that an old rule of court was in force authorizing the court, before appearance, to set aside the proceedings. In a more recent case in the Court of Appeals,199 a married woman had sued in her maiden name, and it was held that, after issue and trial upon the merits, the objection was waived. Grover, J., however, said that "the only mode of presenting such a defense (misnomer) is, under the Code, by answer." The Supreme Court of Indiana treats a misnomer, by the omission of, or mistake in, the plaintiff's christian name, as still pleadable in abatement,200 and in Ohio, an answer that the contract in suit was made with defendants as a corporation, that they were a body corporate, etc., was held to present a good defense,201 while an objection on the ground of mistake in the defendant's name is waived by pleading to the merits, and is available only by plea in abatement.202 It is thus seen that nothing seems to be settled upon authority, except that the objection for misnomer is waived by answering to the merits.

§ 427a. Can the Question be raised by Answer?

Whether the objection for misnomer can be made by answer may be affected by another question, to wit: Are the dilatory answers named in the statute all of that nature that are now permitted? Misnomer is not named, and, if so, the question cannot be raised in this way.

That a demurrer will not lie but for the defects named is universally conceded,203 and the same defects are named as grounds of objection by dilatory answer. It is claimed, on the one hand, that the intention was to specify all thus to be taken advantage of, either by demurrer or answer; all the dilatory issues which, if not apparent, should be submitted to a jury. Take, for example, mis

199 Traver v. Eighth Ave. R. Co., *42 N. Y. 497, 6 Abb. Pr. (N. S.) 46.

200 Peden v. King, 30 Ind. 181; Sinton v. The R. R. Roberts, 46 Ind. 476. 201 Ridenour v. Mayo, 29 Ohio St. 138.

202 State v. Bell, C. & W. U. Tel., 36 Ohio St. 296; citing common-law authorities.

208 In Indiana the statute expressly provides that a demurrer shall lie for no other cause, and the Ohio, Kansas, and Nebraska Codes, by using the word "only," in effect, do the same.

nomer. At common law, upon issue joined, the jury passed upon the question, and judgment was entered accordingly. This mode of inquiry, with its grave consequences, has, as we have seen, been abolished in England, and upon one hypothesis, also, by the Code. The conclusion thus arrived at is, that the legislature intended to take from the jury the consideration of all defects except those named; that the correction of all others should be left to the court alone. Questions not involved in regular issues of law or of fact are brought before the trial court by motion, and that is claimed to be the proper mode of raising the objection for misnomer. The statute expressly provides for the correction of errors in the names of the parties in any stage of the proceedings, and an application for such correction would be a motion, and would, necessarily, like the plea in abatement, give the true name.204

On the other hand, the assumption that it was designed that the statute should include, in the provision referred to, all dilatory answers, and that none others are allowed, is claimed to be wholly gratuitous. Nothing is said except that certain objections, if they cannot be taken by demurrer, may be by answer. The subject of answers is not the one under consideration, and no intimation is given that other defenses of which the defendant may avail himself, and which do not go to the merits, may not also be made by answer. A defendant may be interested in the fact that the plaintiff is not the real party in interest. A chose in action may have been assigned, and so as to transfer the obligation to the assignee, and, if sued by the assignor, an answer setting up the assignment as a defense may be essential to his protection. This he may do,205 and yet the objec tion-that the plaintiff is not the real party in interest-is not one of the grounds of demurrer. I infer, then, if a motion is entertained to correct the name of a party, it is not because no dilatory de

204 It should be noted that a defendant sued by a wrong name is not bound to appear; the court does not acquire jurisdiction, the judgment and execution is void; and, arguendo, the amendment cannot be made unless he waives the irregularity by appearing. Farnham v. Hildreth, 32 Barb. 277; Hoffman v. Fish, 18 Abb. Pr. 76; Gardner v. Kraft, 52 How. Pr. 499. These rulings must be conditioned upon a non-compliance with the statute in alleg. ing ignorance of the true name.

205 See ante, § 329, and cases cited in note.

fense can be made by answer except those named in the statute, but because it may be considered a more suitable remedy.

4. Amendments.

§ 428. Amendments discretionary-Without Leave of Court-With Leave of Court.

I refer not in this connection to formal amendments, the omission of which will not arrest or reverse a judgment-of those I shall speak in the next chapter-but of substantial changes in the pleadings which a party may find it necessary to make. Without referring specifically to the statutes of the different states, they all provide or imply a right to amend after a demurrer without leave of court, for the purpose of correcting the error which is the subject of the demurrer, and also permit an amendment without leave, before the filing of a responsive pleading by the opposite party. Ordinarily, however, amendments can only be made by leave of the court, and that implies a discretion 208 in granting or refusing the leave. This, however, is not an arbitrary discretion, it must be controlled by rules, and they do not differ in substance from those which were followed before the adoption of the new system.

§ 429. Limitations upon the Power of Amendment.

It would be impossible to say when, to describe all the occasions in regard to which, amendments should be allowed; it is easier to indicate some cases where they are not allowable. The general language of the statute embodies—and, perhaps, makes a little more specific-the powers that had been before acted upon by the courts, and except when the decision was controlled by the mere forms of action, the old authorities may still be looked to for guidance.2

207

206 [The power of the court to allow amendments is not entirely discre tionary. It is generally reviewable, but only for the purpose of determining whether there has been an abuse of discretion. COOK v. CROISAN (Or.) 36 Pac. 532; Flanders v. Cottrell, 36 Wis. 564.]

207 Leetch v. Atlantic Mut. Ins. Co., 4 Daly, 518.

At common law, an amendment changing the form of the action is sometimes allowed and sometimes not; it seems to be altogether discretionary,208 but an amendment by the plaintiff, so as to state an entirely new cause of action is not allowed, either in actions at law 209 or in suits in equity.210 A party, under the privilege of amending, is not permitted to introduce matter which would constitute a new bill.211 It is commonly said that the plaintiff must have something to amend by; that the writ or previous pleading must show that the cause of action presented in the new pleading is the same as that upon which the action was originally based. But the court will be "liberal in allowing them, when the cause of action is not totally different;" 212 "should be liberal in allowing amendments, to the end that cases may be fully and fairly presented on their merits." 213 "The power of amendment of pleadings is great under the Code. The real limitation seems to be that the amendment shall not bring a new cause of action." 214

208 1 Chit. Pl. 198; Little v. Morgan, 31 N. H. 499.

209 Milliken v. Whitehouse, 49 Me. 527; Cooper v. Waldron, 50 Me. 80; Sumner v. Brown, 34 Vt. 194; Steffy v. Carpenter, 37 Pa. St. 41.

210 Walden v. Bodley, 14 Pet. 156; Snead v. M'Coull, 12 How. 407. See Fort v. Litmer, 31 Ohio St. 215, as to so amending as to bring in a dormant judgment.

211 Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. 46; Carey v. Smith, 11 Ga. 539; [Scovill v. Glassner, 79 Mo. 449; Humphrey v. Hughes' Guardian, 79 Ky. 487.]

212 Napton, J., in Lottman v. Barnett, 62 Mo., on page 170.

213 Belcher, J., in Hayden v. Hayden, 46 Cal. 332.

214 Folger, J., in Reeder v. Sayre, 70 N. Y., on page 190; [Scovill v. Glassner, 79 Mo. 449; Stevens v. Brooke, 23 Wis. 196. It is well settled that the pleadings may be amended at any time to conform with the issue really tried. Cook v. Croisan (Or.) 36 Pac. 532; Jenne v. Burt, 121 Ind. 275, 22 N. E. 256. "The practice, under the Code, of allowing amendments liberally, so as to enable the parties, while in court, to have their differences settled and determined, has been uniformly approved and encouraged by the courts." Cook v. Croisan, supra. Where evidence is received, without objection, as to material matters not set up in the pleadings, a refusal of leave to amend so as to conform the pleadings to the real issue tried is reversible error. Id.; Chicago & G. S. Ry. Co. v. Jones, 103 Ind. 386, 6 N. E. S. In reference to the power of the court to amend pleadings changing the form of the action, the rule seems well settled generally (though there are some exceptions) that amendments at the trial cannot change the form or nature of the cause of action or of the defense;

The Supreme Court of Wisconsin, in limiting amendments, has been somewhat strict in construing the term "cause of action." In an action, however, for work and labor, an amendment was allowed seeking to charge a lien upon property; 215 but in an action to recover damages for flowing the plaintiff's land, the plaintiff was not allowed to amend so as to charge the defendant, under the statute, for appropriating the land to his use; 216 nor in an action for the wrongful conversion of money, was he permitted to amend by striking out the words "and converted the same to his own use," thus making the action sound in contract.217

§ 430. Continued-As to Defenses.

In regard to the defense, we do not find the same limitation upon the power of amendment. It frequently happens that a defendant seeks, by amending his answer, to set up a defense entirely new, as frequently, perhaps, as to perfect the statement of one already pleaded; and the plaintiff's rights are not affected by permitting

but nevertheless the court may, at its discretion, permit this to be done, if It is in the furtherance of justice. The following cases contain discussion on this question pro and con: Nichols v. Scranton Steel Co., 137 N. Y. 471, 33 N. E. 561; Dexter v. Ivins, 133 N. Y. 556, 30 N. E. 594; Davis v. New York, L. E. & W. Ry. Co., 110 N. Y. 646, 17 N. E. 733; BROWN v. LEIGH, 12 Abb. Pr. (N. S.) 193; Wyman v. Remond, 18 How. Pr. 272; Gilchrist v. Gilchrist, 44 How. Pr. 317; Bradley v. Phoenix Ins. Co., 28 Mo. App. 7; JOHNSON v. FILKINGTON, 39 Wis. 62; Vliet v. Sherwood, 38 Wis. 159; Zoller v. Kellogg, 66 Hun, 194, 21 N. Y. Supp. 226; Carmichael v. Dolen, 25 Neb. 335, 41 N. W. 178; Hughes v. McDivitt, 102 Mo. 77, 14 S. W. 660, 15 S. W. 756; Missouri L. & M. Co. v. Zeitinger, 45 Mo. App. 114; Guidery v. Green, 95 Cal. 630, 30 Pac. 786; Plumer v. Clark, 59 Wis. 646, 18 N. W. 467; Esch v. Home Ins. Co., 78 Iowa, 334, 43 N. W. 229; Alamance Co. Com'rs v. Blair, 76 N. C. 136; Culp v. Steere, 47 Kan. 746, 28 Pac. 987; Hopf v. United States Baking Co. (Super. Buff.) 21 N. Y. Supp. 589; Lewark v. Carter, 117 Ind. 206, 20 N. E. 119; Cincinnati, H. & D. Ry. Co. v. Bunnell, 61 Ind. 183.]

215 Lackner v. Turnbull, 7 Wis. 105.

216 Newton v. Allis, 12 Wis. 378.

217 Board of Sup'rs of Kewaunee Co. v. Decker, 34 Wis. 378. It is believed, however, that in most of the Code states this amendment would be permitted. See, also, Sweet v. Mitchell, 15 Wis. &41; Larkin v. Noonan, 19 Wis. 82; Stevens v. Brooks, 23 Wis. 196.