—The defendant in this case, which was a foreclosure suit, served an amended answer five days before the circuit at which the cause was noticed for trial. The amendments consisted in merely correcting a clerical error or slip of the pen of the copyist, who had put the word “ defendant” for “plaintiff” several times. The plaintiff’s attorney returned the copy of this amended answer served on him, with a notice that he should disregard it, and accordingly did so; brought on the cause at the circuit, on his previous notice, and took his judgment. I think he had a right to do so.- Although, as a general rule, a party cannot judge of the sufficiency of a pleading, or the materiality of an amendment, but must bring the question before the court (8 How. Pr. R., 453), yet when an amended pleading is served just before a circuit, and with the obvious design of throwing the case over, the other party may disregard it if it be clearly a frivolous or immaterial amendment. I think such a case is an exception to the rule I have stated, and has been so regarded.† The design is manifest, and it will be effected just as certainly if the pleading be finally rejected, as if it be permitted to stand, if the plaintiff is to be driven to a motion to get rid of it. The question of the good faith and sufficiency of an amended answer must be raised, in such cases, before the judge at the circuit when the plaintiff moves on the cause. In this case, both the answers are clearly frivolous, and they are alike in all respects, except that which I have indicated.
The order appealed from should be affirmed, with costs.
Present, S. B. Strong, Birdseye, and Emott, JJ.
And see remarks of Allen J. in Rogers v. Rathbun (8 How. Pr. R., 466).