Rodgers v. Rodgers

1 Paige Ch. 424 | New York Court of Chancery | 1829

The Chancellor :—The complainants apply to amend an injunction bill after answer, on the ground that exceptions to the answer have been allowed. No affidavit of the truth *of the charges contained in the proposed amendments, or excuse for not inserting them in the original bill, is furnished. The 15th rule of this court, authorizing the complainant to amend his bill of course, and without costs, on exceptions allowed to the answer, does not apply to an injunction bill, or to any other which has been sworn to by the party. Such was the construction given to the 11th rule, in Parker & Bliss v. Grant, (1 John. Ch. Rep. 434.) And in Beekman v. Waters, (3 John. Ch. Rep. 410,) where the defendant had submitted to answer exceptions, although an amendment was allowed on the particular facts sworn to in the petition, Chancellor Kent declared, that if the amendments required a new or further answer, they ought to be allowed only upon payment of costs.

A loose kind of practice in relation to amending injunction bills has crept into this court, which I am satisfied has been productive of great delay and injustice, and for which there appears to be no remedy, except by adhering more closely to the ancient practice of requiring the complainant to state the whole of his equity in his original bill. When he applies to amend without prejudice to the injunction, he must state the proposed amendments distinctly, so that the court can see that they are merely in addition to the original bill, and not inconsistent therewith. He must also swear to the truth of the several matters proposed to be inserted as amendments, and render a valid excuse for not incorporating them in the original bill; and the application to amend must be made as soon as the necessity of such amendment is discovered. (Sharp v. Ashton, 3 Ves. & Beam. 144; and Mair v. Thellusson, in note to page 145; Norris v. Kennedy, 11 Ves. 565.)

The application being defective in nearly all of these respects must be refused with costs.