§ 396. Effect of amending answer.

The answer to a bill and its amendments constitute but one record.88 A defendant to whom leave is granted to file an amended answer is not to be considered as having put in any answer until the amended answer is filed.89

§ 397. Amending plea.

Where there is evidently a material ground of defense disclosed in the plea, but owing to some evident slip or mistake the plea has not been correctly framed, the court will exercise a discretion in allowing it to be amended.90 Where a plea which, in substance, showed a defect of parties, instead of stating that additional parties were necessary and naming them, prayed judgment whether the defendant ought to be called upon for further answer, the court, upon the argument, instead of overruling the plea, gave the defendant leave to amend it.91 Liberty to amend or to plead de novo will only be granted where there is an apparent good cause of defense disclosed by the plea, but, owing to some accident or mistake, it has been informally pleaded.92 It is said that an amendment of a plea should not

Ch. (N. Y.) 320; Cook v. Bee, 2 Tenn. Ch. 343; Jackson's Assignees v. Cutright, 5 Munf. (Va.) 308; Elder's Ex'rs v. Harris, 76 Va. 187; Wells v. Wood, 10 Ves. 401; Verney v. Macnamara, 1 Brown Ch. 419; Bowen v. Cross, 4 Johns. Ch. (N. Y.) 375; Hughes v. Bloomer, 9 Paige (N. Y.) 269.

88 Munch v. Shabel, 37 Mich. 166; Casserly v. Waite, 124 Mich. 157, 82 N. W. 841.

89 White v. Hampton, 9 Iowa, 181. It was held that where a defendant admitted a tender or conversations in regard thereto in his answer, he could not, in a subsequent amended answer, take back such admissions. Raines v. Jones, 4 Humph. (Tenn.) 490. See, also, Ruggles v. Eddy, 11 Blatchf. 524, Fed. Cas. No. 12,118.

90 1 Barbour, Ch. Pr. 127; Beames, Pleas in Eq. 321; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Dobson v. Leadbeater, 13 Ves. 230; Newman v. Wallis, 2 Brown Ch. 147.

91 Merreweather v. Mellish, 13 Ves. 437; Waters v. Mayhew, 1 Sim. & S. 220; Pope v. Bish, 1 Anstr. 59.

92 Freeland v. Johnson, 1 Anstr. 276, 2 Anstr. 407; Nobkissen Hastings, 2 Ves. Jr. 84; Watkins v. Stone, 2 Sim. & S. 560.

93

be allowed if it has been amended once before." In giving leave to amend, the defendant is tied down to a very short time.94

§ 398. Amendment of demurrers.

95

Demurrers may be amended as to matters of form and substance.9 If the demurrer is too general, it must be overruled; but the court has a discretion, if a fair case is made, to give the defendant leave to amend it, and narrow it, upon proper terms.96

931 Barbour, Ch. Pr. 128; Nabob v. East India Co., 1 Ves. Jr. 372. For cases treating of amendments to pleas, see United States v. American Bell Tel. Co., 39 Fed. 716; Allen v. Randolph, 4 Johns. Ch. (N. Y.) 693; Murray v. Coster, 20 Johns. (N. Y.) 576; Stuart v. Warren, 1 N. Y. Leg. Obs. 293; Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594; Hogan v. Ashton, 6 Phila. (Pa.) 517; Newman v. Wallis, 2 Brown Ch. 147; Wood v. Strickland, 2 Ves. & B. 150; Jackson v. Rowe, Russ. 524; Freeman v. Bank, Har. (Mich.) 311; Giant Powder Co. v. Safety Nitro Powder Co., 19 Fed. 509; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 210. Two general rules may be traced through all the cases: First, to use great care in allowing amendments of a sworn answer or other pleading; secondly, to consider whether the plea was so defective in substance that an amendment would be of no use, and even in such cases leave has been given to withdraw the plea and file a new one. But, subject to these considerations, courts of equity have always exercised the right to allow amendment of pleas in all cases. Greene v. Harris, 11 R. I. 5, which fully reviews the

law relative to amending pleas.

Where several pleas are filed by several defendants, through an inadvertence of counsel, without special leave of court, the court may allow them to be taken from the files, with leave to defendant to plead anew, or to file more than one plea. Hogan v. Ashton, 6 Phila. (Pa.) 517. A plea may be allowed to be amended to place before the court an additional fact, unknown to defendant when the plea was filed, and consistent with the defense then made, but it will not be permitted to set up facts inconsistent with the original defense. Freeman v. Michigan State Bank, Har. (Mich.) 311.

94 Cooper, Eq. Pl. 336; 1 Hoffman, Ch. Pr. 226; Nobkissen v. Hastings, 2 Ves. Jr. 87; Freeman v. Michigan State Bank, Har. (Mich.) 311. 95 Foster, Fed. Pr. § 166; Gregg v. Legh, 4 Madd. 193, 207; Atwill V. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Baker v. Mellish, 11 Ves. 70; Cooper, Eq. Pl. 336; Marsh v. Marsh, 16 N. J. Eq. 391, 84 Am. Dec.

164.

Story, Eq. Pl. § 894; Cooper, Eq. Pl. 336.

Where it is sought to amend and narrow a demurrer already filed, application should be made before the judgment on the demurrer as it stands, though, even where that was omitted, the court has, after the overruling of the demurrer, upon a proper case granted such leave.97

§ 399. Amendment of replication.

The amendment of a replication may almost always be allowed.98

§ 400. Amendment of exceptions.

Exceptions to an answer have been permitted to be amended where there has been a mistake.99

§ 401. Amendment of cross bill.

Cross bills may be amended.100 A cross bill may be permitted to stand over for new parties to be added and brought in.101 § 402. When application to amend bill should be made.

A complainant wishing to amend his bill must take the first opportunity, after being made acquainted with the defects in it, to ask leave so to do.102 Thus, the complainant, by filing a

68.

97 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 584; Baker v. Mellish, 11 Ves.

98 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 831, where it is said that any error in the replication except the omission of the names of any defendants (in which case, by leave of court, another replication against the omitted defendants must be filed, or the replication withdrawn and another filed) may be corrected by amendment. See, also, Goodyear

v. McBurney, 3 Blatchf. 32, Fed. Cas. No. 5,574.

99 Cooper, Eq. Pl. 339; Story, Eq. Pl. § 901; Dolder v. Bank of England, 10 Ves. 284.

100 Chicago, M. & St. P. Ry. Co. v. Third Nat. Bank of Chicago, 134 U. S. 276; Hodder v. Kentucky & G. E. Ry. Co., 7 Fed. 793; Kyle v. McKenzie, 94 Ala. 236, 10 So. 654; Nelson v. Dunn, 15 Ala. 501; Jones v. Hillis, 91 Ill. App. 403.

101 Wooster v. Cooper, 56 N. J. Eq. 759, 36 Atl. 281; Haberman v. Kaufer, 60 N. J. Eq. 271, 47 Atl. 48.

102 Chattanooga Grocery Co. v. Livingston (Tenn. Ch. App.) 59 S. W. 470; Bank of Michigan v. Niles, Walk. (Mich.) 398; Carey v. Smith, 11 Ga. 539; Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Seymour v.

replication to the answer after notice of the necessity of an amendment of the bill, precludes himself from making it afterward.103 Leave to amend a bill after dismissal thereof is error.104 After final decree the court may, on motion, allow the complainant to amend a merely clerical error in his bill.105

$403. Mode of applying for leave to amend.

Application for leave to amend a pleading should be made either by motion or by petition. If made by petition, the petition should set forth the circumstances which make an amendment necessary.106 The substance of the proposed amendment should be set forth in the application to amend.107 It is proper to refuse to allow a bill to be amended where the nature of the proposed amendment is not shown.108 After a demurrer sustained to a bill which is properly sworn to, the complainant seeking to amend should present and submit in writing the proposed amendment, supported by affidavit of its truth, and some explanation given of the reason why the matter proposed to be added was not originally inserted.109 But it is held that it is not necessary that the proposed amendment to a sworn bill

Long Dock Co., 17 N. J. Eq. 169; Thorn v. Germand, 4 Johns. Ch. (N. Y.) 363; Moshier v. Knox College, 32 Ill. 155; Blair v. Harrison, 57 Fed. 257; Hoofstitler v. Hostetter, 172 Pa. 575, 33 Atl. 753; Holland v. Trotter, 22 Grat. (Va.) 136; Edward P. Allis Co. v. Withlacoochee Lumber Co., 105 Fed. 680; Johnston v. Grosvenor, 105 Tenn. 353, 59 S. W. 1028.

103 Vermilyea v. Odell, 4 Paige (N. Y.) 121.

104 Elston v. Drake, 5 Blackf. (Ind.) 540; Emory v. Keighan, 88 Ill. 516; Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672, 25 So. 720; Ringgold v. Emory, 1 Md. 348; Guyer v. Wilson, 139 111. 392, 28 N. E. 738.

105 Donnelly v. Ewart, 3 Rich. Eq. (S. C.) 18; Wallis v. Thomas, 7 Ves. 292; Spearing v. Lynn, 2 Vern. 376.

106 Walsh v. Smyth, 3 Bland (Md.) 9.

107 Graham v. Skinner, 57 N. C. 94; Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Freeman v. Michigan State Bank, Har. (Mich.) 311; Hewett v. Adams, 50 Me. 271.

108 Campbell v. Powers, 139 Ill. 128, 28 N. E. 1062

100 Campbell v. Powers, 139 Ill. 128, 28 N. E. 1062; Jones v. Kennicott, 83 Ill. 484.

should be first presented to the court in writing and verified by affidavit, where the evidence already taken before the court is sufficient to support the motion for leave to make such amendment.110 A motion to amend a sworn answer must be made on notice and be supported by affidavits. On application for leave to amend an answer, if relief be sought from an admission of law, it may be sufficient to show that the defendant was erroneously advised by his solicitor in that regard, but, where the relief sought is from an admission of fact, it should be shown that the answer was drawn with care and attention, stating on information and belief such facts as were not within the defendant's own knowledge, and also that the fact misstated was not within the defendant's own knowledge, and that he was erroneously informed in regard to it, and made oath to the answer honestly believing such erroneous information.112 On motion to amend, the court considers, not only the affidavits supporting and opposing such motion, but any other facts appearing from the pleadings and record. 113

§ 404. Form of petition for leave to amend.

[Title of court and cause, and address to the court.]

The petition of the above-named complainant respectfully shows that the defendant in this cause has caused his appearance to be entered therein, and has put in his answer to the bill of complaint, and that your petitioner has filed a replication, but no witnesses have been examined by either party; that since the filing of said replication your petitioner has been advised by his counsel, and believes, that it is es sential to the rights of your petitioner in this cause that the bill herein should be amended by adding thereto the following statements: [In sert matter proposed to be introduced.]

And your petitioner further shows that he had no knowledge of the

110 Bauer Grocer Co. v. Zelle, 172 111. 407, 50 N. E. 238. While the proper way is to present a proposed amendment when leave to file it is asked, yet the court, in its discretion, may give leave to amend at a future time. McFarland v. Claypool, 128 Ill. 397; Johnson v. Glover, 19 Ill. App. 585.

111 Huffman v. Hummer, 17 N. J. Eq. 269.

112 Maher v. Bull, 39 Ill. 531.

113 Chattanooga Grocery Co. v. Livingston (Tenn. Ch. App.) 59 S. W. 470.