court afterwards held that he had done rightly, but at the same time expressed a doubt whether they had any jurisdiction to interfere with the discretion of the judge in this respect. Parks v. Edge, 1 Cromp. & M. 429. See Pullen v. Seymour, 5 Dowl. 164. So where a declaration in assumpsit set out the contract in substance, but did not state it to be in writing, and the contract, (which was in writing), upon being produced at the trial, appeared to vary from the statement of it on the record, the judge ordered the record to be amended, but gave the defendant leave to move to enter a nonsuit, if the court should be of opinion that he had no power to amend; upon such motion being afterwards made, the court held it to be a case within the above statute, and that the amendment had been properly made. Lamey v. Bishop, 1 Nev. & M. 332, and see Masterman v. Judson, 8 Bing. 224. S. P.

By stat. 3 & 4 W. 4, c. 42, s. 23, if upon a trial before any court of record or judge at nisi prius, in any civil action, or in an information in the nature of a quo warranto or proceedings on a mandamus, "any variance shall appear between the proof and the recital or setting forth on the record, writ or document on which the trial is proceeding, of any contract, custom, prescription, name or other matter, in any particular or particulars in the judgment of such court or judge not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence," such court or judge may order the record, &c. to be forthwith amended, on such terms as to payment of costs to the other party, or postponing the trial, or both, as they shall think reasonable; or if it appear that although the variance be in a matter not material, yet that the opposite party may have been thereby prejudiced in the conduct of his action, prosecution, or defence, the court or judge may order the amendment on payment of costs, and withdrawing the record or postponing the trial, as they shall think reasonable; if the trial proceed, the order for the amendment shall be indorsed on the postea or writ, &c. and returned therewith, or, if in full court, on the roll; provided that any party, dissatisfied with the decision of a judge at nisi prius, sheriff or other officer, respecting his allowance of any such amendment, may apply to the court, out of which the record or writ issued, for a new trial. Where it was questioned whether a trial before the sheriff upon a writ of trial was within this statute, Bayley, B. said it was clearly within the reason of the act, if not within the words, and he thought the sheriff had power to order an amendment under it. Hill v Salter, 2 Dowl. 380.

To warrant an amendment within this latter statute, it must be for some variance. And therefore, where the demise

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in a declaration in ejectment was laid on the 31st October, without mention of any year, the court held that the omission was not amendable under this statute, for it was not a variance; they afterwards held, however, that the omission was not material. Doe v. Heather, 1 Dowl. N. C. 64, 10 Law J., 296, ex. So, it has been holden that a judge had no authority, under the statute, to amend a declaration which set forth an actual demise, by inserting terms which imported merely an agreement for a lease; nor to alter the breach which stated an eviction, into a breach that the defendant had not good right or title to grant the lease:-the effect of such amendments being, to introduce a new contract and breach, and to render a remodelling of all the pleas upon the record necessary. Brashier v. Jackson, 6 Mees. & W. 549. Nor can he amend the award of the venire. Adams v. Power, 7 Car. & P. 76. But he may amend a declaration in ejectment, by altering the date of the demise in it; Doe v. Leach, 3 Man. & Gr. 229, 9 Dowl. 877; or in trespass, by altering the name of the close; Howell v. Thomas et al., 7 Car. & P. 342; or in a case for negligence, by altering the declaration against the defendant as a carrier, into a declaration against him as a wharfinger; Parry v. Fairhurst, 2 Cr. M. & R. 190; or in case for misrepresentation, by altering the representation alleged; Mash v. Densham, 1 M. & Rob. 442; or in case for verbal slander, by altering a direct charge, "Smith has got himself into trouble," &c. into a statement that he the defendant had heard so; Smith v. Knowelden, 9 Dowl. 402, 10 Law J., 126, cp.; or where the words were spoken in Welsh, but were set out in English only, by also inserting the Welsh words; Jenkins v. Phillips, 9 Car. & P. 766; or in assumpsit for not doing certain work, by altering the description of the work, and the sum to be paid for it, where the defendant could not be prejudiced by the alteration, Ward v. Pearson, 5 Mees. & W. 16, or by altering the implied promise alleged, Whitwell v. Scheer, 8 Ad. & El. 301, or by altering the express promise alleged; Gurford v. Bailey, 11 Law J., 105, cp., 1 Dowl. N. C. 519; in an action on a special agreement, by inserting a stipulation in the agreement which had been omitted; Clark v. Morrell et al., 9 Dowl. 461; in an action on a guarantie, by altering the statement of it in the declaration; Smith v. Brandram, 2 Man. & Gr. 244; in an action for goods furnished to a third person, where one count of the declaration was upon a promise to pay, and another on a promise to be accountable for and pay, the amount, and the evidence was of a guarantie; Lord Denman having allowed this to be amended at the trial, the court held that he had done rightly, Parke, J. saying that the act extended to all such cases, where the defendant had not been misled by the misdescription; Hanbury v. Ella, 3 Nev. & M. 438; in an

action for not delivering potatoes sold and to be delivered by the defendant and paid for on delivery, by altering it to a sale of the potatoes to be dug by the plaintiff and then paid for; Stansbury v. Matthews, 4 M. & W. 343; in an action on a wager, by striking out a part of the wager alleged; Evans v. Fryer, 10 Ad. & El.609; in an action on an agreement, as made between A. & B., by altering it to an agreement between A. & B. and two others his trustees; Boys v. Ancell, 5 Bing. N. C. 390; in an action on a bill of exchange, by altering the statement of it as to the amount, Sanderson et al. v. Piper et al., 7 Dowl. 632, or in the date, and the time it had to run, Beckett et al. v. Dutton, 10 Law J., 1, ex., or in the name of the payee, the declaration stating it to be payable to the defendant, when it was in fact payable to the drawer's order, and by him indorsed to the defendant, who indorsed it over; Parkes v. Edge, 1 Cr. & M. 429; in debt on bond, by altering the amount of the penalty; Hill v. Salter, 2 Cr. & M. 420; in an action on a submission to arbitration, by altering the agreement of submission as set out, as to costs. Duckworth v. Harrison, 5 Mees. & W. 427. In a plea, also, in an action for use and occupation of a house, where the defence pleaded was that the defendant was a lunatic, and the house was unnecessary for her, as she occupied another house in A. street, but the evidence was, not that she occupied a house, but that she resided with her mother in A. street, it was allowed to be amended accordingly. Dane v. Kirkwall, 8 Car. & P. 679. If the amendment of a declaration at the trial, under this statute, have the effect of making it bad in substance, and the defect be not cured by verdict, the plaintiff may move in arrest of judgment. See Palmer v. Sparshot, 11 Law J., 204, cp.

The amendment, also, to be warranted by this statute, must be in some particular not material to the merits of the case. Ante, p. 129. If for instance it appear that the variance may probably have prevented the defendant from pleading a good bar to the action, the judge will not allow of the amendment. Ivey v. Young, 1 M. & Rob. 545. But it is for the judge at the trial to say whether it is material or not, and to refuse or allow of the amendment accordingly; the court above will not interfere with his judgment in this respect. Per Tindal, C. J., in Doe v. Leach, 10 Law J., 291, cp., see Stansbury v. Matthews, 7 Dowl. 23. If the opposite party cannot have been prejudiced in the conduct of his action or defence by the amendment, it is in the discretion of the judge whether he will grant him costs, or postpone the trial, or not; but if he appear to be prejudiced by it, then the amendment must be upon payment of costs, and withdrawing the record or postponing the trial, as the judge may think reasonable. See the Act, ante, p. 129. Smith v. Brandram, 2 M. & Gr. 244, 9 Dowl. 430.

The amendment must be made before verdict; it cannot be made afterwards without consent. Brashier v. Jackson, 6 Mees. & W. 549. And if the trial proceed, the order for it shall be indorsed on the postea or writ, &c. and returned therewith.

Or, by the same statute, 3 & 4 W. 3, c. 42, s. 24, in all such cases of variance, the court or judge, instead of ordering the record to be amended, may direct the jury to find the facts according to the evidence, and such finding thereupon shall be indorsed upon the record, &c.; and notwithstanding the finding on the issue joined, "the said court, or the court out of which the record has issued, shall, if they think the said variance immaterial to the merits of the case, and the mis-statement such as could not have prejudiced the opposite party in the conduct of the action or defence, give judgment according to the very right and justice of the case." Where, in an action against a sheriff for an escape, the evidence was, not of an escape, but of a negligent omission by the sheriff's officer to make the arrest when he had it in his power to do so: Alderson, B., not thinking it a case in which he ought to amend, desired the jury to find the facts specially, if they thought the negligence proved, and the jury accordingly gave a special verdict for the plaintiff, although they found the issue for the defendant; and afterwards, upon a motion that judgment should be entered for the plaintiff, the court, being of opinion that the defendant experienced no inconvenience from the course pursued by the plaintiff, and was not prejudiced in the conduct of his defence, made the rule absolute. Guest v. Elwes, 2 Har. & W. 34, S. C. nom. Guest v. Elwes, 5 Ad. & El. 118. And this has been done even in a case where the plaintiff, before the trial, gave notice that he relied on the variance. Gayler v. Farrant, 4 Bing. N. C. 286. But where in an action for diverting a water-course, the plaintiff in his declaration entitled himself to the water as owner of a mill, but the evidence was that he was entitled to it as owner of the land on which the mill had within twenty years been built: Alderson, B., at the trial, refused to amend for this variance, but by his direction the jury found the facts specially, and they were indorsed on the postea, for the opinion of the court as above directed; the court, however, refused to grant the plaintiff any rule for judgment on this special finding. Frankum v. Earl of Falmouth, 4 Nev. & M. 330, and see Knight v. McDowell et al., 12 Ad. & El. 438.

Amendment at other times.

After plea in abatement.] After a plea in abatement for misnomer, the court allowed the plaintiff to amend the declaration, in the defendant's name, even although the defendant was a prisoner, and would have been supersedeable if the

plaintiff were obliged to commence a fresh action. Owens v. Dubois, 7 T. R. 698. And the court have made the like order in a penal action for usury, even although the time for bringing a fresh action expired, where there appeared to have been no unnecessary delay on the part of the plaintiff. Mestaer v. Hertz, 3 M. & S. 450. So in an action by executors, where the defendant pleaded in abatement the nonjoinder of a coexecutrix, the court allowed the writ and declaration to be amended, by adding the name of the co-executrix as plaintiff, she being merely a nominal party (not having proved the will), and as a fresh action would be barred by the statute of limitations. Lakin v. Watson, 2 Dowl. 633.

After demurrer.] Where a pleading is demurred to, the court, even after the demurrer has been argued, will give the party leave to amend, if it be necessary to the justice of the case. And even where judgment had been given upon a demurrer to a plea, and the defendant afterwards obtained a judge's order to amend: upon a rule to set aside this order, although the court admitted that the application should have been made to them and not to a judge, and should have been made at the time of arguing the demurrer, yet as it appeared upon affidavit that the matter of the amendment had not come to the defendant's knowledge until after the demurrer had been argued, the court discharged the rule upon payment of costs by the defendant. Atkinson v. Baynton, 1 Hod. 144. But this leave to amend after demurrer, must be considered a matter entirely in the discretion of the court. See Want v. Reece, 7 Moore, 244. And in an action against executors, in their own right, on a covenant for good title and quiet enjoyment, the court refused to assist the plaintiff by allowing him to amend his declaration, after argument on special demurrer; Noble v. King, 1 H. Bl. 34; and the like in an action against the sheriff. Cooke v. Birt, 6 Taunt. 765. And it seems that where a party has once amended on demurrer, if the same pleading be again demurred to, the court will not give him leave to amend a second time. Kinder v. Paris, 2 H. Bl. 561. On the other hand, if a party demur, and judgment be given against him, the court will seldom allow him to withdraw his demurrer, and plead, &c.; at least not without an affidavit of merits. Bramah v. Roberts, 1 Bing. N. C. 481.

After error. The court will amend a declaration, Moody v. Stracey 4 Taunt. 588, or judgment, Dunbar v. Hitchcock, 3 M. & S. 591, after error brought and errors assigned; we have already noticed several cases in which this has been done. See ante, p. 124. In one case, the court of Common Pleas amended the postea, even after argument in error, Richardson v. Mellish, 3 Bing. 334, and then amended the