Boston a cargo on his own account, to be imported into Halifax, and thence to be re-exported to Newfoundland; and, therefore, sentence of condemnation of such a cargo seized at Newfoundland, affirmed. Matchless, 1 Hag. 97.

But see 3 Geo. 4. c. 44, whereby those statutes are repealed; and also the consolidation of the navigation laws in 3 Geo. 4. c. 42, 44, 45, and 6 Geo. 4. c. 109.

A person born in America, since the treaty in 1783, by which England acknowledged the independence of the United States, cannot take lands in England by descent.

A person in England died intestate, seised of lands in England. The grand-daughter of her uncle claimed to be her heir-at-law. That uncle went to America before 1783, and continued to live there until the time of his death. His daughter, the mother of the claimant, was born in America, and married in America in 1781. The claimant was born in America since the year 1783:-The Court held, that by the treaty in 1783, the Americans were absolved from their allegiance to the Sovereign of Great Britain; that the claimant was an alien, and, consequently, not the heir-at-law of the intestate. Doe d. Thomas v. Acklam, 2 Law J. K.B. 129, s. c. 2 B. & C. 779, s. c. 4 D. & R. 394.

A, a native of America, and B, a native of England, had dealings by mutual consignments previous to 1812. In June, 1812, war was declared between the two countries, and on the 24th December, 1814, preliminaries of peace were signed at Ghent. A cargo of goods, consigned on account by A to B, arrived in England, in November, 1814, and were sent by B to France, and there sold, and he received bills for the amount which he got discounted. Another cargo, so consigned, arrived in England in January 1815, and was by B sold before the 15th of February. In March, 1815, B became bankrupt, and was appointed by his assignees their agent to wind up his affairs, in the course of which employment he received the proceeds of the second cargo, and transmitted accounts to A, in which he admitted him to be his creditor for a balance in respect of the proceeds of both cargoes. In an action by A against the assignees of B, to recover such balances: Held, that A was entitled to prove under B's commission for the balance due to him upon the second cargo only. Ogden v. Peele, 3 Law J. K.B. 100, s. c. 8 Ď. & R. 1.

ALIMONY.

A further allowance of alimony was granted in respect of an increase in the husband's income, where it was proved that he had committed adultery subsequent to the separation. Blaquiere v. Blaquiere, 3 Phil. 258.

The absence of proof or an admission of marriage, deprives a wife of her claim to an allowance, even in the nature of alimony. Smyth v. Smyth, 2 Add. 254.

A decree by the local ordinaries, as to the amount of permanent alimony, will not be reversed by the Court of Arches, on the ground that the wife receives one-fourth of her husband's income. Street v. Street, 2 Add. 1.

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Length of time between the issuing and return to a citation, forms no exception to the rule, that alimony allotted pendente lite, is to be paid from the return, and not from the issuing of the citation. Bain v. Bain, 2 Add. 253.

The Court will allow a wife alimony, although she has a competency bequeathed to her for life, and the husband's income be not much greater than her allowance. Rees v. Rees, 3 Phil. 387.

An allotment of alimony pendente lite reduced, on proof that the husband was no longer in a condition to allow the wife, at the rate originally assigned.

This, on motion, founded upon the mere affidavit of the husband, the husband's prayer being, in effect, unopposed by the wife. Cox v. Cox, 3 Add. 276.

AMBASSADOR.

Upon an affidavit made by a secretary to a foreign ambassador, who had been arrested jointly with his wife, for a debt contracted by her whilst sole, "that he, before and at the time of the arrest, was in the actual employment of the ambassador, and in daily attendance upon him, writing dispatches and other official documents and communications:" Held insufficient, inasmuch as it did not state that he was a domestic servant, nor did it state anything to shew that he was within the reason of the privilege, when he was first employed, &c. English v. Caballero, 3 D. & R. 25.

AMBIGUITY.

Although a declaration contains ambiguous expressions, yet they are cured by verdict, and must afterwards be taken to have been used in that sense which would sustain the verdict :-Therefore, an objection, that the evidence did not support that construction which would alone constitute an offence, held to be properly taken at the trial as a ground of nonsuit, and not in arrest of judgment. Huntingtower v. Gardiner, 1 Law J. K.B. 120, s. c. 1 B. & C. 227, s. c. 2 D. & R. 450.

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(F) RECORDS.

(G) PROCEEDINGS in Bankruptcy.

(H) WITHIN WHAT TIME.

(I) EFFECT OF, IN GENERAL.

(K) EFFECT OF PROCEEDING WITHOUT MAK

ING THE AMENDMENT.

(L) WAIVER OF order for, whAT AMOUNTS

TO.

(M) COSTS.

3. IN CRIMINAL PROCEEDINGS.

1. AT COMMON LAW.

(A) WRITS OF ENTRY.

Where a writ of entry was sued out in Michaelmas term, and an appearance entered in that term, but the count was entitled of Hilary term following, and not delivered till nearly the end of that term, -the Court set it aside; as the count ought to have been entitled of the term in which the writ was returnable; and they would not allow the demandant to amend. Rowles, demandant; Lawrence, tenant, 4 Law J. C.P. 140.

(B) ESTREATS.

The Court gave leave to file a perfect estreat nunc pro tunc, instead of amending a defective one, which had been returned, and filed in a preceding term, under 3 Geo. 4. c. 46. and 4 Geo. 4. c. 37. Anon. M'Clel. 251.

(C) CERTIORARI.

The Court will order a return to a certiorari to be amended, where it is insufficient, by reason of the returning officer not having signed it. Rex v. the Justices of Lancashire, 5 Law J. M.C. 131, s. c. 7 B. & C. 691.

(D) DECLARATION.

A declaration in an action for breach of promise of marriage consisted of three counts: first, a promise to marry on request; second, to marry within a reasonable time; and third, to marry generally. An application to amend, by inserting a new count to marry on a particular day, was granted, although the declaration had been filed more than two terms, the costs of the application abiding the event of the cause. Horston v. Shilliter, 6 B. Mo. 490.

Where a declaration by an executor stated a promise to his testator, the Court permitted him to amend by laying a promise to himself. Tenour v. Smith, 1 Ken. 141.

In an action against the marshal for an escape, the bill was entitled generally of Michaelmas term, and the escape was alleged to have taken place on the 15th of November.

There was a special demurrer, for that the cause of action appeared to have accrued after the first day of the term to which the bill had relation. The Court allowed the plaintiff to amend on payment of costs, although it appeared by affidavit that the prisoner had returned into the custody of the marshal before any application for liberty to amend was made. Brazier v. Jones, 5 Law J. K.B. 123, s. c. 6 B. & C. 196.

(E) AFTER ISSUE JOINED.

After issue joined and notice of trial given and countermanded, and two subsequent terms had elapsed, the Court, on payment of costs, permitted avowries in replevin to be amended, by altering the description and names of the locus in quo, and by inserting two new avowries. Pryer v. the Duke of Buckingham, 2 Law J. C.P. 78.

(F) VERDICT AND POSTEA.

A verdict improperly delivered by mistake of the foreman of a jury, is amendable on the affidavits of the jury as where the verdict was delivered for the defendant generally by mistake of the foreman, when the jury had found on one issue for the plaintiff and on the other only for the defendant. Cogan v. Ebden, 2 Ken. 24, s. c. 1 Burr. 383.

The first count of a declaration in trespass stated, that the defendant with force and arms, &c. struck and destroyed an iron scraper of the plaintiff's, affixed to his house, and also assaulted him; and the second count alleged that the defendant destroyed the scraper, without stating it to have been fixed to the freehold: Held, that as the jury had found a general verdict for the plaintiff, with two shillings damages, he was entitled to full costs, and the Court refused to amend the postea by entering a verdict for the defendant on the first count. Reece v. Lee, 7 B. Mo. 269.

Where a declaration of assumpsit contained several counts, some of which were bad, and the jury found a general verdict,-the Court allowed the postea to be amended by the Judge's notes, by entering the verdict on one count which was good, although the cause had been removed by writ of error to the Court of King's Bench, and argued there, before the application for the amendment was made. Richardson v, Mellish, 4 Law J. C.P. 68, s. c. 3 Bing. 334, s. c. 9 B. Mo. 579, s. c. 1 B. & C.

189.

not certified the practice of that court so as to make the record complete, the Court of King's Bench will send it back to be amended. Williams v. Lord Bagot, 2 Law J. K.B. 152, s. c. 4 D. & R. 315.

Ån amendment of the record in ejectment may be demanded by the plaintiff on payment of costs of the application, against the defendant who refuses to give up the possession. But if the defendant consents to give up the possession, the plaintiff must pay the whole costs up to the time of the application. Doe d. Lewis v. Coles, 1 R. & M. 380. [Best]

The Nisi Prius record may be amended after verdict, by the insertion of a similiter. Reeder v. Bloom, 3 Law J. C.P. 52, s. c. 2 Bing. 384.

The amendment of a record is confined to the term in which it has been filed. Anon. 1 M'Clel. 251.

Where the issues are entered informally, a court of error will adjourn the hearing of the case, to afford an opportunity for the party to apply to the court below to amend the record, unless the counsel will consent to argue upon the presumption of such amendment. Hawkey v. Borwick, 1 Y. & J. 376.

In ejectment, the plaintiff declared for twenty messuages, twenty tenements, &c.; and after verdict, and a writ of error brought in the King's Bench, this Court allowed the record to be amended, by striking out the words "twenty tenements." Doe d. Laurie v. Dybal, 6 Law J. C.P. 86, s. c. 1 M. & P. 330.

2. IN EQUITY. (A) BILLS.

Leave to amend by adding parties, implies liberty to introduce as much new matter as is requisite to shew the interest of those parties. Hawkins v. Miles, 1 Law J. Chanc. 76.

A mortgagee is not entitled to amend his bill, so as to convert it into a bill on behalf of himself and all the other creditors of the testator. Morgan v. Burney, 1 Law J. Chanc. 228, s. c. 1 S. & S. 358.

Where, after answer, the plaintiff applied for leave to amend his bill by adding a co-plaintiff: Held, that such an application is not a matter of course, except where the proposed co-plaintiff possesses the same interest as the plaintiff himself, or is merely joined in accordance with formality as a copartner, co-executor, or co-trustee, in a suit for the benefit of the cestui que trust; but even in that case the production of an affidavit shewing the materiality of the amendment, and that the fact which requires the joinder of the party came to the plaintiff's knowledge after the filing of the bill, and the consent of the co-plaintiff, are indispensable requisites. The Governors of Lucton School v. Scarlet, 13 Price, 54. A plaintiff cannot amend his bill after replication and subpoena to rejoin, unless on a special application, shewing that he has used all reasonable diligence. Wright v. Howard, 6 Mad. 106.

A bill will be ordered to be taken off the file for irregularity, if it is amended by interlineation, especially if neither the draft nor the engrossment of the amendment be signed by counsel. Pitt v. Macklew, 1 S. & S. 136.

Where an order has been obtained by the plaintiff, to amend, and that the defendants may answer ex

15

ceptions and amendments at the same time, the defendant may move that the order be discharged or the amendments be made within ten days. Whitehouse v. Hickman, 1 S. & S. 105.

Where the counsel who signs the original bill signs also the draft amendments, and the amendments are such as not to make a new engrossment necessary, his name need not be affixed thereto. Webster v. Threlfall, 1 Law J. Chanc. 109, s. c. 1 S. & S. 125.

When a plaintiff amends a bill, the defendant is entitled to take out orders for time to answer, even though the plaintiff should require no answer, and the amendments should be such as to make no new answer necessary. Kelsham v. Crowther, 2 Law J. Chanc. 85.

After a plea allowed to part of the bill, the rest of the bill being answered, the plaintiff cannot amend his bill as of course, but must make a special application for leave to amend, stating the purport of the proposed amendment; and in such a case leave will not be granted to introduce any amendments which tend either to deny the truth of the plea or to avoid it. Taylor v. Shaw, 2 Law J. Chanc. 145.

After a plea has been allowed upon argument, the plaintiff will not be permitted to amend his bill, so as to destroy the effect of the plea. Batho v. Fulton, 2 Law J. Chanc. 196.

A files his bill against B and other defendants, and B files a cross bill against A; then A amends his bill; and subsequently, his answer to the cross bill being reported insufficient, B obtains an order to amend the cross bill, and that A shall answer the amendments and exceptions together: afterwards A amends his bill by an alteration in the christian name of a defendant: Held, that with respect to the right of obtaining an answer, B, by his amendment, lost his priority, and did not regain it in consequence of the immaterial amendment subsequently made by A. Glassington v. Thwaites, S Law J. Chanc. 208.

Pending an injunction, the Court refused to permit a bill of discovery to be amended, after answer, by adding a prayer for relief, and in other respects as might be deemed expedient. Jackson v. Strong, M'Clel. 245, s. c. 13 Price, 494.

After an order to dismiss, previous to an application to amend the bill, the amendments must be stated to the Court. Scott v. Carter, M'Clel. 517.

Upon the hearing of a petition of appeal presented by the defendants, leave was given to the plaintiffs to amend their bill by making it either a bill and information, or an information. Magdalen College v. Sibthorpe, 1 Russ. 154.

An order to amend, and for defendant to answer amendments and exceptions at the same time, obtained before the filing of the report allowing the exceptions, is irregular. Rushton v. Troughton, 2 Sim. 33.

Under a common order to amend, a plaintiff may introduce new plaintiffs on the record. Hitchens v. Congreve, 5 Law J. Chanc. 176.

Replication allowed to be withdrawn, and bill amended by striking out the name of a plaintiff, and making him a defendant, and by stating such facts and circumstances relating to certain transactions between that plaintiff and the defendant, as were material to shew that the other plaintiffs were not, and ought not to be, bound by the acts or misrepre

16

sentations of that plaintiff respecting the property in the pleadings mentioned, or the purchase thereof, and as were material to shew that such acts and misrepresentations of the said plaintiff were evidence against the defendant: the plaintiffs who made the application giving security for costs, to the satisfaction of the Master, and undertaking to amend within a given time, paying the costs of the application, the usual costs of the amendments, and withdrawing the application: the extra costs of the amendments to be costs in the cause. Small v. Attwood, 2 Y. & J. 512.

(B) PLEAS.

The court refused to permit the defendant to amend his plea by embodying certain accounts, where they were of opinion, that if they were put upon the record, they would not constitute a good plea. Attorney General v. Brooksbank, 1 Y. & J. 37.

(C) ORDERS.

Where, in consequence of erroneous spelling in the orders of the Court, the name of a party has been mis-spelled in the entries of transfers in the books of the Bank of England, the Court will amend its own orders, but will not make an order upon the Bank to correct the entries in their books. Newton v. Clark, 1 Law J. Chanc. 168.

(D) DECREES.

Clerical errors in a decree will be amended. Tomlins v. Palk, 1 Russ. 475.

A decree having been drawn up according to the minutes, which omitted to state that issues were directed, a motion to amend the same by the insertion of such direction was refused. Stuart v. Greenall, 9 Price, 480.

(E) INJUNCTIONS.

An amendment without prejudice to an injunction, is a motion of course, and may be made without notice, where the injunction has been obtained on the merits; but where the injunction has issued on account of delay, it is not only indispensable to give notice, but the proposed amendments must be disclosed in the notice. Pratt v. Archer, 1 S. & S. 433.

Amendment of bill, allowed without prejudice to an injunction which had been obtained on the merits. King v. Turner, 6 Mad. 255.

Upon an application for the plaintiff to amend his bill, without prejudice to an injunction previously obtained on the merits, the particular amendments must be specified. Bell v. Brockbank, 2 Y. & J.

181.

(F) RECORDS.

When a cause, being brought to a hearing, is ordered to stand over to amend by adding parties, a new plaintiff cannot be added.

If a new plaintiff be added improperly, and no other step taken, the Court will permit the record to be re-amended, by striking out the name of the newly-added plaintiff, and making him a defendant. Sopers v. Myers, 3 Law J. Chanc. 48.

(G) PROCEEDINGS IN BANKRUPTCY. Where a commission of bankruptcy contained a

fatal mistake, which the solicitor concealed, the Court refused to permit the commission to be amended, but ordered it to be superseded. Ex parte Forshaw and others, 1 G. & J. 368.

But where a petition in bankruptcy, impeaching the validity, of the commission, was improperly entitled " In Chancery," the Court allowed it to be amended. Er parte Ğlandfield, 1 G. & J. 387.

Where a bankrupt is brought up by habeas corpus to be discharged, the Lord Chancellor, before he enters upon the question of the validity of the committal, will ascertain whether the warrant be truly set forth in the return to the writ, and if it be not, he will order the return to be amended. In re Power and Jackson, 2 Russ. 583.

(H) WITHIN WHAT Time.

Under an order permitting a plaintiff to amend within a month, the amendment must be made within a lunar month.

The Court will not relieve a plaintiff from the consequences of a mistake in acting under such an order, when his conduct shews that he had not in view the due prosecution of the suit. Creswell v. Harris, 4 Law J. Chanc. 94.

(I) EFFECT OF, in general.

A plaintiff, after allowing more than three terms to elapse without taking any proceedings, amended his bill, under an order for that purpose, and obtained possession of the defendant's office-copy of the bill, in order to amend it also: Held, that the defendant, by delivering to the plaintiff his office-copy must be considered as having waived any right, which he might otherwise have had, to dismiss the bill for want of prosecution. Kendall v. Beckett, 1 Russ.

152.

(K) EFFECT OF PROCEEDING WITHOUT MAKING THE AMENDMENT.

Where an order to amend had been obtained, but no amendment was actually made, and many years afterwards, the executors, not knowing the amendment had not been effected, filed a bill of revivor, and proceeded as if the amendment had been made : Held irregular. Hughes v. Dumbell, 1 Russ. 317.

(L) WAIVER OF Order for, what amounts to.

Whether proceedings taken after an order to amend, previous to the amendments and order for that purpose being entered, amounts to a waiver thereof, is unsettled. Hughes v. Dumbell, 1 Russ. 317.

(M) COSTS.

If two out of three distinct amendments to a bill proceed from the negligence or error of the plaintiff, the Court will order the extra costs of the amendments to be paid to the defendant. Watts v. Manning, 1 S. & S. 421.

Where, after answer to a bill for setting aside a deed, the plaintiff amended the bill by seeking to establish the deed, the Court ordered him to pay the costs of the original bill. Mavor v. Dry, 2 S. & S. 113.

3. IN CRIMINAL PROCEEDINGS. The caption of an indictment may be amended. Rer v. Davis, 1 C, & P. 470. [Park]

A plea in abatement in a criminal proceeding is not amendable. Rex v. Cooke, 2 Law J. K.B. 152, s. c. 2 B. & C. 871, s. c. 4 D. & R. 592.

A judgment imposing a punishment for a longer period of time than the law authorizes, when impeached upon error, cannot be remitted to the inferior court to amend; it must be reversed. v. Ellis, 5 Law J. M.C. 1.

ANIMALS.

[See TRESPASS.]

Rer

An action of trespass does not lie against the master of a dog, which voluntarily jumped into the plaintiff's field, without his consent. Brown v. Giles, 1 C. & P. 119. [Park]

On a plea to an action for shooting a dog, that the dog attacked the defendants, and was accustomed to attack and bite mankind: Held, that these allega. tions were material, and that production of testimony in support of them was indispensable.

To rebut the averment, that a dog is accustomed to attack and bite mankind, plaintiff may give evidence to shew that the dog is in general quiet. Clark v. Webster, 1 C. & P. 104. [Park]

An annuity, given by a will generally, commences from the death of the testator, and not from the end of the year after. Houghton v. Franklin, 1 Law J. Chanc. 231, s. c. 1 S. & S. 390.

If an annuity be a charge upon the whole of a testator's property, the annuitant is entitled to have any deficiency which has been occasioned by the conversion of stock, as the five per cents into the four, supplied out of the other funds, which were bequeathed to other persons. Davies v. Wattier, 1 S. & S. 463.

An annuity to Nathaniel Pitts, for twenty-one years, if the grantor should continue during that period possessed of certain estates, and in case of his decease within that term, to such child or children, as Nathaniel Pitts should appoint; and in default of appointment to all of them equally; and if no child, to the widow during her widowhood, is DIGEST, 1822-1828.

17

a personal grant only; and by the death of Nathaniel Pitts and his widow without surviving issue, the annuity immediately terminates. Barford v. Stuckey, 1 Law J. C.P. 73, s. c. 1 Bing. 225: affirmed in error, 3 Law J. K.B. 1, s. c. 3 B. & C. 308, s. c. 5 D. & R. 118.

Where the plaintiff by deed contracted to sell and convey to the defendant, certain estates left him under the will of his father, chargeable with the payment of four several annuities to his sisters; the defendant covenanted to pay such annuities as the same were by the will directed to be paid; and that he would at all times thereafter save and indemnify the plaintiff from and against all actions, suits, and demands, on account of the same annuities, or in anywise relating thereto : Held, that the defen. dant was liable to the payment of such annuities, although it was objected that the covenant for the payment of them, and indemnifying the plaintiff, was one entire covenant, and to be continued as a covenant to indemnify, by paying such annuities only as the plaintiff himself would have been bound to have paid; and that he was not personally liable to pay them. Suward v. Anstey, 3 Law J. C.P. 63, 8. c. 2 Bing. 519: affirmed in error, 4 Law J. K.B. 1.

Whether, where timber has been cut by the grantor of an annuity, charged on the rents and profits of an estate, the annuitant has or has not a right to be paid out of the price, as a part of the profit of the estate charged with the annuity, is unsettled. Fairfield v. Weston, 2 S. & S. 96.

(B) OF THE MEMORIAL.

To render an objection to the memorial of an annuity available, the defect must appear upon the pleadings and evidence. Dunn v. Culcraft, 2 S. & S. 56.

The memorial of an annuity deed must state the christian names of the witnesses. Doe v. Brimley, 6 D. & R. 292.

And if only the initials thereof be inserted, the Court will set aside the intruments given to secure the same. Metcalf v. Bowes, 5 B. & C. 258, s. c. 7 D. & R. 773.

Warrant of attorney set aside for that reason. Cheek v. Jefferies, 1 Law J. K.B. 244, s. c. 2 B. & C. 1, s. c. 3 D. & R. 185.

But the Court will not set aside a warrant of attorney given to secure the payment of an annuity, on a technical objection, as, that the initials of the christian names of the witnesses only appear in the memorial, if much time (as eighteen years) has transpired since the annuity was granted. Const v. Phillips, 2 Law J. K.B. 154, s. c. 4 D. & R. 344.

One of the instruments given to secure an annuity was an under lease. In the memorial it was stated to be "an assignment of certain hereditaments." The Court held, that it was not necessary to set out the legal operation of the deed, but that it was sufficient to use words in the same sense as they were commonly used and understood, and that the word assignment in the memorial, when the writing was an underlease, did not invalidate the annuity. Butler v. Capel, 2 Law J. K.B. 1, s. c. 2 B. & C. 251, s. c. 3 D. & R. 485.

The grantor of an annuity assigned several policies of insurance on his own life to the grantee,

D