Dyson v. West's Ex'x

1 H. & J. 567

• Court: General Court of Virginia
• Decided: May 15, 1805
• Status: Published

Opinion

Chase. Ch. J.

The old probate cannot supply any defect which may be in the new probate, for although the plaintiff might have proved in 1796 that he liad received no security, yet in 1799, when the new probate was made, if he had received security in the interval, he could not make the probate, and that word being omitted in the hist probate, it may be well presumed he had received such security in that interval.

The court are not deciding how far the word security is essential. But they say, if it is an essential omission, the old probatq cannot aid if.

The court think the plaintiff?s counsel had belter consent to, withdraw a juror, and continue the case, for the purpose of getting better proof.

But the counsel of the defendant would not consent that a juror should be withdrawn, and upon examination the court discovered they had no authority to order a continuance without the consent of the defendant’s counsel.

-Where there Í9 no proqf applien-We to one of the Counts in the ■plaintiff’* decía Vation, the court •wilt not gire leave ¡to amend the declaration Johnson, for the plaintiff,

prayed leave to amend the declaration, and that a juror might be withdrawn for that purpose. The declaration, he said, has a count for sundry matters, &c. and (hero was no account filed applicable to that count.

Shaaff, contra. This would be getting round the act of assembly for the amendment of the law. There is in the declaration a count for goods, wares and merchandise.

Chase, Ch. J. The Court consider that part of the act of assembly, (1785, ch. 46,J which requires that the party bringing the suit should swear that he had received no security, is an essential which cannot be dispensed with; and that the defect in the probate is in a matter of substance, and therefore fatal.

Chase, Ch. J. The Court are not authorised to give the leave. The act of assembly does not autho-rise the court to give leave to amend upon the ground stated,

Plaintiff nonsuited.