him to do so. "A plaintiff can not be said to have a right to deprive a defendant of the privilege of setting up a defense which, from any excusable cause, he has neglected to do, or has done in such a manner as to make it unavailable; and when a judge, in the exercise of his discretion, grants a defendant this privilege, he does not thereby affect the substantial right of the plaintiff. It deprives him of nothing. Neither can an order allowing a defendant to set up an additional defense be said to involve the merits. The cause of action on which the plaintiff relies remains as he set it forth in his complaint, and whatever were his merits when he brought the action they continue the same." 218

219

Courts are more liberal toward defendants in regard to the time when amendments should be allowed, for the additional reason that the plaintiff may suffer a non-suit and bring a new suit, while the defendant will forever lose the benefit of his defense; and it is so, and for the same reason, at common law.21 But the right of amendment is not an absolute one; it is limited by considerations affecting the rights of the plaintiff and the due administration of law; the application is not allowed for purposes of delay, nor unless made in good faith and "in furtherance of justice." In the equity practice the defendant may amend by stating a newly discovered fact, and sometimes even pending the hearing,220 yet an amendment is not allowed to enable him to introduce new matter known to him at the filing of the original answer,221 nor after a long period has elapsed.222 In equity the answer is used as evidence in the cause, and hence there is a reason for caution in allowing changes in the answer that does not exist in Code practice. Otherwise, we find no change in the considerations that should control the discretion of the court.

The defendant, in applying for leave to amend, must give some reason for his omissions-must disclose the amendment he would

218 Daly, F. J.. in Bowman v. De Peyster, 2 Daly, 203. In this case the judge expressed the opinion that an order allowing an amendment to an answer was so in the discretion of the trial court as not to be appealable, although appeals had been allowed.

219 Waters v. Bovell, 1 Wils. 223; Tidd, Pr. 708.

220 Story, Eq. Pl. §§ 897-905.

221 Howe v. Russell, 36 Me. 115; Campion v. Kille, 14 N. J. Eq. 229.

222 Goodwin v. McGehee, 15 Ala. 232.

226

224

make,223 and must show perfect good faith in his application.2 If, having full knowledge of his defense, he neglects to plead it, or having pleaded, withdraws it, especially when he reaps some benefit from the omission or withdrawal, he will not be permitted to replead it; 225 nor will one be permitted upon the trial to amend by denying a fact admitted in the answer; nor, upon a second trial, after a new trial has been granted by the Supreme Court; 227 and a defendant in trespass, after having denied generally, and after the jury had been impaneled, was not allowed to amend his answer by pleading accord and satisfaction.228 Pending the trial of a cause, amendments changing the nature of the issues will not be permitted, unless for a very good cause; but other amendments, either those merely formal or such as do not require new preparation or evidence on the other side, will be liberally allowed-as, when a new party should be added,229 or a description of the character in which the plaintiff sues.230

§ 431. Continued-As to unconscionable Defenses - Old Rule abolished.

The rule is made statutory that courts, in allowing amendments, will, when it is discretionary, exercise their discretion in furtherance of justice. This was done, before the adoption of the Code, by the exclusion of what were called unconscionable defenses, hard, unjust, as between the parties, although legal. Thus, though in an action upon contract one might plead the statute of limitations,

223 State v. Homey, 44 Wis. 615.

224 Allen v. Ranson, 44 Mo. 263; Gale v. Foss, 47 Mo. 276.

225 Clark v. Spencer, 14 Kan. 398.

226 Harrison v. Hastings, 28 Mo. 346.

The decision was placed chiefly upon

227 Spanagel v. Reay, 47 Cal. 608. 228 Shernecker v. Thien, 11 Wis. 556. the ground that the defense had been all along well known to the defendant, and that the plaintiff would be taken by surprise. Had, however, some honest reason been given for not having before pleaded it, the amendment would, doubtless, have been allowed.

229 Wellman v. Dismukes, 42 Mo. 101.

230 Harkness v. Julian, 53 Mo. 238.

232

yet if he had pleaded to the merits, he was not permitted to interpose the statute by way of amendment on leave.231 More especially was he denied permission to amend by pleading usury in those States where it worked a forfeiture of the principal.2 But when one has a statutory right to amend without leave of court, he may do so by setting up an unconscionable defense-as, the statute of limitations; 233 and, when there has been an accidental default, the court, in permitting the defendant to plead, will not impose a condition that he shall not plead this statute.234

There is a disposition on the part of the New York courts to overrule the earlier decisions upon this subject. A case arose in the Court of Appeals in 1854,235 in which there had been a variance between the evidence and the answer, setting up usury as a defense. The court allowed an amendment to the answer, in order to make it conform to the evidence, and expressly repudiated the right to make any distinction between the defense of usury and other defenses. This case was followed in the Supreme Court in 1867; and in 1877,237 Brady, J., says: "Whatever may have been the earlier doctrine on the subject of what were called unconscionable defenses, it no longer prevails. The rules which govern amendments are now to be regarded without reference to the character

236

231 Sagory v. New York & N. H. R. Co., 21 How. Pr. 455; Coit v. Skinner, 7 Cow. 401; Jackson v. Varick, 2 Wend. 294; applied to a demand for mesne profits, with the remark that the statute of limitations is a strict defense, and if the party lets it slip the court will not relieve him. Wolcott v. MeFarlan, 6 Hill, 227; [PLUMER v. CLARK, 59 Wis. 646, 18 N. W. 467; SMITH V. DRAGERT, 61 Wis. 222, 21 N. W. 46.]

232 Dole v. Northrop, 19 Wis. 249; Utica Ins. Co. v. Scott, 6 Cow. 606; Lovett v. Cowman, 6 Hill, 223.

233 Macqueen v. Babcock, 13 Abb. Pr. 268.

234 Gourlay v. Hutton, 10 Wend. 595; referred to approvingly in Lovett v. Cowman, 6 Hill, 223; Bank of Kinderhook v. Gifford, 40 Barb. 659, as to a defense that the note in suit was given for money won at play.

235 Catlin v. Gunter, 11 N. Y. 368.

236 Union Nat. Bank of Troy v. Bassett, 3 Abb. Pr. (N. S.) 359. There were peculiar equitable considerations in this case in favor of the defendant. 237 Barnett v. Meyer, 10 Hun, 109. See, also, Gilchrist v. Gilchrist, 44 How. Pr. 317.

of the defense" [and it is largely in the discretion of the court to allow or to refuse the amendment; but this discretion must not be abused].238

These later decisions must be considered as controlling in New York, though the courts in other States will, I think, hesitate before conforming to them. When a party has an absolute right to amend, this right cannot be controlled by the character of his proposed defense, if it be a legal one. But when a discretion is given to the court in allowing amendments by setting up new defenses, or in conforming the pleading to the evidence, that discretion should be controlled by equitable considerations. Usury is a defense in

240

equity as well as at law; yet if a defendant cannot avail himself of such defense without invoking equity powers, the court has always refused its aid, unless the applicant offers to do equity-that is, pay what is lawfully due.239 When leave to amend can be given or refused, the court cannot well help considering the effect of granting or withholding the leave-whether to grant it is in furtherance of justice, or whether it will enable one to avoid the payment of a just debt. In an early case in California, I find the following pertinent remarks in regard to allowing amendments to let in an answer setting up the statute of limitations: "The object of the · statute in reference to amendments is unquestionably the furtherance of justice. So far as that goes, courts ought to be disposed to treat such applications favorably. In most instances, it is a matter of course that they should be granted. But courts have not been inclined to look very kindly upon statutes of limitation, except when they were used as the instrument of justice and not of strategy. For example, there is a wide distinction between the protection of minor heirs by such means and the facility, on the other hand, afforded to the wary and skillful of escaping from the payment of an equitable demand. In the first case, the whole scope, force and effect should be given to the law; in the latter, it would only be reluctantly allowed its course for the sole end of maintain

238 [Plumer v. Clark, 59 Wis. 646, 18 N. W. 467; Smith v. Dragert, 61 Wis. 222, 21 N. W. 46; McNider v. Sirrine, 84 Iowa, 58, 50 N. W. 200.]

239 Beach v. Fulton Bank, 3 Wend. 573; Fulton Bank v. Beach, 1 Paige, 429. 240 Cooke v. Spears, 2 Cal. 409, per Anderson, J.

If the statute of lim

ing it as a general rule of conduct. itations had been pleaded in the first instance, there would have been no ground to have objected to it, and the court would have had no legal discretion to have ordered it to be stricken out. But, having been omitted when the application to amend was made, the first question presented was, will it be in the furtherance of justice? Such is the language of the statute; such, clearly, was the intent of the law." 241

§ 432. Supplemental Pleadings-Purpose-Cause of Action cannot be changed by-Leave to file must be obtained.

Analogous to amendments we have supplemental pleadings. The former can only embrace, or have reference to, facts existing at the beginning of the action, but sometimes there are new facts, matters that have arisen since the suit was instituted or, in certain cases, facts have been newly discovered, which, if presented, would materially affect the right of recovery. In determining the rights of the parties the latter should be considered; to that end they should be brought upon the record, and this is done by supplemental complaints, or petitions, answers and replies. Most of the Codes expressly provide for such supplemental pleadings and even if they fail to do so, the right to present them, as always exercised, though under different names at law and in equity, cannot be held to have been taken away.24:

241 See, as to discretion in allowing amendments, and with reference to the statute of limitations, Stout's Adm'rs v. Stout's Adm'r, 44 Pa. St. 457.

242 Facts occurring since the commencement of the action and new facts not then known to the plaintiff can be brought before the court by supplemental complaint only; it is error to permit them to be incorporated into the original complaint by amendment. McCaslan v. Latimer, 17 S. C. 123. "The office of a supplemental complaint is not to supply facts which, being necessary to the maintenance of the action, have been omitted from the original complaint, but is to bring into the record new facts, so that the court may render its final judgment upon the facts existing at the time of its rendition." Dillman v. Dillman, 90 Ind. 585. "A supplemental petition was always regarded as only ancillary to the original petition. Its office is to bring before