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came a record (n) and in conformity with this maxim, the courts have frequently refused to amend the caption of an indictment in a term subsequent to that in which it came in and was entered of record (o).

But, in the case of the King v. Christopher Atkinson, it was solemnly decided, after a full consideration of all the previous cases, that a caption might be amended af ter the term, and made to correspond with the truth of the case. It appeared, that the defendant had been convicted at a session of oyer and terminer for the county of Middlesex, that the sessions of the peace, and of oyer and terminer for the county, are holden at the same time, and that the clerk of the peace had two printed forms of captions, the one applicable to indictments preferred under the commission of oyer and terminer, the other to those preferred under the commission of the peace, and that a junior clerk, upon the receipt of the certiorari, took by mistake a return of a caption of the peace, and, striking out the word peace, inserted the words oyer and terminer. The consequence was, that the caption was neither applicable to a session of the peace, nor to a session of oyer and terminer. The certiorari was returned in Easter term, 1783; the defendant was found guilty at the sittings after the next Trinity term, and in the Easter term following, the attorney-general moved to amend the return to the certiorari, by the commission, &c. according to the fact, and to amend, the caption by the return.

(n) 1 Saund. 249. 2 Haw. c. 25. s. 97.

(o) See 2 Hale, 168. Sir W. Jones, 421. 1 Roll. Ab. 196. 1 Sid. 175. 6 Mod. 273. 278.

8 Co. 310. 2 Ld. Ray. 968. 6
Mod. 58. 1 Vent. 344. 2 Ld.
Ray. 1039. 1 Str. 442. 1 Bac.
Ab. 89.

This was opposed on the authority of the cases which have been alluded to, in answer to which the following authorities and cases were cited, R. v. Percival (p), Oddington v. Darby (q), R. v. Wilkes (r), Sir W. Blackstone's Commentaries (s), R. v. Hockenhull (t), R. v. Hayes (u), Harris's case (x), Philips v. Smith (y), Thorney's case (z), R. v. Fairweather (a), and R. v. Ponsonby (b).

Lord Mansfield afterwards delivered the judgment of the court in favour of the amendment, principally on the following grounds (c).

1. That the return of a caption to the court of King's Bench is merely a ministerial act (d), and that ministerial acts are amendable at common law at any time (e).

2. That the application was to make the copy the same as the original, and not to alter the original caption (f).

3. That the cases of the King v. Hockenhull and the King v. Fairweather, were authorities directly in point (g).

(p) 1 Sid. 244.

(q) 2 Buls. 35.

(r) 4 Burr. 2527.

(s) 3 Bl. Comm. 406.

(t) 3 Mod. 167. Comb. 73.
(u) 2 Ld. Ray. 1518. 2 Str.

(x) Cro. J. 502.
(y) 1 Str. 138.
(z) Cro. J. 276.

(a) 1 Will. Saund. 249, n. 1. (b) Ib. See also 39 H. 6. 40. (c) See the reasons at length, 1 Will. Saund. 248. n. 1.

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And Lord Mansfield further observed, that "even considering the caption as an original, it may be amended in analogy to the instances of amendment in civil cases at common law which have been allowed, though in fiction of law the original has been already removed; since at common law there is no distinction as to amendments between civil and criminal cases (h); and in civil cases there are innumerable instances in which amendments have been made by the record below. So coroners return original inquisitions, yet they may be amended in all points except the finding of the jury (i).

prision to be amended. 3 Mod. 167. 1 Will. Saund. 249. n. 1. In the case of the King v. Fairweather, 1 Will. Saund, 249. n. 1. it appears that the court ordered the caption to be amended in a subsequent term; but Mr. Serjeant Williams doubted whether this case could be considered as an authority, since the court made a rule absolute, in the first in stance, for the defendant to withdraw his demurrer and plead de novo, and that the clerk of the peace should be at liberty to amend the caption, and pay the defendant his costs; and it is impossible to suppose that the court would have made such a rule abso

lute in the first instance, except by consent.

(h) Cro. J. 502. 276. 529. 2 Roll. Rep. 59.

(2) In Glover's case, 1 Sid. 259. the inquest found, that Glover seipsum felonice submersus fuit, without saying that he died. It was holden that this was matter of form and amendable; and Twisden, J. held, that an inquisition might be amended by the insertion of the word murder, and it was holden, that all matters of form were amendable by the coroner, but no matter of substance. See the form of awarding process to the coroner to come in and amend the inquisition. 8 H. 5. 8. 2 E. 3. 1. 18. See also R. v. Harrison, 1 Sid. 225.

"And in the case of the King v. Wheatley (k), the clerk of the peace for the county of Wilts was ordered to bring iuto court the original indictment against the defendant, in order that the defendant might be discharged, if upon examination it should agree with the indictment remaining in court, on account of its insufficiency. In the case of the King v. Serjeant (1) and others, the clerk of the assize for the county of Lincoln, was ordered to bring into court the whole bag or file of indictments found at the gaol delivery, together with the names of the jurors. And in the case of the King v. Beach (m), the clerk of the assizes for the county of Dorset was ordered to amend the certificate of the indictment against the defendant, according to the original. The certificate must mean either the caption, or the transcript of the indictment itself, and these authorities combat what is said in the case of the King v. Alcock (n). These cases shew, that previous to the reign of Charles the Second, as well as since, courts have proceeded on the same idea as a fundamental rule, that a fiction of law shall never prevail against the truth of a fact to defeat the ends of justice (o).”

Upon the authority of these cases it would probably be holden, that the caption of an inquisition before a coroner, or even the inquisition itself, is amendable in

(k) Mich. 3 J. 1. (2) Hil, 3 J. 1.

(m) Mich. 7 J. 1. contra 1 Roll. Ab. 196. where the clerk of assize, certifying the record, omitted a continuance, and the court would not allow it to be amended. See 4 Mod, 396. (2) 1 Sid. 155.

(0) See 1 Sid. 225. 259. Cro.. Eliz. 258. Fitz. Amend. 35. Br. Amend.80. 13 H. 7. 23. 11 H. 7. 21. In the case 44 E., 3. 6. the court ordered an ex assensu partium to be entered on the roll in a subsequent term. But see Br. Amend. 21.

matter of form after it has been filed, either in the same or in a subsequent term, though, according to Serjeant Hawkins (p), it has been holden, that the caption of an inquisition cannot be amended at any time after it has been filed, any more than the body.

With respect to criminal informations, it seems to be settled, that they, and the pleadings founded upon them, are amendable upon motion in court, or even before a judge at chambers, at any time before the trial, in matters of substance as well as of form, though if the alteration be material, leave is given to the defendant to alter his plea (9); for these differ most materially from indictments and inquisitions, inasmuch as they are prepared by an officer of the court, and not upon oath after an examination of witnesses.

And even after judgment the court will amend a mere clerical misprision, which does not occur in the body of the information. Thus where the clerk entitled the memorandum as of Michaelmas instead of Hilary term, the court held that the defect was amendable (r); and intimated that the defect was amendable by virtue of the stat. 8 H. 6. c. 12. which specially excepts appeals and indictments of treason and felony and outlawries for the same. This special exception following words in the statute of the most general and comprehensive nature, including

any record, process, word, plea, warrant of attorney, writ, parcel, or return, which for the time shall be," ap

(p) 2 Haw. c. 25. s. 97. But see the cases, p. 251, n. (o).

(q) R. v. Harris, 1 Salk. 47. 50. Str. 871. R. v. Charlesworth. R. v. Wilkes, Burr. 2568. R. v. Simmonds, 10

Ann. cited. Str. 871. 1 Lev. 189. R. v. Goffe. R. v. Holland, 4 T. R. 457.

(r) R. v. Hockenhull, 3 Mod.


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