The opinion of the court was delivered by

It seems to us that the real question in the three cases, heard as one, was whether the cash advanced by the defendant, McHugh, to pay the balance due on the judgment in favor of Salinas & Son was a loan by him to Miller, or whether it was a payment on account of the land trade. If it was the former, then, clearly, the allegation of payment could not have been sustained and the result of the judgment below was correct. But if, on the other hand, it was not a loan, but was, as appellants contend, the cash payment on the land trade, then, it seems to us, that the judgment below cannot he sustained. This question the Circuit Judge declined to consider, and, therefore, we think the case should go back for the purpose of having that question determined. It is very true that the special master did consider this question and determined it adversely to the appellants; but upon exceptions to his report, the Circuit Judge held that, under the pleadings, he could not consider it, and, therefore, there has been no adjudication of what we regard the vital issue in the case,

*128• We do not see that the right to a specific performance of a contract for the sale of land was in any way involved in the defence of payment set up by Miller. According to his allegation, the money advanced by McHugh to pay the balance of the judgment was advanced, not as a loan, but as the cash payment on the land; and if so, then that money when paid on the judgment was Miller’s money, and not McHugh’s, and would at once have extinguished the judgment, but for the fact that it was by agreement left open and assigned to McHugh for the purpose of securing the performance of Miller’s contract to convey the land, which he was not then able to do. The transaction, viewed in the light of appellants’ testimony, was practically the same as if the cash payment had been made directly to Miller, and McHugh, instead of taking an assignment of the judgment to secure the performance of the contract for the sale of the land, had taken Miller’s bond to make titles so soon as certain incumbrances were removed and the balance of the purchase money was paid. If that had been the nature of the transaction, surely the tender of titles, in accordance with the terms of the contract, would have been such a compliance with the condition of the bond as would have defeated any action upon it for damages. So here, if the defendant, Miller, has, as he alleges, tendered titles for the land, then the defendant, McHugh, has no longer any right to enforce a judgment assigned to him for the purpose of securing that result.

Suppose Miller, with a view to raise money to pay off the balance due on the judgment, had sold a horse to McHugh for cash, warranting the title to and soundness of the animal, and, for the purpose of securing McHugh against any loss by the breach of such warranty, the judgment had been assigned to him, surely McHugh would not have been permitted to enforce the judgment, without showing that there had been a breach of the warranty. So here, if the nature of the transaction be such as alleged by Miller, it does not seem to us that McHugh could be permitted to enforce the judgment, if it was shown, as it seems to have been, that Miller duly tendered titles for the land. It seems to us, therefore, that it was a mistake to suppose that Miller’s defence of payment rested upon his right to a decree for the specific performance of a contract for the sale- of land, but that it rested *129entirely upon the question of fact whether the money advanced by McHugh was advanced as a loan, or as a cash payment on the land contract, and that it was error on the part of the Circuit Judge to decline to consider this fundamental question.

As to the other points involved, we concur in the conclusion reached by the Chief Justice in his separate opinion.

The judgment of this court is, that the judgment of the Circuit Court, in so far as it conflicts with these views, be reversed, and that the ease be remanded for a new trial, so that the issue herein suggested may be determined, and such further proceedings had as may be necessary to carry out the views herein announced.

The question made in the complaints was payment, and want of title in McHugh, because of said payment. The injunction was asked for on these grounds and no other. The issue between the parties was made up upon these grounds and no other. The plaintiffs’ cause of action was based entirely upon the allegation of payment, and the consequent want of interest in the defendant, as the foundation for the injunction demanded. Under these circumstances it is not surprising that his honor, Judge Pressley, hesitated to consider under the original pleadings the testimony offered by the plaintiffs on the subject of the alleged land trade. He, no doubt, regarded such testimony as irrelevant to the issue joined. Because, even admitting all that was claimed by plaintiffs, it did not prove payment and extinguishment of the judgment. On the contrary, by said claim the judgment was to be kept open and assigned to McHugh to secure the amount advanced by him, at least until the land trade was fully consummated. It seems to us that the plaintiffs’ cause of action in reference to that matter was for specific performance, as the Circuit Judge intimated.

But it is said that the Circuit Judge erred in not allowing plaintiffs to amend, so as to conform the pleadings to the proof. The code gives power to the court to allow such amendments, but at its discretion. Code, § 194. We do not think that discretion was abused here. Moreover, there was room here for a wide difference of opinion as to the facts in reference to the land *130trade. There was a direct conflict of testimony on that subject between McHugh and the plaintiffs. The special master had found upon that testimony, as matters of fact, that Richey had received from McHugh $127.79, and also $350, for the purpose and on condition that said sum should be paid to Salinas & Son, and that the judgment should be assigned to McHugh to secure the payment of said money; that there was no agreement that any part of the land covered by the mortgage should be released, but that all the property covered thereby should still be liable; that McHugh was the lawful OAvner of the judgment; that it had not been paid, on the contrary, that there was due thereon to said McHugh'the sum of $477.79, with interest, and that the plaintiffs had not at any time paid said judgment. The Circuit Judge, in effect, confirmed these findings, which upon the evidence reported, we cannot say was error. The code allows amendments by the court, when the amendment does not substantially change the cause of action. We think the amendment proposed here would have violated this implied inhibition.

There was no error in the exclusion of the $100, by which the judge held that the amount reported by the master should be reduced. As his honor said, McHugh himself admitted that there was nothing said about the assignment of the judgment when Richey borrowed that sum.

Nor was there error in the order of Judge Hudson overruling the master in his sustaining the demurrer to the complaints. The allegations of the complaints of payment admitted by the demurrer, certainly gave them a cause of action, and entitled plaintiffs to relief, if true.

Judgment modified.