Carpenter v. Payne

10 Wend. 604

Opinion

By the Court,

Savage, Ch. J.

This is a mere clerical error, and the plaintiff is entitled to amend ; but the defendant swearing to a defence, and that, relying upon the variance, he omitted to prepare for trial, we cannot permit the verdict to stand. The defendant ought not to have availed himself of the technical error in the declaration, but should have put forward his defence; still, strictly he might take the course which he has adopted, and all we can do is to relieve the plaintiff without subjecting him to costs. Let a rule be entered that the plaintiff have leave to vacate his verdict, and to amend his declaration without costs,