New York Supreme Court, 1825

People v. Clark

New York Supreme Court · Decided February 15, 1825

4 Cow. 95

Counsel

Talcott, (Attorney General,) moved for judgment of ouster, against the defendant., S. Stevens, for the defendant, moved to set aside the default for irregularity, on the ground that the defendant had regularly amended his plea ; and the Attorney Genera should have answered it., The Attorney General denied that the amendment was regular ; and insisted that the general rule of the Court, as to amending of course, did not apply., A. Hascall, said that if the defendant’s attorney had mistaken the practice, he had been led into the mistake by the Attorney General, who had entered a rule, of course, to join in demurrer., The Attorney General said there was no affidavit of merits.

Opinion of the Court

Curia.

We see no reason why' the parties should not proceed according to the general rules and practice of the Court as to pleading, amending, <fcc. We are referred to no case which is against this. The Attorney General entered a common rule to join in demurrer, and we "think rightly ; and that the defendant was right in entering his common rule to amend. The Attorney General may take the rule which he asks, and proceed against the defendant upon an amended information. The defendant may plead to this de novo.

Rule accordingly.

Note. The Attorney General mentioned to the Court the case of The King v. Glemmon, in 2 Rolle’s Rep. 41, where it was held that the defendant could not change his plea without the consent of the King’s attorney, if a term had *97arrived since the plea was put in; though the King had altered the pleadings on his part; But,

The Court said they never should hold a defendant to all the strictness of that case.

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