at any time, and on such terms as to costs or otherwise as the court or judge may think just, amend any defect or error in any proceedings, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceedings." An amendment may be allowed at the trial, so as to raise a new case requiring fresh evidence. Budding v. Murdoch, 1 Ch. D. 42; King v. Corke, Id. 57. See also Roe v. Davies, 2 Ch. D. 729. The provisions of the C. L. P. Acts, 1852, s. 222; 1854, s. 96; and 1860, s. 36, which are still in force are expressed in very similar terms. Under those sections many of the cases collected below were decided.

All amendments ought to be made that are necessary and proper, for the object of the rules is to meet cases in which, by mistake or oversight, the real matter in issue is not raised by the pleadings, and under it the matter may be put on the record which was not on it before, if it be shown to the satisfaction of the judge to be the existing matter in controversy. What that matter in controversy may be is a matter of fact to be determined by the judge upon the evidence and pleadings before him. See Maule, J., in Wilkin v. Reed, 15 C. B. 192; 23 L. J., C. P. 193 ; Blake v. Done, 7 H. & N. 465; 31 L. J., Ex. 100. It seems that leave to amend should always be given unless the judge is satisfied that the party applying is acting malâ fide, or that by his blunder he has done some injury to his opponent which cannot be compensated for by costs or otherwise. Tildesley v. Harper, 10 Ch. D. 393, 396, 397, per Bramwell, L. J. See also Laird v. Briggs, 19 Ch. D. 22, C. Á. Án amendment should not be allowed for the purpose of trying a question which has arisen at the trial, but is not that which the parties came to try. Wilkin v. Reed, supra; Lucas v. Tarleton, 3 H. & N. 116; 27 L. J., Ex. 246 ; Ritchie v. Van Gelder, 9 Exch. 762 ; Ellis v. Manchester Carriage Co., 2 C. P. D. 13. Thus, where the action was for fraudulently misrepresenting to the plaintiff the cause for which the defendant had discharged a servant from his service, and it turned out at the trial that the defendant had improperly suppressed the fact of the servant's dishonesty, but had truly stated the cause of his discharge, it was held that, as this suppression was not in fact the ground of the plaintiff's complaint, but only the supposed misrepresentation, which was negatived, the judge had rightly refused to amend by substituting a charge of fraudulent suppression. Wilkin v. Reed, supra. No amendment will be allowed so as to prejudice the other party. The plaintiff ought at first to state his cause of action, if there was one truly and in substance according to the facts, in order that the defendant may know whether he should object to their sufficiency in point of law, admitting the facts, or, denying them, go to trial. It would be better that there should be no trial at all, than that a plaintiff should be allowed to state one cause of action, and then, on any difficulty arising as to his maintaining it on the evidence, to amend so as to raise another and different cause of action. It would be far better to require no pleadings at all, than to allow pleadings which could only operate as a snare. Bradworth v. Foshaw, 10 W. R. 760, Ex. T. T. 1862, per cur. See also Riley v. Baxendale, 30 L. J., Ex. 87, 88, per Martin, B.; Newby v. Sharpe, 8 Ch. D. 39, C. A.; New Zealand dc., Co. v. Watson, 7 Q. B. D. 374, 382.

In some cases the nature of the action may be a ground for refusing an amendment; as where it was founded on an agreement to commit a fraud on a foreign state. Brennan v. Howard, 1 H. & N. 138. On this motive for refusal, however, there is a difference of opinion on the bench; see Hughes v. Bury, 1 F. & F. 374, per Crowder, J. Where a tenant in common brought an action of trespass and trover against his co-tenant for cutting and carrying away the whole produce of the common property, and the action was held not maintainable, the court refused to mould the action into one

Amendment at Nisi Prius.

271 of account, on the ground that such an action was so distinct from the one stated in the declaration, that the amendment would not do justice between the parties. Jacobs v. Seward, L. R., 4 C. P. 328; L. R., 5 H. L. 464. If the amendment is to insert in the breach a claim on which the plaintiff can recover only nominal damages, and in respect of which defendant would probably not have defended the action, the judge will be justified in refusing it. Times Insurance Co. v. Hawke, 28 L. J., Ex. 317. See also Spoor v. Green, L. R., 9 Ex. 99. Where the amendment would evade the real question in controversy, it should be refused. Thus, where the plaintiff claimed a larger easement than he proved at the trial, the judge would not allow him to limit it by amendment, if in fact the larger claim was the one really claimed and asserted by plaintiff and resisted by defendant. Cawkwell v. Russell, 26 L. J., Ex. 34.

A

A variance between the statement of claim and a record, on the denial of the latter is amendable. Noble v. Chapman, 14 C. B. 400; 23 L. J., C. P. 56; Hunter v. Emanuel, 15 C. B. 290; 24 L. J., C. P. 16. The judge may, if he thinks fit, add a claim at Nisi Prius. Taylor v. Shaw, 1 Com. Law Rep. 1057; Robinson v. Davison, L. R., 6 Ex. 269, 270; Wilby v. Elgee, L. R., 10 C. P. 497. So in Isaacs v. Pickard, 1 F. & F. 672, where a count for not accepting a bill of exchange was added to one for goods sold, and the defendant made to plead to it instanter, with leave to plead several pleas. plea of payment into court has been allowed to a count added at the trial. Robson v. Turnbull, 1 F. & F. 365. In an action against the directors of a building society who had signed a loan note on behalf of the society, brought for the money lent, a count alleging breach of warranty of authority in the directors to borrow money for the society was added. Richardson v. Williamson, L. R., 6 Q. B. 276. See also Mountstephen v. Lakeman, L. R., 5 Q. B. 613, 614; L. R., 7 H. L. 17.

An injury to the possession may be altered to an injury to the reversion. May v. Footner, 5 E. & B. 505; 25 L. J., Q. B. 32. In a count for falsely representing the value of defendant's business at 100l. per month, the judge inserted the words "over the counter," that being the real question to be tried. Roles v. Davis, 4 H. & N. 484; 28 L. J., Ex. 287. In an action on a mortgage-deed, a claim for interest was inserted at Nisi Prius, and was again struck out on an application to re-amend at the same trial; and the court, on motion, refused to interfere with the judge's discretion. Morgan v. Pike, 14 C. B. 473; 23 L. J., C. P. 64. In an action to recover instalments of an annuity, an amendment of the claim to the declaration was allowed so as to include a later instalment due before action. Knowlman v. Bluett, L. R., 9 Ex. 1. But in an action which had slept for some years, and which had been revived against the executors of the defendant, leave to amend the claim and particulars by increasing the amount sought to be recovered, adding items which would be barred by the Statute of Limitations, was refused. Pearce v. Preston, 11 W. R. 35, Q. B., M. T. 1862. An amendment of the statement of claim may be allowed in an action of libel, on the ground of variance with the libel proved. Rainy v. Bravo, L. R., 4 P. C. 287.

In like manner the statement of defence may be amended at the trial, in order to meet the facts proved at it. Mitchell v. Crasweller, 13 C. B. 237 ; 22 L. J., C. P. 100. A plea of payment was added to other pleas in an action on a guarantee, in Laurie v. Scholefield, L. R., 4 C. P. 622. In an action for wrongful dismissal of the manager of plaintiff's business, a defence by reason of plaintiff's dismissal for misconduct was added on the trial by Cresswell, J., though no misconduct was alleged in the other pleas. Hobson v. Cowley, 27 L. J., Ex. 205. In an action for false imprisonment the defendant was allowed to amend the grounds of suspicion alleged in his

plea of justification. Hailes v. Marks, 7 H. & N. 56; 30 L. J., Ex. 389. A plea of "not guilty by statute" was amended by inserting the proper statutes in the margin. Edwards v. Hodges, 15 C. B. 477; 24 L. J., M. C. 81.

It seems that the time to apply for an amendment by either party is at the close of his case. See Rainy v. Bravo, L. R., 4 P. C. 287, 298. It is not unusual for amendments to be made at the trial without imposing any condition of payment of costs, or of giving further time.

In Tennyson v. O'Brien, 5 E. & B. 497, on a contract for delivery of goods by the plaintiff the plea denied the readiness of plaintiff to deliver at the time specified. At the trial it appeared that the delivery had been postponed at the defendant's request, and the judge allowed an excuse for nondelivery to be inserted on the declaration, and refused to postpone the trial; whereupon the defendant refused to amend his former plea, or to appear further. Held, that the amendment was justifiable, and that defendant was not necessarily entitled to postponement, it not appearing that he was prejudiced on the merits by the refusal to postpone. The plea being proved as it stood, a verdict was taken on it for the defendant, and the plaintiff obtained judgment non obstante veredicto on motion. Where, however, it will be evidently proper to give more time to the opposite party, the applicant will probably be made to pay the costs of the day. See Edwards v. Hodges, supra.

When a defence has been held to be evasive or insufficient, and thereby to admit the allegations in the statement of claim, under Rules, 1883, O. xix. rr. 13, 19, leave to amend has often been refused in the Chancery Division. Thorp v. Holdsworth, 3 Ch. D. 637; Byrd v. Nunn, 5 Ch. D. 781; 7 Ch. D. 284, C. A.; Collette v. Goode, Id. 842. See also Crowe v. Barnicot, 6 Ch. D. 753, and Tildesley v. Harper, 7 Ch. D. 403, cor. Fry, J.; this last case was however reversed with costs, 10 Ch. D. 393, C. A., cited ante, p. 270.

The Courts are very unwilling to disturb decisions of judges made in the exercise of discretion vested in them. Morgan v. Pike, ante, p. 271; Brennan v. Howard, ante, p. 270; Schuster v. Wheelwright, 8 C. B., N. S. 383; 29 L. J., C. P. 222; Byrd v. Nunn, 7 Ch. D. 284, C. A. And a new trial will not be directed upon the ground of surprise occasioned by an amendment at Nisi Prius, unless substantial injustice has been done. White v. S. E. Ry. Co.,

10 W. R. 564, Ex. E. T. 1862. Sometimes the amendment is made at Nisi Prius, subject to the approval of the court. In Martyn v. Williams, 1 H. & N. 817; 26 L. J., Ex. 117, the court disallowed on amendment so made at the trial, on the ground that the amendment made the pleading reasonably open to a demurrer.

A judge at Nisi Prius may amend an erroneous entry of the verdict. See Baker v. Lawrence, 18 W. R. 835, T. T. 1870, C. P. And even after a verdict, and upon argument on motion for judgment or new trial, the court has, of its own authority and without consent, so amended a plea as to make the issue correspond with that which was really tried at N. P. Parsons v. Alexander, 5 E. & B. 263. And in Clough v. L. & N. W. Ry. Co., L. R., 7 Ex. 26, a plea was added by the Ex. Ch. setting up matters that had arisen after action, and the plaintiff was considered to have taken issue on it.

It seems that this rule does not extend to proceedings in inferior courts; Wickes v. Grove, 2 Jur., N. S. 212, Ex. H. T. 1856; nor to proceedings made specially amendable under other rules, e.g., those relating to the joinder of parties. Wickens v. Steel, 2 C. B., N. S. 488; 26 L. J., C. P. 241; Holden v. Ballantyne, 29 L. J., Q. B. 148; Garrard v. Giubilei, 11 C. B., N. S. 616; 31 L. J., C. P. 131; and in 13 C. B., N. S. 832; 31 L. J., C. P. 270, Ex. Ch.

Amendment of parties at Nisi Prius.] Vide ante, pp. 86, et seq.

Withdrawing a Juror, &c.

273

Withdrawing a juror.] Sometimes a juror is withdrawn, or the jury discharged, by consent, either for the convenience of the parties or at the suggestion of the judge. In such case each party pays his own costs; but, in the last-mentioned case, the action is not thereby determined. Everett v. Youells, 3 B. & Ad. 349. The jury may by consent, but not otherwise, be discharged from giving a verdict on certain issues. If the jury cannot agree at the close of the assizes, the judge may, in his discretion, and without consent, discharge them. Newton's case, 13 Q. B. 716. Counsel had at common law a general authority to withdraw a juror. Strauss v. Francis, L. R., 1 Q. B. 379. Now see J. Act, 1873, s. 25 (11), post, p. 282, and cases cited ante, p. 262. Where a juror has been withdrawn on terms, which the defendant afterwards refuses to carry out, such refusal does not terminate the action, and the court will grant a new trial. Norburn v. Hilliam, L. R., 5 C. P. 129.

Adjournment of trial.] By Rules 1883, O. xxxvi., r. 34, "the judge may if he think it expedient for the interests of justice, postpone or adjourn a trial for such time, and to such place and upon such terms, if any, as he shall think fit." The words in italics are new. At the trial of a cause copies of material documents, which had been found one day before the trial, too late for due service of notice to produce on plaintiff, were offered in evidence by defendant, and plaintiff objected to copies. Cockburn, C. J., adjourned the trial on the terms of paying the costs of the day by defendant, and resummoning the same jury. At the subsequent sitting the judge read to the jury the notes of the preceding sitting, and the trial proceeded with defendant's case. Cahill v. Dawson, 1 F. & F. 291. Where a material witness of plaintiff did not appear on subpoena, and the judge thought he should be examined, he adjourned the cause on condition that defendant's costs of the day should be his costs in the cause. Bikker v. Beeston, per Martin, B.; Id. 685. As to costs, see Lydall v. Martinson, 5 Ch. D. 780.

Damages.] By Rules 1883, O. xxxvi., r. 58, "where damages are to be assessed in respect of any continuing cause of action they shall be assessed down to the time of assessment."

Points of law.] By Rules 1883, O. xxv., r. 1, "no demurrer shall be allowed," and by rule 2, " any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the judge who tries the cause, at or after the trial." As to arguments of counsel on points of law, vide ante, pp. 266, 267.

Order to enter judgment.] By Rules 1883, O. xxxvi., r. 39, "the judge may at or after the trial, direct that judgment be entered for any or either party or adjourn the case for further consideration, or leave any party to move for judgment. No judgment shall be entered after a trial without the order of a court or judge."

By O. xxi., r. 17, "where in any action a set-off or counter-claim is established as a defence against the plaintiff's claim, the court or a judge may, if the balance is in favour of the defendant, give judgment for the defendant for such balance, or may otherwise adjudge to the defendant such relief as he may be entitled to upon the merits of the case." The "balance is that which results on the hearing of the action. Rolfe v. Maclaren, 3 Ch. D. 106. See also Staples v. Young, post, p. 277.

Application to stay execution.] By Rules, 1883, O. xlii., r. 17, in the case of money or costs being payable under a judgment or order, execution by fi. fa. or elegit may be issued so soon as such money or costs shall be payable, but (a) not until the period within which the judgment required

VOL. I.

T

the money to be paid has expired; and (b) "the court or judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit." The successful party is therefore, in the case of a judgment for money or costs, entitled to immediate execution; and if the other party desire delay, he must apply that the judgment should be for payment after a limited time.

By O. xlvii., r. 2, where the judgment is to recover possession of lands, the plaintiff may 66 sue out a writ of possession on filing an affidavit showing due service of such judgment or order, and that the same has not been obeyed." Subject therefore to the requirements of this rule, the execution is immediate, and there seems no express power given to delay the execution; the same end may, however, be attained by the judge postponing the entry of judgment till after the lapse of a certain time.

Order for delivery of specific chattels.] Rules, 1883, O. xlviii., r. 1, allow a judgment for the delivery of specific chattels to be enforced by a writ of delivery, which the court or a judge may order to issue. It seems that it is no longer a necessary condition that the value of the goods should have been first assessed by the jury, or by the judge if tried without a jury, as it was under the C. L. P. Act, 1854, s. 78. See Chilton v. Carrington, 15 C. B. 730; 24 L. J., C. P. 78.

Order as to costs.] By Rules, 1883, O. lxv., r. 1, "Subject to the provisions of the acts and these rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge, provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee, who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery division; provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, matter, or issue is tried, or the court, shall for good cause otherwise order." The provisions of the Acts herein referred to are contained in the J. Act, 1873, s. 67, post, p. 277. This rule replaces Rules, 1875, O. lv. r. 1, under which the cases collected below were decided.

By rule 2, "when issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event."

Rule 1, which impliedly repeals 21 Jac. 21, c. 16, s. 6, and 3 & 4 Vict. c. 24, ss. 2, 3, governs the right to costs in every case in which the plaintiff is not deprived of them by the County Courts Act, 1867, s. 5 (now amended, vide post, p. 276), as brought into operation by the J. Act, 1873, s. 67. Garnett v. Bradley, 3 Ap. Ca. 944, D. P. It would seem, however, that provisions relating to costs in statutes passed for the protec tion of special classes of persons, e.g. special constables (1 & 2 Will. 4, c. 41, s. 19, post, p. 276), are still in force. Id. 970, per Ld. Blackburn.

Where the action is tried by a judge alone, the costs are absolutely in his discretion, and neither party can get them from the other without an order. But where an action has been brought to enforce a legal right, and there has been no misconduct on his part, as to which vide infra, a successful plaintiff is entitled to an order for his costs under this rule. Cooper v. Whittingham, 15 Ch. D. 501. The defendant cannot be ordered to pay the costs of an unsuccessful plaintiff. Dicks v. Yates, 18 Ch. D. 76, C. A., followed in Re Foster, 8 Q. B. D. 515, C. A.

Where an action is tried by a jury, "good cause" for making an order