in maintaining his action or defence, upon the merits. Whenever it shall be alleged, that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.

This section is identical with section 145 of the code of 1848, and under that section where two parties sued as plaintiffs, the one as the executor of Keese, and the other as the surviving partner of Keese, and it appeared on the trial, that only the surviving partner should have sued, Edmonds J., held that the variance was immaterial, and might be disregarded under this section. Keese, Exor's of, v. Fullerton, 1 Code Rep, 52.

And in an action by four persons as lessors, on the trial it appeared, that the lease was made by those four and another named Laight, since deceased, but that the interest of Laight survived to the plaintiffs, but no reason for the omission of Laight as plaintiff was assigned in the declaration. The court, Oakley, Ch. J., held, that the variance might be disregarded, and said, we leave the parties to apply by motion, to amend if they deem it prudent; on the motion the amendment will be allowed on such terms as the court deem just; and such will be the practice in future where the amendment is not made at the trial. De Peyster v. Wheeler, 1 Code Rep., 93. 1 Sand. S.C.R., 719. And see Clanton v. Laird, 12 Sme. & M, 568.

In Lettman v. Ritz, 3 Sand. S. C. R, 734, an action for slander, the complaint set forth the words in English. On the trial it was proved that the slanderous words were spoken in German, and that the words in the complaint were a translation. The plaintiff applied for leave to amend by inserting the words spoken in German. The presiding judge suffered the cause to proceed with liberty for the plaintiff to move at chambers for leave to amend. The plaintiff had a verdict, and on motion at chambers, had leave to amend on payment of the costs of the motion, "it not appearing that he had been misled or surprised by the variance."

Under an averment in an answer that the property was " very poor and of very little value," the defendant cannot prove that it was "worth nothing and of no value." Diefendorf v. Gage, 7 Barb. S.C.R., 18.

Where it was averred in a declaration, that the defendant represented the note to be "a good note, and that it would pass in South street," and the proof was that he said "the note was good, and there were people in South street who would take it," held not to be a substantial variance. Hawkins v. Appleby, 2 Sand. S. C. R.,

421.

Plaintiff permitted to amend on the trial, by striking out the name of one of the defendants. Burns v. Bronson, 1 Code Rep., 27.

Plaintiff permitted to amend on the trial, by changing the form of action from an action on a promissory note to an action on a special contract. Jackson v. Sanders, 1 Code Rep, 27.

Evidence of a special agreement is admissible in an action by a daughter against her father for wages, although the plaintiff claimed to recover on an implied agreement only. The defendant not having been misled. Fort v. Gooding, 9 Barb. S. C. R., 371.

In Getty v. Hudson River R. R. Co., 6 Pr. R. 270, Parker, J., says, "If a plaintiff asks for equitable relief and it turned out on the trial he was entitled to legal relief only, I should permit him to take it in that form. And if he had asked for legal relief only when it appeared he was entitled to both legal and equitable, I should allow the proper amendment to administer complete justice in the case. The power to amend authorized by the code is ample for such purpose." "In trying a cause at the circuit, I should most certainly allow whatever amendment in the pleadings was necessary to give the parties redress."

On a trial at the circuit, the pleading may be made to conform to the proof; immaterial allegations may be disregarded, immaterial evidence rejected, and such judgment may be directed as the facts and the law of the case require. Corning v. Corning, 1 Code Rep. N. S., 351.

After verdict for the plaintiff for an amount exceeding the amount demanded by the complaint, an amendment of the complaint by increasing the amount demand

ed should not be allowed, except on the terms of the plaintiff submitting to a new trial. Ib.

In such a case, the plaintiff, instead of amending the complaint and having a new trial, may at his option, remit the excess of the verdict over the amount demanded by the complaint, and take judgment for the amount demanded. Ib.

170. [146.] Existing suits. Immaterial variances, how provided for. Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.

See note to last preceding section. The denial of a motion to amend made at the trial, is not a ground of exception. Roth v. Sloss, 6 Barb. S. C. R., 308.

§171. [147.] Existing suits. What to be deemed a variance. -Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof.

"Where the statement is larger than the proof, that constitutes a variance, but where the proof exceeds the statement, it is no variance." Maryat arguendo in Mountstephen v. Brooke, 1 B. & Ad. 255.

The proper time to raise an objection on the ground of variance, is when the plaintiff has rested his case. 15 Johns. R, 210. See 3 Hill, 237. 5 Wend,, 301. 2

R. S, 2d, ed., 328. s. 99.

The statute of jeofails or amendments cures only defects in the pleadings or proceedings, it does not supply deficiency in the evidences. Clark v. Reed, 12 Sme. & M., 554. Reeves v. Dennis, 6 Ib., 89.

In an action on contract, there is no variance between the allegation of a sole liability and proof of a joint undertaking by the defendant and another. Carter v. Hope, 10 Barb. S. C. R., 180.

A variance between the pleadings and the proof sufficient to defeat the action or destroy the defence, must leave the case unproved in its entire scope and meaning. If left unproved in some particular or particulars, it is a subject for amendment upon terms, if the adverse party has been misled by it; otherwise amendments may be made at the trial, and without any conditious whatever. Fay v. Grimsteed, 10 Barb. S. C. R., 321.

§ 172. [148.] (Amended 1849-1851.) Existing suits. Amendments. Any pleading may be once amended by the party of course, without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which it is or may be noticed; and if it appear to the court that such amend ment was made for such purpose, the same may be stricken out,

and such terms imposed as to the court may seem just In such case a copy of the amended pleading must be served on the adverse party. After the decision of a demurrer, either at a general or special term, the court may, in its discretion, if it ap pear that the demurrer was interposed in good faith, allow the party to plead in upon such terms as may be just. If the demurrer be allowed for the cause mentioned in the fifth subdivision of section one hundred and forty-four, the court may, in its discretion, and upon such terms as may be just, order the action to be divided into as many actions as may be necessary to the proper determination of the causes of action therein mentioned.

The amendments of 1851 are in italic. The effect of the amendment is to incorporate in one section what before was contained in sections 172 and 174.

This section corresponds to section 148 of the code of 1848, which allowed an amendment of course "at any time before the period for answering it expired." As to that section, it was said: "This is simply an enactment of what has been the standing rule of the supreme court ever since 1796, except that the rule gave more time for the exercise of this privilege than is allowed by the code, and it is hardly necessary to say that no one will construe this section as allowing amendments which the court is prohibited from allowing, upon special application," per Sill, J., in Spalding v. Spalding, 3 Pr. R., 300; 1 Code Rep., 64.

It has been suggested that this section was intended to change the former practice so far, that it required amended pleadings to be answered anew, in cases where they had been appropriately answered before amendment. 1 Hill, 214; 5 lb., 556; 1 Wend., 16. The question, however, has not been decided in any reported case. Howard v. Michigan Southern R. R. Co., 5 Pr. R., 206, 207. 5 Paige, 58.

Before the code, and by the practice in chancery, on an amendment of a bill of course after answer, unless the plaintiff waived a further answer, the defendant was bound to answer, and if he did not, the plaintiff might take the whole bill as confessed. Trust & Fire Ins. Co. v. Jenkins, 8 Paige, 589.

An amendment of a bill praying an injunction, after the injunction had issued, did not, however, vacate the injunction. Selden v. Vermi ya, 4 Sand. Ch. Rep., 573. A complaint may be amended of course at any time within twenty days after service thereof, although the defendant has served an answer in the mean time. Clor. v. Mallory. 1 Code Rep., 126.

Upon this section as it stood in the code of 1849, it was held, that the right of a defendant to amend his answer, could not be divested by any act of the plaintiff, and therefore, where before the expiration of the time within which the defendant might amend his auswer of course, the plaintiff noticed the cause for trial, and took an inquest in the absence of the defendant, and the defendant afterwards and within the time allowed him to amend of course, served an amended answer, it was held that the defendant was regular, and the notice of trial and inquest were set aside. Washburn v. Herrick, 2 Code Rep., 2; 4 Pr. R., 15.

An amended pleading may be served, of course, at any time within twenty days after an amended answer is served, and although more than twenty days may have elapsed from the service of the original answer and replication thereto. The amended answer may cause a necessity for an amended complaint. Seneca Co. B'k v. Garlinghouse, 4 Pr. R., 174.

After service of a summons and complaint, and before defendant's time to answer expired, plaiutiff served an amended complaint At the expiration of twenty days from the time of service of the original complaint, plaintiff entered judgment; held, that the defendant had twenty days from the service of the amended complaint in which to answer or demur thereto. Dickerson v. Beardsley, 1 Code Kep 37.

Where a demurrer is put in and then the opposite party amends, does the de

murrer stand against the amended pleading? Jennings v. Pearce, 1 Vesey, Jun., 447.

A party has no right to amend his complaint, by striking out the name or names of one or more parties, without the leave of the court, Russell v. Spear, 3 Code Rep., 189. Nor will a plaintiff be allowed, under the form of an amendment, to introduce in effect a new bill or answer. Verplanck v. Mercht's Ins. Co., 4 Edw. 46; Dodd v. Astor, 2 Barb. Ch. Rep., 395. 18 Johns. R., 310, cited in Wiley v. Moore, 2 Wend., 259. If such an amendment is made, the defendant cannot treat it as a new action. McGrath v. Van Wyck, 2 Sand. S. C. R., 651. And where the plaintiff served a complaint in which three persons were named as plaintiffs, and within twenty days after the answer, and without any leave of the court, served an amended complaint in which the names of two of the plaintiffs were omitted,-the defendants gave notice that they would disregard the amended complaint, and did not answer it. The plaintiff applied for judgment. The court refused the application, and said the plaintiffs were not entitled to amend their complaint by striking out parties, without leave of the court, and no such leave was given or asked; the amended complaint was a nullity which the defendants were at liberty to disregard. On a proper motion, the amended complaint would perhaps be set aside. Russell v. Spear, 5 Pr. R, 142; 3 Code Rep., 189.

So where an action was commenced on May 26, by summons and complaint in the nature of replevin for goods, and on June 1, the plaintiff served an amended complaint in which the action was set forth as founded upon a promise to pay for the same goods. On June 16, the defendant served an answer entitled "in the first action in replevin" On June 19, he served another answer entitled "in the second action, in nature of assumpsit." On motion to set aside the answer first served, it was held, that a defendant cannot treat an amended complaint as a new suit, although it wholly change the nature of the action. His remedy in such a case is, by motion to set aside the amended complaint. The court granted the motion to strike out the answer first served, with leave to the defendant to move to set aside the amended complaint, and if that motion was granted, the first answer was to stand and the second to be set aside. McGrath v. Van Wyck, 2 Sand. S. C. R., 651. It seems doubtful if this section applies to pleadings in actions commenced after a plea of title in a justice's court. Cusson v. Whalon, 1 Code Rep, N. S., 27. Defendant who obtained leave to plead as a matter of favor could not afterwards amend of course. Lewis v. Watkins, 6 Hill, 230.

It is presumed that notwithstanding what fell from the court in Hasbrouck v. McAdam, 3 Code Rep., 39, a plaintiff may by amendment of course, in cases where the place of trial is optional with the plaintiff, change the place of trial named in the complaint. 7 Cow., 164.

The rule of the late court of chancery, allowing a defendant to amend of course at any time before answer, did not apply to a bill sworn to by the plaintiff as an injunction bill. Parker v. Grant, 1 Johns, Ch. Rep., 434. Perhaps, however, under the present system a complaint which prayed an iujunction might be amended of course, at least in any respect which does not affect the plaintiff's right to the injunction.

By the practice in chancery, before an answer had been put in, a plaintiff might amend of course by adding matter that had occurred after the filing of the bill. Story Eq. Pl, s. 885. Candler v. Pettit, 1 Paige, 168. Ogden v. Gibbons, Halst. N. Jer. Dig., 172. But after answer had been put in, the only way in which the plaintiff could introduce matter occurring after the bill had been put in, was, to file a supplemental bill. Safford v. Howlett, 1 Paige, 200. Saunders v. Frost, 5 Pick., 276. The exceptions to this rule were where the plaintiff, at the time of filing his bill, had an inchoate right depending for being made perfect by some event, on the occurring of which the plaintiff might amend by stating the fact of the happening of such event. Humphreys v. Humphreys, 3 P. Wms., 348. Kipp v. Hanna, 3 Bland., 26.

Now, however, circumstances happening after the commencement of the action, cannot be introduced into the complaint by amendment. Hornfager v. Hornfager, 1 Code Rep. N. S., 180. Thus where the action was commenced in September, 1850, and in December, 1850 (in due time), the plaintiff amended his complaint of course by alleging that one of the defendants, in October 1850, conveyed away all his right in the subject matter of the suit. The allegation was struck out on motion, and it

was held that the plaintiffs should have applied under section 177, for leave to file a supplemental complaint.

Under the late 174th section (now part of s. 172), the plaintiff had twenty days after a demurrer in which to amend his complaint; and where a defendant demurred to the complaint, and noticed the issue of law for trial, and took judgment in the absence of the plaintiff, within twenty days after service of the complaint, the judgment was set aside. Morgan v. Leland, 1 Code Rep., 123.

After a demurrer to an answer, the defendant may serve an amended answer of course within 20 days, although before demurring to the answer the plaintiff had obtained on motion an order to strike out parts of it, with leave to the defendant to amend on terms which he had not done. Cooper v. Jones, 4 Sand. S. C. R., 699. The only limit to the right to amend of course after a demurrer is that it shall not be done for the purpose of delay. Ib. So held where, on December 20, an order was made striking out portions of the answer, with leave to the defendant to answer on payment of costs. On January 15, the defendant not having amended, the plaintiff demurred to the answer, and noticed the demurrer for argument. On January 20 the defendant served an amended answer, and it was held he might do so without paying any costs. Ib.

Where a pleading was served without a verification, and afterwards re-served without alteration but with a verification, it was held that the pleading last served was not an amended pleading, and might be disregarded. George v. McAvoy, 1 Code Rep. N. S., 318.

In Snyder v. White, 6 Pr. R., 321, where an answer was put in and afterwards the defendant served another answer which he called an amended answer, and which in form and phraseology differed from the one first served, but in its legal effect amounted to the same thing, Welles, J., held that the answer secondly put in was not an amended answer, and that the defendant had no right to put it in, because it was identical in legal effect with the answer first served, and he ordered the answer secondly served to be struck out. We cannot understand on what authority this case was decided, and although the report of the case is quite full it does not state any authority for the conclusion arrived at. The only argument we can imagine in support of this decision is, that the answers being identical in legal effect is an evidence that the amendment was made for the purpose of delay.

After issue, notice of trial, and the examination of a witness under section 391, it is too late for a defendant to amend of course, although 20 days have not elapsed since the answer was served. Snyder v. White, 6 Pr. R., 321.

Under the practice prior to the code, a defendant could not amend as of course by withdrawing a demurrer and putting in an answer. Blecker v. Bellinger, 11 Wend., 179. It seems doubtful if he may do so under the present practice. Such a proceeding is more properly a substitution of one pleading for another than an amendment.

The provisions of this section can apply only to cases where the first pleading put in is regular; for if the opposite party on receiving an irregular pleading, prepare to move to set it aside for irregularity, the party pleading it cannot amend without payment of the costs of the opposite party. Williams v. Wilkinson, 1 Code Reports, N. S., 20.

The right given by this section is not per se a stay of proceedings. Cusson v. Whalon, 1 Code Reports, N. S., 27.

A summons cannot be amended without leave of the court. Section 172 allowing a pleading to be once amended of course, does not apply to a summons which is not a pleading but process. The power of amendment is in terms confined to the court, by s. 173. McCrane v. Moulton, 1 Code Rep. N. S., 157. Diblee v. Mason, Code Rep., 37.

On the disallowance of a demurrer to a complaint where the defendant has leave to answer on payment of costs, the plaintiff is entitled to costs as follows: For proceedings before notice of trial, $12; for the trial, i.e., the argument of the demurrer, $15. See I Code Rep. N. S., 214.

173. [149.] (Amended 1849-1851-1852.) Existing suits. Court may onder amendment.-The court may before or af ter judgment, in furtherance of justice and on such terms as may be proper, amend any pleading or proceeding, by adding