Whipple, J.
delivered the opinion of the Court.
The first ground assumed by the counsel for the relator, is, that the second amended declaration was irregularly filed, and that the motion to set the same aside should have been granted by the Circuit Court. Whether this position be sound or not, must depend upon the construction of the 27th general rule prescribed by this Court for regulating the practice at the Circuit. That rule is as follows: “ The plaintiff may at any time before the default for not replying shall be entered, if the plea shall be a special plea, or a plea in abatement, or within ten days after service of a copy of the plea if it shall be the general issue, amend his declaration. After plea, either party may, before default for not answering shall be entered, amend the pleading to be answered; and when there shall be a demurrer to a declaration or other pleading, such pleading may be amended at any time before the default for not joining in demurrer shall be entered. The respective parties may amend under this rule, of course, and without costs, but shall not be entitled so to amend more than once. Under this rule, new counts or pleas maybe added.”
Had the plaintiffs, then, a right to file the second amended declaration, as of course, under this rule ? The first amended declaration was filed under the special order of the Court granting leave to the parties to file new pleadings under the rules of the Court; that is to say, the plaintiffs *441had leave to file their amended declaration within sixty days, and the defendant had thirty days to plead thereto. Could the plaintiffs, then, after a demurrer was interposed to their amended declaration filed under the special order, amend of course, under the general rule ? I think the rule will not admit of such a construction. In this case, the plea of the general issue was pleaded to the original declaration, — a trial was had, and a verdict rendered in favor of the plaintiffs, which was subsequently set aside, and a new trial granted. At this stage of the proceedings, the special order allowing new pleadings was made, and the 27th general rule ceased to operate; all further pleadings were to be regulated by the special rule ; neither party could refer to the general rule for conducting them; that rule had no application to the case. This, I think, will appear manifest by a careful examination of the rule itself, without reference to the practice under it. The rule provides that the plaintiff may amend his declaration of course, before default is entered: 1. Where a special plea is filed; 2. Where a plea in abatement is filed; and 3. Where a demurrer is filed. It also provides that a declaration may be amended, in the event that the general issue is pleaded, provided the amendment is made within ten days after service of such plea. With reference to the right of the plaintiff to amend when the general issue is pleaded, the rule may be construed to read thus : “ The plaintiff may amend his declaration once of course within ten days after service of a copy of a plea, if it be the general issue.” In this case, the general issue was pleaded to the original declaration; and the right of the plaintiffs to amend, existed, provided such amendment was made within ten days after the service of the plea. The plaintiffs, however, did not avail themselves of this right, but proceeded to the trial of the cause, and obtained a verdict. This being so, their right to amend under the *44227th rule became extinguished; that rule had no further application to the case. After a case is taken out of the operation of the general rules for regulating the pleadings in a cause, I think the 27th of those general rules, ceases to apply to it, and the party is bound to proceed under the special rule that may have been made, and be guided by it. In the case before us, the plaintiffs, under the special order of the court, availed themselves of their right to file an amended declaration. To that declaration a demurrer was interposed; and, if they desired further to amend, a special application for that purpose should have been made to the court, and a special order obtained. They could not file an amended declaration under the special order of the court, and amend of course, under the general rule. ' That rule was evidently intended to apply only to cases where the pleading amended was filed under the general rules of the court. If this be its true construction, it follows, that the rule has reference, exclusively, to amendments to be made after the return of process, and before the action of the court has been had upon the pleadings. Suppose the defendant, instead of filing the plea of the general issue to the original declaration, had demurred, and that the demurrer had been sustained, with leave to the plaintiffs to amend; — will it be contended that, upon demurrer to the amended declaration, the plaintiffs would have had the right to amend of course? I apprehend not. After the action of the court upon the pleadings, the right to amend must be derived from some special rule made in the particular case, and not from the general rule, which has ceased to have any application. Such, according to my understanding, has been the practice under the rule. I have never known the right to amend under the 27th rule allowed, except under the circumstances I have stated.
But a more serious question arises upon the return made by the Circuit Court. It is insisted by the counsel in be*443half of the relator, that, admitting the right of the plaintiff's to file the second amended declaration, yet, this right did not authorize the filing of a declaration embodying a new and distinct cause of action. Both the original and amended declarations were in debt, to recover the penalty for usury under the statute, R. S. 161, $ 7. The last declaration filed, contains three counts, for money had and received. Can the plaintiffs thus abandon their original cause of action, and substitute another, differing in form, substance, and fact ? “ Amendments are either at common law or by statute. At common law, there was very little room for amendments.” 1 Tidd’s Pr. 697. By the English statute of amendments, the declaration may be amended in form or substance. “In the King’s Bench, the plaintiff was not formerly allowed to add a new count to his declaration, under pretence of amending it, after plea pleaded, or after the end of the second term from the return of the writ.” “It is now the practice, however, in the King’s Bench, to permit a new count to be added after the end of the second term, when the cause of action is substantially the same, though not for a different cause of action.” “ In the Common Pleas, the course of the court formerly was, that the plaintiff might, at any time before the end of the second term, have leave to amend his declaration, by adding new counts, but not afterwards; at present, however, it is not an invariable rule in that court, that a new count shall not be added after the second term. The principle of the rule is, that, as the plaintiff would have been out of court at the end of the second term, if he had not declared at all, so the court will not suffer him to declare upon a fresh cause of action, after the time has elapsed; but when the cause of action is substantially the same, a new count may be added. Therefore, when the plaintiff, having obtained leave to amend a count in his declaration, added new counts, which contained no new *444cause of action, but only varied the manner of stating that which was demurred to, the court of common pleas would not order them to be stricken out.” 1 Tidd’s Pr. 698, ’9. Such seems to be the practice in the King’s Bench and CommonJPleas, on the subject of amendments. The practice, under the English statutes, may be thus stated : 1. Declarations may be amended either in form or substance. 2. New counts may be added, when the cause of action is substantially the same, though not for a different cause of action. 3. Where a declaration is demurred to, and leave to amend is granted, the plaintiff may add new counts, varying the manner of stating that which was demurred to.
I propose now to examine a few of the very many adjudged cases, both in England and in this country, on the subject of amendments. In the case of Maddock v. Hammet, 7 T. R. 28, it seems that a rule had been obtained, calling on the defendants to show cause why the declaration, which was in an action for usury, should not be amended by altering the times of payment of certain notes in which the charge of usury was alleged to consist. It was admitted that the statute of limitations had run, so that no new action could be commenced. Lord Kenyon, C. J., remarking that, “inasmuch as the amendment prayed for, was not to introduce a new substantive cause of action, but merely to rectify a mistake in setting out the notes,” permitted the same to be made. In the case of Dover v. Mestaer, 4 East. R. 435, an application was made to amend the declaration in a penal action. Lord Ellen-borough, C. J. remarked that, “if it had never been determined that any amendment could be made in penal actions, after the time for bringing a new”action was out, he should have doubted the propriety of allowing such an amendment for the first time,” &c. Lawrence, J. said that, “ the line which had been drawn in the former cases, *445is, that where there has not been any unnecessary delay on the part of the plaintiff in the prosecution of a penal action, the court will allow of an amendment as in other cases, the cause of action being in truth the same.''’
These authorities sustain the views laid down, both by Tidd and Archbold, and are deemed entirely sufficient to show the English rule in respect to amendments.
A reference to a few American authorities will now be made. In the case of Caswell v. Cooke, 8 Serg. & Rawle, 268, the court say, that “ the power of the courts under the act of 25th March, 1806, is not confined to mere alterations of form, but, in its terms, extends to every informality which will affect the merits of the cause in controversy;” and that “the true criterion is, whether the alteration or proposed amendment, is a new and different matter, — another cause of controversy; or, whether it is the same contract or injury, and a mere permission to lay it in a manner which the plaintiff considers will best correspond with the nature of his complaint, and with his proof, and the merits of the case.”
In the case of Hayne v. Morgan, 3 Mass. 208" court="Mass." date_filed="1807-09-15" href="https://app.midpage.ai/document/haynes-v-morgan-6403069?utm_source=webapp" opinion_id="6403069">3 Mass. 208, Parsons, C. J. makes use of this language: “By the statute of 1784, a general power is given to the court to oi'der amendments on motion, without limiting the discretion of the court, as to the nature of the amendment, or the terms on which it may be ordered. The court have heretofore considered that an amendment, by which the plea was changed, as to alter a plea of the case to a plea of debt or trespass, was not within their discretion; for then it would be a different action.” “ So, to file a new declaration for a new cause of action, not contained in any of the original counts, has been refused. But all amendments of declarations, consistent with the natux-e of those originally made, and for the same cause of action, ax-e within the statutes.”
In Vancleef v. Therasson, 3 Pick. R. 12, it appears that *446the action was assumpsit, to recover the price of forty fir-kins of lard. At the trial, the plaintiff proved the sale and delivery, but it appeared that a negotiable note had been given by the defendant, at the time, payable in four months, &c.; whereupon, the plaintiff moved for liberty to amend his writ, by inserting a count on the note ; but the amendment was trot allowed. Parker, C. J. in giving the opinion of the court, remarked, that, by the decisions of the court, “ the amendment could not be allowed; for the note and the account were substantially different causes of action.” The rule in Massachusetts is again stated by Parker, C. J. in the case of Ball v. Chaflin, 5 Pick. 304. He says, “ the new count offered under leave to amend, must be consistent with the former count or counts; that is, it must be of the like kind of action, subject to the same plea, and such as might have been originally joined with the others. It must be for the same cause of action; that is, the subject matter of the new count must be the same as of the old; it must not be for an additional claim or demand, but only a variation of the form of demanding the same thing.” In the case of Currie v. Tibbs’ heirs, 5 Monroe’s R. 540, the court say, that “no amendment ought to be allowed, which changes the old controversy into an entirely new suit;” although, in Kentucky, amendments are liberally indulged under the practice in that state. In Drake v. Watson, 4 Day’s R. 37, the court decided that “ an amendment will not be allowed in an action qui tam, to recover the penalty for an offence, which, at the time of making the motion, was barred by the statute of limitations.” The action in that case was upon the statute of usury. The same doctrine is held in 2 T. R. 707, and 6 T. R. 171.
The cases cited show very conclusively, that, under the statutes of amendments, the rules of decision in England and in this country have been uniform and identical. *447They establish, I think, beyond controversy, the principle that an amendment will not be permitted, which would, in effect, amount to a permission to bring another action. In the present case, an attempt is made to change an action, originally brought to recover a penalty under the statute of usury, into an ordinary common law action for money had and received. This the statute never contemplated; and this the 27th rule does not sanction. Both the statute and the rule are liberal in their provisions, but not more so than the statutes of Pennsylvania or Massachusetts ; and they must be construed to intend, that, while courts are to apply, with great liberality, the provisions of both, by permitting amendments by the addition of new counts, or otherwise, yet, the amendments must be such as are consistent with the cause of action described in the declaration to be amended, and not the substitution of a new cause of action. The object of the statute of amendments being the obtainment of substantial justice, unembarrassed by mere form, I think that object can be best attained by adhering to the rule laid down by .the Supreme Court of Pennsylvania, in the case of Caswell v. Cooke, 8 Serg. & Rawle, 268, and permitting parties to amend, so as to lay the contract or wrong in a different manner, as will best suit the proof, but not permitting a new cause of action to be introduced by an amendment.
But there are other difficulties in the way of permitting the amendment in the present case. An action founded upon a statute, cannot be joined with an action at common law. 1 Com. Dig. 222, G. 1 ;• 16 Serg. & Rawle, 375. If this be true, I am unable to perceive how a party can abandon an action based exclusively on a highly penal statute, and substitute the common law action for money had and received. The action of debt, it is true, will lie in both cases. In the first case, the remedy by action of *448debt, is given by statute, and sounds in contract, but the thing to be recovered is for a wrong. In the second case, the action not only sounds in contract, but the thing recovered is for a breach of an implied agreement. Can a party, then, abandon an' action of debt to recover a penalty, and substitute for it an action of debt for money had and received, or upon an implied undertaking? I apprehend not.
The next question to be considered is, whether the remedy by mandamus is appropriate. We are not disposed to extend this remedy further than is warranted by the previous decisions of this Court, in which we have uniformly held, that a mandamus will not be awarded in cases where another remedy is provided by law.
In the present case, it is contended by the counsel for the respondents, that the appropriate remedy for the error complained of, was by writ of error, founded on exceptions taken to the opinion of the court below. This argument is founded on the following provision of our statute : “ Any party aggrieved by any opinion, direction or judgment of any Circuit Court, in any civil suit or action, when a writ of error shall lie to remove a judgment therein to the Supreme Court, may allege exceptions thereto, which being reduced to writing and presented to the court, before the adjournment thereof without day, and being found conformable to the truth, shall be allowed and signed by the judges of the court, and, on being filed, shall make a part of the record in the cause, if the pa,rty alleging such exceptions shall elect.” R. S. 383, § 16.
The motion to strike out the second amended declaration, and the decision of the court upon that motion, would not constitute a part of a common law record ; and the only question is, whether the motion and decision thereon, constituted a proper subject for exceptions, under the statute, so as to make them a part of the record in the cause. *449Our statute is taken from a similar one found in the laws of Massachusetts, and has long since received a judicial construction by the Supreme Court of that state. In the case of Haynes v. Morgan, 3 Mass. 208" court="Mass." date_filed="1807-09-15" href="https://app.midpage.ai/document/haynes-v-morgan-6403069?utm_source=webapp" opinion_id="6403069">3 Mass. R. 208, Parsons, C. J. said, — “ The defendant files his exceptions to an order of the judges, made in the course of the trial, granting the plaintiffs leave jto amend their declaration without the payment of costs. The former part of the 5th section of the act authorizing exceptions, provides, that any party aggrieved at any opinion, direction or judgment of the justice, in any action or process, may allege exceptions to the same, at the term of the said court when such opinion, direction or judgment shall be given. By the latter part of the same section, power is given to the court to enter judgment when it shall appear that any exceptions made in or after the trial, are immaterial, or intended for delay. Taking the whole section together, it is manifest that exceptions may be made for any causes arising during the trial, or from the rendition of judgment; and not for causes arising from any order of the court made in a cause preparatory for trial. An order for amending a declaration, although it may happen to be moved for during the trial, yet, as it may be made at any time before the trial, is not a cause for filing exceptions.”
The usual office of a bill of exceptions, is, to enable a party to avail himself of exceptions taken to “ any opinion, direction, or judgment” of a court during the trial of a cause; and it would certainly be a novelty in practice, to tender a bill of exceptions to a court, embodying the “ opinion, direction, or judgment” of the court upon a motion to strike from the files a declaration for irregularity.
In the case before us, whether the motion to strike out the declaration, should, or should not have been granted, depends upon the construction of the 27th general rule. It was a motion not addressed to the discretion of the *450court. The rule, until rescinded or altered, was the law by which the motion was to be determined. And, as the judgment of the court upon that motion would not appear in a common law record, and was not the subject of an exception under the statute, it would seem that the remedy by mandamus is the only one by which that judgment can be reviewed.
Goodwin, J., having acted as counsel for the relator-before he took his seat upon the bench, did not participate in the decision.
Mandamus granted.