
    John Nelson vs. Bergen Ayres and Samuel Ayres.
    The plaintiff in an action of trespass was non-suited for a variance between the evidence offered, and the charge as alleged in the novel assignment and the variance appeared to have arisen from an evident misprision in writing one word for another, this court set aside the non-suit and gave the plaintiff leave to amend under the particular circumstances.
    When this cause was called for trial at the Salem Circuit in December, 1827, there waá an intimation that the record was not entirely complete by reason of the plea not being furnished in proper time nor according to promise as was alleged on the part of the plaintiff. The defendant did not admit this statement to be altogether correct, but the parties agreed to let the cause go off till next morning. The record was then brought into court and the parties went to trial. It was an action of trespass for cutting wood on the plaintiff’s land. The defendants admitted cutting on the land of Robert Ayres, their father, adjoining the land of the plaintiff, and whether they cut over it or not (as the line was a disputable one) seemed to be the only matter in contest. After the evidence on both sides had been all adduced, and counsel were ready to sum up, the court called their attention to the pleadings. The plaintiff' in making a new assignment, had laid the cutting on a tract of fifteen acres called the Look tract (which was undeniably the property of the *defendants) instead of the Nelson tract belonging to himself. It was a most evident misprision, in writing Ijook instead of Nelson; but the court did not hold itself authorized to amend the record, and the defendant’s attorney refused to consent. Whereupon, the plaintiff desired to be called and was non-suited.
    
      White, for plaintiff.
    
      Jeffers, for defendants.
   Ewing, C. J.

The error in the now assignment was merely a clerical one, not an error of deliberation or judgment. The haste with which the pleadings were prepared, at the circuit, and after the cause had been called for trial (rnalus usus et dbolendus) very readily explains the causo of its occurrence. Under such circumstances and especially as the pleadings are, not yet, as we are informed, on file here, I should be strongly inclined, independent of precedent, to relieve the plaintiff. There are, however, a number of cases wrhich in principle sustain his application, and even go beyond it. Den v. Franklin and Sharp, 2 South. 851; Halhead v. Abrahams, 3 Taunt. 81; Holland v. Hopkins, 2 B. and P. 243; Tomlinson v. Blacksmith, 7 D. and E. 132; Williams v. Pratt, 5 Barn. and Ald. 396. In Trask v. Duval, 4 Wash. 97, the promise laid in the declaration was absolute and that proved was conditional. The plaintiff was non-suited for the variance. On this motion the non-suit was set aside and leave given to amend.

I am of opinion tho non-suit should be set aside, and leave be given to the plaintiff to amend, or rather to file a new assignment, upon payment of costs.

Justices Foed and Deake, concurred.  