Root v. O'Neil

The opinion of the Court was delivered by Black:, J. When a plaintiff has stated his cause of action defectively, he may amend his declaration at any time before or during the trial. But his right of amending is not entirely without limit. The great cardinal rule adhered to in all the cases is, that the amendment must not introduce a cause of action substantially [327] different from that wbicb is set forth in the narr. already filed. In the case now before ns the first declaration was indebitatus assumpsit for goods sold and delivered; and the additional counts, filed by leave of the Court, were for money lent, laid out, and expended, and for a balance due on settlement. We think the latter of these new counts, if offered alone, would have been a permissible amendment of the original narr. But it was erroneous to allow the other to be put in. The insimul computassent may be only another way of alleging the indebtedness of the defendant for goods; but the loan of money must have been a perfectly distinct transaction. Judgment reversed and venire de novo awarded.