majority">Mr. Justice Clayton

delivered the opinion of the court.

This cause turns entirely upon the pleadings, which are unusually prolix and intricate, so much so, that it is a matter of no little difficulty, to extract the points intended to be submitted for consideration. The action is debt, founded upon two bills single, for the aggregate amount of $13,500. The defence intended to be set up, was that these bills single, had been given as the price of a tract of land sold by the plaintiff in the court below as administrator of Banfield, by virtue of an order of the probate court of Madison county, but that the sale was in fact made without authority, because there had been no notice to the parties interested of the intended application for the order, and that for the want of notice to the heirs of Banfield, the ordei *368for the sale was void. There are two sets of pleas in which this defence, varied into many shapes and wearing many hues, is presented for decision. To the first set a demurrer was filed and sustained-—to the second set a demurrer was also filed and sustained, and the defendants upon leave given having declined to plead farther, a final judgment was entered up against them. Prom this judgment, the cause was brought by writ of error to this court.

It will be well to consider in the first place, whether the matter intended to be pleaded, constituted a valid and legitimate bar, if in proper form. From the previous decisions of this court, as well as those of our sister States, it is a settled doctrine, that the judgments of all courts may be examined into, so far as to ascertain whether they had jurisdiction, whenever they come in question, either directly or collaterally. It must be shown by the record, that the court had jurisdiction of the party, either by service of process, or by publication, where that is authorized. Campbell v. Brown et al. Opinion Book B, p. 209. If there be no notice actual or constructive, the judgment is a nullity. 15 Johns. 141. 11 Wen. 652. 4 Peters, 474. 2 Yer. 484.

The defence is sometimes made under a special plea, and sometimes under the general issue. It was done in the latter mode in Campbell’s case, just cited, and in 2 Stewart’s Rep. 335. It is clear that the defence is legitimate, if sustained by the proof; as our statute directs that notice of an application to sell the lands of an intestate, shall be given by having the citation set up in three of the most public places in the county for thirty days, and by publication for the same length of time in a public newspaper of the Stale. This brings us to the question of the sufficiency of the pleadings in this case.

We shall not attempt even an abstract of the several pleas, replications, rejoinders and demurrers, in which the pleaders have found vent for their ingenuity and exhibited their skill. They spread- over some thirty pages of well filled paper, and might give some countenance to the remark of the satirist who thought the pleadings were intended “ to entangle justice in a web of law.”

*369We shall only notice so much of the pleadings, as is necessary to the correct understanding of our decision. The second plea in the first set, avers “ that the bills single, were executed for the consideration of certain lands which the plaintiff as administrator of Banfield had before that time purported ,to sell to the defendants, but the said pretended sale and the proceedings necessary thereunto were so conducted and carried on by the plaintiffs, that the said pretended sale was utterly null and void, and the title remained and yet remains in the heirs of said Banfield, and so 'the consideration has wholly failed.” The replication to this plea avers, “ that the plaintiff as adminstrator. as aforesaid, did make a good and valid sale of the said lands to the defendant, which are the consideration of the bills single, in this, that the plaintiff, acting as said administrator, did offer for sale, and did actually sell the said lands by virtue of the power vested in him by and under the judgment and decree and order of the probate court of Madison county, as appears by the records of said court.” The rejoinder to this replication alledges, “ that the plaintiff did not make a good and valid sale of land to the defendant, and that any pretended authority derived by the plaintiff from the probate court was wholly null and void, the said probate court, having no jurisdiction to order or direct the said plaintiff as administrator to sell said land upon the case presented by the said administrator to the said probate court, and no notice was given to the heirs at law of said Banfield, who were citizens of the State.” To this rejoinder the plaintiff filed a general demurrer in short by consent, which was sustained by the court below. The question now is, do these pleadings constitute a good bar, in point of form 1

The plea is that there was a failure of the consideration of the bills single, because the sale made by the administrator, was not valid—the replication is that the sale was valid—and the rejoinder alledges that the sale was not valid, because .of a failure to give notice. These pleadings are concise, definite, and certain, and if issue had been taken, the inquiry was narrowed down to the single point, whether or not notice had been given. The result of that single inquiry, would have deter*370mined the cause, and it could not have been submitted in more plain and intelligible language. We are of opinion that the demurrer was improperly sustained. We have already shown that if the order of the probate court, directing the. sale was made without notice, in some authorized mode, to those interested, the court would not have had jurisdiction, and its or'der would for that reason be void. See Jones v. Earthman, 2 Yer. 481.

According to the decision made at this term, m the case of Willis Conley v. Ives, the subsequent pleadings of the defendant do not prevent the reversing of the judgment, for the erroneous determination of the demurrer. We are of opinion that the demurrer should have been overruled, and it thus becomes necessary to consider what judgment we should give.

It is insisted' in the argument, that upon a reversal of the judgment, this court should enter up such judgment as the court below ought to have given, which should have been in favor of the defendant. By the ancient common law rule, that would no doubt have been the course; but even in England of late, it is the usual practice for the court, after the decision of the demurrer, to permit the plaintiff to withdraw it, and file a replication, if he applies for leave to do so. 2 Wils. 173. 1 Nobinson’s Practice, 292. In New York, the rule is thus stated, “ in all cases of demurrer by either party, when it is not frivolous, the court will, during the same term in which their decision is rendered against the party demurring, and at the time of giving judgment, allow him to withdraw his demurrer, and plead or reply. But it is too late to make the application at a subsequent term. Graham’s Prac. 762. 2 Caines, 369. In Tennessee, a similar rule and similar practice prevail. Blackmore v. Phil, 7 Yerger, 465. In North Carolina, it is said, their statutes of amendment were designed to remove the remaining scruples of the courts, in allowing them to be made. 3 Dev. 203. Our own act is not less liberal than any other, and it directs that “ the courts of law shall have full power and authority to order and allow amendments to be made in all proceedings whatsoever, before verdict, so as to bring the merits of the ques*371tion between the parties, fairly to a trial.” Indeed, its end and object seem to be, to prevent decisions upon technical grounds, instead of the merits, upon fair submission to a jury. Were we, then, to give the judgment which ought to have been given by the court below, we should say that the demurrer of the plaintiff to the rejoinder of the defendant, ought to be overruled, and leave given him to withdraw it and file a sur-rejoinder. But, inasmuch as applications for amendments are addressed to the sound discretion of the court, it might be going too far upon our part, to say that such leave should be granted. We shall, therefore, only remand the cause, that the court may exercise its discretion ; which, we doubt not, will be done in a just and proper manner.

We are aware that this point received a different determination in this court, in, the case of Bailey & Wade v. Gaskins, not yet reported. But that decision was made upon the original common law rule, without reference to our statutes. We are now satisfied that it is not the law. As it is a mere question of practice, not yet extensively promulgated, and as no rights probably, have grown up under it, which would be unsettled by a departure from it, we have thought it better to abandon it, than to attempt to build upon it.- We know the importance of adhering to the decisions of this court, and we shall not lightly depart from them-, but when no injury can be supposed to follow from the charge, we deem it right to correct any error; and in this we have the example of the very highest tribunals of justice. See Butler v. Van Wych, 1 Hill, 463.

We have not noticed the last set of pleadings, because in the view here taken, they are wholly superfluous.

The judgment will be reversed, and the cause remanded to the court below.

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