
    Otis Seymour agt. Samuel Rogers et al.
    
    
      Oyer may be amended after the cause has been twice noticed for trial, if application is made as soon as the error is discovered, or if not, a sufficient excuse for the delay is offered, on payment of costs of opposing motion.
    
      December Term, 1845.
    Motion by. plaintiff for' leave to serve a new oyer with the same effect as if the original had been correct.
    This was an action of covenant oh a lease; plea non est factum, giving oyer with notice; issue was joined in July, 1844; causé was noticed for September, 1844, and not tried, and again in February, 1845, and not tried. In August last,' defendant’s attorney received a stipulation signed by Haight, one of plaintiff’s attorneys, to amend oyer, and a letter alleging that the defect had just been discovered, no terms, or conditions were offeredffor amendment, defendant’s attorney declined the stipulation without terms. August 26th, plaintiff’s attorney served notice of trial; defendant’s attorney alleged he had made ^preparations for trial, when on the 1st September, a notice of countermand was served. No further steps were taken until 20th November, when notice of this motion was served. Defendant’s counsel insisted that there were laches on the part of plaintiff, his attorneys knew of the defect in February last. Plaintiff’s counsel insisted that the laches were fully excused, inasmuch as one of the partners who had the entire control of this cause had been a long time sick, and unable to attend to business, and the defect was not stated to his co-partner until August last, after he had noticed the cause for trial.
    S. Mathews, plaintiff's counsel.
    
    Haight & Chase, plaintiff's attorney.
    
    N. Hill, Jr., defendants' counsel.
    
    E. G. Lapham, defendants' attorney.
    
   Jewett, Justice.

Granted the motion on payment of costs ' of opposing, $7.  