National Dredging Co. v. Grand Trunk Railway Co.

Majority

p. 446

National Dredging Company vs. Grand Trunk Railway Company.

Headnote

Filing Notice oj Recoupment—Amendment.

1. Although the rule of Court provides that notice of recoupment must be filed with the plea, yet if not so filed the defendant will be permitted on motion to amend, and can then withdraw his plea, and file another with notice of recoupmeut.

2. The filing of the notice of recoupment after plea filed is in the nature of an amendment, and entitles the plaintiff to a continuance or to the imposition of terms.

(December 3, 1898.)

p. 447

Lore, C. J., and Spruance and Grubb, J. J., sitting.

Higgins and Churchman for plaintiff.

Lewis C. Vandegrift for defendant.

Superior Court, New Castle County,

November Term; 1898.

Foreign Attachment case (No. 44 to November Term, 1897.)

The above stated case having been placed upon the trial calendar, for trial on December 8th, Mr. Vandegrift came into Court on December 3rd, and asked leave on behalf of defendant to file notice of recoupment.

Mr. Churchman objected on the ground that Rule No. VIII of the Rules of the Superior Court, provides that the recoupment must be filed with the plea.

held that the defendant can amend, withdraw his plea and file a new plea with the recoupment, also that the filing of the recoupment was in the nature of an amendment entitling the other side to a continuance or to the imposition of terms.