entitled, "An Act for the further amendment of the law and the better advancement of justice," and is taken from the last above mentioned act of 3 & 4 Wm. IV. ch 42, sec. 1. When these rules were passed, they were only applicable to one court, that is the Court of Queen's Bench. Our act speaks generally of "actions at law." These rules were confirmed by provincial statute 6 Vic. ch. 9 (1842), and in the recital follow the statute, in the words, "all actions at law."

No. 23 of these rules-Cameron's Rules, p. 29-provides that the entry of continuances by way of imparlance, curia adversari vult, or otherwise, shall be made upon any record or roll whatever in the pleading, except the jurata ponitur in respectu, which is to be retained. The form of such entry is given in No. 45, page 64, of Cameron's Rules, No. 2. No. 29, p. 35, provides that every declaration should be entitled in the court, &c., of the day of the month and year in which it is filed; and so of every pleading by No. 30. There is nothing in terms restricting these rules to personal actions, or excluding ejectments; but as declarations in ejectment are served before being filed, unless afterwards altered upon the appearance of the tenant, the proceeding is not adapted to the rule requiring declarations to be dated of the day on which filed, though such declaration may be entitled of a particular day, according to Doe Ashman v. Roe, ante. The rule Hilary Term, 13 Vic. No. 45, ante, may exclude the form for concluding the Nisi Prius record given therein, No. 40, pp. 12 & 13; but whatever form be adopted, the effect is the same, unless there is to be a trial at bar. The jury are to come at the assizes; and the statute 13 & 14 Vic. ch. 55, secs. 29, 34, provides for the practice and forms, &c., unless thereby altered, &c., and was passed subsequently to the rule Hilary Term, 13 Vic. They were to some extent framed in consequence of the statute of 12 Vic. ch. 63, sec. 29, which act altered the form of process from the ca. re. to the summons in personal actions. See secs. 22 & 34. It is not necessary to determine whether the conclusion of the record is really irregular or defective. I think it is substantially right, and that

the irregularity, if any, is cured by the defendant's appearance, &c.; and, under the circumstances, any more formal entry is immaterial. The Nisi Prius record might be amended.—1 Dow. N. S. 101.

MCLEAN, J., and SULLIVAN, J., concurred.

Rule discharged.

JOHN DOE ON THE DEMISE OF DUFF ET AL. V. DOUGALL ET AL. A judge's order having been obtained to amend the proceedings in an ejectment suit, after the consent rule and plea had been filed, (by adding three new demises.) and no proceedings having been taken under the order until the commission day of the assizes-being some months after the granting of the order-when the Nisi Prius record was passed with additional demises. The record was entered for trial, and the defendants made no objection to the case proceeding until after the jury had been sworn and the plaintiffs had given evidence. when the defendants objected to the amendment and refused to confess lease, entry and ouster, except to the original demises, and a verdict was entered for the lessors of the plaintiffs on the original demises only. Held, On an application to set aside the verdict on the original demises, that the new demises added to the Nisi Prius record did not violate the N. P. record or verdiet; and that the lessors of the plaintiff could abandon the order to amend. Held also. That, after the defendants appearing and confessing lease &c., it was too late to object to the regularity of the notice of trial.

Part of lot No. 3, 1st concession of the township of Malden, or No. 9 Berczy Block, specially described in the consent rule. The declaration is entitled of Michaelmas Term 14 Vic., and was originally upon the three first demises only. The plea of not guilty is entitled Hilary Term 14 Vic., the 21st February 1851. Venire-jury to come the last day of Easter Term next. Continuance, to last day of Trinity Term next. Second placita of Trinity Term 15 Vic. 1851.

Jury respited until 1st of Michaelmas Term next, unless, &c. The consent rule is entitled Hilary Term 14 Vic., in name of John Doe, upon the three first demises only, and bears date the 21st February 1851. The three last demises were added under a judge's order, after the consent rule and plea had been filed.

At the trial, the defendant's counsel objected to the amendment and refused to confess lease, entry and ouster and possession, except as to the three first demises, on which alone the plaintiff in consequence proceeded, and obtained a verdict thereon-nothing being said of the three last demises in the entry of the verdict, on the notes of Draper, J., who tried the cause; it was noted by him that defendant confessed lease, &c.-but it was afterwards struck out.

Y

VOL. II.

Wilson, Q. C., for defendants, obtained a rule calling on the lessors of plaintiff to shew cause why the Nisi Prius record, and all proceedings thereon, should not be set aside with costs, on the grounds

1st, That the record is made up by adding counts which have not been filed or served on the defendants' attorney, and by adding a plea for the defendants to the alleged declaration on the record, which the defendant had never pleaded; and because,

2ndly, The rule annexed to the record is not entitled in the cause in which the record is, nor is the record warranted by the said rule; and because,

3rdly, There could have been no trial or verdict in the cause, as the defendant did not appear to or consent to the lease, entry, ouster and possession upon this record. An affidavit was filed, entitled as in a cause on six demises of Albert Prince, defendants' attorney, and Morris, Deputy C. C., that about the 15th August last he received a copy of an order, dated 24th April 1851, of Draper, J., entitled as in a cause on three demises, granting leave to amend the declaration by inserting three additional counts or demises corresponding with the three last demises in the declaration contained in the Nisi Prius record; that no amended declaration was ever served, nor any plea filed, nor any consent rule amended or entered into in accordance with such order; that on the 7th October defendants' attorney was served with notice to produce at the trial of that cause a deed therein mentioned, entitled as in a cause Doe ex dem. Wm. Duff, Alex. Callum and Wm. Mager, against defendant; that no amendment was ever made in the documents filed in the office of the Deputy C. C. until the commission day of the last assizes at Sandwich, at which time the record was passed in accordance with the order to amend then filed.

It appeared, on shewing cause, that, on the 25th October 1851, the general issue was pleaded by defendants, entitled as in six demises, and replications demanded. 30th September 1851; notice of trial, entitled as in the six demises, was served for the assizes on Tuesday, the 14th October

1851; also, on the same day, notice to admit an indenture dated 16th October 1849, entitled as in six demises, at the bottom of which the defendants' attorney, Albert Prince, agreed to make the admission specified in the above notice and subscribed the same.

It appears, therefore, that the original declaration was in three demises; that to such declaration the defendants appeared, entered into the usual consent rule as tenants, and pleaded not guilty; that afterwards notice of trial was given for the last spring assizes, and notice to produce, &c., served, but that the case was not then tried; that afterwards, on the 24th April 1851, the plaintiff obtained a judge's order for leave to add three more counts or demises, when served not appearing, but it was received by defendants' attorney on the 15th August; that on the 30th September notice of trial and notice to admit a deed, entitled as in the amended cause, was served on defendants' attorney, who accepted such notice and agreed in writing to admit the deed, but no amendment was made in the declaration till the 14th of October last, being the commission day of the assizes; on the 7th October a notice to produce was served, imperfectly entitled in the names of the lessors: that, since the trial, defendants' attorney has filed a plea to the amended declaration; that, at the beginning of the trial, lease, &c., confessed was entered, but struck out, and that after evidence given and admissions made of the original right of Charles Berczy, under whom plaintiff claimed, and of his deed, dated 16th October 1849, to some of the lessors, &c., and of the order to add the demises of the 24th April last, defendants' counsel objected to the want of amendment and refused to admit lease, entry, &c., except as to the three first demises, in which alone plaintiffs proceeded and obtained a verdict after giving additional evidence, no further defence being made.

Macdonell shewed cause-That, admitting the amendment attempted to have been imperfect and abortive, no verdict was given on the three new demises, and the objection is reduced to a mere irregularity in adding those demises, which are rendered immaterial, and the objection

comes too late after the jury have been sworn and the trial had proceeded under a tacit admission of lease, entry, ouster and possession, without exception, although the defendant knew the style of the cause had been altered, and appeared by counsel; that in such amendments in ejectment no declaration is served, nor does the defendant plead de novo, which was the ground of objection at Nisi Prius; that the undertaking to admit documents was a step in the cause, and recognized the new style as to all the demises, and estopped the defendants-Cameron's Rules, p. 32, No. 28; and R. H. T., 13 Vic., p. 7, No. 22—No. 45, p. 14; Bell v. Graham, 2 U. C. R. 37; Ketchum v. McDonell, 2 U. C. R. 378; Doe Leonard v. Meyers, 2 U. C. R. 382. That it is not shewn the amendment was not in fact made before the N. P. record was passed, although made on the court day.

Wilson, Q. C., in reply, contended that nothing was done under the order to amend, but the first step after its service was on the 30th of September, when an irregular notice of trial was given; that an irregular notice of trial need not be returned-Wood v. Harding, 3 C. B. 968; that no such cause existed as in the altered title, and the defendants were not aware that the amendment had not been made; that the defendants did not admit any lease, entry and ouster at all. As to entitling the papers-9 Jur. 829; Doe Pratten v. Board, 10 M. & W, 675. Lessors who do not join in the consent rule not liable to costs, and defendants would have no remedy against the new lessors-Cotterel v. Apsey, 6 Taunt. 322; Heath v. Freeland, 1 M. & W. 543; 11 Jur, 1012; Mayhew v. Blofield, 1 Ex. 468; Hamlet v. Breedon, 4 M. & G. 909.

MACAULAY, C. J.-I think the rule should be discharged. It is not distinctly shewn that the additional demises were not added to the declaration by way of amendment before the record was passed. The defendants appeared by counsel, and made no objection to the case proceeding until after the jury had been sworn, and the plaintiffs had given evidence partly upon admissions made by the defendants' counsel. No formal admission of lease, entry and