“The Plaintiff in any action to recover the possession of personal property, may, at the time of commencing the action, claim the immediate delivery of the property, as provided in this chapter.” (Code, § 181.) The chapter then provides a proceeding which is a substitute for the action of replevin—pointing out the mode of “claiming an immediate delivery,” &c. To entitle the party to institute it, he must commence an action to recover the possession of the property which is the subject of the controversy.
The 143d section of the code classifies actions, and declares which may and which may not be joined in one suit. Actions for injuries by force to property are put in the second class-—and claims to recover the possession of personal property are put in the sixth class. These actions are what were formerly known by the respective names of trespass and replevin; and, for want of any other brief designation, I will apply these in the course of this examination.
• Trespass de bonis asportatis and replevin, under the present, as well as the former practice, are concurrent actions, the same state of facts sustaining the action in either form. So, in this case, the statement of facts in the complaint is adapted to suit, either in the second or sixth class; and it is the judgment asked for that determines to which it belongs.
Trying this complaint by this rule, puts it in the second class—it is not a suit to recover possession of personal property, and therefore the Plaintiff was not entitled to institute proceedings under the 182d and subsequent sections of the code to obtain the delivery of the property.
Then, can the complaint be so amended that the action shall be replevin instead of trespass ? The exercise of the power of the court to allow amendments is always a matter of discretion. It is nevertheless the duty of the court to exercise this discretion liberally for the promotion of substantial justice. And I think this might be allowed, if there is *300power in the court to permit it, and there were no other difficulties in the way of sustaining the proceeding.
The Revised Statutes provided that “ The court in which any action shall be pending shall have power to amend any process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just.” (2 R. S., 424; sec. 1.)
Under this statute,' amendments have been allowed, changing the form of the action from covenant to assumpsit—changing a count in assumpsit to debt, when there had been a misjoinder of counts—and the form of a writ in replevin from the cepit to the detinet. (Alston v. The Mutual Insurance Company of Troy, 1 Howard’s Sp. T. R., 82 ; Smith v. Frizzell, 3d id. 148 ; Garlock v. Bellinger, 2d id. 43.)
Under the former practice, amendments might be made changing the substance of the action or defence. (Jackson v. Peck, 4 Cowen, 418.) The code, however, has somewhat restricted the power of allowing amendments. The three first sections of the chapter of the code relating to the subject, 145, 146 and 147, were designed to provide for variances discovered at the trial. (Report of Com’rs of the Code, 158.) The 148th section allowing amendments, of course, -without application to the court, is simply an enactment of what has been a standing rule of the Supreme Court, ever since 1796, except the rules gave more time for the exercise of this privilege, than is allowed by the code; and it is hardly necessary to say that no one will construe this section as allowing amendments, which the court is prohibited from allowing upon special application.
The 149th section, which is evidently designed to take the place of that above quoted from the Revised Statutes, is the one under which amendments are to be allowed upon application to the court other than at the time of trial; and this section has prohibited an amendment which shall change substantially the cause of action or defence. Then will the proposed amendment change substantially the cause of action; literally speaking, the wrong committed which entitles a Plaintiff to redress, is the cause of action. But the term is not used in this sense exclusively. In legal parlance, it refers also to the character of the action; and heretofore trespass de bonis asportatis and replevin have been treated and regarded as different causes of action, although the same state of facts will sustain either. In the code, I think the term has been • used, in many instances, in the latter sense. Thus, in the 143d section, the legislature have classified “ causes of action,” and put trespass in one class, and replevin in another. It provides that “ causes of action” united in one suit, must all belong to *301one class. In enumerating different causes of action, they have made this distinction, and if it was not designed, the language used, it must be admitted, was most unfortunate and inappropriate. I am led to the conclusion, that, within the meaning of the code, claims for injuries to personal property, and claims for its possession are substantially different causes of action, and that any amendment which shall have the effect to transfer the action from one of the classes enumerated in the 143d section to another is prohibited by the 149th section.
The original affidavit does not conform to the requirements of section 182. Under the former practice the Plaintiff, or some one in his behalf, was required to make an affidavit “stating,” among other things, that the property described in the writ had not been seized under any execution or attachment against the goods and chattels of such Plaintiff, hable to execution, and this provision was complied with by making the affidavit in the language of the statute. The code requires an affidavit “ showing ” if the property has been seized under execution, “ that it is exempt from such seizure.” The rule, that slight changes in phraseology, in the revision of a statute is not held to change its construction unless such intent appears from the revised act is undoubtedly sound and settled. On the other hand, we are not to presume that the Legislature from caprice or love of change, have adopted a new phraseology. But the code can hardly be called a revision of the practice. It is a substitution of a practice entirely .new, and the evidence of a design to change not only parts, but the whole practice, is furnished in almost every section of this new law. The words “ state ” and “ show ” have a different legal signification. Stating a case to be within the purview of a statute is simply alleging that it is—while showing it to be so, consists of a disclosure of the facts, which bring it within the statute. On referring to Webster for the definitions of the word “ show,” (although I confess I do not consider lexicographers the safest authority in giving construction to statutes,) it will be found that among others, he gives the following, “ to prove,” “ to manifest,” “ to prove by evidence.” The effect of the code is, to bring affidavits of this kind within the rules, which prescribe the mode in which facts must be stated in an affidavit of cause of action, rather than those applicable to affidavits heretofore used in replevin suits.
It is insisted by the Defendant that this affidavit cannot be amended; and if permitted, it must be upon a motion by Defendant, of which notice shall be given. The former and present statues, so far as they relate to this point, are substantially the same. (2 B. S., 424; Code, sec. 149.) The late Supreme Court held, in Berrien v. Westervelt, 12 Wend., 194, *302that an affidavit annexed to a writ of replevin, could not be amended. Later decisions, however, hold otherwise. (Cutler v. Rathbone, 1 Hill, 204 ; Stacy v. Farnham, 2 Howard’s Prac. R. 26.) These latter cases are explained and somewhat qualified by Millikin v. Selye, 6 Hill, 623. Same case, 3 Denio, 54, but the authorities are in favor of the power to allow the amendment.
It has also been the practice of the late court to allow a party opposing a motion to amend the defects complained of without a new motion on his part, when the amendment proposed is proper in itself; and the court can see from its practice and the nature of the case, that no new facts can be presented that ought to defeat it. (See cases above cited, and Hawley v. Bates, 19 Wend. 632 ; Whaling v. Shales, 20 Wend. 673.) This is such a case, and the practice is calculated to save parties expense and trouble, and to expedite the proceedings in a cause.
But the supplementary affidavit does not aid the Plaintiff. It does not appear when the judgment upon which the execution issued was awarded or docketed. This circumstance was mentioned at a time when the Plaintiff might have supplied the defect, and from his omission to do so, I assume that the judgment was entered after the discharge in bankruptcy was obtained. Hpon this state of facts, the discharge does not extinguish the judgment nor invalidate the execution. They remain in full force until the judgment is vacated or the execution set aside. (Kellogg v. Schuyler, 2 Denio, 73 ; Graham v. Pierson, 6 Hill, 247 ; Crouch v. Gridley, id. 250 ; Thompson v. Hewitt, id. 255.) Nor do I mean to be understood as intimating that the case would have been difi ferent if the judgment had been docketed prior to the filing of the Plaintiff’s petition in bankruptcy; upon that point no opinion is given.
It was urged on the argument on one side that the 182 section of the code required the affidavit to show that the property was exempt from seizure on any execution. And on the other it was insisted that it was necessary only to show that it was protested against seizure under the execution upon which it was actually taken. The disposition made of the other points renders it unnecessary to decide this question.
There must be an order setting aside the notice to the coroner, endorsed on the Plaintiff’s affidavit, and all proceedings under it, and under the affidavits; such order to be entered and the papers used on the motion to be filed by the Defendant in the office of the clerk of Niagara county.