*365 Curia, per
Woodworth, J.The first objection is, that the covenant declared on was not sufficiently proved. When produced, it appeared that the names of the defendant and the subscribing witnesses had been broken off. The plaintiff proved that it was entire when the suit was commenced. It had been delivered to his attorneys, who made a copy, and returned the original to the person with whom it had been deposited for safe keeping. The depositary afterwards delivered it to the defendant, where it remained a long time. After it was returned, he discovered that the names of the defendant and witnesses wgre missing. The execution was fully proved. For aught that appears, the mutilation may have taken place after issue joined. From the facts stated, the presumption is, that it was after the plaintiff had declared. The objection was properly overruled.
It was then contended, that there was a variance between the contract produced, and the declaration. The latter sets out, in consideration that the plaintiff had by the agreement, granted to the defendant, the immediate, quiet and peaceable possession of the premises, together with the yearly rent, that is to say, the one half of the rent then become due, for the privileges of a fulling mill and pond, &c. The covenant is in these words : “ all of which premises, the defendant is to have the immediate possession of, together with the yearly rent, or that is to say, the half of the rent to become due, on the premises bargained to be conveyed to Colwell and Scott, which said rent is due for the privilege of a fulling mill and pond.” The word “granted,” in the declaration, is intended to describe the consideration for the defendant’s covenant. It will be seen, by looking at a previous part of the covenant, that it contains the following clause : “ The said Richard,” (the plaintiff,) “doth convey, relinquish, and give up,” &c. This applies to all the premises contracted for by the defendant. Subsequently, follows the clause, that the defendant is to have the immediate possession, &c. I think the word granted, as used in the declaration, is to-*366be understood in a popular sense ; and not according W *^e s*r*ct: technical meaning of the term, when used in s deed. It is an allegation, that the plaintiff had parted with his right. But even on a strict construction, the declaration is warranted by the covenant. If the plaintiff actually conveyed the premises, as the covenant states j and further added, that the defendant was to have immediate possession, he has done enough to allow the pleader when describing the transaction, to say, “the plaintiff granted the immediate possession.”
With respect to the clause relating to the rent, there is a variance. By the declaration, it would seem that the defendant was entitled to one half the rent that had become, due ivhen the covenant ivas executed. The instrument itself says, “ rent to become due having reference to subsequently accruing rent only. The oyer served on the defendant’s attorney is correct in this particular. The plaintiff’s attorney testifies, that the variance was a clerical mistake in copying ; that the draft of the declaration, and the nisiprius record, (this cause having been noticed for trial at the circuit before it was referred,) describe the rent as in the covenant. My construction of the instrument is, that the defendant was to have one half of the rent that should thereafter accrue, on the premises which had been bargained to be conveyed to Colwell and Scott, What was the yearly rent, or at what time it commenced, does not appear. The defendant states the difference in amount, between a calculation on the basis of the rent as then due, and the rent to become due ; but it is not stated how much was allowed on this account. We cannot, therefore, determine whether injustice has been done by the referees. The objection, then, is merely technical. The defendant has not been surprised. The oyer was a true copy of the covenant, which was given in evidence. On that, the plaintiff relied as the ground for a recovery. It is now the well settled practice, that the court will not allow a formal objection to defeat an action ; but will suffer the party to amend in any stage of the cause. The incl&afion of the court has been to allow the judge attire’ *367trial to amend the pleading objected to, when it was evident that no injury would be sustained by the party making the objection, other than the 'depriving him of the mere formal advantage. Such a course is approved by Bayley, J. in Halhead v. Abrahams, (3 Taunt. 81.) We have not found it necessary, that a single judge should exercise this power. We will apply the remedy even after trial, by allowing amendments in furtherance of justice, as to mistakes arising from clerical errorsprovided, however, that no injury is thereby sustained by the party opposing the amendment. This doctrine is settled by the cases of Lion v. Burtis, (18 John. 510,) and Jansen v. Ostrander, (1 Cowen, 610,) and in o Aereases not reported. In this case, the principle should be applied ; as the defendant has not been deprived of any defence on the merits.
The variance between the oyer and covenant, by inserting “ north east,” in the former, instead of “ east,” as in the original, is not available ; nor was it urged on the argument.
The next variance alleged is, that by the covenant, the defendant was to pay the $1500 in manner following : in the first place, to deduct what the plaintiff owed to the defendant, and the debt the plaintiff owed S'. Scouten, provided he should transfer it; and then the remainder, in three equal annual payments. Upon a close examination of the declaration, I do not find the objection well founded in point of fact. I think it describes the manner of payment substantially, and indeed, almost literally, as in the covenant. If it were otherwise, the only effect would be to impose on the plaintiff the costs of the amendment.
There is another objection for variance, set out in the affidavit of Mr. Parker, one of the attorneys for the defendant ; but as it was not made a point on the argument, I presume it is not relied on.
The last objection is on the merits. In the defendant’s accounts, offered by way of set oft', there is a charge of 106 dollars, advanced the 19th of August, 1818. In explanation of this charge, the plaintiff produced and proved *368a receipt, given by the defendant to the plaintiff, for a note or obligation against Abraham R. Knapp, for 325 dollars, to collect and account for. Upon the receipt was endorsed the sum of 106 dollars received by the plaintiff. It appeared that this was the money charged in the account. For the purpose of showing that the charge was paid, and reducing the balance claimed by the defendant as a set off, the plaintiff proved that Knapp had given six notes to six heirs, of whom the plaintiff was one. The witness testified that he had seen all the notes in the possession of Knapp, the maker; and understood the concern was settled. This was certainly, prima facie, evidence, that the defendant had collected, or parted with the note. Nothing appears to have been offered by the defendant to, resist this inference. In adjusting the account, the referees properly allowed the amount of the receipt as a credit to the plaintiff.
My conclusion is, that, as to the objection well taken for variance, the plaintiff be permitted to amend, on payment of the same costs as if the amendment had been made previous to the hearing of the cause before the referees ; (a) and that the motion to set aside the report of the referees be denied.
Rule accordingly.
This is the amount of costs, allowed on amendments of the like nature, by the English C. P. (Halhead v. Abrahams, 3 Taunt. 81.) When ymendmonts are made at the trial, they are made without costs, (id.)