Jackson, ex dem. Hills, against Tuttle

Jackson, ex dem. Hills, against Tuttle. ALBANY, Feb. 1827. Ejectment. The plaintiff’s attorney had, by mistake, 1 _ J J 1 laid the demise in the declaration on the 1st day of Janua-\Q22 ; whereas the title did not accrue to the lessor of plaintiff till the 16f& of that month. The cause had been once tried ; the plaintiff nonsuited; and a new trial granted. On the second trial, (October, 1826,) the de^en'^ant objected, for the first time, that the demise was laid before the title accrued; and moved for a nonsuit, The judge overruled the objection, with a view to give plaintiff a chance to move this court to amend. The defendant excepted ; and the judge signed a bill of excep- ,. ,, . . r tions upon the point. Declaration in ejectment amended by altering though the twice noticed an ^objection triaTthat11 the time was laid abin ofyexcep-this pointed °n Amendment granted, on paying the costs of the motion. J. A. Spencer, now moved to amend the declaration and all subsequent proceedings, by inserting a day of demise subsequent to the 16⅛ of January, 1822. He cited 2 Cowen, 515; 4 id. 124, 394; 5 id. 265 ; 18 John. 265; Anth. N. P. Rep. 180; 7 Crunch, 472; 6 Cowen, 360. G. C. Bronson, contra, said the court had never gone so far as to amend a bill of exceptions; or to amend in any particular which should do away the effect of a bill of exceptions. If, however, an amendment is allowed, it should be, on paying the costs of the circuit. [MAJORITY — Curia.] Curia. We do not amend the bill of exceptions; but we direct the declaration, and all the other proceedings subsequent, to be amended, on payment of the costs of this motion. As to the bill of exceptions, it will probably be rendered unavailing upon this point, by a return of the amended record to the court of errors. Motion granted.