joinder of an issue of fact or law, the court will, in their discretion, refuse the application, or grant it upon special terms; and when either party amends, the other party shall be entitled also to amend, if his case require it. But no new count, or amendment of a declaration will be allowed, unless it be consistent with the original declaration, and for the same cause of action.

The court, however, may, notwithstanding the above rule, grant any amendments of substance in other cases, or in those provided for by the rule, upon other terms, according to its discretion, until it shall be further limited by some new rule.'

The discretion of the court in granting amendments, may be exercised by a single judge presiding, as when holden by three or more justices, and if the case come within his discretion, the exercise of it can neither be corrected, appealed from, or controlled.2

The particular cases will now be considered wherein the amendments are allowable, either at common law, or by statute.

SECT. I. WHAT MAY BE AMENDED AND HOW.

As to writs. If a wrong writ be sued out, as if a capias should be issued against an executor, or a corporation, or a writ of attachment, in dower, or a writ of summons and attachment, in a real action," the mis

1

3

Haynes et ux. v. Morgan, 3 Mass. Rep. 208.

2 Ibid.

4

take cannot be amended, it being an error in substance, which in either case renders the writ void, and not an error of form merely.' So also, if an original summons be served, as a capias and attachment, and returned as such by the officer, no amendment will be allowed, as none could set it right, and make that service good and valid, which was originally bad. No decisions in our courts will be found reported upon these points, but they clearly come within the principles heretofore stated upon the subject.2

Teste, seal, and signature. The teste of a writ, may always be amended on motion; but a mistake in the seal, and, it seems, in the signature of the clerk, cannot be amended."

In Maine, however, it has been decided, that if the clerk omit to affix the seal of the court to an execution, it may be amended, even after the execution has been extended on land, and the extent recorded. And in New York, where a writ had been issued and served, without any signature by the clerk of the court, to which it was returnable, it was holden not to be void, but capable of being amended, by the clerk's putting his signature thereto, after it was returned."

Direction to officer. The direction in the writ to the officer may be amended, where the writ has been properly served. So the return-day of writs are, in prac

1 Ante page 359.

2 Ante page 360. Vide Hall v. Jones, 9 Pick. Rep. 446.

3

Ripley v. Warren, 2 Pick. Rep. 592.

4 Hall v. Jones, 9 Pick. Rep. 446.

5

Sawyer v. Baker, 3 Greenleaf Rep. 29.

6 Pepoon v. Jenkins, Coleman's Ca. 55.

Hearsey v. Bradbury, 9 Mass. Rep. 95. Wood v. Ross, 11 Mass. Rep.

276. Campbell v. Stiles, 9 Mass. Rep. 217.

tice, commonly permitted to be amended, and no instance of refusal is known.

Returns of writs. It is a common practice for the officer to amend his return on writs, after they have been served, provided the mistake be in the return, and not in the service and during the pendency of the action, it is believed to be common and proper for the officer who made the service, either to make his return de novo, or to amend, or to complete it, when incomplete. No limitation has been imposed upon the power of granting amendments in such cases.

Where the officer had merely made minutes of the time and mode of service of a trustee process on the principal and trustee, but had not completed and signed his return, he was permitted to complete it, after he had ceased to be an officer.'

2

After judgment in the suit, in which the return is made, the rule is equally unrestricted, and amendments will then be granted, whenever the court think proper in their discretion, to allow them to be made. In the case of Thatcher et al. in error v. Miller, the Court of Common Pleas, refused to allow an officer to amend his return, six years having elapsed since the return was made, and Parker C. J. in delivering the opinion of the Supreme Court, says, "if the precept had originally issued from this court, we are inclined to think that we should not, so long after the transaction, permit the officer to amend his return. More than six years have elapsed since the return was made; and the deputy sheriff now of fers to insert an essential fact, the omission of which

1 Adams et al. v. Robinson & Tr. 1 Pick. Rep. 461 2 13 Mass. Rep. 270.

may render him liable to an action for damages. It would be unsafe to expose officers to so much temptation."

But amendments may be allowed, not only after judgment, but even after a writ of error has been brought, to reverse the judgment.'

Amendments are not allowed, which affect the interest of third persons, not parties to the suit; as where an officer, in his return of an attachment of an equity of redemption, misdescribed the land, he was not allowed to correct the mistake, in an action afterwards brought against the purchaser under the levy and sale upon execution, by a subsequent purchaser from the original defendant. It was thought, however, until very lately, that during the pendency of a suit, such an amendment might be made, as against all persons, and officers have frequently been permitted to correct in their returns, the description of the property attached, the boundaries and quantity of land, and to include in it other property not before described ; for as there is no precise time, within which a return must be absolutely completed, the power of granting leave to amend in such cases seemed to be fully within the discretion of the court, at least during the pendency of the suit. The recent case of Emerson v. Upton, has imposed great restrictions upon this practice. It was there held that an amendment by an officer, at the second term, during the pendency of the suit, of the date of his return upon the writ,

1 Thatcher et al. in error v. Miller, 11 Mass. Rep. 413. Same v. Same, 13 Mass. Rep. 270.

2 Williams et al. v. Brackett, 8 Mass. Rep. 240.

29 Pick. Rep. 167.

showing the time, when the attachment of certain real estate was made, should not affect the rights of a third person acquired under a mortgage, recorded before the date of the attachment as first returned, although it appeared, that the date in the officer's return, " June 6, 1827," instead of "March 6, 1827," as amended, was a mistake, and should have originally been the latter instead of the former. Parker C. J. in delivering the opinion of the court, says, "it will be found on examination of the cases, in which amendments of writs have been granted, that the effect of them, when any change has been made, has been limited to the parties to the suit, in which the amendment is granted."

In the case of Freeman v. Paul,' it was holden, that after a bill in equity is brought to redeem mortgaged premises, the officer, who executed the writ of habere facias, under which the mortgagee entered, cannot amend his return, by stating an earlier day of service, for the purpose of foreclosure.

The result of the authorities clearly is, that whatever amendments, either of writs, or of the returns thereon, may be allowed, whether before or after judgment in the suit, they will never be permitted, so as to affect the rights of third persons, not parties to the suit.2

Ad damnum. It is usual to grant the plaintiff leave to increase his ad damnum, as of course, upon motion. Even after verdict, where it was for a sum larger than the ad damnum, leave has been given to amend by increasing it, and a new trial ordered to enable the defendant to contest the enlarged de

1 3 Greenleaf Rep. 260.

2 This will be more fully considered hereafter.