
    Aaron Cates et. al. vs. Thomas T. Cureton.
    
      Leave given to amend, by adding a neio count, after demurred and joinder.
    
    At the spring term of 1824, O’Neal for plaintiff, moved'to add another count to the declaration which had been filed in this casé. Caldwell for defendant, opposed the motion, stating that before the rule to plead had expired, a general demurrer had been put in to the declaration, and to which there was a joinder in demurrer.
   The opinion of the court was delivered, by

Mr. Justice Gantt.

Whilst the proceedings remain in paper, or are in fieri, as it .is termed, that is to say, before they are recorded, amendments are allowable. Str. 11.

and proceedings may be amended;- let them be in what stage they may, and whether in matter of form or substance, provided they are in paper. 2 Burr, 756.

No objection was made on .the ground of the motion having been made after the end of the 2nd. term, if such were' the ■fact. In 1 Wilson, 149, 223, it is said, a plaintiff cannot by way of amending his declaration, after the end of the 2nd. term, add a new count; because it is like a new declaration, and he cannot declare after the 2nd. term- But exceptions to this rule will be found in the English authorities,- one will be seen in Str. 890. The same liberty of amending is given in cases of demurrer, whilst the proceedings are in paper. Salk. 520.

' So a demurrer may be withdrawn and party'be,permitted to plead, and go to issue on the merits; Doug 385; and in 6. D. and E. 173, Steel vs. Sowerby, Lord Mansfield quoted a' case in which the court gave leave to amend after three solemn ar-gumentson demurrer.

O'Neal and Johnson, for motion.

J. J, Caldwell, contra.

Amendments are in the discretion of the court, and when allowed, ought to be upon equitable terms, so that the other side may not be prejudiced; 2nd. Burr. 766; as paying costs, not delaying the adverse part}', giving him time to plead de novo, and the like. Salk. 47; Wils. 7, 223; 3 Salk. 31.

la this case it was ascertained that the cause could not be tried at the term when the motion to amend was made.

The above authorities are deemed sufficient to shew that amendments of the kind allowed on this case are not unusual, but are warranted by established practice.

The motion to reverse the order to amend is refused.

Colcock, Huger, and Johnson, Justices, concurred.  