
    *Cosby Executor of Loudon v. Hite.
    October Term, 1794.
    Amendment of Pleading by One Party — Right of Other. —Where one party is permitted to amend, or amends without leave, the other has a right to plead de novo, whether the new plea be material or not to his defence.
    This was an action on the case brought by the appellant against the appellee in the County Court. The declaration was upon an assumpsit, and the general issue was pleaded. Afterwards, the plaintiff moved the court for leave to amend, by filing a new declaration in trover, which was permitted, and to this the defendant pleaded not guilty. The latter declaration being in many parts of it blank, when the issue was joined, was afterwards filled up by the plaintiff in material parts. The defendant moved that the words thus inserted should be stricken out, which was refused by the court. He then moved, that he might have leave to plead de novo, in which he was also overruled, it appearing (as the record states) that he intended to plead the act of limitations. Verdict and judgment was given for the plaintiff, which was reversed in the District Court, from which the plaintiff below appealed.
    Wickham for the appellant.
    The first objection to the judgment of the County Court will probably be, their refusing to permit the appellee to plead de novo to the new declaration. In answer to this I shall insist that wherever the defendant pleads to a blank declaration, he waves all objection to it on that account, and tacitly consents, that the plaintiff may fill up the blanks as he pleases.
    I shall admit, that in general, where either party has leave to amend their pleadings, the opposite party should also be permitted to plead de novo. But it does not follow as a necessary consequence, that this must happen in all cases. There may be, and certainly are, exceptions from the general rule, as for instance, if the amendment be in form only, and not in substance; if the pleading de novo be unnecessary; if it should be (as it often is) the practice of the court to permit amendments of this sort at any time. In short, if a possible case can happen where an exception from the rule can be warranted, it will be presumed in support of the judgment, unless the facts stated in the record are sufficient to overrule the presumption, and to bring the case within the general rule. Now in this case, the appellee could not possibly be injured by the rejection of his motion, because upon not guilty he might have given any thing in evidence, ’'which could afford him a defence. It is laid down generally, that the only pleas in trover are not guilty and a release; but it is also said by lord Holt, that a release may be given in evidence upon the general issue. Of course, the appellee’s only view was to produce delay by the amendment asked for, since he might have defended himself upon the plea of not guilty, as completely after, as before the blanks were filled up; and surely, if the motion made by him, vías merely for the purpose of delay, the court were not bound to grant it.
    Marshall for the appellee.
    I shall not ■differ this case from what it would have been, if the motion had been originally made by the appellant to amend his declaration, but I hold it to be a rule without an exception, that where one party is permitted to amend, it is the unquestionable right of the other party to plead de novo. The amendments made in the declaration in this case -were material, since they stated the appellant’s title, and described the thing in dispute. The appellant stakes his right to recover upon the declaration, the defendant his defence upon the plea. It is unequal and unjust to permit one of them to shift his ground, and to hold the other bound by his first plea. The appellee might think the plea first put in a sufficient answer to a blank declaration, knowing that the plaintiff could not recover upon it; otherwise he might have pleaded a release, which I do not agree could be given in evidence on the general issue. I do not positively say that the appellee was injured by the court’s refusing him the liberty of pleading de novo. It is sufficient for me, if it were barely possible that he might have been. Now it appears, that the appellee wished to plead the act of limitations, from which I conjecture that his attorney thought it necessary. I admit it might have been given in evidence, but if the attorney was impressed with a different opinion, it is probable that this ground of defence was entirely lost to the appellee, by the court’s refusing the amendment asked for on his part. It is said, that the amendment was unimportant; if it were, then no good reason can be given for its being refused.
    Wickham in reply.
    Mr., Marshall’s argument might have been proper, before the Inferior Court, where the materiality of the amendment might have been discussed and considered. But since there are exceptions to the general rule, and this record does not state such facts as can enable the court to decide upon the materiality or immateriality of the proposed change in the plea, this court presuming the Inferior Court to have done *'right, until satisfied of the contrary, must conclude that the change was unimportant and intended merely for delay.
    
      
      See monographic note on “Amendments” appended to Sneed v. Coleman, 7 Gratt. 300.
    
   The PRESIDENT

delivered the opinion of the court.

Whatever terms the court might have imposed on the appellee, had he moved to amend, or to plead de novo, the case is quite altered when the motion came from the other side. Equal justice required in that case, that the appellee should be allowed to change his plea, or even to demur if he thought proper, without being subjected to terms. The appellant having amended his declaration without leave, it can only be sustained upon the ground, that if he had moved the court, they would have permitted the amendment to be made. It is therefore to be considered in the same point of view as if the amendment had been made at his motion, and this brings it within the principle above stated.  