#### Anton Gunderman ads. The City Council of Charleston.

[In City Court, January Term, 1836.

In this case, process was issued against defendant for selling-liquor to a slave, “ whose name and owner was unknown. *’*The testimony proved that the name of the slave, as well as the name of the owner, were both known to the prosecutor and the 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 *80to 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. C. C. STROHECKER, *Deft’s. Att'y.*

The above brief is correct; but in granting the city attorney’s motion to amend, 1 ordered a continuance of the case. No verdict has been taken, and the case is on the docket for trial.

SAMUEL PRIOLEAU..

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 *81tpiestion, — 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,