Amendment

2 1.

Correction of a fault; the curing of a defect; alteration for the better; improvement. Whence amendatory. " Amend," in its most comprehensive sense, means to better... When a defendant is allowed to withdraw one plea or answer and to substitute another which rightly sets out his defense, it is a change for the better — an " amendment." ^ Also, the writing or instrument made or proposed, which embodies the improvement. Used of the correction, proposed or actually made: of an error in the pleadings or proceedings in a pending cause; of changes in bills, statutes, and ordinances, by lawmakers; of altei'ations in charters and bylaws: of changes in constitutions.

Material amendment

In pleading, such change in the substance of a party's case as destroys its former identity and occasions surprise {q. v.) in his adversary. At common law, proceedings being in fieri till judgment, the coin'ts allow amendments up to that point. After judgment enrolled, no amendment is permitted at a subsequent term; for only during the first term is the record in the breast of the court.* See further Record, 2. An indictment, being a finding upon the- oaths of the grand jury, can be amended only by their consent. See Indictment. Allowipg amendments is incidental to the exercise of all judicial power, and indispensable to the ends of justice. Usually to permit or refuse any particular amendment rests in the discretion of the court; the result is not assignable for error.' An appellate court w Ul regard as made such amendment to a verdict as should have been made in the court below." A bill in equity may be amended, when found defective in parties, in prayers for relief, or in the omission or mistake ot some fact or circumstance connected with the substance of the case, but yet not forming the substance itself, or for putting in new matter to meet the allegations m the answer. That is to say, by amendment the plaintiff may not make a new bill.' " Dale County v. Gunter, 46 Ala. 142 (1871), Peck, C. J. 2 F. amender: L. emendare, to free from fault. ' [Diamond v. Williamsburg Ins. Co., 4 Daly, 500 (1873), Daly, C. J. ■1 3 31. Com. 407-8. »Tilton V. Cofield, 93 U. S. 166 (1876); International Bank-u. Sherman, 101 id. 406 (1879); Tiernan v. Woodruff, 5 Mc Lean, 138 (1860), cases; 11 F. R. 781; 13 id. 663-55, cases; 132 Mass. 194. » Shaw V. North Penn. R. Co., 101 U. S. 567 (1879). In reference to amendments of equity pleadings generally, the courts have found it impracticable to lay down a rule for all cases. Their allowance, at every stage, must rest in discretion — a discretion depending largely upon the special circumstances of each case. But the ends of justice should never be sacrificed to mere form, nor by a too rigid adherence to technical rules of practice. Where the application comes after the litigation has continued some time, or when granting it would cause serious inconvenience or expense to the opposite side, great caution should be exercised. Where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs, an amendment should rarely, if ever,be"permitted.^ -See