From what materials amendment may be made. Amendment must be in furtherance of the intention of the jury. and where the judge who tried the cause has left the bench, the amendment may be made by the Court from his notes (s). The postea may not only be amended by the judge's notes, but by those of the associate, or clerk of assize (t), or by those of the under-sheriff who tried the cause; but in the latter case the application is made to the Court (u). The amendment must, however, be made from some document written at the time. Formerly it was held that it could be made from the judge's recollection (x), but this is now overruled (y), and the judge's notes, taken at the time, are conclusive, and no affidavits can be received to explain or contradict them (2). But although amendments of this nature are allowed in order to carry out the intention of the jury, by making the verdict what they meant, and had virtually found (a), the verdict cannot be altered unless it clearly appears that the alteration would be agreeable to the intention of the jury (b). Therefore, where in an action on 2 & 3 Ed. VI. c. 13, which gives treble value for not setting out tithes, the jury found a verdict only for the single value, it was held that the postea could not be amended by entering the verdict for the treble value (c). But where the plaintiff was entitled to treble damages, and the jury found a sum as and for single damages specifically, the Court allowed the amount to be trebled (d); but there the Court only gave the finding of the jury its legal effect (e). This intention can only be ascertained by what has passed in open Court. If the jury deliver one verdict, affidavits from them cannot be received to show that they intended to deliver another (ƒ). (8) Richardson v. Mellish, 3 Bingh. 334. (t) R. v. Keat, 1 Salk. 47; Parsons v. Gill, ibid. 51; Pedley v. Frampton, 2 Chitt. 155; Sandford v. Porter, ibid. 351. (u) Wallis v. Goddard, 2 M. & Gr. 912. (x) Eliot v. Skypp, Cro. Car. 338. (y) R. v. Virrier, 12 Ad. & Ell. 337. (2) Everett v. Youells, 4 B. & Ad. 681; R. v. Grant, 5 B. & Ad. 1081. (a) Wallis v. Goddard, ubi sup. (b) Spencer v. Goter, 1 H. Bl. 78; Reece v. Lee, 7 Moo. 269; Ernest v. Brown, 4 Bing. N. C. 167; Bull. N. P. 320. (c) Sandford v. Clarke, 2 Chitt. 351. (d) Baldwyn & Girrie's Case, Godb. 245. (e) 2 M. & W. 199. (f) Jackson v. Williamson, 2 T. R. 281; Bentley v. Fleming, 1 C. B. 479; Raphael v. Bank of England, 17 C. B. 161. Where on judgment on demurrer for plaintiff, he enters up judgment for himself on two counts, and afterwards discovers an error in one, he may undo his own act, and enter judgment for the defendant on the bad count (g). But where, in a penal action, plaintiff entered the verdict for the penalty on a bad count, the Court held that he could not amend, by applying it to another count which was good, though it was proved by the evidence (h). The last remarks which it is necessary to make upon the subject of amendments, relate to the time at which they may be made. amendment may be made. Formerly it was held that where damages were assessed At what time the generally upon defective counts, the postea could not be amended after judgment (i), at all events unless the amendment was made in the same term in which the judgment was entered up (k). This seems to have been on the idea that such amendments were made by the common law authority of the judges, which can only be exercised in the same term, while the record is in the breast of the judges, and not in the roll (). It is now, however, settled that such amendments are made, not at common law, but by virtue of the statutes of misprision, 14 Ed. III. c. 6; 9 Hen. V. c. 4; 4 Hen. VI. c. 3; 8 Hen. VI. cc. 12 & 15, which enacted that the king's judges of the courts in which any record for the time shall be, shall have power to examine such record, and to amend all that which to them in their discretion seemeth to be misprision of the clerks in such record, so that by such misprision of the clerk no judgment shall be reversed or annulled. This was very clearly laid down in a modern case (m). There Patteson, J., said, "It is said that a judgment cannot be amended after the term in which it has been entered up, unless the error to be amended is a mere misprision, and that the error in this case is no misprision. In one sense it certainly is not misprision, for it agrees with the postea, and the only mistake (g) Spicer v. Teasdale, 2 B. & P. 49. (h) Holloway v. Bennet, 3 T. R. 448; Hardy v. Cathcart, 5 Taunt. 11. (i) Mornington v. Try, Cro. Eliz. 111; Sandiford v. Bean, 2 Bac. Abr. 600; Grant v. Astle, 2 Doug. 730. (k) Ray v. Lister, Andr. 351; Cheveley v. Morris, 2 W. Bl. 1300. (1) 8 Rep. 157, a. (m) Bowers v. Nixon, 12 Q. B. 546, 557. G G was in the postea itself. But as soon as the postea had been amended by the proper authority, there was a variance between the postea and the judgment. Now this variance was in the nature of a misprision, and it was properly amended by making the judgment conformable to the postea." And Erle, J., said, "Take the matter up at the time of trial. The judge ought to make a note of the verdict, and this note is to be put out formally in the postea; and afterwards the officer is to enter up judgment according to the postea. On reference to the learned judge's notes, it turned out that the postea was not according to his note of the verdict. That was a misprision which ought to be amended. Then the judgment was not according to the postea. That was another misprision, which ought to be amended." Those errors which are amendable under these statutes are amendable as well after as before judgment (n); even where several terms have elapsed, and after error brought and joinder in error, and argument (0). And the Court of Error will amend the judgment returned to it by the amended record in the court below (p). And they have no authority to question the propriety of such amendment (q). They will also postpone delivering their own judgment, to allow time for an amendment (r). No fixed limit seems to be assigned to the time during which such amendments may be made. In Doe v. Perkins and Bowers v. Nixon (s), it was said that the amendment might be made at any time. Where, however, eight years had elapsed after the judgment, and after the plaintiff's attention had been pointed to the mistake by a writ of error, and no application to amend was made till after reversal of the judg ment on error, leave to amend was refused (t). Lord Ellenborough said, "The moment the writ of error was brought, it (n) 8 Rep. 157, b. (0) 8 Rep. 162, a; Short v. Coffin, 5 Burr. 2730; Petrie v. Hannay, T. R. 659; Doe v. Perkins, ib. 749; Hardy v. Cathcart, 1 Marsh. 180; Usher v. Dansey, 4 M. & S. 94; Richardson v. Mellish, 3 Bingh. 334; [Wilkinson v. Sharland, 11 Ex. 33.] (p) 8 Rep. 162, a; Mellish v. Richardson, 7 B. & C. 819. (9) Mellish v. Richardson, 9 Bingh. 125; 1 Cl. & Fin. 224; [Tetley v. Wanless, L. R. 2 Ex. at p. 279; 36 L. J. Ex. at p. 155.] (r) Bowers v. Nixon, 12 Q. B. 546; Gregory v. Cotterell, 25 L. J. Q. B. 33, 37. (s) Ubi sup. (t) Harrison v. King, 1 B. & A. 161. was notice to a man who did not sleep the sleep of death over his rights." The fact of notice would probably be the test, for in another case, where a similar application was made nearly a year after trial, when the question arose in the third term after judgment, on the taxation of costs, it was held that the application was in time. Tindal, C. J., remarked that "probably he did not feel hurt by the form of the verdict, till the pressure arose upon the question of costs" (u). It appears also to be doubtful whether such amendment can be made after judgment has been reversed on error. In Richardson v. Mellish (x), the postea was amended before the reversal, though the judgment was not amended in accordance with the postea till after the reversal. In R. v. Carlile (y), an amendment was allowed after reversal. That, however, was a criminal case, and the Attorney-General, who represented the crown, consented to it. In Harrison v. King (2) such an amendment was refused, not apparently so much upon the special ground that the judgment was reversed, as on the general principle of laches on the part of the plaintiff. In a later case a similar refusal was given (a). No decision, however, was pronounced as to the power to make such an amendment, though it was certainly very much doubted. There were many circumstances in the case decisive against its being allowed. The plaintiff had himself elected the count on which he would enter up judgment, after repeated discussions before the judges, and was therefore bound by his own choice (b). The postea had also been settled with considerable care by the judge who tried the cause. The Court had no original power to compel an amendment, but could only as his assessors and advisers in the matter recommend him to do so (c). Now as a matter of discretion, the lapse of two years after the reversal, and the full knowledge which the plaintiff had received by the writ of error, disentitled him to any indulgence. (u) Ernest v. Brown, 4 Bingh. N. C. 166. (x) 3 Bingh. 346. (y) 2 B. & Ad. 971. (2) 1 B. & A. 161. (a) Jackson v. Galloway, 1 C. B. 280. (b) Holloway v. Bennett, 3 T. R. 448; Hardy v. Cathcart, 5 Taunt. 11. (c) Per Maule, J., 1 C. B. 296. Power to increase or abridge the damages. 4. The power of the Court to alter the assessment of damages by their own independent authority has undergone a complete change. It was always admitted that in cases where the amount of damages was uncertain, their assessment was a matter so peculiarly within the province of the jury that the Court could not alter it (d). On the other hand it is laid down in old books, that wherever the demand of the plaintiff is certain, as in an action of debt, the verdict may be increased or abridged by the Court (e). And so in cases of mayhem, there is a long current of decisions to show that the Court have the power of increasing the damages given by the jury, either upon an inspection of the wound by the Court, or upon a certificate from the judge who tried the cause (ƒ). But I am not aware of any instance in which such a jurisdiction has been exercised in modern times. The Court will not even increase the damages upon an affidavit by all the jury that they thought the effect of their verdict would be to give the plaintiff a larger sum than it did (g). Nor where the cause was undefended, and the plaintiff's counsel took a verdict for principal alone without interest (h). And where the damages found by the jury have been assessed on a principle assented to by the counsel on both sides, the Court will not interfere to alter the amount of the verdict, on affidavits that counsel were mistaken in that which they assumed as the basis of their calculation (i). And so in an action of debt on 2 & 3 Ed. VI. c. 13, which gives treble value for not setting out tithes, the jury found a verdict for the single value only, and it was held that the postea could not be amended by entering the verdict for the treble value. The Court said, "Had this been an action for penalties, and the jury, upon the plea of not guilty, had found that the defendant was guilty of the premises, and (d) Delves v. Wyer, 1 Brownl. 204; Jenk. 2nd Cent. 68, pl. 29; Bonham v. Sturton, Dy. 105, a; Hawkins v. Scict, Palm. 314. (e) 11 H. IV. 10; 10 H. VI. 25; 32 H. VI. 1. (f) 39 Ed. III. 20; Tripcony's case, Dyer, 105, a; Mallet v. Ferrers, 1 Leon. 139; Hooper v. Pope, Latch. 223; Austin v. Hilliers, Hardr. 408; More's case, Freeman, 173; Cook v. Beal, 1 Ld. Raym. 176; Brown v. Seymour, 1 Wils. 5; Hoare v. Crozier, 2 Tidd. Pra. 9th ed. 896; Smallpiece v. Bockingham, Bull. N. P. 21. (g) Jackson v. Williamson, 2 T. R. 281. |