Day v. Wilber — 1 Cole. & Cai. Cas. 406

Majority

p. 406

Joseph Day v. William Wilber.

Headnote

THE plaintiff had, in the last term, obtained a reversal of the judgment below, for a defect in the return of the oath administered to the constable. So soon as the court had delivered their opinion, the plaintiff’s counsel left town. The next day Gold, on affidavit that the error arose from a clerical mistake in copying* obtained a peremptory order to amend. After the plaintiff had, on the judgment pronounced, made up his record, he was served with a copy of the order to amend. The application now was to vacate .that order.

Siinonds, for the plaintiff

Harison, contra,

We ought to alter the order complained of, and give till the first day of next term, to show cause against the amendment; that in the mean time all proceedings stay, and that the defendant’s attorney serve a copy of Mr. Gold’s affidavit, on the attorney of the plaintiff.