Saltus v. Bayard

Headnote

After a cause has been two years at issue, and twice noticed for trial, the plaintiff will be allowed to amend his declaration by adding a new count upon the same canse of action, upon payment only of the costs of the motion, unless the pleas are withdrawn or a new defence becomes necessary in consequence of the amendment.

This is a suit against Robert Bayard and William Bayard, on a promissory note alleged to have been made by William Bayard, the elder, Robert Bayard and William Bayard, under the name and firm of Le Roy, Bayard & Co. Robert Bay-ard, who was alone brought in on process, put in several pleas, upon which issue was joined in October, 1832. The cause was noticed for trial at the December circuit, 1832, but not tried, and in August was again noticed for the last September circuit. On the 29th day of September, the plaintiffs’ attorney discovered that at the date of the note William Bay-ard, the elder, was not living, and the cause not being tried at the September circuit, he now moved to amend his declaration by adding a count on the same note, stating the partnership to have been composed, at the date of the note, of only the defendants Robert Bayard and William Bayard. It was insist

ed for the defendant, that leave to amend should be given only on condition that the plaintiffs pay all the costs which had accrued in the defence, as it was now conceded that unless the declaration was amended, the plaintiffs must fail in their suit. For the plaintiffs, it was urged that such was not the rule ; that all that the plaintiffs were bound to pay, were the costs of the motion, unless the defendant elected to withdraw his pleas, or a new defence became necessary in con sequence of the amendment.