
    
      ALLAIN vs. PRESTON.
    
    APPEAL FROM THE COURT OR THE FIRST DISTRICT.
    Where an amendment to a petition contains matter of substance, and the cause is tried without an answer to it, it will be remanded for want of the contestatio lites.
    
    The defendant was sued on his promissory note, and also for a year’s rent due to the plaintiff. A general denial was put in on the 6th May, and in November following, on motion of the plaintiff’s counsel, and with the consent of the counsel for the defendant, it was ordered by the court that the plaintiff have leave to amend his petition by praying for a recision of the contract of lease, &c. No answer was put in to the amended petition; and in this state of the pleadings the cause was tried on appeal.
    
      Where an amendment to a petition contains matter of substance, and the cause is tried with out an answer to it, it will be remanded for want of the contestatio lites.
    
    Eastern District,
    
      May 1831.
   Porter, J.

delivered the op:nion of the court.

This suit was brought for one year’s rent of property leased by the plaintiff to the defendant Preston, on a promissory note, and to recover the penalty agreed on by the parties, at the time the contract of lease was entered into.

To a petition setting out these matters an answer was put in, and the cause stood at issue for some time. Subsequent to the filing of the answer, the following entry is found on the record: — “On motion of C. Janin, Esq. of counsel for the plaintiff, and with consent of counsel for the defendant, it is ordered by the court that said plaintiff have leave to amend his petition by praying for a recision of the contract of lease mentioned in this petition, and by claiming the rent up to the date of, the judgment to be rendered therein.”

On the argument of the cause it appeared to us that this was a very informal, and quite novel mode of amending a petition; the leave to amend being one thing, and the actual amendment, another. On inquiry, however, from practitioners at the bar, we are informed that, where the particular species of «amendment which the court grants is set out in the order, that it has been usual to consider the amendment made, without filing a supplemental petition. We still think the practice a loose one; but we are unwilling to disturb it: for if generally understood, the ends of justice are, perhaps, as much promoted by it as under the more formal mode of proceeding.

In this case, however, there, was neither answer put in to the amendment, nor judgment by default taken for want of it; and the cause was tried below without the contestatio lites. The amendment is not one of form, but of substance; the cause must, therefore, be remanded. The answer first put in cannot, eithér in reason or by presumjption of law, be held to extend to an amendment subsequently made, by which other and important matters were demanded of the defendant.— Sec. 2. N. S. 257. 8 ibid. 299, 301.

It is therefore ordered, adjudged, and decreed, that the judgment of the District Court be annulled, avoided, and reversed. And it is further ordered, adjudged, and decreed, that the cause be remanded to the District Court, to be proceeded in according to law; the appellee paying the costs of the appeal.  