Smith v. Whiting

100 Mass. 122

Opinion

Chapman, C. J.

1. The motion to amend the defendants* answer was addressed to the' discretion of the presiding judge; and his decision is not subject to exception.

2. Even if the amendment had been made, the evidence offered did not tend to- establish a legal defence. The defendant had sued out a writ of replevin against the plaintiff, under the authority of which he had taken the cattle from the plaintiff’s possession, upon giving the bond in suit. As he failed to prosecute his action, the plaintiff is entitled to judgment on his bond for nominal damages, at the least, because the condition of the bond is broken. Nominal damages are all that he now claims. Exceptions overruled.