case the king against ELLAMS in what case a information quo warranto may be  amend at commonlaw SC stram SC b r h SC Cun S c barn upon show cause on  another rule why this amendment shall not be make it appear by affidavit on  the defendant part that in this mistake there be no affectation of delay but  that it be occasion mere by inadvertency and the hurry of business which the  counsel who peruse it be then in see the case of king v Armstrong and a and to  obviate a objection that the loss of a trial in this case be a reason why this  amendment shall not be allow it appear that a issue be take on one fact charge  in the plea and carry down to trial and the array there quash by the defendant  the venire be direct to and the jury return by one who be a freeman of Chester  and that have issue be join on the other fact to which the demurrer be that  will have meet with the same fate as it be liable to the same objection some  of the case cite against the amendment be Poph Syd b contra vent sand cro car  Lord Hardwicke chief justice this amendment must be ground at commonlaw no  provision be make for any such amendment by statute the practice of the court  be much alter in this respect ancient no amendment be suffer after entry on  record the common form of say on such motion all be on paper be a proof of it  and the case of amendment be not reducible to the general rule lie down for  first it be say there must be something to amend by but that rule hold not in  amendment before judgement however it may after and there be many case to the  contrary which have be cite on this occasion modern second it be say error in  law be not amendable but only misprision of clerk but it be clear otherwise  sand vent Mod in Mostyn v totty Geo in the exchequer which be a action for a  nuisance to which there be a demurrer to the declaration and joinder in  demurrer leave be give to withdraw the demurrer and to plead the general issue  three amendment be say to be Allowable only where no trial have be lose but I  know no case where that have be lie down a great number of amendment have be  make after argument on demurrer where trial must general have be lose fourthly  it be say that some extraordinary amendment have be allow but that have be  where the party will otherwise be deprive of his action and lose his right as  in the case of the duchess of Marlborough v Widmore on the statute of  limitation and the case cite in lev which be a action on the statute of hue  and cry which must be bring within a year after the robbery but sure the loss  of a office be of as great consequence and deserve as much favour it be say  that this be a criminal suit but I can say it be such it seem indeed modern er  p to be so in respect of the fine which must be set on the conviction but then  in other respect it be mere civil a relator be to be appoint by statute cost  be to be pay and a method be direct for the trial of a right and seem not to  differ from trespass where the defendant be fill but suppose it to be a  criminal suit that will make no difference in amendment at commonlaw there be  no distinction between one and the other that difference be find mere on the  statute of amendment and Jeofails by the word plaintiff and defendant and have  therefore be confine to civil suit the question then be reduce to this point  whether this case be under such circumstance as may induce the court to  exercise their discretion in order this amendment to be make No trial appear  here to have be lose for the contrary appear on affidavit I be very doubtful  of grant this amendment until satisfaction be give to the court that no delay  be intend in the case which matter be now sufficient clear up issue in this  case may have be join on the plea and if a verdict have be give for the  defendant advantage may have be bad of this mistake by writ of error for  though in indictment it be necessary to give the attorneygeneral some  satisfaction of a probable error in order to obtain his fiat for the allowance  of the writ of error yet it be not so where a right be concern as in the  present case the other judge concur in omnibus but lee justice say he be at  first a little in doubt on the distinction take by holt chief justice in salk  but say that rule will not hold as appear by several authority the anonymous  case in Mod be express otherwise the rule for the amendment be make absolute