The Court of Errors reversed the judgment for a defect in one of the counts holding that “in a declaration in an action on the case for a fraudulent representation by means of which- goods are sold on credit, and loss ensues, it must be averred that the representation was made with the intent to deceive and defraud, and that such averment having been omitted, the defect is not even cured by verdict.” But the court, a majority holding the 3d count of the declaration sufficient after verdict, the record was ordered, on reversing the judgment “ to be remitted to the Supreme Court, with liberty to the plaintiff to apply to amend the postea either by the notes of the circuit judge, or by the evidence set forth in the bill of exceptions so as to apply the verdict to the third count and to render judgment thereon ; or in case the court should refuse such leave, then that a new trial be awarded by that court on the application of the plaintiff below, and that he be at liberty to apply to amend his declaration before the awarding of a venire de novo. 11 Wend. 421.