Wright v. Terry

Headnote

Rea/rgument at General Term,— the cowt cannot allow the appellant to amend his case, and, hear the rea/rgument on such amended case.

Motion for a reargument.

The court at General Term said: “ The plaintiff’s counsel asks for a reargument of this case in the General Term on an affidavit that all the testimony in the case was not printed, because he only deemed it necessary to comprise in the exceptions such testimony as raised the point upon which the case turned at the Circuit. In his points on this motion he says: ‘ If the court is of opinion that upon the order of the Circuit judge it became necessary to print and include in the exceptions the whole case and all the evidence, he asks a rehearing, and to be permitted to print the case.’ Certainly a rehearing at General Term will not permit him to print his case, and we can give him no relief in that direction.

“We decided the case on the record sent to us. We found an action for malicious prosecution without’ proof of want of probable cause or malice, and the trial judge had nonsuited the plaintiff. It is fundamental that in such an action the plaintiff must prove both want of probable cause and malice, and there was no such proof sent to us. Our determination could not have been otherwise than it was. In fact our decision is not complained of. The counsel for the plaintiff seems to go upon the idea that in granting a rehearing the General Term has the power to give permission to make or print a new case. This is a mistake. If we granted a rehearing it would be had on the same record.”