Webb v. Wilkie — 1 Cole. & Cai. Cas. 211

Majority

p. 211

Samuel B. Webb v. Thomas Wilkie.

Headnote

THIS was an action on a sealed note, dated on the thirtieth of the month. The declaration stated the date to be the thirteenth. Emott 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. The court was always disposed to set things 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 plea before the next circuit, and surely the court will not shut out the defendant from pleading de nova, when his first plea was the result of the plaintiff’s mistatement

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