Lycoming Fire Insurance v. Bush

The plea in form and substance is a plea in abatement, one form of dilatory pleas.

The Constitution provides that “ the Superior Court shall have power” before judgment of directing upon such terms as they shall deem reasonable amendments, in pleadings and legal proceedings, so that by error in any of them the determination of causes, according to their real merits, shall not be hindered.”

The question therefore is whether by permitting this amendment this cause would be determined on its real merits, and without delay or hindrance.

We think the amendment would not tend to promote a trial on the real merit, and might hinder or delay the same. The plea does not touch the contract, but only the right to enforce the same, it might also hinder the determination of the case, for if the amendment should be admitted and the plea not sustained the judgment would be “ respondeat ouster,” the effect of which would be to delay the trial of the cause until it was put at issue on other pleas, and thus the trial of the cause, in the language of the Constitution, would be hindered. This is one of the evils the constitutional provision was designed to remove, the purpose being to promote speedy.trial on the real merits.

This doctrine is distinctly established in Burton vs. Waples, 3 Harring. 75, which does not differ in principle from the case at bar, where the Court uses this language :

“ There is no reason why these parties, having placed their *183cause at issue on all the points of defence which the defendant pleased to set up, should now, at the moment of trial, be permitted to amend for any purpose which will not subserve the real merits of the cause.”

Motion refused.