
    [Chambersburg,
    November 1, 1828.]
    FOLKER and another, Administrators of HUGGINS, against SATTERLEE.
    INBEUOE,
    In no c^'se can a continuance be demanded by reason of an amendment, unless where the opposite party is thereby taken by surprise, and of that matter, generally, the court must judge.
    Writ of error to the Court of common Pleas- of Perry county. The material part of the case, in substance, was: — Satterlee, the plaintiff below, sued one Rogers and Huggins, the intestate, jointly, in debt on a promissory note, by summons, which was returned, served on Huggins, and non est inventus, as to Rogers. -There was a general appearance by attornies, marking their names on the margin of the docket, and a-plea apparently -by Huggins only, the words being, the defendant pleads. Huggins afterwards dying, a writ of Scire Facias was sued out against Eolher and Rinehart,' his administrators, to bring them in as a party to the former action, according to the act of assembly. Purd. Dig. 276. 3 Sm. L. SO. The administrators appeared to the Scire Facias, by their attorney, and being afterwards called upon by motion, in court, to become party defendants to the original suit, they declined it. And, persisting in' the refusal, they-offered sundry pleas to the Scire Facias: 1. Nul tiel record, 2. That if there be an £ record of any suit, &c. it is of a suit against Rogers arid Huggins both, to which they both pleaded, and issue was joined, and' that while the cause was pending, Huggins died, viz. on, the 6th oí December, 1824, and that Rogers is still in full life. 3. Non assumpsit and payment. 4. Plene ad-minis traverunt' and no assets; which pleas were filed. At'the same time, the-plaintiffs’ counsel asked leave to withdraw the state- ' ment in the first suit, and file a new one; materially amended. This was opposed on the part.of the defendants, but granted by the court. The defendants then'asked a continuance, alleging .surprise. The court Held, that all the matters pleaded, or applied for on behalf of the defendants, could only be investigated after ¿n appearance to the original suit, or upon'trial, on proper issues to-be formed. Whereupon, on motion of the plain-tiff’s .attorney,, the court gave judgment in the original suit'against the estate of Huggins,-in the hands of the administrators.^ A bill of exceptions was,tendered and sealed. ' • ' . ■ - . •
    Errors assigned.: — .
    “1. In permitting the new statement to be -filed, without a continuance. t , -
    
      “2. .In'giving judgment for the plaintiff, when it should have been for the deféndants.” ' '
    The Cause was argued by S. Alexander and Carothers, for the plaintiffs in error; and by Watts and Penrose, for the defendant in error.
   The opinion of the court was delivered by

Tod, J.

— The amendment was rightly permitted. We hold the law to be, that in no case can a continuance be demahded by reason of an amendment, unless when the opposite party is thereby taken by surprise:, and of that matter, generally, the court below must judge. Here, it doe’s not seem, that any immediate, trial was intended. All that was .asked for at the time, was, that the administrators should defend in the original action. The plea of nul tiel record, was certainly one which the defendants below had a right to put in.to the Scire Facias: But it was a plea for the court to decide on by inspection; and, ’we think, they virtually did decide it against the defendants correctly. To the Scire Facias the defendants might also have pleaded, that they were not administrators: they might have objected want of due notice on the summons, or relied upon any fact, to show, that they ought not to, be put into the cause, and compelled to stand in the former place of the intestate: but they offered nothing of the kind. The plea, that if there was any record of any suit, it- was.of a suit against Rogers and Huggins; that they both appeared, .and pleaded to it; that Huggins died, and that Rogers was still -living, was completely inadmissible. ■ It was multi» farious; it was mingling matters of fact and law; it was putting to the jury a question.of the merest law, upon the construction of the record. Our opinion is, that the court below gave the judgment which the act of assembly expressly required to be given.

Judgment affirmed.  