Pending a motion for final judgment, the Judge below has a right to allow an amendment striking out a demurrer which had been adjudged during the same term to be frivolous and the defendants to answer, especially when satisfied that the demurrer was interposed in good faith, and that the defendants had a valid, prima facie defense.
PEARSON, C. J.
His Honor adjudged that the demurrer be omitted, and held it to be frivolous; but pending a motion for final judgment, he entertained a motion to amend by striking out the demurrer and allowing the defendant to answer. This latter motion was heard upon affidavits, and "his Honor being satisfied that the demurrer was interposed in good faith, and that the defendant had a valid, prima ficie [facie] defense, allowed the motion."
In this his Honor did not exceed his powers. He surely had a right during the time to change an opinion expressed on the first impression, and to act upon a more deliberate opinion found after hearing affidavits as to the merits, especially as this was done pending the motion for final judgment; indeed we can see no reason why he might not have done so at any time during the term. For the matter was still " in fieri."
There is no error.
PER CURIAM. Judgment affirmed.