McIlvaine v. Holland

The Court said they could give no other effect to a memorandum plea, unobjected to, than that the party pleading it may draw it out in any form that it justifies, which in this case would be, that the property in this vessel was in William Holland. Under this evidence of property in William Holland and Benjamin Mcllvaine cannot be offered, much less would it amount to á justification by seizure under execution process. ■ ¿

*13Mr. Bayard then moved for leave to amend, and insisted strongly that under the constitution, the court were at liberty to allow an amendment, even after jury sWorn; and he insisted that under the agreement in this cause, which was construed by himself and his colleague as an agreement to try the case informally, and on its merits, the court could go to the extent of allowing this amendment. He said there had been no decision of the Court of Appeals binding on this court, on this question of amendment, .though he agreed that this court had frequently refused such amendments. But he said this was a special case, of deception, and would result in injustice.

The Court refused the amendment, saying that the decisions had been uniformly the same way since 1792. The court several years ago had prepared a bill to change the practice, being a copy of Lord Tenterden’s act, but the legislature did not pass it.

The counsel for the defendant then asked the court to charge the jury that the evidence offered did not sustain the plea of property in William Holland, as pleaded in this case, which the court did, and the jury thereupon rendered a Verdict for plaintiff.

Exceptions prayed and granted.

Mr. Bayard then moved for an order on the plaintiffs to draw the judgment out in form, which order was made. [See post, June term, 1849.]