§ 385. Matters arising since the filing of the bill.

Facts which have occurred since the filing of an original bill ought not to be introduced by amendment, because, as the amendments are held to constitute part of the same record as the original bill, which can only relate to facts which had occurred previous to the time when it was preferred, the introduction of matters of a posterior date would render the record incongruous. Matter, therefore, which has occurred since the original bill was filed, should be brought before the court by supplemental bill, and not by amendment.35 In some cases the court will suffer matters which have occurred since the filing of the original bill to be introduced by amendment; as, for example, where the complainant has an inchoate right at the time of preparing his original bill, and which merely requires some formal act to render his title perfect, and such formal act is not completed until afterwards, the introduction of that fact by amendment will be permitted. The case of an executor filing a bill before probate, and afterwards obtaining probate, is an instance of this kind.36 Where a foreign executor files a bill in New York, and afterwards takes out letters testamentary, that he has done so may be stated in an amendment to the bill.37 Where a bill is filed for the sale of a reversion, and thereafter a homestead expires, the bill may be amended so as to charge this fact, and pray for a sale of the entire estate.38 It is held

35 1 Barbour, Ch. Pr. 207; Vere v. Glynn, 2 Dickens, 441; Jopling v. Stuart, 4 Ves. 619; Camp v. Bancroft, 26 Ga. 393; Hammond v. Place, Har. (Mich.) 438; Wright v. Frank, 61 Miss. 32; Hope v. Brinckerhoff, 4 Edw. Ch. (N. Y.) 660; Planters' & Merchants' Mut. Ins. Co. v. Selma Sav. Bank, 63 Ala. 585; Hurd v. Everett, 1 Paige (N. Y.) 124; Mason v. Hartford, P. & F. R. Co., 10 Fed. 334; Bannon v. Comegys, 69 Md. 411, 16 Atl. 129.

36 1 Barbour, Ch. Pr. 207; Humphreys v. Humphreys, 3 P. Wms. 348; Totten v. Nighbert, 41 W. Va. 800, 24 S. E. 627; Swatzel v. Arnold, Woolw. 383, Fed. Cas. No. 13,682; Black v. Henry G. Allen Co., 42 Fed. 618. See supra, § 17.

37 Buck v. Buck, 11 Paige (N. Y.) 170, citing 1 Barbour, Ch. Pr. 207. 38 Hanby's Adm'r v. Henritze's Adm'r, 85 Va. 177, 7 S. E. 204. A bill which is insufficient in itself is not aided by an amendment stating facts which may or may not be subsequent in time to the filing of

that an amendment may be allowed touching matters occurring after the filing of the bill, no answer having been filed; and the allowance thereof cannot be objected to by a defendant as to whom the bill has been taken for confessed.39 Where the defendant, in his answer, states facts which have taken place since the bill was filed, the court will permit such facts to be incorporated into the bill by amendment. But an amendment of the bill is not necessary to enable the complainant to avail himself of such facts at the hearing, as the replication puts all the facts stated in the answer completely at issue between the parties.40

§ 386. Amending after answer.

The discontinuance of the use of special replications frequently renders it necessary for a complainant, wishing to avoid the effect of matter pleaded in bar, to amend his bill.41 Thus, where the allegation of a bill is that a deed of release, executed by the distributees of an estate to one of its debtors, is inoperative, by reason of fraud or mistake, and the defendant sets up a release from the administrator, the latter, if proved, is a complete bar, unless the bill is so amended as to impeach its validity.42 The usual way of meeting a special defense by the method of avoidance is to introduce the defense, in the form of a pretense, in the bill, and then follow it by matter in reply in the shape of a charge; and, when the bill is not so framed originally as to afford a proper reply to such defense, the course is to amend it so that it will do so.43

the bill. Nichols v. Rogers, 139 Mass. 146; Evans v. Bagshaw, L. R. 8 Eq. 469, 5 Ch. App. 340; Tonkin v. Lethbridge, Coop. 43.

39 Luft v. Gossran, 31 Ill. App. 530, citing Story, Eq. Pl. § 885. 401 Barbour, Ch. Pr. 207; Knight v. Matthews, 1 Madd. 566; Attwood V., 1 Russ. 355; Seeley v. Boehm, 2 Madd. 176.

411 Barbour, Ch. Pr. 250; Foley v. Hill, 1 Phil. Ch. 399; Stafford v. Brown, 4 Paige (N. Y.) 88; Commissioners of Highways v. Deboe, 43 Ill. App. 25; Spencer v. Van Duzen, 1 Paige (N. Y.) 555. See supra, § 356.

42 Beattie v. Abercrombie, 18 Ala. 9; James v. McKernon, 6 Johns. (N. Y.) 543.

43 Connerton v. Millar, 41 Mich. 608, 2 N. W. 932, citing Adams, Eq. 303, 304; Foley v. Hill, 1 Phil. Ch. 399; James v. McKernon, 6 Johns.

§ 387. Conforming allegations to proof.

Where a case for relief is made out, but is not disclosed by the bill, the court may allow the bill to be amended so as to conform to the case proved. Application for leave to amend so as to make the bill conform to the proofs should be made promptly,45 and before final decree.40

§ 388. Amendment making new case.

It is a general rule that a bill cannot be so amended as to introduce new matter and to entirely change the original purposes of the suit.47 The rule that the complainant will not be permitted to abandon the entire case made by his bill, and make a new and different case by way of amendment, has been much trenched upon.48 To render the allowance of an amendment improper, there must be an inconsistency or repugnancy between

(N. Y.) 543; Van Riper v. Claxton, 9 N. J. Eq. 302. See supra, §§ 74, 356.

44 Neale v. Neales, 9 Wall. (U. S.) 1; Hardin v. Boyd, 113 U. S. 756; Hoyt v. Smith, 27 Conn. 468; Mix v. People, 116 Ill. 265, 4 N. E. 783; Babcock v. Twist, 19 Mich. 516; Bellows v. Stone, 14 N. H. 175; Clark v. First Congregational Soc. in Keene, 46 N. H. 272; Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 299; Lamb v. Cecil, 25 W. Va. 288; Lamb v. Laughlin, 25 W. Va. 300; Brayton v. Jones, 5 Wis. 117; Patton v. Dixon, 105 Tenn. 97, 58 S. W. 299.

45 Midmer v. Midmer's Ex'rs, 26 N. J. Eq. 299.

46 Winter v. Merrick, 69 Ala. 86.

47 Verplanck v. Mercantile Ins. Co. of New York, 1 Edw. Ch. (N. Y.) 46; Shields v. Barrow, 17 How. (U. S.) 130; Carey v. Smith, 11 Ga. 539; Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Shenandoah Valley R. Co. v. Griffith, 76 Va. 913; Dickson v. Poindexter, Freem. Ch. (Miss.) 721; Ray's Adm'r v. Womble, 56 Ala. 32; Lamb v. Cecil, 28 W. Va. 653; Hurt v. Jones, 75 Va. 341. It is said that the limit of the power of amendment is that no new cause of action can be engrafted on the original bill. The party may, at law or in equity, shift his ground, if his title and the facts charged will sustain his new ground, and the decree prayed for, or any other consistent decree within his prayer for general relief. The true criterion as to amendment is, did complainant so state his cause of action originally as to show that he had a legal right to recover what he subsequently claims? Wilhelm's Appeal, 79 Pa. 120; Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402.

48 Belton v. Apperson, 26 Grat. (Va.) 207.

the purposes of the bill as amended and the original bill, as contradistinguished from a modification of the relief asked.49 An amendment to a bill is material when it so varies the case made in the original bill as to change the complainant's equity.50 There are cases where amendments are permitted at any stage in the progress of the case, as where an essential party has been omitted; but amendments which change the character of the bill, so as to make substantially a new case, should rarely, if ever, be made after the cause is set for hearing, much less after it is heard.51 A bill to enforce the lien of a deed of trust, and praying a sale of the land embraced thereby, will not be allowed to be amended and made a bill to recover the amount of a lost bond, and to be further amended into a creditors' suit to settle an estate.52 Where the court had decided, upon a plea to the jurisdiction, that a bill between members of a corporation could not be sustained for want of jurisdiction, it was held that an amendment alleging that the corporation had been dissolved would make a new bill and a new case, and that it could not be allowed.53 A judgment creditor's bill to redeem land sold at a sheriff's sale cannot be amended so as to make it a bill to enforce a trust alleged to have arisen between the complainant and

49 Cain v. Gimon, 36 Ala. 168.

50 Booth v. Stamper, 10 Ga. 109.

51 Walden v. Bodley, 14 Pet. (U. S.) 156. See Snead v. McCoull, 12 How. (U. S.) 407; Codington v. Mott, 14 N. J. Eq. 430, 82 Am. Dec. 258. See for amendments making new case, Tennant v. Dunlop, 97 Va. 234, 33 S. E. 620; Bird v. Stout, 40 W. Va. 43, 20 S. E. 852; Piercy v. Beckett, 15 W. Va. 444; Edgell v. Smith, 50 W. Va. 349, 40 S. E. 402. The following cases illustrate amendments not changing the cause of action: A bill asking for reformation of a mortgage and foreclosure thereof may be amended so as to ask for reformation and the removal of a cloud on complainant's title as mortgagee. Hawkins v. Pearson, 96 Ala. 369, 11 So. 304. An amendment to a bill adding parties and a prayer for alternative relief does not make a new bill. Meads v. Hartley, 4 Mackey (D. C.) 391. A bill for specific performance of a contract for the sale of land may be amended so as to make it a bill for the cancellation of the contract. Papin v. Goodrich, 103 Ill. 86. 52 Piercy v. Beckett, 15 W. Va. 444. 53 Pratt v. Bacon, 10 Pick. (Mass.) 123.

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another judgment creditor, as such an amendment departs entirely from the case made by the original bill.54

§ 389. Amendment as to parties.

Where a bill is defective as to parties, the necessary persons should be made parties by amendment.55 The court will generally, at any time before the hearing, grant leave to amend a bill which is defective as to parties.56 It is held that an amendment which will divest a bill of all of its original defendants, and make a new case against new defendants, is not allowable.57 If only one of the parties joined as complainants in a bill be entitled to relief, the court may grant leave to amend the bill by striking out the name of the complainant not so entitled.58 A bill may be amended by substituting one of the defendants for the complainant who has no interest in the case, and is not a proper party.59 If an administratrix is made a complainant in a bill with her co-administrators, without her consent, and she claims adversely to the prayer of the bill, the court, on motion, will direct her name to be stricken from the bill as a complainant, and inserted as a defendant. A bill may be amended by substituting the name of the principal for that of the agent, inserted by mistake.

54 Ward v. Patton, 75 Ala. 207.

61

60

55 Gayle v. Singleton, 1 Stew. (Ala.) 566; Thomas v. Adams, 30 Ill. 37; Hunt v. Wickliffe, 2 Pet. (U. S.) 201; Hook v. Brooks, 24 Ga. 175; Hopkins v. Roseclare Lead Co., 72 Ill. 373; Marsh v. Green, 79 Ill. 385; Jameson's Adm'x v. Deshields, 3 Grat. (Va.) 4.

56 Holland v. Trotter, 22 Grat. (Va.) 136.

57 Leggett v. Bennett, 48 Ala. 380; McKay v. Broad, 70 Ala. 377. 58 Reybold v. Herdman, 2 Del. Ch. 34; Heath v. Erie Ry. Co., 8 Blatchf. 347, Fed. Cas. No. 6,306.

59 Smith v. Hadley, 64 N. H. 97, 5 Atl. 717. See supra, § 60. 60 Mulford v. Allen, 2 N. J. Eq. 288.

"If one of the executors or administrators who is a necessary party refuses to join in the suit as a co-complainant, the proper course is to make him a party defendant, stating in the bill the fact that he Iwould not consent to be a complainant in the suit. Thompson v. Graham, 1 Paige (N. Y.) 384; Finch v. Winchelsea, 1 Eq. Cas. Abr. 2; Calvert, Parties, 11, note 3." Tooker v. Oakley, 10 Paige (N. Y.) 288.

61 Jennings v. Springs, 1 Bailey Eq. (S. C.) 181.

Where a bill was