Wright v. Wilmington City Railway Co.

16 Del. 141

• Court: Superior Court of Delaware
• Decided: November 15, 1895
• Status: Published

Opinion

The Court (Lore, C. J.).

We understand that he wishes to reply the one that is most appropriate to the fact; of- course he cannot reply both.

Mr. Saulsbury. Of course, your Honors can see that the sections read from the Revised Code relate to variance. There is no variance here.

I think it is only necessary for me to cite to your Honors the case of Woolman & Sullivan vs. Zebley & Morris, 1 Houst. 459.

The plaintiff is too late in making this application, unless the defendant waives; there is no question about it. The statute is very broad, but there are limitations, and they have been recognized through our reports. For instance, you cannot amend by pleading anything that does not go to the merits, such as statute of limitations. We have had decisions of that kind and others. But there is a further limitation as to the time of filing certain pleas or replications.' This plea was generally pleaded. You did not put in the proper replication; you waived it—and that is one ground upon which the courts have held that it is too late; that is, after waiver. But the case cited by the counsel for the defendant is in point, covering the precise principle. After the plaintiff has rested under the pleading and the defendant has put in his evidence on that point—which is the case here—it is too late on the part of the plaintiff to ask leave to amend.

We shall have to instruct the jury to bring in a verdict for the defendant, under the proof in this case.

Artemus Smith and P. L. Cooper, Jr., for plaintiff. Willard Saulsbury for defendant.

Gentlemen of the Jury. Under the proof in this case, we instruct you to find a verdict for the defendant; the plea of release was proper, and there being no proper pleadings which enable the plaintiff to show that that release is not his release.

Your verdict will, therefore, be for the defendant.

The Prothonotary proceeded to call the jury, and asked them if they had agreed upon their verdict; after receiving an affirmative reply, he next called the plaintiff, John W. Wright, who did not answer.

Lore, C. J. Let a non-suit be entered.

Mr. Saulsbury subsequently made a motion that the costs of the special jury be taxed upon the plaintiff.

The Court (Lore, C. J.):

We must refuse your motion. Before the expenses of a special jury could be taxed as costs at all, this Court would have to decide under the statute, that it was a case proper to be tried by a special jury As this case went off on pleadings, and was not tried fully on its merits, we do not feel called upon to say that it is a proper case to be tried by a special jury. Special juries are luxuries which the parties may indulge in at their own risk, but the Court will not tax the expense thereof against the adverse party, unless the circumstances of the case are such as to show practically that the process of the Court had been abused or prostituted in the bringing of the suit.