tute, to allow this allegation to be amended as follows: a coру CH. XXIX. of so much of the said writ of subpoena as related to the said defendant." So, in an action on a bill of exchange by indorsee against indorser, where the bill was stated to have been drawn payable to the drawer's order, and by him indorsed to A. B., whereas it appeared in evidence to have been drawn in favour of A. B. the judge having amended the record, the court of Exchequer approved of it. And a record may be amended, pending the trial, by correcting a variance between a written contract and the statement of the contract on the pleadings, although it do not appear by the record, that the contract was in writing. But where, in an action for a malicious arrest, the plaintiff alleged that "the defendants did not prosecute the suit complained of, but therein failed and made default, and their pledges were in mercy, &c."; this was holden not to be such an error in the record, as could be amended at nisi prius, under the above statute; it not being a mere mistake in setting out a written instrument, but an allegation of something totally different from the proofd. So, in replevin, where the defendant, in his avowry, stated that the distress was for rent in arrear, and that the plaintiff held the lands on certain terms, but, on the plaintiff's lease being put in, it appeared that he held them on other and different terms, the judge at nisi prius ruled that this variance was not amendable, under the statute 9 Geo. IV. c. 15; and also, that the act only applies to cases where some particular written instrument is professed to be set out or recited in the pleading: And the judge, in another case, would not allow an amendment, under the above statute, when there was a variance which would not have occurred, if common care had been used in drawing the declaration.

c. 15. extended by 3 & 4 W.

The above statute being confined to such variances only as ap- Stat. 9 Geo. IV. peared between any matter in writing or in print produced in evidence, and the recital or setting forth thereof on the record whereon IV. c. 42. the trial is pending, was extended by the statute 3 & 4 W. IV.

a Masterman v. Judson, 8 Bing. 224. b Parks v. Edge, 1 Cromp. & M. 429. Parker v. Ade, 1 Dowl. Rep. 643. S. C. Lamey v. Bishop, 1 Nev. & M.

332.

Webb v. Hill, 1 Moody & M. 253. 3 Car. & P. 485. S. C. per Ld. Tenter

den, Ch. J.

Ryder v. Malbon, 3 Car. & P. 594.
per Park, J.

f Jelf v. Oriel, 4 Car. & P. 22. per
Ld. Tenterden, Ch. J.; but see Parks v.
Edge, 1 Cromp. & M. 429. Parker v.
Ade, 1 Dowl. Rep. 643. S. C.

66

66

c. 42.3; whereby, after reciting that great expence was often incurred, and delay or failure of justice took place at trials, by reason of vacancies, as to some particular or particulars, between the proof and the record, or setting forth on the record, or document on which the trial was had, of contracts, customs, prescriptions, names, and other matters or circumstances, not material to the merits of the case, and by the mis-statement of which the opposite party could not have been prejudiced, and the same could not in any case be amended at the trial, except where the variance was between any matter in writing or in print produced in evidence, and the record; and that it was expedient to allow such amendments as thereinafter mentioned, to be made on the trial of the cause; it is 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 con"duct of his action, prosecution, or defence, then such court or "judge shall have power to cause the same to be amended, upon

66

* § 23. and see 2 Rep. C. L. Com. 35, &c. 85, &c.

This is evidently a misprint, for "va-`

riances."

Preamble to stat. 3 & 4 W. IV. c. 42. § 23.

66

66

payment of costs to the other party, and withdrawing the record, CH. XXIX.

or postponing the trial as aforesaid, as such court or judge shall "think reasonable; and after any such amendment, the trial shall Trial to pro"proceed, in case the same shall be proceeded with, in the same

66

ceed, after amendment, as

manner in all respects, both with respect to the liability of if no wariance had appeared. "witnesses to be indicted for perjury and otherwise, as if no such "variance had appeared; and in case such trial shall be had at Order for “nisi prius, or by virtue of such writ as aforesaid, the order for be indorsed on "the amendment shall be indorsed on the postea or the writ, as postea, and en"the case may be, and returned, together with the record or writ,

66

" 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 other order as to them may seem "meet."

be

And it is thereby further enacted, that "the said court or judge "shall and may, if they or he think fit, in all such cases of "variance, instead of causing the record or document to "amended as aforesaid, direct the jury to find the fact or facts "according to the evidence; and thereupon such finding shall be " stated on such record or document, and notwithstanding the find"ing on the issue joined, the said court, or the court from which "the record has issued, shall, if they shall think the said variance "immaterial to the merits of the case, and the mis-statement such "as could not have prejudiced the opposite party in the conduct "of the action or defence, give judgment according to the very right and justice of the case.'

66

" a

Stat, 3 & 4 W. IV. c. 42. § 24.

amendment to

tered on roll.

CHAP. XXX.

Of the ISSUE.

AN issue is defined to be a single, certain, and material point, issuing out of the allegations or pleadings of the plaintiff and defendant; but it more commonly signifies the entry of the allegations or pleadings themselves: and it is either in law, upon a demurrer, or in fact, which is triable by the court upon nul tiel record, or by a jury upon pleadings concluding to the country".

The issue contains an entry or transcript of the declaration, and other subsequent pleadings; and, in actions by bill in the King's Bench, it was formerly made up of the term in which it was joined; and was prefaced in that court with a memorandum, stating the exhibiting of the bill, and that there were pledges for the prosecution of it, The reason for a memorandum was, that proceedings by bill were formerly considered as the bye business of the court; and it varied in four cases; Ist. when the issue was of the same term in which the cause of action accrued; secondly, when it was of a term subsequent to the cause of action, but of the same term with the declaration; thirdly, when it was of a term subsequent to the declaration, and within four terms after; fourthly, when it was more than four terms after the declaration. In the first case, the memorandum was special, stating the bill to have been exhibited on a particular day in term, after the cause of action accrued; in the second case, it stated the bill to have been exhibited on the first day of the term in which the declaration was delivered; in the third and fourth cases, it pursued the fact, but with this difference, that in the third case, the term of exhibiting the bill was referred

a Co. Lit. 126. a.

Tidd Prac. 9 Ed. 717. and as to the

mode of making up, and entering the

issue, before stat. 2 W. IV. c. 39. see id.
Chap. XXX.

c Wood v. Miller, 3 East, 204.

Append. to Tidd Prac. 9 Ed. Chap.

XXX. § 1, &c. The pledges to prosecute, however, are now discontinued, in consequence of the rule of Mich. 3 W. IV. reg. 15. 9 Bing. 448. Ante, 122.

e Gilb. C. P. 47.

to as last past; and in the fourth, as in a certain year of the king's CH. XXX. reign. In actions by original in the King's Bench, the clerk of the papers made up the issue, or paper book, of the same term with the declaration; or it might have been entitled of the term issue was joined, as in actions by bille: and it began with a copy of the declaration, without a memorandum. In the Common Pleas, the issue was entitled of the term in which it was joined, and made up in the same manner as in the King's Bench by original. In the Exchequer, the issue began with a placita or stile of the court, of the term it was joined; and when the issue was of the same term with the declaration, it merely contained a transcript of the pleadings, after the placita, beginning each with a new line, without any memorandum or imparlance; but when the issue was of a subsequent term, a memorandum was prefixed to the declaration, and the entry of an imparlance to the pleaf.

tute.

As the distinction, however, between proceedings by bill and Since that staoriginal writ, is abolished by the statute 2 W. IV. c. 39.8, and a new and uniform mode of commencing declarations in personal actions is given by a rule of courth, made in pursuance thereof, and the proceedings are, in consequence of that statute, no longer governed by terms, but may be carried on, except at certain times, in term or vacation, the form of the issue is varied accordingly; and, when it is of the same term with the declaration, begins with When it is of the term in which, or in the vacation of which, the declaration was delivered or filed *; and then proceeds with a transcript or copy of the declaration and subsequent pleadings, in the present tense; or, of a subsequent if the issue be of a subsequent term, after mentioning the term in or of which it is joined, it states, in the past tense, that the plaintiff, on the day on which the declaration was delivered or filed, complained of the defendant, &c. as follows: (copying the declaration, and pleadings). When the plea is of a term subsequent When plea is of

same term with declaration.

term.