
    Richard T. Archer and James Watson vs. Volney Stamps.
    The circuit court, upon motion, allowed the names of the parties, for whose use the suit was instituted, and who had no interest in the note sued upon, to be struck out of the writ and declaration. IIeld) that it was an exercise of the discretion given to the circuit courts, under the statute authorizing amendments, which will not be reviewed by this court.
    This was an action of assumpsit, brought to the May term, 1840, of the circuit court of Claiborne county, by Yolney Stamps, for the use of the President, Directors and Company of the Planters Bank of the State of Mississippi, against John D. Yertner, Richard T. Archer, and James Watson, on a promissory note, for $>6000. The defendants pleaded non-assumpsit. On the 24th day of May, 1842, upon motion, supported by the affidavit of Yolney Stamps, that the President, Directors and Company of the Planters Bank of the State of Mississippi had no interest, and never had any, in the note sued on, and on consent, the court 'ordered the names of the usees to be stricken from the writ and declaration; to which order the defendants, Archer and Watson, afterwards, on the 26th day of May, 1842, filed a bill of exceptions ; from which it appears, they objected to the amendment at the time it was made. After the death of .John D. Yertner was suggested, judgment was entered against the defendants, Archer and; Watson, and they have brought the case to this court by writ of error.
    
      Prentiss and Guión, for plaintiffs in error.
    The record shows that this suit was originally brought in the name of Yolney Stamps, for the use of the Planters Bank, against the plaintiffs in error. After issue joined, and on the eve of the trial, plaintiffs’ counsel moved for leave to amend his declaration, by striking out “for the use of the Planters Bank,” and substituting the nominal for the beneficial plaintiff. The court granted the motion, to which defendants excepted, and that exception is now before the court.
    It is true, amendments are within the discretion of the court in which the application is made, and are not the subject of revision in the appellate court, but this must be understood of amendments in their legal sense, and not of alteration in substance, such as the introduction of a new party, or new cause of action. What constitutes an amendment is a matter of settled law, and cannot be transcended under any pretence of discretionary power.
    Where plaintiff sued as assignee of A, the court refused leave to amend, by striking out his own name and inserting A as plaintiff. Johnson v. May rant, 1 McCord, 484.
    The statute of amendments does not extend to an alteration, which would introduce a new party, or vary the cause of action. Peck v. Sill, 3 Conn. R. 157.
    Now we contend, the amendment allowed by the court below did substantially introduce a new plaintiff, and strike out the true plaintiff from the record ; in other words, that the amendment amounted to a dismissal of the action, as it stood upon the record, and a substitution of a new action between different parties.
    By our statute (Yide sec. 48 of our circuit court law, Rev. Code, 115,) it is enacted, “ If any suit or action shall be commenced in any court of record in this state, in the name of any person, for the use and benefit of another, the same shall not abate by the death of the nominal plaintiff, but shall progress to final judgment, and execution may be awarded thereon, in like manner as if brought in the name of the person for whose use and benefit such suit or action was instituted, who shall be liable for the costs of suit, as in other cases; and in case the party for whose use and benefit a suit or action shall be brought shall die before final judgment, it shall be lawful for the party representing such deceased person, as executor or administrator, to be entered on the records and papers of such suit or action, in the place of such deceased person.”
    
      By this act it is clear that the usee, or beneficial plaintiff, does not abate the suit, but it goes on in the name of the usee, in the same manner as if the suit had originally been brought in his name, and without any revival in the name of the representatives of the nominal plaintiff.
    
    2d. The person for whose use suit is brought, is liable for the costs, as in other cases.
    3d. In case of the death of the usee, his executor or administrator is to be entered on the record in his place.
    To strike out, then, the name of the person for whose use the suit is brought, and make the nominal plaintiff the real and beneficial plaintiff, is, in reality, to dismiss the suit, and at the same moment institute a new one, with a different plaintiff, and that upon mere motion in court.
    Such a proceeding, manifestly, is matter of substance, and goes far beyond the province of amendment.
    Suppose, before such motion, in this case, defendant had plead payment to the Planters Bank, and filed with their plea offsets, in the notes of said bank, to the amount of the note sued on. Could they be deprived of the benefit of their plea, by an amendment changing the plaintiff in the case 1 If the real plaintiff can be stricken out, and the nominal plaintiff substituted in his stead, upon mere motion and by way of amendment, it would seem equally within the power of the court to allow, by way of amendment, any third person whose name did not appear at all upon the record, to be substituted in lieu of the real plaintiff. '
    Yet such an assertion of the poWer of amendment would be a monstrous absurdity. In Maryland, under a similar statute with ours, where suit is brought in the name of A, for use of B, the cestui que use is regarded as the real party to the suit.
    1 Peters, 37. There is no other point which, perhaps, requires notice.
    One part of the record says, “ On motion and consent ” the. amendment was made. It does not say whose consent; the consent and motion proceeded from the same source — that is, from the plaintiff’s attorney; at least, such is the fair presumption. The record does not say that defendants consented, nor would it be presumed that they did consent, from anything upon the record, even if the bill of exceptions did not show the contrary.
    But the bill of exceptions shows, positively and affirmatively, that defendants did not consent, but objected to it, and excepted to the opinion and decision of the court, allowing it.
    Whether defendants consented or objected was a matter of fact; as such it is embraced in the bill 'of exceptions.
    The bill of exceptions imports verity, and cannot be contradicted. Hardin, 166.
    Maury, for defendant in error.
    There was no error in the order of amendment. 1. Because it was made by consent of parties. 2. Because no exception was taken to the order at the time. 3. Because amendments are left to the discretion of the court, and are not assignable as cause of error. And 4. Because, under the circumstances of the case, the amendment was properly allowed.
    The record shows that the amendment was made by consent of the parties; and in this the record is correct, though it is apparently contradicted by the bill of exceptions taken two days after. The discrepancy could not have existed between the record and exception, if the exception had been taken immediately on the delivery of the order complained of; and the case furnishes an useful commentary on the rule of practice established in the decision of Patterson Tyler v. Phillips, 1 How. R. 572.
    Stamps has never parted with the legal interest in the note by indorsement or otherwise. He is the only person whose name could be used as plaintiff in a suit on the note. 1 Chit. PI. 2; 1 Saund. 153, note. The introduction into the declaration of the name of the party beneficially interested, makes him plaintiff no more than if his name were merely indorsed on the declaration; and in either case would only serve to indicate his interest that it might be protected against any wrongful interference of the legal plaintiff. The rule of the common law remains unchanged by the statute, H. & H. 584, except in case of the death of the nominal plaintiff, or of him for whose use the suit was brought. In either of which cases the statute provides for the further prosecution of the claim. But if neither of the parties dies, the statute has no application, and the law remains precisely as it was before. The statute should be construed as near as may be to the rule of the common law. Bac. Ab. tit. Statute. The court, therefore, will not construe it to intend a further alteration of the common law, than may be necessary to provide for the exigence that led to its passage.' Stamps having the legal interest in the note, was properly made plaintiff in the institution of the suit. He is the plaintiff now. The parties, therefore, are technically the same now that they were before the amendment.
    These positions are taken to obviate the effect of decisions that may be found, denying amendments that change the parties to a suit. They are commonly erased' on the reason that the liability of bail may have been assumed in view of the defective process, as in 1 Hay. R. 19; a reason that cannot prevail in this country since the virtual abolition of special bail.
    There are many cases, however, in which such amendments have been allowed. 11 Wheat. 280'; 5 Yer. R. 287; 6 lb. 493; 9 lb. 64. The plaintiff in the case in 5 Yerger was allowed to amend the writ and declaration by inserting his Christian name'; and in the case in Wheaton by adding other parties. That the defendants owed the amount of the note to Stamps is not denied. They therefore are not unjustly prejudiced by the amendment. It was calculated to remove embarrassments and impediments to the collection of such money as Stamps was entitled to, and was therefore properly allowed. H. & H. 591.
    But further. In this country such amendments are left entirely to the discretion of the court, and cannot be assigned for error. 11 Wheat. R. 280; 3 How. R. 117; and also the case of The Vicksburg Water Works and Banking Co. v. W. H. Washington, decided in this court, and not yet reported.
   Mr. Justice Thacher

delivered the opinion of the court.

Writ of error to Claiborne county circuit court.

The court below, upon motion, allowed the names of the parties for whose use the suit was instituted, and who had no interest in the note sued upon, to be struck out of the writ and declaration. This is claimed for error.

The court below, we think, exercised a discretion in this instance, which was authorized by the statute of this'state on the subject of amendments. Amendments of this kind have been sanctioned in other states having a statute of amendments similar to our own. 6 Yerg. 493; 7 Mass. 291; 1 Pick. 224; 18 Pick. 57.

This court has decided, also, that it will not review the exercise of a discretion by a circuit court in the matter of amendments. 1 H. 105.

Judgment affirmed.  