Lohrfink v. Still

Bartol, I., delivered the opinion of this court. This is an action for a malicious prosecution. The declaration was defective, in not averring that the alleged malicious prosecution was “without probable cause.” That such aver ⁵³⁵ jncnt was essential is not now, and has never been, doubted. It constitutes the gist of the action. 2 Chitty's Pl., 608, 609, note (x.) 2 Saund.

Pl. & Ev., 652, 654, 659. 7 Cowen, 717. After the jury had been sworn, and all the evidence offered to them, the plaintiff asked leave to amend the declaration, by inserting the words, “without any reasonable or probable cause whatsoever,'''’ and “that the declaration might be taken to read as if said averment were made, ’ ’ and the court granted leave to amend at bar as prayed. The defendant objected to the amendment being made, without first withdrawing a juror, which objection the court overruled. The defendant also objected to the making of said amendment in the manner proposed, which objection the court overruled, and the defendant excepted.

The court directed the trial to proceed before the same jury without their being re-sworn, to which also the defendant excepted. The first question presented by these exceptions is, whether the leave to amend the declaration operated as an amendment? It is clear that a permission to amend does not, per se, amount to an amendment. A party may have leave to amend, and yet not choose to avail himself of