Majority
p. 383Knapp against Onderdonk.
Headnote
The court will not allow an amendment, in a justice’s return, in a point contradicted by the affidavit of the justice himself especially if after joinder he has noticed for argument on errors assigned.Smith moved for leave to the justice to amend his re turn.
Caines, contra.
Independent of errors having been as^ signed and joinder, the justice has made an affidavit con* tradicting the existence of the fact in which the amendment is requested. Besides, two notices of argument, on the error assigned, have been given.
There is an evident laches. If the amendment is necessary, it ought to have been applied for before noticed for argument. The plaintiff in error must have known what was necessary to support his own assignment.
Amendment denied.