brought to try a right or custom, or the like, the court will CHAP.XXVIII. set aside the verdict, and enter a verdict for the plaintiff with nominal damages (h). On judgment non obstante veredicto, neither party is entitled Costs of. to the costs of the immaterial issues (¿). (h) Selby v. Robinson, 2 T. R. 758; 6 Co. 59 b. (1) Goodburne v. Bowman, 3 Moo, & Sc. 69; 9 Bing. 667; 2 Dowl. 206, S. C.: and CHAPTER XXIX. BOOK IV. In what The Motion, ARREST OF JUDGMENT. THE court, upon application, will arrest the judgment for any matter intrinsic appearing upon the face of the record (a), amounting to a defect not amendable or aided at common law or by statute, and for which a writ of error would lie. If, however, some counts in a declaration are bad and some good, and general damages be given, if this cannot be amended from the judge's notes, the court will not arrest the judgment, but will award a venire de novo (b). But a venire de novo cannot be awarded where general damages are assessed upon a declaration containing a misjoinder of counts, and in such a case, therefore, the judgment will be arrested (c). As to the defects which are amendable or aided at common law and by statute, see the following Chapter. After judgment upon a demurrer, however, you cannot move in arrest of judgment whether the demurrer were argued (d) or not (e); but you may after judgment by default (ƒ). 66 By rule of all the courts of H. T., 2 W. 4, r. 1, s. 65, no motion in arrest of judgment, or for judgment non ob stante veredicto, shall be allowed, after the expiration of four days from the time of trial, if there are so many days in term; nor in any case after the expiration of the term, provided the jury process be returnable in the same term. The rule applies to trials out of term, as well as in term. All such motions, therefore, in any of the courts must now be made in the first four days of term which occur next after the trial (g). If the cause was tried out of term, then the motion must be made within the first four days of the term ensuing the trial (h). Where there were several issues in law and in fact, and the issues in fact were tried first, the court held that the defendant could not move in arrest of judgment, until after the demurrers had been determined (i). In moving for a new trial, if there be any ground for arresting the judgment, the rule should be obtained in the alternative for a new trial, or for an arrest of judgment (k). (a) See Newball v. Adams, 8 Taunt. 235. (b) Leach v. Thomas. 2 M. & W. 427: Airey v. Fearnsides, 6 Dowl. 654: 4 M. & W. 168, S. C.: overruling Holt v. Scholfield, 6 T. R. 691, &c. (c) Corner v. Showe, 6 Dowl. 584, (d) Edwards v. Blunt, 1 Str. 426. (f) Edwards v. Blunt, 1 Str. 425. (h) Weston v. Foster, 2 Bing. N. C. 701; any day before judgment was actually signed; but this decision was disapproved of and questioned in the above case of Weston v. Foster, and, it seems, is not correct. In Lane v. Crockett, (7 Price, 566; 1 Tyr. 225, n.), the Court of Exche quer held that the motion could not be made after an unsuccessful motion for a new trial; and although the contrary is laid down in Manning's Exch. Pract. 353, that seems to be a correct decision; so that, on the whole, the practice in all the courts upon the point seems to be that laid down in the above text. (Thomas V. Jones, 4 M. & W. 28). (i) Goodwright v. Hodgson, Andr. 282. (k) See ante, 1100: Weston v. Foster, supra. After Certi We have seen (ante, Vol. I. 331) that, by the 1 W. 4, CHAP. XXIX, e. 7, s. 2, the judge before whom the action is tried may certify before the end of the sittings or assizes that execu- ficate for tion ought to issue forthwith, in which case judgment may immediate be signed and execution issued according to the terms of the certificate, but that the court may arrest such judgment, and restore the party to all (if any) he has lost thereby. Execution. If judgment be arrested, each party pays his own costs (7). Costs on. But where the plaintiff obtained a verdict in the Exchequer, wherein judgment was arrested, which judgment was reversed by the Court of Exchequer Chamber, it was held that the plaintiff was entitled to the costs of the motion in arrest of judgment, and that such costs must be taxed by the officer of the Exchequer (m). (1) Cameron v. Reynolds, Cowp. 407; (m) Adams v. Meredete, 3 Y. & J. 419. Gilb. C. P. 272. CHAPTER XXX. AMENDMENT AND JEOFAILS, Book IV. When and how. After Demurrer. SECT. 1. Amendment, &c., generally. 2. Amendment, &c., of particular Proceedings. When and how.] AT any time before judgment, in ordinary cases, the proceedings may be amended by judge at chambers, upon summons calling upon the opposite attorney to shew cause why the party applying should not have leave to amend; in other cases the amendment may be obtained by application to the court (a). The parties cannot in general take upon them to amend their own proceedings, without leave of the court or a judge (b). After demurrer, general or special, and before argument, it is usual to give the other party leave to amend on payment of costs (c); and it has been given in many cases even after demurrer argued, and even after a cur. adv. vult(d), but before judgment, where the justice of the case required it (e). The court, however, have refused this to a plaintiff in a qui tam action (f); in an action against bail (g), and in a hard action (h); and to a defendant after the plaintiff had lost a trial(). The party demurring, also, has been allowed to strike out a similiter which was entered in the issue by mistake (j). (a) See form of the rule, Chit. Forms, (c) Ante, 665: Hatton v. Walker, 2 Str. (d) Rivis v. Watson, 5 M. & W. 255. 391: Potten v. Bradley, 2 Moo, & P. 78, 81: Edmonds v. Walter, 2 Chit. Rep. 292: Morant v. Sign, 2 M. & W. 95, and note. And the court have allowed the amendment, without costs, even after argument. (Heydon v. Thompson, MS., K. B., 9th Nov. 1833: and see Solomons v. Lyon, 1 East, 369: post, 1124). See form of rule, Chit. Forms, 627. (f) Rex v. Holland, 4 T. R. 459: Evans v. Stevens, Id. 228: Wood v. Grimwood, 10 B. & C. 689. (g) Sarby v. Kirkus, Say. 117. (h) Noble v. King, 1 H. BL. 37. (i) Jordan v. Twells, Hardw. 171. (j) Stevens v. Hudson, (Bail of), 2 Ld. Raym. 1137. SECT. 1. Also, under particular circumstances, the court have allowed CHAP. XXX. the defendant to withdraw his demurrer,and plead de novo, even after argument (k). And an amendment of a plea has been allowed even after judgment on demurrer, though this seems an extreme case (1); and it seems that in such a case an amendment will not be granted unless there be an affidavit of merits (m). What has been now mentioned holds good also where there are several issues in law and in fact, even after argument of the issues in law, but before the trial of the issues in fact; but if the issue in fact be tried first, and contingent damages assessed as to the demurrer, the court, it seems, will not in that case allow either of an amendment, or of the demurrer being withdrawn (n). The court would, under circumstances, refuse to allow a defendant to amend after a second demurrer to the same pleading (0). The judge at Nisi Prius, upon application, may allow At Nisi Prius. the record of Nisi Prius to be amended, and may order the clerk of Nisi Prius to amend it instanter (p), whether the judge who tries the cause be a judge of the court in which the record was made up or not (see 1 G. 4, c. 55, ss. 5, 6; Vol. I. 99); and this whether the defect be in a material allegation or not (q). And by the 9 G. 4, c. 15, (Vol. I. 280), in cases where a variance may appear between written or printed evidence, and the recital or setting forth thereof on the record, the court or a judge sitting at Nisi Prius may order the record to be amended on payment of costs. Also by the 3 & 4 W. 4, c. 42, s. 23, already noticed, (ante, Vol. I. 281), the court or judge at Nisi Prius, where there is a variance between any matter given in evidence (not material to the merits of the case, and by the mis-statement of which the opposite party cannot have been prejudiced) and the statement of it on the record, may order the record to be amended, &c. The courts have in particular instances permitted the plain- After Verdict, tiff to amend his declaration or replication, and the defend- &c. ant to amend his plea, in cases where there has been nothing to amend by, after issue joined, and after the proceedings have been entered upon record; and even after a trial has been had thereupon. In a case (r) after error had been brought in the Queen's Bench, an amendment was made in the record in error (s). And in another case (t) an amendment after verdict in an action of trover was made, by charging one of fifteen defendants with conversion. Also, in another case (u), an amendment by the insertion of a defendant's (k) Ante, 665: Ayres v. Wilson, 1 Doug. 385: Waters v. Ogden, 2 Id. 452: Alder v. Chip, 2 Burr. 756: Cholmeley v. Paxton, 3 Bing. 1; 2 Moo. & P. 127, S. C.: sed vide per Littledale, J., Hensworth v. Fawkes, 1 Nev. & M. 330. (1) Atkinson v. Bayntum, 1 Scott, 424; 1 Bing. N. C. 740, S. C. (m) See per Tindal, C. J.: Bramah v. Roberts, 1 Bing. N. C. 481. (n) Robinson v. Raley, 1 Burr. 322; Baden v. Flight, 3 Bing. N. C. 35. (0) See Kinder v. Paris, 2 H. Bl. 561. (q) Reid v. Smart, Chit. Col. Stat. (t) Smith v. Fuller, 1 Ld. Raym. 116. |