ment to a plea in abatement was ever allowed, and it is expressly decided in Trinden v. Durant,' notwithstanding the statute of New York authorized the count to amend "any process, pleading, &c. either in form or substance."

Pleas in bar, may be amended to any extent, which the court in their discretion may allow the same may be said of pleas puis darrein continuance. Brief statements of facts are amendable. The same general rules apply to replications, and other subsequent pleadings and proceedings.

The rule for payment of money into court, may be amended under special circumstances; as where the suit was on different claims, and the defendant intending to pay one, paid in money on the whole declaration; instead of paying it on the count upon the particular claim.1

Of verdicts. Where a general verdict has been rendered upon a declaration containing several counts, one of which is bad, the plaintiff will have leave, during the same or any subsequent term, to amend the verdict, by taking it upon one or more good counts, if the judge who presided at the trial will certify, that all the counts were for only one cause of action, or that all the evidence applied to the count on which the verdict is proposed to be taken.5

532d Rule C. C. Pleas. Appendix B. Barnard v. Whiting et al. 7 Mass. Rep. 358. Barnes v. Hurd, 11 Mass. Rep. 57. Sullivan v. Holker, 15 Mass. Rep. 374. Patten et al. v. Gurney et al. 17 Mass. Rep. 182. Baker v. Sanderson, 3 Pick. Rep. 348. Cornwall v. Gould, 4 Pick. Rep.

A verdict, which is erroneous in omitting to find all the issues, may be amended, even after a writ of error is brought, if the judge who tried the cause will certify, that there was no question in regard to such issue.1

A special verdict defective in substance, cannot be amended by the minutes of the judge, without the consent of both parties.2

Statement of facts. An agreed statement of facts cannot be amended but by consent; - if an error be committed, the only remedy is by moving the court to discharge the whole, which, in proper cases, will be

done.s

Bill of exceptions. No instance is known where a bill of exceptions has been amended, - or where any question was made as to its propriety.

4

Of records. By the common law, any apparent error in the record might be rectified and amended by another part of the same record. In Atkins et al. v. Sawyer, where in an action against an administrator, judgment was rendered against him as administrator, the court held that it might be amended, and judgment entered against the goods and estate in his hands.

All circumstantial errors, clerical mistakes, and defects in form may be amended. A remittitur damna may be entered by the plaintiff, after error brought, because the verdict exceeded the ad damnum.5 Where the Supreme Court, on a writ of error, had reversed a judgment of the Court of Common Pleas, and ordered a venire facias de novo to be tried at their own bar,

1 Clark v. Lamb, 6 Pick. Rep. 512. 8 Pick. Rep. 415. S. C.

2 Walker v. Dewing et al. 8 Pick. Rep. 520.

* Vide Stockbridge v. West Stockbridge, 13 Mass. Rep. 302. 4 1 Pick. Rep. 351.

5 Per curiam. Hutchinson v. Crossen, 10 Mass. Rep. 251.

it was holden, that on the new trial, they had not power to grant an amendment of the declaration, on the ground that this was the record of another court, which they were only authorized to examine, and to reverse or affirm the judgment.'

2

It is said, that the record of an inferior court, sent up on a writ of error, may be amended in the Superior Court, if the other refuseth, and in Wells et al. Ex'ors. v. Dench, the same doctrine was holden; but in Thatcher et al. v. Miller, the court waived the decision of that question.

3

In the common case of a new trial of an action, brought by exceptions from the Common Pleas to the Supreme Court, it has never been supposed that the court had less power to grant amendments, than in actions brought up by appeal; and the decision in Hutchinson v. Crossen, would hardly be considered as binding now in any case.

Judicial writs. Writs of error are probably amendable to every extent, which the court may see fit to authorize. Where the plaintiff in error assigned an error in fact, and failed to prove it, he was not permitted to amend by assigning another error in fact, or restoring one which he had previously stricken out.5

Miscellaneous. A constable is permitted to amend his return of the venire, even in a capital case; so to amend the return of the warrant for summoning a town meeting. A town clerk may amend his record

1 Per curiam. Hutchinson v. Crossen, 10 Mass. Rep. 251.

2 Bac. Abr. tit. Amendment.

5

1 Mass. Rep. 233.

* 13 Mass. Rep. 270.

Hathaway v. Clark, 7 Pick. Rep. 145.

6 Anonymous. 1 Pick. Rep. 196. Commonwealth v. Parker et al. 2

Pick. Rep. 550.

7 Thayer v. Stearns et al. 1 Pick. Rep. 109–112.

of the administration of the oath, in former years, to town officers, when he was clerk, and such amended record will be competent evidence.'

SECT. II. AT WHAT TIME AND ON WHAT TERMS AMENDMENTS ARE GRANTED. -FORM OF AMENDMENTS, &C.

Amendments in matters of form, are granted, of course, upon motion, without costs or continuance; but if the defect be pointed out and relied on by the adverse party, on special demurrer, or plea in abatement, the court in their discretion will impose terms.2

Usually, if the party making the mistake correct it at once, when pointed out, no terms are imposed, as on a plea of misnomer, or demurrer for informal teste; -but not if he persist in trying it, or unnecessarily delay the motion.

3

Even in this last case, if the error be very slight, or merely clerical, it seems no costs are imposed; as where the plaintiff in his replication, "put himself on the country," instead of "praying that it might be inquired," &c. or in the case of an informal venue.

Cases can rarely occur, where amendments in matters of form are necessary; — and if the defect be not objected to at the first term, it is cured, and need not be amended at all. Sometimes, however, it is, if not

1 Welles et al. v. Battelle et al. 11 Mass. Rep. 477, 481.

2 Reg. Gen. S. J. C. 8. Appendix A. 10th Rule C. C. Pleas. Appendix B.

3 Bullard v. Nantucket Bank, 5 Mass. Rep. 99.

4 Hartwell v. Hemmenway, 7 Pick. Rep. 117

› Munroe v. Cooper et al. 5 Pick. Rep. 412.

absolutely necessary, very desirable, as in cases of misnomer, particularly of a corporation.'

Time of amendment. There seems to be no limitation, imposed by the rules or practice of the courts, of the time within which amendments may be made. They are allowed, not only after issue to the country, and upon the trial, and after joinder in demurrer, but after argument of the demurrer, or after a nonsuit on account of the variance, or after judgment arrested for the insufficiency of the pleading.2

The party demurring to a pleading is usually, when the decision is against him, permitted to waive his demurrer, and to take issue on the facts. This cannot perhaps be considered as invariably allowed, but the exceptions or restrictions are not governed by any known system.

The only case, in which perhaps the court will never grant an amendment, is where there has been an issue in fact and a verdict, and the unsuccessful party wishes to substitute another issue. This probably has never been done.'

Terms of amendment. The general rule upon substantial amendments is, that the opposite party shall have costs, or a continuance, at his election. This is called, "the common rule." Originally, the common rule embraced only amendments of declarations. It was adopted in 1780, and it allowed the plaintiff to amend at any time before joinder in demurrer, on paying costs, or granting a

1 Sherman v. Prop. Conn. Riv. Bridge, 11 Mass. Rep. 338. Bullard v. Nantucket Bank, 5 Mass. Rep. 99.

2 White v. Snell, 5 Pick. Rep. 425. Babcock v. Thompson, 3 Pick. Rep. 446. Hill v. Haskins et al. 8 Pick. Rep. 83. Williams v. Hingham Turnpike Corp. 4 Pick. Rep. 341.