The opinion of the court was delivered by
Barrett, J.It is the office of the specification to define the ground of recovery which the plaintiff proposes to maintain by evidence to be offered on his part. But we do not understand that such specification precludes his right of recovery upon a cause of aetion set forth in the declaration, and which would be proper matter for a specification, and growing out of the subject-matter of the specification actually filed, if, as in this case, the defendant confesses in open court, and on trial, such cause of action. The purpose of making the specification, is to prevent surprise to the defendant, and to enable him to prepare to meet by evidence or otherwise the specified cause of action. The defendant does not need to be protected in this manner, in respect to a ground of recovery which he is ready to confess and does confess voluntarily on the trial. The case of Williams v. Allen, 7 Cow. 316, and the learned note of the reporter, seem fully to sustain this view. Lapham v. Briggs, cited by defendant’s counsel, is consistent with it, and indeed, none of the cases are adverse to it.
Plaintiff’s counsel did not make a point on the exception taken to the refusal of the court to allow him to amend the specification, *40so we content ourselves with saying that ordinarily, and especially in this case, such proposal of amendment rests in the discretion of the court, and is not the subject of exception.
Judgment reversed.