As to the many cases in which amendments have been made under the present section, and under the previous statutory enactments authorizing amendments, it would not be possible to refer to them in detail. As a general rule the Courts are liberal in exercising the power of amendment conferred upon them, and will do so whenever it is necessary for the purpose of enabling the parties to try out the real question in controversy between them (Webster v. Emery, 10 Ex. 901); and leave to amend will not be refused merely on account of the supposed hardship or impropriety of the action (Doe v. Edwards, 1 M. & R. 321).

The allowance of amendments under this section rests, however, in the discretion of the Court or Judge, and it is questionable whether in any case such allowance is a matter of strict right. If it is, it is so only in cases where a pleading, by reason of some informality, does not raise the question intended to be raised, and it is therefore entirely a matter of discretion to allow an entirely new pleading, raising a question not already upon the record. Thus in Ritchie v. Van Gelder, 9 Exch. 762, after a plea of never indebted had been pleaded, the Court refused permission to allow a plea of illegality of consideration to be added; and see further The Times Assurance Co. v. Hawke, 28 L. J. Ex. 317; Brennan v. Howard, 1 H. & N. 138, and Tennant v. Orr, 9 Ir. Jur. N. S. 131, and the cases referred to infra under the head of amendment of pleadings. For the same reason the Court will not allow amendments to be made so as to try a question other than the question in controversy between the parties (Seagrave v. Union Marine Insurance Co., L. R. 1 C. P. 305; Wilkin v. Reed, 15 C. B. 192; Lucas v. Tarleton, 3 H. & N. 116). Neither will an amendment be allowed if the result of doing so would be a surprise on either party (Adams v. Atkins, 9 Ir. C. L. R. Ap. 18). To allow an amendment under such circumstances would be in fact to defeat the main object of the system of pleading. Thus, in Bradworth v. Foshaw, 10 W. R. 760, the plaintiff in an action of tort having in his declaration stated a cause of action which his evidence failed to sustain, was not permitted to amend the declaration by stating a different case

of tort.

Rests in discretion

of the Court

or Judge.

In what pro

ceedings allowed.

Omissions in summons of plaint.

Name of

Where, however, the proposed amendment is not open to any of the objections just mentioned, it is in practice a matter of course if not a matter of right to allow it; and the amendment may be made at any stage of the cause, and in any of the proceedings. Thus leave will be given to amend omissions in the summons and plaint or copy served, such as in the name of the Court, or in the venue in the margin of the copy (Tuckey v. M'Carthy, 7 Ir. C. L. R. 289; Barrett v. Wilson, 7 Ir. Jur. O. S. 39; Cunningham Court venue. v. O'Gorman, 4 Ir. Jur. N. S. 221; and see ante, p. 13, note (b), as to amending the copy served). An omission in the date of the writ, such as of Date. the day of the week of issue, may be amended (Worlington v. Meade, 6 Ir. Jur. O. S. 246); but the Court cannot antedate a writ even to prevent the operation of the Statute of Limitations (Clark v. Smith, 2 H. & N. 753). So Names, &c., also errors in the names, residences, and descriptions of the parties have been of parties. amended (Fowler v. Barrington, 4 Ir. Jur. O. S. 170; Stephens v. O'Beirne, 3 Ir. C. L. R. 66, ante, p. 7). It is true that in such a case leave to amend may be refused, but this is so only where the plaintiff has been guilty of gross neglect (Curry v. Johnson, 2 Ir. C. L. R. 641); and if the omission or error be merely technical and not calculated to mislead, leave to amend may be unnecessary (Kelly v. Brophy, 5 Ir. C. L. R. 279; Dunne v. Gray, 6 Ir. Jur. O. S. 138; and see Glennison v. Bellew, 7 Ir. C. L. R. 215).

R

Prayer for damages.

Name of attorney.

Particulars.

Parties.

Endorsement of service.

To save Statute of Limitations.

Other proceedings.

Pleadings.

Where a blank is left in the prayer for damages, leave to supply the omission may be granted both at the trial or before or after (Butler v. Tighe, 3 Law Rec. O. S. 63; Lockwood v. Cross, 2 Leg. Rep. 388); the amount prayed for may also be increased (Cloran v. Cogan, 2 Ir. L. T. 212); and this has been allowed to be done even after verdict (Connolly v. Callaghan, Arm. Mac. & O. 345); and leave has been given in an action of replevin to amend the prayer for judgment by introducing a prayer for the return of the goods (Hudson v. Rogers, 11 Ir. C. L. R. Ap. 9). The summons and plaint or other subsequent pleading will be allowed to be amended by adding the name of the attorney or of counsel (Palliser v. Furlong, 7 Ir. Jur. O. S. 32), but if it be sought to amend a pleading by adding counsel's signature it must be satisfactorily shown that the draft was submitted to him, and that he by mistake omitted to sign it (Harrison v. Kenny, 11 Ir. L. R. 53).

In

The endorsement of particulars upon the plaint may be amended. Gordon v. Hassard, 6 Ir. C. L. R. 135, the Court upheld amendments made at the trial, whereby a sum claimed originally upon an account stated was allowed to be sued for and recovered under a count for goods sold and delivered, and the endorsement of particulars was accordingly altered, and see also Savage v. Canning, Ir. R. 1 C. L. 434.

Amendments by adding or striking out parties to an action are provided for by ss. 84-91, ante, pp. 87-96; and the amendment must be made in the manner there prescribed (Wickens v. Steel, 2 C. B., N. S. 488). It will be seen by referring to those sections and the notes thereto, that the powers of the Court or a Judge at Nisi Prius to strike out or add new parties is very extensive. It does not appear, however, that an amendment can be made which will have the effect of substituting an entirely new plaintiff for an old one (Clay v. Oxford, L. R. 2 Ex. 54), although in an action of ejectment an amendment of such a description does appear to have been made (Blake v. Done, 7 H. & N. 465). It would also appear to be doubtful whether an amendment can be made by which an action brought by plaintiffs in a representative capacity will be changed into an action by them in their personal capacity (Bolingbroke v. Kerr, L. R. 1 Ex. 222). So, also, no amendment can in general be made at the trial by which a new defendant is added (Garrard v. Ginbelei, 11 C. B., N. S. 616; Pryor v. Local Board of Ham, 15 L. T., N. S. 250); although in an extreme case an amendment was made by which the original defendant was struck out and a new defendant substituted at the trial (Podmore v. Schmidt, 17 C. B., N. S. 725); sed de hoc quaere; and see further the sections referred to.

No amendment can be made, as a general rule, in the endorsement of service upon the summons and plaint directed by section 31, ante, p. 25.

The Court will always be the more willing to amend when the consequence of a refusal on their part to allow the amendment would be that the party would be barred by the Statute of Limitations (Lalor v. Bland, 8 Ir. C. L. R. 115).

The power of the Court to amend an original writ is not confined to writs of summons and plaint; thus, a writ of capias ad respondendum may be amended (Page v. Williams, 1 Ir. C. L. R. 499); or a scire facias (Thorpe v. Hook, I Dowl. 501).

Amendments are more frequently necessary in the case of the pleadings in the action than in any other of the proceedings. The necessity for them arises chiefly in two ways. It may be that the evidence forthcoming in a

case will not support the issue raised by the pleadings as they stand, although if the pleadings were amended the evidence would be sufficient to establish a good ground of action or defence; or it may be that through inadvertence or mistake the pleadings necessary to raise the question between the parties are wholly wanting.

243

In the first class of cases referred to, the Judge at the trial has full power Variances. to amend the variance between the record and the evidence in the manner pointed out by the present section. As to when a variance arises reference may be made to the notes to Bristow v. Wright, 1 Sm. L. C. 5th Ed., p. 570, from whence it will appear that, if the whole of an averment may be struck out without destroying the plaintiff's cause of action or the defendant's ground of defence, it is not necessary to prove the averment, but if, on the other hand, the whole of the averment cannot be struck out without getting rid of an essential part, the averment must be proved in its entirety unless leave be granted to amend. When a variance does arise, leave to amend as before mentioned will be readily granted, provided the amendment is such as to enable the parties to try out the real question in controversy between them; but it will not be granted when its allowance would operate as a surprise on the opposite party, or would raise a question not previously in controversy between the parties, or if the allowance would have the effect of rendering the pleading fairly open to demurrer, (see Ritchie v. Van Gelder, ubi supra, and the other cases referred to there). When necessary, leave will be given not merely to amend the pleadings but the endorsement of particulars as well (Gordon v. Hassard, 6 Ir. C. L. R. 135; Canning v. Savage, Ir. R. 1 O. L. 434); or even the prayer for judgment (Connolly v. Callaghan, Arm. Mac. & Og. 345; Cloran v. Cogan, 2 Ir. L. T. 212). As to the terms of amendment see infra.

In the other class of cases referred to, where permission is sought to add a Adding new new count or defence, leave will also be readily granted by the Court or a pleading. Judge in chamber or at Nisi Prius in a proper case. Thus, leave to add counts for goods bargained and sold (Scriber v. M'Cann, 10 Ir. Jur. N. S. 114); and even an entirely new cause of action (Smith v. Delacherois, ib. 357; Crooke v. Murray, 6 Ir. Jur. N. S. 391; and see Leo v. Kearns, 9 Ir. Jur. N. S. 318); has been granted, and the defendant refused costs unnecessarily incurred in opposing the application (Smith v. Delacherois, ubi supra, and see infra under the head of terms of amendment.

The propriety of an amendment introducing an entirely new cause of action has, however, been questioned (Boucher v. Murray, 6 Q. B. 362; Brashier v. Jackson, 6 M. & W. 549). In Nash v. Macken, Ir. R. 5 C. L. 51, an action having been brought upon the money counts, to which a defence was pleaded that a bill was given for the amount and had been lost, the Court allowed a count on the bill to be inserted in order that the plaintiff might avail himself of the provisions of section 90 of the C. L. P. Act, 1856. Compare with this case Ellston v. Deacon, L. R. 2 C. P. 20, in which case the action having been brought upon a bill of exchange the plaintiff was allowed after trial to add a count upon the consideration and to enter up judgment for the sum due and the costs of the action. So, also, the defendant has been allowed to add new defences to those already pleaded, as for instance a defence of justification in an action for libel (Hogan v. Sutton, 2 Ir. L. T. 24); or a traverse (Shane v. Needham, 8 Ir. Jur. N. S. 414), and leave has been given where the defence sought to be pleaded was the Statute of Limitations (Archbold v. Howth, 15 Ir. C. L. R. 420), and the action one of seduction

After demurrer filed.

Demurrer books.

Verdicts.

Postea.

Order of reference.

After judgment.

(Bone v. Smith, Ir. R. 2 C. L. 244); and see Hall v. Devereux, Ir. R. 4 C. L. 265, 268). In Brown v. Julian, 1 Ir. L. T. 156, leave was given to withdraw the defences pleaded and pay money into Court. As to the time within which the defendant must plead after the making of the amendment see section 44, ante, p. 41.

Leave to amend pleadings which are defective or demurrable will also be granted almost as of course before the argument of a demurrer upon proper terms (Murphy v. Lancashire & Yorkshire Railway Co., 8 Ir. Jur. N. S. 414; Savage v. Usher, Batty, 640, and see ante, p. 79). In Tomlinson v. Bolland, 4 Q. B. 643, a party was allowed to amend after demurrer upon the payment of nominal costs.

Leave, moreover, will be granted upon terms to amend or add a new defence after an abortive trial (Mitchell v. Rodgers, 3 Ir. L. T. 136 referred to infra, and cf. Morris v. Hartley, 7 Ir. C. L. R. 17).

In all such cases, however, it should be remembered that the granting of leave is in the discretion of the Court, and if the granting of permission is not conducive to the justice of the case it will not be granted (Sims v. Thomas, 3 Ir. L. R. 415). An affidavit of merits may also be required (Bishop v. Wigram, 7 Ir. Jur. O. S. 22). As to the power of the Judge at Nisi Prius to allow a plea to the jurisdiction to be added see Gray v. Raper, L. R. 1 C. P. 694.

In addition to the several proceedings already mentioned the Court possesses a power of amendment over all the other proceedings in the cause. Thus, the demurrer books will be ordered to be amended when they differ from the pleading upon the file (Boylan v. Dublin & Belfast Railway Co., 4 Ir. C. L. R. 172, ante, p. 76). Orders have even been made after the discharge of the jury amending a special verdict, and entering a verdict upon formal issues (Fitzgerald v. Roddy, 6 Ir. Jur. O. S. 268; Quin v. The National Assurance Co., 2 Ir. L. R. 37). As to amending a bill of exceptions, see Thelwall v. Yelverton, 7 Ir. Jur. N. S. 260; Whaley v. Carlisle, 17 Ir. C. L. R. 792; Mersey Docks v. Penhallow, 7 H. & N. 341. The postea may also be amended, but the application for that purpose should be made to the Judge who tried the cause (Low v. Russell, 6 Ir. C. L. R. 536; Anon., 3 Ir. C. L. R. 119); or the amendment may be made by the Court on a certificate of the Judge (Powell v. Atlantic Steam Co., 11 Ir. C. L. R. 347). The Judge in making such amendment is at liberty to have recourse to such evidence as he thinks fit (Baker v. Lawrence, 22 L. T. N. S. 608). So, also, the record may be amended by entering any necessary suggestions thereon, even after judgment has been entered up (Whalley v. Massereene, 9 Ir. Jur. N. S. 417, referred to ante, p. 183). As to amending an order of reference, see Vanderbyl v. M'Kenna, L. R. 3 C. P. 252, whence it appears that an order of reference made by consent cannot be amended, unless there has been an omission on the part of the officer, or by some accident or mistake the order is not in accordance with the intention of the parties, or some fraud has been practised.

After judgment has been signed and enrolled the judgment itself and the previous proceedings may be amended by alterations in the names of the parties (O'Connell v. O'Connor, BL. D. & O. 95; Wilcox v. Lowe, 6 Ir. Jur. O. S. 101); if the judgment has been recently entered, by an alteration in the amount (White v. White, 6 Law Rec. N. S. 397 ; Anon., Bl. D. & 0. 110), or in the date (Keough v. Henry, 4 Ir. Jur. N. S. 245; Wilcox v. Lowe, 3 Ir. C. L. R. 470). In all such cases the Court must, however, be satisfied that

or,

the rights of third parties will not be interfered with (Elliott v. Elliott, 7 Ir. Jur. O. S. 168), and where an application was made to amend the judgment by increasing the amount leave would in general not have been given under the old practice. Thus, where by mistake, a judgment was entered up in the amount which a bond had been given to secure, and not in the penal sum, the Court refused leave to amend (Cromie v. Brown, 4 Ir. L. R. 219). The course to be adopted in such cases was to apply for leave to vacate the judgment and mark a new one (Cumming v. Brown, 2 Leg. Rep. 143). When a joint judgment had been marked on a bond and warrant signed by several parties, one of whom was an infant, the Court allowed the judgment to be amended by striking out the infant's name (England v. Chapman, 5 Ir. Jur. N. S 291). An unsealed writ of fi. fa. was allowed to be amended by the addition of Executions. the seal upon terms (Callaghan v. Brodrick, 1 Ir. C. L. R. 364), and see further, as to amending an execution, Cobbett v. Wheeler, 4 L. T. N. S. 285; Newnham v. Law, 5 T. R. 577, ante, p. 183, in which case a writ of ca. sa. was allowed to be amended after execution, by striking out the name of a deceased co-plaintiff who had died before judgment.

When appli

cation to be

made.

An application for leave to amend should be made within a reasonable time, or the delay may be a reason for refusing leave (Meredith v. Taylor, Cr. & Dix. Ab. Not. Cas. 615; Wood v. Grimwood, 10 B. & C. 689). When an amendment is made, the amended proceeding continues as of the same date as before the amendment was made, as, for instance, when new parties are added, or an additional defence pleaded (Coombes v. Bristol & Exeter Rly. Co., 1 F. & F. 206; Short v. Simpson, L. R. 1 C. P. 248, 250). If made before service, the plaintiff may, as a general rule, obtain leave to amend as he may be advised; and when leave to amend is given in that form, whether before or after service, the plaintiff may, as part of the amendment, change the venue originally selected (Costello v. Woods, 11 Ir. C. L. R. Ap. 31); and see Bramble v. Knox, 3 Ir. L. T. 726. By the 40th G. O., 1854, it is provided, that no amendment whatever of any writ or pleading shall be allowed, except by consent or order of the Court on motion, unless authorized by sects. 87 and 89 of the present Act, and accordingly when the writ has been served, no amendment will in general be allowed without no- Notice tice to the opposite party. Where, however, the defendant showed by his necessary. acts that he was aware of the residence of the plaintiff's attorney, though the same was not mentioned in the summons and plaint, the Court allowed the omission to be amended, but required the writ to be served over again (Dempster v. Vernon, 6 Ir. Jur. N. S. 366). As to the amendment of pleadings before argument, see ante, p. 79, note (v). Amendments may of course be made at the trial by the Judge, but some doubt seems to exist as to the right of a party to appeal against an order giving liberty to amend so made (Tennyson v. O'Brien, 5 E. & B. 497). There appears, however, to be no Appealing doubt that if an amendment be allowed, the party opposing the amendment from order of may have the decision of the judge reviewed by the Court, and if it should Judge at be considered that the discretion of the Judge was wrongly exercised, a new trial will be granted (Davis v. Reeves, 5 Ir. C. L. R. 533, 535; Boucher v. Murray, 6 Q. B. 362; Brashier v. Jackson, 6 M. & W. 549). Where the Judge's report states that an amendment was made at the trial by consent, the Court will not listen to an affidavit stating it was not so made (Atkinson v. Mills, 8 Ir. Jur. N. S. 92). Where, however, the Judge refuses to make an amendment, it has been laid down that the Court will not interfere with the exercise of his discretion (Holden v. Ballantyne, 29 L. J. Q. B.

trial.