cause of controversy be created. Thus, in slander, where the words charged were, " S. is to be tried," for buying stolen goods, and the words proved were, "I have heard that he is to be tried," an amendment was allowed, as it went only to the amount of the damages, and not to the merits of the action. So, where the words stated were English, and the words proved were Welsh.2 So, where the allegation was of a libel published in a certain newspaper, and the proof was of a slip of printed paper, not appearing to have been cut from that newspaper, though the newspaper contained a similar article. So, where the plea to an action upon a bill of exchange was, that the bill was given for two several sums lost at play in two several games, and the proof was that the parties played at both games, and that the defendant lost the gross sum, in all, but not that he lost any amount at one of the games, it was held amendable. An amendment has also been allowed in assumpsit upon the warranty of a horse, where a general warranty was alleged, and the proof was of a warranty with the exception of a particular foot.5 So, where the allegation was with a qualification, and the proof was of a contract in general terms, without the qualification. In like manner, where the contract, instrument, or duty, has been misdescribed in the record, it is held amendable; as, in assumpsit on a charter-party, where the allegation of the promise, being intended only as a statement of the legal effect of the instrument, was erroneous, the plaintiff was permitted to amend, either by striking out the allegation, or by substituting a corrected statement.7

So, in

1 Smith v. Knowelden, 2 M. & G. 561.

2 Jenkins v. Phillips, 9 C. & P. 766, per Coleridge, J. The contrary was held, under the former statutes. Zenobio v. Axtell, 6 T. R. 162; Wormouth v. Cramer, 3 Wend. 394.

3 Foster v. Pointer, 9 C. & P. 718, per Gurney, B.

4 Cooke v. Stafford, 13 M. & W. 379.

5 Hemming v. Parry, 6 C. & P. 580. See, also, Read v. Dunsmore, 9 C. & P. 588.

6 Evans v. Fryer, 10 Ad. & El. 609.

7 Whitwill v. Scheer, 8 Ad. & El. 301. But in a subsequent case of covenant, where it was objected that no such covenants could he implied in

assumpsit for the use and occupation of certain standings, market-places, and sheds," where the proof was of a demise of the tolls" to be collected at those places, an amendment was allowed.1 So, where the promise alleged was to "pay" for goods furnished to another, and the proof was, to "guarantee" the payment; 2 and where the declaration was upon an instrument described as a bill of exchange, but the instrument produced appeared in fact to be a promissory note; 3 and where a guaranty was set forth as for advances to be made by A, and the proof was of a guaranty for advances to be made by A, or any member of his firm, or, è converso ;4 and where the declaration charged the defendant upon the contract as a carrier, and the proof was, that if liable at all, it was only as a wharfinger, on a contract to forward; 5 and where the contract alleged was, to build for the plaintiff a certain room, booth, or building, according to certain plans then agreed on, by the 28th of June, for the sum of £20, and the contract proved was, to erect certain seats or tables, for £25, to be completed four or five days before that day, being the day of the coronation; and where, in debt on a bond, the penalty was stated to be £260, but in the bond produced it was only £200;7 and in case against the sheriff for a voluntary escape, where the proof was, that the officer did. not arrest, but negligently omitted so to do, having opportu nity, and even where, in assumpsit upon a promissory note,

the deed, it was held by Maule, J., that the statutes of amendment were designed to meet variances arising from accidental slips, and not to extend to cases where the pleading has been intentionally and deliberately, but erroneously framed: and he therefore refused to allow an amendment. Bowers v. Nixon, 2 Car. & Kir. 372.

1 Mayor &c. of Carmarthen v. Lewis, 6 C. & P. 608.

2 Hanbury v. Ella, 1 Ad. & El. 61.

3 Moilliet v. Powell, 6 C. & P. 233.

4 Chapman v. Sutton, 2 Man. Gr. & Scott, 634; Boyd v. Moyle, Ibid.

644.

5 Parry v. Fairhurst, 2 C. M. & R. 190; 5 Tyrw. 685.

6 Ward v. Pierson, 5 M. & W. 16; 7 Dowl. 382.

7 Hill v. Salt, 2 C. & M. 420; 4 Tyrw. 271.

8 Guest v. Elwes, 5 Ad. & El. 118; 2 N. & P. 230.

described as made by the defendant on the 9th of November, 1838, for £250, payable on demand, the note produced bore date November 6th, 1837, and was payable with interest twelve months after date, it also not appearing that there existed any other note between the parties;1 in these, and many similar cases, amendments have been allowed.

5

§ 11 e. On the other hand, the Courts, acting under these statutes, have refused amendments, where the object was merely to supply material omissions, as well as where the amendment will probably deprive the defendant of a good defence, which he otherwise might have made, or would probably require new pleadings,2 or would introduce a transaction entirely different from that stated in the plea. Thus, an amendment has been refused in trespass, to extend the justification to certain articles omitted in the plea ; and in replevin, to extend the avowry in the like manner. So, to enlarge the ad damnum in the declaration. So, in assumpsit by the vendee against the vendor of goods, for non-delivery, where the contract alleged was for a certain price, and the contract proved was for the same nominal price, with a discount of five per cent., an amendment was refused, as tending, under the circumstances stated at the bar, to preclude a good defence. And, where the plaintiff alleged title to a stream of water as the possessor of a mill, which the defendant traversed, and the proof was, that he was entitled only as owner of the adjoining land, an amendment was refused, on the

1 Beckett v. Dutton, 7 M. & W. 157; 4 Jur. 993; 8 Dowl. 865.

2 Perry v. Watts, 3 Man. & Gr. 775, as explained in Gurford v. Bayley, Ibid. 784.

3 David v. Preece, 5 Ad. & El. 440, N. S.

4 John v. Currie, 6 C. & P. 618.

5 Bye & Bower, 1 Car. & Marshm. 262. In the United States, amendments in these two cases would doubtless be allowed.

6 Watkins v. Morgan, 6 C. & P. 661. In the United States it has been held otherwise. See McLellan v. Crofton, 6 Greenl. 307; Bogart v. McDonald, 2 Johns. Cas. 219; Danielson v. Andrews, 1 Pick. 156. And see Tomilson v. Blacksmith, 7 T. R. 132.

7 Ivey v. Young, 1 M. & Rob. 545.

ground, that it might require a change of the issue, and that the defendant may have been misled by the plaintiff's mode of pleading.1

§ 12. It is further to be observed, that though every part of a written document is descriptive, and therefore material to be proved as alleged, yet if, in declaring upon such an instrument, the allegation is, that it was made upon such a day, without stating that it bore date on that day, the day in the declaration is not material, and therefore need not be precisely proved; but if it is described as bearing date on a certain day, the date must be shown to be literally as alleged, and any variance herein will be fatal unless amended.2 The date is not of the essence of the contract, though it is essential to the identity of the writing, by which the contract may, be proved. The plaintiff, therefore, may always declare according to the truth of the transaction, only being careful, if he mentions the writing and undertakes to describe it, to describe it truly.3

§ 13. But an immaterial discrepancy between the record and the deed itself is not regarded. Thus, upon oyer of a deed, where the declaration was, that it bore date in a certain year of our Lord, and of the then king, and the deed simply gave the date thus-" March 30, 1701"-without mention of the Christian era, or of the king's reign, it was held well.* So, where the condition was, "without any fraud or other delay, the omission of the word "other" in the oyer was held immaterial.5 Nor will literal misspelling be regarded as a variance.6

1 Frankum v. E. of Falmouth, 6 C. & P. 529; 2 Ad. & El. 452.

2 Coxon v. Lyon, 2 Camp. 307, n.; Anon. 2 Camp. 308, n.; Cor. Lord Ellenborough.

3 Hague v. French, 3 B. & P. 173; De la Courtier v. Bellamy, 2 Show.

422.

4 Holman v. Borough, 2 Salk. 658.

5 Henry v. Brown, 19 Johns. 49.

6 Cull v. Sarmin, 3 Lev. 66; Waugh v. Bussell, 5 Taunt. 707. The

§ 14. Ordinarily, in stating an instrument or other matter in pleading, it should be set forth, not according to its terms, or its form, but according to its effect in law; for it is under its latter aspect, that it is ultimately to be considered. Thus, if a joint-tenant conveys the estate to his companion by the words "give, grant," &c., the deed is to be pleaded as a release, such only being its effect in law. So, if a tenant for life conveys to the reversioner by words of grant, it must be pleaded, not as a grant, but as a surrender. So, where a bill of exchange is made payable to the order of a person, it may be declared upon as a bill payable to the person himself. If no time of payment be mentioned, the instrument should be declared upon as payable on demand. If a bill be drawn or accepted, or a deed be made, by an agent in the name of his principal, it should be pleaded as the act of the principal himself. And a bill payable to a fictitious person or his order, is, in effect, a bill payable to bearer, and may be declared on as such, in favor of a bonâ fide holder, ignorant of the fact, against all the parties who had knowledge of the fiction.5

§ 15. But, on the other hand, it will not always suffice to adhere to the literal terms of the instrument, in setting it forth in the declaration; for sometimes the true interpretation of the instrument itself may lead to a result totally different from the intendment of law upon the face of the declaration. Thus, where a bill was drawn and dated at Dublin, for a certain sum, and in the pleadings it was described as drawn "at Dublin, to wit, at Westminster," without any mention of Ireland, or of Irish currency, it was held, that here was a

omission of the word "sterling," as descriptive of the kind of currency, is immaterial. Kearney v. King, 2 B. & Ald. 301.

1 Stephen on Pl. 389, 390.

2 Smith v. M'Clure, 5 East, 476; Fay v. Goulding, 10 Pick. 122.

3 Gaylord v. Van Loan, 15 Wend. 308.

4 Heyes v. Heseltine, 2 Campb. 604.

5 Chitty on Bills, 178; Bayley on Bills, 26, 431; Grant v. Vaughan,

3 Burr. 1516; Minet v. Gibson, 1 H. Bl. 569; Story on Bills, § 56.