
    Alonzo E. Goodrich vs. Harvey L. Bodurtha & another.
    A judgment on a note, which has been reversed for want of jurisdiction of the defendant, is no merger of the note.
    An action pending on a judgment recovered on a promissory note may be amended, after a reversal of the judgment, by declaring upon the note.
    A rule of court, providing that no amendment in matters of substance shall be allowed, without terms, unless by consent, after the appearance of the defendant, does not apply to an amendment of the declaration, rendered necessary by facts occurring since the institution of the suit.
    Action of contract upon a judgment. Trial in the court of common pleas before Briggs, J., to whose rulings the defendant Bodurtha alleged exceptions.
    
      J. S. Page, for Bodurtha.
    
      J. D. Colt, for the plaintiff.
   Thomas, J.

The plaintiff brought his action upon a judgment of the court of common pleas. That judgment had been recovered upon a joint and several promissory note. While the action upon the judgment was pending, the judgment as to Bodurtha was reversed, upon error, in this court. Bodurtha v. Goodrich, 3 Gray, 508. After the reversal of the judgment, the defendant Bodurtha filed an additional answer, setting forth such reversal The plaintiff then had leave to amend his declaration and proceed upon the original note.

To this amended declaration the defendant answered the merger of the note in the judgment. To this the obvious reply was and is that, upon the reversal of the judgment, the merger ceased. It was as if no judgment had been rendered.

We think the learned judge did not violate the fourteenth rule of his court, in allowing the amendment of the declaration without terms. The reason of the rule does not, it seems to us, apply to an amendment rendered necessary by facts occurring after the institution of the suit. Exceptions overruled. 
      
       That rule provides that “ no motion to amend, in matters of substance, shall be allowed after the entry of an action, in any case where the adverse party appears, except upon payment to such adverse party of the amount of the term fee provided in St. 1852, c. 312, § 81, for actions not on the trial list.”
     