Daley v. Atwood — 7 Cow. 483

Majority

p. 482-1

Daley against Atwood.

ALBANY,

Oct. 1827.

Headnote

Amendment oyerP granted3 after trial and though thodefendant’sattorney supposed the oyer to be ttiaV^MreR ed on moving judgment; of deprived ^by the

Granted, on paying simply :he costs of the motion. Otherwise, if it had appeared that the defendant was deprived, by the mistake, of a substantial defense.

In debt on an arbitration bond.. There was a variance between the oyer furnished by the plaintiff, and the bond given in evidence at the circuit; notwithstanding which, the judge directed a verdict for the plaintiff, subject to. a motion to amend,

. A motion being now made, accordingly, on showing the variance to have arisen from a clerical mistake, the affidavit of one of the defendant’s attorneys was read, stating that he believed, till the trial, that the bond was truly set out *n °7er i an<^ supposing that it would not sustain the as set forth in the plaintiff’s replication, he intended, f°r that reason, to have moved in arrest of judgment,

p. 483

This ground of arrest would be removed by the amendment.

J. H. Boyd, for the plaintiff.

Parker & Wheeler, for the defendant.

The facts shown for the defendant constitute no valid objection to the amendment. His attorneys were surprised, to be sure, in finding that the objection failed, which, till the trial,, they supposed to exist. The bond there turns out to be a valid support of the award; and no defense is pretended. Ho injury has arisen to the defendant from the mistake. We do not allow any advantage to the party, though he be misled by the mistake, if he, in fact, can lose nothing substantial by it. If the defendant had shown to us that he thought the oyer correct, and shaped his defense accordingly, (such defense being something more than the mere technical objection itself,) and that he had been deprived of this defense, or perhaps omitted to prepare himself with it, from his reliance on what he was thus led to think a fatal and final objection without it, the case would be very different. This is, however, no more than the common case. The defendant is deprived of a technical objection, which was against the justice of the case. He is not even entitled to the costs of the trial. Let the amendment be made on paying the costs of this motion.

Eule accordingly.