J. Righton, Admr of Thomas Fullerton, vs. Thomas Sumter, the elder, & Thomas Sumter, the younger

Mr, Justice Colcocle

delivered the opinion of the court:

This is not an amendment, it is a discontinuance or nolle prosequi, (1 Tidds Practice, 628-6 30, J as to one defendant, which does not necessarily change the defence. Any alteration in the body of the declaration, either in fqrm_or substancey would necessarily require an 9I7 teration in the pleadings, and, then, there may be a necessity for other witnesses, than those who had been subpoenaed, consequently, a good ground of continuance. Here the plea was non est factum, and it was as competent for the remaining defendant to have supported his plea after his co-defendant’s name was stricken from the record, ae it would have been had it remained. There may have been a difference,- but if there was, it is presumable the defendant was not prepared to support it. Mayrant, for the motion.

J)eSaussure, contra.

The motion is dismissed.

Justices Richardson, Johnson and Huger, concurred,

Mr. Justice Nott:

I concur in this opinion, on the ground that the defendant signed the name of his co-obligor himself as his agent, and on the trial disavowed his agency, and therefore it became his own several bond.