1839.

NELSON and DRY,

the Sheriff of Lancaster

B. The reason appears to be that the Court have power, under the statute of Anne, to give equitable relief to the plaintiff or defendant in the original action. Parke, B. Assignees of Suppose the plaint had never been removed from the county Court, the bond might, nevertheless, have been assigned and sued upon in the superior Court, as in the case of Dias v. Freeman] (a). This case is distinguishable, as here the party has removed the plaint from the county Court into a Court of equal jurisdiction with the present.

v.

HARTLY.

Cresswell, who appeared to shew cause in the first instance, was stopped by the Court.

neous.

PARKE, B.-The statement in Sellon's Practice is erroIt is true that an action by the assignee of a bail bond, must be brought in the same Court in which the original action was commenced; but the reason is, that the 4 Ann, c. 16, s 20., enables the Court by rule to give such relief to the plaintiff or defendant in the original action as is agreeable to justice and reason, and such rule shall have the nature and effect of a defeazance to the bail bond. Under that act the Courts established the practice that an action by the assignee of a bail bond should be brought in the same Court as the original action, whether rightly or truly, might have been originally a question, for the statute gives the power to any Court, but it would be improper to pursue a different course now. The language of the 11 Geo. 2, c. 19, s. 23, is very different, for it empowers the Court to relieve the sureties only. It appears to me that this action is properly brought in this Court, and such opinion is confirmed by Dias v. Freeman.

Rule discharged.

(a) 5 T. R. 195.

1839.

Doe. d. BoULLOTT v. ROE.

declaration in

ejectment upon

the wife of a

CROSS moved for judgment against the casual ejector. Service of a The affidavit stated, that one of the tenants was served by delivering the declaration to his wife, at his dwelling-house, (not the premises in question). He submitted that this was sufficient, and referred to Morland v. Bayliss (a), and Doe. d. Lord Southampton v. Roe (b).

The Court were at first inclined to think the service insufficient; but upon referring to Archbold's County Attorney's Practice, 323., and the cases there referred to, they granted the rule, on condition that the affidavit should be amended by the insertion of an allegation, that the wife was living with her husband at the time of service.

tenant at his dwelling-house (not the premises) is sufficient, if it appears that she her husband at is living with

the time.

Rule accordingly.

(a) 6. T. R. 765.

(b) 1 Hodges, 24.

DUCKWORTH v. HARRISON.

agreement

tion on an agreement of

reference stated

that the costs of

reference and

THIS was an action upon an agreement of reference. The declaraThe agreement, as set out in the declaration, stated, that the costs of the reference and award should abide the event, (see declaration, ante p. 71); but the itself also provided for the costs of making the agreement a rule of Court. It was objected, at the trial, that this was a fatal variance; but a verdict was found for the plaintiff, with liberty to move to enter a nonsuit.

Crompton, having obtained a rule accordingly,

award were to

it

abide the event, appeared that also provided

the agreement

for the costs of making the agreement a rule of Court. Held, that the variance might be amended. The term

“prejudiced in his defence," used in the 23rd section, 3 & 4 Will. 4, c. 42, means defence at

nisi prius, and not defence of the action generally.

1839.

DUCKWORTH

v.

HARRISON.

Warren shewed cause, and contended, first, that there was no substantial variance; and, secondly, assuming that there was a variance, the Court, or a judge, had power to amend the declaration.

Crompton, contrà. An amendment can only be made in cases in which the opposite party cannot have been prejudiced by the variance. Here the defendant has been prejudiced by having been led into a demurrer (a).

is

PARKE, B.-The first question is, whether or no there

any variance? and I am inclined to think there is, and that such variance would be fatal, unless we have the power of amendment. It seems to me, however, that this is a case in which an amendment might have been made. If there had been no demurrer, there could have been no doubt about the question; but in order to see whether that affects the case we must look to the terms of the act of parliament. The 23rd section of the 3 & 4 Wm. 4, c. 42, s. 23, enacts, "that it shall be lawful for any Court of Record, holding plea in civil actions, and any judge, sitting at nisi prius (if such Court or judge shall see fit so to do) to cause the record, writ, or document on which any trial may be pending, before any such Court or judge in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital, or setting forth on the record, writ, or document on which the trial is proceeding, of any contract, custom, prescription, name, or other matter in any particular or particulars in the judgment of such Court or judge, not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended," &c. Therefore it is a condition precedent, that the Court or

(a) See the case, ante, p. 71.

v.

HARRISON.

judge should be of opinion that the variance is not 1839. material to the merits of the case, and by which the DUCKWORTH opposite party cannot be prejudiced in his defence. Now, what is the meaning of the term defence? If it meant the defence of the action generally, then there would be some weight in Mr. Crompton's argument, but in order to ascertain its right meaning, we must look at the context, and then it will be clear that it means the defence at nisi prius. In deciding this point, we are to ask ourselves whether this is a matter material to the merits of the case?

and I say, no. Then is it such as could prejudice the opposite party in the conduct of his defence at nisi prius? If there had been no demurrer, the proper course would have been to have allowed the amendment upon payment of costs. The only question is, upon what terms it ought now to be done? As that is a matter of equity, we must so conduct ourselves as not to deprive the defendant of any benefit which he might have had; therefore, he must be paid the costs of coming here. The rule will then be discharged upon payment, by the plaintiff, of the costs of the amendment and of this application.

Rule discharged accordingly.

CHEW v. LYE.

GODSON moved to discharge a prisoner under the The 41st section 48 Geo. 3, c. 123, s. 1.

Hodges opposed his discharge, upon affidavits that the

detaining creditor had applied to the Insolvent Court, under the 1 & 2 Vict., c. 110, s. 36 (a), and had obtained an

(a) "And be it further enacted, that if any prisoner, who, at the time appointed for the commencement of this act, shall have been

committed to any prison or gaol,
and charged in execution for any
debt, damages, or any costs, or
sum or sums of money, or com-

of the 1 & 2 Vict. c. 110, has not taken away a prisoner's rightto discharge under the 48 Geo. 3,

c. 123.

1839.

CHEW

บ.

LYE.

order, vesting the prisoner's estate in the provisional assignee of that Court. Then the 41st section enacts, "that no prisoner, whose estate shall, by an order under