of law ; but in a recent case, Mr. Baron Alderson refused to hear counsel under such circumstances. "If," said he, "counsel be retained, he ought to appear in his proper place; and, though there are many precedents for counsel consenting to stand in such a position, the practice is highly objectionable." b SECTION II. AMENDING THE RECORD. In case of a between any matter in print or in writing variance and the re cital thereof on the record, the judge may record to be order the GREAT expense having been often incurred, and a delay and failure of justice having frequently taken place at trials by reason of variances between writings produced in evidence and the recital thereof upon the record, in matters not material to the merits of the case, which could not be amended at the trial; to remedy which, it was enacted by 9 Geo. IV. c. 15. "that it shall and may be lawful for every court of record, holding pleas in civil actions, any judge sitting at Nisi Prius, and any court of oyer and terminer, and general gaol delivery in England and Wales, the town of Berwick-upon-Tweed, and Ireland, if such court or judge shall see fit to do so, to cause the record on which any trial may be pending before any such judge or court, in any civil action, or in any indictment or information for any misdemeanour, when any variance shall appear between any amended. matter in writing or in print, produced in evidence, and the recital or setting forth thereof upon the record whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, on payment of such costs, if any, to the other party, as such judge or court shall think reasonable, and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at Nisi Prius, the order for the amendment shall be indorsed on the postea, and returned together with the record, and thereupon the papers, rolls, and other records of the court from which such record issued, shall be amended accordingly." a Shuttleworth v. Nicholson, 1 M. & Rob. 254. Moscatti v. Lawson, 1 M. & Under this statute it has been held, that where a judgment was stated on the record as in one court, and it appeared by the production of an examined copy to have been obtained in another, the judge at Nisi Prius might order the record to be amended. So where the date of a bill of exchange was misstated on the record b. So where a promissory note was declared upon as a bill of exchange c. So where there was a variance between a written contract and the statement of the contract on the pleadings d. So where in an action for not obeying a subpoena, the declaration stated that the plaintiff caused to be left with the defendant a copy of the writ of subpœna; the court held, that the judge at Nisi Prius was warranted in ordering it to be amended as follows: "a copy of so much of the said writ of subpoena as related to the said defendant." e But where in replevin the avowant stated that the distress was for rent in arrear, and that the plaintiff held the lands on certain terms, and on the plaintiff's lease being put in, it appeared that he held them on different terms; Parke, J., refused to amend, on the grounds that the statute applied only to cases where some particular instrument was professed to be set out or recited in the pleading. And where there was a variance which could not have occurred, if common care had been exercised in drawing the declaration, Lord Tenterden refused to amend 8. So where, in an action for a libel, the writing was lost, and parol evidence of its contents was given; it was held, that the judge had no power to amend a variance which appeared between the evidence and the libel, as set forth on the record; the statute being confined to such variances only as appeared between any matter in writing or in print produced in evidence, and the recital thereof in the record h. The operation of the above statute being, as we have seen, confined to variances between matter in writing or print produced in evidence, and the record, it was deemed expedient to extend its principle, by 3 & 4 W. IV. c. 42. s. 23, whereby, after reciting the inconvenience which was produced by the power of amending the record at trial being so limited, it was enacted, "that it shall be lawful for any court of record, holding plea in civil actions, and any judge sitting at Nisi Prius, if such court or judge shall see fit so to do, to cause the record, writ, or document, on which any trial may be pending before any such court or judge, in any civil action, or in any information in the nature of a quo warranto, or proceedings on a mandamus, when any variance shall appear between the proof and the recital or setting forth, on the record, writ, or document on which the trial is proceeding, of any contract, custom, prescription, name, or other matter, in any particular or particulars in the judgment of such court or judge not material to the merits of the case, and by which the opposite party cannot have been prejudiced in the conduct of his action, prosecution, or defence, to be forthwith amended by some officer of the court or otherwise, both in the part of the pleadings where such variance occurs, and in every other part of the pleadings which it may become necessary to amend, on such terms as to payment of costs to the other party, or postponing the trial to be had before the same or another jury, or both payment of costs and postponement, as such court or judge shall think reasonable; and in case such variance shall be in some particular or particulars in the judgment of such court or judge not material to the merits of the case, but such as that the opposite party may have been prejudiced thereby in the conduct of his action, prosecution, or defence, then such court or judge shall have power to cause the same to be amended upon payment of costs to the other party, and withdrawing the record or postponing the trial as aforesaid, as such court or judge shall think reasonable; and after any such amendment the trial shall proceed, in case the same shall be proceeded with, in the same manner in all respects, both with respect to the liability of witnesses to be indicted for perjury, and otherwise, as if no such variance had appeared; and in case such trial shall be had at Nisi Prius Decisions under the preceding act. or by virtue of such writ as aforesaid, the order for the amendment shall be indorsed on the postea or the writ, as the case may be, and returned together with the record or writ, and thereupon such papers, rolls, and other records of the court from which such record or writ issued, as it may be necessary to amend, shall be amended accordingly; and in case the trial shall be had in any court of record, then the order for amendment shall be entered on the roll or other document upon which the trial shall be had; provided that it shall be lawful for any one party who is dissatisfied with the decision of such judge at Nisi Prius, sheriff, or other officer, respecting his allowance of any such amendment, to apply to the court from which such record or writ issued for a new trial upon that ground, and in case any such court shall think such amendment improper, a new trial shall be granted accordingly, on such terms as the court shall think fit, or the court shall make such other order as to them may seem meet." A judge at Nisi Prius will now in general amend any variance which does not go at all to affect the matter really in dispute between the parties, and which is not likely to mislead the opposite party a. Where a general warranty of the soundness of a horse was declared on, and a warranty "except in one foot," was proved, the judge allowed the declaration to be amended, the real dispute between the parties being, whether the horse was a roarer b. So where, in trespass for breaking the plaintiff's close, called Clover Hill, the real name of the close appeared to be Clover Moor; the judge ordered the record to be amended by inserting the word Moor instead of Hill. So where a contract, by which 4. guaranteed to B. the amount of a debt, to be contracted with B. by C., was described in pleading as a promise to pay the debt to be so contracted, the court sanctioned an amendment ordered at Nisi Prius, by substituting "guarantie" for "pay."d So in case for a fraudulent misrepresentation on the warranty of a horse, an amendment of the misrepresentation charged may be made ; and when a record is taken down to trial without any issue having been joined by the addition of a similiter, the defect may be cured by adding the similiter at the trial. So where the time of suing out the writ was not stated in the record; the court held, that the judge was warranted in allowing an amendment, by annexing the writ to the Nisi Prius record c. But where in trespass for taking "mirrors and handkerchiefs," the defendant justified the taking of the mirrors, but, by mistake, omitted to justify the taking of the handkerchiefs; held, that this omission could not be amended on the trial. So if several defendants are sued in debt, and there be not evidence to fix them all, the judge will not allow the declaration to be amended by striking out the names of those whom the evidence does not affect e. So, in an action for a libel, the judge will not order superfluous averments and inuendoes to be struck out at the instance of the plaintiff', In ejectment, an amendment has been made under the statute in the name of the parish, even though the action was brought for a forfeitures. But where the declaration in ejectment was f Prudhomme v. Fraser, 1 M. & Rob. 435. Doe d. Marriott r. Edwards, 6 C. & P. 208. 1 M. & Rob. 319. A declaration in ejectment has been amended, even after judgment and writ of error brought, by leaving out the word "tenement." Doe d. Lawrie v. Dyball, 1 M. & R. 330. 8 B. & C. 70. So by adding a count on another demise even after three terms had elapsed, and the roll had been made up and carried in. Doe d. Beaumont r. Armitage, 1 D. & R. 173. So in the time of the demise to prevent being barred; as where the day of the demise was laid before the title accrued. Doe d. Rumford r. Miller, 1 Ch. 536. Doe d. Hardinan v. Pilkington, 4 Burr. 2447. So by laying the demise anterior to the time of forfeiture, even after the cause was set down for trial. Doe d. Rumford v. Miller, Adams, Eject. 199. But an amendment was refused by altering it to a day subsequent to the delivery of the declaration. Doe d. Foxlow v. Jefferies, Id. 200. If the term demised to the plaintiff be likely to expire before trial, the court will at any time before trial enlarge it, upon payment of costs. Thus, it was in one case enlarged after it had expired, twelve years, |