Hoffnagle v. Leavitt , 7 Cow. 517 ( 1827 )

Curia.

The amendment sought, is within the principle of several cases decided by this court; and it should be granted. But that must be without prejudice to the defendant. He and his counsel were, in fact, misled, so as not fully to prepare the defense; and this by the omission of the plaintiff. We, therefore, direct the amendment; but it must be on the condition that the plaintiff consent to a new trial, within 80 days. If he withholds such consent, the case must proceed to argument, with the variance upon it.

Buie accordingly.