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9. Declaration amended in the title according to the truth of the fact as to the time of the delivery thereof on affidavit of the fact. Symonds v. Parmeter & Barrow. 1 Wils.

78.

10. Amendment of declaration after verdict refused. Marriot v. Lister. 2 Wils. 147.

41. The court will not give leave to amend a declaration after the term next after that in which it was delivered. Aubeer v. Barker. 1 Wils. 149.

12. Declaration in replevin amended after plea in abatement. Garner v. Anderson. 1 Str. 11.

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13. Motion by the plaintiff to amend his declaration by changing the venue after plea pleaded, the court inclined to make the rule absolute; but took time to consider. v. Hallett. 1 Wils. 173. 14. Amendment of the declaration before bill filed after verdict. Wilder v. Handy. 2 Str. 1151. 15. Amendment cannot be on demurrer after entry on the roll. Cor v. Wilbraham. 1 Salk. 50. 1 L. Raymond, 668.

16. Amendment after error brought. Hillersdon v. Skildroy. 2 Str. 1182. 17. Replication to a special plene administravit not amendable after trial, and verdict set aside. The Bank of England v. Morrice. 2 Str. 1002. 18. Amendment of replication granted on motion, the pleadings being all in paper. Law v. Newland. 1 Wilson, 76.

19. Whilst all is in paper, it is not within the statutes of amendment. Anonymous. 3 Salk. 31.

20. An appearance entered by plaintiff for defendant by a wrong name amended after declaration. Wheston v. Packman. 3 Wils. 49. 21. Information may be amended after plea pleaded. The King v. Harris and another. 1 Salle. 47. 22. Plaintiff may amend the venue. Rivet and another v. Cholmondley and another. 2 Str. 1202.

23. A clerical mistake in a return to

a mandamus may be amended after the return has been filed. Rex v. Lyme. 1 Douglas, 135. 24. Amendment by adding pledges on special demurrer. Watson v. Richardson. 1 Wils. 226.

25. Amendment of a juryman's name from Henry to Harry ex officio. The King v. Roberts. 2 Str. 1214. 26. On a covenant that a man had done or suffered no aet to affect an estate, a breach "that he had been outlawed" ought to shew in what reign the outlawry was. Pleadings cannot be amended after a demurrer and argument. Fox v. Wilbraham. 1 L. Raymond, 668. 27. An extraordinary amendment of a common recovery by inserting a new. Vill. Henzell demandant, Lodge Tenant Lawson, Esq. vouchee. 3 Wils:

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judgment may be amended by changing it from "de bonis propriis," to "de bonis testatoris si," &c. after error brought. Ibid. 115.

So, if the judgment do not say that the damages occasione detentionis debiti were awarded ex assensu suo, it may be amended, though it has been assigned for error. Ibid. 116. Amendments of omissions in matters of form may be made after error brought. Ibid 115.

And even after the record has been sent back from the Exchequer Chamber. Green . Bennet. Ïbid:

115.

29. Appearance for an infant defendant per attornatum, when it ought to have been per guardianum ameudable. Stratton v. Burgis. 1 Stra. 114. Goodright v. Wright, 33. 30. Appearance of infant by attorney

not amendable, if there has been no undertaking to appear. Power v. Jones. 1 Str. 445.

31. The court will not give leave to amend, as to the parties to the suit, in a qui tam action after a demurrer. Evans qui tam v. Stevens. Term Rep. 282.

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32. Where a qui tam action for usury had been depending four years, the court would not allow amendments to be made in the declaration, though the pleadings were still in paper. Goffv. Popplewell. 2 Term Rep.707. 33. In such an action the court refus

ed leave to amend the declaration after the time limited for bringing a new action, there appearing to have been unnecessary delay on the part of the plaintiff. Steel qui tam v. Sowerby. 6 Term Rep. 171. 34. And wherever there is unnecessary delay in carrying on the suit by the plaintiff, the court of K. B. will not in their discretion permit any amendments to be made in a penal action. Ranking & al. qui tam v. Marsh, Knt. 8 Term Rep. 30. 35. But the court will permit an amendment to be made in a penal action after the time limited for bringing another action, provided there is no unnecessary delay on the part of the plaintiff. Cross v. Kaye. 6 Term Rep. 543. Maddock qui tam v. Hammett. 7 Term Rep. 55. 36. So too in the notice at the bottom of a declaration in ejectment. Doe d. Bass v. Roe. 7 Term Rep. 469. 37. But even in such a case the court will not permit an amendment to be made, if it introduce any new substantive cause of action, or any new charge against the defendant. S. C. 6 Term Rep. 544. 7 Term Rep. 55.

88. An amendment allowed in an action for a penalty under the bribery

act, by altering the venue from the county at large to an interior jurisdiction, after the time limited for commencing a new action; the particularity of the declaration making it appear probable to the court that the plaintiff was proceeding on the same fact for which the action was originally brought when laid by mistake in the wrong county, though there were no affidavit that it was the same. Petre v. Craft. 4 East,

433.

39. Such amendment allowed, though it appeared that there were distinet causes of action in the two different counties, upon an affidavit that the plaintiff proceeded on a mistake in supposing that both causes of action could he proved in the county where the election was holden. Dover v. Mestaer. 4 East, 435. 40. Where a sham plea was put in, to which plaintiff pleaded a bad replication, he had leave to amend without payment of costs, after demurrer argued. Solomons v. Lyons. 1 East, 369.

41.

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The court will give the plaintiff leave to amend the declaration in a civil action after the second term even against a prisoner; but they will not permit him to add new counts to his declaration in such a case. Owens v. Dubois. 7 Term Rep. 698.

42. After a verdict on a traverse to a return to a mandamus made by a corporation, the court would not allow the defendants to amend the return by setting forth a different constitution. R. v. The Mayor and Burgesses of Grampond. 7 Term Rep. 699.

43. The court will grant leave to a mend a declaration on a special agreement according to the bill filed, by increasing the damages, even after verdict; setting aside the verdict, and granting a new tral. Tomlinson v. Blacksmith. 7 Term Rep.

132.

44. The court of K. B. will grant leave to enter the continuances af

ter verdict, in order to arrive at the justice of the case. Doe d. Meurs v. Dolmaz. 7 Term Rep. 618. 45. In an action qui tam on the statute against usury, the plaintiff will not be permitted to amend, if he has previously amended in the court of common pleas, qu. ↑ Mass. 50. 46. Amendment of declaration not allowed after a joinder in demurrer. 1 Mass. 96.

47. Amendment of a plea allowed after joinder in demurrer. 1 Mass. 104. 48. Amendment made in the supreme judicial court of an execution which issued from the court of common pleas, after that court had refused to permit the amendment. 1 Mass. 233. 49. Amendment of a declaration in an action for a legacy, against an executor, so as to charge the defendant as devisee. 1 Mass. 433. 50. Before a default for not joining in demurrer, the party may amend the plea demurred to, but not add a new one. Doyle v. Moulton. 1 Johns. Cas. 246.

51. The plaintiff cannot amend his declaration after plea pleaded, without paying costs and giving an imparlance. Holmes v. Lansing. Johns. Cas. 246.

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52. After an action has been commenced for several terms, and noticed for trial several times, the court will not allow the plaintiff to amend his declaration. Sackett v. Thompson.

2 Johns. Rep. 206. 53. A declaration in trover, was allowed to be amended, after issue joined, by substituting hyson-skin for hyson (tea.) Heneshoff v. Miller. 2 Johns. Rep. 295.

54. After argument of a case, and before judgment, the case was allowed to be amended, at the instance of the defendant, on payment of the costs of the argument, and giving to the plaintiff, also, the election, afterwards, to be nonsuited, or to have a new trial. Jackson ex dem. Colden v. Brownel. 3 Johns. Rep.

140.

53. After an assignment of errors, it

is too late to move that the return to a writ of error be amended. Dumond v. Carpenter. 3 Johns. Rep.

141.

56. In error from a court of common pleas, this court allowed the defendants in error to amend his declaration on paying the costs in the court below, subsequent to the declaration, by averring that the plaintiffs in error were partners, &c. and the plaintiff's in error were allowed 20 days, after service of such declaration, to pay the amount recovered below, without costs, or to plead, and if they pleaded, a venire de novo was ordered, returnable at the next circuit. Pease and another v. Morgan. 7 Johns. Rep. 468. 57. The refusal of an inferior court to allow a plea to be amended, or a new plea to be filed, or to grant a new trial, or to continue a cause, cannot be assigned as error. Marine Ins. Co. of Alexandria v. Hodg 6 Cranch, 206.

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58. After a cause is remanded to the inferior court, such court may receive additional pleas, or admit amendments to those already filed even after the appellate court has decided such pleas to be bad upon demurrer. Ibid.

II. In Writs, Executions, &c.

1. The court will amend a recovery wherever it can be done consistently with the rules of law. Wynne v. Thomas. Willes, 565. But they cannot amend the teste of a writ of entry, where it is not the misprison of the clerk, and where there is nothing to amend by. Ib.567, Recovery amended in the return of the writ of seisin as a misprison of the clerk. Watson v. Lockley. 2 Wilson, 2.

2.

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Distringas must be tested on the very day, ven. fa. was returnable; otherwise a discontinuance, and not amendable. The Queen v. Tutchin. 1 Salk. 51. 2 L. Raym. 1061. Scire facias variant from the judg

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7. Ca. sa. may be amended after it has been executed, by mking it returnable before our justices instead of before us. Hunt v. Kendrick.

2 Black. 836. 8. Amendment of a capias ad respondendum, there being not fifteen days between the teste and return thereof. Carty v. Ashley. 3 Wils. 454. 2 Black. 918.

9. The name of one of several persons against whom a judgment is given cannot be inserted in the writ by way of amendment. Elkins v. Paine. 2 L. Raym. 1532.

10. Variance between writ of error and record refused to be amended, though the cursitor's note was right. Thompson v. Crocker. 1'Salk. 49. 11. Writ of error is not amendable if returnable before judgment. Wright v. Canning. 2 Str. 807. 12. Writ of covenant not amendable by common law or statute. Amicable action no more amendable than adversary. Lord Pembroke & Lord Jefferys, in the House of Lords. 1 Salk. 52.

13. Amendment of writ of error by striking out plaintiff. The Sword Blade Company v. Dempsey. 2 Str.

892.

14. If a writ of error appear to the court to vary from the record, the court will amend it ex officio without cost. Gardiner v. Merriot. 2 Raym. 1587. 2 Str. 902. 15. Amendment in error cannot be made by adding continuance in a record transcribed, without some record to amend by; but the court

will grant a certiorari to send for the continuances. The King v. Ponsonby, in error. 1 Wils. 303. 16. Judgment in ejectment for two houses and sci. fa. to shew cause why there should not be execution of one house plea of nul tiel record, plaintiff moved to amend sci. fa. but refused. Williams v. Hoskins. 3 Salk. 32. 1 Salk. 52.

17. If there be not fifteen days between the teste and return of a capias, the court of C. P. will allow the teste to be amended. Bouchier v. Wittle. 1 H. Black. 291. Davis & al. v. Owen. 1 Bos. & Pull.

342.

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18. If the award of the writ of inquiry on the roll be right, the teste of the writ, if wrong, shall be amended by it. Johnson v. Toulmin. East, 173. 19. Leave granted to amend a special capias, in order that an application might be made to the Master of the Rolls to procure a new original. Carr v. Shaw. 7 Term Rep. 299. 20. A plaintiff recovered judgments against two defendants in B. K. and one of them brought a writ of error in Cam Scacc. where the judgment was affirmed and costs given of the writ of error, and both the defendants were taken under a writ of execution on the whole sum, including the costs of the writ of error as well as the original sum recovered; this court permitted the plaintiff to amend his writ of execution as to the defendant who did not join in the writ of error, by altering it to the original sum recovered. Laroche v. Wasbrough & al. 2 Term Rep.

737.

21. Where a fi. fa. was sued out into a different county from that in which the venue was laid, and the party suing it afterwards, took out a fi. fa. into the proper county, and got a return of nulla bona to warrant the fi. fa. which first issued, the court of C. P. permitted the first writ to be amended, by adding the return of the nulla bona and the

testatum clause, though the second writ was returnable several days before judgment was signed. Meyer v. king, 1 H. Black. 541. 22. So where a fi. fa. was sued out into one county, (when it should have been a test. fi. fa.) without any original fi. fa., and the plaintiff afterwards sued out an original fi.fa., the court of K. B. permitted the party to amend the former on paying the costs. Cowperthwaite v. Owen. 3 Term Rep. 657. 23. A fieri facias, made returnable on a King's Bench instead of Common Pleas return day, was amended by the award of execution on the roll. Atkinson v. Newton. 2 Bos. & Pull.

336.

24. After a rule obtained to shew cause why the test. ca. sa. should not be set aside because not warranted by the judgment, and because there was no original ca. sa., the court of K. B. permitted plaintiff to amend the test. ca. sa. agreeably to the judgment, and directed the sealer of the writs to seal an original ca. sa. to warrant it. Shaw v. Maxwell. 6 Term Rep. 450.

25. A. B. having been arrested on a capias sued out against him by the name of C. B. a bail-bond was given, by which A. B., arrested by the name of C. B. became bound, conditioned for the appearance of A. B. arrested by the name of C. B. The affidavit to hold to bail named the defendant properly A. B. The court amended the capias and return (but without prejudice to the Sheriff), and rejected an application by the bail to cancel the bailbond. Stevenson v. Danvers. 2 Bos. & Pull. 109.

26. If a capias per continuance be tested on the same day as the original capias, a new original capias may be sued out to warrant it; though such new original bear teste before the cause of action accrued. vis s. Owen & al. 1 Bos. & Pull.

342.

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27. One of two plaintiff's died before

interlocutory judgment, but the suit went on to execution in the name of both; after this, and after a motion to set aside the proceedings for this irregularity, the court permitted the surviving plaintiff to suggest on the roll the death of the other before interlocutory judgment, and to amend the ca. sa. without paying costs. Newnham v. Law. 5 Term Rep. 577.

28. A scire facias against bail in error may be amended by the record of the recognizance. Perkins v. Petit. 2 Bos. & Pull. 275. 29. But the court (C. P.) do not think proper to cure any irregularities of which the bail are entitled to take advantage; and therefore refused to amend a scire facias against bail. Fulwood v. Annis. 3 Bos. & Pull.

321.

30. After verdict of guilty upon an indictment on the stat. 9 Ann. c. 14, for an assault on account of money won at gaming, the return to the writ of certiorari which had been issued at the instance of the defendant was amended by inserting in the return of the caption the true time when, and the names of the justices before whom, the quarter sessions, at which the indictment was found, was holden, and the names of jurors by whom it was found. And the entry roll and record of nisi prius were also amendmended, as to the caption of the indictment, (but not as to the names of the grand jurors,) by making the same agree with the caption so amended. R. v. Hill Darley. East, 174.

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31. A return to a writ of certiorari, issued at the instance of the defendant, was amended by inserting therein the commission of oyer and terminer, by virtue of which, and also the names of the justices by whom, the court before whom the indictment was found, was holden, on production of the said commission and the minutes taken by the clerk in court. And also the caption of

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