict, set the verdict aside, upon the condition that the plaintiffs should pay all the costs which had accrued, and take issue upon the fourth plea without delay.

This was a motion to set aside a verdict in favor of the defendants, and for leave to amend the plaintiff’s pleadings by filing a replication to the defendant’s fourth plea. The facts of the ease w'ill sufficiently appear on reference to the preceding mar*560ginal abstract, and to the report of the proceedings upon the demurrer. *[Ante p.*86.]

*Mr. Geo. Sullivan,*in behalf of the plaintiffs, now read an affidavit,

setting forth the facts of the case, wherein it was stated that all the proceedings in relation to the trial upon the issues, under the three first pleas, and the neglect to take issue upon the fourth plea after the determination of the demurrer, had been by mistake, and under a misapprehension of the law. That the counsel for the plaintiffs had supposed, notwithstanding the determination of the issue in law, that they could proceed to try the questions presented by the issués of fact, without any reference to the fourth plea, or the decision of the court upon it.

*Mr. G. Griffin*and *Mr. Jay, contra,*for the defendants, insisted,

that the court could not, after the intervention of three terms

between the rendition of the judgment on the demurrer and the verdict, interpose for the plaintiffs’ relief. They insisted that application for leave to amend should have been made at the first term after the rendition of the judgment; or, if opportunity presented, during the same term. [They cited 1 *Dunlap’s Prac.*524. 1 *Burr.*316. 321. 2 *Ib.*749. 1 *Saund.*80. *(n.*1.) 18 J. *R.*28. 30. 2 *John. Cas.*284. 1 *Sellon*379. 3 *John. Cas.*300.

*Per Curiam.*

The court have power to grant the relief here sought, notwithstanding the lapse of time, if the facts of the case warrant their interposition. In the strictness of practice, the plaintiffs would be too late in their application. They should •have amended their pleading, by replying to the fourth plea without delay. Several terms elapsed between the rendition •of the judgment on the demurrer and the trial of the cause, and they may be considered as having elected not to amend. But strict practice,in this case, might “entangle justice in a net of form” without affording any particular advantage to the defendants.

The proceedings of the plaintiffs were all under the special advice of counsel, who supposed that they might disregard the judgment on the issue in law, and still try the issues of fact presented by the other pleas. In this they, were clearly mistaken. *561The fourth plea covered the whole cause of action, and a judgment in favor of the defendants, on a demurrer to it, was conclusive. The mistake was committed bythe counsel; and upon the whole case, we think that the purposes of iustice will be best subserved by setting aside the verdict and permitting the plaintiflslo amend their pleading. The defendants will not suffer in their rights by this course, as the plaintiffs must take issue upon the fourth plea without delay, and pay all the costs which have accrued up to this time.

*Motion granted.*

[A. G. Rogers, *Att'y for the plffs.*G. W. Strong, *Att'y for the defts.]*