Promissory Notes and Bills of Exchange. 6. An immaterial alteration is not made material simply by the intent to give thereby a different effect to the instrument, if such intent will not, in fact, be effectuated by the alteration. Ibid. 7. Effect of alteration without fraudulent intent. While the material alteration of a note by the holder thereof, though made without any fraudulent intent, but for the purpose of making it conform to the real intention of the parties, will destroy the right of recovery on the note, it will not, it seems, prevent a recovery in an action for the debt. Murray v. Graham et al., 29 Iowa, 520. issory note, after which and before delivery by an arrangement between the principals and the surety who first signed the note, his name was erased there from without the knowledge or consent of the other sureties, and the note was then delivered to the payee in a condition which showed upon its face that the name of the surety who first signed the same had been erased, whereupon the note was received with knowledge of the relation of principal and surety existing between the makers. It was held, 1. That the discharge of the surety released the co-sureties who signed the note when his name was upon it. 2. That the payee received the note under circumstances which would put a reasonably prudent man upon inquiry, and was charged with knowledge of the rights of the co-sureties. It was also held, that if the makers of the note were all prinAncipals, the erasure of the name of one would be a discharge of the others pro tanto. McCra mer v. Thompson et al., 21 Iowa, 244. 8. Where made through mistake. It seems that the alteration of a note, if made through mistake or innocently, will not preclude the right of the holder to recover on the original consideration. Krause v. Meyer, 32 Iowa, 566. 9. Under misrepresentation of agent. alteration by the payees in a promissory note, inserting interest therein, made in good faith upon the false representations of their agent, who obtained the note, to the effect that the makers authorized the insertion of interest, in the event the payees were not satisfied without, will not estop the payees from recovering on the original consideration. Ibid. 10. Nor would the fact that the salary of the agent was in part paid by a commission on the profits of the sale constitute him a partner, or change the rule above stated. Ibid. 11. Evidence. Any evidence tending to show the good faith of the payees in making the alteration is admissible. Ibid. 12. Alteration with assent of the maker. The alteration of a promissory note, with the assent of the maker at the time of or after the alteration, does not render it void. Grimstead v. Briggs, 4 Iowa, 559. 13. Alteration by co-maker. The alteration of a promissory note in a material respect by one of several makers thereof, assuming to have authority so to do, and for the honest purpose of making it conform to the original intention of the parties without the express, though with the implied, assent of the holder, will not prevent a recovery y the latter against all the makers in an action declaring upon the note as though in the form originally delivered. Murray v. Graham et al., 29 Iowa, 520. 14. Erasure of the name of a surety. Where 15. new consideration not essential to support assent of surety. A new consideration | is not essential to support an assent by a surety to an alteration in the date and amount of a promissory note, whether such an assent be expressed either before or after the alteration is actually made. Pelton v. Prescott, 13 Iowa, 567. 16. Additional party after delivery. Where a note has been fully executed, completed and delivered to the payee, the addition of another maker at the instance of the payee, and without the knowledge of the other makers, operates to discharge the latter. Hall's Adm'x v. McHenry, 19 Iowa, 521. 17.- - before delivery. Semble, that the same rule does not apply where the additional makers are added before the delivery of the note and without the knowledge of the payee. But if the note shows upon its face that there were but two makers, one the principal, the other a surety, while the note was signed by two sureties, and the payee has notice that the name of one surety was added without the consent of the other, it would avoid the note. Ibid. 18. cutting off the name of one surety to a promissory note, without the consent of the other, by the payee, after the execution of the note, is such an alteration as will discharge the other surety. Ibid. 19. Erasure of indorsement on bill of exthe principals and three sureties signed a prom-change. The party in possession of a bill of Mortgages and Executions — Articles of Incorporation — Pleadings. exchange has the prima facie right to erase the ious denomination, provide for their own amendindorsements thereon. Pilmer v. The State ment or alteration in a manner named, an branch of the State Bank at Des Moines, 19 Iowa, alteration affecting only the means to be em112. ployed in prosecuting the purpose of the corporation, and not the purpose itself, will not discharge the liability of the maker of a note, 20. of indorsement on note. The holder of a promissory note has a right to erase a prior special indorsement thereon, and it is not incum-executed in payment for a certificate of scholarbent on him to explain such erasure before the ship in such institution. Washington College v. note is admissible in evidence. Jones v. Berry- Duke, 14 Iowa, 14. hill, 25 Iowa, 289. II. MORTGAGES AND EXECUTIONS. 22. Alteration of mortgage. Where a mortgage was executed by the husband and wife, and the husband, after it was signed by the wife, without her knowledge or consent, inserted therein the description of additional property, which was the homestead of the mortgagors, such alteration being noted by the officer who took the acknowledgment, in his certificate, as having been made after it was drawn; it was held: first. That as to the property described therein, before the alteration was made, it was valid; that it would be valid as to the additional property against the husband were it not that said property was a homestead, and a con veyance of the same by the husband alone was absolutely void; and that the execution of the mortgage not having been denied under oath, and it being nowhere alleged that the alteration was made after delivery, the burden of showing that the alteration avoided the entire instrument was upon the defendants or mortgagors. Vanhorn & Clark, adm'rs, v. Bell, 11 Iowa, 465. 23. Semble, that when it appears that an alteration in a mortgage has been made after delivery, it is incumbent upon the mortgagee to explain the circumstances under which the change was made. Ibid. 24. Alteration of execution. The alteration of an execution in an immaterial part after levy does not vitiate a sale made thereunder to an innocent party. Cooley v. Brayton, 16 Iowa, 10. III. ARTICLES OF INCORPORATION. 26. Will not discharge liability on note The Washington college was organized with articles of incorporation, providing that the president of the institution should be a minister of the Associated Presbyterian Church, which articles, by their own terms, provided for their alteration or amendment in a manner pre scribed. They were so amended as to provide that the president should be a minister of the United Presbyterian Church; held, that it did not release the maker of a note executed for a certificate of scholarship, before the alteration was made from his liability thereon. Ibid. See BILLS AND NOTES; CONTRACTS; COR PORATION; EXECUTIONS. AMENDMENTS. I. PLEADINGS. III. CERTIFICATES AND RETURNS. I. PLEADINGS. 1. General rules. Applications to amend pleadings should always be allowed at the proper time, and on proper terms, when the tendency is to advance justice. Wilson v. Johnson, 1 G. Gr. 147; Harkins v. Edwards & Turner, 1 Iowa, 296; Glick v. Hartman, 10 Ibid. 410; The State of Iowa ex rel. Floyd v. The Mayor and City Council of the City of Keokuk, 18 Ibid. 388. 2. Rule under the statute. Under the liberal provisions of our statute, to allow amendments is the rule, to refuse them the exception.* See The following are the material provisions of the Revision of 1860, which have also been re25. When the articles of incorporation of a printed in, and form a part of, the Code of 1873: college, organized under the auspices of a relig-tween the allegation in a pleading and the proof is SEC. 2972 (Code of 1873, § 2686). No variance be Pleadings. vers v. Hamilton, 11 Iowa, 66; Harkins v. Edwards & Turner, 1 Ibid. 296; Pride v. Wormwood, 27 Ibid. 257. 3. So long as the substantial rights of the parties are not prejudiced by allowing amendments - so long as there is a substantial subject-matter or remedy sought, the court should not dismiss the cause, but give proper time, on proper terms, for such amendments, and making up the issues. Ibid. terms as to costs or continuance as might be imposed. The court refused to allow the amendment, and instructed the jury to find for the defendant. Held, that the ruling was erroneous. Pride v. Wormwood, 27 Iowa, 257. 5. In chancery. Under sections 1756 to 1759 inclusive, of the Code of 1851, pleadings in chancery causes may be amended upon the same terms as pleadings at law; and an amended and sworn answer was properly allowed to be filed after issue joined upon the pleadings, taken. Brink v. Morton et al., 2 Iowa, 411. not under oath upon which evidence had been Doran, 6 Ibid. 433. 7. Where no abuse of discretion is shown. The action of the court below, in allowing an amendment without imposing terms, will not be disturbed, unless it is shown that there has been an abuse of the discretion confided to the court in such cases. Harrison v. Colton, 31 Iowa, 16. 4. rule exemplified. In an action commenced on a contract not mature, the petition alleged that the defendant was about to dispose 6. Discretion. The statute contemplates the of his property with intent to defraud his crediexercise of a liberal discretion in granting tors, and asked an attachment. There was no leave to amend pleadings. Logan v. Tibbott et allegation that nothing but time was wanting al., 4 G. Gr. 389; Wilson v. Johnson, 1 Ibid. 147 ; to fix an absolute indebtedness. To this peti-Fuimer et al. v. Fulmer, 22 Iowa, 231; Hall v. tion defendant answered without demurring, or otherwise attacking its sufficiency. Subsequently, and after the contract under which the suit was brought had matured, the parties proceeded to trial upon the issues joined; and, after the introduction of some testimony by the plaintiff, he offered an amendment to his petition to the effect that, at the time of commencing his action, defendant was about to dispose of his property with intent to defraud his creditors; that nothing but time was wanting to fix an absolute indebtedness; that since the commencement of the action the time for perform ance had expired, and that plaintiff had now a complete cause of action. Judgment was prayed as in the original petition. In asking this amendment, plaintiff offered to submit to such to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be shown by proof aliunde to the satisfaction of the court, and such proof must also show in what respect he has been so misled, and thereupon the court may order the pleading to be amended upon such terms as may be just. SEC. 2973 (Code of 1873, § 2687). When the variance is not material as provided in the last section, the court may direct the fact to be found according to the evidence, and may order an immediate amendment without costs. 8. Amendment after final submission. cause Where, after the final submission of a SEC. 2979 (Code of 1873, § 2971). When either party shall amend any pleading or proceeding, the case shall not be continued in consequence thereof, unless the court shall be satisfied, by affidavit or otherwise, that the adverse party could not be ready for trial in consequence of such amendment. But if the court is thus made to become satisfied, a continuance may be granted to some day in the same term, or to the next term of said court. SEC. 2974 (Code of 1873, § 2688). When, however, the allegation of the claim or defense to which the proof is directed is unproved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof. SEC. 2977 (Code of 1873, § 2689). The court may, on motion of either party, at any time in furtherance of justice, and on such terms as may be proper, per-upon a separate paper which shall be filled, and shall mit such party to amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleadings or SEC. 2983 (Code of 1873, § 2692). All matters of supplement or amendment, whether of addition or subtraction, shall be made not by erasure or interlineation of the original, or by addition thereto, but constitute, with the original, but one pleading. But if it be stated in such paper, that it is a substitute for the former pleading intended to be amended, in that case it shall be deemed such substitute, but the pleading superseded by the substitute shall not be withdrawn from the files. Pleadings. because the ruling of the court refusing such pleadings. He may, however, be allowed to do leave was the exercise of a discretion, and there was no showing of abuse; and COLE, J., and DILLON, C. J., holding that the plaintiff had the right to amend and that it was error to refuse it. Hays v. Turner, 23 Iowa, 214. so under equitable circumstances, and upon proper terms, after satisfactorily excusing his failure to plead before the justice. Warren v. Scott et al., 32 Iowa, 22. 17. The showing of equitable circumstances 9. Right not absolute. The right to amend a or the excusing of the failure to plead before pleading is not absolute and unconditional, but the justice are obviated by an agreement of the is to be allowed only in furtherance of justice parties, stipulating that either may amend his and under a sound judicial discretion. Brock-pleadings by a certain day of the term. Ibid. man v. Berryhill, 16 Iowa, 1837 Harvey v. Spalding, 7 Ibid. 423; Hatfield v. Gano, 15 Ibid. 177; Floyd v. The Mayor, etc., 18 Ibid. 388; Hays v. Turner, supra. 10. refusal may be reviewed. The court may exercise its discretion so far as to see that an amendment asked for is substantial, and that it is not a repetition of the former pleading; and a refusal of the court to permit a party to amend will be reviewed by the appellate court. Harvey v. Spalding, 7 Iowa, 423; Mayer v. Woodbury & Strahm, 14 Ibid. 57. 11. It is erroneous upon sustaining a motion to strike from the files an amendment which is a repetition only to render judgment for costs against plaintiff as upon a trial. Robinson v. Erickson et al., 25 Iowa, 85. (See title APPEALS, post.) 18. Attachment proceedings. An affidavit for an attachment may be amended in substance as well as in form. J. L. Langworthy & Bro. v. Waters, Ilughes & Co., 11 Iowa, 432; Bunn v. Pritchard, 6 Ibid. 56; Graves v. Cole, 1 G. Gr. 405; Jackson v. Fletcher & Butler, Mor. 230; Gour ley v. Carmody, 23 Iowa, 212; Stout v. Folger, 34 Ibid. 71. 19.- It may be amended after a motion to quash the writ has been sustained. Stadler Bros. & Co. v. Parmlee & Watts, 14 Iowa, 175. 20. Motion to dissolve an attachment on the ground that the affidavit was insufficient. Upon leave given the affidavit was amended and the motion overruled. The appellate court refused to review the ruling because the amend 12. Leave to file an amendment may be refused when the party asking it would be entiment was not in the record. J. L. Langworthy tled to the same measure of relief without the & Bro. v. Waters, Hughes & Co., 11 Iowa, 432. proposed amendment as with it. Mansfield v. Wilkerson, 26 Jowa, 482; Ogilvie et al. v. Washburn, 4 G. Gr. 548. 21. allegation of fraud. An allegation in an amended petition, filed during the progress of the attachment suit, that the "defendants then were about to dispose of their property with intent," etc., was held insufficient to support a writ of attachment which had been issued at the commencement of the action. Wadsworth & Wells v. Cheeny & Wilson, 10 Iowa, 257. 13. In what cases allowed on appeal. The filing of further pleadings may be permitted, upon proper terms, by the district court, in causes therein pending on appeal; and the supreme court will interfere with such order only when it is clear that prejudice has resulted therefrom. Dunton v. Thorington et al., 15 Iowa, 217; Nettman v. Schramm, 23 Ibid. 521; May v. Wilson, 21 Ibid. 79; Stanton v. Warrick, Ibid. 76. 14. Where a plaintiff amends his petition after an appeal to the district court, it is not error to allow the defendant to amend his answer. Scully v. Scully's Executor et al., 28 Iowa, 548. 15. A plaintiff cannot amend his petition so as to increase his claim for damages after appeal and while the cause is pending in the appellate tribunal. Johnson v. Chaplin et al., 28 Iowa, 570. 23. Increase of damages. The plaintiff may 16. After appeal to the circuit court from a amend his petition increasing the amount of judgment of a justice of the peace, a party can- damages claimed. McDonald et ux. v. The not, as a matter of right, file additional or new | Chicago & N. W. R. R. Co., 26 Iowa, 124. 22. Affidavits for continuance. The practice of allowing affidavits for continuance to be amended, or new affidavits to be filed after the first has been held insufficient, is one which the courts should permit with great caution, if permitted at all. It is within the discretion of the district court to refuse leave to amend such affidavits unless for the purpose of presenting facts which have transpired or come to the knowledge of the parties since the filing of the first. Widner v. Hunt, 4 Iowa, 355. Pleading. 24. After demurrer. Where a defect in a 32. Mandamus. The power to allow amendpleading is amended by an additional pleading ments to pleadings extends to cases of mandafiled before the determination of the demurrer mus. The State of lowa ex rel. Floyd v. The thereto, the demurrer should not be sustained. Mayor and City Council of the City of Keokuk, Bell v. Byerson & Barlow, 11 Iowa, 233. 18 Iowa, 388. 25. After plea in abatement. A plea in abatement was filed, upon which issue was joined and the plea was sustained, but before judgment plaintiff asked leave to amend his petition to show the character in which he sued but not changing the complaint. Held, that leave to so amend was properly granted. Hunt v. Collins, 4 Iowa, 56. 26. Feme covert. An action commenced by a feme covert in her former name as a feme sole, may, by leave of the court, be amended by the substitution of her proper name. Glick v. Hartman, 10 Iowa, 410. 27. Injunction: stamp. It was held competent for the court to permit the plaintiff to make a new affidavit, properly stamped, to a petition for an injunction, when the affidavit thereto appended was defective because not properly stamped. Hughes v. Feeter, 18 Iowa, 142. 28. the petition upon which the injunction issued may be amended after a motion to dissolve the same; and if, as amended, it states a good cause for injunction, which is not over. borne by an adverse showing, the motion should be overruled and the injunction continued. Crawford v. Paine, 19 Iowa, 172. 29. New allegations. In an action for damages resulting from the fraudulent representations of the defendant, in relation to the nature of a patent right sold by him to the plaintiff, the plaintiff may so amend a count which, out of several in his petition, he has been compelled to elect and stand upon, as to declare for the first time for a breach of the warranty in such sale as well as for the fraud. Hunt v. Hoover, 24 Iowa, 231. 30. The jurat of an affidavit offered in evidence may be amended by adding thereto a reference to the notarial seal of the notary before whom it was made, which reference was omitted in the original jurat. Hallett v. The Chicago & Northwestern Railway Company, 22 Iowa, 259. 31. The jurat to a petition for replevin may be amended after a motion to dismiss the suit because the petition was not properly sworn to. Hoover v. Rhoads, 6 Iowa, 505. 33. Misnomer. While the power to order the substitution of the true name of the party when ascertained, is not expressly given by the Code, it is entirely competent for the court to so direct, under the numerous and liberal provisions for an amendment of the pleadings or other papers in a cause. Arbuckle v. Bowman et al., 6 Iowa, 70. 34. Misjoinder. The plaintiff may, after a demurrer to the petition for a misjoinder of parties has been sustained, amend by striking out the name of his coplaintiff, citing Glick v. Hartman, 10 Iowa, 410; Butcher v. Carleton, 11 Ibid. 47. 35. New party. A new party may be brought into an action by an amendment of the petition where a complete determination cannot otherwise be had. Harkins v. Edwards & Turner, 1 Iowa, 296, 36. by partners. Where an action is brought upon a cause of action belonging to a copartnership, in the name of one of the part ners only, against the other partner, the court may at any time, in furtherance of justice, permit an amendment by inserting the name of the firm as plaintiff. Dixon v. Dixon, 19 Iowa, 512. 37. On trial. The plaintiff may be permitted to amend on the trial, to obviate the effect of a variance between the date of a note, as stated in the copy attached to the petition, and that in the note as introduced in evidence. Avery v. Wilson, 26 Iowa, 573. 38. after submission. The supreme court will not interfere with the exercise of discretion by the court below in refusing to permit an amendment of the pleadings after a cause has been submitted to the jury. Hatfield et ux. v Gano, 15 Iowa, 177. 39. after trial. The allowance of a slight amendment to meet the case made by the proof, and which could not have operated to the preju dice of the adverse party, was held not to be such an abuse of discretion as to justify a reversal of the judgment, although the leave was not granted until after the close of the evidence and arguments of counsel, and the amendment was not actually filed until after the return of the verdict. Correll v. Glasscock, 26 Iowa, 83. |