62 Miss. 818 | Miss. | 1885
delivered the opinion of the court.
The court erred in restricting the right of the appellant to plead, answer, or demur to only a part of the amended bill and in refusing to allow him reasonable time to plead or answer to the amended bill. When the complainant amends- his bill in a material matter, as was done in this case, the defendant may plead, answer, or demur to the same as if it were an original bill, no matter what may have been the state of the pleadings before the amendment was made. 1 Dan. Ch. PL and Pr. (fifth ed.) 409; 1 Barb. Ch. Pr. 224 ; Bancroft v. Wardour, 2 Bro. C. C. 66; Bosanquet v. Marsham, 4 Sim. 573; Cresy v. Beavan, 13 Sim. 354; Dillon v. Davis, 3 Tenn. Ch. 386.
The authorities generally concur in the declaration that any amendment of a bill after answer authorizes the defendant, though not required to answer,, to put in an answer, making an entire new defense and contradicting his original answer, if he desires to do so. 1 Barb. Ch. Pr. 224; 1 Dan. Ch. Pl. and Pr. 409; The Trust and Tire Ins. Co. v. Jenkins et al., 8 Paige 589 ; Richardson v. Richardson, 5 Paige 58; Dillon v. Davis, 3 Tenn. Ch. 386; Miller v. Whittaker., 13 Ill. 386.
And the code provides that, when a bill is amended after answer
The action of the Chancellor was not in accordance with any or either of these rules and deprived the appellant of a substantial right to which he was entitled under the law.
The decree is reversed and the cause remanded, with leave to appellant to plead, answer, or demur to the amended hill within thirty days from the date of the filing of the mandate of this court in the cause in the lower 'court.
