the damages occasioned to the plaintiff by reason of the breach of the several pretended contracts referred to in the original and amended petitions herein, as will more specifically appear by reference to 'exhibit 1,' hereto attached, and that the recovery had, as fully appears from the verdict and findings of the jury as disclosed by 'exhibit 4' herein, is for the amount of plaintiff's damages by reason of the breach of each and all of said several pretended contracts referred to in the original and amended petitions herein; that the plaintiff named in 'exhibit 1' is the same person named as plaintiff in the original and amended petitions filed in this action; that the defendant in both cases is the same; that the several pretended contracts referred to and described in 'examend, is therefore not within the statute giving a second action in trespass to attached and made a part of the answer. It was also alleged that a trial had been had which resulted in a veraict in favor of the plaintiff, and that special questions had been submitted to the jury to which answers had been returned. It was alleged that there had been a motion for a new trial, which had been overruled; and the verdict and findings of the jury and judgment of the court were attached to and made a part of the answer, and also an entry of the order of the court overruling the motion for a new trial, and giving time for the making of a case for the supreme court. In addition to these averments, the following were alleged: "And this defendant further alleges and shows to the court that said action was commenced and prosecuted for the recovery of chapter, in which the writ should fail of a sufficient service or return by any unavoidable accident, or by the default, neg-try title if instituted within a year, where ligence, or defect of any officer to whom the writ should be directed; or when such writ should be abated, or the action thereby commenced should be avoided by demurrer, or otherwise. for any informality of proceedings, then another action upon the same demand might be commenced and the limitation thereof saved. Woods v. Houghton, 1 Gray, 580. verdict and judgment have passed against the plaintiff in the first suit, and consequently is without effect upon the running of the statute of limitations. Hughes v. Lane, 25 Tex. 356. The fact that a plaintiff in an action ostensibly barred by the statute of limitations commenced in time a former action for the same cause, and suffered a nonsuit, will not prevent the statute from applying if the act allowing a new action in such a case does not extend to his case. Gerren v. Hannibal & St. J. R. Co. 60 Mo. 405. In almost every state of the Union statutes have been enacted following broadly the lines of the legislation just cited, yet greatly varying in verbiage, and diverging widely under judicial construction. The When a suit is abated, discontinued, and question in the fore front of every inquiry out of court, it is, for all legal purposes, at as to whether or not a second action between an end, except where some statute provides the same parties for the same cause, follow- otherwise. A new and distinct suit stands ing a first one that failed, is barred by lim-upon its own merits, and derives no aid to itation, is: Is the case within the saving statute? The only cases in which the commencing and terminating of an action will prevent the statute of limitations from barring a new action promptly brought for the same cause are those specified in the saving stat ute. When, therefore, the statute only embraces cases wherein a judgment for the plaintiff has been reversed, or has gone against him upon matter alleged in arrest of judgment, the fact that a former action was brought in season, and discontinued because the remedy was misconceived, is no answer to the plea in bar of the statute of limitations. Sherman v. Barnes, 8 Conn. 138. And if the statute covers only actions of case, or of debt, grounded upon any lending or contract for arrears of rent, actions founded in maleficio, as for slander, are not saved from the statute of limitations. Cook v. Darling, 2 Pick. 605. This is the case, also, with respect of an action upon a penal bond not within the terms of the protecting statute. State use of Rockwell v. Hankins, 28 N. C. (6 Ired. L.) 428. A judgment on demurrer, being, in Texas only equivalent to dismissal for failure to support it from a prior suit terminated and dismissed from the court. This is especially the case with reference to the stat ute of limitations, unless it is prevented from applying to the new litigation by explicit legislation. Crane v. Frenen, 38 Miss. 503. If the saving statute allows a plaintiff to commence a new action without subjection to the statute of limitations only when a judgment in his favor has been reversed on appeal, the annulment of a decree in probate proceedings upon a writ of review does not suspend the statute. Fay v. Costa (Cal. App.) 83 Pac. 275. The New York statute (Code Civ. Proc. $405), providing that if an action is begun within the time limited therefor, and a judgment therein is reversed on appeal without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, dismissal for neglect to prosecute, or final judgment on the merits, the plaintiff may commence a new action for the same cause after the expiration of the time so limited and within one year after such termination, and which extends (Id. $$ 414, 415) to special proceedings, does not prevent the statute of limitations from being a bar to a proceed . hibit l' are the same identical contracts re-, pretended contracts constitute a single and ferred to in the original and amended peti- entire cause of action, and that any damtions herein; that the alleged breach of ages which the plaintiff sustained by reasaid several pretended contracts alleged in son of said breach of any one of said pre'exhibit 1' is the same identical breach of tended contracts could be recovered in a each of said contracts that is charged in the single cause of action, and, as fully aporiginal and amended petitions in this case; pears by exhibits 1, 2, 3, 4, and 5, herethat the damages claimed in this case are to attached, plaintiff has had one recovery a part and parcel of the damages alleged to for the breach of each and all of said prehave been occasioned by the breach of each tended contracts; and that whatever furof said pretended contracts as alleged in ther damages he claims he sustains for the said 'exhibit 1;' that it is not claimed in breach of any one and all of said pretended either 'exhibit l' or in the original and contracts are merged in the action which he, amended petitions herein that there was has already prosecuted to final judgment, more than one breach of each of said several and in the judgment which he has therein pretended contracts. And this defendant obtained against this defendant; that befurther alleges and shows to the court that cause thereof the plaintiff is estopped from the violation and breach of each one of said further prosecuting this action or any other ing in surrogate's court to compel an dismissed without prejudice to a new acexecutor to account, where the petitioners tion might bring and maintain a new suit had been cited in a previous proceeding in for the same cause under the Ohio statute that court, instituted by the executor him- (Code Civ. Proc. § 23), in force between self for a final accounting, and abated 1855 and 1861, within one year after such by his death. Re Schlesinger, 36 App. Div. dismissal, as well for the one cause of action 77, 55 N. Y. Supp. 515. as the other, where the time limited for commencing an action had expired in one case, but not in the other, at the time of the dismissal. Bates v. Sandusky, D. & C. R. Co. 12 Ohio St. 620. An action in which a judgment for the plaintiff is reversed and a new trial ordered, and wherein, upon the coming up of the case for the new trial, the plaintiff consents that his complaint be dismissed with costs. will not, under the New York statute (Code Civ. Proc. § 405), arrest the running of the statute of limitation against a second action for the same cause. Waydell v. Gabrielson, 19 C. C. A. 58, 38 U. S. App. 328, 72 Fed. 648, Rehearing denied in 19 C. C. A. 680, 38 U. S. App. 479, 73 Fed. 1021. The Kansas statute (Code Civ. Proc. 8 17, chap. 95, Gen. Stat. 1897), providing| that, if any action brought in due time results in a reversal of a judgment for the plaintiff, or in the failure of the action otherwise than upon the merits, and the limitation has run, a new action may be commenced within a year, is construed to apply as well to cases where the time expires after as before the termination of the first action. Knox v. Henry, 8 Kan. App. 313, 55 Pac. 668. When, after a verdict in plaintiff's favor, the defendant moves in arrest of judgment, and ultimately on the ground of the insufficiency of the declaration, and the supreme court, on appeal, holds the declaration bad, and arrests the judgment, but gives plaintiff an option to amend and have a new trial on terms, and the plaintiff elects to submit to the arrest of judgment, and not take a new trial on the offered terms, the termination of the action is not voluntary, and he has the right to sue a new writ upon the same cause of action saved from the statute of limitations, under Vermont statutes, 1214. Baker v. Sherman, 77 Vt. 167, 59 Atl. 167. The executors of a person whose suit against a railroad corporation for killing and injuring stock on two occasions was The statute of limitations is arrested as to a landowner's action of ejectment against the holders of tax deeds to his land, where a prior action was brought by such holders against such owner, and he set up the defense that the tax deeds were invalid, and the prior action was discontinued; the second action being saved by the Wisconsin statute (Rev. Stat. 1898, § § 4249, 4250) in that behalf. Preston v. Thayer (Wis.) 106 N. W. 672. The statute of Missouri (Rev. Stat. 1889, § 6784), providing that, if any action shall have been commenced within the time prescribed, and the plaintiff suffers a nonsuit, or, after a verdict for him, the judgment is arrested, or, after a judgment for him, the same is reversed on appeal or error, he may commence a new action within a year thereafter, applies as well to voluntary as involuntary nonsuits; and when an appeal will lie from an order granting a new trial which arrests a judgment after verdict, and such appeal is taken, the judgment of nonsuit is thereby superseded, the case removed to the supreme court, and only when the judgment is affirmed by that court is a nonsuit suffered within the meaning of the statute; and, it the plaintiff's new action is commenced within the year after the affirmance of the judgment by the supreme court, his action is not barred by the statute of limitations. Hewitt v. Steele, 136 Mo. $27, 38 S. W. 82. The statute of California (Code Civ. Proc. § 338), which provides that, if an action is commenced within the prescribed time, and a judgment for the plaintiff therein is reversed on appeal, the plaintiff may commence a new action within a year after the action for the recovery of any damages because of the alleged breach of any one or all of the several pretended contracts referred to in the original and amended petitions herein; that the judgment heretofore rendered in case No. 4367 is res judicata, and conclusive upon the parties herein as to the amount of plaintiff's damage by reason of the alleged breach of the several pretended contracts referred to in the original and amended petitions herein." A demurrer to this defense was filed by Bagley upon the ground that it did not constitute a defense to the amended petition, but the demurrer was overruled, and, Bagley having no further plea to make to the defense, judgment was entered on the pleadings in that case in favor of the railway company. The judgreversal, has been construed by the supreme court of the state as permitting a new action of any kind having for its result the same relief as was obtained in the original action. Kenney v. Parks, 137 Cal. 527, 70 Pac. 556. The Georgia statute allowing a new action does not mean that the form and parties in the new shall in all respects be identical with that and those in the old. The first case may have been dismissed because at law instead of in equity, or vice versa, or because it was defective in making or omitting an averment, or for a misjoinder of parties. The second suit will not repeat the error of the first, either in parties, pleadings, forum, venue, form of action, or prayer for relief. The second action must be for substantially the same cause, but it need not be a literal copy of the first. Cox v. Strickland, 120 Ga. 104, 47 S. E. 912. It will be found that in some states there is a marked disposition to give the benefit of the saving statute to every case that can possibly be brought within its terms. In others every case not strictly within the letter of such statute seems to be always excluded. Broadly speaking, there are two contrasting schools of thought,-the liberal and the strict constructionists. It is hardly universally true, as one court recently put it, that "the authorities all agree in the proposition that the renewal statute is to be liberally construed." Ibid. Yet there are many cases which support this dictum. The contrast referred to is exemplified in two cases decided in South Carolina and Alabama. In the former state it was held that an action of trover for converting a slave is not for the same cause as an action for harboring the same slave, and does not prevent the running of the statute of limitations. Gourdine v. Graham, 1 Brev. 329. While in Alabama it was decided that the saving statute, entitling a plaintiff, after a reversal of a judgment in one suit, to renew such suit within a year without the statute of limitations being a bar, does not restrict the second action to the same ment in the second case was given on July 11, 1900, and the case-made in the present proceeding was served three days later, to wit, July 14, 1900. A motion is made to dismiss this proceeding on the ground that the railway company has recognized the judgment as valid by pleading and enforcing it in the second action for the advantage of itself and to the disadvantage of Bagley. Messrs. T. N. Sedgwick, J. M. Bryson, and James Hagerman for plaintiff in error. Mr. Hale H. Cook, with Messrs. Ellis, Cook, & Ellis and Frank M. Sheridan, for defendant in error. Johnston J., delivered the opinion of the court: Does the answer in the second suit, which form adopted in the first. One failing in trespass may sue for conversion of the same property. Young v. Davis, 30 Ala. 213. And this case was approved in Crow v. State, 23 Ark. 684. III. The allowing of amendments. Ordinarily permission to amend a pleading is given or withheld in the discretion of the court, exercised in accord with legal rules in furtherance of justice. Chapman v. Barney, 129 U. S. 677, 32 L. ed. 800, 9 Sup. Ct. Rep. 426; Wilbur v. Abbot, 6 Fed. 817; Hodges v. Kimball, 34 C. C. A. 108, 63 U. S. App. 688, 91 Fed. 845; Riverside Land & Irrig. Co. v. Jensen, 73 Cal. 550, 15 Pac. 131; Link v. Jarvis (Cal.) 33 Pac. 206; Dukes v. Kellogg, 127 Cal. 563, 60 Pac. 44; Tom Boy Gold Mines Co. v. Green, 11 Colo. App. 447, 53 Pac. 845; Martin v. Luger Furniture Co. 8 N. D. 220, 77 N. W. 1003; Kerr v. Grand Forks (N. D.) 107 N. W. 197; Thornton v. Herring, 5 Houst. (Del.) 154; Tyler v. Mutual Dist. Messenger Co. 13 App. D. C. 267; Teutonia L. Ins. Co. v. Mueller, 77 Ill. 22; United States Ins. Co. v. Ludwig, 108 Ill. 514; Thomas v. Hawkins, 13 Ind. App. 318, 40 N. E. 813; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732; Mitchell v. Ripley, 5 Kan. App. 818, 49 Pac. 153; Read v. Bailey, 2 Mart. (La.) 296; Robinson v. Williams, 3 Mart. N. S. 665; Kirkland v. His Creditors, 7 Mart. N. S. 511; Tullos v. Lane, 45 La. Ann. 333, 12 So. 508; Pullen v. Hutchinson, 25 Me. 249; Chapman v. Nobleboro, 76 Me. 427; Babb v. Oxford Paper Co. 99 Me. 298, 59 Atl. 290; Gordon v. Downey, 1 Gill, 41; Crockett v. Parke, 7 Gill, 237; Ellicott v. Eustace, 6 Md. 506; Deford v. State, 30 Md. 179; Scarlett v. Academy of Music, 43 Md. 203; Lottman v. Barnett, 62 Mo. 159; State ex rel. Mackey v. Thompson, 81 Mo. App. 549; Diamond v. Williamsburgh Ins. Co. 4 Daly, 494; Johnson v. American Writing Mach. Co. 24 Jones & S. 500, 4 N. Y. Supp. 391; Miller v. Erie R. Co. 109 App. Div. 612, 96 N. Y. Supp. 244; King v. Dudley, 113 N. C. 167, 18 S. E. 110; Parker v. Harden, sets up prior proceedings in the present action, preclude a review of the latter? It is contended that the plaintiff, having pleaded that judgment and obtained a benefit, was, therefore, not in a position to contest its validity. The action of the company, as will be seen, does not affirm that the judgment was regularly obtained and that the proceedings in the case were free from error. The existence of the judgment was recognized, it is true, but no money or property awarded was accepted by the company, nor would its right to plead that the plaintiff was prosecuting two actions upon the same cause be affected by the reversal of the judgment. From the averments of the answer, which is said to constitute an estoppel, it is manifest that, the pleader was challenging the right of 122 N. C. 111, 28 S. E. 962; Swope v. Burnham, 6 Okla. 736, 52 Pac. 924; Philadelphia v. Hestonville, M. & F. Pass. R. Co. 203 Pa. 38, 52 Atl. 184; Jacobs v. Gilreath, 41 S. C. 143, 19 S. E. 308, 310; Alexander v. Brown (Tex. Civ. App.) | 29 S. W. 561; Skinner v. Grant, 12 Vt. 456. The Massachusetts statutes of amendment are broad. The courts are authorized to allow amendments either of form or substance, in any process, pleading, or proceeding which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought (Pub. Stat. chap. 167, § 41). Sanger v. Newton, 134 Mass. 308. In South Carolina if application to amend is made before trial, and the proposed amendment does not change substantially the claim or defense, it is discretionary to allow the amendment to be made, and the court ought liberally to exercise the discretion. Such an amendment cannot set up a cause of action where none was at first stated, nor one which has accrued since the action was commenced. Jacobs v. Gilreath, supra. Under the statutes of amendment operative in Pennsylvania, there is and ought to be a large measure of liberality in allowing amendments of pleadings in order to reach substantial justice between litigants, and that substance may not be lost sight of in a rigid adherence to mere matters of form. Philadelphia v. Hestonville, M. & F. Pass. R. Co. supra. In the state of New York it was at one time thought that there was no power to permit the introduction of new and distinct causes of action by amended complaints. Van Syckel v. Perry, 3 Robt. 621; Sheldon v. Adams, 41 Barb. 54, 18 Abb. Pr. 405; Evangelical Lutheran Church v. Fingar, 11 N. Y. Week. Dig. 460; Woodruff v. Dickie, 5 Robt. 619, 31 How. Pr. 164. The last case also denied the power to allow an amendment setting up a new and distinct defense from that originally pleaded, but was said to have been erroneously the plaintiff to split his causes of action or prosecute two actions upon a single indivisible cause. To show the court that the plaintiff was prosecuting an action against the defendant involving the same matters, the pleader set up all the proceedings in the former cause, including the judgment. It was not the judgment alone that was pleaded as a bar, but it was all the steps in the action, of which the judgment was one, and which it was necessary to mention in order to give a correct history of the litigation. If the plaintiff's petition in the second cause had shown on its face that there was "another action pending between the same parties for the same cause," it wou'd have been insufficient, as that fact is a specific ground of demurrer. Civil Code, § 89. It cannot decided in this respect. Diamond v. Williamsburgh Ins. Co. 4 Daly, 494. In Rowell v. Janvrin, 69 Hun, 305, 23 N. Y. Supp. 481, it was held error to permit the amendment of a complaint so as to set up a cause of action entirely independent of and having no relation to that originally pleaded; and an appeal from this decision was dismissed in 138 N. Y. 656, 34 N. E. 514. In any event, it was the view that amendments of this nature should not be permitted. An order giving a plaintiff leave to amend his complaint by adding to those alleged therein a new cause of action upon a claim that is barred by the statute of limitations ought not to be granted. Quimby v. Claflin, 27 Hun, 611. Afterwards the court of appeals, reversing the decision in 74 Hun, 224, 26 N. Y. Supp. 305, explicitly decided that the supreme court has the power, in its discretion, in furtherance of justice, to authorize an amendment before trial of a complaint so as to permit a substitution of a different cause of action from that originally alleged. Deyo v. Morss, 144 N. Y. 216, 39 N. E. 81. This case, it is said, effected a sweeping change in the New York practice respecting amendments, as theretofore the whole current of authority in the supreme court had been against the power to allow an amendment to a complaint setting up a different cause of action. Rowell v. Moeller, 91 Hun, 421, 36 N. Y. Supp. 223. The power to allow an amendment introducing a new cause of action after the statute has run is undoubted. The only of justice and for good cause. qualification is that it be in furtherance Wilson v. Smith, 27 Jones & S. 380, 14 N. Y. Supp. 628. Amendments are often allowed for the express purpose of avoiding the statute of limitations. Thornton v. Herring, 5 Houst. (Del.) 154; Rand v. Webber, 64 Me. 191; Lottman v. Barnett, 62 Mo. 159; State ex rel. Mackey v. Thompson, 81 Mo. App. 549. be that the setting up of such a defense in an answer in the second action admits plaintiff's right of recovery in the first. The defendant was claiming nothing on account of the judgment to which it would not have been absolutely entitled if no judgment had been rendered. An averment that the plaintiff had sued in a former action for the same cause is not inconsistent with a claim that plaintiff was not entitled to recover in such action. Nor is there anything inconsistent in an attempt to prevent the plaintiff from prosecuting a second action for the same cause and an appeal from the judgment rendered in the first action. Both rights are given by law, and the exercise of one is no reason for the forfeiture of the other. No relief was granted to the com Amendments are allowed expressly to save the cause from the statute of limitations, and courts have been liberal in allowing them when the cause of action is not totally different. Walker v. Wabash R. Co. (Mo.) 92 S. W. 83; adopting language of Napton, J., in Lottman v. Barnett, 62 Mo. 170. One of the principal objects of allowing amendments is to prevent the running of the statute of limitations, Courtney v. Blackwell, 150 Mo. 245, 51 S. W. 668. In an action to recover a forfeiture for taking excessive usury, the plaintiff may amend on payment of costs if it appears that a new action will be barred by the statute of limitations. Davis v. Saunders, 7 Mass. 62. The fact that the period fixed by the statute of limitations, within which an original petition could have been filed, has elapsed, affords no ground for refusing an amendment, but rather a reason why it should be allowed, as otherwise substantial justice will be defeated. Sanger v. Newton, 134 Mass. 308; Cogswell v. Hall, 185 Mass. 455, 70 N. E. 461. In Tobias v. Harland, 1 Wend. 93, the plaintiff in an action for slander alleged the defamatory words to have been spoken of and concerning him in his trade or business as a manufacturer of watches, and after issue joined upon the return of a foreign deposition, it appeared that he was not a manufacturer of the watches spoken of, but that they were manufactured expressly for him; and he was allowed to amend on payment of costs,-"especially as. otherwise, his action would" have been "lost by the running of the statute" of limitations. In Miller v. Watson. 6 Wend. 506, the plaintiff, after three trials, in an action to recover back the consideration paid for a warranty deed where he had, on the grant or's advice and promise of reimbursement surrendered to a third party, who brought ejectment, where the original declaration was in assumpsit containing only the com mon money counts and a count on an ac count stated, was allowed to amend by set pany in the second case upon the theory that there had been a surrender of the right to review. On the contrary, the answer showed that the preliminary steps had been taken by the company to contest the right of any recovery, and to secure a reversal of the judgment. The relief which the company did obtain was such as it was entitled to, whether a proceeding for the reversal of the judgment was brought or not, and the plaintiff did not lose any legal right by reason of the defense that was made, because he had no right to prosecute two actions upon the same cause at the same time. No rights were therefore surrendered or sacrificed by pleading the existence of a judg. ment, and an essential element of the es'toppel claimed was lacking. The answer, as ting up the special promise, because the court had held that he could not otherwise recover. Sutherland, J., in distinguishing Sackett v. Thompson, 2 Johns. 206, where similar relief had been denied, said in that case the statute of limitations had not run out, while in the one at bar, if the plaintiff was not permitted to amend the statute would be a bar to a new action. Although, he added, more than six years have elapsed since the commencement of this action, the defendant cannot claim the protection of the statute unless it had run out before the suit was brought, and, if so, he may plead it anew; subsequent to the commencement of the suit, there can be no presumption of payment. In an action upon a contract, alleging work done according to its terms, which provided for performance by a day named, wherein it appears that the work was not completed within the time limit, the plaintiff may amend by alleging an extension of time. In such a case the fact that the statute of limitations has run against a new action is a strong reason for granting, instead of refusing, leave to amend. Elting v. Dayton, 67 Hun. 425, 22 N. Y. Supp. 154. The objection that the statute of limitations has run against a cause of action set up in a proposed amended complaint is not a fatal one. The court has power, in its discretion, to allow the amendment to be made. Truman v. Lester, 71 App. Div. 612, 75 N. Y. Supp. 548. But, on the other hand, amendments are frequently disallowed because they would take away the defense of the statute of 'imitations. Willink v. Renwick, 22 Wend. 608; Sheldon v. Adams, 18 Abb. Pr. 405; Van Syckel v. Perry, 3 Robt. 621; Evangelical Lutheran Church v. Fingar, 11 N. Y. Week. Dig. 460: Higgins v. Gedney 30 App. Div. 481, 52 N. Y. Supp. 331; Wright v. Hart, 44 Pa. 454; Smith v. Smith, 45 Pa. 403; Trego v. Lewis, 58 Pa. 463; Tyrrill v. Lamb, 96 Pa. 464. If, in an action qui tam to recover the penalty for taking usury, the statute of limitations has run, when the plaintiff moves to amend his declaration to avoid a material |