Gratz v. Phillips

1 Binn. 588

Opinion

Amendment of a declaration in account render permitted, by adding to a count which charged the defendants' testator as bailiff and receiver of the plaintiff, a count charging him as bailiff &c. of the plaintiff as surviving partner of A. although the writ corresponded with the first count.

Raule on a former day obtained a rule to shew cause why the declaration should not be amended by inserting a count in which the plaintiff was described as ~surviving partner, and his interest as having been held by him jointly with a certain Barnard Gratz deceased; and now in support of the rule, he ci• ted Slipper v. Stid~~tone (a), Hancock v. Hayman (b), French v. Andrade (c), and Ditchburn v. Spracklin (d).

Phillzps contra, urged that the new count would be a vari~ ance from the writ, and would put the defendants to the neces sity of meeting a different allegation from that which they came prepared to encounter.

But the court without difficulty made the rule absolute; observing, in answer to the last suggestion of Phillips, that a continuance would be granted if the defendants were in danger of a surprise.

Rule absolute.*