Anton Gunderman ads. The City Council of Charleston, 1 Ril. 79

Chancellor Johnston delivered the opinion of the court. I think the order, giving leave to amend, should be set aside. Amendments must be restrained by the record existing at the time of amendiug, 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 previous proceedings are general in their terms: provided, that in so doing, you do not go beyond the intendment of the previous pro< eedmgs. For instance, you may add to, or alter the counts of a declaration, provided you keep within the general complaint set out in the writ. 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 in 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 uames 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 tpiestion, — 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. Filed 3d May, 1836. My opinion is, that the order to amend, should be set aside ; and the case remanded to the court below. JOB JOHNSTON. We concur, HENRY W.

DESAUSSURE, JOSIAH J. EVANS, WM. HARPER, A. P. BUTLER, RICHARD GANTT, B. J. EARLE, JOHN B. O’NEALL,