dissenting:
I have no complaint to make of the general rule as to amendments of pleadings, stated in the opinion of the court, but of its application to the facts of this case. Nor should I feel it necessary to file a formal dissent, except for the apprehension that the case will be used as a precedent to uphold a laxity of procedure which will result in impeding and embarrassing the administration of justice, and of rendering nugatory the labors of counsel in the preparation of the case made by the pleadings, and the solemn adjudication of the court after careful examination and consideration of the case so made. Litigants should not be permitted to present their cases piecemeal to the court, and render an adverse judgment simply an invitation to amend the pleadings by the insertion of facts of which they had full knowledge when the original pleadings were filed. This is especially true, where the new facts added make a new and different case from that stated in the original pleading and require different relief.
I do not attach importance to our statute on the subject of the amendment of pleadings, quoted in the opinion of the court, and found in section 6104 of the Code of 1919. This section is taken without any substantial change from Acts 1914, p. 641. In my opinion, this section made no change in the existing law as it had been long administered in this State, but was simply declaratory thereof, certainly so far as equity procedure is concerned.
*625My opinion on the general subject of amendments was expressed in DuPont v. Snead, 124 Va. 177, 97 S. E. 812, quoted in the opinion of the court as follows: “Amendments are freely allowed, and are to be favored when they promote the ends of justice. It would be a reproach to the administration of justice to permit a substantial right to be sacrificed to a mere form which did not affect the rights of the parties or the mode of procedure, and which could be readily changed without injury or injustice to any one.” This was but a statement of the general rule on the subject. But such amendments are not matters of right, and it has been found necessary to the due administration of justice not to extend the right so far as to permit litigants by this means to delay, impede or embarrass the administration of justice.
A fair statement of the rule will be found in the opinion of Mr. Justice Harlan in Hardin v. Boyd, 113 U. S. 761, 5 Sup. Ct. 773, 28 L. Ed. 1141, which is as follows: “In reference to amendments of equity pleadings, the courts have found it impracticable to lay down a rule that would govern all cases. Their allowance must, at every stage of the cause, rest in the discretion of the court; and that discretion must depend largely on the special circumstances of each case. It may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adherence to technical rules of practice.' Undoubtedly, great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side. And an amendment should rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs. The rule is thus stated in Lyon v. Talmadge, 1 Johns Ch. 184, 188: Tf the bill be found defective in its prayer for relief, or in proper *626.parties, or in the omission or statement of fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually-granted. But the substance of the bill must contain ground .for relief. There must be equity in the case, when fully stated and correctly applied to the proper parties, sufficient to warrant a decree/ And, in 1 Daniell’s Ch. Pr. (5th ed.) ■384, the author, after alluding to the rule in reference to amendments, observes: ‘The instances, however, in which this will be done are confined to these where it appears,, from the case made by the bill, that the plaintiff is entitled to relief, although different from that sought by the specific prayer; when the object of the proposed amendment, is to make a new case, it will not be permitted/ ”
In Bowe v. Scott, 113 Va. 499, 502, 75 S. E. 123, 124, Whittle, J., quotes with approval the following language from Judge Grinnan of the trial court: “When the proceedings in a cause have reached the stage that they have reached in this suit, a motion to file an amended bill is received with reluctance, and not granted but for some good reason. If .such an innovation as is here desired were to be granted, it would- open a precedent whereby suits might be greatly and unnecessarily prolonged, to the inconvenience, delay, and expense of litigants. Instead of a plaintiff being at pains to state his whole case in his bill, as he ought to do, ,if possible, he would be at liberty to present his case to the court by piecemeal; and the announcement of the court’s decision would serve no other purpose than to give notice that the bill needed additional allegations. While the courts are liberal in allowing amendments, the indulgence has never gone to this extent. * * Courts have discretion in these matters, but this discretion is, in no sense, an arbitrary or capricious one. It is a discretion that is at all times .hedged about and governed by those rules that have been long established and recognized as binding upon the courts.”
*627After making the foregoing quotation, Whittle, J., continues: “The action of the court in overruling the motion, for leave to file the amended bill is well sustained by authority. 1 Bar. Chy. Pr. 324, 327; Alsop v. Catlett, 97 Va. 364, 34 S. E. 48; Vashon v. Barrett, 99 Va. 346, 38 S. E. 200; Jackson v. Valley Tie Co., 108 Va. 714, 722, 62 S. E. 964.”
The holding in Bowe v. Scott, supra, was approved by this court in Starke v. Storm, 115 Va. 651, 652, 79 S. E. 1059.
In Richmond College v. Scott-Nuckols, 124 Va. 333, 340, 98 S. E. 1, 3, it was urged upon the court that Acts 1914, p. 641, (sec. 6104, Code), made it necessary for the court •at every stage of the proceeding to allow amendments, but in reply to this it was said: “It is true that the trial courts must always permit amendments in furtherance of justice and upon refusal to do so such action may be reviewed by this court; but such amendments are not matters of right and should not be permitted to delay, impede or embarrass the administration of justice.”
In Jackson, Trustee, v. Valley Tie Co., 108 Va. 714, 62 S. E. 964, it was held that: “While great liberality is allowed in amending pleadings, both at law and in equity, when a party has had every opportunity afforded him to present his own case for consideration and determination by the court, he will not be allowed, after he has ascertained what the decision of the court will be, to come forward and by means of amendments of his pleadings, obtain another hearing of matters which he might have brought forward when the case was first submitted, but declined to present. An 'amended and supplemental petition’ which alleges no new matter, no after-discovered evidence, no misconduct or surprises, tenders no new proof, and gives no excuse for failure to present it before it is properly refused.”
In the case in judgment the complainant knew everything when he filed his original bill that he knew when he filed the. *628petition. When he filed his bill he had in his possession the original order which he now seeks to enforce, and yet he neither mentions nor refers to it in any way in the bill. He relied in his bill upon the personal liability of the owner and upon his mechanic’s lien. The case was pending before the commissioner for about a year, and while the depositions were being taken his counsel insisted that “Mr. Austin must confine himself to matters and things pertinent to the enforcement of the lien set out in the bill.” He chose to rely upon the. personal liability of the owner and his mechanic’s lien as security for his debt, and after the commissioner had filed his report finding against him on both of the grounds upon which he relied, he then, for the first time, and probably at the suggestion made in the commissioner’s report, filed a petition claiming an equitable assignment. If the contention of the appellee that he had the right to file this petition be correct, then he might in the first instance, in his bill, have claimed only a mechanic’s lien,' and when the court decided that against him, amended by claiming personal liability of the owner under the statute, and when that was decided against him, might still further have amended by claiming an equitable assignment. Litigants eannot be permitted thus to present their causes of action by piecemeal. It is to the interest of the State that there should be an end to litigation, and to this end litigants should, be required to present their entire cause of complaint to the court in the first instance. Many instances arise when through mistake, accident, oversight, or other cause, the cause of action or defense has not been fully presented in the first instance where right and justice require that the pleadings should be amended so that the court may settle the whole litigation between the parties and in most instances this will be allowed, but it cannot be carried to the extent of permitting the parties to protract the litigation, and after the merits of the cause, as presented by them, *629have been determined against them, seek to renew it on grounds not theretofore mentioned by them, although fully within the knowledge of the parties. In Hurt v. Jones and wife, 75 Va., supra, in speaking of an amended bill which was sought to be filed, it was said: “The subject matter, the facts and circumstances on which relief will depend, the relief to be granted and the relief prayed, would be essentially different in the two bills. They would have but little, if anything, in common except the identity of the parties.” The same may be said of the case in judgment. There is little in common between the original bill and amended bill except the identity of the parties. The subject matter, the facts and circumstances on which relief would depend, and the relief to be granted, are essentially different in the cases presented by the two bills.
It is said in the opinion of the court that “to refuse to entertain the petition, and dismiss the original proceedings, meant another suit between the same parties, in the same court, before the same judge.” Such is not my opinion. The refusal of the petition meant the end of the litigation for that cause of action. It was the same debt, and the dismissal of the original bill under the circumstances would have barred the claim to an equitable assignment. If this worked a hardship- on the petitioner he had no one to blame but himself, and was in no different position from any other litigant who failed to allege and prove a case of liability on the part of the defendant.