CH. XXVI. 66 66 66 ment, as the case may be, against the other defendant or defendants, who shall appear to be liable; and every defendant who is not so liable, shall have judgment, and shall be entitled to his "costs as against the plaintiff, who shall be allowed the same as "costs in the cause against the defendant or defendants who shall "have so pleaded in abatement the nonjoinder of such person: "Provided, that any such defendant, who shall have so pleaded in "abatement, shall be at liberty on the trial, to adduce evidence of "the liability of the defendants named by him in such plea in "abatement." Misnomer not pleadable in abatement. Before the late act for the further amendment of the law, &c. if the plaintiff had declared against the defendant by a wrong name, the latter, if not estopped, might have pleaded the misnomer in abatementa: But now, by the above act", "no plea in abate"ment for a misnomer, shall be allowed in any personal action; "but in all cases in which a misnomer would, but for that act, have "been by law pleadable in abatement in such action, the defend"ant shall be at liberty to cause the declaration to be amended, at "the costs of the plaintiff, by inserting the right name, upon a "judge's summons, founded on an affidavit of the right name; "and in case such summons shall be discharged, the costs of such application shall be paid by the party applying, if the judge "shall think fit." 66 CHAP. XXVII. Of PLEAS in BAR. stat. 3 & 4 W. IV. c. 42. BY the late act for the further amendment of the law, &c., re- Preamble to citing that "it would greatly contribute to the diminishing of expence in suits in the superior courts of common law at Westminster, if the pleadings therein were in some respects altered, and the questions to be tried by the jury left less at large than they then were, according to the course and practice of pleading in several forms of action; but this could not be conveniently done, otherwise than by rules and orders of the judges of the said courts, from time to time to be made; and doubts might arise, as to the power of the said judges to make such alterations, without the authority of parliament; it is enacted, that "the judges of the said su- Judges to have "perior courts, or any eight or more of them, of whom the chief of "each of the said courts shall be three, shall and may, by any rule or 66 "order to be from time to time by them made, in term or vacation, at any time within five years from the time when that act shall take "effect, make such alterations in the mode of pleading in the said "courts, and in the mode of entering and transcribing pleadings, "judgments, and other proceedings, in actions at law, and such re"gulations, as to the payment of costs and otherwise, for carrying "into effect the said alterations, as to them may seem expedient; " and all such rules, orders or regulations, shall be laid before both "houses of parliament, if parliament be then sitting, immediately upon the making of the same; or if parliament be not "sitting, then within five days after the next meeting thereof; and "no such rule, order, or regulation, shall have effect, until six weeks "after the same shall have been so laid before both houses of par"liament; and any rule or order so made shall, from and after "such time aforesaid, be binding and obligatory on the said courts, 66 a * 3 & 4 W. IV. c. 42. § 1. and see 2 Rep. C. L. Com. 44, &c. 89, &c.; and as to pleas in bar, in actions upon contracts, see Tidd Prac. 9 Ed. 643, &c.; and in actions for wrongs, id. 645, 6: and when the general issue is proper, power to make alterations in the mode of pleading, &c. in the superior courts. "and all other courts of common law, and on all courts of error, "into which the judgments of the said courts, or any of them, shall "be carried by any writ of error, and be of the like force and effect, "as if the provisions contained therein, had been expressly enacted But not so as to "by parliament: Provided always, that no such rule or order deprive any per-shall have the effect of depriving any person of the power of "pleading the general issue, and giving the special matter in evi"dence, in any case wherein he is now, or hereafter shall be entitled "to do so, by virtue of any act of parliament now or hereafter to "be in force." son of the power of pleading the general issue, given by any statute. CHAP. XXIX. common law, or by statute. Of fines and recoveries. Of AMENDMENT of FINES and RECOVERIES, and VARIANCES. Amendments at AMENDMENTS are either at common law or by statute: and, when the amendment is by statute, it is a general rule, that there must be something to amend by. In compliance with this rule, it was holden, that fines and recoveries, being considered as common assurances, might be amended by the court of Common Pleas, when they had sufficient authority, so as to effectuate the intention of the parties. The ground upon which the court proceeded, in making these amendments, was the statute 8 Hen. VI. c. 12, which authorized them to amend the misprision of the clerk; and as the præcipe was the cursitor's instruction for an original writ, so a deed to lead or declare the uses was considered as his instruction for a fine or recovery b. But fines and recoveries being abolished by the statute 3 & 4 W. IV. c. 74. there is a clause therein, that without amend ment. "if it shall be apparent, from the deed declaring the uses of any Fines made valid, "fine already levied, or hereafter to be levied, that there is in the "indentures, record, or any of the proceedings of such fine, any "error in the name of the conusor or conusee of such fine, or any misdescription or omission of lands intended to have been passed "by such fine, then and in every such case the fine, without any "amendment of the indentures, record, or proceedings, in which "such error, misdescription, or omission shall have occurred, shall "be as good and valid as the same would have been, and shall be "held to have passed all the lands intended to have been passed "thereby, in the same manner as it would have done, if there had "been no such error, misdescription, or omission." 66 And, by another clause of the same statute a, "if it shall be apparent, from the deed making the tenant to the writ of entry, or "other writ for suffering a common recovery, already suffered, or "hereafter to be suffered, that there is in the exemplification, re"cord, or any of the proceedings of such recovery, any error in "the name of the tenant, demandant, or vouchee in such recovery, " or any misdescription or omission of lands intended to have been "passed by such recovery, then and in every such case the re covery, without any amendment of the exemplification, record, "or proceedings in which such error, misdescription, or omission "shall have occurred, shall be as good and valid as the same would "have been, and shall be held to have passed all the lands intend"ed to have been passed thereby, in the same manner as it would "have done, if there had been no such error, misdescription, or " omission." Recoveries made valid, without amendment. Previously to Lord Tenterden's act, great expence was often incurred, and delay or failure of justice took place at trials, by reason of variances between writings produced in evidence, and the recital or setting forth thereof upon the record on which the trial was had, in matters not material to the merits of the case; and such record could not in any case have been amended at the trial, aud in some cases could not be amended at any time for remedy Amendable by that statute, in cases where a variance shall appear between written or print ed evidence and the record, on payment of costs. Order for amendment to be indorsed on postea. Decisions thereon. whereof it was enacted, by the above statute, that "it shall and may be lawful for every court of record holding plea in civil "actions, any judge sitting at nisi prius, and any court of oyer "and terminer and general gaol delivery, in England, Wales, the "town of Berwick upon Tweed, and Ireland, if such court or "judge shall see fit so to do, to 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 misdemeanour, where 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, 66 together with the record; and thereupon the papers, rolls, and "other records of the court from which such record issued shall "be amended accordingly." This statute, which authorizes a judge to order amendments of variances between written or printed evidence and the record, invests him with a discretion, which cannot, it seems, be revised by the court above. And where a judgment was stated on the record as in one court, and it appeared, by the production of an examined copy, to have been obtained in another, the judge at nisi prius ordered the record to be amended b. So where, in a declaration on a bill of exchange, the date of the bill was stated to be the 26th of March, when it really was the 29th, the judge, in an undefended cause, allowed the variance to be amended, under the above statute, without the payment of any costs. And where, in an action against a defendant for not obeying a subpœna, the declaration stated, that the plaintiff caused to be left with the defendant, a copy of the writ of subpoena, the court of Common Pleas held that a judge at nisi prius had authority, under the above sta material, see Tidd Prac. 9 Ed. 434, 5. Parks v. Edge, 1 Cromp. & M. 429. Parker v. Ade, 1 Dowl. Rep. 643. S. C. Briant v. Eicke, 1 Moody & M. 359. per Ld. Tenterden, Ch. J. C Bentzing v. Scott, 4 Car. & P. 24. per Park, J. |