Mills v. McCoy
New York Supreme Court
Case for slander and malicious prosecution. On the tnal at the Circuit, various testimony was adduced on both sides; and after the defendants’ counsel had closed summing up the testimony to the jury, and the plaintiff’s counsel had risen to reply, the counsel for the defendants objected that there was a variance between the allegations in the counts for malicious prosecution, and the documentary proof produced to support it, fatal to the plaintiff’s right to sustain the…
Read the full summary
Case for slander and malicious prosecution. On the tnal at the Circuit, various testimony was adduced on both sides; and after the defendants’ counsel had closed summing up the testimony to the jury, and the plaintiff’s counsel had risen to reply, the counsel for the defendants objected that there was a variance between the allegations in the counts for malicious prosecution, and the documentary proof produced to support it, fatal to the plaintiff’s right to sustain the action, and moved the Court so to rule. The Court declined considering the objection, on the ground that it" was too late ;…
1Opinion of the Court
Curia.
We think it was the duty of the Judge to listen to the objection if there was any thing in it. If the vari anee was substantial, and such as could not be amended, the objection did not come too late. On the other hand, if it was merely formal, we should consider the objection, at any stage, as going for nothing.
At another day, '
Graham pointed out the following variances :
1. The declaration set forth a warrant thus: that upon a certain charge of petit larceny, (specifying it,) made before one James Hopson, a police Justice, &c. “ she the said Catharine McCoy, (one of the defendants,)…
2Cited by6 opinions
- President & Directors of the Bank of Commerce v. Rutland & Washington RailroadNew York Supreme Court · 1854
- Bigelow v. Superior CourtCalifornia Court of Appeal · 1989
- Moulton v. BeecherNew York Supreme Court · 1876
- Bigelow v. Superior CourtCalifornia Court of Appeal · 1989
- Dalton v. CurrierSupreme Court of New Hampshire · 1860
1 more not listed; retrieve them via the Exa API.