In the case of Glenn vs. McCullough, 2 McC. 212, it was decided, that after the case had gone to the jury, it was too late to amend the declaration, unless by consent of the opposite counsel. That case decides the one before the court. The evidence had been all heard when the motion was made to amend the process.

This motion came too late. Such a practice would surprise the opposite party.

Here, too, the amendment entirely changed' the nature of the action; that is, from an action of assumpsit on an implied warranty, to an action on the case for deceit or fraud. This would be an amendment to give a different action, which might require very different evidence.

The motion to reverse the decision, is, therefore, granted, and a new trial ordered.