might easily be furnished, a plaintiff was nonsuited in an action for defamation, because the libel, as set out on the record, imputed to him "mismanagement or ignorance," while, according to the evidence, the expressions really used in the libel, which had been destroyed, were "ignorance or inattention."1

§ 220. The attention of the Legislature being at length drawn to § 174 the flagrant injustice which was thus constantly occasioned, a partial remedy was provided in 1828 by the Act of 9 G. 4, c. 15;2 but as that statute, though a salutary measure so far as it went, was found to afford a very ineffectual remedy for an evil which all suitors felt to be highly oppressive, larger powers of amendment were granted in 1833 to the English judges, and in 1840 to the Irish judges, by the respective Acts of 3 & 4 W. 4, c. 42, §§ 23 & 24, and 3 & 4 V., c. 105, §§ 48 & 49. In 1852, the Legislature again interposed, and by §§ 34, 35, 37 & 222 of the Common Law Procedure Act, and §§ 49 & 53 of the Equity Procedure Act of the same year, conferred on the courts additional powers of granting amendments. In the Common Law Procedure Acts of 1854 and 1860 further clauses were inserted, authorising the amendment of "all defects and errors in any proceedings under the provisions" of those Acts respectively, "if duly applied for; "5 and the Irish Common Law Procedure Act of 1853 also empowered the judges in that country to amend "all defects and errors in any writ, pleading, record, or other proceeding in civil causes."6

§ 221. The law relating to amendments was not further altered

1 Brooks v. Blanshard, 1 C. & M. 779; 3 Tyr. 844, S. C.

2 As to the amendment of variances in civil actions under this Act, see Smith v. Brandram, 2 M. & Gr. 244, 250; Bryant v. Eicke, M. & M. 359; Brooks v. Blanshard, 1 C. & M. 779; 3 Tyr. 844, S. C.; Lamey v. Bishop, 4 B. & Ad. 472; 1 N. & M. 332, S. C.; Masterman v. Judson, 8 Bing. 224; 1 M. & Sc. 307, S. C.; Jaff v. Oriel, 4 C. & P. 22; Whitehead v. Scott, 1 M. & Rob. 137, n.

3 15 & 16 V., c. 76.

V., c. 113, §§ 85-91. 15 & 16 V., c. 86.

c. 44, §§ 154, 158.

See corresponding sections in the Irish Act of 16 & 17

See corresponding sections in the Irish Act, 30 & 31 V.,

17 & 18 V., c. 125, § 96; 23 & 24 V., c. 126, § 36. 16 & 17 V., c. 113, § 231, Ir.

till the year 1875, when the Rules of Court framed under the new Judicature Acts, came into operation. These rules,-without repealing the earlier statutes on the subject, and indeed leaving them still as the sole guides in all criminal proceedings, and in all proceedings either on the Crown side of the Queen's Bench Division, or on the Revenue side of the Exchequer Division, or for Divorce or other Matrimonial causes, or in the Court of Bankruptcy, or in other inferior tribunals not subject to the Judicature Acts,have virtually introduced into the different Divisions of the Supreme Court a more lax practice than formerly prevailed. Orders XVI. and XXVII. contain the several Rules on this subject.

§ 222. The three most important rules of Order XVI. are the 2nd, the 13th, and the 14th. The 2nd provides, that," Where an action has been commenced in the name of the wrong person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff or plaintiffs, the court or a judge may, if satisfied that it has been so commenced through a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person or persons to be substituted or added as plaintiff or plaintiffs, upon such terms as may seem just." An application under this Rule cannot be made ex parte, nor can it succeed unless there has been a bonâ fide mistake.3

2

§ 223. Rule 13 provides that "no action shall be defeated by reason of the misjoinder of parties, and the court may in every action deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the name or names of any party, or parties, whether as plaintiff's or as defendants improperly joined, be struck out, and that the name or names of any party or

1 See also RR. 1 & 3, which respectively render amendments unnecessary in cases where too many plaintiffs or defendants have been joined.

2 Tildesley v. Harper, L. R., 3 Ch. D. 277, per Hall, V.-C.

3 Clowes v. Hilliard, L. R., 4 Ch. D. 413, per Jessel, M. R.

parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the action, be added."1

§ 224. Rule 14 provides, that "any application to add, or strike out, or substitute a plaintiff or defendant may be made to the court or a judge at any time before trial by motion or summons, or at the trial of the action in a summary manner." It would seem that, under this Rule, a County Court Judge might amend a misjoinder of defendants in a cause sent to him for trial from the High Court.2

§ 225. Order XXVII. is as follows:-" Amendment of Pleading. Rule 1. The court or a judge may, at any stage of the proceedings, allow the plaintiff to amend the writ of summons in such manner and upon such terms as may seem just. The court or a judge may, at any stage of the proceedings, allow either party to alter his statement of claim or defence or reply, or may order to be struck out or amended any matter in such statements respectively which may be scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action, and all such amendments shall be made as may be necessary for the purpose of determining the real questions or question in controversy between the parties.

2. The plaintiff may, without any leave, amend his statement of claim once at any time before the expiration of the time limited for reply and before replying, or, where no defence is delivered, at any time before the expiration of four weeks from the appearance of the defendant who shall have last appeared.

3. A defendant who has set up in his defence any set off or

1 The Rule goes on to provide, that if a plaintiff be added, it must be with his consent, and that if a defendant be added, he must be served with a summons or notice.

2 See Bennison v. Walker, 7 Law Rep., Ex. 143.

3 See Cornish v. Hockin, 1 E. & B. 602; Leigh v. Baker, 2 Com. B., N. S. 367.

counter-claim may, without any leave, amend such set-off or counterclaim at any time before the expiration of the time allowed him for pleading to the reply, and before pleading thereto, or in case there be no reply, then at any time before the expiration of twenty-eight days from the filing of his defence.

4. Where any party has amended his pleading under either of the last two preceding rules, the opposite party may, within eight days after the delivery to him of the amended pleading, apply to the court, or a judge, to disallow the amendment, or any part thereof, and the court or judge may, if satisfied that the justice of the case requires it, disallow the same, or allow it subject to such terms as to costs or otherwise as may seem just.

5. Where any party has amended his pleading under Rule 2 or 3 of this Order, the other party may apply to the court, or a judge, for leave to plead or amend his former pleading within such time and upon such terms as may seem just.

6. In all cases not provided for by the preceding rules of this Order, application for leave to amend any pleading may be made by either party to the court, or a judge in chambers, or to the judge at the trial of the action, and such amendment may be allowed upon such terms as to costs or otherwise, as may seem just.

7. If a party, who has obtained an order for leave to amend pleading delivered by him, does not amend the same within the time limited for that purpose by the Order, or if no time is thereby limited, then within fourteen days from the date of the order, such order to amend shall, on the expiration of such limited time as aforesaid, or of such fourteen days, as the case may be, become ipso facto void, unless the time is extended by the court or a judge.

8. A pleading may be amended by written alterations in the pleading which has been delivered, and by additions on paper to be interleaved therewith if necessary, unless the amendments require the insertion of more than 144 words in any one place, or are so numerous or of such a nature that the making them in writing would render the pleading difficult or inconvenient to read, in either of which cases the amendment must be made by delivering a print of the pleading as amended.

9. Whenever any pleading is amended, such pleading when amended shall be marked with the date of the order, if any, under

which the same is so amended, and of the day on which such amendment is made, in manner following, viz :

10. Whenever a pleading is amended, such amended pleading shall be delivered to the opposite party within the time allowed for amending the same."

§ 226. From these Rules it will be seen, 1st, that the court or a judge may now, at any stage of the proceedings, allow the plaintiff to amend the writ of summons, and either party to alter his statement of claim or defence or reply; 2nd, that all such amendments shall be made as may be for the purpose of necessary determining the real questions in controversy; 3rd, that the application for leave to amend any pleading may be made by either party to the court or a judge in chambers, or to the judge at the trial of the action; and lastly, that such amendment may be allowed upon such terms as to costs or otherwise as may seem just.

§ 227. The powers of amendment conferred on the judges by these rules will unquestionably be productive of signal benefit to suitors, if, in furtherance of this salutary design, they are exercised, as they ought to be, in a liberal spirit. As yet however few decisions have been pronounced upon the subject, and these few do not very materially illustrate the operation of the new law.

§ 228. Perhaps the most important case which has hitherto been determined is that of Budding v. Murdock. That was a suit to

1 See Parry v. Fairhurst, 2 C. M. & R. 196, per Alderson, B.; Sainsbury v. Matthews, 4 M. & W. 347, per Parke, B.; Ward v. Pearson, 5 M. & W. 18, per id.; Evans v. Fryer, 10 A. & E. 615, per Williams, J.; Pacific St. Navig. Co. v. Lewis, 16 M. & W. 792, per Pollock, C. B.; Smith v. Knowelden, 2 M. & Gr. 561; 9 Dowl. 402, S. C. See, also, St. Losky v. Green, 9 C. B., N. S. 376, per Byles, J., who observes in the true spirit of an enlightened law reformer,— "Various statutes have, from time to time for more than 500 years, been passed, from the 14 Ed. 3, c. 6, downwards, to facilitate amendments, but the strict and almost perverse construction which the judges put upon them, rendered them nearly abortive. But now a totally different principle prevails. Every amendment is to be made, which is necessary for determining the real question in controversy between the parties."

2 L. R., 1 Ch. D. 42, per Jessel, M. R. ; 45 L. J., Ch. 213, S. C.