upon oyer of the original writ, granted in some proper stage of the cause. The existence of such variance forms no matter of controversy upon the general issue, by which the jury are to be governed in forming their verdict. In the present case, as no objection was taken to the amendment upon the record, it must be deemed to have been waived by the defendant, and therefore, not proper to be insisted upon at the trial.[1] Marriage of one of the plaintiffs pending the suit, does not, of itself, abate the suit.It does not appear, on the record, whether Maria Bonfils was married before or pending the suit; and the fact might have a material bearing upon the propriety of granting the amendment, since, at all events, if pending the suit, it would not of itself abate the suit; and the objection could only be made available by a plea in abatement.[2]
Upon the whole, it is the opinion of the Court, that there is error in the directions of the Circuit Court in the four last exceptions, and contained in the record, and for this cause the judgment must be reversed, and a venire facias de novo awarded.
