Doe on the Demises of John Hotchkiss and Mary his Wife, and Michael Pope, v Thomas Pearce, Esq
| Jurisdiction | England & Wales |
| Judgment Date | 27 November 1815 |
| Date | 27 November 1815 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 1090
Common Pleas Division
S. C. 2 Marsh. 102. See Bendett v. Spilsbury, 1843, 10 Cl. & F. 357.
1090 DOE V. PEARCE 6 TAUNT. 401. 1814, to which no objection was made; and having stuck out the name of Cowlam, who bad never appeared, nor been served with notice of declaration, be sent back the issue on 5th July 1815, indorsed with notice of trial for the ensuing Lincoln assizes, which were on the 15th, and apprized the Defendant's attorney of the nature of the amendment. The Defendant refused to accept the issue so sent back, until the costs of the amendment were taxed and the amendment actually made, and until the Defendant had bad an opportunity of pleading de novo, if necessary. The Plaintiff again delivered the issue on the 7th, and the Defendant again returned it, and re-delivered on the 10th the amended declaration. On the 8th of July the Plaintiff procured the costs to be taxed, and gave notice of trial, and carried down the record. The Defendant, who was under terms of accepting short notice of trial, relying on his right to plead de novo, as a matter of course consequent on the amendment, did not appear to defend the cause, [401] and the Plaintiff recovered a verdict. In this term Shepherd, Solicitor-General, for the Defendant, obtained a rule nisi to set aside the verdict and have a new trial upon the ground that the trial and notice of trial were irregular, for that the rule for the amendment was improperly drawn up by the Plaintiff, inasmuch as it did not contain liberty for the Defendant to plead de novo, to which he was entitled as a matter of right. Copley Serjt. shewed cause against this rule. He urged, that the liberty to plead de novo was not a matter of course incident to every amendment, but only to such as changed the nature of the defence. GIBBS C. J. agreed that an amendment often was such as could not render it necessary for the Defendant to plead de novo. He recollected an instance, wherein Lord Mansfield had made an order in Loudon for amending the pleadings in a quo warranto, which was tried at Dorchester on the very day after the date of his order. Heath J. observed, that upon attendances before a judge at chambers, upon a summons to amend, it was a question continually mooted by the attornies on both sides, whether the amendment prayed for was, under the circumstances of the case, such in its nature as to entitle the Defendant to plead de novo, therefore it was not necessarily and in all cases attended with that effect. The Solicitor.General then endeavoured to support the rule, upon the ground that the Plaintiff never re-delivered the issue after the amendment made ; and the delivery on the 7th, being before the taxation and payment of costs, put the Plaintiff in no better condition than the delivery on the 5th. And upon this ground...
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