Stakes v. Campbell 7 Cow. 425

Stakes against Campbell.

Utica,

August, 1827

The general fl^,® anbeing Pleaded’ on a general verdict for the piam- ^ at¿°¿" take> drew the cover* oriythe f^rit oTemor was brought to íors®0Urfc upon which _ issue was joined.

Eeid, that the be^amended^ as t0 em' hraoe both issues,

This action was brought in the 0. P. of the city and county of New-York. The defendant there pleaded two pleas; the general issue and infancy. To the latter the i • • w» i i - plaintiff demurred; upon which judgment was for the defendant. On error to this court, that judgment was reversed, and the defendant, by leave, put in an amended special plea of infancy.(a) Upon this, the plaintiff took issue, and the case was tried at" the New-York circuit, in January last, on both issues; when a general verdict was found for the plaintiff; on which judgment was entered.' The defendant broúght a writ of error to thecourt of errors; upon . ° . . i -r which issue was j omed, and the cause noticed for argument. The plaintiff, by mistake, in drawing up the postea, did hot make it pass on the issue upon the special plea: so the finding was entered as general, that the defendant was guilty, in manner, &c., without regarding the second issue. These facts being shown by the affidavit of the plaintiff’s attorney.

*G. C. Bronson,

now moved to amend the postea, so as to make it cover both issues. He cited 1 R. L. 117, 118, s. 6; *4263 John. Rep. 95; Tidd’s Pr. 810; Col. Cas. 41; 1 Cain. 394 note; (a) 4 John. Rep. 526; Tidd’s Pr. 811; id. 662. He said, Petrie v. Hannay, (3 T. R. 659,) Doe v. Perkins, (id. 749,) and 2 Archb. Pr. 242, were in point for this par" tieular amendment.

J. Platt, contra,

said the case of Tillotson v. Cheetham, (4 John. 499,) in the court of errors, was in point against this amendment, at the present stage of the cause. The court of errors will not regard an amendment, after issue of in nullo est erratum.