McNeish v. Stewart

Curia. We cannot receive this excuse, as a ground for the relief sought. Though it appears to be founded in good faith, yet a contrary practice would lead to endless excuses founded in mere pretence. After the defendant has gone to trial upon pleadings which do not cover his defense, and has a verdict against him, it is too late for him to move for an amendment. He must go down to trial prepared. (9 John. 78.) Note. The plaintiff’s counsel admitted there would be a remedy in chancery, if the plaintiff should go on to col [475] lect for the value of more land than was lost by failure *of title; and by his consent, this court directed a rule that execution be perpetually stayed, except as to the sum really flue, the amount of which he showed by affidavit Motion denied.,