
    Horace Howe and Others v. Town of Jamaica and other Towns.
    A petition for a highway through several towns, which omits to state that the petitioners are freeholders of the towns and vicinity through which they desire a road, may be amended, by consent of the petitioners, if the facts will warrant the averment.
   Petition for a highway. There had been no appearance on the part of the petitionees. The court, at a former term, had appointed commissioners, who made a report at the present term in favor of the prayer of the petitioners. The counsel for the petitioners now moved for leave to amend the petition, by inserting therein an averment, that the petitioners were “ freeholders of the towns and vicinity,” through which they desire a road.

The Court said, that this, being a salutary requisition, had been held to be an indispensable averment; but that they had always treated it as a defect in its nature amendable by consent of the petitioners, if the facts would warrant the averment.

Leave was accordingly granted to amend according to the fact.  