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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.) 388, the change being there from contract to tort on the same cause of action.
In Houghton v. Latson, 10 L. 0. 32, an amendment by adding an entirely new ground of defence, was refused on the ground that such amendment “substantially changed the defence," and was therefore inadmissible, under sec. 173, as last amended.
Where, however, the cause of action is not substantially changed, the courts are disposed to show great liberality on the subject of amendments, involving a change of parties. See Dutcher v. Slack, 3 How. 322, 1 C. R. 113; Vanderwerker v. Vanderwerker; 7 Barb. S. C. R. 221; Brown v. Babcock, 3 How. 305; 1 C. R. 66; Bemis v. Bronson, 1 C. R. 27: the two former being cases of adding the names of necessary plaintiffs, the two latter of striking out unnecessary defendants.
An amendment for the purpose of averring words, on which slander was brought in the original language, was held not to be a substantial change of the cause of action, and to be admissible, in Debaix v. Lehind, 1 C. R. (N. S) 235. Objections on the ground of misjoinder of parties, will be in many cases disregarded at the trial, but with leave to the parties to apply afterwards for an amendment, in case they should think it prudent, with reference to future proceedings.--De Peyster v. Wheeler, 1 C. R. 93; I Sandf. S. C. R. 719. One plaintiff may be substituted for another by amendment, where the'interest of the latter has passed entirely to the former, during the action; and this even when the matter is actually, at the time of such application, in the course of hearing before a referee.-Davis v. Schermerchorn, 5 How. 440.
The name of a next friend was allowed to be inserted in a complaint by amendment, on its being decided that the suit in that case could not be brought by a wife in her own name alone.— Forrest v. Forrest, 3. C. R. 254.
With respect also to the subject matter of the action, and the time within which an amendment will be granted, the courts have shown great liberality ; thus, where, after a reply had been served, the plaintiff, on subsequent investigation, discovered that a larger sum was due to him than that originally claimed ; he was allowed to amend his complaint in that respect.-Merchant v. The N. Y. Life Insurance Company, 2 Sandf. S.C. R. 669; 2 C. R. 66.
So, too, where, after answer put in, and after the taking of the testimony of a witness,“ de bene esse," it was shown by affidavit of the plaintiff's attorney, that in drawing the complaint, he the attorney had misunderstood the nature and effect of his claim; an amendment was allowed on payment of costs.—Hare
; v. White, 3 How. 296, 1 C. R. 70. In Jackson v. Saunders, I C. R. 27, a count on a special contract was allowed to be introduced on amendment, in lieu of the common count on two promissory notes, and, in the executors of Keese v. Fullerton, 1 C. R. 52, a material averment was allowed to be so introduced on payment of costs, which will in general, it might indeed be said universally, be imposed on the allowance of amendments of this nature.
The court too will be disposed to allow such amendment, on the adversary's motion to impeach the defective pleading, without putting the party to the expense and delay of a substantive motion for that purpose.—Spalding v. Spalding, before cited. See also, Weare v. Slocum, 3 How. 397;1 C. R. 105.
Supplemental matter, occurring after the commencement of the suit, cannot be introduced by amendment at all. A supplemental pleading will be necessary.—Hornfager v. Hornfager, 6 How. 13.
In Raynor v. Clark, 7 Barb. S. C. R. 581, the plaintiff was allowed to amend his complaint, on the reversal of a judgment erroneously taken by him. In Lettman v. Ritz, 3 Sandf. S. C. R. 734, an amendment of the complaint was allowed after the trial, the object of it being formal, and the defendant not complaining of surprise ; but terms were imposed.
In Balcom v. Woodruff, 7 Barb. S. C. R. 13, a plaintiff was allowed to amend his declaration after he had been nonsuited, and to do so nunc pro tumc; as otherwise the statute would have run out; although the court expressly guarded against their decision being drawn into a precedent; and
In Burnap v. Halloran, 1 C. R. 51, leave was granted to the plaintiff to amend, by adding a new count to his declaration, even after two trials had been had, resulting in the defendant's favor; it not appearing that the defendant had been misled, or that the plaintiff sought to introduce a new cause of action.
It would not be safe, however, to calculate, in other instances, upon the extent of liberality evinced in the two last decisions. That there is some limit to it, is evinced by the case of Hough.
ton v. Skinner, 5 How. 420, where, two trials having already been had, the court refused leave to amend, by pleading a former judgment against a co-defendant, (ihe suit being one against joint contractors,) the matter sought to be so pleaded having been known to the defendant before issue was originally joined in the cause, so that it might have been pleaded in the first instance.
It is essential, in order to the power of the courts to amend, that the application for that purpose should be made in a suit duly existent. Thus, where, in a suit transferred from a justices' court, the plaintiff had deposited a summons and complaint with the justice ; and the defendant, in ignorance of his having done so, had omitted to give an admission of service within the time prescribed by sec. 56, the court disclaimed any power to grant relief under those circumstances. No summons had been served, and consequently no action was pending in which they could exercise jurisdiction.—Davis v. Jones, 4 How. 340 ; 3 C. R. 63.
The subject of supplemental pleadings in respect of matters arising after the commencement of the suit, will be hereafter considered.
MOTION OF THE
OF THE CORRECTION OF PLEADINGS, O
Although, as was the case with regard to the matters treated of in the last chapter, a variety of considerations, arising out of the subject above proposed, are more peculiarly cognizable with reference to the particular stages of pleading; still many also arise in relation to the subject, when taken in a general point of view, which branch of it will accordingly be here treated.
Objections of this nature most usually arise with reference to the insertion of surplus matter. The ordinary remedy, with respect to deficiency in necessary allegation, is by demurrer. On one point alone, is the proceeding by motion applicable in