Trinder v. Durant
New York Supreme Court
Motion to amend. The defendant was sued as an owner of the steam-boat Independence, for materais furnished in her construction. The declaration was served in New-York, on the agent of the defendant’s attorney, (who and his client resided in Albany,) on the 3d February.
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Motion to amend. The defendant was sued as an owner of the steam-boat Independence, for materais furnished in her construction. The declaration was served in New-York, on the agent of the defendant’s attorney, (who and his client resided in Albany,) on the 3d February. The defendant, conjecturing the cause of the suit, on the 6th February put in a plea in abatement, staling the names of 47 persons as jointly interested with him as owners in the boat, whom he then believed were all the owners of the boat. On the 15th February a replication was filed. A register of the names of the owners was…
1Opinion of the Court
By the Court,
Savage, Ch. J.
It is objected that pleas in abatement are not amendable. Such pleas are always discouraged, being dilatory and not going to the merits of the action.
The only reported case I have been able to find on the question is Lyde v. Heale, Prac. Reg. of Com. Pleas, 21, decided Easter Term, 12 Geo. 1. The defendant pleaded in abatement another action pending, and, in setting out the record, instead of saying non fuit culpabilis per vilium scriptoris, it was said non fuit capilalis. A motion to amend was denied, because, as appears from the argument of counsel, a matter in…
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