Majority
p. 503Spawn against Veeder.
Headnote
The plaintiff mond.edhis0 MU of particulars, after his cause tried, a new ces of trial afm’being noticed for time of the a-S. A. Foot, for the plaintiff, moved for leave to furnish an amended hill of particulars to the defendant.
It appeared from the affidavits read on both sides, that . V — , . - the declaration was served August 1st, 1822, with a Ml of particulars, on the defendant’s attorney ; that issue was joined August 20th, 1822; and the cause tried April, 1823. The bill proved very defective on the trial. A verdict was rendered for the plaintiff; but a new trial was granted upon the merits, m February term, 1824. The cause had since been twice noticed for trial, and now stood noticed for the Albany Circuit. The first bill was defective in consequence of the plaintiff’s attorney not being fully instructed by his client, who lived 400 miles from him. But lately, lie had procured full and correct instructions, which enabled him to furnish the requisite particulars.
on terms of costs,'Ifthedofondant changedhis defence, If not, then motion.** ^
J. M'Kown, contra.
These amendments are much a matter of discretion. The plaintiff’s attorney has not been very diligent in procuring proper information from his client; but it will further the ends of justice to grant the amendment. We save the defendant from all costs resulting to him from the mistake. If he chooses to change his plea, so as to vary his defence, he may do so ; and then the plaintiff must
p. 504
first pay him all costs from the plea down to this time inc¡ug¡ve- jf not, the amendment is granted on the plaintiff’s paying the costs of this motion.
Rule accordingly.[1]
(a) (a) Vid. Fuller v. Roosevelt, ante, 144. In Rex v. John Wilkes, Esq., a criminal inf brmation,' for a libel, was amended, V a material part, by Lord Mansfield, at his chambers, the day before trial, without the defendants consent. His Lordship consulted and produced many precedents in favor of the amendment.