Boyt v. Cooper

1 N.C. 277

• Court: Supreme Court of North Carolina
• Decided: July 15, 1811
• Status: Published

Opinion

Taylor, C. J.

The memorandum on the docket is entirely too indefinite to apprize the plaintiff of the point on which the defendant actually relied. Of the numberless illegal considerations for which a bond may be given, it would be highly unreasonable to expect, that in every instance, the plaintiffs should understand, precisely that one, which the defendant intended to urge, when he entered his plea. But having guessed rightly, and summoned witnesses to explain the intended defence, what should prevent the defendant from afterwards shifting his ground, and setting up some other objection to the bond which the plaintiff was altogether unprepared to repel? But, upon looking into the affidavit filed in the case, the Court are of opinion that the defendant ought to have leave to amend the plea: and as he instructed his counsel in due season, what was the nature of his defence, the justice of the cause seems to require that the amendment should be made without costs.