Wilson’s Red Book, 104
Court of Common Pleas of Delaware.
April, 1796.
Special count stating the testator was surety in a bond etc. for and with defendant, and assumpsit to pay etc. what should be expended etc. by testator, and averment. Assumpsit (money laid out and expended) to plaintiff as administrator.
N. B. The date for the bond was wrong and I moved the court for leave to amend narratio. Objected that this was making a new declaration. But the court gave leave on payment of costs, which I refused, and went on to trial.
Plaintiff’s receipts were all dated since the action brought.
Page 92
PER CURIAM.
(In their charge.) There is no rule more certain and better established than this, that every plaintiff must have a right to sue at the time of action brought, and here the plaintiff had not.
Notwithstanding, the jury gave a verdict for plaintiff to which defendant agreed not to take exception on my letting him out of jail, for he was surrendered, and paying the costs of this suit.