Tbe provisions of tbe statute of amendments are very liberal, and should be liberally construed in furtherance of justice; but to allow tbe amendment here aslced would be going farther than this court has ever gone. It would, in fact, be to overrule the cases of Newton v. Allis, 12 Wis. 378, and Larkin v. Noonan, 19 id. 82. It is true, those were applications for leave to amend made at the trial, but before any evidence was given on the part of the plaintiffs. It is manifest, however, that there can be no reason for distinguishing between such applications and those made 'befo're trial, where the object of the proposed amendment is to entirely change the cause of action sued upon. In either case, the plaintiff has an equally efficient and not more expensive remedy, by the commencement of a new suit, unless, indeed, he could gain by the amendment some advantage over the. defendant as to some defense he might have to the new cause of action, such, for example, as the plea of the statute of limitations; and if he could gain such advantage, that of itself would be good ground for refusing to permit the amendment. An amendment which would revive a cause of action by the statute, or preclude the defendant from availing himself of that defense, is not considered to be “ in furtherance of justice.” Sheldon v. Adams, 18 Abb. Pr. R. 405. The effect of the decisions just above cited, then, is, that there cannot, unless under very extraordinary circumstances, be an amendment of the complaint before or at the trial, on leave asked of the court, by which a new or different cause of action is substituted for that on which the action was commenced. The plaintiff must discontinue, and begin anew. And the statute having received this judicial construction, the question here is, whether it shall be adhered to.
We are referred to the case of Daguerre v. Orser, 3 Abb. *200Pr. R. 86, in which a somewhat different view was taken of the statute. We are not aware, however, that the doctrine of that case has ever received the sanction of the Court of Appeals. But, be that as it may, we are not inclined to depart from our own decisions, believing it to be quite as important, upon mere questions of practice like this, that the law should be certainly settled as that it should be correctly settled. If we have mistaken the meaning of the statute, and such amendments should be allowed, it is very easy for the legislature to correct the error; but, as in the meantime no injustice can result to suitors from the construction adopted, it will be adhered to until changed by legislative action.
When this cause was here before, on appeal from the order overruling the demurrer to the complaint (22 Wis. 695), we held that it was an action at law to recover from the defendant his alleged share of the costs and expenses of the foreclosure proceedings and of the other steps taken to perfect the title to the land, and that it could not be regarded either as an action of ejectment or as a suit in equity in the nature of a bill to redeem. The proposition now is, to convert it by amendment into an action to redeem and compel the defendant to surrender possession of the land. Proceedings more opposite in their nature and diverse in their entire scope and operation cannot well be imagined; and we hold that the amendment cannot be made.
By the Court. — Order affirmed.