STATUTES. 503 



or particulars in the judgment of sucli 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 post- 

 poning 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 i^arty may have been prejudiced thereby in 

 the conduct of his action, prosecution or defence, then such 

 court or judge shall have power to cause the same to be 

 amended upon payment of costs to the other party, and Avith- 

 drawing the record or j)ostponing the trial as aforesaid, as 

 such court or judge shall think reasonable ; and after any such 

 amendment the trial shall proceed, in case the same shall be 

 proceeded with, in the same manner in all respects, both 

 with respect to the liability of witnesses to be indicted for 

 perjury, and otherwise, as if no such variance had appeared ; 

 and in case such trial shall be had at nisi prius or by virtue 

 of such writ as aforesaid, the order for the amendment shall 

 be indorsed on the postea or the writ, as the case may be, 

 and returned together Avith the record or writ, 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 dissatislied 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 im- 

 proper, 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. 



24. And be it further enacted, That the said court or judge Power for 

 shall and may, if they or he think fit, in all such cases of t^e court or 

 variance, instead of causing the record or document to be ■* (ffT,*°f ts 

 amended as aforesaid, direct the jury to find the fact or facts ^.q ^^g found " 

 according to the evidence, and thereupon such finding shall specially, 

 be stated on such record or document, and, notwithstanding 

 the finding on the issue joined, tlie said court or the court 

 from which the record has issued shall, if they shall think the 



