Barber v. McHenry

Headnote

An amendment of a declaration in a penal suit will be allowed, the same as in ordinary actions.

Motion to amend declaration. The action is to recover a penally of $1250, for not advertising pursuant to the directions of the statute real estate sold under execution. The judgment in the declaration is stated to have been rendered in October term, 1827, whereas, by the record, it appears to have been rendered in October, 1828; and the execution is stated to have been delivered to the sheriff on the day of its leste, to wit, on the fourth Tuesday of October, whereas it was not in fact delivered until the 15th January, 1829. The suit was commenced against the sheriff in August term, 1829, the declaration was delivered in August, 1830, a plea of nil debet was put in, in September, and the cause noticed for trial at the Allegany circuit, appointed to be held on the 21st October. On the first day of the circuit, the. plaintiff’s attorney discovered the variance, refused to try the cause, and mow applies for leave to amend, which is opposed on the ground of the action being for a penally claimed of a public officer.