SECT. 2. fendant, even where the statute would have been a bar to a CHAP. XXX. new action; but Littledale, J., said, that the court might allow informalities or mere verbal mistakes to be amended. The court or a judge will allow an amendment of an indorsement of the writ, if that indorsement be one required by a rule of court and not by statute, upon the terms of plaintiff's paying the costs of amendment, and proceedings being stayed until four days after the amendment made (s). It has been considered that a judge at chambers cannot amend the indorsement of a writ of summons by reducing the amount of the claim indorsed upon it, in order to try the cause before the sheriff (t). But, according to more recent decisions, the amendment will be allowed where the case is one proper to be tried before the sheriff(u). It would seem that the capias prescribed by 1 & 2 V. c. 110, s. 3, cannot be amended, (unless, perhaps, in case of an error merely clerical), the act being imperative (v). Writ. Before the alteration of the process by the above statute, it Altering and was usual to alter the return of writs, where they were not reeling executed, and get them re-sealed (x); and this, even when writs were stamped, was allowed, provided the writ could have been made returnable as amended, at the time it bore teste (y). And this may perhaps still be done with the new process, before it is served (z). But, according to a late decision, if a defective writ be re-scaled, it ought to be dated of the day of re-sealing (a). able. Although the court may, in some cases, allow the writ to be Copy served amended, they will not allow an amendment of the copy of it not amendafter service; for the copy is the act of the party, over which the court have no control (b). After verdict, every defect in a judicial writ, in substance or Aided by in form, or variance between it and the declaration, or other Verdict. proceedings, is aided by 5 G. 1, c. 13. So, miscontinuance, discontinuance, or misconveyance of process, is aided after verdict by 32 H. 8, c. 30; and even in penal actions, after judgment by confession or default, by 4 & 5 A. c. 16, s. 2(c). As to what will be a waiver of a defect in process, see ante, Waiver of 1082. Defect. It may, perhaps, be necessary to add, that defects in mesne Defect, no process can never be the subject of a writ of error. Ground for Appearance.] Where the plaintiff's attorney by mistake Appearance. entered an appearance for the defendant by a wrong name, the court, upon application, ordered the officer to amend the appearance, the defendant being correctly named in the writ (d). Where, however, the defendant entered an appearance by a (a) Shirley v. Jacobs, 1 Scott, 67; 3 Dowl. 153, S. C.: Cooper v. Waller, Id. 167. (f) Trotter v. Bass, 3 Dowl. 407; 1 Hodges, 23; 1 Scott, 403, S. C. (u) Edge v. Shaw, 4 Dowl. 189; 2 C., M. & R. 415, S. C.: Frodsham v. Round, 4 Dowl. 509. (v) See Roberts v. Bate, 6 Ad. & El. 778. (z) Israel v. Middleton, 1 Chit. Rep. 321, 398. (y) Durden v. Hammond, 2 D. & R. 211; 1 B. & C. 111, S. C. (2) Ante, Vol. I. p. 119. (a) Knight v. Warren, 7 Dowl. 663. (c) Humble v. Bland, 6 T. R. 255. (d) Wheston v. Packman, 3 Wils. 49: see Goodwright v. Wright, 1 Str. 33: Stratton v. Burgis, 1d. 114: Power v Jones, Id. 445. BOOK IV. the time of signing interlocutory or final judgment, or at any stage of the cause." ᏢᎪᎡᎢ . Infant appearing 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 (1), 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 à 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. rize) (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: Adams v. Luck, 6 Moore, 113; 3 B. & B. 25, S. C. (m) Green v. Rennett, 1 T. R. 782. (n) Cor 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 allowed 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 63: Hodgkinson v. Hodgkinson, 3_Nev. & M. 564: Colston v. Berens, 3 Dowl. 253: Partridge v. Welbank, 5 Dowl. 93. (r) 6 Ad. & El. 778. SECT. 2. fendant, even where the statute would have been a bar to a CHAP. XXX. new action; but Littledale, J., said, that the court might allow informalities or mere verbal mistakes to be amended. The court or a judge will allow an amendment of an indorsement of the writ, if that indorsement be one required by a rule of court and not by statute, upon the terms of plaintiff's paying the costs of amendment, and proceedings being stayed until four days after the amendment made (s). It has been considered that a judge at chambers cannot amend the indorsement of a writ of summons by reducing the amount of the claim indorsed upon it, in order to try the cause before the sheriff (t). But, according to more recent decisions, the amendment will be allowed where the case is one proper to be tried before the sheriff(u). It would seem that the capias prescribed by 1 & 2 V. c. 110, s. 3, cannot be amended, (unless, perhaps, in case of an error merely clerical), the act being imperative (v). Writ. Before the alteration of the process by the above statute, it Altering and was usual to alter the return of writs, where they were not resealing executed, and get them re-sealed (x); and this, even when writs were stamped, was allowed, provided the writ could have been made returnable as amended, at the time it bore teste (y). And this may perhaps still be done with the new process, before it is served (z). But, according to a late decision, if a defective writ be re-sealed, it ought to be dated of the day of re-sealing (a). able. Although the court may, in some cases, allow the writ to be Copy served amended, they will not allow an amendment of the copy of it not amendafter service; for the copy is the act of the party, over which the court have no control (b). After verdict, every defect in a judicial writ, in substance or Aided by in form, or variance between it and the declaration, or other Verdict. proceedings, is aided by 5 G. 1, c. 13. So, miscontinuance, discontinuance, or misconveyance of process, is aided after verdict by 32 H. 8, c. 30; and even in penal actions, after judgment by confession or default, by 4 & 5 A. c. 16, s. 2(c). As to what will be a waiver of a defect in process, see ante, Waiver of 1082. Defect. It may, perhaps, be necessary to add, that defects in mesne Defect, no process can never be the subject of a writ of error. Ground for Appearance.] Where the plaintiff's attorney by mistake Appearance. entered an appearance for the defendant by a wrong name, the court, upon application, ordered the officer to amend the pearance, the defendant being correctly named in the writ (d). Where, however, the defendant entered an appearance by a (8) Shirley v. Jacobs, 1 Scott, 67; 3 Dowl. 153, S. C.: Cooper. Waller, Id. 167. (Trotter v. Bass, 3 Dowl. 407; 1 Hodges, 23; 1 Scott, 403, S. C. (u) Edge v. Shaw, 4 Dowl. 189; 2 C., M. &R. 415, S. C.: Frodsham v. Round, 4 Dowl. 509. (See Roberts v. Bate, 6 Ad. & El. 778. (2) Israel v. Middleton, 1 Chit. Rep. 321,398. (y) Durden v. Hammond, 2 D. & R. 211; 1 B. & C. 111, S. C. (2) Ante, Vol. I. p. 119. (a) Knight v. Warren, 7 Dowl. 663. (c) Humble v. Bland, 6 T. R. 255. (d) Wheston v. Packman, 3 Wils. 49: see Goodwright v. Wright, 1 Str. 33: Stratton v. Burgis, Id. 114: Power v Jones, Id. 445. BOOK IV. Bail-piece. Recognisance of Bail. Declaration. ment allowed. wrong name, and, instead of applying to have it amended, entered a new appearance, and afterwards signed judgment for want of a declaration, the court set aside his proceedings as irregular (e). It may be here observed, that the appearance must strictly follow the forms given by the 2 W. 4, c. 39, in the schedule, or it will be a nullity (ƒ). As to when a defect in the appearance is waived, see ante, 1047. Bail-piece.] The court have refused to amend the bail-piece in a bailable action, unless with the consent of the bail (g); and the Court of Common Pleas have refused it, upon the application of the bail to the sheriff, after an action against them upon the bail-bond and comperuit ad diem pleaded (h). That court have also refused to allow an amendment of the sum in a bail-piece in error, even with the consent of the bail, the effect of the amendment being merely that, if allowed, the writ of error would be a supersedeas of execution (¿). The Court of Common Pleas have also ordered the recognisance of bail to be amended, where the application was made on the part of the bail (k); but they refused to do so where the bail had not assented to it (7). Declaration.] The declaration may be amended, at common law, in the title (m), in the venue (n), in the parties' names (0), and in the body of the declaration, in form (p), or substance (q). What Amend- And this amendment will in general be allowed even in penal actions (r), or in an action against the marshal for an escape(s), provided the amendment do not introduce any new substantive cause of action, or new charge against the defendant (t). But in other actions (provided the bail be not prejudiced) the court will allow the plaintiff to add even a new count, or to strike out a count, upon payment of costs (u), and this even after two terms, provided the counts intended to be added contain no new causes of action(x). And in a late case, where in an action by a banking company the names of two public officers were improperly put on the record as plaintiffs, the 7 G. 4, c. 45, s. 9, requiring the suit to be carried on in the name of one only, the Court of Common Pleas allowed the name of one of the plaintiffs to be struck out on payment of costs (y). And the Court of Common Pleas have, under particular circumstances, allowed (e) Bates v. Bolton, 4 Dowl. 677. (h) Bingham v. Dickie, 5 Taunt. 814: (k) Halliday v. Fitzpatrick, 4 Taunt. 875. (m) Coutanche v. Le Rues, 1 East, 133: Symmonds v. Parmenter, 1 Wils. 78: Stork v. Herbert, Id. 242: Wilkes v. Earl of Halifax, 2 Wils. 256: Brazier v. Jones, 6 B. & C. 196. (n) Ante, 736. (0) See Smith v. Fuller, 1 Ld. Raym. 116: Plaintiff, Gardner v. Walker, 3 Anst. 935: but see Moody v. Aslatt, 3 Dowl. 486: Defendant, Owens v. Dubois, 7 T. R. 698. (p) Marshall v. Rigga, 2 Str. 1162: Stroud v. Tilly, Id. (q) Bondfield v. Milner, 2 Burr, 1098: Havers v. Bannister, 1 Wils. 7. (r) Ante, 1115. (8) Barnes v. Eyles, 2 Moore, 561; 8 Taunt. 515, S. C.: Brazier v. Jones, 6 B. & C. 196. (t) Cross v. Kaye, 6 T. R. 544: Maddock v. Hammet, 7 T. R. 55: see Woodroffe v. Williams, 6 Taunt. 19: Horsten v. Shilliter, 6 Moore, 490: Sweeting v. Halse, 4 M. & R. 383: Morris v. Evans, 1 Dowl. 657. (u) Doe Beaumont v. Armitage, 1 D. & R. 173; Tidd, 644: see Executors of the Duke of Marlborough v. Windmore, 2 Str. 890: Brown v. Crump, 6 Taunt. 300. (a) MS., E. 1820. (y) Holmes v. Pinney, 6 Dowl. &; misreported 4 Bing. N. C. 454: but see Roberts v. Bate, 6 Ad. & El. 778. SECT. 2. the plaintiff to amend his declaration by changing it from CHAP. XXX. assumpsit into debt, even after six terms from the return of the writ (2); and they have allowed an amendment at a later period, where the defendant was the cause of the delay (a). And in a case where the defendant declared in trespass, instead of case, for an injury occasioned by the negligent driving of the defendant's servant, the Court of Queen's Bench allowed the plaintiff to amend the declaration into case, notwithstanding the application was not made until after two terms from the return of the writ (b). But these last-mentioned cases were very peculiar, and were commenced before the form of process prescribed by 2 W. 4, c. 39, in which the form of action is stated in the writ, and must be adhered to in the declaration, and it would seem that since that act no amendment can be allowed which would make the cause of action declared on different from that stated in the writ, unless by consent (c). In a recent case the Court of Exchequer, in an action for false imprisonment, refused to allow a count de bonis asportatis to be added to the declaration after the lapse of the two terms (d). Also, where a jury gave more damages than were laid in the declaration, the court, upon application of the plaintiff, granted a new trial, and gave him leave to amend the declaration by increasing the damages (e). But where a verdict was taken for the damages laid in the declaration, subject to an award, the court refused to allow the plaintiff to amend his declaration by increasing the damages, although it appeared from the affidavit that a larger sum would probably be proved before the arbitrator (f). As to the amendment of a declaration in ejectment, see ante, 736. The court have entertained the application for an amend- Time of Apment in these respects, even after a plea in abatement for the plication for. mistake sought to be amended (g), or after issue joined (h), or the record taken down for trial and withdrawn (i), and even after verdict under particular circumstances (k). They have allowed it also after issue joined on nul tiel record (1); they have also set aside a nonsuit, and allowed the declaration to be amended as to the error for which the plaintiff was nonsuited (m); but they have refused to amend the declaration after a motion made to arrest the judgment for the defect (n). If there be any defect in the declaration arising from the mis (2) Billing v. Flight, 6 Taunt. 419: Billing v. Pooley, Id. 422: and see Atkinson v. Bell, 2 M. & R. 292, 302; 8 B. & C. 277, S. C.: but see Green v. Milton, 4 B. & Ad. 369. (a) Aylwin v. Todd, 1 Bing. N. C. 170. The action was on a charter-party. (b) MS.; also another MS., M. T. 1828: but see Green v. Mitton, 4 B, & Ad. 369. (e) See as to the necessity of the declaration agreeing with the writ in the cause of action, Vol. I. 145: and see per Denman, C. J., in Green v. Mitton, 4 B. & Ad. 369. (d) Conolly v. Finch, Exch., H. T. 1838; 2 Jurist, 49. (e) Tomlinson v. Blacksmith, 7 T. R. 132 and see 2 Chit. Rep. 27 b: Dew v. Katz, 8 C. & P. 315. (f) Pearse v. Cameron, 1 M. & Sel. 675. (g) Garner v. Anderson, 1 Str. 11: Mestaer v. Herts, 3 M. & Sel. 450: Owens v. Dubois, 7 T. R. 698. (h) Executors of the Duke of Marlborough v. Windmore, 2 Str. 890. (i) Mace v. Lovett, 5 Burr. 2833: Cross v. Kaye, 6 T. R. 543: Morriss v. Evans, 1 Dowl. 657: ante, 1112. (k) Wilder v. Handy, 2 Str. 1151: Smith v. Fuller, 1 Ld. Raym. 116: see Marriott v. Lister, 2 Wils. 147: Vicars v. Haydon, 2 Cowp. 841. (1) Symonds v. Parmenter, 1 Wils. 87: Blackmore v. Flemyng, 7 T. R. 447 d: Doubleday v. — 2 Chit. Rep. 27: Rastall v. Stratton, 1 H. Bl. 49. (m) Williams v. Pratt, 5 B. & Ald, 896: Halhead v. Abrahams, 3 Taunt, 81: Dartnall v. Howard, Chit. Sum. Prac. 149: Pullen v. Seymour, 5 Dowl. 164. (n) Collins v. Gibbs, 2 Burr. 899. |