By the court.
Waties, J.Although I feel very great reluctance to determine any case upon a point of law which concerns .pot the merits of the case ; as it involves great hardship on the party against whom the decision is made, in a case like the present, by being turned back to where he begun, after a tedious attendance pn his suit, and after much expense and trouble about it, in consequence of a mere slip or mistake of counsel in pleading, or an inadvertency in preparing all the requisite proof to evince some circumstance, perhaps npt at all material to the real merits of the cause : yet the authorities, referred to by the defendant’s counsel, are too strong to be got over. I do not feel myself at liberty .to contradict the opinion of a judge of so much wisdom and liberality as Lord Mansfield, who was never indulgent to objections of .mere form, and ever was careful to examine exceptions which seemed more nice than useful, and bring them to the test of reason and sound sense. He has decided that a variance like the present is fatal; and his reasoning seems to bo conclusive, I am, therefore, hound to decide that there ought to be a nonsuit.
The plaintiffs acquiesced in this decision,