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count was so delivered, though the plaintiff's case was not closed: Cleave vs. Jones, Hereford Summer Assizes, 1851. It must be noticed, also, that the power to amend clearly does not extend to altering the charge in the indictment from one offence to another offence. For instance, an indictment for 'forging' could not be altered into an indictment for ' uttering,' nor an indictment for stealing' into an indictment for obtaining by false pretences.'

"Equally clear is it that the amendment ought not to be made so as to apply to a different transaction. Every offence, however simple it may be, consists of a number of particulars; it must have time, and place, and its component parts, all of which together constitute one individual transaction. Now the real meaning of the clause is that, provided you to keep to the same identical transaction, you may amend any such error as is mentioned in the clause as to one or more of the particulars included in such transaction. For instance, a

burglary is charged in the house of James Jones, in the parish of Winkhill, and stealing the goods of John Jeffs. The evidence shows that a burglary was committed in every respect as alleged, except that the goods were the property of James Jeffs. There an amendment would clearly be right. But suppose, instead of such a case, it was proposed to prove a burglary at another time, at another place in another man's house, and the stealing of other goods; this clearly would not be a case for amendment. The proper mode to consider the question is this: the Grand Jury have had evidence of one transaction, upon which they found the bill; the case before the Petty Jury

ought to be confined to the same transaction, but if it is, it may turn out that, either through insufficient investigation or otherwise, the Grand Jury have been in error as to some particular or other, and upon the trial the error is discovered. Now this is just the case to which the clause applies. A civil case may afford an apt illustration. The plaintiffs declared on a promissory note for £250, made by the defendunt, dated the 9th of November, 1838, payable to the plaintiffs, or their order, on demand; the defendanf pleaded that he did not make the note; the plaintiffs proved on the trial a joint and several promissory note for £250, made by the defendant and his wife, dated the 6th of November, payable twelve months after date, with interest. There was no proof of the existence of any other note. Although it was objected that there was a material variance in the substantial parts of the note, the date the parties, and the period of its duration, it was held that the declaration was properly amended, so as to make it correspond with the note produced; for it was a mere misdescription, and it was just the case in which the Legislature intended that the discretionary power of amendment should be exercised: Beckett vs. Dutton, 7 M. & W. 157. The amendment was made under the 3 & 4 Wm. IV., ch. 42, sec. 23.

"The following appear to be the sort of variances which are amendable: In an indictment for bigamy, a woman described as a 'widow' who is proved to be unmarried: Rex. vs. Deely, R. & M. C. C. R. 303; 4 C. & P. 579; or as ' Ann Gooding,' where the register described her as Sarah Ann Gooding: Reg. vs. Gooding, C. & M. 297. In an indictment for night poaching

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describing a wood as 'The Old Walk,' its real name being The Long Walk:' Reg: vs. Owen, R. & M. C. C. R. 118. In an indictment for stealing 'a cow,' which was 'a heifer;' Cooke's case, 1 Leach, 105; 'a sheep,' which turned out to be 'a lamb': Rex. vs. Loom, R. & M. C. C. R. 160; or 'ewe': Rex. vs. Puddifoot, R. & M. C. C. R. 247;' a filly,' which was a 'mare': Reg. vs. E. Jones, 2 Russ. C. & M. 140; 'a spade,' which turned out to be the iron part, without any handle; Rex. vs. Stiles, 2 Russ. C. & M. 109. So in an indictment for a nuisance, by not repairing, or by obstructing a highway the termini of the highway might be amended. So where an indictment alleges a burglary, or house-breaking, in the parish of St. Peter, in the County of W., and it appears that only part of the parish is situated in such County, the indictment may be amended: Reg. vs. Brookes, 1 C. & M. 543; Reg. vs. Jackson, 2, Russ. C. & M. 801.

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"Such are some of the instances in which amendments would clearly be right, but it is easy to suggest other cases in which an amendment ought not to be made. Suppose, on the trial of an indictment for stealing a sheep, evidence were given of stealing a cow, vice versa, or on an indictment for stealing geese it were proposed to prove stealing fowls: these are cases in which no amendment ought to be made; it is impossible to conceive that the Grand Jury can have made such a mistake, and the offence, though in law the same, and liable to the same punishment, is obviously as different as if it were different in law, and liable to a different punishment.

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civil cases as to the instances in which amendments ought to be made, and some of the principles laid down in those decisions may form a useful guide in questions arising under this clause, and they are, therefore, here introduced.

"It has been well laid down by a great Judge, that the fairest test of whether a defendant can be prejudiced by an amendment is this: Supposing the defendant comes with evidence that would enable him to meet the case as it stands on the record unamended, would the same enable him to meet it as amended:" per Rolfe, B., Cooke vs. Stratford, 13 M. & W. 379. If, whatever would be available as a defence under the indictment as it originally stood, would be equally so after the alteration was made, and any evidence the defendant might have would be equally applicable to the indictment in the one form as in the other, the amendment would not be one by which the defendant could be prejudiced in his defence, or in a matter material to the merits: Gurford vs. Bailey, 3 M. & G. 781. If the transaction is not altered by the amendment, but remains precisely the same, the amendment ought to be allowed: Cooke vs. Stratford, 13 M. & W. 379. But if the amendment would substitute a different transaction from that alleged, it ought not to be made: Perry vs. Watts, 3 M. & G. 549: Brashier vs. Jackson, 6 M. & W. 549; and the Court will look at all the circumstances of the case to ascertain whether the transaction would be changed by the amendment. If the amendment would render it necessary to plead a different plea, the amendment

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ought not to be made: Perry vs. Watts, 3 M. & G: 775; Brashier vs. Jackson, 6 M. & G. 549.

"It was laid down in two cases of perjury, which were tried some years ago, that amendments in criminal cases ought to be made sparingly under the 9 Geo. IV. ch. 15: Rex vs. Cooke, 7 C. & P. 559; Reg. vs. Hewins, 9 C. & P. 786. These cases occurred at a time when amendments in criminal cases were looked upon with great disfavour; but the opinion of the Legislature, evidenced by the 11-12 Vic. ch. 46, sec. 4, the 12-13 Vic. ch. 45, sec. 10, and the present statute, clearly is in favour of amendments being made in all cases where the amendment is not material to the merits, and the prisoner is not prejudiced by it. In civil suits, the 9 Geo. IV. ch. 15, and the 3-4 Wm. IV. ch. 42, sec. 23, being remedial Acts, have always received a liberal construction: Smith vs. Brandram, 2 Scott, N. R. 545, 2 M. & G. 244; Smith vs. Knoweldon, 2 M. & G. 561; Sainsbury vs. Matthews, 4 M. & W. 343; and it has been held, that the fact of an action being a harsh and oppressive proceeding on the part of a landlord, who was taking advantage of a forfeiture in order to get possession of property on which the defendant had laid out a large sum of money, was not a consideration which ought to influence a Judge against allowing an amendment; for if the amendment did not prejudice the defendant in his defence, it ought to be allowed: Doe d. Marriott vs. Edwards, 1 M. & Rob. 319, Parke, B.

"In fact the Legislature has carefully specified the questions to be considered previous to making an amendment: these are, 1st, whether the variance be material to the merits of the case; and 2ndly, whether

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