BOOK IV. prision of the clerks, it may be amended at any time by leave of the court (o).

PART 1.

Costs of

of.

Before plea, the declaration may be amended without costs, Amendment excepting the costs of the application; after plea or demurrer, it can, in general, be amended only upon the terms of paying costs (p); the court or a judge have, however, the power of ordering the amendment without costs (9).

What Defects are aided by Verdict.

Having stated what defects in a declaration are amendable, we shall now see what are aided, either at common law or under the statutes of jeofails (r). A declaration is aided at common law, after verdict, where there is any defect, imperfection, or omission in it, whether in substance or in form, for which the defendant might have demurred; but the facts so defectively stated or omitted are such as must necessarily have been proved at the trial, in order to entitle the party to the verdict he has obtained (s). Thus, where (before stat. 4 & 5 A. c. 16, s. 9, which rendered attornment unnecessary) an action was brought for rent by the bargainee of a reversion, and the declaration omitted to allege attornment of the tenant, and upon nil debet pleaded there was a verdict for the plaintiff, the omission was holden to be cured by verdict (t); but it would have been a fatal objection after judgment by default(u). So, if the grant of a reversion or incorporeal hereditament be pleaded, and it is not alleged to have been by deed, or a feoffment be pleaded without livery, yet if the grant or feoffinent be put in issue, and found by the jury, the omission is cured by the verdict(x); but it would be fatal after judgment by default. So in an action for a malicious prosecution, if the declaration do not allege that the prosecution is at an end, it is fatal upon demurrer, or after judgment by default (y), but is cured by verdict (). So, an ambiguous expression in a declaration is cured by verdict, and must afterwards be taken to have been used in that sense which would sustain the verdict (a). But if the plaintiff, in his declaration, either state a defective title, or totally omit to state any title or cause of action whatever, a verdict will not cure the defect either at common law or under the statute of jeofails (b). Thus, in an action on a bill of exchange against the indorser, where a demand upon and refusal by the acceptor was not alleged in the declaration, the omission was holden not to be cured by verdict (c). So, in an action against an heir upon the bond of his ancestor, if the declaration omit to state that the ancestor in his bond bound himself and his

(0) 8 H. 6, c. 12: see 1 Doug. 116: Moody v. Stracey, 4 Taunt. 583.

(p) R. M., 10 G. 2, b: and see R. M. 1654, s. 13.

(9) See Wall v. Lyon, 9 Bing. 411; 1 Dowl. 714, S. C.

(r) See fully, 1 Chit. Pl. 6th ed. 673 to 682.

(8) Ante, 1116.

(t) Hitchen v. Stevens, 2 Show. 233:
Rushton v. Aspinall, 2 Doug. 683; 2 Saund.
305 a, n. (13).

(u) Vandeput v. Lord, 1 Str. 78.
(x) Lightfoot v. Brightman, Hut. 54:
Spieres v. Parker, 1 T. R. 145.

(y) Waterer v. Freeman, Hob. 267:
Parker v. Langley, 10 Mod. 209; 1 Doug.

205: Morgan v. Hughes, 2 T. R. 223; see 5 Price, 540: Pipet v. Hearn, 5 B. & Ald. 634.

(2) 1 Saund. 228 c.

(a) Lord Huntingtower v. Gardiner, 1 B. & C. 304; 2 D. & R. 450, S. C.: Sheen v. Rickie, 5 M. & W. 175.

(b) Rushton v. Aspinall, 2 Doug. 63, 658, 628, n.: Small v. Cole, 2 Burr. 1139: Weston v. Matson, 3 Id. 1728: Roe Wrangham v. Hersey, 3 Wils. 275: Spieres v. Parker, 1 T. R. 141-146: Bishop v. Hayward, 4 T. R. 472: Brealey v. Andrews, 2 Nev. & P. 114: Tollit v. Shenston, 5 M. & W. 283.

(c) Rushton v. Aspinall, 2 Doug. 679

heirs, the omission is not cured by verdict (d). however, does not vitiate after verdict (e).

The following defects in a declaration are cured after verdict What Defects by the statutes of jeofails, and after judgment by confession Cured after Judgment by or default, by 4 & 5 A. c. 16, s. 2:-mispleading, insufficient Confession or pleading or jeofail, or other default or negligence of the Default, &c. parties, their counsellors or attornies (32 H. 8, c. 30); lack of averment of any life, so as the person be proved to be alive (21 J. 1, c. 13); want of form in any count, declaration, plaint, bill, suit, or demand (18 El. c. 14) (ƒ); want of profert, or the omission of vi et armis (g), or contrà pacem; mistaking the Christian name or surname of either party, sums, day, month, or year, in any bill, declaration, or pleading, being right in the writ, plaint, roll, or record preceding, or in the same roll or record wherein the same is committed, to which the party might have demurred and shewn the same for cause; or the want of prout patet per recordum; or the want of a right venue, so as the cause were tried by a jury of the proper county where the action is laid (and which is holden to aid the defect of a mis-trial of a local action in a wrong county (h); or any other matters of the like nature, not being against the right of the matter in suit, nor whereby the issue or trial is altered (i). But in no case is a declaration aided by these statutes, where the plaintiff either states a defective title, or totally omits to state any title or cause of action in it. (Supra).

The plaintiff, after obtaining an order to amend his declara- Order may be tion, with leave to defendant to plead de noro, may abandon abandoned. that order and proceed to trial without procuring it to be

rescinded (k).

As to the time for pleading after an amendment of the de- Time for claration, see Vol. I. 157.

Pleading after.

Particulars of Demand, &c.] If a bill of particulars be in- Particulars of correct, the party who delivered it may have leave to amend Demand, &c. it(); or, if not sufficiently explicit, the party may take out a summons, and obtain order for further particulars (m).

As to notice of disputing bankruptcy, notice of objections Notices, &c. to patent, &c., see post, 1126.

Plea and subsequent Pleadings.] Pleas, replications, and Plea and subsubsequent pleadings may be amended at common law, whilst sequent Pleadings. they are in paper, by leave of the court or a judge, upon payment of costs (n). They have allowed a plea of a judgment by an executor to be amended in the sum for which the judgment was recovered, although the application was not made until nearly three years after issue joined (o); and in an action on a promissory note, the court, after issue joined,

(d) 2 Saund. 136, 137 a.

(e) Bull. N. P. 321; Cro. Jac. 94. (f) Seev. Lee, 1 Ld. Raym. 211. (g) Parker v. Bailey, 4 D. & K. 215. (h) Mayor &c. of London v. Cole, 7 T. R. 583: Maitland v. Taylor, 2 Ld. Raym. 1212: Bailiff's and Citizens of Litchfield v. Slater, Willes, 431: and see Meller v. Barber, 3 T. R. 387; 1 Saund. 247.

(i) 16 & 17 C. 2, c. 8. See 1 Saund. 247 a, and the cases there cited; also 1 Saund. 241 b, 228 a; 2 Saund. 7 a.

PART I.

BOOK IV. allowed a defendant to add a plea, shewing that by the foreign law the plaintiff's right of action was tolled by lapse of time (p). And they have allowed a plea to be amended by striking out some averments and inserting others, even after issue joined and witnesses examined on the plaintiff's part on interrogatories, the plaintiff having had notice of the proposed amendment before the examination (q). After demurrer, we have seen that it is usual to give leave to amend the plea; and in some cases this has been done even after judgment (r). In a case in the Common Pleas,the general issue having been pleaded to an action for an assault, and a verdict found for plaintiff, and a new trial granted on payment of costs, the court would not allow the defendant to withdraw the issue and plead accord and satisfaction(s). So, where, in an action of slander, the parties went down to trial on the general issue, and the plaintiff obtained a verdict, the court refused to allow the defendant to amend by adding a plea of justification (t). And it seems that the court will not in any case grant the defendant an amendment and new trial for the purpose of enabling him to add a plea, and raise a defence not available to him under the plea on which he went down to the first trial (u). The court will not allow a plea in abatement to be amended (v).

Replication.

The court have allowed a replication to be amended after the cause had been carried down to trial and made a remanet(x); and, where a replication to a sham plea was defective, the plaintiff had leave to amend, without payment of costs, after demurrer argued (y). A replication of damages ultra to a plea of payment into court may be amended into a replication taking out the money in satisfaction on payment of the defendant's costs incurred subsequently to the plea (=). So, de injuria has been amended into molliter manus imposuit (a). Even after verdict, the court have allowed of an amendment, by inserting the similiter after the replication, instead of an "&c." (b); and in a case in the Common Pleas, where the plaintiff had omitted to reply to one of the defendant's pleas, and the defendant added the similiter as if the plaintiff had replied, the court allowed the plaintiff to amend, by inserting the replication after verdict, upon payment of costs of the application, the merits of the case having been tried upon the other issue (c). The court, however, have refused to allow a replication to be amended after a nonsuit(d), and after a verdict set aside, in an action against an executor (e). Where a verdict was taken for the plaintiff, 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

1833.

(z) Ante, 975.

(a) Low v. Neroland, 1 Wils. 76.

(b) Sayer v. Pocock, Cowp. 407; but this amendment seems unnecessary: see Clark v. Nicholson, 6 C. & P. 712: Stockdale v. Chapman, 4 Ad. & El 419: Broek v. Finch, 6 Dowl. 313.

(c) Cooke v. Burke, 5 Taunt. 164: and see the cases post, 1127, n. (†).

(d) Hutchinson v. Brice, 5 Burr. 292. (e) The Bank of England v. Morris, 2 Str. 1002.

SECT. 2.

that they had no power to direct such an amendment (f). Nor CHAP. XXX. will the court, in general, allow the replication to be amended. in hard actions, particularly after demurrer argued (g). Avowries (h) and pleas in bar (i), in replevin, may be Avowries and amended in the same way as pleadings in other actions. As to withdrawing pleas or replications, and pleading or Withdrawing replying de novo, see Vol. I. 180.

Pleas in Bar.

Pleas, &c.

Clerks in.

Also, the pleadings may be amended, at any time, as to Misprision of defects which, in the opinion of the court, have originated from the misprision of the clerks (k). They may be amended by the draft under counsel's hand (7), or they might have been so by the paper book, when it used to be made up by the clerk of the papers (m).

in aided by

Pleas, replications, &c., are aided, at common law, after What Defect verdict for the party who pleaded them, in the same cases as Verdict. declarations; namely, where the matter defectively stated or omitted (not amounting to a defective title, or the omission of title) is such as must necessarily have been proved at the trial, in order to entitle the party pleading to the verdict he has obtained (n). But where there is a defect, omission, or imperfection, though in form only, in some collateral parts of the pleading that were not in issue between the parties, so that there can be no room to presume that the defect or omission has been supplied by proof, a verdict will not cure it at common law (0), although in some cases it would under the statutes of jeofails. Thus, where a replication should have averred that the cattle were levant et couchant on the plaintiff's land, and issue was taken on a prescription only, a verdict in favour of the prescription was holden not to aid the omission of this averment at common law (p), although it would now be aided by the statutes of jeofails. Also, where a plea confesses the action, but does not sufficiently avoid it, the plaintiff, we have seen, (ante, 1108), may move for judgment non obstante veredicto.

in cured by

In pleas, replications, &c., the following defects are aided What Defects after verdict by the statutes of jeofails, and after judgment Judgment by by confession or default, by the 4 & 5 A. c. 16, s. 2; mis- Confession, or pleading, lack of colour, insufficient pleading or jeofail, or Default. other default or negligence of the parties, their counsellors or attornies (32 H. 8, c. 30); lack of averment of any life, so as the person be proved to be alive (21 J. 1, c. 13); want of profert, or mistaking the christian name or surname of either party, sums, day, month, or year, in any pleading, being right in any writ, plaint, roll, or record preceding, or in the same roll or record wherein the same is committed, to which the other party might have demurred, and have shewn the same for cause; want of the averment of "hoc paratus est verificare,” or of "hoc paratus est verificare per recordum," or for not alleging "prout patet per recordum;" or any other matters of the like nature, not being against the right of the matter of

(f) Cross v. Metcalf, 1 Nev. & P. 232. (g) Pr. Reg. 21: 1 Sellon, 275: see ante, 1115.

(h) Prior v. Buckingham, 8 Moore, 584. (i) Mattravers v. Fossit, 3 Wils. 295. (k) 8 H. 6, c. 12: Green v. Miller, 2 B. & Adol. 782.

(1) Hatton v. Walker, 2 Str. 846: Ram

sey v. Bird, Cro. El. 258.

(m) 8 Co. 161 b: Parsons v. Gill, 1 Salk. 50, 88; 2 Ld. Raym. 895, S. C. Tidd, 651. (n) See ante, 1116: Bull. N. P. 321: 1 Chit. Pl. 6th ed. 673 to 682.

(0) 1 Saund. 228 a.

(p) France v. Tringer, Cro, Jac. 44.

BOOK IV. the suit, nor whereby the issue or trial are altered. (16 & 17 Car. 2, c. 8).

ᏢᎪᏒᎢ 1.

Notice of dis

ruptcy, &c.

Notice of disputing Bankruptcy, Patent, &c.] Even after a puting Bank- trial the court have granted a new trial, and given the defendant leave to plead de novo with a proper notice of his intention to dispute the act of bankruptcy, &c., the former notice having been too general (q).

Notice of Ob

jections to Patent.

Notice of Setoff.

Demurrer.

Writ of Inquiry.

Writ of Trial before Sheriff.

If, in an action for the infringement of a patent, the defendant neglect to deliver, with his pleas, the objections required by the 5 & 6 W. 4, c. 83, it seems doubtful if the court have power to allow him to deliver them afterwards, nunc pro tune; but if they are satisfied on the merits, they will grant him leave to plead de novo, and then deliver the objections with the fresh pleas(r). The court will also, as we have seen, order defendant to deliver better particulars at the instance of the plaintiff (s).

The Court of Common Pleas refused to allow a notice of set-off to be amended, when such notice was in practice (†).

Demurrer.] A demurrer cannot be amended without the consent of the opposite party (u). As to amending after argument of demurrer, see ante, 1112.

Writ of Inquiry.] Defects or errors in a writ of inquiry may be amended by the award of it on the roll (x). If the jury, in an action of debt, omit the formal finding of damages which entitles the plaintiff to costs de incremento, the court may order the requisite entry to be made on the postea (y). Where the writ and inquisition were lost, the court ordered new ones to be made out according to the sheriff's notes, and that the costs before taxed should be indorsed by the master (2). The want of a writ of inquiry, however, is said to be aided by the statutes of jeofails (a).

Writ of Trial before Sheriff.] In a recent case, where a cause (which had been made a remanet) was tried before the sheriff on a day subsequent to the return day of the writ of trial, the court allowed an amendment of the writ (b). But the safer course, in such a case, is to apply to a judge before trial to extend the time for the return of the writ (c). Where the writ of summons was mis-recited in the writ of trial, but the defendant appeared at the trial, the court allowed the plaintiff to amend the writ of trial by inserting the right date of the writ of summons (d). Where the plaintiff deli

(q) 6 B. & C. 537, n.: and see the cases ante, 901, 903.

(r) Losh v. Hay, Exch., H. T. 1838; 2 Jurist, 157.

(8) Bulnois v. M'Kenzie, 6 Dowl. 215: Fisher v. Hewit, 6 Dowl. 739.

(1) Anom., Barnes, 294. The defendant
must now, in all cases, plead a set-off.
(Graham v. Partridge, 5 Dowl. 108).

(u) Maynard v. Hopkins, Say. 46.
(x) Johnson v. Toulmin, 4 East, 173:
Conden v. Coulter, Hardw. 314: Hughes v.
Alvarez, 1 Str. 684: Ingham v. Chishull,
Barnes, 15: Pippett v. Hearn, 1 D. & R.

(y) Bale v. Hodgetts, 1 Bing. 182; 7 Moore, 602, S. C.

(2) Bean v. Elton, 2 Str. 1077. (a) Iles v. Pitt, 2 Ld. Raym. 137: Mallory v. Jennings, 2 Str. 878

(b) Sherman v. Tinsley, 4 Scott, 286: but see Mortimer v. Preedy, 6 Dowl 544. It seems that the proper course in such a case is, to apply to a judge to extend the time for the return of the writ. (Per Parke, B., Ibid.)

(c) Mortimer v. Preedy, 6 Dowl. 344, per Parke, B.

(d) Percival v. Connell, 1 Jurist, 406.