The opinion of the Court was delivered by
Royce, J.The present plaintiff commenced his action before a justice of the peace, against the defendants, on the warranty of a horse, alleged to have been sold by them to the plaintiff. That action, though now denominated by the plaintiff’s counsel in argument, an action on the case in tort, was unquestionably an action of mere assumpsit. In the declaration, there is no scienter alleged, nor any thing to mark it as a declaration in tort, except mere formal words, which are often inserted in the most common declarations in assumpsit. The plajgjtiff made a motion before the justice, for liberty to amend, by striking out his original declaration, and inserting, in lieu thereof, a declaration in deceit, upon a false warranty, in which the scienter is expressly alleged, with the other averments properly belonging to such a declaration. This motion, though resisted by the defendants, was allowed, and the cause proceeded to trial. Judgment having passed against the defendants, they took an appeal, professedly from both decisions of the justice. In the county court the defendants renewed their objections to the amendment, and called for the decision of the court upon the right of the plaintiff to have such an amendment made. The court decided, that the plaintiff might amend, by striking out his original declaration, but had no right to insert the substituted declaration. Upon this, the defendants moved the Court, to dismiss the suit, with costs, on the ground, that the plaintiff, having expunged his original declaration, and not being allowed to substitute the other, had no declaration before the Court. This motion was sustained by the Court, the action was dismissed, and the defendants recovered their costs, and took execution for the same, upon which this writ of error is brought.
A preliminary objection is taken, that error will not lie upon the dismissal of an action. But it will lie, for it is a final disposition of the suit. It is not like interlocutory7 orders and directions, in the progress of a cause, which are, for the most part, matters of mere discretion. The judgment and execution for costs, are decisive. (Reynolds & wife vs. Robinson. Franklin county, 1822. This was error upon the judgment of the county court, in dismissing a suit as not appealable.)
The question then, is, whether the county court erred in ordering the action dismissed ? This question has been treated at the bar, as necessarily involving the inquiry, whether the justice could legally permit the amendment. But the Court consider that inquiry to be distinct from the present. If, indeed, the first declaration, or the. substituted one, had been altogether void, both in form and substance, perhaps a motion to dismiss might supercede the necessity of a demurrer. But each of the *84declarations is unexceptionable, and perfectly good of its kind, and the motion was not made for any deficiency in either of them. What, then, is the consequence of overruling an amendment previously allowed in the suit ? It obviously must be, to restore proceeding to the state in which it was.. An amendment is but an alteration; and when that is revoked, the original stands as if never altered at all. Therefore, without discussing the propriety of the amendment, we think it was not competent to the county court, to divest the plaintiff of both his declarations: for, by taking away the last, they naturally restored the first; unless he declined to accept, and act upon the first, which does not appear.
Charles Phelps and Jonathan Hunt,- for the plaintiff. Daniel Kellogg and Wm.,C. Bradley, for the defendants.Judgment of county court reversed.