T. T. 1847. to a period of three incumbencies, obtained upon presentations Common Pleas. adverse to the claimant, or sixty years, if the three previous incumMARQUIS OF bencies taken together should not amount to that number of years;

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and enacted, that in no case should a quare impedit be brought within one hundred years after an adverse presentation. These BISHOP OF provisions were extended to Ireland by 6 & 7 Vic. c. 54, explained KILLALOE. by 7 & 8 Vic. c. 27, and 8 & 9 Vic. c. 51, but are declared not to apply to suits commenced on or before the 1st of January 1845. The writ here was not issued until December 1843; the declaration not filed until November 1844. In Roberts v. Bate (a) Lord Denman comments upon the plaintiff suffering one month to elapse without declaring.

First premising that in Shepherd v. Bishop of Chester (b), Bosanquet, J., says that quare impedit is in the nature of a real action, the judgment being in rem, I shall call the attention of the Court to some cases on writs of right in which amendment has been refused. In Worley v. Blunt (c), the demandant having omitted to set forth his pedigree upon the count in a writ of right, the Court refused to allow him to amend even upon an affidavit of merits, and that the omission had been occasioned by the oversight of an experienced pleader at the Bar. In Charlwood v. Morgan (d) the Court refused to allow the demandant in a writ of right to amend the mistake in a Christian-name in the count (though there too an affidavit, accounting for the mistake, was produced), or to discontinue the suit. In Baylis v. Manning (e) the demandant was refused permission to amend his count in a writ of right by introducing an additional step in the descent, though it was sworn that the mistake had arisen from the demandant having been misinformed in the country, and that he would be barred by the Statute of Limitations unless the amendment were allowed. "As a writ of right generally seeks to "disturb a possession which has continued for a considerable length "of time, the Court will not assist the demandant in getting over "any difficulties that may occur to him:" Per Gibbs, C. J., in Adams v. Radway (f). In allowing an amendment in Cholmeley v. Paxton (g), in 1825, Best, C. J., put it on the ground that the demandant's title had only accrued in 1822. The title here is laid so far back as 1662. Courts of Equity act in questions of amendment upon similar principles to those adopted by Courts of Law:

Common Pleas.

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Sorrell v. Carpenter (a). Foot v. Collins (b) shows the willingness T. T. 1847. of Courts to carry into effect the Statute of Limitations, 3 & 4 W. 4, c. 27. In that case a writ of right was issued before the expiration MARQUIS OF of the time limited by the last-mentioned Act for bringing such writs. After that time had expired, the return day of the writ was altered, and the writ was re-sealed; it was held that the writ must be considered as having been brought after the time limited by the Act, and it was therefore superseded. Formerly, in actions of quare impedit there was no inducement for resisting amendments; now, as in the case of writs of right there is a sufficient reason, and of this opinion was Lord Cottenham, in Foot v. Collins (c). The laches of the plaintiffs in not bringing their action until pressed by a Statute of Limitations debars them from obtaining an amendment. They do not seek to amend in toto. There is no case in which an amendment has been sought so as but partly to adapt the pleadings to the form thought proper by the Court, as here attempted by the plaintiffs. They ask permission to put on the files of the Court that which has already been pronounced by the Court to be a bad pleading. If it be objectionable to amend after demurrer, it is still more so after judgment, and in a yet greater degree where, as at present, more than a Term has elapsed after judgment.-[JACKSON, J. Have you any authority as to your doctrine on partial amendment?]-No; but will the Court allow some of the causes of complaint to be removed, and others to be left standing?-[TORRENS, J. There is some peculiarity in the case, for judgment was not pronounced until the last day of Term.]

Sir Colman O'Loghlen. The Court will recollect that we then asked for an order to prevent the defendant from entering up judgment, in order that we might apply for liberty to amend.

Henn. At all events the Court has not power to make the amendment after the Term in which judgment was pronounced. Lord Coke says: "Yet, during the Term wherein any judicial act is done, the “record remaineth in the breast of the Judges of the Court, and in "their remembrance, and therefore the roll is alterable during that "Term as the Judges shall direct; but when that Term is past, then "the record is in the roll, and admitteth no alteration, averment, "or proof to the contrary" (d). In Rex v. Carlile (e), error was brought in the King's Bench upon a judgment at the Old Bailey, and one ground assigned was, that a material fact stated on the record

T. T. 1847. was not true. The Court of King's Bench holding the averment Common Pleas. inadmissible, affirmed the judgment. The fact being as alleged MARQUIS OF by the defendant, the Court of Oyer and Terminer afterwards

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ordered the record to be amended; and their clerk, by a rule of the Court of King's Bench, with the consent of the Crown, came into the latter Court and made the amendment there. Upon motion afterwards in the King's Bench, that the case might be set down for argument, the Court was of opinion that they could not re-hear it after the expiration of the Term in which judgment was given, though the Attorney-General consented, and that the only remedy was by writ of error to the House of Lords. Mellish v. Richardson (a) was there cited, but was considered not to apply, as the time had been enlarged upon consent. How are new counts to be added after a judgment in demurrer? The case of The Irish Society v. Bishop of Derry (b) does not apply here-first, because it was substantially by consent; and secondly, because it was a mistake or misprision of the clerk, who did not insert the sum, for which there had been a blank left.

Miller, with whom were Napier, Hamilton Smythe, Charles Granby Burke, and Sir Colman O'Loghlen, rested this application on three grounds, viz., its necessity, its reasonableness, and the importance of the case. There are five other causes involved in this. It is desirable that those, waiting as they do on the decision of the present case, should rest upon one uniform decision, and this too unencumbered by technical objections. Scarcely any of the technical objections made in this case to the pleadings touched the justice of the case.

A refusal to allow us to amend would amount to a denial of justice. We could not here bring a new action; the Statute of Limitations prevents us.-[JACKSON, J. If there be any charge of a denial of justice it should be made against the Legislature.]-In Tomlinson v. Blacksmith (c) the declaration was amended after verdict. Tidd (d) says that a new count may be added after the end of the second Term, where the cause of action is substantially the same, and (e) that of late years the Courts have not observed the same strictness as formerly with regard to amendments, and it is much better for the parties they should not; and that the very intent of requiring mistakes in point of form to be shown for cause of demurrer, was to give the party an opportunity of amending. In

Common Pleas.

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KILLALOE.

Pearl v. Bridges (a), Cross v. Kaye (b), a penal action, amendments T. T. 1847. were permitted. So in Petre v. Craft (c), a penal action, the amendment was permitted after the time limited for bringing a new MARQUIS OF action. Marlborough v. Widmore (d), where there was a plea of the Statute of Limitations: Dartnall v. Gibbs (e). After a nonsuit, and where a new action would have been barred by the statute: Brasier v. Jones (f), and Jones v. Sheehan (g) are cases of amendment granted. In The King v. Archbishop of York (h), an action of quare impedit by the Crown, upon an alleged forfeiture by simony between the patron in fee, the grantee of the term and the incumbent, the Court allowed an amendment made by a Judge at chamber, by adding three counts varying the terms and the parties to the simoniacal contract. The language of Doherty, C. J., in the Irish Society v. Bishop of Derry (i) is strongly in our favour. Where in debt on bond, judgment was entered by mistake for the penalty as damages, the Court allowed it to be amended after error brought (k).

Napier, on the same side.

We here seek to amend in matters of form. The general rule is, that before argument a party may amend as a matter of course; after argument it rests in the discretion of the Court, whether an amendment should be allowed or not: Bagot v. Malone (l); Hoyte v. Hogan (m), where the amendment was sought for and granted in the Term after judgment in favour of a demurrer.-[BALL, J. The objection that it could not be granted in a Term subsequent to judgment, does not appear to have been made in Hoyte v. Hogan.]— The judgment of the Court in this case mainly went on the words of the Act of Settlement; with that question we do not seek to interfere by these amendments; but the amendments, as to the cesser of the term and other purely formal matters, we do propose to make. These amendments being within the discretion of the Court, the Court is bound to allow them if it be essential to the just decision of the case; that is the meaning of the question being within the discretion of the Court. In a writ of right there can be but one count in the declaration; in quare impedit there may be several counts: this

Common Pleas.

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T. T. 1847. explains why there should be greater strictness in one case than the other. [BALL, J. Is there not also a difference between the case of MARQUIS OF qui tam actions brought for a penalty and falling within the Statutes of Limitation, and the case of a party seeking a right?]-In Bearcroft v. Hundred of Burnham (a), to save the statute, the Court ruled BISHOP OF that the declaration should be amended. That the granting of amendments rests completely in the discretion of the Court, appears from the language of Lord Hardwicke in The King v. Ellams (b). In Taylor v. Lyon (c) the writ and declaration were amended, and the Statute of Limitations would have been a bar to a new action. In Browne v. Fullerton (d) the writ of summons was allowed to be amended by the Court, in order to save the statute. Mallory (e) mentions an amendment of the writ, where the principal reason was, that the six months were passed; and if the writ should abate, the plaintiff would be remediless to recover his presentation; he also mentions a case of amendment in the judgment. The declaration in quare impedit in Reppington v. Guardians of Tamworth School (f) was amended. In Goore v. Goore (g) an amendment was allowed, Wood, B., observing that he could not agree that writs of right were to be discouraged by the Judges while they remained part of the law of the land, and that he was not for holding it so strict but that the rule to amend was sometimes allowed. There is a case in the Rule Book of this Court, on the 9th November 1820, showing that after demurrer an amendment will be allowed. We conceive that we have shown the general power of the Court to amend, and that after judgment the power will be exercised; and so far from the fact that the Statute of Limitations is impending over the party seeking to amend being a cause for refusing the permission, that it is an additional reason for granting it.-[BALL, J. If the plaintiffs or their ancestors were under religious disabilities, might not apparent laches be thus accounted for ?]

Holmes, in reply.

As to the propriety of showing indulgence to the plaintiffs, in consequence of possible disabilities arising from the laws against Popery, that argument cannot be entertained, the Legislature having already fixed the limit of that indulgence by 6 & 7 Vic. c. 54, s. 30. The Court has no power to go beyond the provisions of that Act, for

(a) 3 Lev. 347.

(c) 2 Moo. & P. 586.

(e) Quare Impedit, 255.

(b) Ridg. temp. Hard. 89, 90.

(d) 13 M. & W. 556.

(f) 2 Wilson, 118.

(g) 1 Ros, on Real Actions, 179; vide same, 186.