7 Johns. 300 | N.Y. Sup. Ct. | 1810
The practice to be pursued when a rule for an amendment of this kind is obtained, seems not to be well settled. The defendant in the case before us has interposed no affidavit of merits. The practice being unsettled, -if he has any defence, he ought to be let in. We think, therefore, that the proceedings must be stayed until the next term, to give him an opportunity of presenting such an affidavit, if any can be made. But in cases hereafter arising, the practice we adopt is, that the defendant must serve on the plaintiff a certified copy of the rule, which shall be deemed an actual amendment of the declaration, as to all subsequent proceedings on the part of the plaintiff; and the defendant, without being entitled to a new copy of the declaration, must enter into the consent rule, and plead within 20 days after service of a certified copy of the rule for amendment, unless otherwise ordered by the court.
Motion granted.