Benedict v. Nichols

1 Root 434

Opinion

By the Court.

That examination was officially taken and may be given in evidence, but is not to be proved by parol testimony.

The plaintiffs then read that part of the examination which showed that the defendant had received the goods of the deceased and objected to reading the other part, whereby it appeared that he had accounted for them.

By the Court. The whole must be taken together.

The defendant finding on trial, that some of the articles charged in the declaration, to which he had plead fully accounted, never existed, he moved for liberty to alter his plea as to them, and plead that he was never bailiff and receiver.

The court admitted it to be done, notwithstanding the case was on trial to the jury. See Riply v. Fitch, Windham, March Term, A. D. 1792.