
    Dabney M. Wharton vs. David M. Porter et al.
    To an action on a supersedeas bond, the defendants plead performance; the plaintiff replied and assigned, “ that the defendant did not prosecute his said supersedeas with effect, nor has he well and truly paid, &c.,” but did not aver that a supersedeas had issued : Held, that the replication was defective for want of such averment; the' defendant had a right to put in issue the existence or issuance of the supersedeas.
    The statute of 1840 (p. 133 of Sheet Acts) is imperative, that it shall be the duty of the judge, and he is thereby required to allow amendments to be made, if desired ; and if the circuit court, on the application of a plaintiff to amend his replication, which has been held bad on demurrer, refuse to permit the amendment to be made, the high court of errors and appeals will reverse the judgment that the amendment may be allowed.
    In error from the circuit court of Madison county; Hon. John H. Rollins, judge.
    Dabney M. Wharton, for the use of A. J. Davis, administrator of Martha Davis, sued David M. Porter, Dennis Burns and Wesley Drane, on a supersedeas bond, given by Porter as principal and the others as sureties, in an action of debt in the usual form.
    A judgment, by default, was rendered ágainst Burns. Porter pleaded his bankruptcy, and a verdict and judgment were given for him. Drane pleaded, in substance,
    1. Conditions performed.
    2. That the bond was signed and sealed by him, subject to be received, approved, and accepted by the clerk, in conformity to the order and fiat of the judge requiring it; that it never was so received, and so was not his deed.
    3. A plea to the same effect with the second.
    4. That the bond was signed, sealed and delivered by defendants, in consideration that a supersedeas should issue, staying proceedings, &c.; that the consideration had failed, for a super-sedeas never did issue, so that proceedings never have been stayed, &c.
    5. That the bond never "was accepted and approved according to law.
    To the first plea, the plaintiff's replication denied performance, and assigned for breach, that Porter did not prosecute his supersedeas with effect, nor has he paid the judgment superseded. To the second and third pleas, that the bond was received, approved and accepted according to the true intent and meaning of petition, and in conformity to the fiat of the judge, and so is the act and deed of the defendants. To the fourth plea, that a supersedeas did issue, &c. And to the fifth plea, that the bond was accepted and approved according to law. The first replication concluded with a verification. The others with a verification by the record.
    A demurrer was filed to the replication to the first plea, because it does not show that a supersedeas ever issued, or had any legal effect; or that the plaintiff was hindered in having execution of his judgment, whereby any damage resulted to him; and because it does not show that proceedings on the supersedeas have been determined. To the replication to the second and third pleas, a demurrer was filed, because it concludes with a verification, when it ought to conclude to the country; because it is no answer to the pleas, neither confessing and avoiding, nor denying the facts; and because the evidence offered to prove the éxecution and validity of the bond, might be admitted, and still the writing not be binding on the defendant. The demurrers to all the replications were sustained by the court below. The plaintiff asked leave to reply over, and to amend his replication; this was refused by the court, and he excepted. A judgment for defendant was then rendered on the demurrer, and the plaintiff sued out this writ of error.
    
      L. Lea, for plaintiff in error.
    A- H. Handy, for defendant in errqr.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

This was an action on a supersedeas bond, against Porter and his sureties, but one of whom is now party to the proceedings. The defendant Drane pleaded live special pleas, to which the plaintiff replied. The defendant demurred to the replications to the first, second and third, and after the demurrer was sustained, withdrew the fourth and fifth pleas. The plaintiff asked leave to amend his replications, but this the court refused, and rendered judgment against him.

Two questions have been discussed; first, as to the correctness of the decision on the demurrer, and, second, on the refusal of the court to allow the plaintiff to amend.

The first plea was performance. The plaintiff replied and assigned, that the defendant “did not prosecute his said super-sedeas with effect, nor has he well and truly paid, &c.” This breach is defective in one particular; it does not aver that a supersedeas issued. If it did not, the defendant could not prosecute it. The breach of a bond must state all that is necessary to give the plaintiff a cause of action, with particularity as to how the breach occurred, for, otherwise, no sufficient certain issue would be attained. The defendants had a right to put in issue the existence or issuance of the supersedeas.

The decision on the demurrer to the second and third replications, is not seriously controverted. But it is said, in the second place, that the court erred, in refusing permission to amend, and the statute of 1840 is relied on. Apart from this statute, the decisions of this court are against the position here assumed. We have uniformly held, that amendments are within the discretion of the court, and the refusal to allow them, is not ground of error. The case of the Vicksburg Water Works Bank v. Washington, 1 S. & M. 536, so decides, in a case very much like the present.

The first section of the statute, requires the pleadings to be made up, and issues of law disposed of at the return term; but the fifth section provides, that, if it shall be discovered at the trial term, that the pleadings are defective, or issues tendered are immaterial, it shall be the duty of the court, and the judge is thereby required, to canse the same to be amended or perfected instanter, so that the merits of the controversy shall be fairly put to the jury. Acts of 1840, 133. This statute very clearly provides for the case before us. The pleadings were defective, and the merits could not be reached without amendment. It is no longer discretionary with the court, to allow or disallow amendments. The act is imperative, that it shall he the duty of the judge, and he is thereby required, to allow the amendment to be made if deserved. Such is the construction which was placed on it, in the case of Kain v. May, 5 S. & M. 368, and also at the present time.

This statute necessarily changes the rule which had been established by this court, in accordance with the principles of the common law. And it is proper to observe, that the case of the Water Works Bank v. Washington, although the decision was made since the passage of the statute, was decided on pleas put in before the statute, and the attention of the court was not called to the statute by counsel.

The court should have permitted the plaintiff to amend, and, for this error, the judgment must be reversed, and the cause remanded.  