
    CITY COUNCIL OF CHARLESTON VS. ANTON GUNDERMAN.
    Summary process to recover the penalty for selling liquor to a slave “ whose name and owner were unknown.” The proof was that the name of the slave and his owner were both known to the prosecutor and attorney. Motion to amend the process by inserting the name of the slave and his owner, refused.
    
      In City Court, January, 1836.
    In this case process was issued against defendant for selling liquor to a slave “ whose name and owner are unknown.” The testimony was that the name of the slave, as well as the name of the owner, were both known to the prosecutor and city attorney. The jury being charged with the case, and the testimony concluded on the part of the city, the city attorney moved to amend his process so as to embrace the case proved-
    
      The counsel for defendant objected, and his Honor overruled the objection.
    ' The defendant appeals from the decision of his Honor, and moves for a non-suit, on the following grounds:
    1. That after the jury are charged with the case, it is too late to move to amend the process, in a case partaking of the nature of a criminal prosecution.
    
      2. That after examination of witnesses and testimony, concluded on the part of the prosecution, the process cannot be amended to embrace a different case than that charged in the process; and it is respectfully submitted, that his Honor erred in permitting it to be done.
    
      p. C. Strohecher, Defendant’s Attorney.
    The above brief is correct; but in granting the city attorney’s motion .to amend, I ordered a continuance of the case. No verdict has been taken, and the case is on the docket for trial.
    Samuel Prioleau.
   Curia, per

Johnston, C.

I think the order, giving leave to amend, should be set aside.

Amendments must be restrained by the record existing at the time of amending, and must always conform to it or fall within its scope.

Where there is a departure from some previous part of the proceedings, the latter may be taken as the standard of correction. This is an instance of amending by the record.

Or you may add to or vary the particulars set out in subsequent proceedings, where the pi’evious proceedings are general in their terms: provided, that in so doing, you do not go beyond the intendment of the previous proceedings. For instance, you may add to or alter the counts of a declaration, provided you keep within the general complaint set out in the yvrit. This is an example of amending, not by, but within the scope of, the record.

But this being a summary process, the plaintiff’s whole case is embraced jn the process itself, which is the original proceeding in the suit. There is, consequently, nothing to amend either by or within.

The motion is not only to set aside the amendment, but for a non-suit. It does not appear from the report, that a motion for non-suit was made in the court below. If not, the court below has not committed the error, (if it would have been error,) of refusing it; and this court, whose jurisdiction is entirely appellate, has nothing, in this respect, whereon to act. Besides, it is rather left to conjecture, from which party the proof came, that the names of the slave and his master were known to the prosecutor and to the city attorney. If this proof came from the defendant, it is not ground of non-suit. Without better information on these points than the report furnishes, the question — whether, striking out the amendment, the suit might not still be maintained — does not come before us: and I think it would be improper to express any opinion upon it; especially, as it is understood that it will be directly presented in some other cases, yet to be heard; since to give an opinion here, would be to prejudge those cases, without any necessity to do so.

My opinion is, that the order to amend should be set aside, and the case remanded to the court below.

DeSaussure, Harper, Gantt, O’Neall, Evans, Butler, and Earle, CC. and JJ. concurred.

Smith, Attorney General, for motion. Petigru, contra,  