1853.

The QUEEN

V.

GREGORY.

placed on the roll in 1844, but an accurate description of the house No. 8, King Street, which he has subsequently acquired. [Wightman J. When he turned the two houses into one the accurate description became "the house situate in Minster Street and in King Street, being No. 63 in the one, and No. 8 in the other." But the description in the burgess roll and that in the voting paper would both be commonly understood to mean that. Lord Campbell C. J. As soon as it appears that in fact the houses are one the case is at an end.]

Cowling was not called upon.

Per CURIAM (a). The rule must be absolute.

Rule absolute.

(a) Lord Campbell C. J., Coleridge and Wightman Js. Crompton J was absent on account of a domestic calamity.

Friday,
January 28th.

A writ was continued, under stat.

2 & 3 W. 4.

CORNISH and PROUT against HOCKIN.

MCHAMBERS, in last Michaelmas term, obtained

a rule calling on the defendant to shew cause

. 39. 10.; why the plaintiff should not be at liberty to amend the

e. s.

but the in

dorsement on

tained an er

roneous date

indorsement on the last writ issued herein on 28th

a pluries con- May 1851, and on the copy of the said writ served on defendant, of the date of the first writ, by substituting writ, and the the 13th instead of the 22d day of October 1849,

of the first

same mistake

was made on

the copy served. Afterwards stat. 15 & 16 Vict. c. 76. passed. The Statute of Limitations had win against the plaintiff, and had been pleaded. The Court permitted the indorsement on the writ to be amended, but not the indorsement on the copy served. Semble, that the amendment might have been allowed independently of stat. 15 & 16 Fict. c. 76. s. 222.

which latter day was inserted by mistake; and why defendant should not produce the said copy of the said writ for that purpose.

The rule was obtained on affidavits stating the following facts. The action was brought upon a promissory note for 2007, dated 23rd October 1843, purporting to be made by defendant, payable to George Bridgman or order, and by him indorsed to plaintiffs and Francis Cornish Newman, since deceased. A writ was issued on 13th October 1849, and the process had been regularly continued, in accordance with stat. 2 & 3 W. 4. c. 39. s. 10.; except that, on the fifth writ (pluries), dated 28th May 1851, the indorsement stated, by mistake, the date of the first writ to be 22d of October 1849, instead of 13th October. The same mistake was made on the copy served on defendant. The declaration was filed on 29th July 1852: defendant had pleaded the Statute of Limitations.

Crowder and Phinn now shewed cause. This amendment is not warranted by sect. 222 of The Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76., nor by the state of the law before that Act. As to the previous law. These writs were, it is true, issued properly as to time, in fact: but the indorsement is as necessary as the body of the writ to connect the action with the first issuing of process. In Medlicott v. Hunter (a) the Court of Exchequer refused to permit such an amendment as that now asked for, Parke B. saying that the indorsement must be on the writ at the time of service. In Roberts v. Bate (b) the Court of King's Bench refused

(a) 5 Exch. 34.

(b) 6 A. & E. 778.

1853.

CORNISH

V.

HOCKIN.

1853.

CORNISH

V.

HOCKIN.

to grant an amendment for the purpose of aiding a party who would otherwise be barred by the Statute of Limitations. In Campbell v. Smart (a) an application was made to the Court of Common Pleas to alter the date of a summons for the same purpose: but it was refused. In the last case, reference was made to Lakin v. Watson (b); but Wilde C. J. said that he thought Roberts v. Bate (c) was the better decision of the two. The authority of Medlicott v. Hunter (d) was recognised and acted on, in Pritchard v. Bagshawe (e), by the Court of Common Pleas. [Erle J. There seems to me to be an important distinction between amending so as to make the case conformable to the fact, and amending contrary to the fact.] In Medlicott v. Hunter (d) the amendment would have been in conformity with the fact. Next, as to stat. 15 & 16 Vict. c. 76. s. 222. That enactment is not retrospective. If the amendment were allowed, the defendant would be deprived of his right under the Statute of Limitations, which was vested before the Common Law Procedure Act passed. In Moon v. Durden (g) the Court of Exchequer decided that stat. 8 & 9 Vict. c. 109. s. 18., which enacted that no suit should be brought or maintained for a wager, did not defeat an action already commenced: and the Court acted upon the maxim, cited in 2 Inst. 292, "Nova constitutio futuris formam imponere debet, non præteritis." To warrant a departure from this rule, the intention of the Legislature must be very plain; Hitchcock v. Way (h). Therefore, under the statute now in

(a) 5 Com. B. 196.

(c) 6 A. & E. 778.

(b) 2 Cr. & M. 685.

(d) 5 Exch. 34.

(e) 20 L. J. N. S. C. P. 161.

(g) 2 Exch. 22.

(h) 6 A. & E. 943.

question, 15 & 16 Vict. c. 76., the Court of Exchequer decided that sect. 51 did not affect a special demurrer where there had been a joinder in demurrer before the Act came into operation; Pinhorn v. Souster (a). The same principle prevailed in Regina v. Crowan (b). In that case, Coleridge J. pointed out an important distinction: "It might be that, if all had been done rightly up to the time when the statute came into operation, the statute would have applied to omissions occurring afterwards in the same proceeding: but here all the defect, if it be one, existed before the operation of the statute, and therefore cannot be cured by it." Here the defect existed before the statute came into operation. Suppose the rule to be made absolute, the defendant may still insist on the defect: for the writ, when produced, will shew the erasure. [Coleridge J. It will then be as if the indorsement had always been as amended.] Sect. 10 repeals the provisions of stat. 2 & 3 W. 4. c. 39., in respect of the proceedings taken to prevent the operation of statutes of limitation, "except so far as may be necessary for supporting any writs that have been issued before the commencement of this Act, and any proceedings taken or to be taken thereon." Here the plaintiff relies exclusively on the proceedings taken in conformity with stat. 2 & 3 W. 4. c. 39.: if he abandons these, he has no answer to the Statute of Limitations: if he insists on them, he is within the above exception.

M. Chambers, contrà. The decisions as to the law before the statute were conflicting. If the indorsement be not amended, the defendant will be barred by the

(a) 8 Exch. 138.

(b) 14 Q. B. 221.

1853.

CORNISH

v.

HOCKIN.