
    Fanning vs. Farley.
    In ejectment, the plaintiff omitted to state in his declaration what title he claimed, and on the trial the defendant objected to his proving a title in fee; but the circuit judge overruled the objection, and the plaintiff had a verdict for an estate in fee, and then moved the court to amend the declaration; held that the amendment should be allowed upon payment of the costs of opposing the motion: the verdict to stand.
    In ejectment, the declaration omitted to state what interest, whether a fee or a lesser estate, the plaintiff claimed in the premises. (2 H. iS. 304, § 10.) But the defendant knew before the trial that the plaintiff claimed an estate in fee. On the trial the plaintiff proved a title in fee, and the jury found in his favor that he was entitled to an estate in fee in the premises. The defendant objected to evidence showing a title in fee, because no such claim was made in the declaration; but the judge overruled the objection, and the defendant excepted. A bill of exceptions had been settled.
    
      D. Tillinghast
    
    now moved that the plaintiff have leave to amend the declaration, by stating therein that the plaintiff claims an estate in fee in the premises. He cited 11 Wend. 53; 6 Cowen, 590; 2 R. S. 425, § 7, sub. 9; 17 Wend. 80; 12 id. 170; 1 Hill, 129; 2 id. 126; 1 Cowen, 131; 6 Wend. 668.
    
      N. Hill, Jr. for defendant.
    No case has gone far enough to allow this amendment. If allowed, it should be on payment of all costs since the declaration, and granting a new trial.
   By the Court, Bronson, Ch. J.

We think the amendment should be allowed on payment of the costs of opposing the motion, and without granting a new trial.

Ordered accordingly.  