
    Elizabeth Morrow against Elizabeth Morrow and others.
    pleaded a release stated to be on the month: í,uhoneBci.igd Sí jected to, and the thfwauorieOTe to amend, which “ “Sf- S S&wkey;ted,wfth thePlea-
    In this action there was a release pleaded by -i r -t i i • /■ • T" defendants to the plaintiff s cause of action, in reciting the release, it was stated to have been ♦ i , 7 • 7 t • i i given on the 15th. under a videliat; and upon the production of the same, it bore date on the 14th of the month.
    The admissibility of this evidence was object-ea to by the counsel for the plaintiff, on account of the variance between the date set forth in the plea, and that contained in the release produced. The presiding Judge supported the objection. A motion was then made for leave to amend, which was also overruled, and a verdict Was found for the plaintiff. A new trial is now moved for,
    1st. Because the variance was not,so material a one as to prevent the adduction of the release in evidence. *
    2d. Becauce, if it was so, still the defendant ought to have been permitted to amend.
   The opinion of the Court was delivered by

Mr. Justice Gantt.

The record is not before the Court, and consequently the true state of the pleadings not apparent. It is probable, that the replication may have claimed the right of exception for a variance of this kind, if otherwise tenable. Nor can the Court say, but that the party defendant might not have proved the delivery of the release the day set forth in the plea.

It is obvious that the cause has not been tried on its merits, and doubtful whether, if a new trial should be refused, the defendants would not be without a remedy.

Thus viewing the case, and to ensure the ends of justice, I am of opinion that the verdict should be set aside, and a new trial granted, with leave to defendants to amend their plea.

Grimké, Colcock, Cheves, and JYott, J. concurred.  