tion, however, has been held to apply only to several actions on one policy, and not to extend to several policies on one risk. 1 Caines R., 114.

a. A party moving to consolidate actions, which are to be defended, must show by his affidavit that the questions to be tried in them will be substantially the same in all the suits (Dunn v. Mason, 7 Hill, 154). Where the affidavit was "that the defence in each and all of the actions will be substantially the same," but the nature of the defence was not stated, it was held insufficient. Ib.

b. The superior court have recently decided that a motion to consolidate may be made by a plaintiff, and if the motion is granted it will be on the terms that the plaintiff pay the costs in all the actions but one up to the time of consolidating. Briggs v. Gaunt (3d June, 1855, by Hoffman, J).

c. Where a plaintiff commenced sixty-four actions against the same defendant, all of which were at issue, and were for the recovery of separate penalties for an alleged violation of the law concerning foreign bank notes. The defendant moved to consolidate. Campbell, J., said, "I do not think it would be expedient to consolidate all these actions, and thus render necessary a trial which would be probably both protracted and embarrassing. At the same time, it is manifest that all these numerous suits for separate penalties under the same act, ought not to proceed, at least for the present. I understand it to be conceded by the counsel for both parties that the suits divide themselves into two classes. It seems to me, it would be just that the plaintiff should notice and bring to trial two of the suits, which may be selected by him one from each class, and that all proceedings in the remaining suits should be stayed until the trial of such two selected suits, with liberty to the defendant after such trials to renew the motion for a consolidation of the remaining suits, or for a further stay of proceedings,' and with like liberty to the plaintiff to apply for a consolidation, or to bring the remaining suits to trial, or that the defendants consent that they abide the event of the suits tried if they were to appeal from the judgment or judgments, if any may be recovered, against them." Clark v. Metropolitan Bank, 5 Sand., 665.

§ 168. [144.] (Amended 1849-1852.) Allegation not denied, when to be deemed true.

Every material allegation of the complaint, not controverted by the answer, as prescribed in section one hundred and fortynine; and every material allegation of new matter in the answer, constituting a counter-claim, not controverted by the reply as prescribed in section one hundred and fifty-three, shall, for the purposes of the action, be taken as true. But the allegation of new matter in the answer, not relating to a counter-claim, or of new matter in a reply, is to be deemed controverted by the adverse party as upon a direct denial or avoidance, as the case may require.

Before the amendment of 1852 this section read,

"Every material allegation of the complaint not specifically controverted by the answer, as prescribed in section 149, and every material allegation of new matter in the answer, not specifically controverted by the reply, as prescribed in section 153, shall, for the purposes of the action, be taken as true. But the allegation of new matter in a reply shall not in any respect conclude the defendant, who may on the trial, countervail it by proofs, either in direct denial or by way of avoidance."

d. This section" is not applicable to pleadings in justices' courts." Per Willard, J., in McNamara v. Bitely, 4 Pr. R., 44, 47.

a. In Young v. Moore' (2 Code Rep., 143), it was held that where in a justice's court the defendant appears and puts in an answer, the provisions of this section apply to such answer; and, therefore, where in a justice's court the defendant appeared and put in an answer of payment and set-off, it was held that it was not necessary for the plaintiff to prove his account-it was admitted by the defendant's answer; and again it was said, that an answer of payment in those courts admitted the making the contract sued upon. De Courcy v. Spalding, 3 Code Rep., 16.

b. A defendant who does not answer is not to be taken as admitting any thing contained in an answer of a co-defendant in which he has not participated. Woodworth v. Bellows, 4 Pr. R., 24.

c. Facts which the pleadings admit, cannot be contradicted or varied by evidence. Evidence is only intended to establish contested facts, Parkhurst v. M'Graw, 24 Miss. R, 134; Hackett v. Richards, 11 Leg. Obs., 315; and a judgment contrary to an admission in the pleadings showing there ought to be no such judgment, would be certainly erroneous. Bridge v. Payson, 5 Sand., 217.

d. "This section is confined to allegations of fact, and does not refer to an averment of the legal effect of written instruments; nor can it be applied to the intention of parties when they execute a written contract. An answer which contains an allegation of the meaning of a written contract or agreement, but does not deny its execution, should be deemed by the court an immaterial allegation,' and disregarded at the trial. Nor can such answer be deemed equivalent to an allegation of mistake or surprise in the execution of the agreement, so as to entitle the defendant to have it avoided on either of those grounds." Barton v. Sackett, 1 Code Rep., 96; 3 Pr. R., 358.

e. "We have frequently decided, and until a different construction of the code shall be enforced upon us by a higher authority, must continue to decide, that only those allegations in a complaint are to be deemed material in the sense of the code, which the plaintiff must prove upon the trial in order to maintain his action. It is upon these only that an issue can properly be taken; and it is of these only that the truth is admitted by the omission, in the answer, of a specific denial." Per Duer, J. in Fry v. Bennet, 1 Code, Rep., N. S., 245; 5 Sand., 54; Newman v. Otto, 4, Sand., 668; Harlow v. Hamilton, 6 Pr. R. 475.

f. Every allegation is material unless it may be struck out as surplusage. Mayor of Albany v. Cunliff, 2 Coms. 171.

g. An admission, in an answer, of new matter upon which issue is taken, cannot be used on the trial as a general admission of a material fact alleged in the complaint, when there is in the same answer a general denial of all the material allegations of the complaint. Troy & Rutland R. R. Co. v. Kerr, 17 Barb., 581, and, per Hand, J. "The admission was a mere confession for the purpose of avoidance; and the plaintiffs cannot dismember a special plea, and take this confession as a general admission in the suit. Certainly not, when he takes issue upon the plea. Were this so, every good special plea to the whole declaration, notwithstanding the general issue, would be an admission of the declaration generally, and be a waiver of the general issue, and change the onus of proof on to the defendant." [Although the learned judge uses the terms declaration and special plea, yet the above case was one under the code, and the remarks were applied to pleadings by complaint and answer.]

See note to section 149, p. 197 i. & 193 a.

CHAPTER VI.

Mistakes in pleading, and Amendments.*

SECTION 169. Material variances, how provided for. 170. Immaterial variances, how provided for.

171. What to be deemed a variance.

172. Amendments of course.

173. Amendments by the court.

174. Court may give relief in case of mistake.

175. Suing a party by a fictitious name.

176. No error or defect to be regarded, unless it affect substantial rights. 177. Supplemental complaint, answer and reply.

§ 169. [145.] (Amended 1849.) Existing suits. Material variances, how provided for.

No variances between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action

α. "One of the wisest and most beneficent parts of our law is the statute which confers on our courts the power of amendment; and the courts have been continually becoming more and more liberal in carrying its provisions into effect." Per Edmonds, J., in Williams v. Wheeler, 1 Barb., 48.

b. Section 145 of code of 1848, for which this section is substituted, and which in the material part uses the same language, pleading or proceeding, was held not to apply to affidavits, at least so far to authorize an amendment of the name of the court. Clickman v. Clickman, 1 Code Rep., 98; 3 Pr. R., 365; 1 Coms. 611. And where affidavits to be used in the court of appeals were entitled in the supreme court, they were held defective, and the motion was denied on that ground. Ib. But where in action in which the delivery of personal property was claimed, an affidavit in support of the claim was found to be defective (but not in the name of the court), the court permitted the plaintiff to amend the affidavit, and without a special motion for the purpose. Spalding v. Spalding, 1 Code Rep., 64; 3 Pr. R., 297; Dows v. Green, 3 Pr. R., 377.

c. The provisions of the revised statutes (2 R. S., 424, ss. 5, 6) are not repealed by the enactments of this chapter, but this chapter and the provisions of the revised statutes are to be construed together. Brown v. Babcock, 1 ̊Code Rep., 66.

d. It is a settled principle with the court that its suitors shall not be prejudiced by the mistakes or misprision of its officers, and amendments in such cases are generally matters of course. Neele v. Berryhill, 4 Pr. R., 16; and see note to section 384.

e. The decisions under the revised statutes as to amendments, are said to be safe guides as to the terms upon which similar amendments will be allowed under the code. Brown v. Babcock, 1 Code Rep., 66; 3 Pr. R., 305.

f. The whole matter of amendments is in the discretion of the court. Smith v. Babcock, 3 Sumner, 410. And no appeal lies from an order granting or refusing leave to amend. St. John v. West, 3 Code Rep. 85; Planters' Bk. v Walker, 3 Sme. & M., 409; Tanner v. Hicks, 4 ib., 294; Archer v. Stamps, ib. 353. Amendments were allowed in courts of equity according to the same rule as in courts of law. Jefferson's Heirs v. Callis, 4 Dana, 467.

VARIANCE.

253

or defence, upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as shall be just.

a. This section was amended in 1849. Prior to 1849, the latter portion of this section, instead of reading, "Whenever it shall be alleged," &c., was in these words: "Whenever it shall be alleged that a party has been misled, that fact shall be proved to the satisfaction of the court by affidavits showing in what respect he has been misled, and thereupon the court may order the pleading to be amended on such terms as shall be just."

b. The language of these sections (169 and 170) obviously contemplates a case where the alleged variance has been discovered or is developed on the trial or hearing, at which time the relief in a case to which it is appropriate may at once be given, and the trial thereafter proceed upon the amended pleadings; and in practice under these sections I believe no amendment has been allowed at a later stage of the cause. But these sections are materially qualified by the 171st." Egert v. Wicker, 10 Pr. 197.

c. Sections 169, 170, 171, have introduced "a principle unknown to the former practice, namely, that of determining questions of variance not by the incoherence of the two statements upon their face, and hence inferring their effect upon the state of the preparation of the party, but by proof aliunde as to whether the party was actually misled to his prejudice by the incorrect statement." "It is not left to the judgment of the court, whether in a given instance the variance was calculated to mislead, and how much to hold that it did mislead; but whenever it is to be alleged, that a party has been misled, that fact must be proved to the satisfaction of the court; and the proof must show in what respect he has been misled."-Catlin v. Gunter, 10 Pr. R., 321; 1 Kernan, 368; Deuel v. Spencer, 1 Abbott, 237; Cotheal v. Talmadge, 1 Smith, 575.

d. The above-stated principles extend to all actions and "all cases indiscriminately, whether the party invoking their service is seeking to visit his adversary with a forfeiture or not," and they apply to a defence of usury. Ib., overruling Catlin v. Gunter, 1 Duer, 264.

e. A variance between the complaint and the proof, by which it is certain that the defendant was not and could not have been misled, may, under the provisions of the code be disregarded, without amendment, by a referee as well as by a judge. Harmony v. Bingham, 1 Duer, 210.

f. Where two parties sued as plaintiffs, the one as executor of Keese, and the other as the surviving partner of Keese, and it appeared on the trial, that only the surviving partner should have sued, Edmonds, J., held that the variance was immaterial, and might be disregarded under this section. Keese, Exor's of, v. Fullerton, 1 Code Rep., 52.

g. And in an action by four persons as lessors, on the trial it appeared that the lease was made by those four and another named Laight, since deceased, but that the interest of Laight survived to the plaintiffs; but no reason for the omission of Laight as plaintiff was assigned in the declaration,-the court, Oakley, Ch. J., held, that the variance might be disregarded, and said, we leave the parties to apply by motion to amend if they deem it prudent; on the motion the amendment will be allowed on such terms as the court deem just; and such will be the practice in future where the amendment is not made at the trial. De Peyster v. Wheeler, 1 Code Rep., 93 ; 1 Sand. 719. And see Clanton v. Laird, 12 Sme. & M., 568.

h. In Lettman v. Ritz, 3 Sand. 734, an action for slander, the complaint set forth the words in English. On the trial it was proved that the slanderous words were spoken in German, and that the words in the complaint were a translation. The plaintiff applied for leave to amend by inserting the words spoken in German.

The presiding judge suffered the cause to proceed, with liberty for the plaintiff to move at chambers for leave to amend. The plaintiff had a verdict, and on motion at chambers, had leave to amend on payment of the costs of the motion, "it not appearing that the defendant had been misled or surprised by the variance."

a. Under an averment in an answer that the property was "very poor and of very little value," the defendant cannot prove that it was "worth nothing and of no value." Diefendorf v. Gage, 7 Barb. 18.

b. Where it was averred in a declaration, that the defendant represented the note to be "a good note, and that it would pass in South street," and the proof was that he said "the note was good, and there were people in South street who would take it," held not to be a substantial variance. Hawkins v. Appleby, 2 Sand. 421.

c. Plaintiff permitted to amend on the trial, by striking out the name of one of the defendants. Burns v. Bronson, 1 Code Rep., 27.

d. Plaintiff permitted to amend on the trial, by changing the form of action from an action on a promissory note to an action on a special contract. Jackson v. Sanders, 1 Code Rep., 27.

e. Evidence of a special agreement is admissible in an action by a daughter against her father for wages, although the plaintiff claimed to recover on an implied agreement only. The defendant not having been misled. Fort v. Gooding, 9 Barb. 371.

f. In Getty v. Hudson River R. R. Co., 6 Pr. R. 270, Parker, J., says, "If a plaintiff asks for equitable relief and it turned out on the trial he was entitled to legal relief only, I should permit him to take it in that form. And if he had asked for legal relief only when it appeared he was entitled to both legal and equitable, I should allow the proper amendment to administer complete justice in the case. The power to amend authorized by the code is ample for such purpose.' "In trying a cause at the circuit, I should most certainly allow whatever amendment in the pleadings was necessary to give the parties redress."

g. On a trial at the circuit, the pleading may be made to conform to the proof; immaterial allegations may be disregarded, immaterial evidence rejected, and such judgment may be directed as the facts and the law of the case require. Corning v. Corning, 1 Code Rep., N. S., 351.

§ 170. [146.] Existing suits. Immaterial variances, how provided for.

Where the variance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.

See note to last preceding section.

h. The denial of a motion to amend made at the trial, is not a ground of exception. Roth v. Sloss, 6 Barb., 308; Brown v. McCune, 5 Sand., 229.

§ 171. [147.] Existing suits.

ance.

What to be deemed a vari

Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, within the last two sections, but a failure of proof.