Webb v. Wilkie — 1 Cai. 153

Majority

p. 210

Webb against Wilkie.

Headnote

Whenever a plaintiff amende his declaration, the defendant has an election to plead de rump. •

This was an action on a sealed note, dated on the thirtieth of the month. The declaration stated the date to be the thirteenth.

Mnott,

on the first day of term, had obtained a rule to amend the declaration by striking out the word “thirteenth,” and inserting the word “ thirtieth.” No person appearing to oppose, the motion was granted of course and without imposing terms.

Van Vechten

now applied to vacate that rule, and that it be ordered that the amendment be on the usual terms. This, he said, was necessary, because the plea of non est factum, which was then proper, might now be highly the reverse.^[1] The court was always disposed to set things

p. 211

right, if it lay in their power. They never could mean that the plaintiff, who had been guilty of a mistake in his declaration, should have liberty to amend that, and the defendant be held to a plea that might be inapplicable. Besides, there was ample time *to give a [*154] plea before the next circuit, and surely the court will not shut out the defendant from pleading de novo> when his first plea was the result of the plaintiff’s misstatement.

Let the former rule be vacated, and the plaintiff amend on the usual terms.

. Motion granted.