Thompson v. Malone

<p>BEFORE MUNRO, J., AT UNION, FALL TERM,’1860.</p> <p>The report of his Honor, the presiding Judge, is as follows : ...</p> <p>“ The plaintiff sued as assignee of an unnegotiable note. After the plaintiff had closed his case the defendant’s counsel moved for a nonsuit, on the ground that,’although the plaintiff had styled'himself assignee in the writ,-he had not styled himself assignee of the payee of the note, in conformity with the requirements of the Act of the Legislature on •that subject. After I had announced my intention to overrule the motion, and to instruct the jury that the plaintiff was entitled to recover, leaving the defendant at liberty to renew his motion for a nonsuit in the Appeal Court, it was suggested by the defendant’s counsel that the better course for the plaintiff’s counsel to pursue would be to continue the .case, and amend his pleadings. This suggestion was adopted ■by the plaintiff’s counsel, and the case was continued. On. the last day of the term, the plaintiff’s counsel moved for •leave to amend his pleadings, and submitted an order to that effect; it was resisted by the defendant’s counsel, upon grounds similar to those set forth in the grounds of appeal.</p> <p>“ I signed the order.”</p> <p>The defendant appealed from the order granted by his Honor, giving the plaintiff leave to amend the pleadings, on the grounds:</p> <p>1. Because the order is too vague, containing no specification as to tbe amendment proposed to be made.</p> <p>2. Because the order, being general, would entitle the plaintiff to amend his writ; which leave the Court had no power to grant, there being nothing to amend by.</p> <p>3. Because the defendant would be entitled to plead to the declaration, if amended, and provision should be made in the order to that effect.</p>