
    
      Oliver Simpson ads. The President and Directors of the Bank of the State of South Carolina.
    
    1. In an action against bail, it appeared that in the original action against the principal and others, the verdict was for a gross sum, nothing being said about interest; but the execution directed the sheriff to collect interest. In the declaration against the bail, the attorney was led into an error by the execution, in reciting the judgment. At an early period of the term, and some days before the case was called for trial, a motion was made for leave to amend, so as to describe the record correctly, and opposed; not on the ground that it would delay the trial, but that the effect of the amendment would be to deprive the defendant of an opportunity of nonsuiting the plaintiffs, and of driving them to a new action, which would have given further time to surrender the principal. Motion granted.
    
      Before Evans, J. at Edgefield, Fall Term, 1843.
    This was an action against Simpson, as the bail of one Wiley Milton. In the original action against Milton and others, the verdict was for a gross sum, without any thing said about interest. In the execution, the sheriff was directed to collect interest. In the declaration in this case, against Simpson, the attorney, Mr. Griffin, stated that he had been misled by the execution, into a misrecital of the judgment. At an early day in the term, and before the case was called for trial, a motion was made for leave to amend, by adding a count, so as to describe the record correctly. This was objected to, and both parties submitted the subjoined affidavits. After some days consideration, the presiding Judge granted the motion. The question of costs was not mentioned, or thought of, and his Honor after-wards offered to amend the order, that the plaintiff pay all costs up to the amendment.
    
      Soutpi-Carolina — Edgefield District.
    
    Lewis Ellzey makes oath before me, that Wiley Milton, at the time he became one of the securities of George W. Mayson, to the Bank of the State of South Carolina, was in possession, as owner, of a very considerable estate, and was believed to be entirely solvent; that said Milton retained possession of his estate until after the recovery in the case of the said Bank against him; that in May, 1840, his lands and mills, and some personal property, were sold by the sheriff, under liens older than thatjti. fa. of the Bank. That the said Milton lived from the time of the recovery of the Bank against him, within three miles or thereabouts of Oliver Simpson, and remained in the State, and at the same place, for about one year after the Bank had recovered judgment against him.
    The deponent swears that Eli Milton, and John B. Covington, two other of said Mayson’s securities, are believed to have been insolvent at the time that the Bank recovered judgments against the said securities. This deponent further swears, that the said Wiley Milton had other property besides that which was sold as above stated, which was supposed to be removed privately from the State. That the said Wiley Milton was on terms of confidence and intimacy with the said Oliver Simpson.
    LEWIS ELLZEY.
    Sworn to before me, 9th October, 1843.
    N. L. GRIFFIN, N. P.
    
      The President and Directors of the Bank of the State of South Carolina vs. Oliver Simpson.
    
    The defendant, Oliver Simpson, being sworn, on oath says, that the writ in the above case was served upon him, by leaving a copy at his residence when this defendant was absent from this State in North Carolina, and that he did not return home until a short time before the sitting, and after the return day, of the court to which the writ was returnable, that is to say, about one week before court. ,
    That Wiley Milton, for whom it is alleged this defendant stood bail, remained in this district a considerable length of time, say about ten or twelve months after the judgment was recovered against him by the Bank; that his property was sold off by the sheriff of this district, and he left here largely indebted upon older judgments than the said Bank’s judgment, and was regarded and estimated as being totally insolvent, and removed to Alabama, where he was residing at the time the writ in the above case was served on this defendant.
    The deponent, upon returning home from North Carolina, did not knoyr where the residence of the said Wiley Milton ivas, bjit upon ascertaining it, he went on to Alabama, brought him here and offered to deliver him to the sheriff, who, after receiving, refused to detain him, as the court had passed to which the writ was returnable.
    OLIVER SIMPSON.
    Sworn to before me, 8th October, 1843.
    GEO. POPE, C. C. P.
    
      The President and Directors of the Bank of the State, assignees, vs. Oliver Simpson.
    
    Personally appeared before me, J. D. Nance, who being first duly sworn, deposes, that Wiley- Milton carried off from this State no property or effects of his own, as this deponent verily and confidently believes, except about twenty or twenty-five dollars, nearly the whole of which was given him in charity, by G. H. Taylor, James Purvis, and Calvin Willey, to enable him to pay his travelling expences to Alabama; that the sum of ten dollars was given by the said G. H. Taylor to this deponent to be handed to the said Milton, and this deponent is informed and believes that similar but smaller contributions were made to the said Milton, by the said Purvis Willey; that this deponent was familiarly and intimately connected with the business of the said Milton, having been employed, by him as his agent, for several years ; that the said Milton and his family resided with this deponent for more than six months, immediately preceding his departure from the State; and that during all this time, the necessaries of their food and clothing were furnished and provided them by this deponent; and that previously to this time, every article of visible property belonging to the said Milton, except one bed and its furniture, was sold under executions and mortgages against said Milton; that no property or effects of the said Milton were ever removed to Union district, except a wagon and mules, which were sold and applied to his, Milton’s, debts; and that the other property there carried and charged to be Milton’s, consisting of a lot of cotton gins, were, in truth, the property of this deponent, and were recovered by this deponent in an action against Major B. Johnson^ the sheriff of that district, who had levied upon and sold them, by virtue of 'an execution against the said Milton and Robert Mathis, at the suit of John S. Jeter, Esq. of this (Edgefield) district; and that the said Milton could not have removed from this State any property or effects of a visible nature, without its being known to this deponent.
    This deponent further swears, that within less than ten days immediately preceding the departure of the said Milton from this State, he, the said deponent, saw in the possession of the said Milton, a letter purporting to be from Charles Lamar, one of the securities of G. W. Mayson, in his bond to the Bank of the State, forewarning the said Milton, that if within ten days from the date of said letter, he (the said Milton,) did not pay a certain debt, for which the said Lamar was his surety, he, Lamar, would kill him, (the said Milton ;) that the said Milton did leave the State upon the expiration of the ten days assigned to him by Lamar, and that without his (Milton’s) family, and that this deponent believes that the departure of the said Milton from the State was hastened by the said threat of Lamar.
    J. D. NANCE.
    Sworn to before me, this 10th Oct. 1843.
    GEO. POPE, C. C. P.
    
      Oliver Simpson ads. The President and Directors of the Bank of the State of South-Carolina.
    
    Oliver Sirnpson, being duly sworn, deposes further, that he had ho knowledge or intimation of the existence of the ca. sa. issued against Wiley Milton, in the case of the President and Dilectors of the Bank of the State of South Carolina against said Milton, until the copy of the writ of capias ad respondendum, in the first above stated case was handed to him (Simpson) by a negro slave of his, after his return from North Carolina; and that during his absence from the State, in North Carolina, this deponent had left no agent to represent him or attend to such matters of business in his behalf.
    OLIVER SIMPSON.
    Sworn to before me, this 10th October, 1843.
    GEO. POPE, C. C. P.
    The defehclaht appealed from the decision of his Honor Judge Evans, granting to the plaintiffs leave to amend their declaration, upon the grounds:
    1. That it is contrary to law, and the practiceof this court, after a cause had been three times on the docket, and upon being called for trial, as was the case here* to grant leave to the plaintiffs to amend their declaration, so as to avoid the effect of a plea in bar, viz: “nul tiel record,” whereon issue had been formally joined, when the result of such amendment may, and will, be to fix the defendant’s liability as bail, and deprive him of the right of surrendering his principal, which he would have upon the commencement of a second action, and which right of surrender he had had no fair opportunity of exercising, between the issuing of the capias ad respondendum, and the last day of the term to which the same was returnable, in consequence of his temporary absence from the State.
    2. That such an order, at such a stage of the proceedings, ought not to have been granted in any event, even upon a meritorious application, except upon condition of payment of the costs by the plaintiffs.
    
      Bauskett and Carroll, for the motion,
    cited 2 Burrows, 756; also, Collins vs. Gibbes, 8 Mass. Rep.
    
      Griffin and Burt, contra,
    cited 2 Hill Rep. 626; Harper’s Rep. 400 ; 4 McCord, 175 ; 2 Mills’ Con. Rep. 261.
   Curia, per

Evans, J.

Until judgment is rendered, it is usual to allow either party to amend, and the propriety of allowing amendments must, in general, be confided to the discretion of the circuit Judge. The only limitation to his authority, if it can be called a limitation, seems to be, that he shall notallow amendments, when they operate to delay or surprize the other party. If this case had been continued before the leave to amend was granted, then it is not pretended that the court ought not to have allowed the amendment, because then the defendant would have been neither delayed nor surprized. It would have been exactly the case of Jenkins vs. Hutchinson, 2 Hill, 626. In the case before us, the motion to amend was made some days before the case was called for trial. It was not opposed on the ground that the defendant would be delayed in the trial of the case. The amendment allowed was not intended to operate as a delay of the trial of the case, and could only have that effect by the refusal of the defendant to plead to the amended declaration. The only ground of opposition to the motion was, that it would have the effect of curing' an accidental variance between the judgment and the declaration, and thus deprive the defendant of the opportunity of nonsuiting the plaintiff and driving him to a new action, which would give the defendant further time to .surrender Milton, for whom he was bail.

The object of every application to amend, is to supply some defect in the pleading, and if it were a sufficient reason to refuse the application, that the adverse party would be deprived of the benefit of this error, no amendment would ever be allowed. The motion is dismissed.

O’Neall, Butlér and Wardlaw, J J. concurred.

Richardson, J. concurred in the opinion, but was indisposed when it was signed!  