Page:Federal Reporter, 1st Series, Volume 6.djvu/829

 WILBUB V. ABBOT. 817 WlLBUB V. AbBOT. {Oireuit Court, D. Nea Hampshire. December 21, 1880.) 1. AMENDHBNT OF DeCIiABATION. Although two special demurrers to the plaintill's declaration for matters of form liave beea sustalned, the court will permit the plain- tiS to amend upon terms, it appearing that the case is important and difflcult, and that if the amendment was not allowed a part of the plaintiS's remedy would be eut ofE by an exercise of the discretioD from which there is no appeal. Sawyer d Sawyer, Jr., and Mr. Morrison, for plaintiff. S. C. Eastman, for defendant. LowELL, C. J. This action of debt bas been pending sev- eral years, and bas not yet reached an issue. Two sppcial demurrers to the declaration baye been sustained, and delays have happened tbrough other causes. The facts are compli- cated, and the plaintiff seems to und some embarrassment in setting them out in due form. Isaac L. Wilbur, the plaintiff, was one of the firm of Wil- bur & Borge, of New Orleans, and also syndic for their cred- itors. Edward A. Abbot, the defendant, was one of the firm of J. S. & E. A. Abbot, of Concord, New Hampshire, and is now the surviving partner and administrator of bis father. There were cross-demands between the Abbots and Wilbur & Borge. Wnbur, as syndic, sued the Abbots in the fifth dis- trict court of the city of New Orleans, and procured service upon some one who was returned by the officer as J. S. Abbot, one of the partners. It is said that, in fact, it was another Abbot, not connected with the firm. Upon this service Wil- bur recQvered judgments against both Abbots, by default, for $23,000 and more. About the same time the Abbots sued Wilbur & Borge for $3,200 in the third district court for the city of New Orleans. Wilbur appeared to this suit, and set up, by way of reconven- tion or set-off, the same debt for which the action was pend- ing in the fifth district court. Thereupon, just after judgment had been obtained in that suit, the attorney for the Abbots objected to the reconventional demand that it was the same .v.6,no.8— 52