turn. 3. For any imperfect or insufficient return of any sheriff or Imperfect reother officer, or that the name of such officer is not set to any return actually made by him: 4. For any variance between the original writ, bill, plaint Variance. and declaration, or between either of them: ing, &c. 5. For any mispleading, miscontinuance or discontinuance, Misplead. insufficient pleading, lack of colour, jeofail or misjoining of issue: 6. For the want of any warrant of attorney by either party, except in cases of judgment by confession, where such warrant is expressly required by law: Warrant of attorney. pearing by 7. For any party, under twenty-one years of age, having Infant apappeared by attorney, if the verdict or judgment be for attorney. him: averments. 8. For the want of any allegation or averment, on account Omission of of which omission a special demurrer could have been maintained: 9. For omitting any allegation or averment of any matter, without proving which, the jury ought not to have given such verdict: name, &c. 10. For any mistake in the name of any party or person; Mistake in or in any sum of money; or in the description of any property; or in reciting or stating any day, month or year, when the correct name, time, sum or description shall have been once rightly alleged, in any of the pleadings or proceedings: Juror or offi cer. 11. For a mistake in the name of any juror or officer. 12. For the want of a right venue, if the cause was tried by venue. a jury of the proper county: in entering 13. For any informality in entering a judgment, or making Informality up the record thereof, or in any continuance or other entry judgment, upon such record: 14. For any other default or negligence of any clerk or officer of the court, or of the parties, or their counsellors or attornies, by which neither party shall have been prejudiced.5 &c. 5 R. St. P. 3. Ch. 7. T. 5. s. 7. Vol. 2. p. 424. 425. Judgment by default and confession. The next section provides, that "the omissions, imperfections, defects and variances in the preceding section enumerated, and all others of the like nature, not being against the right and justice of the matter of the suit, and not altering the issue between the parties, or the trial, shall be supplied and amended by the court, where the judgment shall be given, or by the court into which such judgment shall be removed by writ of error." The former statute of amendments and jeofails contained a separate section, extending the benefit of the act to judgments by default and confession, and providing that no such judgment should be reversed, &c. for reason of any imperfection omission, &c. which would have been aided or cured by that act. The statute 4 and 5 Ann. c. 16, s. 2, contained a similar provision with respect to judgments by default; and in the construction of that statute, it has been held that it extended to protect judgments by default against such objections only as were remedied after a verdict, by the statutes of jeofails, and not against objections which were cured by a verdict at common law.101 It was therefore important, in cases of default and confession, to distinguish between such imperfections as were cured by a verdict at the common law, and those which were remedied after verdict, by the statute of amendments and jeofails. It is observed, with respect to the former case, that "where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue joined be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed, that either the judge would direct the jury to give, or the jury would have given, the verdict, such defect, imperfection or omission is cured by the Ib. s. 8. 101 Str. 78. 933. 2 Burr. Rep. 899. 1 Saund. 228. a. verdict by the common law; or, in the phrase often used upon the occasion, such defect is not any jeofail after verdict." The present act, in the eighth and ninth subdivisions of the seventh section above cited, seems fully to extend to all cases in which defects of this nature were amendable, after verdict, by the common law; but it seems at least doubtful, from the terms of the ninth subdivision, whether it was intended to extend to any other case than where a verdict has been given. It may, therefore, be proper to illustrate, by some cases, the distinction between defects which were amendable at common law, and those which are cured by statute. prosecution. Thus, in an action for malicious prosecution, it is necessary Malicious to allege in the declaration, that the prosecution is at an end;8 and the want of this averment is held fatal upon demurrer, or after a judgment by default, but is cured by a verdict for the plaintiff at common law, because, in such case, it is a necessary inference, that it was proved, on the trial, that the original prosecution was at an end. Also, where a promise depends Action on upon the performance of something to be first done by him to whom the promise is made, and, in an action upon such promise, the declaration does not aver performance by the plaintiff, or that he was ready to perform, and there is a verdict for the plaintiff; such omission is cured by the verdict by the common law, but has been held a fatal objection after a judgment by default.10 promise. collateral On the other hand, where there was any defect, omission, Defect in or imperfection, though in form only, in some collateral parts part. of the pleading that were not in issue between the parties, so that there was no room to presume that the defect or omission was supplied by proof, a verdict did not cure them by the com 71 Saund. 228. a. and the cases there cited, et vide 2 Johns. Cas. 52. 1 Johns. Rep. 276. 453. 2 Johns. Rep. 550. 11 Johns. Rep. 141. 13 Johns. Rep. 81. 15 Johns. Rep. 250. 10 Mod. 209. 210. 2 Term. Rep. 225. 91 Saund. 228. b. 10 2 Burr. Rep. 899. 1 Saund. 228. b. Defective title or omis of action. mon law. As where an administrator brings an action of debt on a bond, and does not allege, in the declaration, by whom administration was granted, and the defendant pleads non est factum, and there is a verdict for the plaintiff, the verdict does not cure this defect by the common law, because it was not necessary to be proved on this issue, the title of the administrator not being in question: but this defect, according to the English authorities, is remedied, after verdict, by the statute of jeofails, and, therefore, after judgment by default, by the statute of Anne, before referred to.11 If the plaintiff either states a defective title, or totally omits sion of cause to state any title or cause of action, a verdict will not cure such defects, either by the common law, or by the statute; for the plaintiff need not prove more than what is expressly stated in the declaration, or is necessarily implied from those facts which are stated.12 Examples. Amend ments made where re quired by justice. Thus a declaration in assumpsit, on a consideration to forbear a person not chargeable with the debt, is bad after verdict.13 And so where a reversioner declared in trespass on the case for a nuisance to premises in the occupation of his tenant, and stated an injury to the possession without alleging any damage to his reversionary interest, the judgment was arrested after verdict.14 It has been said that after the proceedings are entered of record, they are no further amendable than allowed by statute.15 But this is not universally true; and courts of late have not 11 1 Salk. 37. S. C. Ld. Raym. Rep. 437. et vide 1 Johns. Rep. 634. 4 Mod. 133. 470. 2 Johns. Rep. 550. 13 1 Lev. 165. 12 Doug. 658. Cowp. 825. 2 Salk. 662. 1 Salk. 365. 3 Burr. 1728. 3 Wils. 275. 1 Term. Rep. 141. 146. 4 Term. Rep. 472. 1 Saund. 228. c. 17 Johns. 14 1 Maule. & Selw. 234. 15 1 Salk. 47. Gilb. C. P. 114. 115. 2 Wils. 148. 2 Tidd. Pract. 768. confined themselves strictly to cases where proceedings may be said to be in paper, but they have been guided by the question whether substantial justice requires the amendment, at whatever stage of the proceedings it may be moved.16 Something to It is a general rule as to amendments under the statute, that Must be there must be something to amend by :17 this however must be amend by. understood as applying to those cases only in which it becomes necessary to obtain the interposition of the court; for the very words of the statute, in many instances, amount to a virtua] amendment, by preventing any advantage being taken of the error.1 13 The amendment may be made in any stage of the proceedings:19 thus continuances may be entered after verdict or judgment;20 and the want of, or a defect in, the similiter, is amendable after verdict.21 6 166 Cowen. Rep. 606. 36. et vide 3 Cowen. Rep. 44. n. a. Term. Rep. 8. 9. Lord Harwicke remarks in R. vs. Ellames, that "it was anciently the rule not to suffer any of those amendments to be made after the matter was on record; but the number of cases now cited show that of late, in furtherance of justice and in order to obtain the right between the parties, these amendments have been much extended." Rep. temp. Hardw. 42. And in Rex vs. the mayor and burgesses of Grampond, Lord Kenyon says, "I wish that that could be attained that Lord Harwicke in the case before him lamented could not be done, namely, that these amendments were reducible to some certain rules:' but there being no such rule, each particular case VOL. I. must be left to the sound discre- 17 2 Tidd. Pract. 769. Bing. 21 Burr. Rep. 1793. Starkie. 76 |