The allowance, or disallowance, of amendments, is within the discretionary power of the courts, in the absence of statute regulations. The time, beyond which an amendment may not be allowed, has not been prescribed, by any statute of this state. At common law, amendments of pleadings have been permitted, at any time before judgment. Co. Litt. 280. 1 Petersd. Abr. 504. 539. a. And the same has been permitted, in special cases, in the state of New-York, and by the courts in other states. 18 Johns. Rep. 510. 2 Cowen 515. 4 Cowen 124. 7 Cowen 483. 518.
In this state, the courts, in the exercise of their discretionary power, in ordinary cases, have refused to sanction amendments of pleadings, after they have been adjudged insufficient, upon motion in arrest. 1 Sw. Dig. 779. And the present motion discloses nothing, which should induce us to depart from established practice, in such cases: and by doing so, we fear we might encourage a negligence and laxity in pleading and practice, which would prove very incon*472venient, both to the bar and the court; and we must, there-1 . . , tore, advise the superior court to deny this motion.
But, at the same time, had the motion set forth facts, which had satisfied us that a serious and irretrievable loss would have resulted to the plaintiff, from a refusal of this amendment, beyond the mere loss of a bill of costs, and the expense and delay of commencing and prosecuting another action ; such as a loss of the debt, by the operation of the statute of limitations, or discharge of the lien created by attachment, &c.; we should have believed, that a just exercise of the discretionary power of the court, would have sanctioned the amendment prayed for. In the case of Aubeer v. Barker, 1 Wils. 149., the court said, that it was a rule of that court, that a new count could not be added, after two terms ; and yet this had been permitted, to prevent the loss of the debt, by the statute of limitations. The Duke of Marlborough’s exrs. v. Widmore, 2 Stra. 890. 1 Petersd. Abr. 531. Dartnall v. Howard & al., 2 Chitt. Rep. 28.
In this opinion the other Judges concurred.
Amendment not allowed.