Or in the formı of action; Or a misnomer; If a defendant be arrested as Elizabeth, but put in and justified bail as Betsy, the bailpiece may be amended on pay ment of costs, So in an action against five defendants the affidavit to hold to bail named the whole; one was arrested, and the others served with 5. FLAGEL V. VAN THIENEN. M. T. 1732. C. P. Prac. Reg. 15. On an application for leave to amend a recognizance of bail, it appeared that the defendant had been sued for an assault, and that a judge's order for bail had been granted; but in taking the recog nizance the filacer had taken it in assumpsit; application was made for leave to alter it to trespass and assault. The Court ordered the recognizance to be amended. 6. ANDERSON V. NOAH. E. T. 1797. C. P. 1 B. & P. 31. When the bail in this case came up to justify, it was objected that there was no bail in the action before the Court, as the defendant had been arrested by the name of Noah, and bail had been put in by the name of Noel. Per Cur. Let the bail-piece be amended. 7. CROFT V. COGGS. M. T. 1819. C. P. 4 Moore. 65. The defendant was arrested in the name of Elizabeth ; but put in and justified bail in the name of Betsy. A rule nisi had been obtained to amend the bail-piece by inserting the name of Elizabeth instead of Betsy. Per Cur. The amendment may be granted on payment of the costs of the irregularity, and a re-acknowledgment by the bail. See 1 B. & P. 31; 5 Taunt. 814; 1 Barnard. 214; 3 Price. 36; MSS. East. 1814. cited 1 Archbold's Practice, 81. 8. CHRISTIE V. WALKER AND FOUR OTHERS. E. T. 1823. C. P. 1 Bing. 206. The affidavit to hold to bail in this case named all the five defendants. Bailable process was issued against Walker alone, and a serviceable capias was afterwards issued against the other four defendants, in which Walker was not noticed. The bail-piece named Walker only. process. A bail- The declaration was against all five. The Court had formerly piece was taken refused to enter an exoneretur on the bail-piece on the ground of a variance between the process and the declaration. A rule nisi was now obtained to amend the bail recognizance by an insertion of the rested was alone names of the other four defendants. in which the defendant who had been ar named. After all five, an Per Cur. The only object of process being to bring defendants declaring against into court; and the affidavit to hold to bail sufficiently disclosing the amendment of plaintiff's intention to sue all the five defendants, the variance in the the recognizance former must not prejudice. Let the rule be made absolute, and the was allowed by amendment required granted to the plaintiff.—Rule absolute. an insertion of the names of the other four. Or a recognizance of bail to prevent a variance from the 9. MANN V. CALOW. E. T. 1808. K. B. 1 Taunt. 221. The declaration on a scire facias against bail, alleged the obligation of the recognizance to be "that the bail should satisfy the debt * Vide post, tit. Bail. and damages," supposing that it had been in the usual form; upon record on a plea of nul tiel record, the recognizance appeared to be " for payment scire facias if it be a misprision of the damages." A rule nisi was now obtained to amend the entry of the clerk. of the recognizance, by an insertion of the words "the debt and,' before the word " damages." Per Cur. The entry in the filacer's book is this, " A. B. and C. D. were added as bail in this cause, and justified in open court in 3541. each, and were allowed." When proceedings came to be instituted against the present defendants, the officer, by reference to the writ, and from this memorandum, made out the formal parts of the recognizance. It is a mere misprision of the clerk, which cannot be allowed to deprive the plaintiff of his remedy.-Rule absolute, with liberty to the defendants to plead de novo. See 8 H. 6. c. 15; 2 B. & P. 375; 3 id. 321; 2 N. R. 103; 1 Str. 401; 2 id. 1165; 1 H. Bl. 49; 3 T. R. 659. 10. HALLIDAY V. FITZPATRICK. E. T. 1813. C. P. 4 Taunt. 875. The officer, on entering the recognizance of bail, had misnamed the Or other clerical plaintiff in the suit. A motion was made on behalf of the bail to error with the amend the recognizance by inserting the right name. The application was opposed; but the Court made the rule absolute, observing that the record was not the contract of the bail, but only the record of the contract. 11. MAGRATH V. CONNING. E. T. 1737. C. P. Prac. Reg. 15. It was moved that the bail-piece might be amended by instructions for the writ. Rule to show cause made absolute. 12. VENN V. WARNER. M. T. 1810. C. P. 3 Taunt. 263. consent of the bail. The bail-piece is amendable by the the instructions for the writ. A rule nisi had been obtained to amend the recognizance and the But if bail subsequent proceedings by substituting the plaintiff's name of call the plaintiff "Daniel" for "Christian." It appeared that the plaintiff in the by a wrong commencement of this action was called by his true name; but both name in the recognizance in giving bail to the sheriff, and in putting in bail above, the through mistake, defendant had called him "Christian." The plaintiff sued in the the recognizance name of Daniel in an action against the bail. Plea. Nul tiel record. will not be amended upon nul tiel record pleaded to an Per Cur. The bail say that they acknowledge themselves to be indebted to Christian, not to Daniel. An affidavit has been made action brought repelling any charge that the bail had designedly made the misnomer by the plaintiff with a view of eluding the responsibility incident to his character against the bail. as bail. Judgment must be therefore given for the defendants. See 13 East. 273; 1 B. & B. 48; 2 Moore. 305; 1 Bing. 206. 13. So a misnomer · BINGHAM AND OTHERS, ASSIGNEES OF TABART, v. DICKIE. M. T. in the bail-piece 1814. C. P. 5 Taunt. 814. A rule nisi had been obtained to amend the bail-piece by changing "Tarbart" to "Tabart." This application was made by the plain will not be amended unless by consent of the bail. But where the officer mis of the recog nizance, the tiffs in an action on the bail bond. The bail refused to consent to the amendment; but having pleaded conperuit ad diem, instead of non est factum, judgment passed against them. 14. HALLIDAY AND ANOTHER V. FITZPATRICK. E. T. 1813. C. P. 4 Taunt. 875. Bail were put in and appeared to justify at the suit of J. H.; but the officer by a misprision incorrectly named the plaintiff C. H. in named the plain- the entry of the recognizance. The defendant surrendered. A rule tiffs in his entry nisi had been obtained to amend the committitur and the bail-piece, by changing the name of C. H. to J. H. and to stay proceedings against the bail. Per Cur. The record is not the contract. It is only the record of the contract. It may be therefore amended. Besides, it does not prejudice the liability of the bail; on the contrary they could aver nothing against the record after the amendment.-Rule absolute. error was amended at the instance of the bail. And where a a testatum capias had been issued into a county palatine, the defendant 15. HARTLEY V. HODSON. M. T. 1817. C. P. 1 Moore. 514. A bailable, and not a testatum capias, had in this case issued into bailable and not the county palatine of Durham. The defendant put in bail as upon a testatum writ. The declaration was delivered in the original action in which the venue was laid in Lincolnshire. A declaration on the recognizance was afterwards delivered, to which the defendant pleaded. A rule nisi had been obtained that the entry of the had put in bail recognizance should be made conformable to the facts, and that in as upon a testa- the mean time all further proceedings should be staid. The objections ration had been urged were, that the recognizance of bail was wrongly entitled in delivered and the London; the venue in the original action being laid in Lincolnshire, and the final judgment being also obtained in that county; that an original capias could not, as in this case, issue into Durham; that no recognizance of bail had been made when the defendant pleaded, nor until the judgment signed in this action had been set aside, and that no capias ad satisfaciendum had been duly and properly returned. tum. A decla venue laid in Lincolnshire. A recognizance of bail had been entered into in Middlesex, and a declaration thereon deli vered. On a motion to amend Per Cur. It is unnecessary to determine whether these irregularities could have been taken advantage of, in the first instance, if the defendant had moved to have been discharged, or to have had the the entry of the process set aside. The present application cannot be supported after recognizance it the defendant has submitted to the arrest, and got the bail allowed was held that the as upon a testatum capias. These informalities have been entirely waved by the subsequent conduct of the defendant. Considering, therefore, that the bail are bound to look to their principal on the ground of the length of time that has elapsed since the defendant's liability accrued; and taking into consideration the whole facts of the present question, we must discharge the rule, leaving the party to his ordinary remedy, whatever it may be. Such writs ought not, however, to issue into county palatines in future.-Rule discharged. defendant had waved any irregularity, and the Court refused to interfere. See 5 Burr. 2586; 1 Str. 1089; 6 T. R. 71; 5 East. 462; Rule of Court, 22 Geo. 3. Hilary Term. (E) OF THE DECLARATION. 1st. WITH REFERENCE TO THE NATURE OF THE AMENDMENT. (a) In the title. 1. EARLE V. ANDREWS. E. T. 1687. K. B. Comb. 86. S. P. BAUMONT v. COSIN. T. T. 1745. C. P. Barnes. 17. Per Cur. If a declaration be delivered in Hilary Term as of The title of the Michaelmas, and no plea put in, he may amend his declaration, or give a new declaration of Easter Term. See 7 T. R. 474; 2 Stra. 1271; 1 Wils. 78; 2 id. 256; 1 Chit. Pl. 264. 3d ed.; 1 Tidd. 434. 6th ed.; 1 Arch. Prac. K. B. 235. } 2. WYATT, qui tam, v. EYLAND. T. T. 1701. K. B. 2 Ld. Raym. 977. S. P. ANONYMOUS. M. T. 1749. C. P. 1 Wils. 256. declaration is amendable. statute. In an action for usury, the memorandum was general of the first Even in an acday of the term; but bail was not put in till the middle of the term ; tion on a penal and the Court gave leave to the plaintiff to insert a special memorandum, for the defendant is not in court till bail is filed; and this is only to make the entry according to the truth which appears on record; and the Court said it was an amendment at the common law, and not on the statutes. See Stra, 583. 3. WOODROFFE, qui tam, v. WILLIAMS. H. T. 1815. 6 Taunt. 19. 1 Marsh. 419. S. C. be amended so A rule nisi had been obtained to amend the title of the declaration But in a penal in an action on the statute of usury, so as to bring the title of the action it will not declaration within 12 months after the commission of the offence. as to enable Per Cur. We cannot permit the amendment. No sufficient plaintiff to bring ground has been shown to induce us to concede to the application. bis action within The plaintiff alleges as a reason for doing it, that it would let him the time limited into a case from which he will be excluded if the declaration remains by statute for its as it now stands. The plaintiff however must connect the writ with prosecution. the declaration if he can; the Court will not assist him.-Rule discharged. 4. COUTANCHE V. Le Ruez. H. T. 1800. K. B. 1 East. 133; S. P. SYMOND V. PARMENTER. T. T. 1744. K. B. 1 Wils. 78. order to accord with an aver The writ in this case had been originally issued against the pre- The title of a sent defendant and another, the latter of whom had been out- declaration will lawed, the outlawry was completed on the fourth return of be amended in Easter term. The declaration against the defendant contained the usual averment that the other parties were outlawed, but was ment therein entitled generally of the same term. The defendant pleaded, inter that other dealia, nul tiel record of outlawry, on which issue was joined. A fendant's named day was given to the plaintiff to bring in the record, when, in in the writ were order to avoid being concluded by the production of the judgment of then outlawed. And the Court will compel the plaintiff to en title his declara tion specially when the general title would de. prive the defendant of his defence. The venue may outlawry which appeared to be of a day subsequent to the first day Per Cur. As the day on which the declaration was delivered now appears to be material, which did not probably appear when it was first drawn and entitled, the rule must be made absolute.-Rule absolute. See 1 Wils. 78; 3 T. R. 624; 7 id. 474. 703. 5. 5. SMITH V. KEY. M. T. 1725. K. B. 1 Stra. 638. S. P. THOMPSON THE EARL OF HALIFAX. M. T. 1764. C. P. 2 Wils. 256. 141. In an action on a quantum meruit the defendant pleaded a tender on the 4th of May ante diem exhibitionis billæ; the plaintiff replied, non obtulit ante diem, &c.; and, to oust the defendant of the benefit of the plea, made up the book with a general memorandum that would refer to the first day of term, which was before the 4th May. A motion was made, on an affidavit that the tender was upon the 4th, and no writ taken out till the 6th of May, that the plaintiff might be obliged to make his memorandum special, according to the truth of the fact; and after a rule to show cause, the same was ordered. Vide post, title Declaration, 4 Esp. 73-4; 1 Chit. Pl. 264. 3d ed. (b) In the venue. 1. STROUD V. TILLY. H. T. 1752. K. B. 2 Stra. 1162. Per Cur. Though a plaintiff cannot regularly move to change be amended by the venue, yet he may in effect do it by moving to amend; and it substituting one was allowed in this case by striking out Dorsetshire, and inserting county for anMiddlesex. other. Even after the defendant has changed it on the common affidavit ; Or in penal actions; Vide post tit. Venue. 2. RIVET ET AL. V. CHOLMONDELEY ET AL. H. T. 1743. K. B. 2 Stra. 1202. On the authority of the preceding case, the Court suffered the plaintiff to amend the venue, after the defendant had previously changed it on the common affidavit. 3. GRIFFITH V. HOLLIER. 1756. K. B. Sayer. 294; S. C. Kenyon. 368. In an action on a penal statute called the Road Act, for a penalty, an application was made for leave to change the venue by substituting the county of Warwick for Gloucester. Per Cur. At common law there is no difference between popular and other actions, the proceedings being on paper; consequently the rule for the amendment must be absolute. |