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186 Massachusetts 150. KNOWLTON, C. J. The plaintiff was injured while a passenger on a car of the West End Street Railway Company, and brought a suit to recover for the injury. In the meantime a lease had been made to the Boston Elevated Railway Company, which latter corporation assumed all obligations and liabilities of the former corporation and began to operate the road, and the suit was brought against this latter corporation. The plaintiff was allowed to amend her writ by substituting the West End Street Railway Company for the Boston Elevated Railway Company as defendant, and the question submitted on the report is whether the order allowing the amendment was within the authority of the court.

The cause of action for which the suit was brought was the injury, and the plaintiff intended to bring it against the party liable for the injury. Our statute is very liberal in allowing any amendment "in matter of form or substance . . .? which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought.”. R. L. c. 173, 8.48. “The allowance by the court of an amendment shall be conclusive evidence of the identity of the cause of action.” R. L. c. 173, § 121. Batchelder v. Pierce, 170 Mass. 260, and cases cited. Driscoll v. Holt, 170 Mass, 262. An amendment may substitute one party for another. Winch v. Hosmer, 122 Mass. 438. Hutchinson v. Tucker, 124 Mass. 240. Lewis v. Austin, 144 Mass. 383. The defendant contends that this rule should not go so far as to permit the substitution of one sole defendant for another sole defendant. But this objection is covered by the decision in Adams v. Weeks, 174 Mass. 45, in which an amendment of this kind was held to have been rightly allowed. We see no good reason why the rule should not be the same in reference to a change of the party defendant as to a change of the party plaintiff.

The defendant contends that such an amendment cannot be allowed, if, at the time of proposing it, the action would have been barred by the statute of limitations if no suit had been brought. But the fact that a claim would be lost if an amendment was not allowed has often been considered an additional reason for allowing one, if in other respects the case was within the rule permitting amendments. George v. Reed, 101 Mass. 378. Sanger v. Newton, 134 Mass. 308. Hutchinson v. Tucker, 124 Mass. 240. Cogswell v. Hall, 185 Mass. 455. The new party, brought in as a defendant, is precluded from contending that the statute of limitations is a bar, by the fact that a suit was seasonably brought upon the cause of action. By the bringing of the suit, the rights of the plaintiff were

1 Indicated omission in original report.

saved, and when the former proceeding is corrected by an amendment, it is as if the proceeding had been perfect in the beginning.

This case is not like Smith v. Butler, 176 Mass. 38, in which the cause of action against the new parties brought into the suit in equity was not included in the original suit at all, but only such cause of action as existed against the original parties.

Case to stand for trial.



(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.

i See Johnson v. Carroll, 272 Mass. 134 (1930); Note, 74 A. L. R. 1280 (1931).

Suppose A sues B in Massachusetts for assault and battery. After the Statute of Limitations has run, may A amend to substitute C as the party defendant ?

(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.'

(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

1 See Tiller v. Atlantic Coast Line, 323 U. S. 574 (1945).

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AMENDMENT V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

AMENDMENT VI. In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

AMENDMENT VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.3

AMENDMENT XIV. Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges

1 See Scott, Fundamentals of Procedure (1922) 70–107.

2 As to waiver of the right to trial by jury, compulsory references in actions at law, and as to the constitutionality of requiring a jury fee, see Ch. VI, $ 6, infra.

3 The Fifth, Sixth and Seventh Amendments form part of the federal bill of rights proposed by the First Congress on September 25, 1789, and in force since December 15, 1791.

or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.1


ARTICLE XV. In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has heretofore been otherways used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred, unless, in causes arising on the high seas, and such as relate to mariners' wages, the legislature shall hereafter find it necessary to alter it.

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ARTICLE I. SECTION 2. The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. The legislature may provide, however, by law, that a verdict may be rendered by not less than five-sixths of the jurymen constituting a jury in any civil case.5



241 United States 211.

ERROR to the Supreme Court of the State of Minnesota.

MR. CHIEF JUSTICE WHITE delivered the opinion of the court. Counting upon the Employers' Liability Act of 1908 (c. 149, 35

1 The Fourteenth Amendment became a part of the Constitution on July

28, 1868.

2 Adopted in 1780.

3 Adopted in 1894.

The first clause of this sentence was contained in substance in the first constitution of New York adopted in 1777 (Art. XLI) and was amended to its present form in the constitution of 1821 (Art. VII, §2). The provision as to waiver of jury trial in civil cases was added by the constitution of 1846 (Art. I, 82).

5 The last sentence of the section was added by a constitutional amendment adopted November 5, 1935, effective January 1, 1936. See N. Y. C. P. A. § 463-a, added by N. Y. Laws 1937, c. 120, providing for five-sixths verdicts in all civil cases.

As to how far the scope of the right to trial by jury under state constitutional provisions depends upon the extent of the right as established by decision or statute at the time of the adoption of the particular state constitution, see, Ch. XIII, § 5, and Ch. XVIII, infra.

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