The opinion of the court was delivered by

We think it very obvious, in the present case, that if the amendment was allowed properly, it did entitle the other party to plead anew to the amended count. And the conse*444quence will be that the report should be set aside, and the trial begin anew from the point of the amendment. For the amendment was certainly material; and did introduce a new and distinct claim, not before described in the declaration, or was evidently intended to do so. It was a claim which the defendant had had no opportunity to answer, and upon which no judgment to account had passed, and which had not been referred to the auditor, and which the defendant might have omitted to defend against, upon that ground.

This being the necessary result of allowing such an amendment at this stage of the proceedings, we think it not competent to allow it until the report is set aside, and all the proceedings subsequent to the declaration swept away. It is certain no such course was ever dreamed of, in practice, in this state before. For if this mode of making the declaration conform to a repprt in the action of áfccount could avail, the decisions which we have made upon the subject, setting aside reports, after great expense in litigation, because it was of matter not embraced in the declaration, might have been much more readily remedied. Amendments in New York, in matters of variance, are made after verdict; and so in the English practice. But in both cases, I think, upon examination, it will be found to be .done by statutes specially providing for such amendments. But whether that be so or not, it is very different from allowing an amendment introducing, a new class of claims, not attempted to be described in the original declaration. And although we regard the amendment as competent to be made, before the case went to the auditor; yet, after the report, it clearly could not be done unless the report was set aside.

We have decided the party cannot then become non-suit, because the matter is then fixed, and as much beyond the control of the party, as after judgment; Lyon v. Adams, 24 Vt. 268.

, The rule in regard to amendments, in the court of chancery, is perfectly well settled. The orator cannot amend his bill after the parties are at issue, unless, by permission of the court, the replication is withdrawn. If an amendment is then made, as it sometimes is, even after testimony is taken, the defendant is at liberty to plead, answer or demur, and the issue is to be tried anew, the same as if nothing had been done, and the defendant may insist *445upon having all the witnesses examined anew. We think the same rule, substantially, is applicable to cases at law. After issue joined, if the party have leave to amend, all that has been done in the case goes for nothing. And if the court allow-an amendment in the declaration in important points, retaining the verdict, or report of auditors, where the amendment is of a character to change the course of the defense, it is error, and the ordfer should he vacated.

Judgment reversed, and the order of the county court, allowing the amendment of the declaration, set aside. Continued, for hearing on the report.