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ments by

cuit.

to the record, after the defendant has pleaded nul'tiel record." Where a plaintiff has been nonsuited for a variance in the date of the instrument declared on, or for any other variance arising from clerical mistake, the court have set aside the nonsuit and given leave to amend on payment of costs;78 and it has been held that in such case, the judge was right in refusing a nonsuit in order to allow the plaintiff to move the court to amend;79 but it does not seem to have been expressly determined that the judge who tried the cause might allow Amendsuch amendment, though the court have inclined to this judge at cir opinion. It is now provided by statute that "every variance between process, pleadings, or any instrument in writing, recited or referred to in any other process, pleading or record, and every mistake in the name of any officer or other person, in stating any day, month or year, or in the description of any property, in any pleading or record, which, according to law, could be amended by the court, after verdict rendered in any cause, shall be disregarded upon the trial of such cause, unless such variance or mistake be calculated to surprise and mislead the adverse party, and to prevent his making due preparation for a full answer on the merits, to the matter concerning which such variance or mistake shall have been made."81

damages.

Where the bail cannot be affected, the plaintiff' may amend Increasing by increasing the damages laid in the declaration, and this has been allowed after a cognovit has been given for the amount declared for.82 So after verdict leave has been granted to increase the damages laid according to the truth of the case, as found by the jury, the former verdict being at the same time set aside, and a new trial granted to enable the defendant to

77 1 Wills. 86. Barnes. 3. 4. 7 Term Rep. 443. n. d. sed vide Salk. 52. pl. 16. S. C. 6 Mod. 263.

310.

78 18 Johns. Rep. 513. et vide 1 Cowen. Rep. 131.

792 Cowen. Rep. 515. 4 Cowen. Rep. 124. 6 Cowen. Rep. 517.

80 See 1 Cowen. Rep. 670. 644. 18 Johns. Rep. 513. 6 Cowen. Rep. 366-7.

81 R. St. P. 3. Ch. 7. T. 3. 6. 79. Vol. 2. p. 406.

62 2 Johns. Cas. 219.

Adding new count.

make his defence to the demand so enlarged.83 But where the jury have given a verdict for a greater amount of damages than that laid in the declaration, the court will not allow the plaintiff to amend so as to enter up judgment for the amount thus found; but he may enter a remittitur as to the excess.

86

84

An amendment by adding a new count, by which a new or different cause of action would be introduced, has been allowed even after plea:85 but it has been denied where the plaintiff had been guilty of great delay, as where he had discontinued a former action, and commenced a new suit which had been four times noticed for trial.87 Where the plaintiff had a verdict upon a general count, for labour and services, where the declaration should have been upon a special contract, and also for other services to which the special count applied, he was, on granting a new trial, allowed to amend by adding a special count.88

89

These amendments are in the discretion of the court, and it is a very strong reason to induce the court to grant them, that if the plaintiff were put to a new action, the statute of limitations would be a bar. When the plaintiff is permitted to amend his declaration after plea, it must be on payment of costs; and if the defendant chooses to plead de novo, which he is allowed to do, an imparlance or time to plead will be allowed.9 90

837 Term Rep. 128.
84 17 Johns. Rep. 111.
852 Johns. Rep. 206. 295. 3
Johns. Rep. 257. 1 Caines' Rep.
251. Str. 890. Barnes. 19. 488.
Burr. Rep. 1098. 2833. 4 East.
Rep. 435. 6 Taunt. 358.

36 2 Term Rep. 708. 6 Term
Rep. 174. 3 Maule & Selw. 455.
8 Term Rep. 30.

87 2 Johns. Rep. 206.
887 Cowen. Rep. 92.

89 Str. 890. 1 Wils. 149. 2 Johns. Johns. Rep. 206. Barnes. 488. See farther as to amendments, post.

90

1 Johns. Cas. 248. S. C. Coleman, 96. 1 Caines' Rep. 153.

In case of two defendants, where one pleads the general issue and the other demurs, and the declaration is subsequently amended, both defendants are bound to receive an amended declaration.91

ments of

It is provided by rule, that "the plaintiff may at any time Amendbefore the default for not replying shall be entered, if the course. plea shall be a special one or a plea in abatement, or within twenty days after service of a copy of the plea, if it shall be the general issue, amend his declaration. After plea, either party may, before default for not answering shall be entered, amend the pleading to be answered; and where there shall be a demurrer to a declaration or other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule of course, and without costs, but shall not be entitled so to amend more than once."'92

may thus amend.

Under this rule the plaintiff may amend his declaration before How parties the defendant has answered it ;93 and so as to change the venue ;94 but it has been held that the rule did not authorise an amendment by adding a new count; and that for that purpose a special application to the court was necessary.95 It is now, however, provided in the following rule, that this rule shall be construed to allow amendments to be made by adding new counts or pleas; but not so as to allow of any amendment to a plea in abatement.96

A rule must be entered to authorise the amendment ;97 but no new rule to plead need be entered.99 The rule need not specify the particulars in which the amendment is to be made, but may be general, that the plaintiff have leave to amend the

91 2 Wendell. Rep. 618. 92 Rule 23.

937 Cowen. Rep. 164.

94 Ib.

95 18 Johns. Rep. 310. et vide

1 Cowen. Rep. 603.

96 Rule 24.

97 Rule 25.

98 Clinton vs. Porter. August Term 1804.

Rule must be

entered.

Time to plead.

declaration on file.99 A copy of the amended pleading must be filed,100 and the rule to plead or answer, if notice thereof has been given, is computed from the day of the service of a eopy of the pleading, as amended and on file.1

SECTION II.

OF THE FILING AND SERVICE OF THE DECLARATION.

return-day of

writ.

When the plaintiff may declare, and of filing the declaraNot before tion.] The plaintiff can in no case declare against the defendant, until the return day of the writ;2 and it seems that it is irregular to file a declaration before the writ has been actually returned in the office. He may then, before the time for appearance has expired, file his declaration, either in chief or de bene esse. The practice of the English courts does not permit the plaintiff to declare de bene esse, after the time for appearance has expired. Whether he may do so here, does not seem to be settled, though it is said that the uniform practice has been to file the declaration de bene esse, at any time before an appearance is entered, or bail filed. It was decided, where common bail was filed according to the statute, that it was regular to declare de bene esse any time within the forty days.6

99

1 Cowen. Rep. 601. Rule 25. Rep. 719. 1 Term Rep. 635. 2 100 Rule 25. New Rep. 231. 433. 1 Archb.

1 Rule 26.

2 1 Tidd. Pract. 465. 466. 1

Archb. Pract. 120.

3 Caines' Rep. 96.

46 Term Rep. 548. 2 Term

Pract. 120.

56 Johns. Rep. 127. 1 Duniap. Pract. 298.

66 Johns Rep. 298.

must be filed.

The declaration must be filed in the office of one of the Declaration clerks of the court; and at the same time a rule should be entered, that the defendant plead thereto within twenty days after the service of a copy thereof, and notice of the rule."

tiff must de

It is required by statute, that "when a defendant shall have When plainappeared in any suit, by causing his appearance to be entered, clare. or by putting in and perfecting special bail, where such bail is required; the plaintiff shall declare against such defendant, by the end of the next term after the return of the writ by which such suit was commenced." If a plaintiff fail to declare, as here prescribed, judgment of discontinuance may be entered against him, according to the course and practice of the court." And it is provided by rule, that when the defendant has perfected his appearance, he may at any time thereafter take a rule against the plaintiff, to declare before the end of the next succeeding term, or that judgment of discontinuance be entered against him.10 Before appearance, it is entirely optional with the plaintiff to declare or not; for he is not compellable to declare at all until the defendant has appeared.11 But it is in general advisable to deciare de bene esse, on the return of the writ, as it expedites the cause.

attornies,

The bill against attornies, or declaration against prisoners, Bill against may be filed absolutely, without appearance; 101 for the defen- &c. dant's being, either in fact or in contemplation of law, in court, no appearance is requisite to be entered. 12

13

Declaring de bene esse.] We have before seen,1s that where special bail is required, a declaration filed absolutely beforc bail put in is a waiver of the bail; but that the plaintiff may in such case declare de bene esse, or conditionally. To show that the declaration is filed and served conditionally, an en

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