Curia.
Allowing this amendment is a matter of discretion. It is objected that the application comes too late ; the proceedings being no longer in paper, as it is expressed in England. This might formerly have been an objection ; but it is not so at this day, when a much greater latitude than formerly prevails in favor of amendments. It will be seen by consulting the authorities, that courts have, of late, not confined themselves strictly to cases where proceedings may be said to be in paper; but they have been guided by the question whether substantial justice requires the amendment, at whatever stage of the proceedings it may be moved.
The motion is to amend generally. This is objected to; because the defendant may add a new plea, and set up a technical usury in discounting the note; an unconscionable defence undoubtedly; and what we shall not allow*. Again ; it is said the original defence is unconscionable; which was a plea that the note in question was discounted contrary to the restraining act; and the case is likened to the principle which denies a new trial in a hard action;
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W^ere court, in the exercise of their discretion, will sometimes refuse a party the second chance of success, who has failed to recover on the first trial. We agree that we will not allow a new defence which is unconscionable ; but we are not aware that the principle can be extended to this case. The’plea is to be regarded now as if it had been overruled in this court upon the demurrer; and on the ground that it was so defectively drawn, as not to present the defence which it aimed at. This is much a matter of course; nor has it been denied merely because the particular plea sought to set up an unconscionable defence, provided it was a valid one. The defendant ought not to suffer from the delay, under the circumstances of this case. The plea was holden good in this court, but overruled on error against him. There is, to be sure, some dispute of this; but the defendant so understands it. The dispute probably arises from the manner in which the opinions of the court for the correction of errors are delivered. From the great number of that body, and the different grounds often taken by members in deciding a cause, such difficulties are not unusual. Nor is it very material, as we allow only an amendment of the particular plea, to which we think the party has a right; and which must be done on payment of all costs of the demurrer, of this motion, and of the cause in the court for the correction of errors.
Rule accordingly.