that such amendment 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.

On the first head, it will be seen that twenty days is the time allowed to amend in all cases; but the period from which this time is to be computed is variable, according to the varying circumstances of each case. The weight of authority runs at present, that, in all cases in which service by mail is admissible, the time allowed to amend is doubled in practice, and the party has forty days, instead of twenty, for that purpose.— Washburn v. Herrick, 4 How. 15; Cusson v. Whalon, 5 How. 302; 1 C. R. (N. S.) 27. This conclusion seems, nevertheless, to be somewhat doubtful; although these cases stand, for the present, alone and uncontradicted. The provisions as to service by mail, occur in that portion of the Code more peculiarly applicable to purely interlocutory proceedings. The date within which a pleading must be served is, in fact, "otherwise provided for," (V. sec. 408,) and is imperatively fixed by sections 143 and 153. Under the former, the demurrer or answer must be served within twenty days after the service of the copy of the complaint. Under the latter, the plaintiff may, within twenty days, reply to new matter in the answer. It may well be contended, that these positive limitations cannot be repealed, by implication from other provisions, not directly applicable to the subject of pleading, but inserted, on the contrary, with peculiar reference to the ordinary notices in a suit, and to the subject of interlocutory motions or other applications during its progress. This construction seems the sounder, and works, in fact, no practical hardship, because it is always in the power of the party, if he require it, to obtain further time to plead, by means of an application in the ordinary manner. It may probably be held, however, that, if duly posted within the twenty days, a pleading may be served by mail, in cases where such service is applicable; and therefore it would, perhaps, be imprudent to enter up judgment by default, on the non-receipt of an answer, until sufficient time has been allowed for its transmission by due course of post.

To a certain extent, the right to amend is a stay of proceedings; and, during its continuance, the adverse party, if he pro

ceed during that time, proceeds at his peril.- Washburn v. Herrick, above cited.

Thus, if the plaintiff take judgment within the period allowed to the defendant to amend, that judgment will be set aside, if the defendant afterwards does so, and applies to the court.Dickerson v. Beardsley, 1 C. R. 37; 6 L. O. 389; Morgan v. Leland, 1 C. R. 123.

Although, however, neither party will be permitted to take judgment, except at his peril, during the time allowed to his adversary to amend; still the right of the latter to do so, is not, per se, a stay of proceedings for all purposes. Thus, the cause may be noticed for trial immediately on the service of reply, without waiting until the period within which the defendant may amend his answer has elapsed.

If the defendant waive that right, which he may do, either expressly, or by himself noticing the cause, the plaintiff will be bound to proceed.—Cusson v. Whalon, 5 How. 302; 1 C. R. (N. S.) 27. In Enos v. Thomas, 4 How. 290, it was held, on a similar principle, that, immediately on reply, the plaintiff may move to refer the cause, under sec. 271, without waiting till the defendant's time to amend shall have expired. Of course, however, he will do so, to a certain degree, at his peril, in the event of an amended pleading being subsequently served, by which the subject matter of the original reference may undergo alteration.

No proceeding whatever, on the part of his adversary, can prejudice the right of a party to amend within the time allowed to him. See Washburn v. Herrick, Dickerson v. Beardsley, Morgan v. Leland, above cited. The service of an answer does not accordingly preclude the plaintiff from amending his complaint within the time allowed him. Clor v. Mallory, 1 C. R. 126.

An amended pleading takes the place of and supersedes the original, with regard to the time allowed to the opposite party to amend, as well as in other respects. Thus, in The Seneca County Bank v. Garlinghouse, 4 How. 174, a plaintiff was allowed to amend his complaint, in due time after the service of an amended answer, although a reply had even been served by him to the defendant's original answer in the cause. The right to do so involved, of course, a practical recommencement of the pleadings in the cause ab initio, although issue had already been joined therein, had not the defendant subsequently amended.

It would seem, therefore, from this case, and from those of Enos v. Thomas, and Cusson v. Whalon, also above cited, that the defendant has, in all cases, the right to amend his answer, within twenty days after the service of the plaintiff's reply, although, in the section, the words "answer or demurrer" only appear.

Of course, by amending his complaint, the plaintiff alters the period within which the defendant must answer, and he cannot take judgment with reference to the date of the original service-Dickerson v. Beardsley, 1 C. R. 37, 6 L. O, 389, above cited.

Pleadings in cases transferred from a justice's court, under sec. 60, have been held not to be amendable at all; but this proposition seems to be overruled by the more recent decisions before cited under the head of the jurisdiction of those tribunals.

Where, after taking judgment by default against one of several defendants, the plaintiff afterwards amended his complaint in matter of substance, and not of mere form, it was held that he must serve a copy on the defendant in question, and give him an opportunity of defending, if so advised. The People ex rel Rumsey v. Woods, 2 Sandf. S. C. R. 652, 2 C. R. 18. The fact that, by a subsequent amendment, a previous judgment by default is practically set aside, should therefore be borne in mind by all plaintiffs in similar cases.

Where the opposite party has already given notice of a motion to set aside a pleading as irregular, his costs of that motion must, in all cases, be paid before an amendment can be allowed. The power to amend, as of course, extends only to cases where the proceedings have been regular, or where the amendment is made before any steps have been taken by the opposite party, in consequence of the irregularity sought to be cured. Williams v. Wilkinson, 5 How. 357; 1 C. R. (N. S.) 20. See also Hall v. Huntley, 1 C. R. (N. S.) 21, (Note.)

Amendments must be confined to matter in existence at the commencement of the suit. Allegations of subsequent occurrences are irregular, and will be stricken out. The remedy in such a case is a supplemental pleading.--Hornfager v. Hornfager, 6 How. 13.

An amendment which involves a change of parties in the action, cannot be made at all, as of course, or without the special leave of the court.--Russell v. Spear, 5 How. 142; 3 C. R. 189.

Where an answer had been stricken out as sham, it was held that the defendant had no right to amend, and a judgment, entered up for want of an answer, was refused to be vacated.Aymur v. Chase, 1 C. R. (N. S.) 141.

In George v. McAvoy, 6 How. 200, 1 C. R. (N.S.) 318, it was held that the verification is no part of a pleading, and that therefore a second copy of the original complaint, with the verification merely added, was no amended complaint, and might be disregarded. A judgment entered up for want of an answer to the second complaint, the original one having been answered without oath, was accordingly set aside.

An amended answer, the same in its legal effect, though differing in its phraseology from the original one put in, was stricken out in Snyder v. White, 6 How. 321. It was held in the same case that if the time to amend, as of course, be allowed to elapse, no amendment can take place afterwards unless by leave of the court.

An amendment claiming "equitable" relief, in addition to legal relief claimed by the original complaint, under the same state of circumstances, was held to be regular, in Getty v. The Hudson River Railroad Company, 6 How. 269; 10 L. O. 85.

The provision at the close of the portion of sec. 172, as above cited, is new, and was not in the Code of 1849. It affords a valuable safeguard against the abuse of the power to amend as of course. It will be observed that, in inserting that clause, an oversight has been committed by the legislature. As the sentences now run, it might seem that the service of a copy of the amended pleading, is only obligatory in cases where the power to amend has been abused, and not in those where the pleading is bona fide amended.

There can be no question but that the section in general must be construed in this respect according to its purport, as it stood in the Code of 1849.

In every case, therefore, in which a pleading is amended, a full and complete copy must be forthwith served upon the opposite party, and, if it be not served within the time allowed, the bare amendment of the pleading itself will be an utter nullity.

We now come to consider, in the second place, the nature of the amendments which will be permitted on special application to the court for that purpose.

The section peculiarly relating to these applications is sec. 173, which runs as follows:

§ 173. The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved.

V. Chapman v. Webb. 1 C. R. (N. S.) 388, as to word “or." It will be observed that this provision though, in its general scope it bears reference to the subject now under consideration, is also of wider operation.

With reference to amendments involving a change of parties, the test now imposed, viz., that such amendments should not substantially change the cause of action or defence, in accordance with the previous provisions of the Revised Statutes on this subject, had already been so imposed by decisions under the Code of 1849. See Brown v. Babcock, 3 How. 305; 1 C. R. 66.

An amendment, involving an entire change of parties, plaintiff and defendant, so as to constitute, in fact, a new suit, was refused in Wright v. Storms, 3 C. R. 138. Where, too, the plaintiff had first served a complaint for the recovery of goods in replevin, and afterwards amended, making the action as in assumpsit, and the defendant had served two separate answers, one to each complaint, and entitled accordingly; it was held that both the first answer and the amended complaint were bad, and a motion to strike out the former was granted, leave being given to move to set aside the amended complaint; in which case, if granted, the first answer was to stand and the second to be set aside. Though irregular, the defendant had no right to treat the amended complaint as a new suit, and to answer in both; he ought to have moved to set it aside in the first instance. See Megrath v. Van Wyck, 2 Sandf. S. C. R. 651. See also Spalding v. Spalding, 1 C. R. 64, sed vide, per contra, Dows v. Green, 3 How. 377, where an amendment was allowed, changing the form of action from a claim for damages to one in replevin, on the ground that the cause of action was not changed, but remained the same. See this last view enforced, and applied to the provision as it now stands, in Chapman v. Webb, 1 C. R. (N. S.)