#### Jacob D. Lansing, appellant, v. Ansel Birge, appellee.

Appeal from Bond.

The refusal of a motion to file an amended plea, upon the sustaining of a demurrer to a prior plea, cannot be assigned for error. The granting or refusing an application to file an amended plea, is a matter of discretion in the judge, before whom the cause is pending, and his decision is conclusive.

This was an action of debt brought by Birge against Lansing, upon a promissory note under seal, in the Bond Circuit Court. The cause was tried at the March term, 1839, before the Hon. Sidney Breese, and a jury. The defendant craved oyer of the note, and demurred to the declaration. The demurrer was overruled, and leave granted to the defendant to plead. The defendant then filed two pleas, upon the first of which the plaintiff took issue, and demurred to the second. This demurrer was sustained, and thereupon the defendant moved the Court for leave to amend the second plea, which was refused, and the defendant excepted to the opinion of the Court. A verdict was rendered by the jury in favor of the plaintiff for $600, upon which judgment was rendered, and the cause brought to this Court by appeal.

A. Cowles, J. M. Krum, and G. A. O. Beaumont, for the appellant.

J. Shields and A. P. Field, for the appellee.

Smith, Justice,

delivered the opinion of the Court:

The only point presented for decision in this case, the defendant’s plea being certainly bad, involves the simple question, whether, on the decision of a demurrer, by the Circuit Court on a plea, determining the plea bad, the defendant had a right to file an amended plea, of course.

We have no doubt that it is a matter in which the Circuit Court was vested with a discretion ; and having exercised that discretion, and refused the application to amend, the decision must be considered conclusive.

The judgment is affirmed with costs.

Judgment affirmed.