
    Best and Another v. Powers.
    Where an action is tried before a Justice of the Peace, and judgment rendered, and appeal taken to the Circuit Court, and in tbe latter, without leave, the plaintiff inserts a material amendment in his complaint, such amendment can constitute no part of the. complaint, and the Court should, on proper application, instruct the jury to allow nothing under it.
    APPEAL from the Howard Circuit Court.
   Per Curiam.

In the Circuit Court, without leave, the plaintiff amended his complaint, by inserting a demand for money paid. The defendants were not aware of the amendment till some progress had been made in the argument of the cause, and did not, therefore, meet it by evidence on the trial. Some of the plaintiff’s evidence tended to prove the demand, and it is not clear but that the jury allowed it, or a. part of it.

The defendants asked a new trial, supported by affidavits, on the ground of surprise, and that the claim alleged was utterly groundless.

The amendment was no part of the complaint, and the Court should have, upon application, told the jury to allow nothing under it. Such was the course the defendants’ counsel should have taken; but, considering the manner (which we will not describe) in which it would seem that the amendment must have been made, and the surprise and embarrassment it produced, it is, perhaps, somewhat excusable, if counsel were thrown off their guard as to the course to be pursued, at the moment.

B. Vaile and N. B. Linsday, for the appellants.

J. W. Bobinson, for the appellee.

We incline, in this case, to give a new trial.

The judgment is reversed, with costs. Cause remanded for a new trial.

Note.—This action originated before a Justice of the Peace, as indicated in the syllabus.  