paper, it is usually enclosed in the writ. It will be found convenient to note upon the back of the plea, and upon all papers filed in the cause, what the paper is, the cause in which, and the time when it is filed.

When it is provided in the statute that the general issue shall be pleaded in all, excepting certain excepted cases, it is not intended to exclude such pleas and motions as go to defects in the plaintiff's writ or proceedings, and which are generally waived by pleading the general issue. The more common forms of them are those of motions to dismiss the action, and pleas in abatement. The former can only be entertained, when the matter of exception is apparent upon the face of the proceedings, or more plainly, when the magistrate may have information of the defect, without proof of facts apart from the papers before him. When it is necessary to bring before him some matter of fact not apparent in the record and proceedings, a plea in abatement must be filed' Demurrers are not often resorted to before magistrates. When, however, a party is willing to admit the facts alleged in the declaration of the plaintiff, or in the plea of the defendant, but at the same time desires to deny that the facts so admitted are sufficient to sustain the action, or the answer to the action, as the case may be, he may have that question tried by filing a demurrer to the declaration or plea. A form for a demurrer will be found in a subsequent chapter

of this work.

VII.

PROCEEDINGS WHERE TITLE TO REAL ESTATE IS IN QUESTION, AND IN REPLEVIN FOR BEASTS DISTRAINED OR IMPOUNDED, WHERE THE DAMAGES DEMANDED EXCEED TWENTY DOLLARS, OR THE PROPERTY IN THE BEASTS IS IN QUESTION, AND THEIR VALUE EXCEEDS THAT SUM.

When in any action pending before a justice of the peace, it shall appear, by the pleadings, or the brief statement filed in the case by either party, that the title to real estate is concerned or brought in question, the case must, at the request of either party, be removed to the District Court, to be there tried in the same manner, as if it had been originally commenced in that court."

11 Met. 508.

2R. S. ch. 116, sec. 3.

The title to real estate cannot be said to be brought in question, in the sense intended by the statute, when it is not put in issue by the pleadings, and cannot be affected by the judgment. For example, in an action of assumpsit to recover compensation for the use of certain real estate, if the defendant pleads the general issue, and files a brief statement, in which he denies that the plaintiff had any title to the real estate, and alleges that he occupied under one who had title, the title is introduced in a collateral manner, and is used only to prove or disprove the issue, and is not put in issue by the parties.1

The party requiring the cause to be removed, shall recognise to the other party, in a reasonable sum, with sufficient surety or sureties, with condition to enter the action at the District Court, next to be held in the same county; and if he fail so to recognise, the justice shall hear and decide the cause in like manner, as if no such request had been made to remove the cause.2 If no request be made by either party, the magistrate will, of course, proceed to try the cause, upon the issues presented by the pleadings.

In actions of replevin, against the impounder or finder of beasts, distrained or impounded, in order to recover any penalty of forfeiture supposed to have been incurred by their going at large, or to obtain satisfaction for any damages, alleged to have been done by them, when it appears that the sum demanded for the penalty, forfeiture, or damages, exceeds the sum of twenty dollars, or that the property of the beasts is in question, and that their value exceeds twenty dollars, or that the title to real estate is concerned or brought in question, the case shall, at the request of either party, be transferred to the District Court; provided the party requesting such transfer, shall recognise in such reasonable sum as the justice shall order, to enter the action at the next term of the court, to which the action is transferred, and prosecute the same with effect, and to pay all intervening damages and costs.3

Although the statute does not, in terms, require that, in actions of replevin, the title to real estate must appear, by the pleadings, to be brought in question, yet it is rather to be presumed, that the legislature intended the same course of proceedings should be had in this kind of action, as in others, where the title to real estate is brought in question.

127 Maine, 85.

2R. S. ch. 116, sec. 4.

3R. S ch. 130, sec. 7.

It is said by the Supreme Court of Massachusetts, in commenting upon a somewhat similar statute, that it is not strictly correct to say, that the jurisdiction of the justice is nullified as soon as the plea of soil and freehold is filed; but that he still retains the power to act on a motion to waive the plea or amend it, or to amend the declaration.'

It is provided by the revised statutes, that no summons, writ, declaration, plea, process, judgment, or other proceedings in courts of justice, shall be abated, arrested, or reversed, for any kind of circumstantial errors or mistakes, when the person and case may be rightly understood by the court, nor for want of form only, and which by law might have been amended; and that all such errors, imperfections and defects, may, on motion, be amended by either party, on such terms as the court may direct.2

It is further provided, that in all actions, when there are two or more defendants, the plaintiff may amend the writ, by striking out the names of one or more of them, on paying him or them their costs up to that time; and that in any action or contract, express or implied, the plaintiff may, on motion, amend his writ, by inserting therein the names of any other person or persons, as defendants, and the court may order a copy of the writ, and the order of the court thereon indorsed, to be served on such additional defendant, and his property to be attached in the same manner as in case of original writs; and on return of such service and attachment, if any shall be made, such additional defendant or defendants shall be deemed parties to the suit, and may plead to the action accordingly.

It was frequently difficult to determine, at common law, in many cases, whether a declaration in trespass, or trespass on the case, was the proper form of action. The distinction between these modes of declaring is now abolished by statute, and it isprovided that the declaration shall be equally good and valid, whether the same shall be inform the one or the other.*

If a writ has been lost or destroyed by accident, it is provided by statute that the plaintiff may be allowed to file a new writ corresponding,

119 Pick. 419.

2R. S. ch. 115, secs. 9, 10.

3R. S. ch.115, secs. 11, 12.

Ib. sec 13.

as near as may be, with the one so lost or destroyed, when the action may be proceeded in in the same manner as if the original writ had been preserved. The fact of the loss may, in such case, appear to the court by affidavit of the plaintiff, or otherwise.'

The statutes have now placed the whole subject of amendments on so liberal a ground, that much of the old learning is entirely done away with, and the power of amending has almost become co-extensive with the capacity of making mistakes. Yet, as there must be some limit to this power, we shall consider the authority of justices to amend mistakes. 1st. In the parties; 2d. Writ; 3d. Return; 4th. Declaration; 5th. Pleadings; 6th. In other matters.

It may be laid down as a well settled rule, that, where there is no statute on the subject, the granting of amendments is a matter wholly within the discretion of the court.2

The magistrate will therefore, where an amendment is prayed for, first look to see whether any statute makes it obligatory on him to grant the motion. If he finds none, he will then exercise his best judgment and discretion, looking to the situation of the parties, and the justice of the case. And he should make it his universal rule, not to grant such motions on an ex parte hearing, where there is an appearance on the other side.

1. Parties. In regard to defendants, the power of striking out from the writ a part of the defendants, and discontinuing as to them, and the terms on which it shall be done, and likewise the power and mode of bringing in new defendants after the entry of the action, are regulated by the statutes cited above. It only remains to add, that where in an action on a contract, a part of several defendants are defaulted, and the rest appear, and defend successfully, the plaintiff cannot take judgment against the defaulted defendants. Where, however, a defence can be made by one or more of the defendants, which admits the making of the original joint contract, but shows matter of personal exemption or discharge, as in case of coverture or infancy, or discharge in bankruptcy, but which leaves the other contraeting party liable to the performance of the contract, such party may have a separate judgment against the plaintiff, and the plaintiff a valid judgment against the other defendant."

The name of a new plaintiff cannot be inserted, nor that of a plaintiff stricken out.'

2. Writ. Amendments of the writ in matters of form are allowed without costs. In matters of substance, amendments are not to be allowed without terms."

The

The seal has been

It is said, that if a wrong writ be issued, as a capias against an executor or a corporation, or an illegal service made, as property attached, or the body arrested on an original summons, no amendment will be allowed, as none could set it right, the whole proceeding being void; but in the case cited from 15 Maine Reports, 400, the process was by original summons, and an illegal service was made by leaving a separate summons, and yet the court granted, on terms, an amendment, by which the writ was changed to a writ of attachment. teste if a writ may be amended, without terms." held to be matter of substance, and so is said to be the indorsement.* The direction of the writ to the officer may be amended, when the writ has been properly served. The ad damnum may, before judgment, be increased or diminished, or where no damages have been laid in the writ, a sufficient sum may be inserted." The date of the writ is amendable. Where a writ purports to issue from one court, it cannnot be amended by inserting the proper words of a writ issuing from another court The return day, it seems, cannot be amended.1°

8

3. The Return. The question oftentimes comes before a magistrate, how far an officer may be allowed to amend his return, after entry of the action. When the officer has minutes from which either to complete, alter, or amend his return, so as to make a correct return, he may be allowed to amend it, even though some years after the entry of the action, and though his own term of office may have expired, and the parties to the suit shall be bound by it. But if the amendment will alter or affect the rights of third persons, who are not parties to or, if allowed, will not avail as

the suit, it ought not to be allowed, against such third persons.".

12 Green. 120-7 Pick. 62. 215 Maine 400.

3Maine Justice, 77.

415 Maine, 431.

$12 Maine, 196-15 Maine, 433-16 Maine, 263-11 Maine, 177.

69 Mass. 95.

76 Green. 307-15 Maine, 431.

816 Pick. 297.

923 Pick 110.

1016 Maine 266.

118 Mass. 240-9 Pick. 169-17 Pick. 198-14 Pick. 32-1 Pick. 461.