Palmer v. Lesne, 3 Ala. 741

COLLIER, C. J. The leave granted by the County Court to the plaintiff, to amend his declaration, was special, and pointed out the particulai-s in which the amendment was to be made. It did not require a new declaration to be filed, but merely that the name of Ravesies should be stricken out of the one on file, so that it allege the promises and undertakings, the non-performance of which are complained of, as those of Lesne individually.

Such an order to amend, is unlike a permission to amend generally, by filing a new declaration, or adding a distinct count; while the latter would require the amendment to be made in point of fact, the former considers the leave granted as operating in itself to complete it. We must then, consider the plaintiff as declaring upon promises made severally with the defendant, instead of charging a joint liability by Ravesies and Lesne. In this view of the case, the declaration is good, in showing a cause of action against the defendant alone, and must have been so adjudged on demurrer.

It has been repeatedly held, that an insufficient writ, or one which is variant from the declaration, cannot be reached by demurrer, or on error; and this Court, in reviewing the action of the County Court, cannot look into the record farther than that Court should have done. The defendant, however, could not have been prejudiced by the permission given to the plaintiff to amend; the amendment being considered as made, the declaration ceased to conform to the writ, and he should have pleaded the variance in abatement.

This, according to the decisions of this Court from an early day, is the only manner in which the point could have been presented. In all the cases in which it has been decided, that a discontinuance of a suit as to one of several joint defendants, where ■ the case does not come within the act of 1818, is a discontinuance of the action, the objection was shown by the declaration. Kennedy v. Russell & Patton, Minor’s Rep. 77; Thompson v. Saffold, et al. 2 Stew’t Rep. 494; Tindall v. Collins, 2 Porter’s Rep. 17.

But in the present case, the leave to amend, perfected the declaration, and the writ alone showed that the plaintiff could not proceed. It was within discretion of the County Court to set aside the verdict, and award a new trial, but beyond the just exercise of its powers to order a non-suit or discontinuance; because, as we have seen, the variance between the writ and declaration was not regularly presented. The consequence is, the judgment complained of, is erroneous, and must be reversed, and the cause remanded.