By the Court
Warner, J.delivering the opinion.
The plaintiff in the Court below made a motion to amend his declaration, so as to prevent a nonsuit on the ground of variance between his declaration and evidence, after the case had been submitted to the jury on the appeal. The number of one of the lots of land embraced in the injunction was omitted in the *207declaration, and the plaintiff’s motion was to amend his declaration by inserting therein the number of the lot of land so omitted to be stated. It is admitted there was a good and legal cause of action set forth in the declaration; but the entire cause of action was defectively set forth.
[1.] The 1st section of the Act of 1818 declares, “that in every case, where there is a good and legal cause of action plainly and distinctly set forth in the petition, and there is in substance a copy served on the defendant or defendants, or left at their most notorious place of abode, every other objection shall be amended, on motion, without delay or additional costs.” The second section provides, that “no nonsuit shall be awarded, when the cause of action is substantially set forth in the declaration, for any formal variance between the allegation and proof Prince’s Dig. 442. The preamble to this act seems to contemplate the omissions of the parties, as well as the officers of the Court. The twenty-first Common Law rule of practice authorizes an amendment of the declaration in matters of substance, after the case has gone to the jury on the appeal trial, at the discretion of the Court, llotch-. Mss’ Dig. 950. This rule was intended to give a practical effect to the expressed will of the Legislature, as manifested by the Act of 1818, and the preamble to that Act. Amendments should always be allowed in furtherance of justice, which, as a general rule, will be left to the discretion of the Court, to which the application is made; and if the refusal of the amendment in this case had produced no other result than to have compelled the party to submit to a nonsuit, pay costs, and institute a new action for the recovery of his rights, in consequence of his omission, perhaps we should not have thought it our duty to have interfered with that discretion ; although we are of the opinion the intention of the Legislature would have been more fully carried out by allowing the amendment. But the facts in this case, as disclosed by the record, show that the refusal to allow the amendment was a virtual denial of the plaintiff’s right to recover damages from the defendant; for, as the law then stood, the plaintiff’s right to commence another suit was barred by the statute of Dimitations. In this view of the case, we are of the opinion the amendment should have been allowed. Tidd’s Practice, 653.
Let the judgment of the Court below be reversed.