The opinion of the court was delivered, by
Lowrib, C. J.The statutes of amendment are not so rigid as to bend to no circumstances, and allow of no discretion. This sealed note was given by principal and surety, and paid by the surety. Near twenty years afterward, when both are dead, the administrators of the surety sue upon it in their own name,, as if it had been legally assigned to him, when it was not; and over four years later they ask to amend by substituting the administrator of the payee as plaintiff' for his use. We think the allowance of the amendment was properly refused.
After so long a delay, both before and after suit brought, entirely unaccounted for, and after the presumption of payment has existed for over three years, such an amendment of the very form of the action ’cannot be allowed with any sort of certainty of doing justice to the defendant: 12 Harris 92; 1 Casey 407; 2 Term Rep. 707; 6 Id. 171, 543; 7 Id. 51.
Moreover, the amendment applied for is equivalent to a substitution in equity to the rights of the paid creditor, and this cannot be allowed, after the Statute of Limitations has begun to run, after the payment: 8 Watts 384; 6 W. & S. 190. Here it has run four times over. Such an amendment must be limited by this principle.
Judgment affirmed.