Estate of Sweet

Recollecting the indulgence which the law allows in the way of amendment to pleadings, the power of the court should be freely and liberally exercised in the interest of justice, and recognizing the fact that from various causes pleadings are often found defective in the course of a controversy in court, in such cases, when an offer to amend is made at such a stage in the proceedings that the other party will not lose an opportunity to fairly present his whole ease, amendments should be allowed with great liberality. The right to have the pleadings amended to conform to the proof is, of course, well settled at any point before judgment; but after trial amendments should be considered with great caution. This is the pith of the law on this subject.

The objection to the proposed amendments is threefold: 1. It involves an entire change of issue; 2. It substitutes new issues ; 3. It presents a new cause of action. Any one of these objections is good enough—if, indeed, the three are not one.

Cause of action is an expression peculiar to common-law system. It did not exist in equity. The expression derived its origin from the distinct and peculiar forms of procedure *459 appropriate to…