
    Armstead Miller, vs. Gideon Steen.
    . plaintiff in sum. pro. staled his demandtobeon a note of hand for $35, which was lost; a copy of such note was annexed to the process. On trial, he proved that a payment of $5 had been hade on the note for $35, which was taken up and a new note for $30 given: Non-suit ordered, and, motion to set it aside • and amend, refused.
    
    This Was a sum. pro. in which the plaintiff set out his cause of action in the following words:
    “That Gideon Steen, is indebted to your petitioner in the ■turn of thirty-five dollars and interest, by a note of hand which is •.now lost or mislaid, a copy of which is herewith exhibited.”
    On the back of the process is written; “copy note — Four days after date, Í promise to pay Armstead Miller or order thirty five dollars, for value received, 18th Feb. 181G.”
    his
    fSignedr) “Gideon X Steen,”
    
      The plaintiffs own witnesses proved that five dollars had been paid and'the original note taken up, and a note for thirty dollars given in its stead. The presiding judge held that the testimony did not support the allegation in the process and ordered a rion-suit. Some days after the non-suit was ordered, a motion was made to amend the process, so as to correspond with the proof which had been offered. The presiding judge refused the motion.
    This was a motion to set aside the non-suit on two grounds: 1st. Because the evidence was sufficient to support the case, as the note was lost: 2d. Because if it was not, the plaintiff ought, to have leave to amend.
    
      Herndon, for motion. A. TV. Thompson, contra. >
   The opinion of the Court was delivered by

Mr. Justice Mott.

In this summary mode of proceeding by way of petition, 'the manner of setting out the plaintiff’s cause of action is of but little importance, so that it is done with sufficient precission to be a bar to another action brought for the same cause. If therefore the plaintiff had stated about the amount which he supposed to be due, after having stated that the note, was lost, without attempting to give a copy of the note the evidence offered might have been received. But by the profeit of the note, he had undertaken to prove it as laid; and a recovery in this case would have been no bar- to an action on the true note. The testimony was therefore properly rejected. Leave to amend is so much a matter of discretion, that this court will seldom undertake to control the circuit judge in that respect. A non-suit had been ordered in this case, and the cause was actually out of court. To have suffered the ^party to amend, would have to allow him to substitute a new and distinct cause of action. This court is not disposed to interfere With the opinion of the court below. The motion is refused.

Richardson, Huger, and Johnson, Justices, concurred.  