? 229. Effect of, as of course.-An amendment of any pleading as of course, does not prejudice proceedings already had. But an amended pleading supersedes the original, and the original ceases to perform any other functions as a pleading.2 Thus, where the change in a complaint consists merely in more fully setting forth the cause of action defectively alleged in the original, the old complaint ceases to be the complaint in the case, or to perform any further function, as a pleading, and the amended complaint falls into its place and performs the same, and not different functions. So, where an amended answer has been served, the issue is to be tried upon it as a substitute for the original answer, which is no longer to be treated as a pleading in the cause. The amendment of a complaint relates back to the commencement of the action, which dates from the filing of the original complaint and issuing of summons thereon,5 and may therefore prevent the Statute of Limitations from barring a cause of action not included in the original.6 In Iowa, an amendment to a pleading which does not state nor imply that it is designed as a substitute for the original, will be construed in connection with the original; both must be considered together. So, by answering the allegations of both the original and amended complaint, the objection that the original is superseded by the amended pleading is waived, and both will be considered as consolidated."

1 See N. Y. Code Civ. Proc. 542.

2 Sands v. Calkins, 30 How. Pr. 1; Dann v. Baker, 12 How. Pr. 521; Fry v. Bennett, 9 Abb. Pr. 45; 3 Bosw. 200; People v. Hunt, 1 Idaho N. S. 433.

3 Gillman v. Cosgrove, 22 Cal. 356; Barber v. Reynolds, 33 Cal. 497; People v. Hunt, 1 Idaho N. S. 433; Null v. Jones, 5 Neb. 500; Brown v. Galena Min. Co. 32 Kan. 528.

4 Kapp v. Barthan, 1 Smith, E. D. 622; Hanscom v. Herrick, 21 Minn. 9. And see Bank v. Telegraph Co. 30 Ohio St. 555; Dunlap v. Robinson, 12 Ohio St. 530. But the original answer may be received in evidence, subject to explanation: Fogg v. Edwards, 20 Hun, 90; Strong v. Dwight, 11 Abb. Pr. N. S. 319.

5 Barber v. Reynolds, 33 Cal. 497. An amended complaint is to be held as stating the cause of action as it existed when the suit was instituted: Worley v. Moore, 97 Ind. 15. And see Ryan v. Railroad Co. 21 Kan, 365; Brown v. Galena Min. Co. 32 Kan, 528,

6 Ward v. Kalbfleisch, 21 How. Pr. 283. But see Sheldon ». Adams, 18 Abb. Pr. 405; Evangelical Lutheran Church v. Fingar, 11 N. Y. Week. Dig. 460; Anderson v. Meyers, 50 Cal. 525; Jeffers v. Cook, 58 Cal. 151.

7 Kostendader v. Pierce, 37 Iowa, 645.

8 Pharo v. Johnson, 15 Iowa, 560.

9 Kline v. Corey, 18 Hun, 524.

? 230. Made in bad faith-Remedy.-If it be made to appear to the court that the amendment was made in bad faith, and for the purpose of delay, the remedy of the party aggrieved is by motion to strike it out.1 And if the amended pleading be stricken out, the parties are returned to their former position.2 If the amendment is made in good faith, and not for the purpose of delay, it cannot be stricken out, although the effect may be to deprive the opposite party of the benefit of a circuit or term. In some cases a party may determine for himself that the amendment was for the purpose of delay; + but as a general rule, it is for the court to pass in the first instance upon the propriety of the amendment. If a party seeks to make an unauthorized amendment, the remedy is to refuse to accept, or to return promptly the amended pleading, or give notice that it would be disregarded, specifying on what ground.6

1 N. Y. Code Civ. Proc. 542; Ostrander v. Conkey, 20 Hun, 421; Frank v. Bush, 63 How. Pr. 282; 2 Civ. Proc. R. 250.

2 Frank v. Bush, 63 How. Pr. 282; 2 Civ. Proc. R. 250.

3 Griffen v. Cohen, 8 How. Pr. 451, 453.

4 See Allen v. Compton, 8 How. Pr. 251; Vanderbilt v. Bleeker, 4 Abb. Pr. 289; Farrand v. Herbeson, 3 Duer, 655.

5 Griffin v. Cohen, 8 How. Pr. 451; Thompson v. Minford, 11 How. Pr. 273.

6 Hollister v. Livingston, 9 How. Pr. 140. Compare Goodwin v. Robinson, 30 Ark. 535; Spencer v. Tooker, 21 How. Pr. 333; 12 Abb. Pr. 353; Mayer v. Woodbury, 14 Jowa, 57.

2231. On motion before trial. - Amendments to pleadings before trial are liberally allowed upon applica

The court will

tion made with reasonable diligence. grant the leave whenever it can see that justice will be furthered thereby, on some reasonable excuse being shown for the defect sought to be rectified. Indeed, the power of the court in this respect is said to be without limit, if sound discretion be exercised in granting the permission.3 The general rule is to allow an amendment in furtherance of justice, within the exercise of a sound discretion, and to refuse is the exception. And courts may sometimes commit substantial error by refusing to permit amendments to pleadings in furtherance of justice. It is the duty of the courts to allow parties to perfect their pleadings when affected by unintentional error, but they have power to impose reasonable terms as the condition of amendment." Under the provisions of the Codes, the court may amend by adding or striking out the name of a person as a 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. But it is held, that the court has no power to allow an amendment to a complaint which substitutes one cause of action for another; as, for instance, an amendment changing the action from one for a separation to one for an absolute divorce. And leave to amend by setting up a new cause of action, which is at the time barred by the Statute of Limitations, should not be allowed.10 But the court may, at any time before trial, allow the defendant to amend his answer by setting up a new defense." And according to some of the decisions, no discrimination is to be made by the court, in respect to granting leave to amend answers before trial, between defenses which are meritorious, and other legal defenses, such as the Statute of Limitations, formerly considered unconscionable.12 But in Wisconsin,

in actions between individuals it is not an abuse of discretion to refuse to permit the answer to be amended so as to set up the Statute of Limitations; 13 though in actions against counties, a different rule is sanctioned for peculiar reasons applicable to such defendant corporations. Leave to amend may be denied on the ground of delay in making the application; 15 but not where such delay is attributable to the negligence of the other party.16 And on an application to amend the answer in actions against public corporations, the doctrine of laches is not to be as rigidly applied as in actions against individuals or private corporations.1 Applications for leave to amend are favorably regarded on behalf of public corporations. 18 A defendant having leave to amend several defenses in his answer may amend by setting up one defense only."

19

1 Gilchrist v. Gilchrist, 44 How. Pr. 317; Viadero v. Viadero, 7 Hun, 316; Schreyer v. Mayor etc. 7 Jones & S. 277; 66 N. Y. 656; Crocker v. Crocker, 1 Sheld. 274.

2 Harrington v. Slade, 22 Barb. 161; Pierson v. McCahill, 22 Cal. 127; Stringer v. Davis, 30 Cal. 321.

3 Byrnes v. Dunn, 6 N. Y. Week. Dig. 140.

4 State v. Mayor etc. 18 Iowa, 388; Brockman v. Berryhill, 16 Iowa, 183; Miller v. Perry, 38 Iowa, 301; Hedges v. Roach, 16 Neb. 674; Henderson v. Morris, 5 Oreg. 21; Clark v. Clark, 20 Ohio St. 128.

5 Koons v. Price, 40 Ind. 164; Bailey v. Kay, 50 Barb. 110; Stringer v. Davis, 30 Cal. 318; Schieffelin v. Whipple, 10 Wis. 81: Wright v. Bacheller, 16 Kan. 25); Smith v. Yreka Water Co. 14 Cal. 201.

6 McGee v. Piedmont Manuf. Co. 7 S. C. 263; Clune v. Sullivan, 56 Cal. 249. As to terms, see Harrington v. Slade, 22 Barb. 161; Tooker v. Arnoux, 1 N. Y. Month. Law Bull. 54; Havemeyer . Havemeyer, 62 How. Pr. 476: 1 Civ. Proc. R. 448; Smith v. Rathbun, 13 Hun, 47; 75 N. Y. 122. If leave is given a defendant to put in an amended answer, provided no matter be set up therein which will affect orders previously made in the cause, such amended answer will be stricken out if it is incompatible with the terms upon which the leave was granted: Crump v. Thomas, 89 N. C. 241.

7 See N. Y. Code Civ. Proc. 723; 2 Ohio Rev. Stats. 5114; Cal. Code Civ. Proc. 473; Weil v. Martin, 24 Hun, 645; 1 Civ. Proc. R. 133; Chittenaugo Cotton Co. v. Stewart, 67 Barb. 423; Travis v. Tobias, 8 How. Pr. 333; New York Milk Pan Co. v. Remington Works, 25 Hun, 475; Farris v. Merritt, 63 Cal. 118. A bill of particulars annexed to the complaint, and forming part of it, is amendable: Melvin ". Wood, 4 Abb. Pr. N. S. 438; 3 Keyes, 533; Teberg v. Swenson, 32 Kan. 224; 4 Pacif. L. Rep. 83; Mo. Pacif. R. R. Co. v. Piper, 26 Kan. 58.

8 Van Syckels v. Perry, 3 Robt. 621; Robertson v. Robertson, 9 Daly, 44; 9 Week. Dig. 348; Givens v. Wheeler, 5 Colo. 598. Barnes v. Quigley, 59 N. Y. 265; Parker v. Rodes, 79 Mo. 88. Compare 226, ante; Ford v. Ford, 35 How. Pr. 321; 53 Barb. 525. When all the facts. alleged in a complaint will not entitle a plaintiff to any relief, facts essential to the cause of action, occurring after the commencement of the action, cannot be incorporated into the complaint by amend-ment: McCullough v. Colby, 4 Bosw. 603.

9 Robertson v. Robertson, 9 Daly, 44; Ohly v. Ohly, 11 N. Y. Week. Dig. 12); 3 N. Y. Month. Law Bull. 12.

10 Evangelical Luth. Church v. Fingar, 11 N. Y. Week. Dig. 460; Pottier v. Matthews, 1 N. Y. Week. Dig. 12; Van de Haar v. Van Domseller, 56 Iowa, 671; Quimby v. Claflin, 15 N. Y. Week. Dig. 332; 27 Hun, 611 Compare Risley v. Phoenix Bank, 2 Hun, 349.

11 Diamond v. Williamsburg Ins. Co. 4 Daly, 494. If a defendant has, from a misconception of his rights, want of knowledge, or other excusable cause, omitted to avail himself of a defense, it is always i furtherance of justice to permit him to set it up upon proper terms, if the application is made in good faith, and the allowing of it wil work no injustice to the plaintif: Bowman v. De Peyster, 2 Daly, 203. Compare Loaners' Bank v. Jacoby, 10 Hun, 143; Cocks v. Radford,13 Abb. Pr. 207; Hughes v. Heath, 9 Abb. Pr. N. S. 275; Graves_v. Cameron, 9 Daly, 152; McLane v. Paschal, 62 Tex. 105. A supple-mental reply, alleging material facts which occurred after the former reply, is properly allowed to be filed: Simpson v. Vose, 31 Kan. 227.

12 Gilchrist v. Gilchrist, 44 How. Pr. 317. And see Barnett v. Meyer, 10 Hun, 109; McQueen v. Babcock, 41 Barb. 337; 3 Keyes, 423; Pike v. Bingham, N. Y. Sup. Ct. 11 Reporter, 750. Compare Sagory v. Railroad Co. 21 How. Pr. 455.

13 Plumer v. Clarke, 59 Wis. 646. And see Paine v. Comstock, 57 Wis. 153; Smith v. Dragert, 61 Wis. 222.

14 Plumer v. Clarke, 59 Wis. 646; Wis. Cent. R. R. Co. v. Lincoln Co. 57 Wis. 137: Capron v. Supervisors, 43 Wis. 613; Baker v. Supervisors etc. 39 Wis. 444.

15 Egert v. Wicker, 10 How. 193; Gowdy v. Poullain, 2 Hun, 218; 4 Thomp. & C. 545; Abham v. Boyd, 4 Daly, 30; Courtright v. Deeds, 37 Iowa, 503.

16 Bradley v. Sheehy, 2 N. Y. Week. Dig. 589.

17 Lanney v. Mayor, 14 N. Y. Week. Dig. 140; Brooks v. Mayor etc. 12 Abb. N. C. 350.

18 Seaver v. Mayor, 7 Hun, 331.

13 Decker v. Kitchen, 21 Hun, 332.

2232. After demurrer.-Upon the decision of a demurrer, the court may, in its discretion, allow the party in fault to plead anew or amend, upon such terms as are just. If the complaint be defective, demurrer thereto should be sustained, with leave to the plaintiff to amend.2 But if no leave to amend be asked for, it is not error to proceed to final judgment against the

BOONE PLEAD. -38.