Tappan v. Evans

12 N.H. 330 | Superior Court of New Hampshire | 1841

Parkrr, C. J.

A decree having been entered, in this case, it is very apparent that the plaintiff cannot file a supplemental bill, introducing new facts, as a matter of right. 2 Atkyns 139, order in note; 17 Vesey 178, Perry vs. Phelips; 2 Smith’s Ch. Pr. 64; Mitford’s Pl. 91.

If this bill is allowed, the operation of it must be to open the decree, or at least to suspend farther action upon it, until the new matter is considered ; and this is not in the power of the plaintiff, at his pleasure.

And we are further of opinion, that a supplemental bill, introducing new facts relating to the merits, ought not to be filed as a matter of course, but only by leave of court, upon sufficient cause shown. Such is the practice in New York, in relation to injunction bills at least. 2 Paige’s Ch. R. 333, Eager vs. Price; 3 Paige 294, Lawrence vs. Bolton. And it is said to be most safe to apply for liberty in all cases, 1 Hoffman’s Ch. Pr. 403.

In Massachusetts, it is held generally that a supplemental bill ought to be filed only by leave of court, and upon cause shown. 1 Metcalf’s R. 76, Pedrick vs. White. And so in England, after publication, (2 Smith 64,) or after the parties are at issue, if the matter is of such a nature that it might have been introduced as an amendment to the original bill. 1 Smith’s Ch. Pr. 528; 4 Simons’ Ch. R. 76, Colclough vs. Evans. But it seems to be held there, that if before decree the cause is in such a state that the bill cannot be amended, a supplemental bill maybe filed, for the purpose of putting new matter in issue. 4 Simons 628, Crompton vs. Wombwell. Whether this results from the new orders does not appear. It is said, in Colclough vs. Evans, that if the new orders had not existed, the supplemental bill could not have been filed without leave, because it sought to change completely the issue raised by the original bill.

A party cannot amend his bill here, without leave of court, after answer. This bill is in the nature of an amendment.