Stafford v. Howlett

| New York Court of Chancery | Sep 13, 1828

The Chancellor :—It is a well settled rule that nothing can be inserted in an original bill by way of amendment which has arisen subsequent to the commencement of the suit, but the same must be stated in a supplemental bill. On the other hand, matters which arose previous to the filing of the original bill, although discovered by the complainant afterwards, should be introduced into the same by way of amendment, provided the cause is in that stage in which an amendment is allowable. (Mitford’s Pleadings, 60.) If the cause has progressed so far that an amendment cannot be made, or if material facts have occurred after the commencement of the suit, the court, on a proper application, will give the complainant leave to file a supplemental bill. (Goodwin v. Goodwin, 3 Atk. 370.) And wherever the party is permitted to file such bill for the purpose of introducing matters which have arisen subsequent to the filing of the original bill, the court will also give to the complainant permission to introduce other matters into the supplemental bill, which might have been introduced by way of amendment to the first bill.

If it appears upon the face of the supplemental bill that the whole of the matters charged therein arose previous to the commencement of the suit, and that the situation of the cause is such that they may be inserted in the original bill by amendment, the defendant may demur. (Mitford’s Plead. 164. Baldwin v. Mackown, 3 Atk. 817.)

*But if it does not distinctly appear by the supplemental bill, that the new matters charged therein arose before the filing of the original bill, the defendant can only take advantage of the irregularity by a plea alleging the fact. (Mitford, 230.)

The bill and plea in this cause taken together show, that the new matters are improperly brought before the court by this supplemental bill, and that they were the proper subjects of an amendment of the bill in the original suit; the plea must therefore be allowed.