Neither Judge Smith nor myself are ashamed to *510admit, that in the decision of this cause at Nisi Prius, we were mistaken in the principle which governed our opinion. We were misled by the authority in 2 T. R. 231, and the cases in 1 Salk. 21.2 Salk. 456, that malicious prosecution will not lie, where an indictment has been found and a nolle prosequi entered. The law does not seem to discriminate accurately on this subject, when the prosecution shall be considered at an end. The case has been much more fully argued now; and we freely admit, that from the new authorities, which have been adduced by the defendant’s counsel, the plaintiff has misconceived his suit, by bringing an action of slander, instead of malicious prosecution. In the latter, case, the defendant would have had it in his’power to shew a probable cause of complaint to the justice for the supposed forgery, as a ground of defence to the civil action. By proceeding in an action of slander, the defendant was deprived of this right; and we therefore are of opinion that a new trial be awarded. See Secar v. Babcock, 2 John’s N. York Reports 203.
The other members of the court assenting hereto a new trial was awarded.
The plaintiff’s counsel then moved to amend the declaration by adding a count for malicious prosecution, under sec. 6, of the arbitration act passed 21st March 1807, 7 St. Laws 562. All suits are to be tried on their true merits, and not to be set aside for informality. The words of the act are very large, and im~ power the court to permit an amendment. The plaintiff was taken by surprise on the trial, by the plea of justification being withdrawn after the jury were sworn.
This was opposed by the defendant’s counsel. This suit was brought in the Common Pleas to August term 1797, and an amendment is now prayed for in July 1808. The delay has been very great.
*The amendment required, essentially alters the nature r51c of the action ; and moreover takes away the right of the 5 1 defendant to plead the statute of limitations. At all events, the plaintiff should pay the costs until the present time.
The plaintiff in reply. The delay is not solely imputable to us. The defendant removed the cause when the suit was ready for trial below; and his counsel must share the blame of not arguing it earlier in the city. The court will grant leave to amend in penal actions, where the amendment does not introduce any new substantive cause of action. 7 T. R. 155.
Per Cur.Here certainly has been delay ; but it is said to be imputable to both parties. 'We have the power of amending at common law; but by doing so in this instance, we give the plaintiff a distinct substantive ground of suit, which he never contemplated before; and prevent his opponent from sheltering himself under the statute. This is wholly inadmissible.
Cited in 5 Binn. 54; 2 S. & R. 359; 6 S. & R. 295; 11 S. & R. 101; 1 Wh. 290; 45 Pa. 404, on the question of amendment. Cited in 106 Pa. 123; 14 W. N. C. 542; 18 W. N. C. 5, to show that the plea of the statute of limitations is no longer considered an unconscionable one. Referred to in 10. S. & R. 225; 3 W. & S. 273.The clause was introduced into the arbitration act to prevent nonsuits for matters of form, and to bring the true merits of each case before the court, where the controversy remains the same.
Yeates, J.said a motion of the like kind was denied on argument in Philadelphia, where the canal company asked to introduce new instalments on notes given by the stockholders into their declarations.
Motion denied.