intended to be one in trover, charging or seeking to charge the defendant with the wrongful conversion of certain moneys which came into his hands as a public officer, and which belonged to the plaintiff; and acting upon such supposition, he has demurred to the complaint as not stating facts sufficient to constitute that cause of action. In answer to this view, the plaintiffs rather concede than otherwise that the complaint is and was intended to be one in tort for the conversion; but at the same time they insist, that, if it is not good as a complaint of that kind, it is sufficient as a complaint or count in an action for money had and received; and, being sufficient for that purpose, they argue that the demurrer was properly overruled. In other words, their position is, that it is a question now open to speculation and inquiry on this demurrer, whether upon all or any of the facts stated in the complaint taken collectively or separately, or even by severing the allegations themselves so as to eliminate or discard certain portions of them as surplusage, a cause of action of any kind is or can be made out; and if it be found that it can, then the demurrer should be overruled. To show that the complaint may be upheld as one for money had and received for the use of the plaintiff, and the action considered as one of that kind, counsel gravely contend that the averments that the defendant made fraudulent representations, and acted falsely, fraudulently, and wrongfully in claiming and withholding the moneys, and that he converted the same, &c., may be disregarded, and rejected as surplusage.

§ 563. "In support of this position, counsel cited several New York decisions, and some in this court where after trial and judgment, or after issue has been taken on the merits, or after the trial has commenced and the plaintiff's case is closed, it has been held that such allegations may be disregarded. The decisions were in actions like the present, and others involving a somewhat similar question under the circumstances above stated, and were made in favor of a good cause of action proved or proposed to be, and which by a fair and reasonable interpretation of the pleadings could be said to be within the scope of them, or to be fairly mapped out and delineated by the averments, so that the defendant was apprised of the demand made against him, and of the facts relied upon to establish it. The great liberality of the code and the broad powers of amendment conferred and enforced

upon the courts under such circumstances are well known [citing provisions in reference to amendments, variances, and the interpretation of pleadings]. These provisions for the most part, if not entirely, relate to the proceedings in an action after issue joined on the merits upon or after trial, or after judgment on the merits, when the facts are made to appear, and the substantial rights of the parties are shown. They are enacted in amplification and enlargement of the rules of the common law on the same subject, by which it is well understood that there were many defects, imperfections, and omissions constituting fatal objections on demurrer, which were waived after issue joined, and a trial or verdict and judgment on the merits. The cases cited by counsel are all of them manifestly such as fall within these provisions and rules, and none of them touch or have any bearing upon the question or case here presented. No case arising upon demurrer to the complaint is cited, and it is believed none can be, holding any such doctrine as that contended for.1

§ 564. "It thus appears that the authorities relied upon do not sanction the position that a complaint in the first instance, and when challenged by demurrer, may be uncertain and ambulatory, purposely so made, now presenting one face to the court and now another, at the mere will of the pleader, so that it may be regarded as one in tort or one on contract or in equity, as he is pleased to name it, and as the necessities of the argument may require, and, if discovered to be good in any of the phases which it may thus be made to assume, that it must be upheld in that aspect as a proper and sufficient pleading by the court. already observed, the opinion of the court is quite to the contrary. We have often held that the inherent and essential differences and peculiar properties of actions have not been destroyed,

1 The learned judge cites the following cases as illustrations: Barlow v. Scott, 24 N. Y. 40; Byxbie v. Wood, 24 N. Y. 607; Austin v. Rawdon, 44 N. Y. 63; Greason v. Keteltas, 17 N. Y. 491; Emery v. Pease, 20 N. Y. 62; Conaughty v. Nichols, 42 N. Y. 83; Wright v. Hooker, 10 N. Y. 51; Walter v. Bennett, 16 N. Y. 250; Stroebe v. Fehl, 22 Wisc. 347; Hopkins v. Gilman, 22 Wisc. 481; Tenney v. State Bank, 20 Wisc. 152; Leonard v. Rogan, 20 Wisc. 540; Samuels v. Blanchard, 25 Wisc. 329; Vilas v. Mason, 25

Wisc. 310, 328. It is certain that the decision in some of these cases is not based upon the doctrine stated by the judge,—that is, upon any ground of amendment or of waiving the objection by answering, &c.; but it is put upon the broad and fundamental principle, that, under the codes, equitable and legal reliefs may be granted in the same action, or one may be granted when the other is demanded: the other cases, however, fully sustain the position taken by the opinion.

and from their very nature cannot be.1 These distinctions continuing, they must be regarded by the courts now as formerly; and now no more than then, except under the peculiar circumstances above noted, can any one complaint or count be made to subserve the purposes of two or more distinct and dissimilar causes of action, at the option of the party presenting it. If counsel disagree as to the nature of the action or purposes of the pleading, it is the province of the courts to settle the dispute. It is a question, when properly raised, which cannot be left in doubt; and the court must determine with precision and certainty upon inspection of the pleading to what class of actions it belongs, or was intended to belong, whether of tort, upon contract, or in equity; and if necessary and material, even the exact kind of it within the class must also be determined.2 This is not only in harmony with the decisions above referred to, but with all the decisions of this court bearing upon the question, and we know of none elsewhere in conflict. It is in harmony with these decisions which have been made, that an application to amend should be denied which professes to entirely change the cause of action sued upon, or to introduce a new one of a different kind." 3 The nature of the reformed pleading and its essential principles are here stated in a most clear and accurate manner, while the description of the improper modes which prevail to such an extent in actual practice is equally graphic and correct. The one explains the intent 1 Howland v. Needham, 10 Wisc. 495, and this particular conclusion is also sus498.

2 See Clark v. Langworthy, 12 Wisc. 441; Gillett v. Treganza, 13 Wisc. 472.

3 Citing Newton, v. Allis, 12 Wisc. 378; Sweet v. Mitchell, 15 Wisc. 641, 664; 19 Wisc. 524; Larkin v. Noonan, 19 Wisc. 82; Stevens v. Brooks, 23 Wisc. 196. The opinion proceeds to show that the conclusion thus reached is in harmony with the decisions made in Scheunert v. Kaehler, 23 Wisc. 523; Anderson v. Case, 28 Wisc. 505; Lee v. Simpson, 29 Wisc. 333; Ragan v. Simpson, 27 Wisc. 355; Samuels . Blanchard, 25 Wisc. 329. It also declares that in determining upon demurrer the true nature of the complaint, its object, and what particular kind or cause of action is stated in it, the character of the summons may be taken into consideration in connection with the form of the allegations in the complaint;

tained by the recent decision made by the New York Court of Appeals, before cited. Having thus laid down the general principles, the learned judge applies them to the case before him. The summons is for relief, which indicates the pleader's intention to bring an action of tort, and not one on implied contract for money had and received. The complaint itself is pronounced insufficient in its averments; the charges of fraud and conversion are in the form of general legal inferences, without the necessary statements of facts. "A general charge that a party acted fraudulently, falsely, or wrongfully, or that he made fraudulent representations or statements, amounts to nothing; there must be a specification of facts to justify it" (p. 634). The foregoing quotations form a small part of this exceedingly instructive opinion.

and design of the reform; the other shows how that design has been ignored, and that intent frustrated.

§ 565. The new procedure, from its dread lest the proper requirements as to form should degenerate into mere technicalities, and from its opposition to the decision of controversies upon points not involving the merits, has made most ample and liberal provision for amendments. The sections of the codes are quoted at large in a former paragraph. So far as they relate to the pleadings, amendments are separated into two general classes, - those made before the trial, and those made during or after the trial. The first of these classes is again subdivided into (1) the amendments of course, without any application to the court, which each party is allowed to make once in his own pleading within a specified time after it is filed or served; (2) the amendments which are made by permission of the court as the result of a special motion or application for that purpose, including those which the party is generally suffered to make in his pleading after a demurrer to it has been sustained. The amendments of the second class are for the purpose of conforming the pleadings to the facts which have been proved, or which are proposed to be proved, at the trial. They are all made by permission of the court, frequently upon an oral application during the trial or during the argument on appeal, often by the court itself on its own suggestion. Sometimes, however, the trial is suspended, and the party desiring an amendment is driven to a formal motion in order to obtain it.2 It is not within the scope of this work to describe the practice in reference to amendments, nor to discuss the particular cases in which they have been or will be allowed. I shall simply state the general principles. which have governed the courts in the exercise of the discretion conferred upon them by the statute.

§ 566. In giving a practical interpretation to the clauses of the codes, a conflict of decision has arisen among the tribunals of the different States, and sometimes among those of the same State, which it is utterly impossible to reconcile. The rule is established by one class of cases, and prevails in certain States, that in all the voluntary amendments which a party may make as a matter of course in his own pleadings, and in all

1 See supra, § 435. longs to the first general class, since it is 2 This particular instance strictly be- virtually an amendment before the trial.

amendments before trial for which the party applies to the court by motion, including those rendered necessary by the sustaining of a demurrer to his pleading, he cannot under the form of an amendment change the nature and scope of his action; he cannot substitute a wholly different cause of action in place of the one which he attempted to set up in his original pleading.1 A very different rule is laid down by another class of cases. It is settled in New York by a carefully considered decision of the Court of Appeals, which overrules a number of contrary decisions made by inferior tribunals of that State, that a complaint may be amended voluntarily and of course, by substituting an entirely different cause of action for the one originally alleged, provided the summons continues to be appropriate. It is not necessary that the new cause of action should be of the same general nature or class as the first one; but the plaintiff may, by omitting a cause of action, substitute another in its stead of an entirely different class and character, if the change does not require an alteration in the summons. A like rule it was held also applies to answers and to defences contained therein.2 In some States this liberal interpretation of the code has been

1 Supervisors v. Decker, 34 Wisc. 378; Rutledge v. Vanmeter, 8 Bush, 354, 356; McGrath v. Balser, 6 B. Mon. 141. In Supervisors v. Decker, a complaint had been served which was in tort, and which attempted to state a cause of action for the conversion of money and things in action. A demurrer had been sustained on the ground that the averments were insufficient, but permission to amend was given. An amended complaint was served which was exactly the same as the original, except that the allegations "and converted the same to his own use," and the like, were omitted. The summons for relief was unchanged, The questions arose on a motion by the defendant to take this amended complaint from the files. The court held that before trial the plaintiff cannot amend the complaint by changing the entire cause of action from one ex delicto to one ex contractu. The whole subject of amendment was exhaustively discussed; prior decisions of the Wisconsin court were adhered to, while the New York cases which sustain another doctrine were ex

pressly disapproved. It should be noticed that the actual substantial cause of action was unchanged; the only variation was in the manner and form of its statement.

2 Brown v. Leigh, 12 Abb. Pr. N. s. 193 (1872). See also, to the same effect, Mason v. Whitely, 1 Abb. Pr. 85; 4 Duer, 611; Prindle v. Aldrich, 13 How. Pr. 466; Troy and B. R. R. v. Tibbits, 11 How. Pr. 168; Watson v. Rushmore, 15 Abb. Pr. 51. Some of these cases apply the same doctrine to amendments made upon motion. By this rule, an entirely new defence may be added to an answer by an amendment of course. McQueen v. Babcock, 13 Abb. Pr. 268; 3 Keyes, 428; Wyman v. Remond, 18 How. Pr. 272. Although the Court of Appeals, in Brown v. Leigh, pointed out a difference between the terms of the section which permits amendments of course and of that which allows amendments upon application to the court before trial, yet it did not hold that the latter were to be any more restricted in their scope and extent than the former.