Wilber v. Day

Decided February 15, 1805

New York Supreme Court · decided 1805-02-15

A rule was laft term order-n r «ni i „ . ed to íhew cauie, agamit the amendment allowed in Auguft laft.* But on fearch no rule has been entered ; am I then e to íhew cauie agamft what does not exift ? Per curiam. We remember that a rule was granted, and you yourfelf cannot have forgotten it. Caufe, therefore, muft be (hewn. _ By the decifion of Auguft, the court pronounced the error for which they reverfed the judgment, to be matter of fubftance.

Decided 1805-02-15

Per curiam.

¶1We think the juftice ought to have leave to amend his return, in refpect of the oath adminiftered to the confiable, who had charge of the jury. This, however, tho’ on payment of cofts, muft be of thofe on the general aflignment of errors only,† and of the cofts fubfequent to that aflignment, down to the giving of the opinion of the court in Auguft laft. In making up the paper books, therefore, cofts on the general aflignment of errors are to be allowed, rejecting the long lift of the other errors affigned. But as the defendant has given occafion for this application, the plaintiff may difcon-tinue without cofts j neither party to have any againft the other on the motions to amend.‡

¶2 This was afterwards .taxed by Kent C. J. at 4 folio.

¶3 That, it is prefumed, means lince Au-guft.