aggravation (r). So, if a prisoner is charged with killing with a dagger, it will be sufficient if the evidence prove a killing with a stick; or if he is charged with killing with one kind of poison, and the evidence prove a killing with another. If, however, the charge is one of killing by poison, and the evidence proves death by a weapon or a blow, this will be a fatal variance; for a prisoner cannot be expected to be prepared with evidence to refute a charge totally distinct from that which is laid in the indictment. So, where A. is charged with giving a mortal blow; and B. and C. are charged, having been present, with aiding and abetting; the indictment will warrant a conviction, although the evidence proves B. to have given the blow, and A. and C. to have been present, aiding and abetting, since they all are principals, and the blow is the blow of them all; but if two are charged as principals, and one appears to be only an accessory, he must be acquitted, for the legal offences in this case are different. If an averment is essentially descriptive of the substantial charge, it must be proved. Thus, on an indictment for stealing live turkeys, a prisoner cannot be convicted of stealing dead turkeys (8); and on an indictment for obtaining money or goods by false pretences, the pretence which really operated on the prosecutor's mind must be alleged in the indictment (t).

See further on this point, and also as to amendments in criminal cases, infra, Chapter IV.

(r) Mackalley's case, 9 Rep. 676.
(8) R. v. Edwards, R. & R. 497.
(t) R. v. Bulmer, L. & C. 476.

CHAPTER IV.

VARIANCES AND AMENDMENTS.

THE case proved must be substantially the same as that stated on the record.

When this rule is violated, the party on whom the burden of proof lies must submit to an adverse decision; for in such a case there is a variance between the matter alleged and the matter proved. Since, however, the operation of this rule was found to work great hardship in its original shape, several statutes have been passed within the last fifty years, by which, practically, almost unlimited powers of amendment have been given to the judges whenever they are of opinion that the justice of the case requires it.

Lord Tenterden's Act (a) first gave to judges a discretionary power of amending a record at trial only where there was a variance between the record and writings, or printed matter, adduced in evidence. It was followed by the 3 & 4 Will. 4, c. 42, which, after referring in the preamble to the previous act, extended the privilege of amending in civil cases by giving the judges power of amending where the variance is between the record and the proof, whether

(a) 9 Geo. 4, c. 15.

written or oral, of civil issues, or on quo warranto or mandamus, or in any contract, custom, prescription, name, or other matter, in any particular or particulars, in the judgment of the court not material to the merits of the case. Then came the Common Law Procedure Act of 1852, which, after reciting that "the power of amendment now vested in the courts and the judges thereof, is insufficient to enable them to prevent the failure of justice, by reason of mistakes and objection of form," enacted that " It shall be lawful for the Superior Courts of Common Law, and every judge thereof, and any judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend, or not; and all such amendments may be made without costs, and upon such terms as to the court or judge may seem fit; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties, shall be so made " (b).

A similar provision, in nearly the same words, is found in the Common Law Procedure Act, 1854, by which the superior courts and judges sitting at Nisi Prius are empowered "at all times to amend all defects and errors in any proceedings under the provisions of this act ;" and it is also directed that such amendments" as may be necessary for the purpose

(b) 15 & 16 Vict. c. 76, s. 222.

of determining, in the existing suit, the real question in controversy between the parties, shall be so made, if duly applied for" (c), and this provision is repeated in the Common Law Procedure Act, 1860 (d).

The rules of the Court of Chancery as to amendments of pleadings were shortly as follows:-The plaintiff might obtain an order as of course to amend his bill at any time before answer, without notice to the defendant. He might, also, within four weeks after answer, where there was but one, or after the last of the answers, if there were several, obtain one order of course to amend; but in all other cases, if he desired to amend his bill after answer, he must obtain a special order to amend by summons in chambers, the application being supported by affidavit. After the evidence was closed, no new allegation could be introduced or material fact put in evidence which was not so before. Sometimes the court, at the hearing, would order a cause to stand over, with liberty to the plaintiff to perfect his case by amendment, or would permit the prayer of the bill to be amended so as to be more consistent with the case as stated. A plaintiff was not permitted to take advantage of the order to amend to change his case entirely (e), nor to strike out any portion of the bill so as to occasion costs to the defendant, which could not be awarded to him at the hearing, under the penalty of being ordered to

(c) 17 & 18 Vict. c. 125, s. 96.

(d) 23 & 24 Vict. c. 126, s. 36.

(e) Smith v. Smith, G. Cooper, 141; cf. Allen v. Spring, 22 Beav. 615.

pay such costs when taxed. Nor could he, if he had no title to maintain the suit at the time he filed his bill, but acquired one subsequently, introduce such new title by amendment (ƒ).

An answer in Chancery being put in on oath would not be allowed to be amended unless under exceptional circumstances. The modern practice was to allow a supplemental answer to be put in. When there was a clerical error, or a mistake in a name, or a mistake as to fact, or when any important matter had come subsequently to the knowledge of the defendant, the answer has been allowed to be amended, or a supplemental one put in.

For the present practice as to amendments of pleadings we must look to Order 28 of the R. S. C. 1883, the first six rules of which Order are as follows:

Rule 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."

Rule 2. "The plaintiff may, without any leave, amend his statement of claim, whether indorsed on the writ or not, once at any time before the expiration of the time limited for reply, and before replying, or where no defence is delivered, at any time before

(f) Evans v. Bagshaw, L. R., 5 Ch. 340; 39 L. J., Ch. 145; 18 W. R. 657.

P.

LL