in 



AMENDMENT. 



AMENDMENT. 



oooe intend on record, the judge* considered that they had DO 

 authority t<> alter them in any respect; either for thu purpose of 

 correcting fake Latin, of supplying a word, syllable. <>r letter acci- 

 dentally omitted, or of removing any other clerical error. The con- 

 sequence was, that after a suit had been decided in favour of one party, 

 it frequently happened that his adrenary discovered some blunder 

 made by the officer of the court on making up the record ami by 

 bringing a writ of error, deprived the successful party of all the benefit 

 of the judgment he had obtained. This inconvenient rule arose out 

 of a rigid observance of an ordinance of Edward I., which directs 

 the judges to record the pleas pleaded before them, but forbuU 

 them "to make their records a warrant for their own misdoings, 

 or to erase or am<*d them, or to record anything against their 

 previous enrolment*." These words obviously imply nothing more 

 than a reasonable restriction upon the alteration of the records of 

 the court clandestinely 'or for sinister purposes, and certainly do not 

 justify the strict interpretation afterwards applied to them. To the 

 rule thus established there were several exceptions : 1. All errors 

 in records might be amended during the mine term in which they 

 were made, because in contemplation of law the record is in the breast 

 of the judges during the term, and not on the roll. 2. In an 

 essoign, or excuse by a defendant for not appearing in proper time, if 

 the plaintiff's name were mistaken, the mistake might be amended, 

 because it was inconsistent with the writ, and, if enrolled in its 

 erroneous form, it would be a record against a previous enrolment, and 

 for that reason a breach of the ordinance. 3. For the same reason, a 

 continuance, which is an entry on the record showing the continuation 

 of a cause from one term to another, might be amended so as to make 

 it correspond to the proceedings previously recorded. 



It is plain that these ingenious exceptions would afford little relief 

 from the strictness of the rule ; and in cases which did not fall directly 

 within them, the judges held that they were bound by the ordinance of 

 Edward I., and refused to rectify the most palpable errors after the 

 expiration of the term to which the record belonged. It is possible 

 that the judges adhered thus closely to their interpretation from a 

 reasonable regard to their own safety ; for in the seventeenth year 

 of Edward I. (1289), we find that king instituting a prosecution of 

 enormous severity against the judges, and imposing fines amounting 

 altogether to 70,0007. for imputed offences, connected, for the most 

 part, with the erasure and alteration of the records. With this before 

 their eyes (and it was an expedient very convenient for a monarch 

 engaged in expensive wars to repeat for the purpose of replenishing his 

 coffers), the judges were perfectly justified in erring on the side of 

 caution, by adhering to the strict letter of the ordinance. 



But this rigid abstinence from all alteration of the record was neces- 

 sarily a great inconvenience in the administration of justice, and led in 

 course of time to a series of legislative enactments, called Statutes of 

 Amendment and Statutes of Jeofails (from the Norman-French, fai 

 failld), by the former of which, authority was given to amend certain 

 specified errors; by the latter, the judges were empowered to proceed 

 to judgment notwithstanding such errors. The first Statute of 

 Amendment (14 Kdw. III., c. 6, 1340) enacted that no process should 

 be annulled by a clerical mistake in " writing one syllable or letter too 

 much or too little ; but that aa soon as the thing was perceived by the 

 objection of the party, or in other manner, it should be amended in 

 due form, without giving any advantage to the party who objected to 

 the mistake." The judges exhibited great reluctance to depart from 

 the letter of the statute, and much discussion arose whether the 

 statute, though it authorised the amendment of a letter or syllable, 

 extended to the case of a total omission of a word. In a case in 

 which this point was raised some years after the statute had been 

 passed, the judges resolved to incur no personal danger by deciding it, 

 but formally consulted the law-makers upon the meaning of the Act. 

 " I went," says Chief Justice Thorpe, who describes this conference in 

 a case in the ' Year Book ' (40 Kdw. III. c. 34), " together with Sir 

 Hugh Qreen, to the Parliament, and there were twenty-four of the 

 bishops and earls ; and we demanded of them who made the statute, 

 if the record might be amended ; and the archbishop or metro- 

 politan said, that it was a nice demand, and a vain question of 

 them, if it might be amended or not ; for he said that it might as 

 well be amended in this case as if it were but one letter, for if a letter 

 or a syllable fail in a wonl, it in no word ; wherefore, if all the word 

 fail, it may be amended aa well as if it failed but of a letter or a 

 syllable ; for there is no more difference in the one case than in the 

 other." Upon this advice of the archbishop, the judges admitted the 

 amendment of a word. 



In consequence of the indisposition of the judges to give this statute 

 a liberal interpretation, it proved in a great measure ineffectual ; for 

 Ul^tg* 1 iU terms appear to extend to every part of civil or criminal 

 proceeding", the judges construed the word ' process ' strictly, and 

 confined amendment* to civil suits, and in them to error* in the process 

 for the defendant's appearance, and for summoning the jury. If there- 

 fore a mistake of a wonl, syllabic, or even a letter, was made by the 

 clerk in drawing up the roll or Uxly of the record, the whole proceed- 

 ings might be annulled by a writ of error. To remove this, and to 

 enlarge the power of judges in amendments, the statutes 8 Henry VI. 

 c. 12 cod c. 15 (1430) were nude, by which the judges were authorised, 

 " in any record, process, word, plea, warrant of attorney, writ, panel, or 



return, to amend all that which to them seemed to be the niinprision of 

 the clerk;" and also the " uii i Iri'ft, coroners, bailiffs of 



franchises, or other officers, in their n turns." 



But these latter enactm- nt ~. which were, properly yH"g. the only 

 statutes of amendment in ancient times (those which followed being 

 statutes of Jeofails), though they considerably enlarged the power of 

 the judges in making amendment*, proved an insufficient relief to 

 suitors. They extended only to the amendment of the uii|<rit-in ..f 

 the clerks, and upon this point subtle doubts and nice distil 

 were suggested by the acuteness of legal criticism, and multiplied to an 

 enormous extent in the course of the ensuing century ; in const > . 

 !' which, judgments were continually overthrown by form 

 !..uii.|ed on errors which the courts did not consider to be strictly 

 clerical misprisiona. 



The next legislative provision was a Statute of Jeofails, passed in 

 1540 (32 Henry VIII. c, SO), by which it is enacted, that " where the 

 jury have given their verdict for either party in any court of i 

 and a jeufail or mistake is afterwards discovered, the judgment 

 court shall stand according to the verdict withovit reversal." This was 

 followed by the statute 18 Elix. c. 14 (1572), which declares, "that 

 after verdict given in any court of record, judgment shall not be stayed 

 or reversed for false Latin or other faults in form, in original and 

 judicial writs, counts, 4<x, or for want of any writ, or by reason of the 

 imperfect return of any sheriff, or for want of any warrant of attorney." 

 The 21st Jac, I. c. 13 (1623) specifies several other formal defe. 

 mentioned in the previous statutes, and declares, that on account of 

 such defects, when discovered after verdict, no judgment shall be 

 stayed or reversed. The next Statute of Jeofails, in chronological 

 order, was the 16 & 17 Charles II. c. 8 (1665), called by Mr. Justice 

 Twilfii " the Omnipotent Act," which wag intended to remove doubts 

 arising upon former laws as to the distinction between matters of form 

 and matters of substance, and also specified a great variety of minute 

 technical defects, which after verdict were not to arrest or stay ;!. 

 judgment of the court. These statutes were calculated to aid imper- 

 fections in form after the verdict of a jury had passed upon the facts. 

 This limitation was extremely unreasonable and prejudicial, as it 

 enabled a party who made no defence, and had no substantial defence 

 to make, to defeat a just action, by taking formal objections to the 

 record, in arrest of judgment, or upon a writ of error, of which he 

 could not have availed himself after a verdict. To remedy this incon- 

 sistency, the statute introduced by Lord Somers, after his retirement 

 from the office of chancellor in 1705 (1 Anne, c. 16) extended the 

 operation of the Statutes of Jeofails to all cases of judgment !>;, 

 confession or default. 



From this summary view of the statutes, it appears that since the 

 time of Henry VI. the legislature discontinued the direct and con- 

 venient mode of obviating the evil by allowing the judges to amend 

 formal errors in their records where justice required it, and adopted a 

 circuitous and uncertain course, by specifically enumerating certain 

 errors and mistaken which were not to deprive the successful party of 

 his judgment. Perhaps the caution of the judges in former times, in 

 adhering rigidly to the letter of the power delegated to them, may 

 have suggested this course to the legislature. However this may have 

 been, there can be no doubt that the authority to amend under certain 

 restrictions was the more efficient remedy. The Statutes of Jeofails 

 have always given very imperfect relief to suitors; for professional 

 ingenuity has never failed to discover new errors not specified in them, 

 and to draw subtle distinctions in cases where the words of the statutes 

 were to a common understanding distinctly applicable. 



In modern times a disposition has been manifested to proceed upon 

 the ancient course, by increasing the authority of the judges to make 

 amendments. A most important improvement at the time was intro- 

 duced by the statute of 9 Oeo. IV. c. 15, which enabled " any court of 

 record in civil actions, any judge at Nisi Prius, and any court <>. 

 and Tennincr and gaol delivery, if such court or judge should see fit 

 so to do, to amend the record upon the appearance of a variance 

 between any matter in writing or in print produced in evidence, and 

 the recital thereof upon the record." 



Further improvements, both in the pleading and practice of the 

 courts, were effected by the 3 & 4 Will. 1 V. e. 4 J. 3$ M A ^4. Hut all 

 former j)wer of amendment vested in the judges have been swallowed 

 up, as it were, in the sweeping powers lately conferred on the courts by 

 the Common Law Procedure Acts of 1852 and 1854, which not ,-\<\\ 

 enable amendments to bo made in nearly all matters of merely t> 

 il.-t.iil. but require the judge at all times to make all such amendments 

 as shall be necessary, so that the real question in issue betwixt the 

 parties shall be tried in the existing suit. This statute also sweeps 

 away several niceties in the practice of special plea-ling, which have i', .r 

 centuries been a fertile source of delay and expense, as well as caused 

 frequently a positive defeat of justice; and it is somewhat curious. 

 that practically the statute will to some extent cause a return to the 

 .in. i. lit system of pleading ore trniu, for defective and erroneous plead - 

 ings are not to be objected to by special demurrers, which are ab. 

 but to be summarily amended by a judge at chambers, at the instance 

 of the party objecting, and on such terms as to costs, answering the 

 amended pleading, Ac., as the judge shall determine. 



In one of the early Statutes of Amendment (8 Henry VI. c. 12) 

 indictments and criminal prosecutions are excepted from its operation ; 



