suit was brought to recover the possession of personal property, and the cause of action as proved was for money had and received, or money due upon a general indebtedness; and finally where a case of deceit and fraudulent representations was stated, and the proof established the breach of a contract.2 In addition to the general doctrine, that a party should be fully and truly apprised of the nature of the claim set up against him, there is a special reason why the plaintiff cannot recover for a breach of contract when the cause of action stated in the record is for deceit or any other tort. In many actions of tort the defendant may be taken on a body execution, issued upon the judgment; while a simple breach of contract never exposes him to that liability. If, therefore, a cause of action on contract could be proved and judgment thereon recovered when one for tort was alleged, the record might show a case for arrest on final process, although the issues actually tried involved no such consequence.3 [SS * 562, *563, *564. These sections, consisting of quotations from the Wisconsin case of Supervisors v. Decker, are given below in the note."] 624; Johannesson v. Borschenius, 35 Wis. 3 This special reason for the rule is alluded to in several of the foregoing cases. 4 § 562. I shall conclude this subdivision by quoting some passages from the most able and practically instructive opinion of Mr. Chief Justice Dixon in the case of [Kewaunee Sup. v. Decker, 30 Wis. 624, 626. The action was brought to recover money of the county alleged to have been converted by the defendant to his own use, he being Clerk of the Board of Supervisors. The complaint contained averments of fraud, of negligence, of conversion, and of contract. A demurrer to it having been overruled, the defendant appealed.] The whole theory of pleading is discussed in this elaborate judgment; but it is peculiarly appropriate in connection with the subjects of insufficiency, redundancy, and immateriality of allegations. "It would certainly," he said, "be a most anomalous and hitherto unknown condition of the law of pleading, were it established that the plaintiff could file a complaint, the particular nature and object of which no one could tell, but which might and should be held good as a statement of two or three or more different and inconsistent causes of action, as one in tort, one upon a money demand upon contract, and one in equity, all combined or fused and moulded into one count, so that the defendant must await the events of the trial, and until the plaintiff's proofs are all in, before being informed with any certainty or definiteness what he was called upon to meet. The § 456. * 565. Amendments Allowed by the Code. The new procedure, from its dread lest the proper requirements as to form " proposition that a complaint or any single and that he converted the same, etc., may count of it may be so framed with a double, be disregarded, and rejected as surplusage. treble, or any number of aspects, looking $ 563. "In support of this position, to so many distinct and incongruous counsel cited several New York decisions, causes of action, in order to hit the and some in this court where after trial exigencies of the plaintiff's case or any and judgment, or after issue has been taken possible demands of his proofs at the trial, on the merits, or after the trial has commenced we must say strikes us as something ex- and the plaintiff's case is closed, it has ceedingly novel in the rules of pleading. been held that such allegations may be We do not think it is the law, and, unless disregarded. The decisions were in acthe legislature compels us by some new tions like the present, and others involvstatutory regulation, shall hereafter be ing a somewhat similar question under very slow to change this conclusion. The the circumstances above stated, and were defendant supposes the complaint herein - made in favor of a good cause of action to be intended to be one in trover, charging or seeking to charge the defendant with the wrongful conversion of certain moneys which came into his hands as a public officer, and which belonged to the plaintiff; and acting upon such supposition, he has demurred to the complaint as not stating facts sufficient to constitute that cause of action. In answer to this view, the plaintiffs rather concede than otherwise that the complaint is and was intended to be one in tort for the conversion; but at the same time they insist, that, if it is not good as a complaint of that kind, it is sufficient as a complaint or count in an action for money had and received; and, being sufficient for that purpose, they argue that the demurrer was properly overruled. In other words, their position is, that it is a question now open to speculation and inquiry on this demurrer, whether upon all or any of the facts stated in the complaint taken collectively or separately, or even by severing the allegations themselves so as to eliminate or discard certain portions of them as surplusage, a cause of action of any kind is or can be made out; and if it be found that it can, then the demurrer should be overruled. To show that the complaint may be upheld as one for money had and received for the use of the plaintiff, and the action considered as one of that kind, counsel gravely contend that the averments that the defendant made fraudulent representations, and acted falsely, fraudulently, and wrongfully in claiming and withholding the moneys, proved or proposed to be, and which by a fair and reasonable interpretation of the pleadings could be said to be within the scope of them, or to be fairly mapped out and delineated by the averments, so that the defendant was apprised of the demand made against him, and of the facts relied upon to establish it. The great liberality of the code and the broad powers of amendment conferred and enforced upon the courts under such circumstances are well known [citing provisions in reference to amendments, variances, and the interpretation of pleadings]. These provisions for the most part, if not entirely, relate to the proceedings in an action after issue joined on the merits upon or after trial, or after judgment on the merits, when the facts are made to appear, and the substantial rights of the parties are shown. They are enacted in amplification and enlargement of the rules of the common law on the same subject, by which it is well understood that there were many defects, imperfections, and omissions constituting fatal objections on demurrer, which were waived after issue joined, and a trial of verdict and judgment on the merits. The cases cited by counsel are all of them manifestly such as fall within these provisions and rules, and none of them touch or have any bearing upon the question or case here presented. No case arising upon demurrer to the complaint is cited, and it is believed none can be, holding any such doctrine as that contended for." The learned judge cites the following cases as illustrations: Barlow v. Scott, 24 should degenerate into mere technicalities, and from its opposition to the decision of controversies upon points not involving N. Y. 40; Byxbie v. Wood, 24 N. Y. 607, Austin v. Rawdon, 44 N. Y. 63; Greason v. Keteltas, 17 N. Y. 491; Emory v. Pease, 20 N. Y. 62; Conaughty v. Nichols, 42 N. Y. 83; Wright v. Hooker, 10 N. Y. 51; Walter v. Bennett, 16 N. Y. 250; Stroebe v. Fehl, 22 Wis. 347; Hopkins v. Gilman, 22 Wis. 481; Tenney v. State Bk. of Wis., 20 Wis. 152; Leonard v. Rogan, 20 Wis. 540; Samuels v. Blanchard, 25 Wis. 329; Vilas v. Mason, 25 Wis. 310, 328. It is certain that the decision in some of these cases is not based upon the doctrine stated by the judge, that is, upon any ground of amendment or of waiving the objection by answering, etc.; but it is put upon the broad and fundamental principle, that, under the codes, equitable and legal reliefs may be granted in the same action, or one may be granted when the other is demanded the other cases, however, fully sustain the position taken by the opinion. § 564. "It thus appears that the authorities relied upon do not sanction the position that a complaint in the first instance, and when challenged by demurrer, may be uncertain and ambulatory, purposely so made, now presenting one face to the court and now another, at the mere will of the pleader, so that it may be regarded as one in tort or one on contract or in equity, as he is pleased to name it, and as the necessities of the argument may require, and, if discovered to be good in any of the phases which it may thus be made to assume, that it must be upheld in that aspect as a proper and sufficient pleading by the court. As already observed, the opinion of the court is quite to the contrary. We have often held that the inherent and essential differences and peculiar properties of actions have not been destroyed, and from their very nature cannot be. Howland v. Needham, 10 Wis. 495, 498. These distinctions continuing, they must be regarded by the courts now as formerly; and now no more than then, except under the peculiar circumstances above noted, can any one complaint or count be made to subserve the purposes of two or more distinct and dissimilar causes of action, at the option of the party presenting it. If counsel disagree as to the nature of the action or purposes of the pleading, it is the province of the courts to settle the dispute. It is a question, when properly raised, which cannot be left in doubt; and the court must determine with precision and certainty upon inspection of the pleading to what class of actions it belongs, or was intended to belong, whether of tort, upon contract, or in equity; and if necessary and material, even the exact kind of it within the class must also be determined. See Clark v. Langworthy, 12 Wis. 441; Gillett v. Treganza, 13 Wis. 472. This is not only in harmony with the decisions above referred to, but with all the decisions of this court bearing upon the question, and we know of none elsewhere in conflict. It is in harmony with these decisions which have been made, that an application to amend should be denied which professes to entirely change the cause of action sued upon, or to introduce a new one of a different kind." Citing Newton v. Allis, 12 Wis. 378; Sweet v. Mitchell, 15 Wis. 641, 664, 19 Wis. 524; Larkin v. Noonan, 19 Wis. 82; Stevens v. Brooks, 23 Wis. 196. The opinion proceeds to show that the conclusion thus reached is in harmony with the decisions made in Scheunert v. Kaehler, 23 Wis. 523; Anderson v. Case, 28 Wis. 505; Lee v. Simpson, 29 Wis. 333; Ragan v. Simpson, 27 Wis. 355; Samuels v. Blanchard, 25 Wis. 329. It also declares that in determining upon demurrer the true nature of the complaint, its object, and what particular kind or cause of action is stated in it, the character of the summons may be taken into consideration in connection with the form of the allegations in the complaint; and this particular conclusion is also sustained by the recent decision made by the New York Court of Appeals, before cited. Having thus laid down the general principles, the learned judge applies them to the case before him. The summons is for relief, which indicates the pleader's inten the merits, has made most ample and liberal provision for amendments. The sections of the codes are quoted at large in a former paragraph.1 So far as they relate to the pleadings, amendments are separated into two general classes, those made before the trial, and those made during or after the trial. The first of these classes is again subdivided into (1) the amendments of course, without any application to the court, which each party is allowed to make once in his own pleading within a specified time after it is filed or served; (2) the amendments which are made by permission of the court as the result of a special motion or application for that purpose, including those which the party is generally suffered to make in his pleading after a demurrer to it has been sustained. The amendments of the second class are for the purpose of conforming the pleadings to the facts which have been proved, or which are proposed to be proved, at the trial. They are all made by permission of the court, frequently upon an oral application during the trial or during the argument on appeal; often by the court itself on its own suggestion. Sometimes, however, the trial is suspended, and the party desiring an amendment is driven to a formal motion in order to obtain it.2 It is not within the scope of this work to describe the practice in reference to amendments; nor to discuss the particular cases in which they have been or will be allowed. I shall simply state the general principles which have governed the courts in the exercise of the discretion conferred upon them by the statute. § 457. *566. Conflict of Authority on Right to amend by Substituting Different Cause of Action. In giving a practical interpretation to the clauses of the codes, a conflict of decision has tion to bring an action of tort, and not one on implied contract for money had and received. The complaint itself is pronounced insufficient in its averments; the charges of fraud and conversion are in the form of general legal inferences, without the necessary statements of facts. "A general charge that a party acted fraudulently, falsely, or wrongfully, or that he made fraudulent representations or statements, amounts to nothing; there must be a specification of facts to justify it" (p. 634). The foregoing quotations form a small part of this exceedingly instructive opinion. The nature of the reformed pleading and its essential principles are here stated in a most clear and accurate manner, while the description of the improper modes which prevail to such an extent in actual practice is equally graphic and correct. The one explains the intent and design of the reform; the other shows how that design has been ignored, and that intent frustrated. 1 See supra, § * 435. 2 This particular instance strictly belongs to the first general class, since it is virtually an amendment before the trial. arisen among the tribunals of the different States, and sometimes among those of the same State, which it is utterly impossible to reconcile. The rule is established by one class of cases, and prevails in certain States, that in all the voluntary amendments which a party may make as a matter of course in his own pleadings, and in all amendments before trial for which the party applies to the court by motion, including those rendered necessary by the sustaining of a demurrer to his pleading, he cannot under the form of an amendment change the nature and scope of his action; he cannot substitute a wholly different cause of action in place of the one which he attempted to set up in his original pleading.1 A very different rule is laid down by another class of cases. It is settled in New York by a carefully considered decision of the Court of Appeals, which overrules a number of contrary decisions made by inferior tribunals of that State, that a complaint may be amended voluntarily and of course, by substituting an entirely different cause of action for the one originally alleged, provided the summons continues to be appropriate. It is not necessary that the new cause of action should be of the same general nature or class as the first one; but the plaintiff may, by omitting a cause of action, substitute another in its stead of an entirely different class and character, if the change does not require an alteration in the summons. Α like rule, it was held, also applies to answers and to defences contained therein.2 In some States this liberal interpretation 1 Kewaunee Sup. v. Decker, 34 Wis. 378; Rutledge v. Vanmeter, 8 Bush, 354, 356; McGrath v. Balser, 6 B. Mon. 141. See also Vliet v. Sherwood, 38 Wis. 159; Spinners v. Brett, 38 Wis. 648; Northwestern Union Packet Co. v. Shaw, 37 Wis. 655 (an amendment may change the action from one on express contract to one for money had and received on implied contract). 2 Brown v. Leigh, 12 Abb. Pr. N. s. 193 (1872). See also, to the same effect, Mason v. Whitely, 1 Abb. Pr. 85; 4 Duer, 611; Prindle v. Aldrich, 13 How. Pr. 466; Troy&B. R. Co. v. Tibbits, 11 How. Pr. 168; Watson v. Rushmore, 15 Abb. Pr. 51; Hall v. Woodward, 30 S. C. 564, 575. Some of these cases apply the same doctrine to amendments made upon motion. By this rule, an entirely new defence may be added to an answer by an amendment of course. McQueen v. Babcock, 13 Abb. Pr. 268; 3 Keyes, 428; Wyman v. Remond, 18 How. Pr. 272; although the Court of Appeals, in Brown v. Leigh, pointed out a difference between the terms of the section which permits amendments of course and of that which allows amendments upon application to the court before trial, yet it did not hold that the latter were to be any more restricted in their scope and extent than the former. [Deyo v. Morss (1894), 144 N. Y. 216, 39 N. E. 81. In South Carolina, it was held in Jennings v. Parr (1898), 54 S. C. 109, 32 S. E. 73, that the limitation on the power to allow amendments found in sec. 194 of the code, viz., that they shall not substantially change the claim or defence, has no appli |