PART I. BOOK IV. name, was allowed after verdict. But where a verdict was taken for the plaintiff by consent, and all matters in difference in the cause were referred to an arbitrator, who certified that for the justice of the case the record ought to be amended, by allowing the plaintiff to substitute a replication, putting all the circumstances averred in the plea in issue: the court held, that they had no power to direct such an amendment (x). After Judgment, and before Error. After Error brought. Terms of and Remedy for Costs of. After judgment and before error brought, a judge at chambers will not, in general, entertain the application, but it should be made to the court; the rule is a rule nisi, which is afterwards made absolute or discharged, as in ordinary cases. After error brought upon a judgment of one of the superior courts, the application for leave to amend must be made to that court, because the record always in fact remains there, a transcript only being sent to the court of error (y); the transcript indeed must be amended, if at all, by the court of error (z). After error from an inferior court to the Court of Queen's Bench, the application may be made either to the Queen's Bench, or in the inferior court (a). After error brought, those things are amendable which were amendable before error brought, so long as diminution may be alleged, and a certiorari awarded (b). The court or judge, upon granting leave to amend, may Amendment, oblige the party applying to submit to such equitable terms as may be necessary to prevent the opposite party from being prejudiced by the amendment (c). If the amendment be made at the trial, it is with or without costs, at the discretion of the judge; in other cases it is allowed usually upon payment of costs, particularly if the error or mistake have arisen from the default of the party, and not from the misprision of any of the officers of the court. But if the amendment be made after error brought, it is usually upon payment of costs of the proceedings in error, provided the plaintiff proceed no further in his writ of error after notice of the amendment (d). If the party who has obtained an order to amend on payment of costs amends, but does not pay the costs, the proper course of the other party, is, either to apply to the court or a judge to stay the proceedings until the costs be paid, or, if he wish to proceed, to apply to have the order of amendment rescinded, and to set aside the amended proceedings as irregular; for the non-payment of the costs, being merely in the nature of a breach of contract, cannot be punished as a contempt, by attachment (e); nor, it seems, could the payment be enforced by execution under the 1 & 2 V. c. 110, s. 18. The party who obtains an order to amend in the usual form is at liberty to act upon it, or (z) Cross v. Metcalfe, 1 Nev. & P. 232. (z) See De Tastet v. Rucker, 3 B. & B.65. (b) 8 Co. 162 a: Richards v. Brown, 1 Doug. 115: Tidd, 9th ed. 714: Tidd's Sup. 129; and the cases of Mellish v. Richard son, 7 B. & C. 819; 11 Moore, 104; 3 Bing. 334, S. C. (c) Alder v. Chip, 2 Burr. 756: and see 1 Salk. 47: 3 Id. 31: Havers v. Banniater, 1 Wils. 7: Low v. Newland, Id. 76: Waters v. Bovell, Id. 223. (d) Beaumont v. Cosin, Barnes, 17: Parsons v. Gill, 2 Ld. Raym. 897: see Moody v. Stracey, 4 Taunt. 588; Tidd, 715. (e) Turner v. Gill, 3 Dowl. 30. to abandon it, at his option; and if he choose the latter, he CHAP. XXX. may proceed as if the order had not been made (ƒ). ас SECT 1. mon Law. tions. What Amendable at Common Law.] It may be necessary What amendto premise that amendments in all cases are entirely in the able at Comdiscretion of the court, and are allowed only in furtherance of justice (g). At common law, the court may amend in In general. all cases whilst the proceedings are in paper, that is, until judgment signed, and during the term in which it is signed; for until then the proceedings are considered as only in fieri, and consequently subject to the control of the court (h). And there is no difference in this respect be- In penal Actween penal and other actions(); and the court will cordingly permit the plaintiff in a penal action to amend, even after the time limited for bringing another action, provided there have been no unnecessary delay upon his part, and that the amendment required do not introduce any new cause of action (k). They have in such actions allowed amendments in names (7), in statement of time (m), and of the amount lent (n), in actions for usury; in the venire (o), in defective averments (p); in the record after verdict (9), and in the verdict itself (r). But the court have refused to allow an amendment in a penal action after much delay (s). Also they refused it in a case where the action was merely within the letter and not within the spirit of the penal act (t). After judgment is signed, or after the term in which it is signed, the pleadings, &c., cannot be amended at common law, but by virtue of the Statutes of Amendments only (u). able by Sta Clerks. What Amendable by Statute.] No process shall be annulled What amendor discontinued for the misprision of the clerks in writing tute. one syllable or letter [or word (x)] too much or too little; but as soon as the mistake is perceived, it shall be amended in due form (y). And the justices before whom the record Misprision of is made, or shall be depending by way of error or otherwise, may amend the same, as well after as before judgment, in the same manner as they might have done by the above statute before judgment (z). Neither of these statutes, however extends to process of outlawry (a). So the court may amend whatever to them seemeth to be the misprision of the clerks in any record, process, word, plea, warrant of attorney, writ, panel, or return, which may for the time be (f) Black v. Sangster, 1 C., M. & R. 521: see Pugh v. Kerr, 5 M. & W. 164. (g) See Rex v. Mayor, &c., of Grampound, 7 T. R. 699. (h) Alder v. Chip, 2 Burr. 756: Cope v. Marshall, Say, 285; 3 Bl. Com. 407; Tidd, 697: Morris v. Evans, 1 Dowl. 657. (i) Richards v. Brown, 1 Doug. 114: Jones v. Edwards, 3 M. & W. 218. (k) Cross v. Kaye, 6 T. R. 543: Maddock v. Hammett, 7 Id. 55: Wood v. Grimwood, 10 B. & C. 689; Tidd, 9th ed. 711: post, 1120, 1121. (1) Solomons v. Jenkins, 2 Chit. 23: Mestaer v. Herts, 3 M. & Sel. 450. (m) Maddock v. Hammett, ubi supra: Bondfield v. Milner, 2 Burr. 1098. (n) Mace v. Lovett, 4 Burr. 2833. (0) Dover v. Mestaer, 4 East, 435. (y) 14 Ed. 3, c. 6, s. 1. (a) 4 H. 6, c. 3. PART I. BOOK IV. before them, so that no judgment shall be reversed by reason of such misprision (b). So, they may amend, for the misprision of the clerks and also of other officers, such as sheriffs, coroners, &c., defects in any record, process, or return before them by way of error or otherwise, in writing a letter or syllable too much or too little (c). It should also be observed that the word "clerk" imports some officer of the court coming within that description; and therefore the court refused to allow a plaintiff in replevin, who had pleaded two bad pleas, and after judgment in his favour in this court, and error brought, to withdraw the same and plead de novo (d). In all these cases there must be something to amend by. What aided at Common Law.] When there is any defect, imperfection, or omission in any pleading, whether in substance or in form, which would have been a fatal objection upon demurrer; yet if the issue joined be such as necesarily 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 the verdict, or the jury would have given it; such defect, imperfection, or omission is cured by verdict at common law, or, in the phrase often used upon the occasion, such defect is not a jeofail after verdict (e). Mistakes and defects in proceedings are also often aided by the acts of the opposite party. Thus, where a declaration is defective in point of form, the defect is frequently cured by the defendant in his plea admitting that which was omitted or defectively stated in the declaration; for by admitting it, he waives all objection to the omission or defective statement. This subject shall be noticed in detail in the next section. What aided by the Statutes of Jeofails.] After verdict, the Want of a warrant of attorney, the want of an original writ or bill (f), or any defects in form therein, mistakes and omissions in pleadings, misjoining of issue, miscontinuance, discontinuance, misawarding of jury process, and the omis sion of a capiatur or misericordia in a judgment, are aided by the several statutes 32 H. 8, c. 30; 18 El. c. 14; 24 J. 1, c. 13; and 16 & 17 C. 2, c. 8 (g); and the same defects are now aided after judgment by confession, nil dicit, or non sum informatus, by stat. 4 & 5 A. c. 16, s. 2, "so as there be [an original writ or bill (h) and] warrants of attorney duly filed.” Also, all defects in writs, original(h) or judicial, or bills (4) are aided after verdict by stat. 5 G. 1, c. 13. These several statutes shall be more particularly noticed in the next Section. Of these, the statute 32 H. 8, c. 30, extends to penal ac (b) 8 H. 6, c. 12: see Green v. Rennett, 1 T. R. 783: Morse v. James, Willes, 125. (c) 8 H. 6, c. 15. (d) Green v. Miller, 2 B. & Ad. 784. (f) The original writ or bill is now abolished by the 2 W. 4, c. 39, except in ejectment which is founded on original writ or bill, and in actions removed from inferior courts. (g) See Bull. N. P. 322, 323. tions (i); but there is a proviso in the others that they shall not extend to criminal proceedings, nor to any writ, bill, action, or information upon any popular or penal statutes, other than such as concern the customs and subsidies of tonnage and poundage (k). CHAP. XXX. SECT. 2. unnecessary Statutes of Although in some of these statutes the court is directed to Actual amend the defect, yet an actual amendment is never made, but Amendment the benefit of the statutes is attained by the court's overlooking under the the exception (7). And for this reason, if error be brought Jeofails. for any defect aided by these statutes, no costs are given to the plaintiff in error, even although the amendment be made; for the court might have given judgment on the writ of error without making the amendment, in the same manner as if the amendment had been actually made (m). SECT. 2. Amendment, &c., of particular Proceedings. Entry of Warrant of Attorney, 1117. Original Writ or Bill, 1118. Appearance, 1119. Bail-piece, 1120. Declaration, id. Particulars of Demand, &c., 1123. Notice of disputing Bankruptcy, Demurrer, id. Writ of Inquiry, 1126. Writ of Trial, id. Issue, 1127. Jury Process, 1128. Nisi Prius Record, 1129. Scire Facias, 1133. Writ of Error, &c., 1134. Warrant of Entry of Warrant of Attorney.] THE want of a warrant of Entry of attorney was aided after verdict by 18 El. c.14, (and see 32 H. 8, c. 30), although not perhaps after judgment by default (a). Also, any mistake or defect which could be attributed to the misprision of the clerks might be amended, even after error brought, by 8 H. 6, c. 12. Thus the court allowed of amendment in the surname of the attorney, and in the addition, in order to make the warrant correspond with the declaration (b). And now, by rule of all the courts of H. T., 4 W. 4, r. 4, “no entry shall be made on record of any warrants of attorney to sue or defend." And by rule of H. T., 1 Vict., of the Court of Common Pleas, it is ordered "that from and after the last day of this present Hilary term, it shall not be necessary to file warrants of attorney to prosecute and defend previous to or at (i) Wynne v. Middleton, 2 Str. 1227; 1 Wils. 125, S. C.: Richards v. Brown, 1 Doug. 115. (k) See 16 & 17 C. 2, c. 8: Rer v. Miden, 1 Str. 62: Atcheson v. Everitt, Cowp. 382: Merrick v. Hundred of Ossul ston, Hardw. 409. (l) 3 Bl. Com. 407. (m) Conden v. Coulter, Hardw. 314. (b) Richards v. Brown, 1 Doug. 114. BOOK IV. the time of signing interlocutory or final judgment, or at any stage of the cause.' PART I. Infant ap pearing by Attorney when aided. Original Writ or Bill. Plaint in inferior Courts. Process. If a plaintiff under age appear by attorney, in personal actions or ejectment, it is aided after verdict by 21 J. 1, c. 13, and after judgment by confession, nil dicit, or non sum informatus, by 4 & 5 A. c. 16, s. 2. Original Writ or Bill.] When the proceedings by original writ were in existence (c), if the original writ were defective through any misprision of the clerks, it might have been amended. (8 H. 6, c. 12) (d). Also, when the proceedings by bill were in existence (e), a bill upon the file might have been amended at any time(ƒ). Also, defects and variances in or the want of an original, or a bill, were aided by stat. 16 & 17 C. 2, c. 8; 4 & 5 A. c. 16, s. 2; 21 J. 1, c. 13; 4 & 5 A. c. 16, s. 2; 5 G. 1, c. 13; 18 El. c. 14; 4 A. c. 16, s. 2 (g). As to defects in plaints levied in inferior courts, see Feathers v. Bryan, 1 Wils. 180. Process.] Before the alteration of process for commencing actions by the 2 W. 4, c. 39, process was amendable for misprision of the clerks, at any time, by 14 Ed. 3, st. 1, c. 6; 9 H. 5, s. 1, c. 4; 8 H. 6, c. 12; and 8 H. 6, c. 15; provided there were something to amend by (h). Thus, before 2 W. 4, c. 39, a capias ad respondendum might have been amended in the names, (though not in the number) of the parties (i), in the teste (k), in the return (7), in the time of recording it (m) and the like. So, the court would have amended a non-bailable bill of Middlesex, or latitat (n). But if a writ were void, for instance, if returnable on a dies non juridicus, as in such a case it was altogether void, it could not be amended (o). The court might then permit an amendment, even after a rule nisi obtained to quash the writ (p).. Now, however, as we have seen, (ante, Vol. I. 522, 120), since 2 W. 4, c. 39, the courts have come to a determination not to allow any amendment in the mesne process itself, or in any indorsement thereon prescribed by statute, (and not merely by rule of court), unless in cases where the Statute of Limitations would be a bar (9); and indeed in the case of Roberts v. Bate(r) the Court of Queen's Bench denied their power to amend by adding a de (c) See now the 2 W. 4, c. 39. (d) See Green v. Miller, 2 B. & Ad. 781; 8 Co. 159: King v. The Bishop of Carlisle, Barnes, 9: Browne v. Hammond, Id. 10: Greenwood v. Richardson, Id. 16: Losgin Demandant, Rawlins Tenant, Pullen Vouchee, Id. 22: Smith v. Wilmer, 3 Atk. 599. (e) See now the 2 W. 4, c. 39. (f) See R. M., 10 G. 2, r. 2, b. (g) See 1 Saund. 318; 2 Saund. 101, r.: (h) See Green v. Rennett, 1 T. R. 782. (k) Bourchier v. Wittle, 1 H. Bl. 291: Walker v. Hawkey, 5 Taunt. 853: 25, S. C. (m) Green v. Rennett, 1 T. R. 782. (n) Cox v. Munday, 1 W. BL 462: Reubal v. Preston, 5 East, 291: Green v. Rennett, 1 T. R. 782. An amendment in bailable process would not have been al lowed without discharging the bail. (Inman v. Huish, 2 N. R. 133: Marsh v. Blachford, 1 Chit. Rep. 323: Bradshaw v. Davis, Id. 374: ante, Vol. I. 176: Hutchinson v. Hyde, Oct. 10, 1828; Chit. Sum. Pract. 29). (0) Kenworthy v. Peppiat, 4 B. & Ald. 288. (p) Walker v. Hawkey, 5 Taunt. 853: Adams v. Luck, 6 Moore, 113; 3 B. & B. 25, S. C. (q) Lakin v. Watson, 2 Dowl. 633: Hodgkinson v. Hodgkinson, 3 Nev. & M. 564: Colston v. Berens, 3 Dowl. 253: Partridge v. Welbank, 5 Dowl. 93. (r) 6 Ad. & EL. 778. |