One of the counsel for the plaintiffs had proceeded some way in opening the cause, when he was asked by the Court if he expected to prove an express promise or a special agreement to pay interest; this question being answered in the negative, the Court (Dana, C. J., and Strong and Thacher, justices, present) said the action could not be maintained in its present form, as all the * counts stated a promise to pay interest; but they gave leave to amend on the common rule (a).
The rule above referred to is, “ That in all cases (excepting after joinder in demurrer) the plaintiff shall have leave to amend his writ and declaration, upon his paying the defendant his costs, or agreeing to a continuance, at the defendant’s election— piovided always that the defendant shall have leave, upon such amendment, to plead anew.”