Dominus R, v Ellames
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1766 |
| Date | 01 January 1766 |
| Court | Court of the King's Bench |
English Reports Citation: 94 E.R. 1049
IN THE COURT OF KING'S BENCH
[39] dominus rex, . ellames. Strau. 976, S. C. Defendant's plea to a quo warranto information, amended after demurrer, and cause in the paper; it appearing by affidavit that the omission was owing to the oversight of counsel. A motion was made on the part of the defendant, for liberty to amend his plea, after joinder in demurrer, and the cause set down in the paper to be argued. An information in the nature of a quo warranto, was brought against the defendant, to shew by what authority he took upon himself to act as Mayor of Chester. By the charter of the city granted them by Hen. 7, all the citizens, inhabiting in the city, suburbs, and hamlets, thereof, have a power to nominate two persons, out of whom the Court of Aldermen choose one for mayor. The defendant, in his plea, after reciting this part of the charter, set forth, that he was nominated by the major part of the citizens, without adding, inhabiting in the city, &c. so that the plea might comprehend not only the resident, but also foreign burgesses, who had no right to vote in choosing the mayor. The prosecutor joined issue as to part, and likewise demurred as to the rest; and the defendant joined in demurrer : and the cause being set down in the paper, the defendant moves to amend his plea, and to make it conformable to the charter. Affidavits were read that the plea was not put in in the manner it was, purposely to gain time, but that it was merely a mistake of the counsel. The prosecutors now shew cause why it should not be amended. There were a great number of cases cited on the motion ; but they are all taken notice of by one side or other, in the present argument. Mr. Abney, Mr. Parker, Mr. Crowle, and others, shewed cause against the amendment ; and argued, that in amendments the Court has always gone by some one of the following rules : either that there be something to amend by, or that the fault arises merely from the tnisprision of the clerk, that no trial be lost. Another rule is, where the defendant wilfully pleads a bad plea, in order to injure the plaintiff; the Court will amend it on prayer of the party injured. Another rule is, where the action would be otherwise lost; but the present case has none of these requisites. That among all the cases cited by the other side upon the motion, in order to justify this amendment, there were not above two concerning informations in the nature of a quo warranto, and most of them were civil cases, not in the least partaking of a criminal nature; arid therefore not applicable to the present case. That they may easily be distinguished from the present case, they are as follow: The first case was, that of The King and Sir Humphry Tufton, and Sir John Ashley, Cro. Car. 144, on an information in the nature of a quo warranto, wherein the entry of a judgment was amended. The case was this: Judgment by disclaimer, as to [40] one charter, was entered by consent; but the clerk entering the judgment, had made the disclaimer general; however, as the paper books were otherwise fairly wrote, and the Attorney General certified it to be a mistake, and consented to the amendment, the Court said it was merely a misprision of the clerk, and likened it to a special verdict, which may be certified by the minutes of the clerk of assize; but the present 1050 EASTER TERM 7 GEO. 2, B. R. GUN. 41. ease is extravagantly different, as there is no consent, no misprision of the clerk, nor any thing to amend by. In Jones (Will.) 199, it is laid down as a rule, that the misprision of the clerk shall not hurt the party, but that the errors of counsel cannot be amended. That in the case of...
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Dominus R v Ellames
...STRANGE, tn. TRINITY TERM, 7 GEO. 2 979 dominus bex vers. ellames. Amendment. 2 Barn. 6. B. 440, 445. Caa. temp. Hard. 42, more at large and Cun. 39, verbatim in the same. And. Ill n. S. C. Information in the nature of a quo warranto against the defendant, who claimed to be Mayor of Chester......