
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1809.
    Kelly v. Downing.
    If a judge’s order be obtained to amend a declaration, the plaintiff will not be thereby authorized to withdraw the old, and file a new declaration ; but the amendment must be strictly pursuant to the order.
    Motion from Edgefield district, to quash the proceedings for irregularity, and for a new trial. Action of slander, tried before Smith, J. Some time before the trial, on motion before Waties, J., the plaintiff obtained leave to amend his declaration, “ by inserting therein an'averment, that a certain writing declared on was published, concerning the plaintiff in his character, trade, and profession, of a merchant, and dealer in cotton.” After obtaining such leave the plaintiff filed another declaration, which contained the matter set forth in his former declaration, and in addition thereto an entire new count, into which the averment was inserted, for the insertion of which, leave had been granted. Upon inspection of both declarations, it appeared that the second was not a transcript of the first, with the addition of the averment, which might have been easily introduced into it, but was a different declaration in many respects; and the new count, which was totally different from any count in the old declaration, to which it was tacked by way of amendment, was introduced by a colloquium, between one Patrick Kelly and the defendant, respecting Hobby’s paper, published in Augusta, which contained the slander in question. In the District Court, the question arose about docketing the cause for trial, which involved the question as to the propriety of substituting the new, or amended declaration.
    Smith, J., being of opinion the intent of the order for amendment was substantially complied with, ruled the parties to trial on the new, or amended declaration, although the defendant had not pleaded thereto. The pleas to the former declaration was considered as pleas to the substituted, or amended declaration, as the defendant had been ruled to plead after the second declaration was filed, and had not.
    Verdict for the plaintiff.
    Simkins, in support of the motion,
    argued, that the questions before the court were purely legal, arising on the face of the pro. eeedings, including the judge’s order to amend; and that under the order to amead, tbe plaintiff was not authorized to substitute a new declaration. He cited, in the course of his argument, Tidds1 Pract. 147. Sellon, 109. 6 Com. Dig. 10, 1 Com. Dig. 480. 2 Esp. Dig. 514. Morg. V. M. 142. 7 D. and E. 55. Tidd, 243. The new declaration was treated as a nullity. The objection to it could not be considered as waived, as no plea was filed to it. The former plea could only be considered as applying to the old decía-ration. Tidd, 136. 1 Sellon, 293. 1 D. and E. 748.
    Dozier, contra.
    
    The amended declaration was within the spirit of the order for amendment. After two terms, a new count may be added by leave of the court. Tidd, 653. As such new count cannot be embodied in the old declaration, a new declaration must, from necessity, be filed. This was done here. Whatever is not sanctioned, by the order for amendment, may be rejected as sur-plusage ; and surplusage does not vitiate. 1 Com. Dig. 465. The averment could not be properly inserted, without the help of a colloquium. As to the objection, that the defendant had not pleaded to issue, the fault was his. He might have pleaded anew, or stood on his old plea. As he did not plead anew, the plaintiff was authorized to consider his old plea as pleas to the amended declaration. Tidd 563,653. 8 D. and E. 47. Tidd 504,463. 4 Burr-1569, 6. Nott, on the same side.
    Goodwin, in reply,
    was stopped by court.
   April 29.

Brevard, J.,

delivered the opinion of the court. The judge’s order, giving the plaintiff leave to amend his declaration, by the insertion of an averment, that the writing declared on was published concerning the plaintiff, in his character or profession of a merchant and dealer in cotton, did not authorize the substitution of a new declaration, materially variant in other respects, besides that relating to the averment, from the original declaration. If the old declaration had been copied, and no other alteration had been made, but that which was authorized by the judge’s order, it might have been considered as the same declaration, amended pursuant to the order. Or if the averment had been introduced in the proper place in the old declaration-, the determination, in the District Court,' would have been right. The former pleas might have been applied to the declaration as amended, unless the defendant bad chosen to plead anew. But the plaintiff, under color of leave to amend his declaration, took the liberty to put in a new declaration, materially different from that which he had leave to amend, and without any shadow of authority from the judge, who gave the order granting leave to amend. The question,, which arose in the ®*s*:r*c*; Court, brought the question respecting the regularity and, propriety of substituting the new declaration, by way of amend» ment of the old, fairly before the court; and we are of opinion, the District Court erred in not setting aside the new declaration, as irregular. The court might have suffered the plaintiff to amend, in conformity to the judge’s order, or have ordered on the trial on the old declaration, without such amendment; in either case, the pleas filed to the old declaration, might have been considered as regular. But the defendant’s having refused, or omitted, to plead to the new declaration, ought not to have been construed into a waiver of his right to plead anew, and taken to apply to the new declaration. It is therefore ordered, that the verdict be set aside ; and that the new declaration be set aside for irregularity. That the plaintiff have leave to amend his original declaration, by inserting therein the averment authorized by the judge’s order; and that the defend* ant have leave to plead anew to the declaration, when amended.  