
    Gillespie vs. Davis and Wife.
    An application to amend by filing a plea in bar, comes too late, where no merits are shown in the affidavit, after verdict and judgment.
    This cause having been tried, a verdict and judgment was given for the plaintiffs. It was an action of debt, founded on a record from Virginia. After the verdict was had, the defendant applied for a new trial, and applied for leave to amend the pleadings. The affidavit filed, did not show merits; it did not state that the judgment had ever been satisfied; it stated that no fieri facias had been sued out within ten years after judgment, and that the same had not been revived by scire facias; it did not state that the plaintiffs were not within the exceptions of the Virginia act, by which it is necessary to recover a judgment by scire facias, after laying dormant for ten years. The affidavit stated, that the attorney for the plaintiffs had neglected to plead these matters in bar, and asked for a new trial, and leave to plead them in bar. The motion for a new trial was overruled, an exception taken, and an appeal in the nature of a writ of error to this court.
   Peck, J.

delivered the opinion of the court.

It is not deemed material to notice any point raised in this cause, except that upon the motion for a new trial, in order to enable the defendant to amend by adding a plea in bar; that after the judgment had been rendered in the State of Virginia, it had remained ten years without any fien facias having been sued out; and that the same had not been revived by scire facias. We are all of opinion, that after verdict and judgment, the motion comes too late, especially where, from any thing that does appear, there were no merits on the part of the defendant; the affidavits not disclosing any grounds but the oversight of counsel. Amendments may be allowed at any time to reach the merits and to attain justice; but we cannot presume otherwise in the case before us, than that justice had been done by the finding, and consequent judgment of the court. It is not pretended that the judgment had been satisfied, or that the plaintiffs were not within the savings in the statute of Virginia relied upon. To have allowed the amendment, would have been affording to the defendant a mere technical objection. Whether it would have availed the’ party applying, any thing, must be reserved until the question, in direct form, shall be presented.

Judgment affirmed.  