#### *James Goodwin, adm'r. assignee,*v. *James Hannah.*

After a joinder in general demurrer, leave was granted to plaintiff to amend his declaration, upon payment of the costs of the demurrer, where it could operate neither surprise nor delay.

*Before*Withers, J., *at Latirens, Spring Term,*1850.

The plaintiff declared upon a bail bond ; defendant demurred generally to the declaration; plaintiff’s counsel admitted the demurrer to be well-founded, but moved for leave to amend his declaration, upon paying the costs of the demurrer. The motion was granted.

Defendant moved to reverse the decision :

1st. Because the judgment sustaining the demurrer, was final and conclusive of the case, and the Court possessed no discretion to grant leave to amend.

2d. Because the order granting leave to amend, upon payment of the cost of the demurrer, was illegal; as it was inconsistent with the judgment upon the demurrer.

*Sullivan,*for the motion.

*Irby Sp Henderson,*contra.

Curia, *per*Wardlaw, J.

In this case there was, on the part of the plaintiff, a joinder in demurrer, but afterwards, without argument, an acknowledgment of the insufficiency of the declaration, and a motion to amend. The defendant complains not of surprise, nor of delay, nor of any circumstances shewing that the discretion of the Circuit Judge was injudiciously exercised; but maintains that the demurrer being sustained when the case was called, whether by the opinion of the Court expressed after argument, or by the submission of the plaintiff, there was such a decision of the issue as precluded subsequent amendment. For this he relies upon the case of *Moore*v. *Burbage,*where it is said, “ after a joinder in general demurrer and *judgment*thereon, it may be laid down as a general rule, that an amendment will not be allowed.” *Judgment,*used in this extract, refers to the decision of the Court, and not to the subsequent entry of it, made in the record ; but in that case, reasons are given why an amendment should not there have been allowed, to wit, that unjust delay of the plaintiff would have ensued, and that, plainly, the plea which the defendant wished to introduce by amendment, could not have been sustained by the facts. Sufficient reasons will be seen to have caused the refusal of leave to amend, when a demurrer had been sustained after solemn argument, in the case of *Hamilton*v. *Wilson,*and probably such reasons existed in most other cases where instances of *158such refusal may be found, whilst the proceedings were yet *in paper.*In the case of *Cates*v. *Cureton,*leave to amend was given, after joinder in demurrer, when no delay was thereby caused. The cases there referred to, show to what lengths English Courts have gone, in allowing amendments upon equitable terms, when no injustice is thereby effected; t^e observations which in *Moore*v. *Burbage*are made concerning the case of *McFarland*v. *Dean,*show that in the “free allowance of amendments,” our Courts are not behind the English. This Court concurs with the Circuit Judge, that he had power to grant the leave of amendment here complained of, and that, under the circumstances, he granted it properly.

The motion is dismissed.

Evans, Frost and Withers, JJ., concurred.

*Motion refused.*