The Court will never turn a party over to a new action while the present suit can be sustained without injury to the adverse party.
The Court consider the powers given to them by the 51st section of the act defining their powers, and regulating judicial proceedings, to be very clearly-expressed.
The act declares,
First. That no summons, writ, declaration, return, process, judgment, or other proceeding in civil causes, in any of the Courts in this State, shall be abated, arrested, quashed, or reversed, for any defect •or want of form: but the said Courts respectively shall proceed and give judgment according to the right of the case and matters in law, as shall appear Unto,them, without regarding any imperfections, de. fects, or want of form in such writ, declaration, or other pleading, return, process, judgment, or cause of proceeding whatsoever; except those only in case of demurrer, which the party demurring shall specially set down and express, together with his demurrer as the cause thereof.
Thus far there is no amendment contemplated by the act. But the Court, with a fixed eye to law and justice, are to disregard all technical'defects, excepting those to which their attention is particularly drawn by special demurrer. Such they are obliged to notice, and to decide whether they render the declaration, &c. insufficient or not. If the Court, decide in favour of the demurrant, the statute, pursuing the liberal intent declared in the outset, that no summons, writ, declaration, &c. shall be abated, arrested, quashed or reversed for want of form, provides,*313ei that the said Court respectively-shall and may, bjr virtue of this act, from time to time amend all and every such imperfections, defects, and want of form,, other than those only which the party demurring shall express as aforesaid.”
Daniel Chipman and Samuel Miller, for plaintiff. W. C. Harrington, for defendant.Here is ample power given to the Court to order amendments from time to time, excepting those set down in demurrer.
But the statute proceeds — And the Court “ may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as the said Courts respectively shall in their discretion by their rules prescribe.”
Amendments may be therefore made in all possible cases, and the.only correct distinction which can be taken between amendments before and subsequent to special demurrer, that the former may be made either by the peremptory direction of the Court, or application of the party, without costs, and the latter shall be suffered upon such conditions as the Court shall in their discretion by their rules prescribe.
Therefore, in the present case, the plaintiff has leave to amend.
Let the rule be made absolute, with conditions that the plaintiff render to the defendant his costs from the commencement of the suit to this time, and that he tax no costs against the defendant prior to the next term of the Court," to which the cause is by order of Court continued.
Rule made absolute.