
    Enoch G. Bean, Pl’ff in Error, vs. James Moore, et al., Def’ts in Error.
    The power, given to the Courts, by the Statutes, relating to amende merits of ptopess, pleadings and proceedings, before Judgment, is not mandatory, but rests in the sound discretion of tho Court to grant or refuse applications made under it.
    The decision of a Judge, upon such an application Is' not strictly a matter subject to a writ of Error, and it Í3-only in cases of markod abuse of discretion ,jn rejecting or allowing such, -.application, that this Court would entertain the .question.
    Where after the cause has boon called, and the Jury sworn, the Piaintiif makes a motion to amend his declaration, and the Judge overrules it, it is not-an abuse of discretion of which the Court will take notice.
    The sound exorcise of discretipn _ touching amendments, is judged of by the peculiarity of each distinctive case. :
    Error to the Portage Circuit Court..
    This was an. action of assumpsit. At the circuit, and before the cause w-as reached, the plaintiff's Attorney made a motion for leave to-amend his declaration. by entering a discontinuance as to one of the defendants, which motion.was granted. After the granting of thi^.motion the parties declared themselves ready for the trial of the causé1, ami á Júry was émpannelled and sworn for that purpose. The Plaintiff then made a motion, further to amend thé declaration by adding a new special count. Th'é motion wa's overruled by the Judge, and thereupon the plaintiff submitted to a nonsuit upon the qualification that if the Coúrt should, upon writ of error, reverse the decision of the Judge, in denying the niotion to amend, then the nonsuit should be set aside or waived, and the cause be triéd. The plaintiff thén took an exception to the ruling of the Judge in denying the motion, further íó aménd, and the cáse comes here upon such éxception.
    
      M. M. Strong, for Pi’ff in Error.
    
      Collins Mien-, for Def’ts in Error
   By the Court.

~Whiton; j.

The plain tiff in this cánse’, after the trial had begun, moved for leave to amend his declaration by adding a special count. This was refused-, and thereupon he subrhitted to á nonsuit, subject to thé 'opinion of this Court.

The power is given by our Statute of amendments to the Court, to amend any process, pleadings or proceedings, at any time before judgment, for the furtherance of justice. The Statute is in no sense mandatory; nor is any absolúté right secured to parties litigant. The power i's wisely given to the Court, for the benefit of suitors; and for the dispatch of business, to be exercised within its sound discretion.

Hence, the ruling in this eáúse is not strictly a matter Subject to a writ of error; and it is only in cases of marked abuse of discretion, that this Court will entertain such k question. ”

Whether leave should be given to amend, must depend upon the circumstances of each case; for no rule can be laid down which will be applicable to every case in Court.

Judgment affirmed.  