to address the jury and prove his case separately and in succession; the witnesses of each might be cross-examined by the co-defendant's as well as the plaintiff's counsel; and the plaintiff had the general reply. Phillips v. Willetts, 2 M. & Rob. 319, and Wynne v. Wynne, cited Id. 321. The order in which co-defendants shall examine and address seems to be in the judge's discretion. Fletcher v. Crosbie, Id. 417.

Where it was ordered, on an issue out of chancery, that a third party "should be at liberty to attend the trial," the counsel for such party might cross-examine and suggest points of law, but could not call witnesses or address the jury. Wright v. Wright, 7 Bing. 458.

As to practice where the plaintiff has joined defendants with the view of obtaining relief against them in the alternative, see Child v. Stenning, 7 Ch. D. 413.

Set-off and counter-claim.] Set-off and counter-claim are now in the same position as if they formed a statement of claim by the defendant against the plaintiff; and under Rules, 1883, O. xxi. r. 16, although the action is stayed, discontinued, or dismissed, the counter-claim may be proceeded with; and by r. 17, post, p. 290, judgment may be given for the defendant for any balance found to be due to him.

Third party.] Where the defendant claims to be entitled to contribution or indemnity over against any party not a party to the action, the defendant may bring him in under Rules, 1883, O. xvi. rr. 48–53. The directions for trial given by the court or judge under r. 52, will regulate the manner in which the questions are to be tried, and under r. 53 the third party may have leave to defend the action. Under r. 54, post, p. 293. the court or a judge has power to decide all questions of costs. R. 55 places a co-defendant against whom a defendant seeks contribution or indemnity in the same position as a third party. Under this rule contribution may be ordered between co-defendants. Sawyer v. Sawyer, 28 Ch. D. 600.

Where the question of liability of the third party is ordered to be tried as soon as may be convenient after the trial of the action, the third party who has entered an appearance only, may attend the trial by counsel, and cross-examine the witnesses; and the question will be tried as soon as the trial of the action between the plaintiff and defendant is concluded. Blore v. Ashby, 42 Ch. D. 682.

Exception for misdirection.] The J. Act, 1875, s. 22, enacts that nothing in the J. Act, 1873, nor in any rule or order made under the powers thereof or of this Act shall take away or prejudice the right of any party to any action to have the issues for trial by jury submitted and left by the judge to the jury before whom the same shall come for trial with a proper and complete direction to the jury upon the law, and as to the evidence applicable to such issues. Provided also, that the said right may be enforced either by motion in the High Court of Justice, or by motion in the Court of Appeal, founded upon an exception entered upon or annexed to the record." Under the provisions of the J. Act, 1890, s. 1, the motion must be made in the Court of Appeal, and not in a Divisional Court. The Rules, 1883, O. lviii. r. 1, direct that all appeals to the Court of Appeal shall be by way of rehearing, and shall be brought by notice of motion in a summary way. As to the duty of the judge in directing the jury, Edmonds v. Prudential Assur. Co., 2 Ap. Ca. 487, 507, per Ld. Blackburn. The judge is bound to direct a

verdict for the defendant, unless there is some evidence on which the jury may reasonably act; a mere scintilla of evidence is not sufficient. Ryder v. Wombwell, L. R., 4 Ex. 32, 39, Ex. Ch.; Giblin v. McMullen, L. R., 2 P. C. 317, 335; Steward v. Young, L. R., 5 C. P. 122, 128; Daniel v. Metropolitan Ry. Co., L. R., 5 H. L. 45; Jackson v. Id., 3 Ap. Ca. 193, D. P. See further Slattery v. Dublin, Wicklow, &c. Ry. Co., Id. 1155, D. P.; Davey v. L. & S. W. Ry. Co., 11 Q. B. D. 213; 12 Id. 70, C. A. The rule is, that if the evidence be such that the jury could conjecture only, not judge, it ought not to go to the jury, and the onus lies on the party offering the evidence; and if he offer only evidence consistent with either supposition of fact, he is not entitled to have it put to the jury; per Ld. Tenterden, C. J., referred to by Cresswell, J., in Avery v. Bowden, 6 E. & B. 953, 974; 26 L. J., Q. B. 3, and cited by Willes, J., in Phillipson v. Hayter, L. R., 6 C. P. 42, 43.

The judge may assist the jury, at their request, with his opinion on a question of fact, which he expressly left for them to decide. Smith v. Dart, 14 Q. B. D. 105.

Discontinuance.] By Rules, 1883, O. xxvi. r. 1, "save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the court or a judge, but the court or a judge may, before, or at, or after the hearing or trial upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out. The court or a judge may, in like manner and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave." This rule seems to deprive the plaintiff of his right to be non-suited. It may be observed that it does not in terms prohibit a defendant from withdrawing his counter-claim. By r. 2, a cause may be withdrawn by either party "upon producing to the proper officer a consent in writing signed by the parties.'

Effect of opposite party not appearing at trial.] By Rules, 1883, 0. xxxvi. r. 31, “if, when an action is called on for trial, the plaintiff appears, and the defendant does not appear, the plaintiff may prove his claim so far as the burden of proof lies upon him." If the burden of proof is on the defendant, the plaintiff need not, it seems, in this case have the jury sworn. See Lane v. Eve, infra.

By r. 32, "if, when a trial is called on, the defendant appears, and the plaintiff does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action; but if he has a counterclaim, then he may prove such counter-claim so far as the burden of proof lies upon him." In the former case, the defendant need not have the jury sworn. Lane v. Eve, W. N., 1876, p. 86, per Denman, J. Where the plaintiff declines to proceed at the trial, judgment will be given under this rule dismissing the action. Robinson v. Chadwick, 7 Ch. D. 878.

By r. 33, "any verdict or judgment obtained where one party does not appear at the trial may be set aside, by the court or a judge, upon such terms as may seem fit, upon an application made within six days after the trial. Such application may be made either at the assizes or in Middlesex." Where the default arises from inadvertence, the application will be granted on payment of the costs of the day, including all costs

961

that have been wasted, and the costs of the application.
Taylor, 9 Ch. D. 1, C. A.

Burgoine v.

Where one party appears, but the opposite party does not appear, the former may proceed and obtain judgment without proving service of notice of trial. James v. Crow, 7 Ch. D. 410, Fry, J., following Ex parte Lows, Id. 160, C. A., and overruling his decisions in Cockle v. Joyce, Id., 56, and Cockshott v. L. General Cab Co., 47 L. J., Ch. 126.

Amendment at Nisi Prius.] By Rules, 1883, O. xxviii. r. 1, "The court or a judge may, at any stage of the proceedings, allow either party to alter or amend his indorsement or pleadings, in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.' By r. 6, application for leave to amend may be made" to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise as may be just." By r. 12, "the court or judge may at any time, and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings.' An amendment may be allowed at the trial, so as to raise a new case requiring fresh evidence. Budding v. Murdoch, 1 Ch. D. 42; King v. Corke, Id. 57. See also Roe v. Davies, 2 Ch. D. 729. The provisions of the C. L. P. Acts, 1852, s. 222; 1854, s. 96; and 1860, s. 36, which are still in force are expressed in very similar terms. Under those sections many of the cases collected below were decided.

All amendments ought to be made that are necessary and proper, for the object of the rules is to meet cases in which, by mistake or oversight, the real matter in issue is not raised by the pleadings, and under it the matter may be put on the record which was not on it before, if it be shown to the satisfaction of the judge to be the existing matter in controversy. What that matter in controversy may be is a matter of fact to be determined by the judge upon the evidence and pleadings before him. See Maule, J., in Wilkin v. Reed, 15 C. B. 192; 23 L. J., C. P. 193; Blake v. Done, 7 H. & N. 465; 31 L. J., Ex. 100. It seems that leave to amend should always be given unless the judge is satisfied that the party applying is acting mala fide, or that by his blunder he has done some injury to his opponent which cannot be compensated for by costs or otherwise. Tildesley v. Harper, 10 Ch. D. 393, 396, 397, per Bramwell, L. J.; accord. per cur. in Steward v. N. Metropolitan Tramway Co., infra. See also Laird v. Briggs, 19 Ch. D. 22, C. A.; Cropper v. Smith, 26 Ch. D. 710, 711, per Bowen, L. J.; Kurtz v. Spence, 36 Ch. D. 770, C. A. An amendment should not be allowed for the purpose of trying a question which has arisen at the trial, but is not that which the parties came to try. Wilkin v. Reed, supra; Lucas v. Tarleton, 3 H. & N. 116; 27 L. J., Ex. 246; Ritchie v. Van Gelder, 9 Exch. 762; Ellis v. Manchester Carriage Co., 2 C. P. D. 13. Thus, where the action was for fraudulently misrepresenting to the plaintiff the cause for which the defendant had discharged a servant from his service, and it turned out at the trial that the defendant had improperly suppressed the fact of the servant's dishonesty, but had truly stated the cause of his discharge, it was held that, as this suppression was not in fact the ground of the plaintiff's complaint, but only the supposed misrepresentation, which was negatived, the judge had rightly refused to amend by substituting a charge of fraudulent suppres

sion.

Wilkin v. Reed, supra. So leave to amend the defence by denying

an allegation not denied by the defence was refused, where the defendant knew the facts all along. Lowther v. Heaver, 41 Ch. D. 248; affirmed in C. A. on the additional ground that the amendment would have been useless; vide, Id. 262. See also Edwain v. Cohen, 41 Ch. D. 563; 43 Ch. D. 187, C. A.

No amendment will be allowed so as to prejudice the other party. The plaintiff ought at first to state his cause of action, if there were one truly and in substance according to the facts, in order that the defendant may know whether he should object to their sufficiency in point of law, admitting the facts, or, denying them, go to trial. It would be better that there should be no trial at all, than that a plaintiff should be allowed to state one cause of action, and then, on any difficulty arising as to his maintaining it on the evidence, to amend so as to raise another and different cause of action. It would be far better to require no pleadings at all, than to allow pleadings which could only operate as a snare. Bradworth v. Foshaw, 10 W. R. 760, Ex. T. T. 1862, per cur. See also Riley v. Baxendale, 30 L. J., Ex. 87, 88, per Martin, B.; Newby v. Sharpe, 8 Ch. D. 39, C. A.; New Zealand, &c. Co. v. Watson, 7 Q. B. D. 374, 382; Edwain v. Cohen, supra. An amendment was refused, the object of which was to throw the liability on a third party A., the right of action against A. having become barred by lapse of time. Steward v. N. Metropolitan Tramways Co., 16 Q. B. D. 178, 556, C. A.

In some cases the nature of the action may be a ground for refusing an amendment; as where it was founded on an agreement to commit a fraud on a foreign state. Brennan v. Howard, 1 H. & N. 138. On this motive for refusal, however, there is a difference of opinion on the bench; see Hughes v. Bury, 1 F. & F. 374, per Crowder, J. Where a tenant in common brought an action of trespass and trover against his co-tenant for cutting and carrying away the whole produce of the common property, and the action was held not maintainable, the court refused to mould the action into one of account, on the ground that such an action was so distinct from the one stated in the declaration, that the amendment would not do justice between the parties. Jacobs v. Seward, L. R., 4 C. P. 328; L. R., 5 H. L. 464. If the amendment be to insert in the breach a claim on which the plaintiff can recover only nominal damages, and in respect of which defendant would probably not have defended the action, the judge will be justified in refusing it. Times Insurance Co. v. Hawke, 28 L. J., Ex. 317. See also Spoor v. Green, L. R., 9 Ex. 99. Where the amendment would evade the real question in controversy, it should be refused. Thus, where the plaintiff claimed a larger easement than he proved at the trial, the judge would not allow him to limit it by amendment, if in fact the larger claim was the one really claimed and asserted by plaintiff and resisted by defendant. Cawkwell v. Russell, 26 L. J.,

Ex. 34.

A variance between the statement of claim and a record, on the denial of the latter is amendable. Noble v. Chapman, 14 C. B. 400; 23 L. J., C. P. 56; Hunter v. Emanuel, 15 C. B. 290; 24 L. J., C. P. 16. The judge may, if he thinks fit, add a claim at Nisi Prius. Taylor v. Shaw, 1 Com. Law Rep. 1057; Robinson v. Davison, L. R., 6 Ex. 269, 270; Wilby v. Elgee, L. R., 10 C. P. 497. So in Isaacs v. Pickard, 1 F. & F. 672, where a count for not accepting a bill of exchange was added to one for goods sold, and the defendant made to plead to it instanter, with leave to plead several pleas. A plea of payment into court has been allowed to a count added at the trial. Robson v. Turnbull, 1 F. & F. 365. In an action against the directors of a building society who had signed a loan note on behalf of the society, brought for the money lent, a count alleging

breach of warranty of authority in the directors to borrow money for the society was added. Richardson v. Williamson, L. R., 6 Q. B. 276. See also Mountstephen v. Lakeman, L. R., 5 Q. B. 613, 614; L. R., 7 H. L. 17. An injury to the possession may be altered to an injury to the reversion. May v. Footner, 5 E. & B. 505; 25 L. J., Q. B. 32. In a count for falsely representing the value of defendant's business at 1007. per month, the judge inserted the words "over the counter," that being the real question to be tried. Roles v. Davis, 4 H. & N. 484; 28 L. J., Ex. 287. In an action on a mortgage-deed, a claim for interest was inserted at Nisi Prius, and was again struck out on an application to re-amend at the same trial; and the court, on motion, refused to interfere with the judge's discretion. Morgan v. Pike, 14 C. B. 473; 23 L. J., C. P. 64. In an action to recover instalments of an annuity, an amendment of the claim to the declaration was allowed so as to include a later instalment due before action. Knowlman v. Bluett, L. R., 9 Ex. 1. But the plaintiff will not in general be allowed to amend by alleging fresh causes of action, which since writ issued have become barred by the Statute of Limitations. Weldon v. Neal, 19 Q. B. D. 394, C. A. An amendment of the statement of claim may be allowed in an action of libel, on the ground of variance with the libel proved. Rainy v. Bravo, L. R., 4 P. C. 287.

In like manner the statement of defence may be amended at the trial, in order to meet the facts proved at it. Mitchell v. Crasweller, 13 C. B. 237; 22 L. J., C. P. 100. A plea of payment was added to other pleas in an action on a guarantee, in Laurie v. Scholefield, L. R., 4 C. P. 622. In an action for wrongful dismissal of the manager of plaintiff's business, a defence by reason of plaintiff's dismissal for misconduct was added on the trial by Cresswell, J., though no misconduct was alleged in the other pleas. Hobson v. Cowley, 27 L. J., Ex. 205. In an action for false imprisonment the defendant was allowed to amend the grounds of suspicion alleged in his plea of justification. Hailes v. Marks, 7 H. & N. 56; 30 L. J., Ex. 389. A plea of "not guilty by statute was amended by inserting the proper statutes in the margin. Edwards v. Hodges, 15 C. B. 477; 24 L. J., M. C. 81.

It seems that the time to apply for an amendment by either party is at the close of his case. See Rainy v. Bravo, L. R., 4 P. C. 287, 298. It is not unusual for amendments to be made at the trial without imposing any condition of payment of costs, or of giving further time.

In Tennyson v. O'Brien, 5 E. & B. 497, on a contract for delivery of goods by the plaintiff the plea denied the readiness of plaintiff to deliver at the time specified. At the trial it appeared that the delivery had been postponed at the defendant's request, and the judge allowed an excuse for non-delivery to be inserted on the declaration, and refused to postpone the trial; whereupon the defendant refused to amend his former plea, or to appear further. Held, that the amendment was justifiable, and that defendant was not necessarily entitled to postponement, it not appearing that he was prejudiced on the merits by the refusal to postpone. The plea being proved as it stood, a verdict was taken on it for the defendant, and the plaintiff obtained judgment non obstante veredicto on motion. Where, however, it will be evidently proper to give more time to the opposite party, the applicant will probably be made to pay the costs of the day. See Edwards v. Hodges, supra.

When a defence has been held to be evasive or insufficient, and thereby to admit the allegations in the statement of claim, under Rules, 1883, (. xix. rr. 13, 19, leave to amend has often been refused in the Chancery Division. Thorp v. Holdsworth, 3 Ch. D. 637; Byrd v. Nunn, 5 Ch. D. 781; 7 Ch. D. 284, C. A.; Collette v. Goode, Id. 842. See also Crowe v.