Morrow v. Morrow

The opinion of the Court was delivered by

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 *110variance 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.