I regard it as very much a matter of course to allow any party to shape his own .pleadings to suit himself, and for that purpose to permit him, at any time before trial, to amend his pleadings so as to present his own views of the questions to be litigated, upon such terms as may be deemed ■ equitable. There is now no restriction upon the power of the court to allow such amendments, even though the effect be to change entirely the whole cause of action, or the grounds of defence. It is only when a party seeks to amend his pleadings after trial, that the court is prohibited from allowing an amendment which would substantially change the cause of action or the defence. (See Code, § 173; Beardsley agt. Stover, 7 Howard, 294.)
In this case, though there has been a trial, yet as that trial has been set aside, and a new trial ordered, the court has the -same power to allow the parties to amend their pleadings as though the action had never been tried. And, besides, though it is proposed by the amendments to present a very different question for litigation, yet the subject matter of the action will be the same. The same transaction will yet be the foundation *171of the action. The theory of the plaintiffs’ case will be changed, but the claim itself will remain substantially the same.
Under these circumstances, I think the motion should be granted.
It remains to inquire what should be the terms upon which the amendment should be allowed. The defendant has, thus far, been successful in the action. He has the judgment of the court in his favor, upon the issue which the plaintiffs chose to tender him for trial, now the plaintiffs seek to change their ground, and to litigate a new question with him, in respect to the same subject matter. New issues will be made. A new line of defence will be required.
As the matter now.stands, the defendant is entitled to the costs of a successful defence. It would be obviously unjust to deprive him of this advantage, by allowing the plaintiffs to change entirely the ground of their action. The plaintiffs should, therefore, as a condition upon which the amendment should be allowed, be required to pay the costs of the defence to the present time to be taxed, and the costs of opposing this motion. An extra allowance of $100 was made to the defendant upon the trial, but I do not think it can properly be included in the costs to be allowed upon granting this application. The extra allowance is only authorized upon the recovery of a judgment. Here the, judgment has already been set aside. In this respect, the case is distinguishable from that of Ellsworth agt. Gooding, (8 How. 1.) In that case the application was for a new trial. The plaintiff had recovered a judgment—an extra allowance had been made, and this had become a part of the judgment. The question before the court was, upon what terms the judgment should be vacated and a new trial ordered. It was quite competent for the court, in such a case, to require the payment of all the costs, including the extra allowance, as a condition of granting the motion. But in this case a motion for a new trial has already been granted. The order for an extra allowance has become inoperative. It would, therefore, be improper, to say the least, to *172make the payment of such allowance a condition of granting leave to amend.
As a further condition of granting this motion, the plaintiffs should be required to stipulate, if desired by the defendant, that the cause may be placed upon the calendar, and, if the issues shall be completed in season, that it may be tried, at the ensuing circuit, in the county where the venue is laid.