
    Lewin v. Houston.
    Where the petition in a suit on a pealed note was filed December llth, 1819, and the citation was served December 13th, and at the next term, in March, the defendant answei ed by a general demurrer and general denial, and afterwards, at the Kill Term, filed an amended answer setting up a failure of consideration, unsupported by affidavit, to which amendment tiie plaintiff excepted, and announced himsolt ready for trial, whereupon the defendant again asked leave to amend by interlineation, which was granted, and the defendant then announced hi nisei f ready for trial, til-' court having sustained tho plaintiff's exception to tho defendant’s plea of failure of consideration, tho latter asked leave to amend and to lile an affidavit in support of ilia plea of failure of consideration, but the court refused to grant leave to amend, because the application came too late. A jury had not been Impaneled to try tho case: Held. That there was no error.
    An answer by (lie payer of anote, containing merely a general demurrer and a general denial, can ho regarded as no better titan frivolous. At most, the plea of general denial could effectuate nothing more than tho production of the noto on the trial,
    if the defendant have a good ground of defense ho should plead it at the earliest practicable ami convenient period, and if he fail to do so he cannot claim a right to plead it by way of amendment, under circumstances which are calculated to surprise the plaintiff and cause a continuance, but lie will be required to show good cause for his failure to plead it before. (Koto 20.)
    Rrror from Montgomery. This was an action to recover the amount cine on a sealed note, executed by plaintiff' in error in favor of the defendant, in error.
    The petition was in the usual form, and was filed on tiie llt.lt December, 1S49, and the writ was served on tho 13th December, 1849. At tiie Spring Term, viz, March, 1S50, Hie defendant, demurred generally, and pleaded also a general denial. At the Fall Term, 1S50, lie filed an amended answer, and set up for defense a fail uro of consideration, but did not support His plea by affidavit, in conformity with tiie statute. To this tiie plaintiff excepted attti announced himself ready for trial. The defendant again asked leave to amend his amendment by interlineation, which was granted with consent of the plaintiff, and the defendant announced himself ready for trial. These amendments by defendant were made on the day of the trial.
    Tiio demurrer of defendant to plaintiff' ’s petition was overruled, and the plaintiff’s exception to defendant’s amendments was sustained. It appeared from the bill of exceptions that the defendant then ashed leave to make a further amendment, and also to add thereto an affidavit of the defendant to the verily of the plea of failure of consideration. This was refused because the application to amend was made too late; and it was also stated in the bill of exceptions that a jury to try the cause liad not been impaneled. Judgment was given for the plaintiff'; and the refusal of the court to permit the defendant to amend, under the circumstances stated in the record, was assigned for error.
    
      B. G. Franklin, for plaintiff in error.
    Tlie refusal of the judge in the court below to grant the defendant the leave to amend, asked after argument of plaintiff’s exceptions to the answer previously filed and before the impaneling of the jury, arose from his construction of the 34lh section of the act to regulate proceedings in the District Courts, passed 13th May, 1846, (Hart. Dig'., art. 694.) according to which construction he required the parties .to announce themselves ready before he heard any argument on either demurrer or exceptions in the causo. The same section has been construed by this honorable court in several subsequent cases, and a more liberal and reasonable construction lias been given to the same article, one much better calculated to attain the ends of justice and the correct decision of causes. When by accident or omission anything is left out in the pleadings, and the party is advised of the omission by the ruling of the court, it is but just and reasonable that the omission should be corrected; and in many cases where the ruling of the court might be against the law on tlie pleading's as filed, and the plaintiff or defendant would ho entitled to have tlie decision reversed by an appeal or writ of error oil tlie point, it would be better for the parties to amend so as to make tlie pleadings conform to tlie opinion of tlie presiding judge rather than have recourse to an appeal or writ of error.
   IHaiPirmr,, Cn. J.

What are the facts on which it is asked that this judgment be reversed? Tlie defendant was sued on a plain sealed note, and tlie citation was served nearly three mouths before tlie first succeeding' term of the court. He had ample time to employ counsel and instruct them in his defense; and if any such ground of defense as failure of consideration existed in fact, it should have been pleaded in the original answer, ltwasas we.ll known lo the defendant then as it could ever be in future. Instead of pursuing this tlie. only proper course of defense, he pleaded at tlie first time a general exception and a general denial, which, under the facts, could be regarded as no better than frivolous pleas.- The petition was altogether unexceptionable, and the. general demurrer was worthless as a plea.

There might, perhaps, bo a difference of opinion as to tlie. precise effect of a general denial in a snit on a note of hand. But at most it could effectuate nothing more than the production of the note on the trial. It cannot, put t.lic plaintiff on proof of the. signature of tlie defendant, nor will it authorize tlie defenses which the latter might set up under the general issue, of non-assumpsit at common law; and, at best, it cannot he regarded as a substantial plea where there is any good ground of defense. If such exist in fact, it ought, to be pleaded at the earliest practicable and convenient period. And the mode of pleading in this case, setting up worthless pleas in the first instance, and reserving a substantial ground of defense, of which the defendant was all along apprised, if it in fact existed, is not to be tolerated. But the objection to tliis mode of pleading does not stop here. Tlie defendant not only pleads failure of consideration for tlie first time on the day of trial, a plea well calculated to surprise the plaintiff and thus effect further delay in the cause, but he presents the plea in a shape in which the statute plainly forbids it to be received, and then, after the failure of this attempt to bring in 1ns defense, lie moves to be permitted to clothe it in the garb in which it should at first have been presented. If there be anything in our statutes which is too clear to be mistaken it is the provision which declares that no pleas impeaching the consideration of any instrument or note iu writing under seal shall be admitted, unless supported by the affidavit of the defendant, &c.; and no such plea ought to be brought to the notice of the court, unless sustained by affidavit; and if rejected, its amendment ought not to be permitted, unless it can be shown that by some unavoidable accident the defendant was prevented from attending in time to make the necessary verification, or unless some other good reason he shown for a negligence otherwise inexcusable. But the defendant, after having had two opportunities to amend and file pleas which ought to have been filed at the commencement, not only sought leave to further amend, by annexing an affidavit to a plea which ought not to have been filed at all until supported by affidavit, also asked to be permitted to amend generally, at least such is the language of the hill of exceptions, and, iu the language of that bill, the application ivas refused, and properly too, because it came too late. Ho course could more effectually thwart the administration of justice than this mode of pleading. A primary object of judicial proceeding is, that litigation may be not only"justly hut speedily terminated. The delay of the law, even when unavoidable, operates frequently a most grievous hardship ; but the oppression would be intolerable if court's had no power to arrest experiments resulting inevitably in the indefinite extension of such delay, aud to enforce such promptitude as, while not sacrificing the rights of the vigilant, would yet prevent the course of justice from being trifle,d with, (lie cause from being- unreasonably retarded, and parties in other causes from being deprived of all chance of a hearing or of a termination of their controversies. There would he no end of a cause if it were indefinitely open for new pleadings and issues. Dispatch in judicial proceedings cannot be too iiighiy appreciated. One cause should not be permitted to “ drag its slow length along” to the detriment of other litigants before the court.

Note 20. — Reid v. Allen, 18 T., 2-11.

In this case there is no cause shown nor is there any apparent why the defense set up by the amendment was not pleaded in the original answer. Tins might not defeat the right of the party to plead it subsequently by way of amendment, but certainly he cannot exercise this right in sueli a mode as to surprise the plaintiff or create unreasonable delay iu the adjudication; and we are therefore of opinion that there was no error in refusing, under the circumstances, to permit the party to amend; and it is ordered that the judg--merit be affirmed.

Judgment affirmed.  