Hitchcock v. Post — 1 Wend. 16

Majority

p. 16

Hitchcock ads. Post and others.

Headnote

A plaintiff may amend of course, within twenty days after plea; and the defendant is bound to plead anew.

Motion to set aside a default for irregularity. On the 18th February, ,a plea of the general issue was served. Four days afterwards, the plaintiffs’ attorney amended his declaration by changing the venue from Albany to Oneida, in pursuance of a rule entered in the common rule book, filed and served an amended declaration, entered a new rule to plead, and served notices of the rules to amend and plead. The defendant not pleading anew, after twenty days his default was entered, to set aside which this motion was made.

M. Talcott, for defendant.

C. P. Kirkland, for plaintiff.

The motion is denied, with costs. The proceedings on the part of the plaintiff were in conformity to the eighth rule of April term, 1796, which authorizes a plaintiff, at any time within twenty days after service of a plea, if it be the general issue, to amend his declaration. This is an amendment of course, and distinguishable from amendments by special order of the court; the practice in relation to which is governed by rules not applicable to this case.