ministrator files a bill before obtaining ancillary letters of administration, and such letters are subsequently issued to him; the introduction of the fact by amendment will be permitted. It has been also held in England that the "defendant, when he puts in his answer, must state the facts as they then are; and if circumstances are then introduced in the answer which occurred subsequent to the filing of the bill, the plaintiff must be allowed to make amendments to the bill, so as to show that such new circumstances mentioned in the answer are not of the color he represents them, and so as to obtain a complete answer as to such circumstances." 10

§ 165. Proceedings upon an amended bill.—When the amendment merely brings in new parties defendant, they alone need be served with a new subpoena.' If, however, a bill is substantially amended by the addition of new charges, according to the English practice a subpoena to answer the amendments had to be sued out and served upon all the defendants.2 Where the bill is amended before answer or plea, no matter how trivial the amendment may be, the defendant may demur to it, although a demurrer to the original bill has been overruled. Where, before answer, the bill is amended in a material point, the time to answer is extended to the same time as if the amended were an original bill. If, however, a defendant has answered the original bill, he cannot, without obtaining leave

92 Fed. R. 965; reversing s. C., 84 Fed. assigned to him. Owatonna Mfg. Co. R. 759.

8 Swatzel v. Arnold, Woolw. 338; Black v. Henry G. Allen Co., 42 Fed. R. 618, 624; Hodges v. Kimball (C. C. A.), 91 Fed. R. 845. Contra, Mason v. Hartford, P. & F. R. Co., 10 Fed. R. 334.

9 Daniell's Ch. Pr. (2d Am. ed.) 460, 461; Swatzel v. Arnold, Woolw. 383; Black v. Henry G. Allen Co., 42 Fed. R. 618, 624; Humphreys v. Humphreys, 3 P. Wms. 348. Where a bill for infringement was filed by the owner of the exclusive right to make and sell a patented article in the United States, he was allowed to show by a supplemental bill that pending the suit the patent had been

v. F. B. Fargo & Co., 94 Fed. R. 519. But it has been held that a defective creditor's bill cannot be amended by setting up a judgment obtained after it was filed. Putney v. Whitmore, 66 Fed. R. 385.

10 Sir Thomas Plumer, V. C., in Knight v. Matthews, 1 Madd. 566. § 165. Longworth v. Taylor, 1 McLean, 514; Angerstein v. Clarke, 1 Ves. Jr. 250; Skeffington v. 4 Ves. 66.

2 Cooke v. Davies, T. & R. 309; Bramston v. Carter, 2 Sim. 458. See Kendall v. Beckett, 1 Russ. 152.

3 Bosanquet v. Marsham, 4 Sim. 573; Bancroft v. Warden, 2 Dick. 672. 4 Nelson v. Eaton, 66 Fed. R. 376.

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to withdraw his first answer, demur, plead, or answer to any more than the new matter, unless the amendments virtually make a new case. For if the answer which still remains upon the record applies to any part of the amended bill, it will overrule a general demurrer. Where the amendments seek to introduce new matter which is properly the subject of a supplemental bill, the defendant must raise that objection by demurrer,7 plea, or answer. Otherwise, the objection will be waived. The equity rules provide that, "In any case where an amendment shall be made after answer filed, the defendant shall put in a new answer or supplemental answer on or before the next succeeding rule-day after that on which the amendment or amended bill is filed, unless the time is enlarged or otherwise ordered by a judge of the court; and upon his default, the like proceedings may be had as in cases of an omission to put in an answer." 10 An answer to an amended bill is impertinent if it contains any matter which was pleaded in the answer to the bill before amendment." It seems to have been the English rule that an answer to an amended bill might set up an entirely new defense inconsistent with that in his former answer. The court may after amendment refuse leave to file an answer which does not plead a defense to the new matter.13

2

§ 166. Amendments of demurrers, pleas, and replications. The court may allow a demurrer to be amended as to matters of form, and also in substance by narrowing its extent, and otherwise. When a substantial amendment of a demurrer is allowed, it is customary to give the plaintiff leave to amend his bill at the same time. An amendment of a plea, except as to a matter of form, is less frequently allowed; and only upon

5 Keene v. Wheatley, 9 Am. Law Reg. 33, 60; Atkinson v. Hanway, 1 Cox Eq. 360; Ellice v. Goodson, 3 M. & C. 653; Ritchie v. Aylwin, 15 Ves. 79.

6 Ellice v. Goodson, 3 M. & C. 653. 7 Brown v. Higden, 1 Atk. 291. 8 Wray v. Hutchinson, 2 M. & K. 235.

citing Bolton v. Bolton, MS. See also Trust & F. Ins. Co. v. Jenkins, 8 Paige (N. Y.), 589.

13 Chicago, M. & St. P. Ry. Co. v. Third Nat. Bank, 134 U. S. 276, 289. § 166. U. S. R. S., § 954.

2 Gregg v. Legh, 4 Madd. 193, 207; Atwill v. Ferrett, 2 Blatchf. 39, 49; Baker v. Mellish, 11 Ves. 70; Story's

9 Archbishop of York v. Stapleton, Eq. Pl., § 894. 2 Atk. 136.

10 Equity Rule 46.

11 Gier v. Gregg, 4 McLean, 202.

12 Daniell's Ch. Pr. (2d Am. ed.) 468;

3 Gregg v. Legh, 4 Madd. 193, 207; Atwill v. Ferrett, 2 Blatchf. 39, 49. 4 U. S. R. S., § 954.

an application in which the court must be told precisely what the amendment is to be, and how the slip happened which it is to correct. In such a case, the defendant is usually given a very short time within which to amend." The amendment of a replication will almost always be allowed."

§ 167. Amendment of answers. The equity rule affecting the amendment of answers is as follows: "After an answer is put in, it may be amended, as of course, in any matter of form, or by filling up a blank, or correcting a date, or reference to a document, or other small matter, and be resworn at any time before a replication is put in, or the cause set down for hearing upon bill and answer. But after replication, or such setting down for hearing, it shall not be amended in any material matters, as by adding new matters, facts, or defenses, or qualifying or altering the original statements, except by special leave of the court, or of a judge thereof, upon motion and cause shown, after due notice to the adverse party, supported, if required, by affidavit; and in every case where leave is so granted, the court or the judge granting the same may, in his discretion, require that the same be separately engrossed, and added as a distinct amendment to the original answer, so as to be distinguishable therefrom." The principles upon which the courts proceed in allowing such amendments is thus stated by Judge Story: "In mere matters of form, or mistakes of dates, or verbal inaccuracies, courts of equity are very indulgent in allowing amendments. But when application is made to amend an answer in material facts, or to change essentially the grounds taken in the original answer, courts of equity are exceedingly slow and reluctant in acceding to it. To support such applications, they require very cogent circumstances, and such as to repel the notion of any attempt of the party to evade the justice of the cause, or to set up new and ingeniously contrived defenses or subterfuges. When the object is to let in new facts and defenses wholly dependent upon parol evidence, the reluctance of the court is greatly increased, since it has a natural tendency to encourage carelessness and indifference in making answers, and leaves much room for the introduction of testimony manufactured for the occasion. But when the new facts sought

5 Story's Eq. Pl., § 895. See Giant P. Co. v. Safety N. P. Co., 19 Fed. R. 509.

6 Story's Eq. Pl., § 895.

7 Daniell's Ch. Pr. (4th Am. ed.) 831. § 167. Equity Rule 60.

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to be introduced are written papers or documents, which have been omitted by accident or mistake, there the same reason does not apply in its full force; for such papers and documents cannot be made to speak a different language from that which originally belonged to them. The whole matter rests in the sound discretion of the court."2 "It seems to me that before any court of equity should allow such amended answers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satisfactory; that the mistakes to be corrected, or the facts to be added, are made highly probable, if not certain; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence; and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party, since the original answer was put in and sworn to. Where the party relies upon new facts which have come to his knowledge since the answer was put in, or where it is manifest that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvertence and oversight, there is generally less reason to object to the amendment than there is where the whole bearing of the facts and evidence must have been well known before the answer was put in." An amendment of an answer changing the character of the defense will rarely be allowed after the court has rendered an opinion adverse to the position originally taken by the defendant. The defendant will rarely be allowed to withdraw an admission which he has made. Leave to amend will be denied when the complainant proves by affidavit that the new matter sought to be introduced is false. Ordinarily, leave to amend an answer will be denied when the defendant knew of the facts which he wishes to introduce, at the time his original answer was drawn; or might have then discovered them

2 Smith v. Babcock, 3 Sumn. 583, ley, 14 Pet. 156; Hamilton v. Nevada 586. G. & S. M. Co., 33 Fed. R. 562, 568.

3 Smith v. Babcock, 3 Sumn. 583, 586; N. Y. Filter Co. v. O. H. Jewett F. Co., 62 Fed. R. 582.

4 Calloway v. Dobson, 1 Brock. 119; Gubbins v. Laughtenschlager, 75 Fed. R. 615; Claflin v. Bennett, 51 Fed. R. 693, 701. See Walden v. Bod

5 Ruggles v. Eddy, 11 Blatchf. 524. 6 Hicks v. Otto, 17 Fed. R. 539. 7 India R. C. Co. v. Phelps, 8 Blatchf. 85; Webster L. Co. v. Higgins, 13 Blatchf. 349; Cross v. Morgan, 6 Fed. R. 241; Suydam v. Truesdale, 6 McLean, 459.

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8

by the exercise of reasonable diligence. An omission due to a mistake of law cannot ordinarily be cured by amendment.9 The court may refuse to allow an amendment which would introduce an unconscientious defense, such as the statute of limitations, the statute of frauds," or that a contract made by a complainant corporation was not authorized by its charter.12 When the proposed amendment is trivial the answer may be removed from the file, altered, resworn to, and refiled; but if it is of any length, it is customary to file a supplemental answer setting it forth. Leave to withdraw an answer and file a demurrer or plea may 15 but very rarely will be granted.16

§ 168. Practice in obtaining leave to amend. The application for leave to amend must be in writing, stating the new matter which the applicant desires to introduce by amendment, and must be supported by an affidavit, stating the reason why this matter was not included in the original pleading. Where the former pleading was verified, oath must be made to the truth of the proposed amendments. Where the proposed amendment consists of matters disclosed by documentary evidence, the documents themselves must be produced if possible. The court may impose costs in other terms as a condition precedent to amendment; for example, a disclosure of the names of the witnesses whom the party expects to call to prove the new matter. When a motion for leave to amend is made after a demurrer, it is usual to grant the application on payment of

8 India R. C. Co. v. Phelps, 8 Blatchf. 85; Webster L. Co. v. Higgins, 13 Blatchf. 349.

9 Webster L. Co. v. Higgins, 13 Blatchf. 349; Cross v. Morgan, 6 Fed. R. 241.

15 U. S. v. Am. Bell Tel. Co., 39 Fed.

R. 716.

16 Phelps v. Elliott, 30 Fed. R. 396. § 168. Snead v. M'Coull, 12 How. 407, 422; Mer. Nat. Bank v. Carpenter, 101 U. S. 567, 568; Wells v. Wood,

10 Cock v. Evans, 9 Yerg. (Tenn.) 10 Ves. 401; Nabob of the Carnatic 287.

11 Cook v. Bee, 2 Tenn. Ch. 344.
12 Third Av. Sav. Bank v. Dimock,

9 C. E. Green (24 N. J. Eq.), 26.

13 Bailey W. Mach. Co. v. Young, 12 Blatchf. 199.

14 Dolder v. Bank of England, 10 Ves. 284, 285; Daniell's Ch. Pr. (5th Am. ed.) 779, 780.

v. East India Co., 1 Ves. Jr. 374, 385; Rodgers v. Rodgers, 1 Paige (N. Y.), 424; Daniell's Ch. Pr. (5th Am. ed.) 781.

2 Rodgers v. Rodgers, 1 Paige (N. Y.) 424.

3 Churton v. Frewen, L. R. 1 Eq. 238; Daniell's Ch. Pr. (5th Am. ed.) 781. 4 Caster v. Wood, 1 Baldw. 289.