
    Royal Makepeace versus William Boyd.
    
      Amendment. — Court will permit defendant to amend his plea of usury, after issue is joined and the jury empanelled.
    This was an action of ejectment, brought upon a deed of mortgage made by the defendant to the plaintiff and one Vose, deceased. Upon oyer of the deed, it purported to be made to secure the payment of seven hundred dollars in one year from the date. The defendant pleaded in bar that, at the date of the mortgage, he was justly indebted to the plaintiff and the said Vose in the sum of five hundred and fifty-six dollars and ninety-five cents ; and that, in pursuance of a corrupt agreement then made between the plaintiff and the said Vose, on the one part, and the defendant on the' other part, the defendant made and executed the mortgage-deed declared on by the plaintiff, —as also two bonds conditioned for the payment of three hundred .and fifty dollars each, referred to in said mortgage-deed, for securing the said just debt, and also the further sum of one hundred forty-three dollars and five cents for the forbearance thereof for one year ; against the form of the statute, &c.
    The plaintiff replied that the mortgage was made to secure a just debt, and traversed the corrupt agreement alleged by the defendant.
    The defendant tendered an issue on the traverse, which was joined by the plaintiff’.
    [ *431 ] *Upon trial of this issue, before Parsons, C. J.,at the sittings after the last October term at Cambridge, after the jury was empanelled and the pleadings read to them, the defendant’s counsel discovered a mistake in his plea in bar, which he then moved for leave to amend, for the purpose .of alleging therein that the debt, relative to which the corrupt agreement is said to have been made, was a joint debt of the defendant .and one Elisha Rice, instead of being the debt of said Boyd alone, as is alleged in the plea.
    This was opposed by the counsel for the plaintiff, on the ground that, at this stage of the cause, no amendment ought to be granted, and especially of a plea of usury, which they contended was against good conscience, and in no case to be favored.
    
      Bigelow and Channing for the plaintiff,
    
      Q. Blake and Dana for the defendant.
   The Chief Justice reserved the point, to have an opportunity to consult his brethren, not from any doubts he entertained on the subject, as he declared, but for the sake of settling the practice. And now at this term he said the whole Court were, upon consideration, in favor of allowing the amendment upon the common rule.

Harrison G. Otis, Esq.,

appointed an examiner at the last March term, declined accepting the appointment.  