Page images

Fox v.

er v.

9. Declaration amended in the title a mandamus may be amended after

according to the truth of the fact as the return has been filed. Rex v. to the time of the delivery thereof Lyme. 1 Douglas, 135: on affidavit of the faet. Symonds 24. Amendment by adding pledges on v. Parmeter & Barrow. 1 Wils. special demurrer. Watson v. Rich78.

ardson. 1 Wils. 226. 10. Amendment of declaration after 25. Amendment of a jurymau's name

verdict refused. Marriot v. Lister. from Henry to Harry ex officio. 2 Wils. 147.

The King v. Roberts. 2 Str. 1214. 11. The court will not give leave to 26. On a covenant that a man had amend a declaration after the term done or suffered no aet to affect an inext after that in which it was de- estate, a breach “ that he had been livered. Aubeer v. Barker. 1 Wils. outlawed” ought to shew in what 119.

reign the outlawry was. 12. Declaration in replevin amended Pleadings cannot be amended after a after plea in abatement. Garner v. demurrer and argument. Anderson. 1 Str. 11.

Wilbrahan. 1 L. Raymond, 668. 13. Motion by the plaintiff to amend 27. An extraordinary amendment of a

his declaration by changing the ve- common recovery by inserting a new. nue after plea pleaded, the court Vill. Henzell denandant, Lodge Teninclined to make the rule absolute; ant Lawson, Esq. vouchee. 3 Wils: but took time to consider. Hallett 154. v. Hallett. 1 Wils. 173.

28. The name of the attorney in the 14. Amendment of the declaration be- plaintiff's warrant may be altered, fore bill filed after verdict, Wild- so as to make it correspond with Handy. 2 Str. 1151.

that in his declaration, after error 15. Amendment cannot be on demur- brought, and the variance between rer after entry on the roll. Cor v. the warrant and declaration assignWilbraham. 1 Salk. 50. 1 L. Ray

ed for error.

Richards v. Brown. mond, 668.

1 Douglas, 114. 16. Amendment after error brought. So, a mistake in the addition in the

Hillersdon v. Skildroy. 2 Str. 1182. warrant of attorney may be amend17. Replication to a special plene ad- ed after error brought. Ibid. 115.

ministravit not amendable after tri. So, the sirname of the attorney in the al, and verdict set aside. The Bank declaration may be amended, and of England v. Morrice. 2 Str. 1002. made to correspond with that in 18. Amendment of replication grant- the warrant after error brought. ed on motion, the pleadings being Ibid. 115. all in paper. Law v. Newland. i A judgment may be amended by change Wilson, 76.

ing it from “de bonis propriis," to 19. Whilst all is in paper, it is not 66 de bonis testatoris si,&c. after erwithin the statutes of amendment. ror brought. Ibid. 115. Anonymous. 3 Salk. 31.

So, if the judgment do not say that the 20. An appearance entered by plain- damages occasione detentionis debiti tilf for defendant by a wrong name

were awarded ex assensu suo, it may amended after declaration. Whes- be amended, though it has been aston v. Packman. 3 Wils. 49.

signed for error. Ibid. 116. 21. Information may be amended af- Amendments of omissions in matters

ter plea pleaded. The King v. of forin may be made after error Hurris and another. 1 Sailk. 47. brought. Ibid 115. 22. Plaintiff may amend the venue. And even after the record has been Rivet and another v. Cholmondley sent back from the Exchequer and another. 2 Str. 1202.

Chamber. Green F. Bemet. Ibist: 23. A clerical mistake in a relarn to 115.

29. Appearance for an infant defend- act, by altering the venue from the

ant per attornatum, when it ought county at large to an interior juristo have been per guardianum amend- diction, after the time limited for able. Stratton v. Burgis. 1 Stra. commencing a new action; the par

114. Goodright v. Iright, 33. ticularity of the declaration making 30. Appearance of infant by attorney it appear probable to the court that

not amendable, if there has been no the plaintiff was proceeding on the undertaking to appear. Power v. same fact for which the action was Jones. 1 Str. 443.

originally brought when laid by 31. The court will not give leave to mistake in the wrong county, though

aiend, as to the parties to the suit, there were no affidavit that it was in a qui tum action after a demur- the same. Petre v. Craft. 4 East, rer. Evans qui tai v. Stevens. 433. Term Rep. 282.

39. Such amendment allowed, though 32. Where a qui tam action for usury it appeared that there were distinct

had been depending four years, the causes of action in the two different court would not allow amendinents

counties, upon an affidavit that the to be made in the declaration, though plaintill proceeded on a mistake in the pleadings were still in paper. supposing that both causes of ac

Goffv. Popplewell. 2 Term Rep.707. tion could be proved in the county 33. In such an action the court refus- where the election was holden. Do

ed leave to amend the declaration ver v. Mestaer. 4 East, 433. after the time limited for bringing 40. Where a sham plea was put in, to a new action, there appearing to which plaintiff pleaded a bad rehave been unnecessary delay on the plication, he had leave to amend part of the plaintiff. Steel qui tam without payment of costs, after de

v. Sowerby. 6 Term Rep. 171. murrer argued. Solomons v. Lyons. 34. And wherever there is unnecessa


1 East, 369. ry delay in carrying on the suit by 41. The court will give the plaintiff the plaintiff, the court of K. B. will leave to amend the declaration in a not in their discretion permit any civil action after the second term amendments to be made in a penal even against a prisoner ; but they action. Ranking go al. qui tau v. will not permit him to add new

Marsh, Knt. 8 Term Rep. 30. counts to his declaration in such 35. But the court will permit an a

Oroens v. Dubois. Term mendment to be made in a penal ac- Rep. 698. tion after the time limited for bring- 42. After a verdict on a traverse to a ing another action, provided there return to a mandamus made by a is no unnecessary delay on the part corporation, the court would not alof the plaintift. . Cross v. Kaye. 6 low the defendants to amend the reTerm Rep. 543. Maldock qui tain turn by setting forth a different conv. Hammett. Terin Rep. 55. stitution. R. v. The Mayor

and 36. So too in the notice at the bottom Burgesses of Grampond.

Term of a declaration in ejectment. Doe Rep. 699.

d. Bass y. Roe. Term Rep. 469. 43. The court will grant leave to ao 37. But even in such a case the court mend a declaration on a special a

will not permit an amendment to greement according to the bill filed, be made, if it introduce any new by inereasing the damages, even afsubstantive cause of action, or any ter verdict; setting aside the vernew charge against the defendant. dict, and granting a new tral. TomS. C. 6 Term Rep. 544. 7 Term linson v. Blacksmith. Term Rep. Rep. 55.

132. 88. An amendment allowed in an ac- 44. The court of K. B. will grant

tion for a penalty under the bribery leave to enter the continuances af

[ocr errors]

a case.


[ocr errors]

ter verdict, in order to arrive at the is too late to move that the return justice of the case. Doe d. Meurs to a writ of error be amended. Du

. Dolmaz. 7 Term Kep. 618. mond v. Carpenter. 3 Johns. Rep. 45. In an action qui tam on the statute 111.

against usury, the plaintiff will not 56. In error from a court of common be permitted to amend, if he has pleas, this court allowed the defendpreviously amended in the court of ants in error to amend his declara

common pleas, qu. Mass. 50. tion on paying the costs in the court 46. Amendment of declaration not al. below, subsequent to the declaration,

lowed after a joinder in demurrer. by averring that the plaintiffs in er1 Mass. 96.

ror were partners, &c. and the 47. Amendment of a plea allowed af- plaintifis in error were allowed 20

ter joinder in demurrer. 1 Mass. 104. days, after service of such declara48. Amendment made in the supreme tion, to pay the amount recovered

judicial court of an execution which below, without costs, or to plead, issued from the court of common and if they pleaded, a venire de nopleas, after that court had refused to to was ordered, returnable at the

permit the amendment. 1 Mass. 233. next circuit. Pease and another v. 49. Amendinent of a declaration in an Morgan. 7 Johns. Rep. 168.

action for a legacy, against an ex- 57. The refusal of an inferior court ecutor, so as to charge the defend- to allow a plea to be amended, or a ant as devisee. 1 Mass. 433.

new plea to be filed, or to grant a 50. Before a default for not joining in new trial, or to continue a cause,

demurrer, the party may amend the cannot be assigned as error. Maplea demurred to, but not add a new rine Ins. Co. of Alexandria v. Hodgone. Doyle v. Moulton Johns.

6 Cranch, 206. Cas. 246.

58. After a cause is remanded to the 51. The plaintiff cannot amend his inferior court, such court may re

declaration after plea pleaded, with- ceive additional pleas, or admit aout paying costs and giving an im- mendments to those already filed eparlance. Holmes v. Lansing1 ven after the appellate court has Johns. Cas. 246.

decided such pleas to be bad upon 52. After an action has been commenc- demurrer. Ibid.

ed for several terms, and noticed for trial several times, the court will II. In Writs, Executions, fc. not allow the plaintiff to amend his declaration. Sackett v. Thompson. 1. The court will amend a recovery 2 Johns. Rep. 206.

wherever it can be dove consistent53. A declaration in trover, was al- ly with the rules of law. Wynne

lowed to be amended, after issue v. Thomas. Willes, 565. joined, by substituting hyson-skin for But they cannot amend the teste of a hyson (tea.) Heneshoff v. Miller. writ of entry, where it is not the 2 Johns. Rep. 295.

misprison of the clerk, and where 54. After arguinent of a case, and be- there is nothing to amend by. Ib.567

fore judgment, the case was allow- 2. Recovery amended in ihe return ed to be amended, at the instance of the writ of seisin as a misprison of the defendant, on payment of the

of the clerk. Watson v. Lockley. costs of the argument, and giving 2 Wilson, 2. to the plaintiff, also, the election, 3. Distringas must be tested on the afterwards, to be nonsuited, or to very day, ren. fa. was returnable ; have a new trial. Jackson er dem. otherwise a discontinuance, and not Colden v. Brownel. 3 Johns. Rep. amendable. The Queen v. Tutchin. 140.

1 Salk, 51. 2 L. Rain. 1061. 53. After an assigninent of errors, it 4. Scire facias variant from the juis

ment not amendable after nul tiel

will grant a certiorari to send for record, the writ being not vicious in the continuances.

The King v. se. Bucksum v. Hoskins. 1 Salk. 52. Ponsonby, in error. 1 Wils. 303.

2 L. Haym. 1057. The same Va. 16. Judgment in ejectment for two vasor v. Baile. 1 Salk. 52.

houses and sci. fa. to shew cause 8. Scire facias against bail not a- why there should not be execution

mendable. Grey v. Jefferson. 2 of one house plea of nul tiei record, Str. 1165.

plaintiff moved to amend sci. fa. 6. Omission of trespass, and insert- but refused. Williams v. Hoskins.

ing only debt, in the bill of Middle- 3 Salk. 32. 1 Salk. 52. sex by a common informer, amend- 17. If there be not fifteen days beable..Cox q. t. v. Mundy. Black. tween the teste and return of a ca462.

pias, the court of C. P. will allow 1. Ca. sa. may be amended after it the teste to be amended. Bouchier has been executed, by mking it re

v. Wittle.

1 H. Black. 291. Daturnable before our justices instead vis fo al. y. Owen. 1 Bos. 8. Pull. of before us. Hunt v. Kendrick, 342. 2 Black. 836.

18. If the award of the writ of inqui8. Amendment of a capias ad respon- ry on the roll be right, the teste of

dendum, there being not fifteen days the writ, if wrong, shall be amendbetween the teste and return there- ed by it. Johnson v. Toulmin. 4 of. Carty v. Ashley. 3 Wils. 454. East, 173. 2 Black. 918.

19. Leave granted to amend a special 9. The name of one of several per- capias, in order that an application

sons against whom a judgment is might be made to the Niaster of given cannot be inserted in the writ the Rolls to procure a new original. by way of amendment. Elkins v. Carr v. Shau. Term kep. 299. Paine. 2 L. Raym. 1532.

20. A plaintiff recovered judgments 10. Variance between writ of error against two defendants in B. K. and

and record refused to be amended, one of them brought a writ of error though the cursitor's note was right. in Cam Scacc. where the judgment

Thompson v. Crocker. 1. Salk. 49. was affirmed and costs given of the 11. Writ of error is not amendable if writ of error, and both the defend

returnable before judgment. Wright ants were taken under a writ of exv. Canning. 2 Str. 807.

ecution on the whole sum, including 12. Writ of covenant uot amendable the costs of the writ of error as well

by common law or statute. Ami- as the original sum recovered; this cable action no more amendable court permitted the plaintiff to athan adversary. Lord Pembroke 8 mend his writ of execution as to the Lord Jefferys, in the House of Lords. defendant who did not join in the 1 Salk. 52.

writ of error, by altering it to the 13. Amendment of writ of error hy original sum recovered. Laroche

striking out plaintiff. The Sword v. Wasbrough f. al. 2 Terno Rep. Blade Company v. Dempsey. 2 Str. 137. 892.

21. Where a fi. fa. was sued out into 14. If a writ of crror appear to the a different county from that in

court to vary from the record, the which the venue was laid, and the court will amend it ex officio with- party suing it afterwards, took out out cost. Gardiner v. Merriot. 2 a fi. fa. into the proper county, and Raym. 1587. 2 Str. 902.

got a return of nulla bona to war15. Amendment in error cannot be rant the fi. fa. which first issued,

made by adding continuance in a the court of C. P. permitted the record transcribed, without some first writ to be amended, by adding sccord to amend by; but the court the return of the nulla bonci and the

testatum clause, though the second interlocutory judgment, but the suit writ was returnable several days went on to execution in the name of before judgment was signed. Mey- both ; after this, and after a motion

er v. hing, 1 H. Black. 541. to set aside the proceedings for this 22. So where a fi. fa. was sued out irregularity, the court permitted the

into one county, (when it should surviving plaintiff to suggest on the have been a test. fi. fa.) without any roll the death of the other before original fi. fa., and the plaintiff interlocutory judgment, and to aafterwards sued out an original fi.fa.,

mend the ca. sa. without paying the court of K. B. permitted the

costs. Neunham v. Law. 5 Term party to amend the former on pay- Rep. 577. ing the costs. Cowperthwaite v. 28. A scire facias against bail in erOuen. 3 Term Rep. 657.

ror may be amended by the record 23. A fieri facias, made returnable on of the recognizance. Perkins v. a King's Bench instead of Common Petit. 2 Bos. of Pull. 275. Pleas return day, was amended by 29. But the court (C. P.) do not think the award of execution on the roll. proper to cure any irregularities of Hih inson v. Newton. 2 Bos. f Pull. which the bail are entitled to take 336.

advantage ; and therefore refused 24. After a rule obtained to shew to amend a scire facias against bail.

cause why the test. ca. sa. should not Fulwood y. Annis. 3 Bos. f Pull. be set aside because not warranted 321. by the judgment, and because there 30. After verdict of guilty upon an was no original ca. sa., the court of indictment on the stat. 9 Ann. c. 14, K. B. permitted plaintiff to amend for an assault on account of money the test. ca. sa. agreeably to the won at gaming, the return to the judgment, and directed the sealer writ of certiorari which had been of the writs to seal an original ca. issued at the instance of the defendsa. to warrant it. Shaw y. Max- ant was amended by inserting in well. 6 Term Rep. 450.

the return of the caption the true 25. A. B. having been arrested on a tiine when, and the names of the

capias sued out against him by the justices before whom, the quarter name of C. B. a bail-bond was giv- sessions, at which the indictment en, by which A. B., arrested by the was found, was holden, and the name of C. B. became bound, con- names of jurors by whom it was ditioned for the appearance of A.

found. And the entry roll and reB. arrested by the name of C. B. cord of nisi prius were also amendThe affidavit to hold to bail named mended, as to the caption of the inthe defendant properly A. B. The dictment, (but not as to the names court amended the capias and re- of the grand jurors,) by making the turn (but without prejudice to the same agree with the caption so aSheriff'), and rejected an applica- inended. R. v. Hill Darley. 4 tion by the bail to cancel the bail- East, 174. bond. Stevenson v. Danvers. 2 31. A return to a writ of certiorari, Bos. & Pull. 109.

issued at the instance of the defend26. If a capias per continuance be test- ant, was amended by inserting there

ed on the same day as the original in the commission of oyer and tercapias, a new original capias may miner, by virtue of which, and also be sued out to warrant it; though the names of the justices by whom, such new original bear teste before the court before whom the indicts the cause of action accrued. Da- ment was found, was holden, on vis a. Quen fo al. 1 Bos. & Pull. production of the said commission 312.

and the minutes taken by the clerk 27. One of two plaintiff's died before in court. And also the caption of

« PreviousContinue »