
    Tabb v. Gregory.
    [April, 1792.]
    Pleading and Practice — Declaration — Amendment.— Amendment to the declaration may be allowed, during the trial of tbe issue : but, if the defendant requests it, tbe jury should be discharged : the defendant permitted to amend bis plea, or plead anew, and tbe cause should be continued.
    Same — Transitory Actions — Allegation as to Time.— In transitory actions tbe day is immaterial, and need not be precisely laid in the declaration.
    ■ Gregory brought an action of slander against Tabb. The declaration stated, that the plaintiff was a candidate for the house of delegates; and that the defendant, in order to disappoint his election, spoke the words in the presence of the ^freeholders and others of .the county. The defendant justified. as to some, of the words, and pleaded not guilty as to the rest. General replication to the whole plea, and issue. The declaration when filed, charged the true day of speaking the words, namely, the 14th of April, 1789; and so it remained, until the jury were about to be sworn, when, the plaintiff’s attorney, at the instance of his client, altered the day of speaking the words, from 1789 to 1788. Upon the trial of the cause, the evidence shewed that the words were spoken in 1789, as the declaration had, at first, charged; and thereupon, the plaintiff’s counsel moved for, and obtained, leave of the court to change the year from 1788 back to 1789, as the declaration originally stood; but the jury were not discharged, or resworn, as the defendant did not ask permission to plead anew, or suggest any inconvenience to him, from the alteration. He excepted, however, to the opinion of the court granting leave to the plaintiff to' make the amendment. Verdict and judgment for the plaintiff. Tabb appealed to this court.
    Marshall for the appellant.
    The court erred in granting leave to the plaintiff to amend the declaration ; for there is a difference between a case like the present, and transitory actions in general; because this was a suit for the loss of the plaintiff’s election in consequence of words said to have been spoken of him during the canvass; which made the day of speaking them material. For the loss of the election, and not the general reputation of the plaintiff, constituted the git of the action, and gave importance to the year; because the loss must have occurred at the time alleged, or not at all. For i-t could not have happened before the canvass or after the election. This made it essential that the year assumed should agree with the evidence; for without it, the action could not ha.ve been sustained; but the jury must have found for the defendant. It is probable, therefore, that the whole cause depended upon the year set forth in the declaration; and that, without the alteration, *the verdict would have been against the plaintiff. That his own counsel were of that opinion is evident, or they would not have obtained leave to amend. The amendment, therefore, was material; and, if so,1 the court could not grant leave to make it, during the trial of the cause.
    Call, contra.
    The object of amendments is to do justice; and either side may amend, at any time before final judgment, provided it be attended with no injury to the adverse party. 3 Black. Com. 407; 1 Fd. Eaym. 669. Therefore it will be permitted on the eve of the trial, 4 Burr. 2527, or after a verdict: As if, in trover, no conversion be alleged, as to one of the defendants, and the jury find all guilt}’, the declaration will be amended so as to charge the whole, although conversion is the git of the action. 1 Fd. Eaym. 116. And, in ejectment, the term may be lengthened after verdict, judgment, and a writ of error actually brought. Cow’p. 841. These cases go full as far as that before the court, and justify the alteration upon general principles. But the amendment was immaterial; for in slander and other transitory actions, the day is not traversable; and therefore the date laid in the declaration may differ from that proved upon the trial, without any prejudice to the cause. Fitt. 'i 485; Co. Fitt. 282, 283. The year, then, was of no consequence; and the amendment unimportant; for the substance of the issue was, whether the words had been spoken; and not the time when they were uttered.
    
      
      PIeading and Practice — Declaration—Amendment.— In Travis v. Insurance Co., 28 W. Va. 594, it is said : “In Tabb v. Gregory, 4 Call 255, the Court of Appeals held, that an amendment to the declaration may be allowed during the trial of the issue ; but if tbe defendant requests it, the j ury should be discharged, the defendant permitted to amend his plea, or plead anew, and the cause continued. In that case the amendment allowed, was held by the Court of Appeals tobe unnecessary and therefore immaterial, but deeming it important that the practice in such cases should be settled, it took time to consider, and afterwards announced its opinion that the amendment was allowable on principle.” See also, citing the principal case on the question of amendments, Peabody Ins. Co. v. Wilson, 29 W. Va. 538, 2 S. E. Rep. 894. citing also Anderson v. Dudley, 5 Call 529. See monographic note on “Amendments” appended to Snead v. Coleman, 7 Gratt. 300.
    
   MERCER, Judge.

The amendment was probably unnecessary; but the court wilt take time to consider, that the practice, in such cases, may be settled. Cur. adv. vult.

LYONS, Judge

Delivered the resolution of the court as follows:

It appeared to the judges, when this case was argued, that, as the action was transitory, the day was immaterial; *and, therefore, that the alteration had no effect upon the cause; but as it was important that the practice, in such cases should be settled, they took time to consider; and, upon reflection, they are of opinion, that the amendment was allowable, as well upon the ground that the action was transitory, as upon principle.

At common law, amendments seem to have been always readily obtained, at any time before issue, either in law or fact, was joined; or while the proceedings continued in paper, as it is called in England, 1 Salk. 47; but, after the record was made up, and the pleadings were entered on the roll,- there was a reluctance to admit of any alteration, through fear of defacing the record. That rigour has, however, been gradually departed from, until it has become the settled doctrine, that amendments may, at the discretion of the court, be allowed at any time before final judgment, provided they produce no injury to the opposite party. Thus, after issue joined and notice of trial, (notwithstanding the record of the pleadings must then have been made up,) the plaintiff, professedly for the purpose of making the declaration agree with his evidence,' was allowed to amend, although it varied the defence. Fitzgibb. 193. So, after demurrer and argument upon the issue in law, either party will be permitted to amend. Sayer, 316, 317; 3'Wils. 297. The same rule holds after verdict, and a new trial awarded, 2 Stra. 787: And even when the verdict is returned, if there be any thing by which it can be done, or the justice of the case requires it, amendments will be allowed. As where the declaration, in an action upon the bond of the ancestor, omits to charge that the heir is bound, or the term in ejectment expires during the pendence of a writ of error; the omission, in the first case, will, on motion before judgment is entered, be supplied by the bond, 1 Fd. Eaym. 95, and, in the other, the term will be lengthened, Cowp. 841. So that to promote justice on one hand, and prevent injury on the other, seems to be all that is requisite: for, if these can be effected, the amendment, as before remarked, will be granted at any time before final judgment.

*JSTo precedent, from the English books, of an amendment during the trial, is recollected; but the reason is obvious. For thé judge at nisi prius has not authority to give leave to amend, and trials at bar seldom take place ; and whenever they do, the evidence is always previously settled and compared with the pleadings under the inspection of able counsel, who take care, when amendments are required, to stop the cause in time, and not suffer it to proceed to trial until they are obtained: which makes it next to impossible that it should ever be necessary there, to move to amend during the progress of the trial: But, in this country, where the same court, before whom the issue is made up, tries it, and where, the dispersed situation of counsel and other causes prevent the preparation, which takes place in that, such amendments must be allowed, in order to effect justice. Therefore, in the old general court, the practice, in detinue, was, if the declaration demanded several slaves, and upon the trial of the cause there was no evidence as to some, to permit the plaintiff to strike out those, as to whom there was no evidence, and to proceed for the residue: which was an amendment that altered the issue to a certain extent, and comes, very near, to the present case.

The defendant, however, should not be surprized; for if he requests that the jury may be discharged, and that he may be allowed to amend his plea, or file a new one, and have the cause continued, it should be granted. But if he suggests no inconvenience, nor asks to amend or change his plea or that the cause may be continued, there can be no objection to going on with the trial, as was done in this case.

Upon the whole, the court sees no fault in the proceedings; and therefore the judgment is to be affirmed.

N. B. After the judgment was pronounced, Pendleton, president, who was not present at the argument, said that the judges had mentioned the case to him at his chambers; and that he concurred with them in opinion.  