No objection was taken at the hearing of this petition that the evidence offered as a ground for granting a review did not sustain the allegation in the petition. If such objection had been then taken, the petitioner might have had leave to amend. The respondent, by not raising the question of variance at the proper time, must be held to have waived it, because his omission deprived the petitioner of an opportunity to make the necessary amendment.

The evidence offered in support of the prayer for review did not vary or contradict the record. On the contrary, the petitioner admitted that the record was correct, but that through some mistake or inadvertence he omitted to claim an appeal. *24This was the ground on which the review was granted. But if the petitioner had sought to show that the record was erroneous, we think such evidence would have been competent on the question of granting a writ of review. Brewer v. Holmes, 1 Met. 288. Exceptions overruled.