
    *Jude, Ex’r v. Syme.
    [June Term, 1790.]
    Pleading and Practice — Amendment of Declaration - - Discretion of Court — Case at Bar. — The case was submitted to the jury, who not agreeing, a juror was by consent withdrawn. In this stage of the proceedings, the plaintiff was permitted to amend his declaration, the cause being in paper, notwithstanding the jury had been sworn, as no verdict was rendered ; during which time, amendments, in favor of justice, are within the discretion of the Court,
    
      
      The principal case is approved in Fisher v. Camp, 26 W. Va. 580.
    
   This was an appeal from a judgment rendered by the District Court. The executors of John Jude, deceased, had instituted a suit in the General Court, on a special contract, in writing, between their testator and John Syme, for the delivery of the crop of wheat of a particular year. Upon the trial it appeared that the contract was satisfied; but that the crop of another year had been delivered, without any special agreement. The evidence was not excepted to by the counsel for the defendant, but was permitted to go to the jury; who could not agree, and a juror was, by consent, withdrawn. A motion was made to amend the declaration; on which the court was divided, and the motion fell. The cause was then, among others, transferred by the act of Assembly to the District Court, where the motion to amend the declaration, by adding a new count, was renewed, and was granted. The count was added, and the defendant plead de novo. This amendment, after a jury had been sworn in the cause, was assigned as error; but the court was unanimously of opinion that it was not error, and that the cause was in paper notwithstanding the jury had been sworn, as no verdict was rendered ; during which time amendments, in favour of justice, were within the discretion of the court.  