delivered the opinion of the (old) Court:
The writ of error in this cause is prosecuted to reverse a judgment rendered by the Clinton Circuit Court, in favor of the defendants, on a demurrer to a declaration in slander. The first and third counts charge the slanderous words to have been spoken by Elizabeth Russell, wife of said James; and the second and fourth charge that they were spoken by the defendants jointly. Upon sustaining the demurrer to the declaration, the plaintiff’s counsel moved the Court for leave to strike out the second count, and as-the record states, to amend the fifth count, by striking out the word defendants, and insert defendant. The refusal of the Court to-allow this motion is assigned as error. The record in the cause is very imperfectly made out, occasioning, as in many other causes brought to this Court, much embarrassment in ascertaining the true state of the case, and the real point presented. There is no fifth count in the declaration, consequently no motion could be entertained of the character stated in the record. The writ in the cause is against the defendants jointly, without describing Elizabeth Russell as the wife of the defendant James Russell, and the question now presented for decision is, was the demurrer properly sustained, and should leave have been given to amend the faulty count in the-manner proposed.
Amendments are reducible to no certain rules, they resting, for the most part, in the discretion of the Court. (1) When a good cause of action has been definitely stated, it is usual to allow one or more amendments; but when there is an improper joinder of causes of action, as the writ and declaration in this case show, on a cause of action not good in law, as a joint slander, an amendment cannot be allowed. The party would be required to commence de novo.
The writ, and the second and fourth counts of the declaration, show a cause of action against two jointly, for words spoken by both defendants, and these are the counts the plaintiff moved to strike out and amend. If the amendment had been allowed, then the first and third counts, and fourth, if amended, would have shown a cause of action distinct from that set forth in the writ, which would be irregular, and would have converted a cause of action, which was originally joint, into an action in which the defendant’s wife would be the meritorious cause, for words spoken by her alone. (2) The Court in this case might well refuse to look into the errors assigned, for the reason that the rule requiring the assignment to be attached to the record, has not been complied with. The judgment of the Circuit Court is affirmed with costs -
Judgment affirmed.