It

before the sheriff, the words "other presiding officer" putting it beyond doubt; and see also sect. 17 of the above act. must in strictness be made at the trial, and before verdict. (Brashier v. Jackson, 6 M. & W. 849.) If refused, the refusal cannot be reviewed by the court in banc as a matter of right, for it is discretionary. (Doe d. Poole v. Errington, 1 Ad. & El. 750.) The provisions in the former act as to imposing terms are, that where the variance amended is 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 the action, prosecution, or defence, it may 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, or by virtue of such writ as aforesaid, the order for 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 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 order as to them may seem fit."

It may be a question whether the words, "and as to the

Amendment after notice or plea of

mode of amendment, and proceedings consequent thereon, or as near thereto as the circumstances may admit," are large enough to authorize the special indorsement of the facts on the record, under the 24th section, which is generally believed can only be done where the amendment has been refused. (Fryer v. Roe, 18 L. T. 95.) Proceedings under that clause are, however, open to so many difficulties, that they are very rarely adopted. The judgment given according to the very right may be reviewed in a court of error. (See Chanter v. Leese, 6 M. & W. 699; Fryer v. Roe, 18 L. T. 95.) As to the liability of the person struck out for the previous costs, see supra, 109. Where the record is withdrawn in consequence of the amendment, the plaintiff would have to pay the costs of the day. (Skinner v. London and Brighton Railway, 19 L. J. 162, Exch.) The general words of this section might indeed enable the judge to order the amendment without costs, but this would hardly ever be done. The notice by which the application of this section may be prevented is limited to nonjoinder, therefore a misjoinder may, if the judge thinks fit, be remedied in every case. The power to give this notice does not deprive a defendant of the right of pleading the nonjoinder of a plaintiff in abatement in actions of tort or in contract, as where one or more co-executors or co-administrators is omitted. In either case the plaintiff will have the same power of amendment by section

36. "In case such notice be given, or any plea in abatement of nonjoinder of a person or persons as cononjoinder. plaintiff or co-plaintiffs, in cases where such plea in abatement may be pleaded, be pleaded by the defendant, the plaintiff shall be at liberty, without any order, to amend the writ and other proceedings before plea, by adding the name or names of the person or persons named in such notice or plea in abatement, and to proceed in the action without any further appearance, on payment of the costs of and occasioned by such amendment only, and in such case the defendant shall be at liberty to plead de novo."

It is to be observed, that the amendment is to be made at once without any order, so that the plaintiffs added would not be informed of what has been done; but this is not likely to give rise to any practical grievance, as it would unquestionably be the duty of the attorney for the original plaintiff to communicate it to them. As the amendment is made without any order, the first intimation the defendant would receive of it would be the delivery of the amended declaration. Formerly the rule was, that to an amendment before plea the defendant must have pleaded wi hin the same time as if it had not been amended, unless otherwise ordered; and after

plea in the Queen's Bench and Common Pleas, the defendant had ten days, exclusive of the day of amendment, to alter his plea, or pl ad de novo, unless otherwise ordered; but in the Exchequer the leave and time were specified in the order. (Smith v. Hearn, 12 M. & W. 715; Lush's Pract. 387.) The 90th section defines the time after the "amendment of any pleading," but it is not clear whether that would also extend to a case of amendment of the writ and the declaration. A new rule may determine this point.

of defendants may be

37. "It shall and may be lawful for the court or a Misjoinder judge in the case of a joinder of too many defendants in any action on contract, at any time before the trial of such cause, to order that the name or names of one or more of such defendants be struck out,

"if it shall appear to such court or judge that injustice will not be done by such amendment; and

"the amendment shall be made upon such terms as the court or judge, by whom such amendment is made, shall think proper; and

"in case it shall appear at the trial of any action on contract that there has been a misjoinder of defendants, such misjoinder may be amended, as a variance, at the trial, in like manner as the misjoinder of plaintiffs has been herein before directed to be amended, and upon such terms as the court or judge, or other presiding officer, by whom such amendment is made, shall think proper.'

amended be

for or at

trial.

As to the time and manner of amendment, see supra, 110. In Palmer v. Beale (9 Dowl. 529), after the record was withdrawn the name of one of two defendants was struck out on payment of all the costs of both the defendants, with liberty to the remaining defendant to plead de novo. In Jackson v. Nunn (4 Q. B. 209), where a similar amendment was made after the commission day, the defendants who were struck out had all their costs, but the remaining defendants the costs of the day only, in the first instance; but upon their paying money into court, and the plaintiff accepting it, they were allowed the costs of their former pleas and subsequent proceedings. (See also Crawfurd v. Cocks, 6 Exch. 287; 19 L. J. 169, Ex.) Plea in abatement for nonjoinder may still be pleaded, and Plea in as sect. 63 (supra, 58), is confined to pleas in bar, they must be pleaded as before, within four days, exclusively of the first and inclusively of the last day. (Ryland v. Wormald, 2 M. & W. 393.) But sects. 66 and 67 are general, so that a plea in abatement would seem not to require any formal conclusion, although a wrong conclusion made the plea bad and there was no occasion to demur to it specially. (Lloyd v. Williams, 2 M. & S. 484; Esdaile v. Lund, 12 M. & W. 613; Davies v.

abatement.

Upon plea in abatement for nonjoinder of defendants, proceedings may be amended.

Thomson, 14 M. & W. 161.) But the 3 & 4 Will. IV. c. 42, s. 8, will still apply, and a plea in abatement must state that all the co-contractors not joined are resident within the jurisdiction of the court (Joll v. Lord Curzon, 4 C. B. 283), and must be accompanied by an affidavit stating their places of residence; that is, the domicile or home of each. (Lambe v. Smythe, 15 M. & W. 433.) The statement of the place of business is insufficient. (Maybury v. Mudie, 17 L. J. 95, C. P.) The truth of the plea is triable on motion. (Ib.) A plea of coverture of the defendant, in an action on a deed, although a plea in abatement requiring an affidavit of verification, is not a plea of nonjoinder within 3 & 4 Will. IV. c. 42, s. 8, so as to require a statement of the residence. (Jones v. Smith, 3 M. & W. 526; Lovell v. Walker, 9 M. & W. 299.) The nonjoinder of an executor is matter for plea in abatement only, but the nonjoinder of an assignee may be raised by a traverse of the plaintiff's being assignee modo et formâ. (Jones v. Smith, 1 Exch. 831.) The plaintiff, upon a plea in abatement of nonjoinder of co-defendant, may enter a cassetur breve or join issue upon it, (see an instance Crellin v. Calvert, 14 M. & W. 11,) or continue the original action, under section

38. "In any action on contract where the nonjoinder of any person or persons as a co-defendant or co-defendants has been pleaded in abatement, the plaintiff shall be at liberty, without any order, to amend the writ of summons and the declaration, by adding the name or names of the person or persons named in such plea of abatement as joint contractors, and to serve the amended writ upon the person or persons so named in such plea in abatement, and to proceed against the original defendant or defendants, and the person or persons so named in such plea in abatement: provided that the date of such amendment shall, as between the person or persons so named in such plea in abatement and the plaintiff, be considered for all purposes as the commencement of the action.”

Cases might occur under the act in which the plea of Statute of Limitations would be saved to the added defendant, and it would seem to follow that such defence would also enure to the co-defendant, because in contract judgment must be against all or none. To avoid this result resort must be had to the old practice and issue joined on the plea, for by 9 Geo. IV. c. 14, s. 2, “if any defendant or defendants, in any action on any simple contract, shall plead any matter in abatement to the effect that any other person or persons ought to be jointly sued, and issue be joined on such plea, and it shall appear at the trial that the action could not, by reason of the said recited acts or this act [the Statute of Limitations], or of either of them, be maintained against the other person or persons named

in such plea, or any of them, the issue joined on such plea shall be found against the party pleading the same." The form of declaration in a new action after such plea, or an amendment under this section, is prescribed by section

claration

60. "In all cases in which, after a plea in abatement Commenceof the nonjoinder of another person as defendant, the ment of deplaintiff shall, without having proceeded to trial on an after plea of issue thereon, commence another action against the de- nonjoinder. fendant or defendants in the action in which such plea in abatement shall have been pleaded, and the person or persons named in such plea in abatement as joint contractors, or shall amend by adding the omitted defendant or defendants, the commencement of the declaration shall be in the following form, or to the like effect:

"[Venue.] A. B. by E. F., his attorney [or, in his own proper person, &c.], sues C. D. and G. H., which said C. D. has heretofore pleaded in abatement the nonjoinder of the said G. H. for,' &c."

fendants

ment.

39. "In all cases after such plea in abatement and Subsequent amendment, if it shall appear upon the trial of the action, proceedings that the person or persons so named in such plea in abate- against dement was or were jointly liable with the original de- named in a fendant or defendants, the original defendant or defend- plea in abateants shall be entitled as against the plaintiff to the costs of such plea in abatement and amendment; "but if at such trial it shall appear that the original defendant or any of the original defendants is or are liable, but that one or more of the persons named in such plea in abatement is or are not liable as a contracting party or parties, the plaintiff shall nevertheless be entitled to judgment against the other defendant or defendants who shall appear to be liable; and

every defendant who is not so liable shall have judgment, and shall be entitled to his costs as against the plaintiff, who shall be allowed the same, together with the costs of the plea in abatement and amendment, as costs in the cause against the original defendant or defendants who shall have so pleaded in abatement the nonjoinder of such person:

"provided that any such defendant who shall have so pleaded in abatement shall be at liberty on the trial to adduce evidence of the liability of the defendants named by him in such plea in abatement."

This section adopts the provisions in 2 & 3 Will. IV. c. 42, s. 101, as to the costs after plea in abatement, except that it