Oakley v. Becker

[Sutherland, J. But can a third person avail himself of this irregularity ? Woodworth, J. If the Sheriff had sold without any alteration, we should have amended thefi. fa. on the plaintiff’s application.] Yanderpoel. True, if this had been a mere mistake, but it is not so. The variance is owing to the party’s own culpable precipitancy. [Woodworth, J. I do not see how this variance can work any injury to you.] [456] Vanderpoel. I \ra not aware that the Court have ever gone so far as to st y that a third person cannot take advan tage of such an irregularity. [Sutherland, J. It seems to me the defendant had a right to waive it at any time.) Vanderpoel. I had supposed Thompson v. Bristow, (Barn. 205,) a direct authority in support of this application ; or, at. any rate, that the plaintiff can avoid the preference, which we claim, only by motion to amend, on payment of the costs of this motion. The Court denied the motion with costs. Motion denied.