Nelson v. Ayres

12 N.J.L. 62

Opinion

Ewing, C. J.

The error in the now assignment was merely a clerical one, not an error of deliberation or judgment. The haste with which the pleadings were prepared, at the circuit, and after the cause had been called for trial (rnalus usus et dbolendus) very readily explains the causo of its occurrence. Under such circumstances and especially as the pleadings are, not yet, as we are informed, on file here, I should be strongly inclined, independent of precedent, to relieve the plaintiff. There are, however, a number of cases wrhich in principle sustain his application, and even go beyond it. Den v. Franklin and Sharp, 2 South. 851; Halhead v. Abrahams, 3 Taunt. 81; Holland v. Hopkins, 2 B. and P. 243; Tomlinson v. Blacksmith, 7 D. and E. 132; Williams v. Pratt, 5 Barn. and Ald. 396. In Trask v. Duval, 4 Wash. 97, the promise laid in the declaration was absolute and that proved was conditional. The plaintiff was non-suited for the variance. On this motion the non-suit was set aside and leave given to amend.

I am of opinion tho non-suit should be set aside, and leave be given to the plaintiff to amend, or rather to file a new assignment, upon payment of costs.

Justices Foed and Deake, concurred.