
    Charles Garlock agt. Andrew Bellinger.
    A declaration may be amended under the rule by substituting a count in debt for a count in assumpsit, for the same cause of action.
    
      December Term, 1845.
    Motion by defendant to set aside amended declaration.
    Plaintiff’s attorney first commenced this suit by declaration, which contained the common money counts in assumpsit, and a count in debt on justice’s judgment. Defendant’s attorney demurred specially to the declaration. Plaintiff’s attorney served an amended declaration, substituting money counts in debt, for the money counts in assumpsit, and also asserted the count in debt upon justice’s judgment. .It was objected by defendant’s counsel that such an amendment could not be made under the rules; it was adding a new count.
    J. K. Collier, defendants counsel.
    
    A. G. Cole, defendants attorney.
    
    D. Burwell, plaintiffs' counsel.
    
    H. Link, plaintiffs' attorney.
    
   Jewett, Justice.

Denied the motion with costs, on the,ground that the amendment was not a new count within the> meaning of the rule, the cause of action was the same.  