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facts above stated, nor was he aware of the necessity of inserting them in his bill, until after the said replication was filed.

Your petitioner therefore prays that he may be at liberty to withdraw his said replication and amend his bill by adding parties defendant or otherwise, as he shall be advised, on payment of costs.

Petitioner.

[Add verification as in bill.]

§ 405. Form of petition to amend bill by adding a defendant. [Title of court and cause, and address to the court.]

day of

The petition of the above-named complainant respectfully shows that your petitioner filed his bill in this honorable court, against the defendant, on the , A. D. -, to which the defendant has appeared and put in his answer, upon which your petitioner is advised to make E. F. a party to this cause, and to bring him before the court as a defendant to the suit.

Your petitioner therefore prays that he may have leave to amend his bill by adding the said E. F. as a defendant thereto, with apt words to charge him.

[Add verification.]114

§ 406. How amendments are made.

Petitioner.

The amendments should be distinctly shown, so that they may be easily perceived. Where a bill is amended, the amendments are either to be made by interlineations, or by insertions in the margin, if short, or by being separately engrossed and annexed to the original bill. If the amendments be of such a nature as to require the original bill to be re-engrossed, they should be then designated in some way sufficient to point them out to the defendant.115 It is said that, by annexing the engrossed amendments to the original bill, and by referring, in that part of the bill where the amendments should have been

114 Petitions to amend answers, pleas, and other proceedings may be easily framed by using the preceding forms as models, and making the necessary changes in verbiage.

115 Luce v. Graham, 4 Johns. Ch. (N. Y.) 170; Willis v. Evans, 2 Ball & B. 225; Peirce v. West, 3 Wash. C. C. 354, Fed. Cas. No. 10,910; Walsh v. Smyth, 3 Bland (Md.) 9; Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159.

inserted, to the annexed amendments, and by referring at each amendment to the proper place of its insertion in the original bill, the record will be kept from being defaced, and all the requisite certainty and convenience will be obtained.116 Where leave is given to amend the bill, the amendment should state only so much of the original bill as may be necessary to introduce and to make intelligible the new matter.117 It was held, under the New York chancery practice, that if a party thought proper to file or serve an entire new bill, incorporating the original matter with the amendments, he must distinctly mark and designate the amendments, so that the defendant and the court might see what they were.118 Where a bill is amended, and the amended bill contains allegations directly contrary to the allegations in the original bill, the proper course is to strike out such contradictory allegations in the original bill.119 It is improper to incorporate in an answer to an amended bill the whole matter of the former answer.' 120 Neither an agreement between solicitors that an amendment may be made, nor an order giving leave to amend, amounts to an amendment, even if filed in the cause.121 Where leave is given to amend an answer, a new answer, with the amendments added, must be made and filed, or the original answer withdrawn by leave of court and the amendments added, or the amendments must refer to the portions of the answer on file intended to be amended, specify

116 Luce v. Graham. 4 Johns. Ch. (N. Y.) 170; Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. Chancellor Walworth said that, if it was necessary to attach the amended bill to the original bill on file, it was the business of the clerk to do it, but that in point of fact it was seldom done, as all the papers in the case were usually placed together in the same bundle, without sealing the original bill and the amendments together, where there had been a re-engrossment of the whole bill. Hunt v. Holland, 3 Paige (N. Y.) 78.

117 Peirce v. West, 3 Wash. C. C. 354, Fed. Cas. No. 10,910.

118 Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159.

119 Milton v. Hogue, 39 N. C. 415.

120 Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. 121 Wilson v. King, 23 N. J. Eq. 150.

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ing their nature and application.122 The title of further answers must correspond with the order under which they are put in.123 An amended answer presenting only matter which is immaterial should be rejected.12

§ 407. Verification of amended pleadings.

Where the original bill was sworn to, it is held that the complainant must also swear to the truth of the proposed amendment.125 An amendment to a bill for injunction need not be verified where the allegations of the amendment relate to matters other than the relief sought by the injunction, and are not necessary to warrant the granting of the same.126

§ 408. Form of amendments to bill.

[Title of court and cause.]

Amendments to the bill of complaint in the above-entitled cause, made pursuant to an order of court dated the day of D.:

A.

First. In the third line of the second page of the bill, after the word "testator," interline "to-wit, on or about the 5th day of June, 1902." Second. After the word "satisfaction" in the tenth line of the fourth

122 Mason v. Detroit City Bank, Har. (Mich.) 222. The proper method of amending an answer is to incorporate any amendment which the court sanctions into a supplemental answer to be verified by oath. It is improper to amend by interlining other words in the original answer. Morrill v. Morrill, 53 Vt. 74, 38 Am. Rep. 659.

123 Bennington Iron Co. v. Campbell, 2 Paige (N. Y.) 159. 124 McKay v. McKay's Adm'rs, 33 W. Va. 724, 11 S. E. 213.

125 Gregg v. Brower, 67 Ill. 525; Rodgers v. Rodgers, 1 Paige (N. Y.) 424; Verplanck v. Mercantile Ins. Co. of New York, 1 Edw. Ch. (N. Y.) 46; Carey v. Smith, 11 Ga. 539; Walker v. Ayres, 1 Iowa, 200; McDougald v. Dougherty, 11 Ga. 570. In Georgia it is held that it is not an abuse of the discretion of the court to require amendments to a sworn bill to be themselves sworn to (Semmes v. Boykin, 27 Ga. 47), and that a sworn bill might be amended in its prayer, and by adding a new party complainant, without swearing to the amendment (Livingston v. Marshall, 82 Ga. 281, 11 S. E. 542). In Illinois it is held that the rule requiring a material amendment to a bill originally sworn to, also to be sworn to, has not been relaxed, notwithstanding liberal statutory provisions for amendments, but that in mere matter of form the rule will be relaxed. Gregg v. Brower, 67 Ill. 530.

126 Bauer Grocer Co. v. Zelle, 172 Ill. 407, 57 N. E. 238.

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page, strike out the words [here insert the words to be stricken out], and in lieu thereof insert the following: [Here insert the words to be inserted.]

Third. Strike the names of J. H. and D. T. out of the seventh line of the fourth page.

E. F.,

Solicitor for Complainant. [Add verification if necessary.]127

§ 409. Order to amend.

C. D., Complainant.

It is said that an order granting leave to amend should always be obtained. It is held that such order should state the new matter to be inserted, 128 and that new matter not allowed by the order, but stated in the amended pleading, will warrant the striking from the files of the amendment.129

§ 410. Form of order granting leave to file amendment to bill. [Title of court and cause.]

This cause coming on this day to be heard on the verified petition of J. D., complainant in the above-entitled cause, praying that leave be granted to amend the bill of complaint in the above-entitled cause, as specifically set forth in said petition, and the defendant being present in open court by E. F., his solicitor, and the court being fully advised in the premises,

It is ordered by the court that leave be, and the same is hereby, given to said complainant to amend his bill of complaint in the aboveentitled cause by filing a copy of said proposed amendments attached to said petition for such leave.

127 The form of amendment to an answer can be framed from the foregoing form.

128 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 410; Foster, Fed. Pr. (3d Ed.) § 168; Roberts v. Stigleman, 78 Ill. 120.

Where, on sustaining exceptions to an answer, an order is made granting the defendant leave generally to file an amended answer, to which complainant assents, he cannot afterwards object that the order did not specify the particular amendment to be made, or authorize an amendment setting up a new case. Stokes v. Farnsworth, 99 Fed. 836. See Fulton County Sup'rs v. Mississippi & W. R. Co., 21 III. 337. 129 Strange v. Collins, 2 Ves. & B. 163. It is held to be not proper to rule a party to plead to an amendment not on file, and which may never be filed. Ridgely Nat. Bank of Springfield v. Fairbank, 54 Ill. App. 296.

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§ 411. Form of order for leave to amend answer.

[Title of court and cause.]

This cause coming on this day to be heard, on motion of A. B., solicitor for Richard Roe, the defendant, asking that the prayer of the verified petition of said Richard Roe, praying leave to amend the answer of the said defendant, Richard Roe, be granted, and the complainant being present in court by G. B., his solicitor, and the court being fully advised in the premises,

It is ordered that the said defendant be, and he is hereby, allowed to amend his answer to the bill of complaint herein, as follows [here Insert the proposed amendment, or, if amendment by interlineation is desired, insert, "and that (designate the person) make such interlineations"], in accordance with the petition of said defendant herein filed.

412. Proceedings upon amended bill.

By the English practice, when the amendment simply introduced new defendants, they alone had to be served with a new subpoena ;130 for, if a bill was substantially amended by the addition of new charges, a subpoena to answer the amendments was required to be served upon all the defendants.131 An amendment to a bill, however trivial and unimportant, unless it appears that the amendment is a mere matter of form which cannot alter the rights of the defendant, authorizes a defendant, though not required to answer, to put in a new answer, making an entirely new defense, and even contradicting his former anOn the amendment of a bill, after a plea thereto has been disallowed, the defendant may put in a new plea to the

swer. 132

180 Foster, Fed. Pr. § 165; Beach, Mod. Eq. Pr. § 154; Lawrence v. Bolton, 3 Paige (N. Y.) 294; Equitable Life Assur. Soc. v. Laird, 24 N. J. Eq. 319.

131 Foster, Fed. Pr. § 165; Cooke v. Davies, Turn. & R. 309; Bramston v. Carter, 2 Sim. 458. See 1 Smith, Ch. Pr. 306. See, also, Stanley v. Bond, 6 Beav. 420.

132 Lube, Eq. Pl. 88, 91; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 409; French v. Hay, 22 Wall. (U. S.) 246; Miller v. Whittaker, 33 Ill. 386; Richardson v. Richardson, 5 Paige (N. Y.) 58; Burney v. Ball, 24 Ga. 505; Blythe v. Hinckley, 84 Fed. 233; Thompson v. Maxwell Land Grant & Ry. Co., 3 N. M. 269, 6 Pac. 193; Bowen v. Idley, 6 Paige (N. Y.) 46; Trust & Fire Ins. Co. v. Jenkins, 8 Paige (N. Y.) 589; Bosanquet v. Marsham, 4 Sim. 573; Nelson v. Eaton, 27 U. S. App. 677, 66 Fed. 376. Where nothing but the name of a new defendant is introduced,

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