CHAPTER VI. AMENDMENT. SECTION I.-PLEADINGS. 1. Amendment of Pleading disallowed-O. XXVIII, 4. UPON motion [or upon the application of] &c., and upon hearing &c., and upon reading &c., It is ordered that the amendment in the paragraph of the Plt's (Deft's) statement of claim (defence) be disallowed, and be accordingly struck out of the same.-Directions as to costs. For forms of summons or notice to disallow amendments, see D. C. F. 217. 2. Amendment at the Trial for the Purpose of opening Settled Accounts-0. xxviii, 1, 6. THIS action coming on &c.-Declare that the monthly cash accounts rendered &c. are to be treated as settled accounts.-" And this Court doth order that the Plts be at liberty within days after the date of this order to amend their statement of claim in such manner as they may be advised, by inserting therein specific allegations relevant to the relief asked by them for opening the accounts alleged by the Defts to have been stated and settled."-Plts M. &c. to pay to Deft C. the costs of the day, to be taxed.-Reserve further costs.-Adjourn further hearing. And in default of amendment within the time limited the action to be dismissed with costs [if so, without further order].-See Mozley v. Cowie, Fry, J., 15 Dec. 1877, B. 2110; 26 W. R. 854. NOTES. It is not now in general necessary to draw up an order for amendment of a writ or pleadings, it being provided by O. LII, 14, that when an order has been made not embodying any special terms, nor including any special directions, but simply enlarging time for taking any proceeding or doing any act, or giving leave for the amendment of any writ or pleadings, it shall not be necessary to draw up such order unless the Court or a Judge shall otherwise direct; but the production of a note or memorandum of such order, signed by a Judge, registrar, master, chief clerk, or district registrar, shall be sufficient authority for such amendment. The rules as to amendment generally are contained in O. XXVIII, which provides, by r. 1, that at any stage of the proceedings the Court or a Judge may 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; and by rr. 2, 3, without any leave, the Plt may amend his statement of claim, and the Deft his set-off or counter-claim, within the times thereby respectively limited: but a pleading so amended may, on the application of the opposite party within eight days after delivery, be disallowed, or allowed, subject to terms as to costs or otherwise: r. 4. The opposite party is then to plead to the amended pleading, or amend his pleading within the time he has to plead, or within eight days from the delivery of the amendment, whichever shall last expire; but if he has pleaded before the delivery of the amendment, and does not plead again or amend, he is to be deemed to rely on his original pleadings: r. 5. By O. XX, 4, "whenever a statement of claim is delivered the Plt may therein alter, modify, or extend his claim without any amendment of the indorsement of the writ.' An amendment changing the character of the action is not within the rule, as, ex. gr., where the writ was for ordinary partnership accounts, and the statement of claim alleged misrepresentation and claimed return of premium: Cave v. Carew, W. Ñ. (93) 42; 41 W. R. 359; 62 L. J. Ch. 530; 68 L. T. 254 (statement of claim struck out with liberty to deliver another in accordance with the writ). But in some recent cases greater latitude has been allowed. Amendment of writ, as to indorsement, is under the above rules; as to parties, under O. XVI, inf. p. 45. As to amendment of writ, see Dan. 276 et seq.; D. C. F. 137 et seq. By O. XXVIII, 6, in all cases not provided for by the preceding rules, either party may apply to the Court or a Judge in Chambers, or to the Judge at the trial of the action, for leave to amend any pleading, and the amendment may be allowed upon terms as to costs or otherwise. R. 9 provides that an amended indorsement or pleading is to be marked with the dates of the order for amendment and of the amendment, and the amended document is to be delivered to the opposite party within the time allowed for amendment (r. 10), but it is not necessary that the copy of the amended indorsement or pleading delivered to the opposite party should be marked: Hanmer v. Clifton, (1894) 1 Q. B. 238. By r. 12, the Court or a Judge may, at any time, and on such terms as to costs or otherwise as may be thought 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. The provisions of O. XXVIII as to amendment apply to writs issued for service out of the jurisdiction, and the indorsement of claim on such a writ may accordingly be amended, if the amendment does not introduce a cause of action in respect of which leave for service out of the jurisdiction could not be given under O. XI: Holland v. Leslie, (1894) 2 Q. B. 450, C. A. The discretionary powers of allowing amendments, given to the Courts by O. XXVIII, have been widely exercised. The general rule is that amendments ought always to be allowed, except when the other party cannot be placed in the same position as if the pleading had been originally correct, but an injury would be occasioned to him by the amendment which cannot be compensated by costs: Steward v. N. Metropolitan Tram. Co., 16 Q. B. D. 556, C. A.; Weldon v. Neal, 19 Q. B. D. 394, C. A.; Clarapede v. Commercial Union Association, 32 W. R. 262; Tildesley v. Harper, 10 Ch. D. 393, C. A. Leave to amend by raising a new case has been granted, after a day has been fixed for the hearing: Roe v. Davis, 2 Ch. D. 729; and also at the hearing: Budding v. Murdoch, 1 Ch. D. 43; by inserting allegations for the purpose of opening settled accounts: Mozley v. Cowie, 26 W. R. 854; 47 L. J. Ch. 271; 38 L. T. 908, Form 2, sup. p. 41; of setting aside a sale of shares: Ashley v. Taylor, 10 Ch. D. 768; 27 W. R. 228; of charging wilful default on terms that Plt should enter into no new evidence, and pay costs of the hearing: King v. Corke, 1 Ch. D. 57; and, where necessary in order to settle the real question in dispute, a pleading may be amended even after verdict, to give effect to the finding of the jury: Noad v. Murrow, 40 L. T. 100, 103. Amendment of reply after issue joined was allowed on motion on terms of Plts paying the costs which might turn out to have been thrown away by reason of the amendment, and the costs of the motion: Preston Corp. v. Fulwood L. B., 34 W. R. 200; 53 L. T. 718. And in an action for the recovery of land leave was given to amend by adding an alternative cause of action arising out of the defence: Rushbrooke v. Farley, 33 W. R. 557; 52 L. T. 572; 54 L. J. Ch. 1079. And if necessary the Court may order allegations to be re-inserted which had previously been ordered to be struck out: Mansel v. A. G., 4 P. D. 232. But a Plt was not allowed to amend by setting up a claim which, since the issue of the writ, had become barred by the Statute of Limitations: Weldon v. Neal, 19 Q. B. D. 394, C. A.; nor a Deft, after close of pleadings, to set up a defence transferring liability to a vestry, the statutory period of limitation for suing whom had in the interval expired: Steward v. N. Metropolitan Tram. Co., 16 Q. B. D. 556, C. A. For a case in which amendment was allowed by withdrawal of an admission as to the receipt of money, but on terms of the money being brought into Court, see Hollis v. Burton, (1892) 3 Ch. 226, C. A. And leave will not in general be granted to raise an entirely new case of fraud: Hendriks v. Montagu, 50 L. J. Ch. 456. Leave to amend three months after joinder of issue, by raising a new case wholly inconsistent with the previous pleading, was refused: Clark v. Wray, 31 Ch. D. 68. Delay may be a ground for refusing the leave: Clark v. Wray, sup. ; or for allowing it, with imposition of special terms, ex. gr., payment of the costs of the application as between solr and client: Kurtz v. Spence, 36 Ch. D. 770, C. A. An affidavit stating the nature, or showing the materiality, of the proposed amendments is no longer required: Cargill v. Bower, 4 Ch. D. 78; Chesterfield Co. v. Black, 25 W. R. 409. If such an affidavit is made, it is improper to cross-examine upon it: Conybeare v. Lewis, 29 W. R. 391; 44 L. T. 242. If the amendment be not made within the time limited for that purpose by the order giving leave to amend, or, if no time be limited, within fourteen days from the date of the order, the order to amend shall on the expiration of the time limited, or of fourteen days, as the case may be, become ipso facto void, unless the time be extended: 0. XXVIII, 7; and see O. LXIV, 7. By O. LXIV, 5 (with a partial exception as to certain causes to be tried at assizes), the time of the Long Vacation is not to be reckoned in the computation of the times allowed for filing, amending or delivering any pleading, unless otherwise directed by the Court or a Judge. By O. LXIV, 8, the time for delivering or amending any pleading may be enlarged by consent in writing without application to the Court or Judge. Under the former practice leave to amend would not be given at the hearing, unless the matter of amendment related to the issues already raised: see Ld. Darnley v. L. C. & D. Rail. Co., 1 D. J. & S. 204, 215; Gossip v. Wright, 11 W. R. 632; or the position of the parties had become changed since bill filed: A. G. v. Cambridge Gas Co., 6 Eq. 282; but a Plt having no title to sue when he filed his bill could not obtain a decree upon a right of suit subsequently acquired and brought forward by amendment or supplemental bill: A. G. v. Corp. of Avon, 3 D. J. & S. 637; and see Peek v. Spencer, 5 Ch. 548. For instances of amendment at the hearing under the old practice, see Maughan v. Blake, 3 Ch. 32; Ld. Darnley v. L. C. & D. Rail. Co., 1 D. J. & S. 204; Bierdermann v. Seymour, 1 Beav. 594; and after the hearing on further consideration, see White v. Hall, 1 Russ. & M. 332. A Deft whose statement of defence has been held to be an insufficient denial under O. XIX, 19, will not, as a general rule, be refused leave to amend at the hearing: Re Truefort, Trafford v. Blanc, 34 W. R. 56, following Tildesley v. Harper, 10 Ch. D. 393, C. A.; but he will not be allowed to amend so as to raise merely technical points: Collette v. Goode, 7 Ch. D. 842; and see Byrd v. Nunn, 7 Ch. D. 284, C. A.; Thorp v. Holdsworth, 3 Ch. D. 637; Edevain v. Cohen, 43 Ch. D. 187, C. A. Amendment at the hearing of a foreclosure action was allowed on payment of costs where a denial by Deft was not sufficiently specific, and the case came on upon admissions: Rutter v. Tregent, 12 Ch. D. 758; but was re fused where the Deft had omitted to deny a material fact which must have been within his knowledge: Lowther v. Heaver, 41 Ch. D. 248, C. A. In an action for trespass, where the Deft claimed a prescriptive right, the Court of Appeal, reversing Fry, J., allowed an amendment at the hearing by which the title of the Pit would be denied: Laird v. Briggs, 19 Ch. D. 22, C. A. And where a case of fraud, after Plt's case was closed, arose on the crossexamination of the Defts, leave to amend was granted, but the evidence was to be confined to matters arising upon the cross-examination: Riding v. Hawkins, 14 P. D. 56. In one case, where Plt sued as riparian proprietor to restrain trespass on a river, and at the hearing it appeared that the bed of the river was vested in the Crown, whose rights he had purchased since action brought, he was permitted to issue a new writ, and the hearing of the two actions was, by consent, then proceeded with: Bourke v. Davis, 44 Ch. D. 110. But Defts were not allowed, after evidence closed, to amend by pleading merger of cause of action in a previous judgment against joint tort feasors: Edevain v. Cohen, 41 Ch. D. 563; 43 Ch. D. 187, C. A. As to amendment at hearing by adding parties, see inf. p. 47. Liberty to amend after time for appealing had long expired was granted under special circumstances on special terms, in order that the other parties might not suffer any loss by the applicant's not having taken the proper course of appealing in due time: Kurtz v. Spence, 36 Ch. D. 770, C. A. The jurisdiction being discretionary, the Court of Appeal is reluctant to interfere: Byrd v. Nunn, 7 Ch. D. 284, C. A.; Edevain v. Cohen, sup. ; but has done so where the amendment was necessary in order to try the real question between the parties; Laird v. Briggs, sup. Where the interest of the Plt is validly assigned pendente lite, and an order made giving the assignee leave to carry on the proceedings, the statement of claim should be amended by adding the new title of the action and showing the devolution of interest on the new Plt: Seear v. Lawson, 16 Ch. D. 121, C. A.; and see inf. Chap. IX., “CHANGE OF PARTIES." As to amendment of judgments and orders of Court, see inf. Chap. XV., "PASSING AND ENTERING." As to costs of amendments, see O. LXV, 27 (31, 32), and inf. Chap. XVII., "COSTS." And as to amendment of pleadings generally, see Dan. 341 et seq. SECTION II.-Amendment AS TO PARTIES. 1. Adding Plt-Amendment of Writ and Statement of Claim by naming the A. G. as Plt-O. XVI, 2. UPON motion &c., This Court doth order that the Plts be at liberty, upon obtaining the allowance of His Majesty's A. G. (and without prejudice to the pending motion for an injunction &c.), to amend the writ of summons issued by them in this action on &c., and the statement of claim delivered by them on &c., by adding in the said writ and statement respectively His Majesty's A. G. as Plt in this action at the relation of the existing Plts, and by inserting in the said writ and statement of claim the names of Messrs. A., of &c., as solrs for the Plt and relators, and the names of Messrs. B., of &c., as agents for the said Messrs. A., and otherwise to amend the said writ and statement of claim as the Plts shall be advised.-Costs to be costs in the action.-See Caldwell v. Pagham Harbour Reclamation Co., V.-C. H., 17 Feb. 1876, A. 243; 2 Ch. D. 221. 2. Plt undertaking to amend and make A. G. a Party, Order discharged. UPON motion by way of appeal &c. by counsel for the Plts, And upon hearing counsel for the Deft, and the Plts by their counsel undertaking to amend the writ of summons and their statement of claim in this action by adding His Majesty's A. G. as a Deft, This Court doth order that the Plts be at liberty to amend the said writ of summons and statement of claim accordingly, and also to amend the said statement of claim as they may be advised; And it is ordered that the said order, dated &c., be discharged.-Costs of Plts of appeal, and of the said order to be their costs in the action.-See Ellis v. Duke of Bedford, C. A., 14 Feb. 1899, A. 1085; (1899) 1 Ch. 494, C. A. 3. Order Nisi to add Defts in Consolidated Action—O. xvi, 11. UPON motion &c., This Court doth order that J. and E. be added as Defts hereto, unless they shall, within days after service of this order, show unto this Court good cause to the contrary.-See Re Wortley, Culley v. Wortley, M. R., 8 Dec. 1876, B. 2007; 4 Ch. D. 180. -- 4. Action defective for want of Parties-Trial to stand over— O. XVI, 11. day of THIS action coming on for trial this day &c., And it being admitted by the Plts L. and W. that the late Plt B. is dead, and they by their counsel asking leave to amend, And upon hearing &c., This Court doth order that this action do stand over until the to give time (or with liberty) to the Plts to remedy the defect caused by the death of the said B. [or to amend their writ and statement of claim by adding parties, and otherwise in relation thereto] as they may be advised; And this Court doth order that the Plts L. and W. do pay to the Defts M. &c. their costs occasioned by this action having been placed in the paper for trial on the and the day of such costs to be taxed by the Taxing Master.-Lydall v. Martinson, Fry, J., 12 June, 1877, B. 1125; 5 Ch. D. 780. day of NOTES. ADDING OR STRIKING OUT PARTIES. By O. xvi, 1, "All persons may be joined in one action as Plts, in whom any right to relief in respect of or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in the alternative, where if such persons brought separate actions any common question of law or fact would arise; provided that, if upon the application |