Majority
p. 433Seth More v. Asa Bacon. read an affidavit by the attorney of the defendant in error, that the mistake was a clerical misprision, which he did not discover till the 27th of March last, when a copy of the assignment of errors, in which this was set forth as a cause, was served on him, with a notice to join in error in twenty days, or that a default would be entered. The papers before the ■court, phow that the parties live in a remote county, and the joinder was merely to prevent the entry of a default for want of being served with an order to stay proceedings.
Headnote
MOTION to amend a justice’s return by altering the date of an act, mentioned to have been passed on the 7th day of April, 1804, to the 7th day of April, 1801.P. W. lladcliff
Caines, contra,
urged that the application could not now be heard, as from an affidavit of the attorney for the plaintiff, it appeared to be after joinder in error on this very point, so late as the 22d of April, and that, in such cases, the rule was, not to allow of amendments.
P. W. Radcliff, in reply.
The observation of the defendant’s counsel takes this case out of the general rule. The order to stay proceedings was applied for, and evinces, that the joinder was a mere matter of precaution, not a reliance on, or affirmance of the correctness of the proceedings. The amendment, therefore, must be allowed, on payment of the costs of the assignment of errors, and those of resisting this application.