ment may be allowed by the court at any time even after a final decree,15 and after a decision upon an appeal. In the latter case ordinarily leave from the appellate court to apply for the amendment must be obtained; 16 but where a decree for plaintiff upon a bill and answer had been reversed and the cause remanded for further proceedings, it was held that the plaintiff might be allowed by the Circuit Court to amend his bill without leave of the court of review.17 Pending an ap peal from a decree after a hearing on the facts, an amendment of the bill which would require the introduction of new proofs will very rarely, if ever, be allowed.18 § 162. Form and effect of amendment of a bill.-"Wherever leave to amend the bill is granted, it is more proper to file an amended bill than to interline the original bill, particularly if some of the defendants had before answered that bill." 1 "The rule is that the amended bill should state no more of the original bill than may be necessary to introduce, and to make intelligible, the new matter, which should alone constitute the chief subject of the bill. The reasons for this rule are obvious. Not only is the incorporating of the old bill into the amended bill unnecessary, but it increases the costs, and exposes the defendants, particularly those who have answered the original bill, to the trouble of searching out and separating the old from the new matter, at the peril of having their answer excepted to if any mistake should happen, and all the matter of the amended bill should not be answered." Accordingly, an amended bill which was obnoxious to this rule was held impertinent. It is the better practice for the counsel to sign the amendments, if they are not as to matters of mere form. An amendment speaks as of the date of the original bill; and an 15 The Tremolo Patent, 23 Wall. 518. 16 Post v. Beacon, V. P. & El. Co. (C. C. A.), 89 Fed. R. 1, 6; Fitchburg R. Co. v. Nichols (C. C. A.), 85 Fed. R. 869. 2 Ibid. In Alabama, where the amendment was inconsistent with the allegations in the original bill, which it did not correct or withdraw, the bill as amended was dismissed upon demurrer. Friedman v. Fen 17 Am. Bell Tel. Co. v. U. S., 68 Fed. nell, 94 Ala. 570, 10 S. R. 649. R. 542, 570; infra, § 168. 3 Peirce v. West's Ex'rs, 3 Wash. 18 In re Sanford F. & T. Co., 160 354, 355. U. S. 247. § 162. 1 Peirce v. West's Ex'rs, 3 Wash. 354, 355. 4 Daniell's Ch. Pr. (5th Am. ed.) 313. 6 amendment alleging the requisite difference of citizenship in the present tense will be presumed to refer to the date of the original bill and will sustain the jurisdiction. The amendment of a bill is usually considered as an admission of the sufficiency of the answer as regards discovery; but an amendment which merely brings in a new defendant does not have this effect; and the court may, to prevent delay, entertain a motion to amend a bill in equity at the same time that exceptions to the answer are filed, and may then require the defendant to answer the amendments and the exceptions together. An amendment of a bill, at least before answer, will not, it seems, dissolve an injunction previously granted. It is, however, the usual and the safer practice to have a clause inserted in the order stating that the amendment may be made without prejudice to the injunction. Unless otherwise provided in the order, it seems that an amendment of a bill will discharge all contempt proceedings previously instituted." But it was held that an amendment of a bill may be allowed upon the hearing of an application for a preliminary injunction, whereupon it takes effect at once, and the hearing may proceed without an adjournment until after the issue of the new subpoena which the amendment necessitates.12 § 163. What amendments to bills may be made.-"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.' 5 Birdsall v. Perego, 5 Blatchf. 251; Baltimore & O. R. Co. v. McLaughlin (C. C. A.), 73 Fed. R. 519. Where an amended bill recited the substance of the original and made the same a part thereof, it was held that a corporation made a party to the original was a party to the amended bill. Empire C. & Tr. Co. v. Empire C. & M. Co., 150 U. S. 159. 6 Smith's Ch. Pr. (2d Eng. ed.) 307. 7 Taylor v. Wrench, 9 Ves. 315. 99 1 It Daniell's Ch. Pr. (5th Am. ed.) 424, 425. 10 Read v. Consequa, 4 Wash. 174; Daniell's Ch. Pr. (5th Am. ed.) 424, 425. 11 Smith's Ch. Pr. (2d Eng. ed.) 305; Gray v. Campbell, 1 R. & M. 323; Symonds v. Duchess of Cumberland, 2 Cox, 411. 12 American S. W. Co. v. Wire D. & D. W. Unions, 90 Fed. R. 598. § 163. Harlan, J., in Hardin v. 8 Kittredge v. Claremont Bank, 3 Boyd, 113 U. S. 756, 761. Thus, where Story, 590. 9 Read v. Consequa, 4 Wash. 174, 180; Smith's Ch. Pr. (2d Eng. ed.), 306; a bill for the enforcement of a judgment lien upon certain property was filed against certain specified defend is unsettled whether a bill for discovery can be amended so as It was held that a bill filed against per also to pray relief. sons in their individual capacity cannot be amended so as to sue Goodyear v. See Rylands ants, an amendment was refused after a hearing, when it was sought to seek discovery and relief against all purchasers of both the property referred to in the original bill and other property of the judgment debtor. Sneed v. McCoull, 12 How. 407, 422. A bill to restrain the infringement of a patent cannot be amended so as to allege that the title to the patent is in a different person from the one who in the original bill is alleged to hold it. Bourn, 3 Blatchf. 266. v. La Touche, 2 Bligh, 586. But see Owatonna Mfg. Co. v. F. B. Fargo & Co., 94 Fed. R. 519; infra, § 164. Such a bill may, however, be amended so as to set up a reissue of the original patent, which occurred before the original bill was filed, but was not mentioned therein. The Tremolo Patent, 23 Wall. 518; Reay v. Raynor, 19 Fed. R. 308; Reay v. Berlin & J. E. Co., 30 Fed. R. 448. But see Jones v. Barker, 11 Fed. R. 597. And so as to include claims for damages and profits due previous owners of the patent, who have assigned them to the complainant. N. Y. Grape S. Co. v. Buffalo Grape S. Co., 20 Fed. R. 505. The allegation that certain machines alleged to be used in violation of a patent were infringements when made, may also be added by amendment. Reay v. Raynor, 19 Fed. R. 308. It was held that a bill for a new trial of an action for the price of stock alleged to have been sold the defendant could not be changed by amendment so as to charge that the defendant held the 2 See Horsburg v. Baker, 1 Pet. 232; Butterworth v. Bailey, 15 Ves. 358; Hildyard v. Cressy, 3 Atk. 303; Crow v. Tyrell, 2 Madd. 397; Jackson v. stock in trust for the complainant. Oglesby v. Attrill, 14 Fed. R. 214. A bill filed by several creditors praying the sale of their debtor's land in one State, and the satisfaction of their claims out of the proceeds of such sale, cannot be changed by amendment so as to pray relief to one against another of the plaintiffs, in respect to the receipt by the latter of the proceeds of the sale of other land of the same debtor situated in another State, and sold under a decree in another suit in another court. Smith v. Woolfolk, 115 U. S. 143, 148. A bill by the Land Company of New Mexico to enforce an executory contract by the defendant Smoot for the sale of an interest in land of which the defendant Elkins had the legal title, and which it was alleged that Smoot was about to assign to the defendant Butler with Elkins's connivance, was held not amendable "by omitting all the parties but Elkins, and proceeding against him upon the theory that complainant had acquired Smoot's interest by an absolute and unconditional transfer." Land Co. of New Mexico v. Elkins, 20 Fed. R. 545. A bill to set aside a sheriff's sale may be amended so as to add a tender of the purchase price and a prayer for a redemption of property. Graffam v. Burgess, 117 U. S. 180. A bill to set aside a con. tract for the sale of land as obtained by fraud may be amended by the addition of an alternative prayer for the specific performance of the contract. Hardin v. Boyd, 113 U. S. 756, distinguishing Shields v. Barrow, 17 Strong, 1 McClel. 245; Lousada v. Templer, 2 Russ. 565; Daniell's Ch. Pr. (2d Am. ed.) 463–465. them as officers of a corporation.3 A cross-bill may be amended so as to radically change the ground of the relief sought, when the proofs which make the amendment necessary have been furnished by the complainant in support of the latter's original bill. When the suit was begun in a Federal court, that court may allow an amendment setting forth the facts essential to the Federal jurisdiction." Allegations in a remittitur filed after judgment cannot be considered as amendments to the pleading." Great liberality is allowed as to amendments which strike out parties, or bring in new parties, except as to bills for discovery, to which in England no new parties could be added. A bill filed by a married woman can almost always be amended by the addition of the name of a next friend when necessary.10 A bill filed on behalf of one's self and others may be amended by striking out the invitation to others to join, provided none of them have come in; and a bill filed in one's own name How. 130. A bill to remove a cloud upon the title to land may be amended so as to seek the enforcement of trusts relating to the same property. Partee v. Thomas, 11 Fed. R. 709. See also Neale v. Neales, 9 Wall. 1; Battle v. Mutual Life Ins. Co., 10 Blatchf. 417; Burgess v. Graffam, 10 Fed. R. 216. But see Savage v. Worsham, 104 Fed. R. 80. It has been said that where the bill originally sets out one agreement which it seeks to enforce, and the answer admits the execution of another agreement of a similar character, but with provisions different from those alleged in the bill, the plaintiff may amend, abandoning the agreement first pleaded by him, and obtain the enforcement of that admitted by the defendant; but that he cannot, while still praying the enforcement of the agreement as set out by him, amend so as to seek, in case he fail in proving that, an enforcement of the one admitted in the answer. Lindsay v. Lynch, 2 Sch. & Lef. 1, 9. It was held that a creditor's bill, filed to obtain the appointment of a receiver of the property of a city, and the ap plication by him of its assets to the satisfaction of its debts, could not be amended so as to seek relief against a receiver and back-tax collector, appointed by a subsequent statute of the State to collect the city's assets. Meriwether v. Garrett, 102 U. S. 472, 502. But see Richmond v. Irons, 121 U. S. 27. 3 Tyler v. Galloway, 13 Fed. R. 477. But see Womersley v. Merritt, L. R. 4 Eq. 695; Richmond v. Irons, 121 U. S. 27; Pendery v. Carleton, 87 Fed. R. 41. 4 Chicago, M. & St. P. Ry. Co. v. Third Nat. Bank, 134 U. S. 276, 289. 5 Continental Ins. Co. v. Rhoads, 119 U. S. 237; Halsted v. Buster, 119 U. S. 341; Denny v. Pironi, 141 U. S. 121, 124. 6 Denny v. Pironi, 141 U. S. 121. 7 Conolly v. Taylor, 2 Pet. 556; Dwight v. Humphreys, 3 McLean, 104. 8 Fisher v. Rutherford, Baldwin, 188; Patterson v. Stapler, 7 Fed. R. 210. Marquis Cholmondeley v. Lord Clinton, 2 Meri. 71. 10 Douglas v. Butler, 6 Fed. R. 228. 11 Yates v. Arden, 5 Cranch C. C. 526. 13 may be amended by the addition of words sufficient to make it a bill in behalf of a class.12 A bill filed against a defendant as executor may be amended so as to charge him as administrator of the same person. In an English case, a bill in behalf of a charity was changed by amendment into an information.14 § 164. Amendment by pleading matters subsequent to the filing of the bill.- The general rule is that nothing which has occurred since the filing of a bill can be added to it by amendment. Such matters, when admissible, should ordinarily be introduced by a supplemental bill. It was held incompetent to amend a bill, stating that certain notes and mortgages were executed under a threat by the defendant that he would kill the complainant if they were not executed and paid at their maturity, by adding the allegation, "that in pursuance of such threat the defendant did, subsequently to the commencement of this suit, take the life of the original complainant." Such a murder does not add to the complainant's cause of action, although it might be put in evidence as tending to prove the original duress. An amendment therefore speaks as of the date of the original bill. A bill may perhaps be amended before answer, demurrer, or plea, by alleging new matter that has occurred since it was first filed. And it has been held that where a plaintiff has, at the time of filing his original bill, an inchoate right, to perfect which a formal act alone is necessary, and such formal act is not performed till afterwards; as where an executor files a bill before probate, and subsequently proves the testament, or the next of kin files a bill to protect the personal estate of an intestate and subsequently procures her appointment as administratrix, or a foreign ad 12 Richmond v. Irons, 121 U. S. 27; Good v. Blewitt, 13 Ves. 397, 401; Atty. Gen. v. Newcombe, 14 Ves. 1, 6; Reese R. S. Min. Co. v. Atwell, L. R. 7 Eq. 347. 13 Randolph v. Barrett, 16 Pet. 138. 14 President of St. Mary M. College v. Sibthorp, 1 Russ. 154. 161. 1 Wray v. Hutchinson, 2 Myl. & K. 235; Mason v. Hartford, P. & F. R. Co., 10 Fed. R. 334; Copen v. Flesher, 1 Bond, 440; Lyster v. Stickney, 12 Fed. R. 609. 2 See ch. XIV. 3 Lyster v. Stickney, 12 Fed. R. 609, 610. 4 Lyster v. Stickney, 12 Fed. R. 609. 5 Story's Eq. Pl., § 885; Candler v. Pettit, 1 Paige (N. Y.), 168; Ogden v. Gibbons, Halst. N. J. Dig. 172. 6 Belloat v. Morse, 2 Hayw. (N. C.) 157; Daniell's Ch. Pr. (2d Am. ed.) 460. 7 Humphreys v. Humphreys, 3 P. Wms. 348; Bradford v. Felder, 2 M'Cord (S. C.), Ch. 170. See Person v. Fidelity & Casualty Co. (C. C. A.), |