SECT. 2. vered his issue in the form of an issue at Nisi Prius, and CHAP. XXX. not in the form prescribed by the rule of court, on a motion to set aside the issue and notice of trial, the court gave the plaintiff leave to amend on payment of costs (e). And the Court of Exchequer have held that a variance between the issue and the writ of trial may be amended at any time, if the defendant appeared at the trial, even under protest (f). But where the date of the writ of summons was omitted in the issue and inserted in the writ of trial, the Court of Common Pleas after verdict set aside the writ of trial with costs, although the defendant had appeared (under protest) at the trial (g). As to the consequence of a mistake in this respect, see further, Vol. I. 294. Issue.] The misjoining of issue, or an issue otherwise in- Issue. formal, is aided after verdict by 32 H. 8, c. 30(h); so are mis- Misjoinder of. continuance and discontinuance, by 32 H. 8, c. 30(i). The want of a similiter is also aided by it, or is at least amendable under statute 8 H. 6, c. 12 (k); and even where the plaintiff added a similiter to a rejoinder concluding with a verification, instead of taking issue and concluding to the country, the court allowed the record to be amended after verdict (1); and where, to an action on a bill, the defendant pleaded no consideration, concluding with a verification; and the plaintiff, instead of replying in denial, merely added the similiter, and went down to trial and obtained a verdict, the court held that there was a mis-trial, as no issue had been joined, and that judgment of re-pleader should be given; but they permitted the plaintiff to amend on payment of costs (m). Also, if the similiter be added in the name of the defendant, instead of the plaintiff, or the contrary, it is aided after verdict by the above statute (n), or may be amended (o); and an amendment will be allowed to add it, even though wholly omitted (p). in. The court, we have seen, allow the issue to be amended, Informalities even after verdict, if the amendment do not alter the substance or Omissions of the issues between the parties (q). They would, also, when the proceedings by bill existed, allow of an amendment, by the insertion of a special memorandum of the term in which the plaintiff filed his bill, even after error brought (r). And where there was a mistake in the title of the issue, the court allowed the plaintiff to deliver a new issue properly intituled (s); (e) Atwill v. Baker, 5 Dowl. 462. (f) Farwig v. Cockerton, 6 Dowl. 337: Cox v. Painter, 1 Nev. & P. 581. (g) Blissett v. Tenant, 6 Dowl. 436. (h) Paine v. Bushin, 1 Stark. 742; Saund. 319; Bull. N. P. 321: Cary v. Hinton, 2 Str. 973. (i) See ante, 1057: Humble v. Bland, 6 T. R. 255; 2 Saund. 1 e. (k) Sayer v. Pocock, Cowp. 407: Reader v. Bloom, 2 Bing. 384; 9 Moore, 741, S. C. Wright v. Horton, 1 Stark 400; 2 Chit. 25; 6 M. & Sel. 50, S. C.: sed vide Griffith v. Crockford, 3 B. & B. 1; 6 Moore, 51, S. C.: Ferrers v. Weal, 2 Moore. 21. () Ante, 1124: Grundy v. Mell, 1 New Rep. 28: and see Cooke v. Burke, 5 Taunt. 164. Even after verdict, the want of a similiter may be aided; and this, though there be no "&c." at the end of the last pleading. (See Stockdale v. Chapman, 4 (m) Wordsworth v. Brown, 3 Dowl. (n) Rawbone v. Hickman, 1 Str. 551: (p) Siboni v. Kirkman, 3 M. & W. 48; (q) Ante, 1124: Sayer v. Pocock, Cowp. (8) Beaumond v. Stewart, Barnes, 18. BOOK IV. PART I. Objection to, and how waived. also, the court or a judge have power, at any stage of the proceedings, to amend an issue, &c., not made up in compliance with the forms given in R. H., 4 W. 4; and therefore, where the Nisi Prius record did not contain the date of the writ of the summons, it was held that the judge might supply the omission(t). If the issue vary from the declaration or other pleading, when made, accepting the issue will be a waiver of all objection on that account (u). If it vary from the record of Nisi Prius, the objection should be made at the trial, otherwise the court will deem it aided by verdict, or will amend the Nisi Prius record by the roll(x); and if, in such case, the Nisi Prius record agree with the declaration delivered, a variance between it and the issue is not material, even although the objection be made at the trial (y). Repleader, where the Issue is immaterial. Jury Process. What Defects Verdict. An immaterial issue is not aided either at common law or by statute(); but the court in such a case usually grant a repleader; and where a plea raises an immaterial issue, but contains no confession of the cause of action, the proper course is to award a repleader, and not to give judgment non obstante veredicto (a). And where there are several issues on the record on which issues are taken, but on none of them the cause of action is fully confessed or proved, the court may award a repleader if one of the issues be immaterial (b). On a judg ment of repleader, neither party is entitled to costs (a). Jury Process.] The court may amend the jury process, at any time, for defects arising from the misprision of the clerks, by 8 H. 6, c. 12(c). The distringas may be amended by the venire, and the venire by the award of it on the roll. If jury process be awarded to a wrong officer, upon an insufin aided by ficient suggestion; or if the venire be in some part mis-awarded, or sued out of more or fewer places than it ought to be, so as some one place be rightly named; or if any of the jury who tried the issue be misnamed, either in the surname (d) (Vol. I. 307) or addition, in the jury process or return thereto, so as it be proved that it was the same man who was meant to be returned; or if there be no return to the said process, so as the panel of the jurors' names be returned and annexed to it; (see 6 G. 4, c. 50, s. 15; Vol. I. 252); or if the returning officer's name be not to the return, so as it be proved that the writ was returned by the returning officer; all these several defects are aided after verdict by 21 J. 1, c. 13(e). Also by 5 G. 1, c. 13, every defect or fault in judicial writs, and every variance between them and the other proceedings, is aided after verdict; and as this statute relates to judicial writs generally, it (t) Cor v. Painter, 1 Nev. & P. 581: see Farwig v. Cockerton, 6 Dowl. 137: 7 C. & P. 767. And as to giving evidence of the date, though not inserted, see Godfrey v. Clements, W., W. & D. 47), which was a case of trial before the sheriff. (u) See ante, Vol. I. 203, 204. (x) Leeman v. Allen, 2 Wils. 160: see Drummond v. Birt, 2 M. & M. 136: Blisset v. Tenant, C. P., H. T. 1838; 2 Jurist, 181: Brooke v. Finch, 2 Jurist, 234. (y) Shepley v. Marsh, 2 Str. 1131: post, 1129. (2) Bull. N. P. 321. (a) Plumer v. Lee, 2 M. & Wels, 495. (b) See, upon this subject, 2 Saund. 319 b: Staple v. Hayden, 2 Salk. 579; 2 Ld. Raym. 922, S. C. (c) See Bullock v. Parsons, 2 Salk. 454 2 Ld. Raym. 1143. S. C.: Rer v. Roberts, 2 Str. 1214: Philips v. Smith, 1 Id. 136. (d) See Hill v. Yates, 12 East, 229. (e) See Gurney v. Clere, Cro. EL 259 : Welsh v. Upton, Id.: Elliot v. Skipp Cro. Car. 338; Bull. N. P. 320, 324. seemingly includes jury process (f). And, lastly, the want of CHAP. XXX. SECT. 2. Record. Nisi Prius Record.] The court may amend the record of Nisi Prius Nisi Prius at any time, for a defect arising from misprision When amendof the clerks (i). It may be amended by the issue roll, if ed by the any (4). Where the issue in ejectment was against seven Court. defendants, and the Nisi Prius record, by mistake, against five only, the court amended the Nisi Prius record, after verdict, by adding the names of the remaining two defendants(). But where the mistake was in the jurata, the day of Nisi Prius therein not having been altered after the cause was made a remanet, and the subsequent trial appeared of course to have been had after the day of Nisi Prius, the Court of Common Pleas held the trial to be coram non judice, and refused to amend the jurata and distringas, but awarded a venire de novo(m). In a recent case, where the Nisi Prius record did not contain the date of the writ of summons, it was held that the judge might_supply the omission at any stage of the proceedings (n). For variance between the Nisi Prius record and the issue, the objection must be made at the time of the trial, for the court will not in general set aside the verdict for such a cause, if the defendant appeared at the trial (o); and a variance in this respect is wholly immaterial, if the Nisi Prius record agree with the declaration delivered (p). Where the record and postea were lost, the court ordered a new one to be made out from the issue roll and from the associate's notes (9). Prius. Even before the recent acts (ante, 1113), the record might be When by the amended by leave of the judge at Nisi Prius, and this even Judge at Nisi after the cause was called on, provided it was before the jury were sworn (r); provided also the alteration proposed were not mattter of material allegation (s), and the attorney was not aware of the defect in time to have it remedied upon application to a judge at chambers. Formerly, it could be amended only by a judge of the court wherein the record was made up (t), but now it may be amended, on circuit, by the judge who is to try the cause, in the same manner (f) See Waldo v. Harrison, Barnes, 5. (g) Gurney v. Clere, Cro. El. 259: Welsh v. Upton, Id; Bull. N. P. 320. (h) Rogers v. Smith, 1 Ad. & El. 772; and see the law and authorities there collected. (i) 8 H. 6, c. 12: 8 H. 6, c. 15: see Halhead v. Abrahams, 3 Taunt. 81. (k) Child v. Harvey, 1 Salk. 48; 1 Ld. Raym. 511, S. C. The issue roll is now, to all intents and purposes, abolished by R. H., 4 W. 4. (Hodges v. Diley, 7 Dowl. Barnes, 5. (n) Cor v. Painter, 1 Nev. & P. 581; 7 C. & P. 767, S. C: and see Farwig v. Cockerton, 6 Dowl. 337. (0) Doe Cotterill v. Wylde, 2 B. & Ald. 472: Leeman v. Allen, 2 Wils. 160: Jones v. Tatham, 8 Taunt. 634: Farwig v. Cockerton, 6 Dowl. 337: Worthington v. Higley, 5 Dowl. 209: Wight v. Perrers, 5 Dowl. 463: but see Wreathock v. Bingham, Barnes, 476: Cooper v. Spencer, 1 Str. 641; 8 Mod. 376, S. C.: Drummond v. Birt, 2 M. & M. 136. (p) Shepley v. Marsh, 2 Str. 1131. (t) See Halhead v. Abrahams, 3Taunt. 81. BOOK IV. Verdict. as if he were a judge of the court where the action is pending (u). And by the 9 G. 4, c. 15, and 3 & 4 W. 4, č. 42, s. 23, the judge at Nisi Prius may, pending the trial, allow the Nisi Prius record to be amended on a variance between matters as stated in the record and those proved in evidence (x). As to the extent of this power of amendment, and the cases in which it will be exercised, see Vol. I. 280, 281, 282, &c. It may be here observed, that the court cannot give judgment according to the very right of the case under the 3 & 4 W. 4, c. 42, s. 24, unless application to amend before verdict has been refused (y). Verdict.] The court have in general no authority to amend or alter the verdict actually found by the jury, in point of in general, of substance (z). The only exception to this is in the case of mayhem, where the court, upon the inspection of the injuries sustained by the plaintiff, may increase the damages given by the jury (a). The court have refused to do this in other actions, even where the jury joined in an affidavit, stating their intention to have given such increased damages, and that they conceived their verdict was calculated to give them (b). The proper time for explanations of this kind is at the trial (c). Amendment of, to give the legal Effect. Finding its But when the amendment is only to give the finding of the jury its legal effect, the court will allow it; and therefore, where the plaintiff, being entitled to treble damages, the verdict was taken, by mistake, for single damages only, the court increased the amount accordingly (d). And where, in an action for not setting out tithes, the jury found damages to the amount of the single value only, although the court refused to enter the verdict for the treble value, yet they said, that had the jury, instead of finding damages to the amount of the single value only, found that the single value was so much, the court might have ordered judgment to be entered up for treble value as given by the statute (e). So, if the jury give greater damages than are laid in the declaration, the court, even after judgment and error brought on that account, will allow the plaintiff to remedy the defect by entering a remittitur for the excess (ƒ). So, if the jury in replevin find according to statute 17 C. 2, c. 7, 8. 2, but, instead of finding the amount of the rent in arrear and the value of the goods distrained, find damages to the amount of the rent claimed in the conusance, the defendant may remedy the defect by obtaining leave of the court to enter his judgment for a return as at common law, or the court will allow him to amend his judgment if already entered as according to the statute, 17 C. 2, c. 7, s. 2 (g). (u) See 1 G. 4, c. 55, ss. 5, 6: ante, 5 Dowl. 313, S. C. Vol. I. 98. (x) Ante, 280, 281, 282, 1112. (y) Sergeant v. Chafy, 6 Nev. & M. 819. (2) See Spencer v. Goter, 1 H. Bl. 78: Sandford v. Porter, MS., H. 1820; 1 Chit. 351. (a) Ante, Vol. I. 327. (b) Jackson v. Williamson, 2 T. R. 281: and see Baker v. Brown, 2 M. & W. 199; (c) Jackson v. Williamson, 2 T. R. 21. (d) Baldwin & Twine's case, Godbolt, 245. (e) Sandford v. Clarke, 2 Chit. 332. (f) Usher v. Dansey, 4 M. & Sel. 94: MS., E. 1815: Pickwood v. Wright, 1 H. Bl. 643. (g) Ante, 807: Rees v. Morgan, 3 T. R. 349: Herbert v. Waters, Carth. 362: Spe v. Culpepper, 1 Lev. 255: and see Garon V. Jones, 4 T. R. 509. SECT. 2. of Postea by When a mistake is made in recording the verdict, the CHAP. XXX. court may amend it by the judge's notes (h), or by the notes of the clerk of assize or associate (i), at any time before Amendment judgment by the common law (k), or after final judgment, Judge's and even after error brought (7), the mistake, in such a Notes, &c. case, arising from the misprision of the clerk. Thus, when the associate imagining the action to be debt instead of covenant, entered 1d. damages instead of 1747., the court allowed it to be amended by the judge's notes (m); and the same where the associate marked wrong damages (n). So, where the defendant pleaded the general issue and the Statute of Limitations, and a verdict was found for the plaintiff on the first issue, but no notice taken of the last, the court allowed it to be amended, even after error for this defect, and joinder in error, on payment of costs (). So, where there are several counts in a declaration, some of which are bad, and by mistake a general verdict on all the counts is entered, although evidence was given upon the good counts only, the judge who tried the cause, or, if he refused it, the court may allow the postea to be amended by the judge's notes (p). And where, in such a case, it appeared from the judge's notes that the jury calculated the damages on evidence applicable to the good counts only, the court amended the postea, although it appeared that evidence had been given applicable to the bad counts also (7). And the same where there was a misjoinder of counts (r). And after verdict in ejectment for a messuage and tenement, the court (pending a rule to arrest the judgment) gave leave to amend by entering a verdict for the messuage only, without obliging the lessor of the plaintiff to release the damages (s). The court, however, have refused to entertain an application for entering the verdict upon particular counts, according to the evidence on the judge's notes, after a lapse of eight years, and after judgment had been reversed on error brought for a defect in one of the counts (t). And in a penal action, where the jury found a verdict for one penalty, on evidence equally applicable to each of two counts, and the plaintiff applied it to one of the counts which was subsequently found to be bad, the court would not afterwards allow him to enter it up on the other (u). And where the evidence is contradictory on the point, such an amendment will not be allowed (x). In a recent case it was held, that if the verdict, in a The Judge (h) Newcombe v. Green, 2 Str. 1197; 1 Wils. 33, S. C.. Doe Church v. Perkins, 3 T. R. 749: Richardson v. Mellish, 11 Moore, 104; 7 B. & C. 819; 3 Bing. 334, S. C. (i) Rex v. Keat, 1 Salk. 47: Parsons v. Gill, Id. 51; 2 Ld. Raym. 895, S. C.: Sandford v. Porter, 2 Chit. Rep. 352. (k) Grant v. Astle, 2 Doug. 730. (1) Petrie v. Hannay, 3 T. R. 749, 659: Usher v. Dansey, 4 M. & Sel. 94; MS., E. 1815: Richardson v. Mellish, ubi supra. In the latter case the amendment was made after argument in the Court of Error. (m) Bull. N. P.320. (n) Newcombe v. Green, 1 Wils. 33; 2 Str. 1197, S. C VOL. II. (o) Petrie v. Hannay, 3 T. R. 659. (p) Eddowes v. Hopkins, 1 Doug. 376: and see Taylor v. Whitehead, 2 Id. 746: Henley v. The Mayor and Corporation of Lyme Regis, 3 Moo. & P. 310; 6 Bing. 100, S. C. (g) Vol. I. 324: Williams v. Breedon, 1 B. &. P. 329; and MS. Exchequer, T. T. 1832. (r) 1 Chit. 625, n.: Kightley v. Birch, 2 M. & Sel. 533. (8) Goodtitle v. Otway, 8 East, 357: and (t) Harrison v. King, 1 B. & Ald. 161. Y |