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The bill of exceptions would then begin as follows, Vide bill of "Which faid issue in form aforefaid joined between the par- execption in "ties aforesaid, afterwards, to wit, at the fittings, &c." Eat-India (and then purfue the former precedent.)

Company.
Dom. Proc.

1787. and April 1788.

CHAPTER

VI.

Of Defects amendable after Verdict or aided by it.

TH

Hanoy, Tr. 14 G. 2.

Carth. 506.

H E rule is to allow amendments wherever the judge has Wildare and an authority to try the caufe. As if the Nifi Prius roll differ from the plea roll in a matter which does not alter the iffue, for it is only a tranfcript of it to carry the iffue of it into the county. But in ejectment, if the venire be de pla- Cr. E. 259. cito tranfgreffionis, omitting et ejectionis firma, it is ill, becaufe

not in the fame action; but if the diftringas or hab. corp. is

right, the venire will be null, and the want of it is aided. Cr. Car. 338. So in fci. fa. against an executor to have execution of a judgment for damages in trover, it was moved in arreft of judment, that the venire was in placito debiti, and a new venire was awarded. The verdict itfelf may be amended by the memory of the judge who tried the caufe. And on the autho- Newcomb v rity of that cafe in Cro. Car. the poflea was amended by the judge's notes; where the affociate had miftaken and entered

Green. M.

17 G. 2.

1 d. damage in covenant, taking it for debt instead of enter- Salk. 47. ing damages 2741. So a fpecial verdict may be amended by the minutes taken by the clerk of aflize, but nothing can be added to the minutes tho' ever fo ftrongly proved, for that would be to fubject the jury to an attaint for what was not found by them.

If an iffue be tendered by the plaintiff, and the defendant Cr. J. 67. join the fimiliter by the plaintiff's name, or vice verja, this fhall be amended, there being a negative and an affirmative between the parties.

It is an established doctrine, that a verdict will aid a title defectively fet out, but not a defective title. As in trefpafs for

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Rex. Epifc.

La dafi, H.

8G 2.

2 Str. 1023.

Cr. J. 94.

Cr. J. 377.

Carth. 371.
Noy 56.

1 Vent. 70.

Yelv. 34.

taking dung without faying fimum fuum or ipfius querentis, for that is a plain defect of title; but it will cure all the omiffions of the parties in the allegations, which must be prefumed to have been given in evidence to the jury: as in a quare impedit, if a prefentation be not alledged, yet if the iffue were fuch as to make it neceffary for the plaintiff to prove one, the want of the allegation will be cured by the verdict.

So furplufage doth not vitiate after a verdict, but if it be repugnant to what is before alledged, it is void. As in trover, if the plaintiff declare that on the 4th of March he was poffeffed of goods, and that after, viz. 1ft of March they came to the defendant's hands.

If the gift of the defendant's bar, be bad, it will not be cured by a verdict found for him, but the plaintiff fhall have judgment if the verdict pafs for him, either for the badness or the falfeness of the bar; as if in debt on a fingle bill the defendant plead payment without any acquittal, and it is found for him, yet he fhall not have judgment because the gift of the plea is bad, fince the obligation is in force till diffolved, co ligamine quo ligatum eft; but if it had been found for the plaintiff, he should have had judgment.

Note; in fact fuch plea would at this day be good by 4 Ann. c. 16. f. 12. but the cafe equally ferves for illuftration.

A verdict cannot help an immaterial iffue, but will an improper or an informal one; as if not guilty be pleaded in debt, tho' this be an improper iffue, yet if found for the plaintiff, he fhall have judgment. So in affault and battery the defendant justified quod moderate caftigavit, the plaintiff replied quod non moderate caftigavit, and after a verdict for him had judgment, though the traverfe was informal, for it ought to have been de injuria fua propria. So in replevin, where the defendant avowed for rent, for that A. being seised in fee married B. and had iffue D. and that B. and D. after the death of A. granted the rent, the plaintiff traverfed the feifin of A. the defendant had a verdict, and it was holden good, though the iffue was not fo apt as it might have been, for the feifin of the grantor was what ought properly to have have been traversed.

But for the better understanding what defects are amendable after verdict, or are aided by it, it will be neceffary to take a

curfory

curfory view of the feveral ftatutes of amendments and jeofails, and to note fome of the determinations thereupon.

By 14 E. 3. c. 6. No procefs fhall be annulled or difcontinued by the mifprifion of the clerk in writing one syllable or letter too much or too little, but it fhall be amended.

The judges conftrued this ftatute fo favourably as to extend & Co. 157. 8. it to a word; but not being agreed whether they could make these amendments as well after judgment as before occafioned the making the 9 H. 5. c. 4. and 4 H. 6. c. 3. by which fuch power is given to them as long as the record or process is before them.

By 8 H. 6. c. 12. No judgment or record fhall be reverfed or annulled for error in any record, procefs or warrant of attorney, original writ or judicial panel, or return, by razure, interlining, or by addition, fubftraction or diminution of words, letters, titles, &c. but the judges in affirmance of judgment may amend all that which to them feems to be the mifprifion of the clerk.

By 8 H. 6. c. 15. The judges in any records or process before them by error or otherwife, or in returns of fheriffs, coroners, &c. may amend the mifprifion of the clerk of the court, or of the fheriffs, coroners, their clerks, or other officer whatsoever, in writing a fyllable or letter too much or too little.

32 H. 8. c. 30. enacts, that if (1) any iffue be tried (2) by oath of 12 men, for the (3) party, plaintiff or demandant, or for the party tenant, or defendant, in any courts of record, judgment fhall be given, any (4) mifpleading, lack of colour, infufficient pleading, or jeofail, any mifcontinuance or (5) difcontinuance or (6) misconceiving of procefs, misjoining of the iffue, lack of warrant of attorney of the party against whom the iffue fhall be tried, or other negligence of the parties, their counsellors or attornies notwithstanding, and the judgment fhall ftand according to the (7) verdict without reverfal.

1. If in replevin the plaintiff is nonfuited after evidence, and the jury aflefs damages for the avowant, this is no trial within the act, for it is only in nature of an enqueft of office. 2. An iffue upon mul tiel record is not within the act.

3.

Cr. J. 359.
Vide 4 & 5,
An. cap. 16.

11 Co. 8.

So an iffue between the demandant and vouchee is not 11 Cǝ. 6, within the act.

Ibid.

Hardr. 331.

1 R. R. 161.

Cr. J. 528.

Savil. 37. Yelv. 15.

Yelv. 169.

Cr. E. 722.

Yelv. 110.

4. If as to part the defendant join iffue, but fay nothing to the reft, and this iffue be found for the plaintiff, he shall have judgment; but if pleaded to the whole, it is a bad plea, and not helped by the ftatute.

5. This ftatute extends to difcontinuances on the part of the plaintiff as well as thofe on the part of the defendant; and to those after as well as before verdict.

6. Mifconceiving of procefs within this act is, as if a difiringas be awarded where it should be a ba, cor. But it is otherwife if a venire (or other procefs) be awarded to a wrong officer.

7. If the judgment be not given upon the verdict, it is not within the act; as in debt against an heir who pleads riens per descent, except 20 acres in D. upon which iffue is joined, and verdict for the defendant. If the plaintiff take judgment upon the confeffion, it may be reversed by reason of a discontinu

/ ance.

18 Eliz. c. 14. enacts, that after verdict judgment thereupon shall not be reverfed for want of form touching falfe Latin, or variance from the register or other faults in form or for want of any (1) writ, original or judicial, or by reason of any (2) imperfect or infufficient return of any sheriff or other officer, or for want of any warrant of attorney, or for any fault in process upon or after any aid, prayer and voucher.

1. An ill writ in fubftance, or a good writ which warrants not the declaration, is not aided by the ftatute: But the want of a bill on the file, which is in nature of an original, is aided by the equity of the act.

2. But if there be no return, or the writ be album breve, this is not helped by this act, however, it seems remedied by the following ftatute.

21 Ja. 1. c. 13. enacts, That after verdict, judgment thereupon fhall not be stayed or reversed for any variance in form only between the original or bill, and the declaration, plaint or demand, or for lack of the averment of any life, fo it be proved they are living; or because the venire ha. cor. or diftringas was awarded to a wrong officer upon any infufficient fuggeftion, or for mifnaming any of the jury in furname or addition in any of the writs or returns thereof, so as they be proved to be the fame as were meant to be returned; or for that there is no return upon any of the writs, fo as a panel

be

be returned and annexed thereto; or for that the fheriff or other officers names be not fet to the return of fuch writ, fo as it appears by proof that the writ was returned by him; or for that the plaintiff in ejectment or other perfonal action being under age appeared by attorney: if a verdict pass for him.

There were but 24 returned upon the panel annexed to the venire facias, but there were 48 upon the ha. cor. upon which the defendant made no defence; and upon motion the verdict was fet afide without cofts, the court faying that the 21 Jac. 1. means only the formal words upon the writ, for there must be a panel annexed to the return.

165 17 Car. 2. c. 8. (which was called by juftice Twifden, the omnipotent act) enacts, That after verdict, judgment thereupon fhall not be ftayed or reverfed for want of form, or pledges returned upon the original, or for want of pledges upon any bill or declaration, or for want of a profert of any deed, or of letters teftamentary or of administration, or for the omiffion of vi et armis, or contra pacem, or for or by reafon of the mistaking of the Chriftian or furname of either party, fums, day, month, or year, in any bill, declaration and pleading, being right in any writ, plaint, roll or record preceding, or in the fame, to which the plaintiff might have demurred, and shewed the fame for caufe, or for want of hoc paratus eft verificare, or hoc paratus eft verificare per recordum, or for that there is no right venue, so as a trial was by a jury of the proper county where the action is laid, or for want of a misericordia or capiatur, or because one is entered for the other; and that all fuch omiffions, variances, and defects, and other matters of like nature, not being against the right of the matter of the fuit, or whereby the iffue of the trial are altered, shall be amended, where fuch judgments are or fhall be removed by writ of error.

Brown and Johnston, C.

B. Tr. 11 G. 24

1 Vent. 100.

In an action for words the plaintiff declared, that the defend-1 Saund. 247. ant faid apud London, that he had stolen plate at Oxford; the defendant juftified that he did steal plate at Oxford, per quod he fpoke the words at London; the plaintiff replied de injuria fua propria; and upon iffue tried in London, obtained a verdict; and though it was allowed, that the only point in iflue was, whether the felony were committed, which was triable at Oxford, yet it was holden to be aided by this act, and the plaintiff bad judgment.

Note;

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