
    J. Righton, Adm’r of Thomas Fullerton, vs. Thomas Sumter, the elder, & Thomas Sumter, the younger.
    It is not a sufficient ground for postponement, that the plaintiff discontinued as to one of the defendants. It is not such an amendment a$ will entitle the defendant to a continuance.
    Tried before Mr, Justice Oolcodc, Sumter Court, Spring Term, 1823.
    THIS was an action brought on a bond signed by Gen. Sumter, for himself and for his son, as his agent. The plaintiff proved the hand writing, and the defendant’s attorney required proof of the agency, (or the special authority, )'to sign this bond. On which, the plaintiff, not being able to prove it, moved for leave to discontinue as to Thomas Sumter, the younger, (whose name had been signed to the bond, by his father,) which the court granted.
    'The defendant then moved for a continuance of the case, on the ground that when an amendment was made after plea, the opposite party had a right to a continuance.
    This was refused.
    It was not made to appear, (nor indeed, could it well be-conceived,) that the remaining defendant would necessarily be obliged to vary his defence.
    A verdict was taken for the plaintiff, against Thomas Sumter, the elder; and a motion, was now made to set aside the -verdict, on the ground that the defendant had a right to a continuance, the plaintiff having been permitted to amend.-
   Mr, Justice Colcocle

delivered the opinion of the court:

This is not an amendment, it is a discontinuance or nolle prosequi, (1 Tidds Practice, 628-6 30, J as to one defendant, which does not necessarily change the defence. Any alteration in the body of the declaration, either in fqrm_or substancey would necessarily require an 9I7 teration in the pleadings, and, then, there may be a necessity for other witnesses, than those who had been subpoenaed, consequently, a good ground of continuance. Here the plea was non est factum, and it was as competent for the remaining defendant to have supported his plea after his co-defendant’s name was stricken from the record, ae it would have been had it remained. There may have been a difference,- but if there was, it is presumable the defendant was not prepared to support it.

Mayrant, for the motion.

J)eSaussure, contra.

The motion is dismissed.

Justices Richardson, Johnson and Huger, concurred,

Mr. Justice Nott:

I concur in this opinion, on the ground that the defendant signed the name of his co-obligor himself as his agent, and on the trial disavowed his agency, and therefore it became his own several bond.  