
    Wm. H. Wilbanks vs. R. Willis.
    
    Plaintiff in. sum. pro, will not be permitted to amend bis process, Unless by consent, after the evidence has been heard.
    A plaintiff will not be permitted, by amendment, to change the form of his action.
    
      Before Wardlaw, J. at Spartanburg, Spring Term, 1845.
    Upon the trial of this sum. pro. the evidence shewed a deceitful misrepresentation, but not a warranty. No reference had been made to the process in the course of a tedious examination of many witnesses. In the argument, the defendant insisted that the plaintiff should fail, because the allegation in the process was of a warranty, and not of a deceit. His Honor asked whether the defendant had not offered all the testimony he could adduce upon the case to meet any form of allegation; and it being acknowledged that he was not at all surprised by the course the case had taken, he thought it better that the case should be decided after the full trial that had been had, than that there should be delay and expense because of an erroneous allegation which had not served to mislead — and so he directed the plaintiff to amend his process, and gave a decree for him.
    The defendant appealed, on the ground of error in the presiding Judge, in permitting the plaintiff to amend.
    
      Leitner, for the motion,
    referred to the several statutes of jeofaile, and submitted that a party cannot be allowed, by amendment, to change the form of his action. Here the form of action was assumpsit, the change was to case.
    
      H. H. Thomson, contra.
   Curia, per Richardson, J.

In the case of Glenn vs. McCullough, 2 McC. 212, it was decided, that after the case had gone to the jury, it was too late to amend the declaration, unless by consent of the opposite counsel. That case decides the one before the court. The evidence had been all heard when the motion was made to amend the process.

This motion came too late. Such a practice would surprise the opposite party.

Here, too, the amendment entirely changed' the nature of the action; that is, from an action of assumpsit on an implied warranty, to an action on the case for deceit or fraud. This would be an amendment to give a different action, which might require very different evidence.

The motion to reverse the decision, is, therefore, granted, and a new trial ordered.

O’Neall, Evans, Butler and Frost, 33. (foncurred..  