for the Plaintiff there, permitted the declaration to be amended by the writ, after the Jury had been fworn; and then had the Jury fworn again, and received their verdict, without confent, without giving the Defendant liberty to plead anew, and without an imparlance, or awarding the payment of cofts by the Plaintiff.
In fupport of this objection, it has been urged, that the amendment was an alteration in fubftance, and changed the nature of the defence ; that there is no precedent of fuch an amendment after the Jury was fworn, therefore, it is hoped, that the Court will not enlarge the precedents of the amendments, by making a new one ; and that the Court below had no power to difcharge the Jury after fworn, without confent ; or , if they had, that they ought to have granted an imparlance. Stiles' Pract. Reg. 45. 49. Salk. 47. 3Lev. 347. Carth. 465. 2Black. Rep. 785. 2Stra. 890. Fitz. 193. 3Bac. Abr. 236. Gilb. Pract. C.P. 79. 80.
On the other fide, it was infifted, that the amendment was only to make the declaration conformable to the writ ; that the merits came before the Jury, and the caufe was fairly tried ; and that fuch an amdendment may be made at any time. 3 Black.Com. 406. Conyngh. Rep. 43. 2 Bur. 756. 5 Burr. 2834. 3 Lev. 347. Sir T. Raym 53. 4 Burr. 2569. Cowp. 841. 1 Wilʃ. 7. 4. Bac. Abr. 30. Comb. 13. 2 Vin. Abr. 326.
The Court would willingly fupport this proceeding, if they legally could ; for, they are no friends to exceptions like the prefent, where the merits have been fairly tried. But we can find no cafe, or opinion, to favor it in all its parts. I have met with but one, which mentions, that “ after a Jury fworn, fometimes a Juror is withdrawn, on purpofe that there may be an amendment, if it be not entered upon record.” This cafe was not mentioned at the bar, but is reported in Comberbach 419. Rex v. Edwards.
Suppofe, however, that the Court had given the Plaintiff leave to make the amendment before the trial, which they might unqueftionably have done, as the nature of the action was not thereby changed ; yet, it was in the election of the Defendant, either to take cofts of the Plaintiff, or to impart to the the next term ; for, he had a right to advife upon a plea fitting the declaration fo amended ; or, if the amendment did not, in his opinion, require an alteration of the plea, he might take the cofts, and enter the fame plea immediately. At all events, I think, he ought to have been allowed, if he pleafed, to plead again after the amendment, and fo join a new iffue. 1 Lill. Abr. 70. d. 71. a. Comb. 58. 2 Stra. 950. And I have found two cafes in Judge Jenkins's Centuries, in which it is held, that a Jury difcharged before the verdict, fhall not be charge again, but there muft be a new venire ƒacias. Jenk. Cent. 6. ca. 9. Ibid. 283. ca. 13.
Since, then, the facts relating to the amendment appear upon the record, I am of opinion, that the proceeding of the Court below was erroneous : And this judgment, alfo, ought, therefore, to be reverfed.
