
    Downer vs. Thompson.
    A plaintiff who has been nonsuited at the circuit on the ground that the declaration contained no count adapted to the nature of his case, will not be allowed to amend by adding a new count, except upon condition of paying all costs subsequent to the plea.
    The plaintiff, having been nonsuited at the circuit, made an unsuccessful application for a new trial, and judgment was rendered against him. He removed the cause into the court of errors, where the judgment was reversed, and a venire de 
      
      novo ordered, with costs in error to abide the event. Afterwards, he applied for leave to amend his declaration, by adding a new count, and the application was lefused, except upon condition of his paying all costs in this court subsequent to the plea, and relinquishing his contingent right to the costs in error.
    The declaration contained counts for goods bargained and sold and goods sold and delivered. At the trial, the plaintiff was nonsuited on the ground that the proof did not support either of the counts. He aftewards moved for a new trial, which was denied; and it was said in the course of the opinion then delivered that no action would lie unless it were a special assumpsit for not accepting the goods. (See 2 Hill, 137.) The-plaintiff thereupon removed the cause into the court for the correction of errors, where the judgment of this court was reversed, and a venire de novo ordered, with directions that the costs of the plaintiff in the court for the correction of errors abide the event of the suit. (See ante, p. 208.)
    
      W. McCall & M. T. Reynolds,
    
    for the plaintiff, now moved for leave to amend the declaration by adding special counts for not accepting the goods. They said that no terms should be imposed beyond paying the costs of this motion.
    
      H A. Foster, for the defendant,
    referred to the case of Hamilton College v. Stewart, where, under circumstances nearly the same, the plaintiffs were required to pay all the costs subsequent to the plea, as a condition of allowing them to amend the declaration.
   By the Court, .Bronson, J.

Where on the trial there is a question of variance as to names, dates, amounts, or the like, which is not calculated to mislead the defendant, the judge usually overrules the objection, and the plaintiff, is afterwards allowed to amend on very easy terms. But this was not a mere question of variance. The plaintiff was nonsuited because he had no count in the declaration adapted to his evidence; and we thought the nonsuit was properly ordered. If the plaintiff had then asked for leave to add new counts, the amendment would have been equivalent to bringing a new action. To allow such an amendment without imposing terms, would be to subject the defendant to the peril of losing the costs to which he was already entitled; and the further peril of paying the costs of an action which had already been successfully defended. It was for this reason that the plaintiffs were required' to pay all the costs in the manuscript case to which the counsel has referred. Here, there is a further reason for imposing terms, for the plaintiff’s costs in the court of errors are to abide the event of the suit. It is said that our judgment was reversed on the ground that there was evidence enough to carry the cause to the jury on the declaration as it now is. If the plaintiff is of that opinion, and is content to go to trial without an amendment, the parties will meet on equal terms, and one or the other will be charged with the costs of the whole litigation. But if we allow the plaintiff to make a new declaration by way of amending the old one, it may have the effect of throwing all the costs in both courts up to this time upon the defendant; when, without the amendment, those costs might fall upon the plaintiff. I do not see how we can do more than to allow the addition of the new counts on the plaintiff’s paying the defendant’s costs in this court since the plea, and on his relinquishing the right to costs in the court of errors in the event of his succeeding in the suit.

Ordered accordingly.  