To compel the circuit judge to strike an amended declaration from the files, on the ground that the amendment introduced a new cause of action, and that the statute of limitations had run before the allowance of the amendment.

Denied February 4, 1891, with costs.

The action was for negligent injury received March 2,. 1882, and was commenced by summons, issued August 1, 1888, and served on that day. -Prior to that time, however, the defendant had 'removed to the State of "Wisconsin, and had resided there for two years and five months. The declaration was filed November 2, 1888, to which defendant pleaded the general issue, with notice of the statute of limitations. In March, 1890, plaintiff moved to amend the declaration, and' the court, on April 2, granted such leave. On April 9, 1890, defendant moved to strike the amended declaration from the files, on the ground that the amended declaration counted upon a new cause of action, which had become barred by the statute of limitations. Granted. Plaintiff, on May 14, 1890, again moved to amend the declaration, setting forth, by affidavit, the absence of the defendant from the State, as aforesaid, and also, that the circuit judge who had heard the previous motion was, at the time of the hearing, and determination thereof, disqualified. The facts, both as to the absence of defendant from the State, and the disqualification of the judge, were conceded. Because of the inability to procure another *513judge, the matter was uot finally heard and determined until Nov. 28, 1890. In the meantime the hearing had not been formally continued, but the motion had been re-noticed. The return insisted that the amendment was simply a re-statement of the same cause of action and th^t the statute had not run when the motion was made.