Page:Parker v. Lewis, Hempst. 72 (Super. Ct. Ark. Terr. 1829).pdf/3

74 Rh   nor does it really answer the whole charge in the second count of the declaration. The defendant, by his attorney, insists that the plaintiff, should be driven to take his exception to the pleas by demurrer. We think not. The defendant after having filed one plea, which was adjudged bad on demurrer, ought not to be permitted to amend by filing pleas no better than the first. The defendant asked leave to amend, and it was his duty to have tendered good pleas, and the indulgence as to the time granted by the court, cannot place him in any better condition than he was in at the time of obtaining leave to amend. If the court would not have received those pleas if tendered, a fortiori they ought to strike them out, when filed under the indulgence of the court, giving the defendant time to amend his pleading. The second and third pleas of defendant must, therefore, be stricken out.

October 24, 1829.—Before Benjamin Johnson, William Trimble, James Woodson Bates, and Thomas P. Eskridge, judges.

Issue having been formed on the plea of not guilty, the cause was tried by a jury composed of Joseph McKnight, Asa G. Baker, Benjamin Clemens, G. W. McSweney, James C. Collins, William Flanakin, Bartley Harrington, William Lenox, Kirkwood Dickey, Emzey Wilson, Samuel Williams, and William Dugan, who rendered the following verdict: "We, the jury, find for the plaintiff ten thousand dollars damages."

October 27, 1829.—On this day Judge T, the only judge in court when the verdict of the jury was returned, handed into court a written statement of the finding of the jury, as follows: "We, the jury, find for the plaintiff ten thousand dollars damages," and being asked if that was their verdict, they said that "Parker's note to Lewis for three thousand two hundred and twenty-two dollars and sixty-nine cents with interest was to be deducted, and that the balance was found against Lewis, and that they found nothing against Edwards."

The plaintiff moved the court to render judgment for him on the verdict, which, after argument of counsel on both sides, was, on the next day, denied. On the 31st of October, 1829, a motion was made by the defendant Lewis for a new trial, and after