coram nobis or coram vobis, and though this is the most tedious and expensive process, it prevents the court from imposing terms. (1) The writ of error lies for matter of law apparent on the record, or for matter of fact not so apparent. (2) The provisions of the Common Law Procedure Act, 1852, as to error, (3) do not apply to proceedings in outlawry, so that a writ of error is still necessary.(*)

A party must appear in person to reverse outlawry, though it is a mere irregularity, and not matter of demurrer, to assign error by attorney.(3) The rule to reverse, on the ground of the defendant being abroad at the time, is absolute in the first instance.(*) And where, on a traverse of the assignment, the plaintiff in error had succeeded, he was held entitled to a rule absolute in the first instance on producing the record and postea.(') When the judgment is reversed, the Master signs a supersedeas, which is entered on the record.

By application to the court or a judge.]-The most usual course is to apply to the court or a judge to reverse the outlawry, which will be done in most cases at the discretion of the court, and on equitable terms, whether there is error on the record or not, on the suggestion of any solid ground, as where the defendant was in prison or abroad when the exigent was awarded. (5) Sometimes the court will refuse to interfere, and leave the defendant to his writ of error, if he will not submit to terms, () or if it is a second application which is made without any fresh materials, (10) or if the ground is irregularity, and he has allowed too long a time to elapse before the application.(") A third party cannot take

(1) Ibid.; Ibbotson v. Fenton, 1 N. & P. 782; 6 A. & E. 772. See Craig v. Levy, 1 Exch. 570.

(2) See Bryant v. Wagstaffe, 5 B. & C. 314; Richardson v. Robinson, 5 Taunt. 309; Serecold v. Hampsey, 12 East, 625.

(3) Sect. 156; see ante.

(4) Arding v. Homer, 5 May, 1856, Exch.; 25 L. J. 261; Solomon v. Graham, 5 E. & B. 309.

(5) Solomon v. Graham, 5 E. & B. 309.

(6) Harding v. Holmes, 11 June, 1856, Exch.; but see Howard v. Kershaw, 6 Exch. 541.

(') Beavan v. Cox, 9 C. B. 579; 8 C. B. 334.

() Houlditch v. Swinfen, 3 Sc. 170; 5 Dowl. 37; Levy v. Claggett, 1 M. & W. 547; Beauchamp v. Tomkins, 3 Taunt. 141. (9) Sandford v. Wyatt, 2 Dowi. N. S. 2.

(16) Stulz v. Wyatt, 6 Q. B. 666.

(1) Anderdon v. Alexander, 2 Dowl. 267; Lewis v. Davison, 3 Dowl. 272.

advantage of any irregularity in the proceedings. (1) And if another party make the application, he must clearly set forth in the affidavit that he applies on behalf of the outlaw. (2) The usual terms imposed by the court are payment of the debt and costs up to judgment of outlawry;(3) but the court will not only impose no terms where the plaintiff has abused the process of the court, but may compel the latter to pay the costs of the application.() If an insolvent is kept in custody unnecessarily, a conditional order for setting aside the outlawry will be made. (5) Where an insolvent was discharged by the Insolvent Court from the debt and costs on which the outlawry was founded, the court made a rule absolute for setting aside the judgment of outlawry, on the defendant's undertaking to execute, if required, an assignment of all property, and paying the costs of the application to set aside.(*)

The costs of the outlawry and reversal must in general be paid by the outlaw,(7) though the plaintiff has been ordered to reverse the outlawry at his own expense, where his conduct has been oppressive (5) or negligent.(®) If the proceedings are set aside for an irregularity for which error will not lie, the outlaw will not be made to pay the costs. (1) The_rule, if discharged, is generally discharged with costs.(") If the rule or order is drawn up on payment of costs, the costs must be taxed and paid before the outlawry can be reversed. A rule to set aside proceedings for irregularity was discharged with costs on a technical objection. The irregularity being admitted, the defendant,

(1) Symonds v. Parmiter, 1 W. Bl. 20; Solly v. Forbes, 2 Moore, 90.

(2) Houlditch v. Swinfen, 5 Dowl. 36; 2 Bing. N. C. 712; Skinner v. Carter, 15 C. B. 472.

(3) Ibbotson v. Fenton, 6 A. & E. 772; Boddington v. DeMelfort, 22 L. J. 245, Exch.; 8 Exch. 671.

(*) Pigou v. Drummond, 1 Bing. N. C. 354; Hunter v. Whitfield, 3 Bing. N. C. 878.

(5) Nicholson v. Nicholls, 3 Dowl. 326. See Dickson v. Baker, 3 N. & M. 775; 1 A. & E. 853.

(6) Baskerville v. Spry, 5 May, 1856, Q. B.; 25 L. J. 334.

() Bank of England v. Reid, 7 M. & W. 152; Graham v. Grill, 1 M. & Sel. 409; Graham v. Henry, 1 B. & Ald. 131.

(*) James v. Jenkins, 9 Moore, 589; Adlame v. Colebatch, 2 Salk. 495.

(9) Roger v. Cook, 3 B. & C. 529; Seabrook v. Howkin, T. Jon. 211; Hill v. Wilkes, 12 Mod. 413.

(16) Hunter v. Whitfield, 3 Bing. N. C. 878.

(11) Houlditch v. Swinfen, 3 Bing. N. C. 712; 5 Dowl. 36.

though he had not paid the costs of the former motion, was allowed to make a second application for the same purpose, but only on payment of the costs of the second rule.(') The outlaw, if in custody on a capias utlagatum, must sue out a supersedeas; or if his property has been sold and the proceeds are in court, he may obtain the same by a writ of amoveas manus.(2)

When the order or rule is obtained the proceedings must be entered on the roll, and the officer of the court will docket the same and enter the reversal thereon, and also mark the reversal in his book. The roll is then filed at the office of the court.

(1) Skinner v. Carter, 16 C. B. 548.

(2) See Frost's case, 5 Rep. 90; Eyre v. Woodfine, Cro. Eliz. 278; Pinfold v. Northey, 2 Lev. 49. See Tidd's Forms, Chitty's Forms.

1. Generally.

CHAPTER XLI.

AMENDMENT.

2. Amendment before trial.

3. At the trial.

4. After the trial.

5. In case of misjoinder or nonjoinder of parties.

6. When amendment applied for. 7. How obtained.

8. Terms imposed and costs.

1. Generally.]-The courts have, at common law, a discretionary power to amend the proceedings in an action up to judgment.(1) Several old statutes also give power to the court to amend any mistake owing to the misprision of the officers of court, in writing one syllable or letter too much or too little, (2) after as well as before judgment,(3) though not as regards proceedings in outlawry. Mistakes and defects in pleadings, which otherwise might have been taken advantage of on demurrer, are often cured by the verdict, as where the facts set forth in the defective pleading were necessarily proved at the trial of the issue, or must be presumed to have been so. So defects are often cured by the acts of the opposite party, as by his admitting that which was defectively stated through pleading over. () Also the mistakes and omissions in pleadings, misjoining of issue, miscontinuance and discontinuance are aided after verdict

(1) See Alder v. Chip, 5 Burr, 756; 3 Bl. Com. 407; Co. Lit. 260; R. v. Bishop of Llandaff, 1 Str. 1011.

(2) 14 Edw. 3, c. 5, s. 1; 8 Co. 157 a.

(3) 4 Hen. 6, c. 3. See also 8 Hen. 6, cc. 12, 15; Cheese v. Scales, 10 M. & W. 488; 2 Dowl. N. S. 438.

by the statutes of jeofails, () and after judgment by confession by the statute 4 & 5 Anne, c. 16, s. 2. Also all defects in writs original or judicial are aided after verdict by 5 Geo. 1, c. 13. These statutes however, except 32 Hen. 8, c. 30, do not extend to penal actions.(*) Where these statutes apply, the court treats the amendment as virtually, though it is not actually, made;(3) and, therefore, if error is brought for the defect so cured, the plaintiff in error will get no costs.(*)

More ample powers of amendment were given to the courts and the judges by the Common Law Procedure Acts, 1852, 1854. By the latter act "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 proceedings under the provisions of this act, whether there is anything in writing to amend by or not; and all such amendments may be made with or 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, if duly applied for."(5) The provision in the Common Law Procedure Act, 1852, s. 222, is identical in terms, and applies to " any proceeding in civil causes," the words, "if duly applied for" at the end of the above section being omitted in that act. These sections only authorize such amendments as are necessary for determining the real question in controversy, i. e. the real question which the parties intended to have tried, not any question which may come in controversy in the course of the trial, and which was not in controversy before. (*)

2. Amendment before trial.]-The cases in which the court will amend the various proceedings up to trial are stated under the respective titles of this work. It is enough to notice here the decisions of the court since the Common

(1) 32 Hen. 8, c. 30; 18 Eliz. c. 14; 24 Jac. 1, c. 13; 16 & 17 Car. 2, c. 8.

(2) Wynne v. Middleton, 2 Str. 1227; Richards v. Brown, 1 Doug. 115; Atcheson v. Everett, Cowp. 382; R. v. Miden, 1 Str.

62.

(3) 3 Bl. Com. 407.

(*) Condon v. Coulter, Hardr. 314.

(5) C. L. P. Act, 1854, s. 96.

() Wilkin v. Reed, 15 C. B. 192.