Surrey was substituted for Middlesex in the writ, and it was served, without being re-sealed: the court said, that the attorney in this instance had been guilty of gross misconduct, and on that ground they set aside the proceedings, on payment of the debt without costs. Siggers v. Sansom, 2 Dowl. 745. Where an affidavit was altered after it was sworn, by inserting the words " the paper writing marked A. is a true copy," the court held that the alteration rendered the affidavit a nullity, and that it could not therefore be used. Wright v. Skinner, 5 Dowl. 92. Even where an appearance was entered by mistake in a wrong name, and the defendant's attorney, instead of applying to have that amended, entered another appearance in the right name, and signed a non pros for want of a declaration: the court held it to be irregular, and set aside the judgment with costs. Bate v. Bolton, 2 Dowl. 677.

But the court or a judge at chambers, will in general give leave to amend, in all personal actions and in ejectment, whenever the justice of the case appears to require it; and in penal actions, as well as in others. Jones v. Edwards, 3 Mees. & W. 218.

Amendments are allowed by a judge at chambers, or at the assizes, or by a judge at nisi prius, or by the court: in ordinary cases, before verdict, the amendment required will be allowed by a judge, upon summons; after verdict, the application is usually made to the court; and where the necessity for the amendment is first perceived during the trial of the cause, or immediately before it, as in the case of variance, or the like, the application is made to the judge at nisi prius. It is not required that the application should be made within any particular time; there is no analogy in this respect between it, and an application to set aside proceedings for irregularity. Welsh v. Hall, 9 Mees. & W. 14. But if a judge make an order to amend, and the opposite party wish to rescind that order, an application to the court for that purpose must be made promptly. Baden v. Flight, 6 Dowl. 177. As these amendments are entirely in the discretion of the judge granting them, the court will seldom interfere with the decision of a judge upon the subject; indeed they have, in more than one instance, doubted their authority to do so. See R. v. Archbishop of York, 3 Nev. & M. 453. Doe v. Errington, Id. 646, 651. Vide post. Amendments are usually granted upon payment of costs, and upon such other terms, as to pleading, taking short notice of trial, &c., as the judge shall think reasonable. But this is entirely discretionary with the judge granting the amendment. See Wall v. Lyon, 1 Dowl. 714. supra. If the amendment be granted upon payment of costs, R. v. Archbishop of York, the party entitled to them, if he wish to proceed in the action, should demand them, and if not paid, he may apply to rescind the order; or if the other party amend, without paying the

costs, and attempt to proceed in the action, a judge upon summons will stay his proceedings; but no attachment will lie for the non-payment of these costs, as the order is merely conditional. Turner v. Gill, 3 Dowl. 30. The party obtaining the order, however, may abandon it, if he will, not choosing to amend upon the terms imposed; and in that case he may proceed in the action in the same manner as if such order had never been applied for or granted. Black v. Sangster, 1 Cr. M. & R. 521. But he cannot get it altered, or have any part of it rescinded, after he has served it, or otherwise acted upon it. Giraud v. Austen, 1 Dowl. N. C. 703.

The judges are usually very liberal in granting an amendment, where the justice of the case requires it; except in hard actions; in cases where the amendment would affect the rights of third parties, such as bail, &c.; and in cases of deviation from the forms, &c. under the uniformity of process act and the new rules, with which they usually exact a strict compliance. All this shall presently be noticed more fully.

Amendment in particular instances.

Abatement, pleas in.] The court will not allow of an amendment in a plea in abatement, as it has no reference to the merits, and merely has the effect of delaying the suit. AtkinGent. 2 Chit. 5. Anon. 1 Tidd. 690.

son v.

Affidavit.] An affidavit cannot be amended, in substance or in form, Wood v. Stephens, 3 Moore, 236, unless it be re-sworn ; and then it has effect only from the date of the new jurat. See post tit. " Affidavit." But where an affidavit on which a rule nisi had been obtained, appeared to be defective in the jurat, and upon showing cause, another affidavit exactly the same, but with a correct jurat, was produced, the court allowed the rule to be enlarged, on filing the second affidavit, and paying the costs of the appearance of the other party to show cause. Goodricke v. Turley, 2 Cr. M. & R. 637. And where affidavits, to be used on showing cause against a rule, are found to be defective in any formal part, the court may give leave to have them amended and re-sworn, and adjourn the hearing of the rule in the mean time; Anderson v. Ell, 3 Dowl. 73; and this, even although the time for filing a fresh affidavit should have expired. Ex p. Hall, 8 Law J., 211, qb.

Appearance.] An appearance may be amended. Where the plaintiff entered an appearance for the defendant by a wrong name, it was amended, even after declaration. Wheston v. Packman, 3 Wils. 49. So, where the defendant enters an appearance in a wrong name, it may be amended; but where, instead of applying to have it amended, he entered a new ap

pearance, and afterwards signed judgment of non pros for want of a declaration, the court held his proceedings to be irregular, and set aside the judgment. Bate v. Bolton, 2 Cr. M. & R. 365.

Avowry, &c.] Avowries may be amended. Brown v. Sayce, 4 Taunt. 320. The court have allowed them to be amended, in the description of the premises, the terms of the holding, &c.; and they have even allowed new avowries to be added, varying the amount of rent, &c., although issue had been joined, and notice of trial given and countermanded, and although more than two terms had elapsed since the former avowries were pleaded. Prior v. Duke of Buckingham, 8 Moore, 584.

So, leave has been given to amend pleas in bar to an avowry, after argument on demurrer. Mattravers v. Fossit, 3 Wils. 295.

Bail.] The bail piece may be amended, Anderson v. Neale, 1 B. & P. 31, upon a re-acknowledgment by the bail; Craft v. Coggs, 4 Moore, 65; but not without their consent, Bingham v. Dickie, 5 Tuunt. 814, it being a general rule with the judges, not to allow of an amendment, to cure any irregularity, of which the bail may take advantage. Fulwood v. Annis, 3 B. & P. 321. The court have also refused to amend a bail-piece in error, where it would have the effect of defeating an execution. Reed v. Cooper, 5 Taunt. 320.

So, the court will not amend the recognizance of bail, unless with the consent of the bail, Tabrum v. Tenant, 1 B. & P. 481. See Hartley v. Hodson, 1 Moor, 814, or at their instance, Halliday v. Fitzpatrick, 4 Taunt. 875. See Bottomley v. Medhurst, 13 Price, 589, or where the defect has arisen from a mere mistake of the officer of the court. Mann v. Calow, 1 Taunt, 221, and see Christie v. Walker, 1 Bing. 206. And in an action on the recognizance, they have refused to amend it, after issue joined on nul tiel record. Venn v. Warner, 3 Taunt. 263.

So, in a scire facias against bail, although the court may order an amendment, if they will, Perkins v. Petit, 2 B. & P. 275, yet they usually refuse it, upon the ground that they will not cure an irregularity, of which the bail may take advantage. Fulwood v. Annis, 3 B. & P. 321. And the same as to the declaration on the scire facias. Stevenson v. Grant, 2 New R. 103.

If the bail, however, require an amendment, the court in most cases readily grant it. But they will not so readily grant an amendment in an affidavit of justification of country bail, as the liability of the bail has not then commenced, and the affidavit is deemed a proceeding entirely upon the part of the defendant. See Burford v. Holloway, 2 D. & R. 362. And in all cases, where such an affidavit states that the bail are "pos

sessed of," instead of " worth," property to the required amount, (a mistake which has become very usual), the court of Exchequer have made it a rule not to allow the affidavit to be amended. Naylor's Bail, Dowl. 452, and see Worlison's

Bail, 2 Dowl. 53.

Capias.] Formerly the court or a judge, upon application, would allow a writ of mesne process to be amended, Stevenson v. Danvers, 2 B. & P. 109. Adams v. Luck, 3 Brod. & B. 25. Carty v. Ashleigh, 2 W. Bl. 918, even after issue joined, Carr v. Shaw, 7 T. R. 299, if the amendment would not have the effect of charging the bail, Inman v. Huish, 3 New R. 133, or of preventing the defendant from proceeding in an action for false imprisonment for an arrest under it; Anon. 1 Tidd. 160; unless, indeed, the defect in the writ rendered it a nullity altogether. Kenworthy v. Peppiat, 4 B. & A. 288.

But now, as the form of the writ is given by statute, and persons must know that they are bound strictly to conform to it, the court will not allow an amendment of a capias, Colston v. Berens, 3 Dowl. 253, unless the plaintiff would otherwise be deprived of his remedy. Bilton v. Clapperton, 1 Dowl. N. C. 386. Nor will they amend the copy of the writ, which is delivered to the defendant upon his arrest, where it varies from the writ. Byfield v. Street, 2 Dowl. 739. See Hodgkinson v. Hodgkinson, 3 Nev. & M. 564. In the indorsement on the writ, however, the court will allow of an amendment, upon payment of costs; formerly in that part of the statement of the amount of debt and costs, which stated that if the amount were paid within four days "from the service hereof," proceedings should be stayed, if, instead of the word "service," the word "execution" were used, (which was a very usual mistake), the court would allow it to be amended, on payment of costs. Urquhart v. Dick, 3 Dowl. 17. Shirley v. Jacobs, Id. 101. Cooper v. Waller, Id. 167. So, where there was a variance between the order for holding to bail, and the indorsement upon the writ, in the sum, the order being for 4221., and indorsement 4221. 13s. 4d., the court refused to discharge the defendant on that account, and ordered the indorsement on the writ to be amended. Plock et al. v. Pachico, 9 Mees. & W. 342. If a writ be filed of record, and there be a mistake in the recording of it, the court will allow it to be amended, according to the truth. Green v. Rennett, 1 T. R. 782.

Declaration.] The court will allow a declaration to be amended, in the title; Coutanche v. Le Ruez, 1 East, 133; Symonds v. Parmenter, 1 Wils. 256; in the name of the plaintiff;, Gardner v. Walker, 3 Anst. 935; see Freen v. Cooper, 6 Taunt. 358; but see Moody v. Aslatt, 3 Dowl. 486; in the name of the defendant; Owens v. Dubois, 7 T. R. 698, and see Horton v.

Stamford, 2 Dowl. 96; in adding the name of a plaintiff, pro formá; Lakin v, Watson, 2 Dowl. 633. Baker v. Neaver, 1 Cr. & M. 112; in striking out the name of one of several defendants, on payment of his costs; Palmer v. Beale et al., 9 Dowl. 529; in substituting for an averment of notice of dishonour, a statement that the defendant had dispensed with it, in an action on a bill of exchange; Burgh v. Legge, 8 Law J., 258 ex.; in adding new counts for the same causes of action; Freen v. Cooper, 6 Taunt. 358. Brown v. Crump, 6 Taunt. 300. R. v. Archbishop of York, 3 New & M. 453. Legge v. Boyd, 8 Dowl. 272, 9 Law J., 170, cp.; in striking out counts ;Aylwin v. Todd, 1 Bing. N. C. 170, see Tomlinson v. Nanny, 2 Dowl. 17. Tenour v. Smith, 1 Ld. Ken. 141; and formerly even in the very form of action, changing it from assumpsit to debt, or the like: Billing v. Flight, 6 Taunt. 419, 422: in ordinary cases, at any time whilst the proceedings remain in paper, Havers v. Bannister, 1 Wils. 7. Horston v. Shilliter, 6 Moore, 490, provided the amendment have not the effect of again charging the bail, if they have been already discharged by reason of the defect. Levett v. Kibblewhite, 6 Taunt. 483. They will amend a declaration also, in the damages laid, or the amount of debt stated in each count, if the application be made before the trial. Dew et al. v. Katz, 8 Car. & P. 315. But the court will not amend the declaration after verdict, by increasing the amount of the damages laid, without sending the case to a new trial, even although it appears evident on the face of the declaration that the damages were laid too low by mistake. Tomlinson v. Blacksmith, 7 T. R. 132, and see Pearce v. Cameron, 1 M. & S. 675, but see Tibbs v. Barron, 12 Law J., 33, cp. And the court of King's Bench refused to amend the declaration, after a motion made to arrest the judgment for the defect sought to be amended. Collins v. Gibbs, 2 Burr. 899.

As to the time for pleading, after an amendment of the declaration has been allowed, vide ante, vol. 1, p. 277. In the Queen's Bench, the defendant may demur specially to the amended declaration, although before the amendment he was under terms to plead issuably, &c. Children v. Mannering, 8

Dowl. 120.

Declaration in ejectment.] The court will allow a declaration in ejectment to be amended, in the same manner as an ordinary declaration in other cases. They have allowed an amendment by altering the day of the demise, Doe v. Miller, 1 Chit. 536. Doe v. Pilkington, 4 Burr. 2447, even in ejectment for a forfeiture. Anon. 1 Chit. 536. They will allow the term in the demise to be enlarged, if it appear to them to be necessary to answer the ends of justice. And therefore, where the term expired, whilst the cause was suspended by a writ of error and