nuance to be amended. They will also allow a plea or pleas to be added, even after issue joined. Huber v. Steiner, 2 Dowl. 781. They have allowed a defendant to add a plea, that there was no contract in writing, within the meaning of the statute of frauds, under circumstances. Smith v. Dixon, 1 Har. & W. 668. But in an action for slander, after verdict for the plaintiff, the court refused to allow the defendant to add a plea of justification upon any terms. Kirby v. Simpson, 3 Dowl. 791.

Records.] A record may be amended, even after error brought, and those very defects assigned for error, which are sought to be amended. Dunbar v. Hitchcock, 3 M. & S. 591. Dickinson v. Flaisted, 7 T. R. 474. This subject we have already considered, when treating of the amendment of judgments, declarations, &c.

Where a similiter has been omitted, the court, after verdict, will allow the record to be amended, by adding it, in all cases where it accords with the justice of the case that they should do so. Reeder v. Bloom, 2 Bing. 383. Sayer v. Pocock, 6 M. & S. 50. Siboni v. And see Clark v. Nicholson,

Coup. 407. Wright v. Horton, Kirkman et al. 3 Mees. & W. 46. 6 Car. & P. 712. Or where the preceding pleading ends with an et cetera, that will be deemed to supply the omission. Brook v. Finch et al. 6 Dowl. 313. Handford v. Handford, Id. 473.

Or if, to a pleading concluding with a verification, the opposite party, instead of traversing it, add the similiter: if a verdict be found against such party, the court will not on this ground set aside the verdict, but will allow the record to be made perfect by amendment; Grundy v. Mell, 1 New Rep. 28. See Ferrers v. Weal, 2 Moore, 215; but if the verdict be found for such party, all the court can do for him is, instead of awarding a repleader, to allow him to amend, and so proceed to a new trial, upon payment of costs. See Wordsworth v. Brown, 3 Dowl. 698. But where, to debt on an Irish judgment, the defendant pleaded satisfaction, and nil debet, and the plaintiff joined issue on the nil debet, but did not notice the other plea, and the defendant then added a similiter as if the plaintiff had replied the plaintiff having obtained a verdict, the court refused to set it aside, because the defendant might have had the full effect of his plea of satisfaction, by evidence under the general issue; and they allowed the plaintiff to amend, by adding a replication, denying the satisfaction. Cooke v. Barker, 5

Taunt. 164.

Replication.] The court will amend a replication, in the same manner as other pleadings. They have allowed a replication to be amended, by changing it from De Injuria to Molliter manus imposuit. Law v. Newland, 1 Wils. 76. So, where to a plea of payment, the plaintiff replied damage ultra, the court

allowed him afterwards to amend his replication and accept the money in satisfaction, upon payment of the defendant's costs incurred subsequently to the payment of the money into court. Kelly v. Flint, 5 Dowl. 293. And where there was a bad replication to a sham plea, the court allowed the plaintiff to amend, even without payment of costs. Solomons v. Lyon, 1 East, 369.

Rules.] A rule nisi may be amended, at any time before it is served. When cause is shown against it, the court are not bound to make it absolute in its terms, but they may mould the rule absolute in what form they please. And if the officer commit any mistake in drawing up the rule, if it can be rectified from the indorsement of counsel on their briefs, or by the recollection of the court, the court will order it to be amended. But the court will seldom entertain an application to add terms to a rule already made absolute, which were not brought under their consideration when the rule was discussed. See Lopez v. Tastet, 8 Taunt. 712.

Scire facias.] If scire facias on a judgment, or the declaration thereon, &c. vary from the judgment, the court will allow it to be amended. Brasswell v. Jeco, 9 East, 316. See Klos v. Dodd, 4 Dowl. 67, 1 Har. & W. 342. And where in a scire facias to revive a judgment, the award of execution, and the ca. sa. thereon, varied from the judgment, in the christian name of the plaintiff: Littledale, J. allowed them to be amended, even after the ca. sa. was executed. Thorpe v. Hook, 1 Dowl. 501.

Summons, writ of.] The court will not allow a writ of summons to be amended, unless it appear that the debt will otherwise be barred by the statute of limitations, Partridge v. Wallbank, 1 Mees. & W. 316. Lakin et al. v. Watson, 2 Cr. & M. 685. Eccles v. Cole, 8 Mees. & W. 537, and see Moody v. Aslatt, 1 Cr. M. & R. 771. Green et al. v. Kettilby, 9 Law J., 228, ex., or unless the amendment be merely to make the writ agree with the præcipe; Kirk v. Dolby, 6 Mees. & W. 636; but they cannot order an amendment of the copy served, having no control over it. Eccles v. Cole, supra. They will not allow even the indorsement to be amended, in the sum mentioned in it, in order that the parties may proceed to a trial before the sheriff. Trotter v. Bass, 1 Bing. N. C. 516, 3 Dowl. 407. See Edge v. Shaw, 4 Dowl. 189, semb. cont. Where a writ of summons was directed to the defendant in Middlesex, but the plaintiff's attorney afterwards, ascertaining that the defendant resided in Surrey, substituted the word "Surrey" for "Middlesex," and served the writ, without having it resealed: the court said that the attorney had been guilty of gross miscon

duct, and they therefore set aside the proceedings, on payment of the debt without costs. Siggers v. Sansom, 2 Dowl. 745.

Verdict.] The verdict may at any time be amended by the judge's notes; Ernest v. Brown, 4 Bing. N. C. 162; or by the sheriff's notes, in a case tried before him. Walker v. King, 6 Law J., 184, ex. This is usually done where a general verdict is given, and the plaintiff, finding after the trial that some of the counts in his declaration are bad, wishes to have the verdict entered upon those which are good. Leave to amend the postea in this respect will be given, where it appears from the judge's notes that the jury calculated the damages on evidence applicable to the good counts only, Eddowes v. Hopkins, 1 Doug. 376, although evidence may have been given applicable to the bad counts also. Williams v. Breedon, 1 B. & P. 329; but see Empson v. Griffin, 11 Ad. & El. 186. So, in ejectment for a messuage and tenement, the court gave leave to confine the verdict to the messuage alone, according to the judge's notes. Goodtitle v. Otway, 8 East, 357. So, where there is a misjoinder of counts, and a general verdict given, if the jury have calculated their damages with reference to one count only, the postea may be amended by entering the verdict on that count, by which means the misjoinder will be cured. Harris v. Davis, 1 Chit. 623. And even where a jury gave their verdict for the plaintiff on the general issue only, without noticing another issue on the statute of limitations, the court allowed it to be amended by the judge's notes. Petrie v. Hannay, 3 T. R. 659, and see Isles v. Turner, 3 Dowl. 211. And this may be done, even after error brought and errors assigned; Doe v. Perkins, 3 T. R. 749; and in one case it was done, after the case had been argued in the court of error. Richardson v. Mellish, 3 Bing. 334, 7 B. & C. 819, but see Harrison v. King, 1 B. & A. 161. But the court have refused to do this, at the instance of the defendant, even although the general finding were contrary to the direction of the judge. Spencer v. Goter, 1 H. Bl. 78. Reece v. Lee, 7 Moore, 269. And in a penal action, where there was a verdict for one penalty, and the plaintiff elected to enter it upon a particular count, but afterwards finding that count bad, he applied for leave to enter it on another count, to which the evidence was equally applicable: the court refused it, saying that they could not allow it to be done in a penal action. Holloway v. Bennett, 3 T. R. 448.

But the court will never amend the postea, by increasing the damages given by the jury, even although the jury join in an affidavit that they intended to give the increased sum, and thought that the verdict as delivered had the effect of giving it. Jackson v. Williamson, 2 T. R. 281. As for instance,

where in debt upon a mortgage deed, a verdict was taken by mistake for the principal only, without the interest, the court refused to increase it, although the action was undefended. Baker v. Brown, 2 Mees. & W. 199. So in an action for not setting out tithes, where the jury found damages for the single value only, the court held that they could not amend the postea by entering the verdict for the treble value. Sandford v. Porter, 2 Chit. 351. If, on the other hand, the jury give greater damages than are laid in the declaration, the court will allow the plaintiff to enter a remittitur for the excess, even after error brought. Usher v. Dansey, 4 M. & S. 94. Pickwood v. Wright, 1 H. Bl. 642.

The application to amend the postea, may be made to the judge who tried the cause, whether he be a judge of the court in which the record is made up, or not; Doe v. Perkins, 3 T. R. 749; and, indeed, must be made to him, and not to the court. Per Abbott J., in Harrison v. King, 1 B. & A. 163. Scougull v. Campbell, 1 Chit. 283. Ernest v. Brown, 4 Bing. N. C. 162, and see Sandford v. Alcock, 12 Law J., 40, ex. But where a verdict is given subject to an award, the plaintiff, after the award is made, may alter the verdict accordingly, "ithout making any application to the court or judge for ave to do so. Grimes v. Naish, 1 B. & P. 480. Where upon a case coming on for argument in the Exchequer Chamber, it was found that one of the errors assigned was for a defect in setting out the matter of the postea in the record, an error which the court below would have amended as of course the court of error allowed the transcript to be amended in this respect, on payment of the costs of the day. De Tastet v. Rucker, 3 Brod. & B. 65.

Writ of trial.] Where the date of the writ of summons did not appear in the writ of trial, the issue did not recite the writ of summons or award of the venire, the award of the venire in the writ of trial stated the debt to be above 201., and the writ of trial did not recite when or out of what court it issued, and it bore no date, the court, after verdict for the plaintiff, ordered the issue and writ of trial to be amended in these respects, upon payment by the plaintiff of the costs of the application which had been made to set them aside. Emery v. Howard, 1 Dowl. N. C. 426.

Amendment at the trial.

By consent, &c.] If an amendment be required at nisi prius, even after the cause is called on, and both parties consent to it, the judge upon application will allow it to be made, however material it may be. Murphy v. Marlow, 1 Camp. 57. Or, in matters of trifling importance, he may allow of the

amendment at the instance of one party, whether the other consent to it or not. Freeman v. Cockell, 1 Car. & P. 137. But where the amendment required was in a matter of substance, as where the plaintiff applied to Lord Ellenborough, C. J., at nisi prius, for leave to amend his declaration, by omitting the profert of the bond on which the action was brought, his lordship refused it, because it was matter of material allegation. Paine v. Bustin, 1 Stark. 74.

Upon trial by the record.] Where in debt on judgment, nul tiel record is pleaded, and motion is made for judgment, if upon the production of the record there appears to be a variance between it and the statement of it in the pleading, the court even then will amend it, on payment of costs; Rastall v. Stratton, 1 H. Bl. 49; Blackmore v. Flemyng, 7 T. R. 447, n. See Engleheart v. Eyre, 5 B. & Ad. 68; but it is not within either of the statutes, 9 G. 4, c. 15, or 3 and 4 W. 4, c. 42, s. 23, hereinafter mentioned. Davis v. Dunn, 11 Law J., 16, qb., 1 Dowl. N. C. 317. But where in debt on a recognizance of bail, the declaration stated it to have been given in an action of debt, and on production of the record, upon nul tiel record pleaded, it appeared to have been in an action of assumpsit, the court refused to allow the amendment then, saying that it ought to be made the subject of a distinct application; but they granted it afterwards. Munkenbeck v. Bushnell, 4 Dowl. 139.

By statute.] By stat. 9 G. 4, c. 15, every court of record, or any judge sitting at nisi prius, may, if they think fit, cause the record, on which any trial may be pending before any such judge or court, in any civil action, or in any indictment or information for any misdemeanor, when any variance shall appear between any matter in writing or in print, produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs (if any) to the other party, as such judge or court shall think reasonable; and thereupon the trial shall proceed, as if no such variance had appeared; and in case such trial shall be had at nisi prius, the order for the amendment shall be indorsed on the postea, and returned together with the record; and thereupon the papers, rolls, and other records of the court from which such record issued shall be amended accordingly."

Where, in an action on a bill of exchange, the record stated it to have been drawn by A. B. payable to his own order, and by him indorsed to C. D.; and upon production of the bill at the trial, it appeared to be drawn payable to C. D.; the judge, on application, ordered the record to be amended; and the