
    * Jonathan Parker, Executor, Plaintiff in Review, and Original Plaintiff, versus Ebenezer Parker.
    In an action commenced before the statute of 1817, c. 63, the plaintiff, believing at the trial that he had a better remedy for the sum demanded in two counts of his declaration, had leave to amend by striking out those counts. They were not in fact cancelled, although the leave was entered of record. He had judgment on his remaining count, and afterwards, failing of the other remedy, reviewed the first action, and had leave to restore those counts, and upon them recovered judgment.
    The declaration in the original action contained three counts. The first was on a promissory note, given by the defendant to David Parker, the plaintiff’s testator, for 1739 dollars, 50 cents. The second was for 214 dollars, 38 cents, had and received by the defendant to the use of the testator; and the third was for a like sum lent by the testator to the defendant.
    The original action was tried in this Court, and the plaintiff had a verdict on the first count. The second and third counts were both for one and the same cause of action; and it being thought, during that trial, that the plaintiff could not recover, in this form of action, the money demanded in those two counts, and that he had a more appropriate remedy therefor, he had leave to amend by striking out those two counts.
    The counts were not actually erased from the declaration, but were left on the record, with the order for striking them out. When the cause came on to be tried upon this review, before Jackson, J., at the last March term at Concord, the plaintiff moved to amend the declaration by inserting those two counts anew, or to rescind the order which was made for striking them out. The judge had doubts whether the motion could be granted in either of these forms ; but for the purpose of proceeding in the trial, he allowed the motion, reserving the question for the consideration of the whole Court.
    The facts relied on by the plaintiff were substantially the same as those stated in the preceding action of covenant broken, and which was then pending between the same parties.
    *The defendant’s counsel objected that the plaintiff was [ * 377 ] not entitled to recover on these facts, if true; and they also objected to any evidence, to show that a note had not been given, as expressed in the deed, upon which the former action was brought. But such evidence was admitted, and left to the jury, with directions to find a verdict for the plaintiff, if they were satisfied that the 214 dollars, 38 cents, were so advanced by the testate , upon a contract, which the parties then intended to execute, but which was never completed, in the manner set forth in the report of the former action. A verdict being returned for the plaintiff, the defendant moved for a new trial, on account of the said opinion and direction of the judge.
    
      Stearns, for the defendant,
    contended, that it was beyond the power of the Court to authorize the insertion of the counts which had been stricken out of the declaration. When leave is g'l en to strike out one or more counts, the effect is the same as if they were immediately cancelled. It is owing to the mere negligence of the party, if they are not so cancelled. And it is laid down by this Court, in the case of Prescott vs. Tufts & Al. 
      , that “ when a count is struck out of the declaration by leave of the Court, the declaration must afterwards be considered as if the count struck out had never been introduced.” Suppose the plaintiff, instead of reviewing his action, had commenced a new one for the cause of action in those two counts, could the defendant have availed himself of them, as still making part of the record in the former action ? If those counts were considered as stricken out, the granting of the motion to amend in this case by reinserting them, was prohibited by the ninth rule of court established by this Court, March term, 1820 , which disallows any amendment which is not for the same cause of action. The statute of 1817, c. 63, has no application to this question, the present action having been originally commenced before the passing of that statute. The object of the plaintiff is to avoid the statute of [ * 378 ] * limitations, which would bar a new action. But amendments are never granted to aid a party against the operation of that statute .
    Further, there was no cause of review in this case. The plaintiff had judgment for his utmost demand, exclusive of the cause alleged in the two counts, which were then out of the case.
    It is conceded, on our part, that if the mortgage deed is a mere nullity, we cannot object to the plaintiff’s recovery, provided he has a right to avail himself of those two counts, as in the declaration. But it is apprehended that the deed is not to be considered as null and void to every purpose.
    
      Hoar, for the plaintiff.
    This is not a new cause of action, but merely a restoration of the record to its original state ; so that the rule of the Court referred to does not apply. These counts are for a cause of action which the plaintiff at no time intended to relinquish. They were in fact stricken out at the suggestion of the judge who sat in the former trial. The whole cause and object of the defendant’s opposition to the restoration of them, is, that the plaintiff may be barred by the statute of limitations, of the recovery of a just demand, for which, too, he instituted a suit in proper season.
    
      
       4 Mass. Rep. 147
    
    
      
       16 Mass. Rep. 373.
    
    
      
       4 Yates’s Rep. 511
    
   Parker, C. J.,

delivered the opinion of the Court.

The reason of striking out the two counts was a supposition, which was sanctioned by the judge, that the plaintiff had a different remedy, viz., by action of covenant for the sum claimed in those counts. A suit was afterwards commenced on the covenant, and was defended on the ground, among other things, that the deed containing the covenant was incomplete, and had no legal effect; and it has now been so determined by the Court. The plaintiff, in the mean time, apprehending that such would be the decision of the Court, sought relief by a petition for a review of the first action; and the petition being granted, this astion of review was instituted. On the trial, the plaintiff moved to * restore the same two counts, and this was ordered by [ * 379 ] the judge, reserving to the defendant a right to object before the whole Court; and he now objects, on the ground that the counts added are for another and different cause of action from that contained in the first count.

It is certain that, unless the present case forms an exception to the general rule relating to amendments, the objection must prevail. But we think the circumstances of the case warrant the amendment, without in any degree infringing the rule. The object of the review was to try the former action, as it was when commenced. It must have been understood that the only subject of dispute was that contained in the counts stricken out. If the cause, when reviewed, was to be tried only on the first count, the review was but a mockery ; for the plaintiff had nothing more to ask for, under that count. The effect of the amendment is merely to restore the parties to the situation they were in before, through misapprehension, these counts were stricken out. It is to correct a mistake, by which the plaintiff has been prejudiced; and it would be doing manifest injustice to refuse his motion, when the effect would be to deprive him of a considerable sum of money, which he had a legal right to recover, and was prevented only by a mistaken opinion entertained at the time.

We think the counts ought to stand; and there is no question, but what the plaintiff has made out his case under them; it appearing that the sum demanded was lent with an intention to secure the repayment of it by mortgage, and that security having failed ■ for the reasons stated in the former action . Judgment on the verdict 
      
       [It is difficult to see on what principle, after the plaintiff had voluntarily consented, whether by the advice of the judge or not, to strike out any part of hi» declaration, he could be allowed to restore it.—Ed.]
     