proposed amendment would be open to a motion to make more definite and certain." If there be an abuse

of discretion in granting an order allowing an amendment to the complaint, it may be reviewed on appeal from the judgment, or from an order upon a motion for a new trial.12

1 White v. Culver, 10 Minn. 192; Dyer v. McPhee, 6 Colo. 174; Butler v. Paine, 8 Minn. 324; Carli v. Transfer Co. 32 Minn. 101; M. & M. R. R. Co. v. Finney, 10 Wis. 388; Gillett v. Robbins, 12 Wis. 319; Gould v. Rumsey, 21 How. Pr. 97; Dennis v. Snell, 54 Barb. 411; Sayers v. First Nat. Bank, 89 Ind. 230; Binnard v. Spring, 42 Barb. 470; Gilchrist v. Kitchen, 86 N. C. 20; Henry v. Cannon, 86 N. C. 24; Sears v. Collins, 5 Colo. 492; Trumbo v. Finley, 18 S. C. 305; Harney v. Corcoran, 60 Cal. 314; Feeney v. Mazelin, 87 Ind. 226; Bowles v. Doble, 11 Oreg. 474.

2 Hedges v. Roach, 16 Neb. 673. It is an abuse of discretion to allow the filing of an amended complaint that does not state a cause of action, and an order allowing such a complaint to be filed may be reversed on appeal: Sup. Ct. Wis. Smith v. Gould, 20 Northw. Rep. 369; 61 Wis. 31.

3 Union Bank v. Mott, 19 How. Pr. 267; 11 Abb. Pr. 42. And see Sheldon v. Adams, 27 How. Pr. 179; 41 Barb. 54; Union Bank of Troy v. Bassett, 3 Abb. Pr. N. S. 359; Wright v. Bacheller, 16 Kan. 259; Newberg v. Farmer, 1 Wash. 182.

4 Coates v. Donnell, 16 Jones & S. 46. See Knapp v. Fowler, 26 Hun, 200; Woodruff v. Hurson, 32 Barb. 557; McPherson v. Ronner, 8 Jones & S. 448.

5 Gilbank v. Stephenson, 31 Wis. 592.

6 Grattan v. Life Insurance Co. 80 N. Y. 281.

7 Eldred v. Oconto Co. 30 Wis. 206; Meade v. Lawe, 32 Wis. 261; Dehnel v. Komrow, 37 Wis. 336; Smith v. Dragert, 61 Wis. 222; Plumer v. Clarke, 59 Wis. 646. And see Baxter v. State, 15 Wis. 489; Fogarty v. Horrigan, 28 Wis. 142. But see Gilchrist v. Gilchrist, 44 How. Pr. 317; Barnet v. Meyer, 10 Hun, 109.

8 Ault v. Wheeler etc. Manuf. Co. 54 Wis. 300.

9 Collins v. Singer Manuf. Co. 53 Wis. 305. And see Reynolds v. West, 32 Ark. 244. But see Brown v. Leigh, 49 N. Y. 78.

10 Mayer v. Woodbury, 14 Iowa, 57; Goodwin v. Robinson, 30 Ark. 535. It is an abuse of discretion to allow the filing of an amended complaint which does not state a cause of action: Smith v. Gould, 61 Wis. 31.

11 Shipman v. State, 43 Wis. 381. An amendment to an answer which withdraws a deliberate material admission should not be allowed at the trial: Ballston Spa Bank v. Marine Bank, 16 Wis. 120.

12 City of Winona v. Railway Co. 25 Minn. 328. And see Lane v. Hayward, 28 Hun, 583, 584. But see Hendricks v. Decker, 35 Barb. 298 Brown v. McCune, 5 Sand. 224; Roth v. Schloss, 6 Barb. 303; Ferguson v. McDonough, 18 N. Y. Week. Dig. 128. If a complaint which is susceptible of amendment is amended before the trial, its previous sufficiency will not be considered on an appeal from the Judgment: Orton v. Scofield, 61 Wis. 382.

? 240. How made. When leave to amend a pleading is granted, the amendment should either be incorporated into the pleading, or stated on a separate paper, with a reference to the original, and the amended pleading should be served on the opposite party.1 If a proposed amendment materially changes the issue, it must, if the opposing party so insist, be actually inserted in the pleading." Amendment by interlineation is condemned by the courts; but when the amendment is short, and scarcely if at all material, the court does not abuse its discretion by allowing the amendment by interlineation. And a case will not be reversed because a party was allowed so to amend, it being apparent that the adverse party was not prejudiced thereby.3 And where the amendment was made orally, and not formally filed, but was taken down by the reporter, treated at the trial as made, and incorporated into the record on appeal, it was treated as an effectual amendment to support the verdict and judgment. But an application to be allowed to amend a sworn pleading by striking out a word which occurred therein, was held to have been properly refused by the court." It is held that an amendment to a pleading allowed on the trial does not require to be served, unless such service is made a condition of the allowance; it becomes a part of the record upon being allowed. A moving affidavit for leave to amend the complaint, which merely states that the deponent deems the amendment advisable, is insufficient; 10 some cause for the omission to make the proposed amendment when it could be done of right, however slight, should be shown." A party who would amend his pleading must state enough in the proposed amendment to show the materiality of it.12 He must inform the court in what particular he desires an amendment, otherwise there is nothing for the court to act upon.13

8

1 Livermore v. Bainbridge, 14 Abb. Pr. N. S. 232 n.; Eigenman v Rockport etc. Assoc. 79 Ind. 41; Flanders v. Wood, 24 Wis. 572; Thompson v. Johnson, 60 Cal. 292; Fitzpatrick v. Gebhart, 7 Kan. 35. An amendment, containing only a more specific description of that which was left uncertain in the original pleading, does not require additional service: Lewis v. Dennis, 54 Tex. 487.

2 Ballou v. Parsons, 11 Hun, 602. Where a plaintiff amends his complaint in matter of substance, he must serve his amended pleading upon all the defendants, including those in default: Miliken v. Houghton, Sup. Ct. Cal. 4 West C. Rep. 221.

3 See Merchants' Ins. Co. v. Excelsior Ins. Co. 4 Mo. App. 578; Simmons v. Rust, 39 Iowa, 241.

4 Fitzpatrick v. Gebhart, 7 Kan. 35.

5 Simpson v. Greeley, 8 Kan. 586; Schneider v. Hosier, 21 Ohio St. 98.

6 Kretser v. Cary, 52 Wis. 574. Where the transcript of record shows an amendment to the petition by interlineation, conforming it to the proof, but fails to show when it was made, it will be presumed that it was made at the time the testimony was introduced, and by leave of court: Giddings v. Giddings, 57, Iowa, 297. See Williams v. McGrade, 18 Minn. 82.

7 Simmons v. Rust, 39 Iowa, 241.

8 Lane v. Hayward, 28 Hun, 583.

9 Lane v. Hayward, 28 Hun, 583. An order of court permitting a party to amend a pleading need not, as a matter of course, be served on the opposite party: Holmes v. Campbell, 12 Minn. 221. A defendant who has appeared in an action is entitled to a notice of application for an amendment by adding a new party: Kneeland v. Martin, 2 N. Y. Month. Law Bull. 56.

10 Bewley v. Equitable Life Ins. Co. 10 N. Y. Week. Dig. 191.

11 Bewley v. Equitable Life Ins. Co. 10 N. Y. Week. Dig. 191.

12 State v. Homey, 44 Wis. 6:5.

13 Walker v. Walbridge, 14 Minn. 469; Kerr v. Reece, 27 Kan.

358.

2 211. Terms on allowing. - The power to grant amend

2

ments is to be exercised on liberal terms.1 But the terms imposed are wholly discretionary, and not the subject of appeal; though it is only terms that are just in themselves that can be imposed.3 The general rule is, that amendments should be made at the expense of the amending party, and the adverse party should be indemnified for all additional expense involved in the amendment, and the costs of motion for leave to amend. A decision of the court at the trial, imposing terms as a condition of granting leave to amend, will be deemed to be acquiesced in, unless an exception is taken at the

time. And by accepting costs imposed upon the adverse party as a condition of leave to amend, the party is precluded from availing himself of any objection thereto. Where the plaintiff obtained ex parte leave to amend his complaint, and upon the defendant's motion to vacate the order, the court modified it by requiring from the plaintiff an undertaking for costs, it was held that the requirement was within the power of the court."

1 Gillett v. Robbins, 12 Wis. 319.

2 Schermerhorn v. Wood, 30 How. Pr. 316; Vibbard v. Roderick, 51 Barb. 616.

3 Hand v. Burrows, 15 Hun, 481.

4 See Harrington v. Slade, 22 Barb. 161; Union Bank v. Mott, 10 Abb. Pr. 372; 11 Abb. Pr. 42, 48 n.; 19 How. Pr. 267; Fooker v Arnoux, 10 N. Y. Week. Dig. 132; Tribune Assoc. v. Smith, 8 Jones & S. 99 Nanetty v. Naylor, 2 N. Y. Month. Law Bull. 65, 66; Hand v. Burrows, 15 Hun, 481; Havemeyer v. Havemeyer, 12 Jones & S. 170.

5 Griggs v. Howe, 31 Barb. 100; 2 Abb. Ct. App. 291; 3 Keyes, 166. And see.Smith v. Rathbun, 75 N. Y. 122, 126.

6 Grattan v. Methrop. Life Ins. Co. 80 N. Y. 281; 36 Am. Rep. 617. 7 Clune v. Sullivan, 56 Cal. 249.

? 242. Effect of — Waiver - Practice, etc.-An amended complaint in an action is a substitute for the original, and if a right of action did not exist when the original was filed, one cannot be created by filing an amended complaint. Error in rejecting competent evidence at one stage of the trial may be cured by a subsequent amendment, and testimony based upon such amendment, by which it appears that the party was not prejudiced by the rejection of the evidence in the first instance.2 Amendment of a complaint by adding a party plaintiff, if alleged in the amended complaint, is admitted if not denied by the answer;3 a demurrer to the complaint admits the addition of the party as alleged, and the court will not inquire into the validity of the order allowing the addition. The court has power on the trial to allow an amendment of the complaint by striking out an admission, and may order the trial

to proceed on the pleading as amended, when the defendant does not claim to be surprised or unprepared to proceed, and does not ask for time to answer the amended pleading.5 The amendment of a complaint to conform to the evidence, although erroneously allowed, is not a ground for setting aside the judgment founded on it, where the evidence tended to establish another cause of action contained in the complaint, and the defendant was, therefore, not damnified by the amendment. Where the papers, as originally filed in an action of attachment brought in the name of a firm, omit the name of one of the partners, which omission is subsequently cured by amendment, the omission is not such a defect as vitiates the levy or can be taken advantage of by subsequent attaching creditors, or postpones the lien of the levy to that of such creditors. 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.8 Amendments are not allowed when the effect is to deprive the opposite party of his available defenses to a new action ;9 and if pleadings are amended by permitting a defendant to make a case against his co-defendants, involving a change of the subject-matter of the original suit, it amounts to bringing a new action on his part, and the defendants cannot be restricted in their pleas, but may set up any legal defense as a matter of right.10 A referee has power on application to amend the complaint on the trial by inserting new allegations, and may impose as a condition that the defendant be permitted to answer, or demur to the amended complaint; 11 and the plaintiff having taken the benefit of the order to amend, is precluded from objecting to the conditions imposed.12 An