
    Seth Moore against Asa Bacon.
    A clerical misprision in a return to a certiorari may be amended after joinder in error, when it appears to have been served to prevent the entry of a default, for want of being served with an order to stay proceedings, then applied for, and expected, but it will be allowed only on paying costs of the assignment, and resisting the application to amend.
    MOTION to amend a justices’ return by altering the date of an act, mentioned to have been passed on the 7th day of April 1804, to the 7th day of April 1801.
    
      P. W. Radcliff.
    read an affidavit by the attorney of the defendant in error, that the mistake was a clerical misprision, which he did not discover till the 27th of Ma ch last, when a copy of the assignment of errors, in which this was set forth as a cause, was served on him, with a notice to join in error in twenty days, or that a default would be entered.
    
      Caines., contra,
    urged that the application could not how be heard, as from an affidavit of the attorney for the plaintiff, it appeared to be after joinder in error on this very point, so late as the 22d of April, and that, in such cases, the rule was, not to to allow of amendments.
    jP. W. Radclff, in reply.
    The papers before the court, shew that the parties live in a remote county, and the joinder was ni'erely to prevent the entry ef a default for want of being served with an order to stay proceedings.
   Per curiam.

The observation of the defendant’s counsel takes this case out of the general rule. The order to stay proceedings was applied for, and evinces, that the joinder was amere matter ■of precaution, not a reliance on, or affirmance of, the correctness of the proceedings. The amendment therefore must be allowed, on payment of the costs'’of the assignment of errors, and those of resisting this application.^  