
    James Warren Jr. et al. vs. Henry Campbell.
    Plaintiff allowed to add new counts to his declaration, upon terms, after issue joined, and defendant had examined a witness on commission.
    
      Motion by plaintiffs for leave to amend their declaration by adding such new counts thereto, upon the same cause of action already stated in said declaration as may be necessary and proper, truly to set forth the plaintiffs cause of action, and to enable them to try the merits.—This is a special action on the case for deceit in procuring goods of plaintiffs ; issue joined 18th may last. Defendant has examined a witness by commission. Cause noticed for trial at September Monroe circuit, for fourth 62] Tuesday. Plaintiffs discovered new and material evidence on the 28th of September, which they allege can not be given on the trial under the counts as they now stand.
    D. Cady, Defts Counsel. H. Gay, Defts Atty.
    
    J. Edwards, Plffs Counsel. Matthews & Husbands Plffs Attys.
    
   Defendant objects on the grounds that it is too late after testimony has been taken, and alleges actions of this kind should be put upon the same ground, as to amendments, as penal actions, where it is not done except under very special circumstances. Graham’s Practice 654, and cases there cited.

Plaintiff’s papers show that the newly discovered evidence has no bearing upon defendant’s testimony taken by commission, and the application was not induced by that.-

Decision.—Motion granted on payment of costs opposing motion and the costs of a new commission, if one shall become necessary, and the costs of the plea.  