ALBANY, Thorp V. Faulkner. Bail who are and do not THORP against FAULKNER, manucaptor of REYNOLDS. THE defendant became special bail for Reynolds, on the excepted to, 26th May, 1821, at the suit of Thorp. The bail piece was justify, cease filed the 29th of May, and on the 31st the plaintiff's attorto be bail; a- ney entered an exception thereon. No notice of the excepgreement be- tion was ever given to the bail, nor did he know anything of And an tween the par ties to waive it, until about five months after it was entered. No waiver the exception, of the exception had ever been entered upon the bail piece; filing a decla ration in chief, but the attorneys of Thorp and Reynolds, had agreed oraland going on to judgment, ly to waive the exception. against order ing an exone (not A declaration was filed in are no reasons chief, ( not de bene esse,) in consequence of this agreement; the cause proceeded to judgment; a ca. sa. had been returned non est, &c., and the defendant sued as special bail, by capias, returnable at this term. retur. J. Hamilton moved for a rule to enter an exoneretur on the bail piece, and cited Flack v. Eager, (4 John. 185,) Livingston v. Bartle, (id. 478,) Aylett v. Hartford, (2 Bl. Rep. 1317,) and Ex parte Wright, (2 Ves. Jun. 9.) S. M. Hopkins, contra, cited Humphrey v. Leite, (4 Burr. 2107, and 1 Archb. 83,) and contended that bail are not discharged by an exception, unless it is followed by a substitution of other bail. In Flack v. Eager, the declaration was filed de bene esse. Curia. We think this case clearly within the principle of Flack v. Eager; and in The People v. Judges of Onondaga, (1 Cowen, 54, 56,) the Court say, that if bail who are excepted to, do not justify within the time allowed by the rules of the Court, they cease to be bail; and the plaintiff cannot hold them by waiving the exception, even where there is no surprise. Motion granted. SARGENT against DENNISON. ALBANY, Sargent V. Dennison. Clerical mis was laid aftor cause of action commence ment of suit, amended after it was made a THE declaration was entitled in May term, 1822. It was in case, for debauching the plaintiff's daughter, per quod take by which servitium amisit, from the 18th day of August, 1822, being after the action commenced; which was so laid through a clerical mistake of the plaintiff's attorney. And the cause was carried down for trial, tried, and a verdict found for the verdict; tho' plaintiff, before the mistake was discovered by the plain- ground of obtiff's attorney. The declaration stated, that at the time the trial; and the jection at the injury was committed, the daughter was an indented ser- point was revant to P. F. and was an infant under 21 years; that she continued a servant till the 18th August, 1821, when in consequence of her pregnancy, the indentures were annulled, and she went to reside with the plaintiff, her mother, who was a widow, and while an infant still living with the plaintiff, viz. on the 24th Feb. 1822, was delivered of a male child, &c., per quod, &c., from the 18th August, 1822, (as before.) The cause was tried before Judge NELSON, at the last Otsego Circuit, upon its merits, but several objections were taken during the trial, to the plaintiff's right to recover; and a motion was made for a nonsuit upon the ground (among others) that the declaration alleged the loss of service to have commenced after the commencement of the suit; but this point, with others, was reserved by the Judge for the opinion of this Court. S. A. Foot, for the plaintiff, moved to amend the declaration and nisi prius record, by striking out of this averment, 1822 and inserting 1821. Starkweather & I. Seelye, contra, did not deny that an amendment should be granted, if clear that the party could not be injured by it; but the Court would guard against the possibility of this. (2 Vin. 304, and the cases there cited.) Here the time is material as to the damages. Had the plaintiff been confined to an estimate of damages from 1822, it would have been a matter of mere mathematical calcula served. ALBANY, Feb. 1824. Sargent V. Dennison. tion. The defendant was surprised. He comes to defend upon one state of the pleadings, and evidence is received applicable to another and different state, embracing a larger amount in damages. At any rate the motion is premature. It is connected with one of the points reserved at the trial, which is to be brought before the Court on a case, and should be postponed till the argument is heard upon the case. If the amendment is granted, the defendant should have leave to plead and go to trial de novo. Foot, in reply. This is a mere clerical mistake, and stands in the way of discussion upon the case, and for that very reason should be amended now. Suppose it may have misled the defendant, the Court will not allow him to lie by and trip up another, upon such a mistake. (Henry v. Brown, 19 John. 49.) It appeared upon the declaration, and he should have demurred. But is a surprise a mere matter of presumption? None is shown. The Court will, at least, require the defendant to show that he was injured. Why should he have a new trial without first showing that he was prejudiced? Curia. This mistake is, clearly, the subject of amendment. The defendant shows no prejudice from it; nor do we see how he could have been prejudiced by it. Though the exception was taken at the Circuit, the Judge was right in not allowing it. We order amendments in cases like this at any stage of the cause. Motion granted. A motion to amend a jus tice's return to a certiorari, defendant made by the in opposing affi sought will be incorrect in point of fact. Nor will it S. Cheever, for the defendant, moved for a rule that the Justice amend his return, in several particulars, by stating certain evidence which was not mentioned either in the affidavit on which the certiorari was founded, or in the return error, will not be granted if of the Justice. The return was simply the Justice's certifi- it appear by cate endorsed upon the copy of the affidavit served upon davits that the him, stating in effect, that the affidavit contained a true his- amendment tory of the proceedings in the cause before him. It appear ed among other things, by this return, that Wightman, the plaintiff below, declared against Clapp, the defendant below, be granted where it apin assumpsit upon an account; that Clapp pleaded the gen- pears that noteral issue as to all except 5 dollars of the plaintiff's account, withstanding and a tender as to this, which he paid into Court. He also gave notice of set off. On the trial, there was no proof of a tender, nor was it stated in the affidavits or return, that there was any such proof offered upon the trial. It farther assumpsit, in appeared from the return that the jury found a verdict for low the deClapp of $3 57, notwithstanding the $5 paid into Court. The fact was not contradicted by any of the affidavits. J. Koon, contra. the amend ment,the judg ment must be reversed. Where in the court be fendant pleaded a tender, but the jury found for the defendant tho' there was no proof of tho tender, held, that this was a fatal error; & a motion in behalf of the de fendant below, who was also defendant in error, that the justice amend by returning proof in the Curia. On looking into the affidavits and return which have been submitted to us, we find the truth of the latter strongly supported by several witnesses; and the additional testimony which the defendant in error seeks to have returned, appears to us wholly immaterial; but if it were otherwise, it would be idle to grant an amendment, when we cannot help seeing from the whole case, that the judgment must be reversed. The defendant below pleaded a tender cause upon anof 5 dollars, which he paid into Court, thereby admitting this sum to be due to the plaintiff. No proof of a tender was offered or pretended, nor it is now pretended that any 66 VOL. IL other point was denied. Feb. 1824. ALBANY, such proof exists; yet the jury found 3 dollars and 57 cents for the defendant, contrary to his recorded confession he owed the plaintiff 5 dollars. Such a verdict cannot be sustained. An amendment would be useless, and is therefore denied. Snyder V. Warren. Motion denied. A judgment In the matter of SNYDER & SNYDER against MOSES A JUDGMENT was docketed in the Common Pleas of confessed be- Rensselaer county, in favor of J. G. & H. Snyder, against fore a justice for 50 dollars, Barnard Wagar, for $1575 10, on which a fi. fa. was isor less, is good, sued, and on the 15th August, 1822, the Sheriff of Rensse without the cification re the 50 dollar act. months re a sale on exe are calendar, months. oath and spe- laer county sold a farm of Wagar to the Snyders at a bid of quired by the $888, and executed to them a certificate of sale. On the 7th section of 15th November, 1823, Wagar confessed a judgment before a Justice of Rensselaer county, in favor of J. P. De Freest, The fifteen for $25 27 damages, with 81 cents costs, a transcript wheredemption from of was filed in the Clerk's office. On the same day, De cution allowed Freest applied to the Sheriff to redeem the farm sold as a by the statute, judgment creditor, and tendered to him the amount bid by not lunar Snyders, with 10 per cent. interest from the time of the sale. In computing The Sheriff received but 7 per cent., thinking himself authorthe time, the ized to take no more, but a few days after, having taken lowed full 15 legal advice on the subject, he consented to receive the residue. months from The judgment before the Justice was confessed under the following circumstances: On the 14th November, 1823, A judgment Wagar being indebted to De Freest, on a small note and full considera- book account, the latter told Wagar that he wished to become tion, tho' for a judgment creditor of his, for the purpose of redeeming his purpose of farm from the sale to the Snyders, and offered him $1800 for enabling the creditor to re- it. Wagar accepted of the offer, and the same day confessdeem, is valid. ed a judgment for the balance due to De Freest, amounting creditor is al the day of sale. created upon together with costs to $7 27, before a Justice in Pittstown. The next day the parties proceeded to Troy, and there |