Dorster v. Arnold

By the Court.

Nisbet, J.

delivering the opinion.

We do not question but that the declaration in this case was amendable, and at the time when the motion to amend was made. By the judgment of the Court, we learn that the amendment was refused, upon the ground that the plaintiff had notice of the necessity of the amendment, at the preceding term, and not amending then, he is precluded, by his laches, from amending now. The facts are, that at the first trial term, the plaintiff confessed a judgment for the defendant, with leave to appeal — did enter an appeal — at the appearance term of the appeal, there is no entry in the case, and at the second term of the appeal, when the cause was before the Jury, he moves to amend. I infer that he confessed on the first trial, because his declaration was defective ; if so, then he had notice of the defect. The same notice operated on him at the appearance term of the appeal, when he was entitled to amend. The character of the notice is not stated. The Court ruled that he had notice. We must presume that it was a sufficient legal notice, and not amending earlier, he is not now entitled.

Let the judgment be affirmed.