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Allowing Amendments to be made on the Record in certain Cases.
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XXIII. ‘And whereas great Expence is often incurred, and Delay or Failure of Justice takes place, at Trials, by reason of Vacancies as to some Particular or Particulars between the Proof and the Record or setting forth, on the Record or Document on which the Trial is had, of Contracts, Customs, Prescriptions, Names, and other Matters or Circumstances not material to the Merits of the Case, and by the Mis-statement of which the opposite Party cannot have been prejudiced, and the same cannot in any Case be amended at the Trial, except where the Variance is between any Matter in Writing or in Print produced in Evidence and the Record: And whereas it is expedient to allow such Amendments as herein-after mentioned to be made on the Trial of the Cause;’ be it therefore enacted, That it shall be lawful for any Court of Record, holding Plea in Civil Actions, and any Judge sitting at Nisi Prius, if such Court or Judge shall see fit so to do, to cause the Record, Writ, or Document on which any Trial may be pending before any such Court or Judge, in any Civil Action, or in any Information in the Nature of a Quo warranto, or Proceedings on a Mandamus, when any Variance shall appear between the Proof and the Recital or setting forth, on the Record, Writ, or Document on which the Trial is proceeding, of any Contract, Custom, Prescription, Name, or other Matter, in any Particular or Particulars in the Judgment of such 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 postponing 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 Party 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 withdrawing the Record or postponing 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 with 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 dissatisfied 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 improper, 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.
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