1841. DoE dem. บ. LEACH. The tendency of Doe dem. action against the casual ejector. [Erskine J. Your TINDAL C. J. The only question in this case is, whether or not the amendment, directed by the learned baron who tried the cause, was one which he had authority to make; for if it was such an amendment, we cannot inquire into the propriety of making it, but must assume that it was in a particular " not material to the merits of the case," and that by making it the defendant was not "prejudiced in the conduct of his defence." It appears to me that, by the 3 & 4 W. 4. c. 42. s. 23., the learned judge had power to direct the amendment in question. The form of a declaration in ejectment is to this effect:" John Doe complains, for that one A. B. (the lessor of the plaintiff), on a certain day demised to the said John Doe a certain messuage with its appurtenances, in a certain county; and that afterwards the said John Doe entered and became possessed of the said messuage, (a) 1 A. & E. 750., 3 N. & (b) Vide 3 N. & M. 652, M.646. &c.; and that John Doe so being so possessed, the said Richard Roe, afterwards &c., with force and arms, entered into the same, and ejected the said John Doe." When the declaration is delivered, and the tenant is admitted to appear and defend, he enters into a consent rule, by which he is bound to appear, by himself or his attorney, to accept a fresh declaration, and to confess lease, entry, and ouster upon the trial. The allegation in the declaration is, that the lessor of the plaintiff, upon a given day, executed a lease to the latter. The statute empowers the judge to amend the record "when any variance shall appear between the proof and the recital, or setting forth on the record, &c., of any contract, custom, prescription, name, or other matter in any particular or particulars in the judgment of such judge, &c., 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." How can it be said that the averment in the declaration, that the lessor executed a lease of the premises, is not a matter alleged on the record, which is amenable under the act? It seems to me that here, there was a variance between the allegation of the lease and the proof, the amendment of which is clearly warranted by the statute. But it is said, that the consent rule is the only evidence of the demise, and that any alteration in the latter operates as an improper interference with the terms of the defendant's admission. It is to be observed, however, that on the amendment being made, the declaration is to be considered as having been always in its amended form, and the consent rule is to be taken as applicable thereto. (a) I think, therefore, that (a) The declaration in the action against the casual ejector was not amended. Supposing, therefore, the declaration in the substituted action against Ed- 1841. DoE dem. V. LEACH. 1841. DoE dem. v. LEACH. the case is free from the difficulty which has been suggested, and that the rule must be discharged. COLTMAN J. I concur with my lord in thinking that this rule must be discharged. The objection urged on the part of the defendant, overlooks the real nature of an ejectment, that it is altogether a fictitious proceeding, which may be called the creature of the court. In this case, the declaration, in substance, asserted that the plaintiff had a right of entry on the 15th of January, and the proof was, that such right did not accrue until the 16th. It seems to me, therefore, that this was a variance, which, keeping in mind the nature of the action, falls fairly within the provisions of the statute. In many instances, undoubtedly, it may be material to the merits whether the right of entry accrued on one day or the other; and in such a case, the judge would, in all probability, refuse to amend the variance. The question, however, whether this amendment was material to the merits of the case, does not, strictly speaking, arise before us, but it seems to me that the learned judge exercised a very proper discretion. ERSKINE J. I also am of opinion that the learned judge had power to make this amendment. If we were to allow ourselves to be fettered by the technical form of an ejectment, we might probably come to the conclusion, for the reason assigned on the part of the defendant, that the present amendment is not within the statute. Doe dem. Marriott v. Edwards was a much stronger case than this; for there an amendment was made in the parish wherein the premises were situate, although the name of the parish is always specified in the consent rule. (a) We must look, not at the technical form of the action, but at the substance of the question which the parties are prepared to try. Here, the substance of the inquiry was, when the plaintiff's right of entry attached. If that be so, then a statement in the declaration being, that the right of entry accrued on the 15th, and the evidence being, that it did not accrue until the 16th, there was a variance between the proof and the formal statement on the record, not material to the merits, and which falls clearly within the provisions of the statute. MAULE J. The substance and legal meaning of the declaration, taken in connection with the other proceedings, is, that on the 15th of January the lessor of the plaintiff had a right of entry upon the premises in question. The evidence given was, that the right did not accrue until the 16th. That is a variance between a matter stated on the record, and the proof, which appears to me to fall within the express words of the statute. It has been urged that the consent rule applies only to the declaration served, and to the demise therein set forth; but that is not the true construction of the consent rule. By the terms of the rule, the defendant undertakes to accept, not any particular declaration, but a declaration, and to plead the general issue thereto, and, at the trial, to confess lease, entry, and ouster, which are mere matters of form, adopted to enable the parties more conveniently to try the question between them. The consent is, to confess any lease, &c. that will establish the title of the lessor of the (a) The margin of the consent rule, instead of describing the tenements in the possession of the tenant, almost invariably follows the language of the 1841. DoE dem. บ LEACH. 1841. DoE dem. v. LEACH. plaintiff (a); and the rule must be considered with reference to the general state of the law, which allows amendments to be made at nisi prius, and of which the defendant must be assumed to have been cognizant when he entered into the rule. The consent rule is, therefore, equally applicable to the declaration after the latter is amended, as it was in its original form. (a) Quare, whether a tenant, having entered into a consent rule, would be bound to accept an issue under which the plaintiff might prove a Rule discharged. right of entry in his lessor, varying, by a year or a day, from that which he had set up in his declaration against the casual ejector. June 11. In re ALICE SHAW. The acknow-TALFOURD Serjt. moved that the certificate of acledgment of a knowledgment of a deed by a married woman, since deceased, might be received and filed, pursuant to the deed by a married woman, under the 3 & 4 W. 4. c. 74., where the affidavit veri provisions of the 3 & 4 W. 4. c. 74. The proceedings were regular, except in the title and commencement of the affidavit verifying the acknowledgment, which, instead of being in the form prescribed by the rules of H. T. 4 W. 4. (a), was as folment, varied, lows: fying such acknowledg in its title and commencement, from the form prescribed by "Commonwealth of Pennsylvania, City of Philadelphia, to wit. Be it remembered that on the 10th day of December 1840, before me John Binns, Esq., an alderman of and for the city of Philadelphia, in the commonwealth of Pennsylvania,' personally came John Slack, the one of the commissioners mentioned in the certificate the rule of H. T. 4 W. 4. was allowed to pass; one upon affidavit being hereunto annexed, who, being first duly sworn according to law, did depose and say, that he knows Alice jury could be Shaw," &c. assigned. which per (a) See 10 Bingh. 462. |