Miller v. Watson

6 Wend. 506

Opinion

By the Court,

Sutherland, J.

In the case of Sackett v. Thompson, 2 Johns. R. 206, the court refused to allow an amendment by the substitution of a new count, or the adding of new counts, it appearing that after a trial, and before the jury rendered their verdict, the plaintiff had voluntarily submitted to a nonsuit, brought a new suit for the same cause of action, and four times noticed the last suit for trial. From the remark in that case, that the statute of limitations had not run out, and from the adjudged cases adverted to by the court, it is manifest that circumstance had a controlling influence in the denial of the motion. Here, unless the plaintiff be permitted to amend, the statute will be a bar to a new action. Although more than six years have elapsed since the commencement of this suit, the defendant cannot claim the protection of the statute, unless it had run out before the suit was brought, and if so, he may plead it anew ; subsequent to the commencement of the suit, there can be no presumption of payment. The plaintiff is permitted to amend by adding a new count, setting forth the contract, upon payment of all costs subsequent to the declaration upon which the issues were taken.