Thomas Butler v. Gabriel Duvall. Defendant's Objection


Tom Butler &c. vs G Duval.

The petitioners having now amended a third time, 1st for [Copying 1st withdraws a dem to deft's plea after the plea had been ruled good by the court

Tom Butler &c vs G. Duval.

The petitioners having already been indulged with pleading three several ways in reply to Deft's plea, and with two amendments, producing great & injurious delay, under the particular circumstances of this case, the Deft objects to any further amendment & prays to judgment of the court on the spl. deme. to the replication as it now stands amended; that amendment not making it necessary for the Deft, as he conceives, to make any change of his deme. to the repln as originally filed. Further amendmt. is objected to on two grounds which he thinks ought to be conclusive to the discretion of the court, which alone is to be enerted on a question of amendt.

1. The plea entered tendered a fair issue which ought to be & can be met in no other way than by a direct & simple denial of the petitioners residence under the control of the master in Prince Georges & a corresponding amount[?] of residence under the like control & direction here. This was first and replied to by a averment that they were here present &c. arguendo, not present in Prince Georges; ergo not residing under the control of the master   in P. Georges. The amended repln. is now both affirmative & negative: it affirms a fact, supposed to be inconsistent with the averment of the plea, but not under the control, or in other words, by the will of the master: still non constat[?] but they were here as removing slaves from another state, attempting by this means to withdraw their case from its proper jurisdiction: the fact denied is that they were not residents with the deft. in P. Georges; the sufficient insufficiency of this averment is obvious, but not necessary to be particularly insisted on, as an affirmative averment of residence here under control & by the will & direction of the master is held to be essential.

After so plain an issue has been three times avoided, firstly demr. & then by two in suppt replns. there shd be some extraordinary merits to justify an application for another amendt.

Whether there be such merits is a question for the direction of the court, and that must look[?] to the consequences of refusing the amendt. to the parties. [illegible] to the petrs. it simply[?] remits them to the proper tribunal, in which it is not pretended but they will receive every justice that the merits of their case can claim here. We will agree to [illegible] on notice without commisn.[?] any thing to expedite a decisn. on the merits. To the deft. an allowance now of even a genl. traverse, produces injurious delay (no one can say how long) with all the peculiar [illegible] of a case for freedom in a foreign jurisdiction.

Any further amendt. is therefore objected to; but if admitted, it is hoped none ether will be received, but a direct & general traverse taking issue on the plea.