CHAPTER XL. AMENDMENT UNDER THE COMMON LAW PROCEDURE ACTS. I. 15 & 16 Vict. c. 76, s. 222, and 17 & 18 Vict. c. 125, s. 96, and their General Effect, II. Amendments, by whom made, III. Amendments, when and how to be made, PAGE 1395 1397 V. Amendments in case of Nonjoinder and Misjoinder of 1400 I. 15 & 16 Vict. c. 76, s. 222, and 17 & 18 Vict. c. 125, s. 96, and their General Effect.-The extensive powers of amendment contained in the Common Law Procedure Acts render any consideration of the previous enactments superfluous. By the Common Law Procedure Act, 1852 (a), after reciting that the power of amendment then vested in the courts and the judges thereof was insufficient to enable them to prevent the failure of justice by reason of mistakes and objections of form, it was enacted (b), that "it shall be lawful for the superior courts of common law, and every judge thereof, and any judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining, in the existing suit, the real question in controversy between the parties shall be so made. By the Common Law Procedure Act, 1854 (c), it is enacted, that" it shall be lawful for the superior courts of common law, and every judge thereof, and any judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceedings under the provisions of this act, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend or not; and all such amendments may be made with or without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for." These enactments, it will be observed, are in substance the same, the only difference being that the latter of them is unclogged by the preamble as to "objections of form" in the former (d), and introduces the words "if duly applied for." The 96th section of the Common Law Procedure Act, 1854, also appears to be treated by the courts as applicable to all proceedings in civil cases, notwithstanding that the section in terms applies only to proceedings under that act (e). "I think," says Mr. Baron Parke," we ought to extend the power of amendment as far as we reasonably can, in order to prevent the parties from being tripped up by technical objections" (f). The object of any proposed amendment must be to determine, in the existing suit, the real question in controversy between the parties. This provision, in the earlier stages of the action, would probably scarcely ever, according to the practice, preclude an amendment. In respect to amendments at the trial, however, "it was intended to limit the power of amendment to the introduction of matters which the parties hoped and intended to try in the cause, and not to authorize amendments which might raise questions which never were contemplated before" (g). And it is for the judge at the trial, looking at the record and the evidence, to decide what is the real question in controversy between the parties (h). But a writ issued under the Bills of Exchange Act may be amended so as to appear as an ordinary writ specially indorsed, since the real question to be decided is, whether or not (c) 17 & 18 Vict. c. 125, s. 96. (d) See May v. Footner, 5 E. & B. 506. (e) May v. Footner, supra; Brennan v. Howard, 1 H. & N. 138. See, however, Leigh v. Baker, 2 C. B., N. S. 376. (f) In Wilkinson v. Sharland, 11 Exch. 36. (g) Per Maule, J., in Wilkin v. Reed, 15 C. B. 192. (h) Wilkin v. Reed, supra; Webster v. Emery, 10 Exch. 907. the plaintiff is entitled to recover against the defendant the amount of the bill (k). It is no objection to the allowance of an amendment that it takes away a right of action or defence which would otherwise be vested in the opposite party (l). II. Amendments, by whom to be made.-The Act of Parliament includes the superior courts and the judges thereof, or any judge sitting at Nisi Prius; but does not extend to the sheriff or other person presiding at the trial of a cause under a writ of trial (m). III. Amendments, when and how to be made.-Amendments may be made at all times (n). Thus, amendments may be made in the writ (0) or other proceeding before trial, or at the trial, or by the court in banc after the trial (p), or even after judgment and commencement of proceedings in error (9). In the latter case, if the application is made before the day of sitting of the court of error, it must be made to the court below, since the record is not removed into the court of error until that day (r). The particulars of demand may be amended, and that after the cause has been referred compulsorily under the Common Law Procedure Act, 1854 (s) : there would, however, be a difficulty in amending them at the trial. It is not quite clear how far the court in banc has power to review the decision as to amendments of a single judge sitting at chambers or at Nisi Prius. If the judge makes the order for any amendment which he has jurisdiction to allow, it would seem that his decision is final (t); at any rate, the court in banc ought never to reverse the discretion of the judge at the trial unless it appear affirmatively that injustice has in fact been worked thereby (u). And it is perfectly clear, that a court of error cannot on demurrer enquire into the propriety of an amendment stated in the pleadings to have been allowed by a judge, and which the judge had jurisdiction to make (x). Where the judge refuses to amend, the court in banc have power to review his decision; but it would seem only in (k) Leigh v. Baker, 2 C. B., N. S. 367 ; Knight v. Pocock, 17 C. B. 177. (1) See per Erle, J., in Cornish v. Hockin, 1 E. & B. 602. (m) Wickes v. Grove, 2 Jur., N. S. 212. (n) 15 & 16 Vict. c. 76; 17 & 18 Vict. c. 125, s. 96. (0) Knight v. Pocock, 17 C. B. 177; Leigh v. Baker, 2 C. B., N. S. 367; Cornish v. Hockin, 1 E. & B. 602; and see Gibson v. Varley, 7 E. & B. 49. (p) Edwards v. Hodges, 15 C. B. 477; Parsons v. Alexander, 5 E. & B. 263. (q) Wilkinson v. Sharland, 11 Exch. 33. The amendment was the introduction of the words "for money payable, &c.," at the commencement of the money counts. Hooper v. Lane, 3 Jur., N. S. 1026. (r) Wilkinson v. Sharland, supra. (s) Gibbs v. Knightly, 2 H. & N. 34; and see Cannon v. Reynolds, 5 E. & B. 301; Emery v. Webster, 9 Exch. 242; 10 Exch. 901, S. C.; 2 Arch. Pr. 1362. (t) Wilkin v. Reed, 15 C. B. 192; Morgan v. Pike, 14 C. B. 483. See, however, Brennan v. Howard, 1 H. & N. 138. (u) Tennyson v. O'Brien, 5 E. & B. 501. (a) Webster v. Emery, 11 Exch. 901. directly so, and that the proper course in such case is to make a substantive application to the court for leave to make the amendment required (y). The judge can, however, if so minded, allow an amendment, subject to the opinion of the court as to its propriety (z). An amendment, in general, requires a substantive application; but an omission in a writ of summons or copy, whether under the Bills of Exchange Act or otherwise, may be amended upon a motion to set aside the writ or copy and service (a). And also a writ issued in one of the forms given by the Common Law Procedure Act, 1852, by mistake for another of them, may be amended on an ex parte application without costs (b). IV. What Amendments allowed.-Writs of summons are, as above observed (c), in general amendable; there is no power, however, to amend by antedating a writ for the purpose of saving the Statute of Limitations, since the fifth section of the Common Law Procedure Act provides, that the writ "shall bear date on the day on which the same shall be issued" (d). Amendments by adding counts are usually made on terms if applied for a sufficient time before trial as a matter of course (e). And the judge has the power to add a count at the trial, provided the subject matter of the proposed count has been sufficiently in dispute between the parties in the suit (f). Thus, in an action for inducing the plaintiff, a surgeon, to attend a case of accident by falsely representing that the defendant was authorized by a railway company to employ him, a count for work and labour was added at the trial, the defendant being at liberty to plead payment into court to the added count (g). In an action for an excessive distress, the declaration not averring that the whole sum distrained for was not due, with a count for selling before the expiration of the five days, an application to amend by adding a count for distraining and selling goods to satisfy more rent than was due, was held to have been properly refused at the trial, on the ground that it was not a matter in dispute in the action (h). In respect to adding pleas, a similar rule prevails (i), subject to the observation that it is not imperative on the court to allow a substituted plea even before trial, (y) Brennan v. Howard, 1 H. & N. 138; and see Lucas v. Tarleton, 3 H. & N. 116; per Pollock, C. B., in Cawkwell v. Russell, 26 L. J., Exch. 36. (z) May v. Footner, 5 E. & B. 505. (a) Knight v. Pocock, 17 C. B. 177; Leigh v. Baker, 2 C. B., N. S. 367; 15 & 16 Vict. c. 76, s. 20. (b) 15 & 16 Vict. c. 76, s. 21. Green v. Braddyl, H. & N. 69. (c) Supra, p. 1397. See (d) Clarke v. Smith, 2 H. & N. 753. As to amendments to save the Statute of Limitations, see further Cornish v. Hockin, 1 E. & B. 602; Cowburn v. Wearing, 9 Exch. 207; Crawford v. Cocks, 6 Exch. 287; 1 Arch. Pr. 186. (e) See Arch. Pr. 209. (f) Taylor v. Shaw, 1 C. L. R. 1057; Robson v. Turnbull, 1 F. & F. 365; Wickes v. Grove, 2 Jur., N. S. 212; Morgan v. Pike, 14 C. B. 473. (g) Robson v. Turnbull, 1 F. & F. 365. (h) Lucas v. Tarleton, 3 H. & N. 116. (i) See Edwards v. Hodges, 15 C. B. 477; Adams v. Smith, 1 F. & F. 311. |