delivered the opinion of the court as follows : This action is brought against the defendant for five instalments due on three shares in the Canal company, for which he was an original subscriber. The plaintiffs in their declaration demand the amount of those five instalments, with interest thereon from the time of their becoming due. A motion is now made to amend this declaration, by making large additions in point of form, and one addition which is matter of substance, that is to say, a demand of a penalty, after the rate of 5 per cent, a month for every month’s delay, in the payment of the said instalments. It is proper to observe, that this cause was marked for trial at the last court of Nisi Prius, under a rule for trial or non pros. The plaintiffs asked leave to amend at the Nisi Prius *364[*365 court; and the defendant objected to the proposed amendments, *which were nearly the same that are now proposed, and insisted on a non pros. Judge Yeates who held the court, did not think proper to receive the amended declaration in the form in which it was offered by the plaintiffs, conceiving some of the amendments to be improper; nor would he suffer a non pros, to be entered, but ordered the cause to be continued.
By the 6th section of the act of assembly of 21st March 1806, it is provided, that no plaintiff shall be nonsuited for informality in his declaration ; but, when in the opinion of the court such informality will affect the merits of the cause in controversy, the plaintiff shall be permitted to amend his declaration on or before the trial; and the defendant has the same privilege with respect to his plea: and if by such amendments the adverse party is taken by surprize, the trial shall be postponed till next court.
By the plain and obvious meaning of this act, the plaintiff is entitled to such amendments in point of form, as will afford him a fair opportunity of trying the matter in dispute on its merits. The court therefore can see no reason whatever for rejecting such amendments as are necessary for the plaintiffs m point of form. But shall they be allowed to alter their declaration so as to demand the penalty of 5 per cent, a month ? There is nothing in the act of assembly, which authorizes a plaintiff to ask for substantial alterations of his cause of action; and such alterations might be the instruments of great injustice and oppression. The plaintiffs’ counsel have not contended for such a construction of the law; but they suppose that their original declaration which demanded interest, did in substance demand this penalty, which they now call penal interest. In this the court cannot agree with them. -In their declaration they use only the word interest, which cannot be understood any thing but the usual legal interest of 6 per cent, per annum. They make no reference, directly or indirectly, to that part of the act of assembly which gives 5 per cent, a month ; and what is decisive is, that the act gives it, not as interest, but as a penalty.
The defendant’s counsel contend, that the plaintiffs are not entitled to the amendment, because they were under a rule for trial or non pros. ; but the act of assembly makes no distinction between causes where such rules are had, and others; nor do the court conceive that they have any right to make it, or that it would be reasonable to do so, even if they had that power; because, a plaintiff who is under a rule for trial or non pros., is as much entitled to a fair trial on the merits of fhe dispute, as if he had come to trial without such rule.
It has been objected, that plaintiffs may make a mischievous use of this privilege of amendment, by delaying the trials of *their causes by various artifices. To this it is answered, p. .... that the court will never suffer an amendment for the ^ purposes of fraudulent delay.
*366Upon the whole, the court are of opinion, that the plaintiffs should be permitted to amend their declaration in the manner proposed, striking out those parts which relate to the penalty.