Milner v. Milner — 2 Edw. Ch. 114

Majority

p. 114

Milner v. Milner.

October 7. 1833.

Headnote

A complainant cannot file a supplemental bill to introduce facts which have occcurrcd sine-1 the filing of the original bill and upon which a decree can be had without reference to the original bill. The complainant should dismiss his old bill and file an entirely new one.

The bill was filed by the wife against the husband, in the month of June one thousand eight hundred and twenty-nine, f°r a divorce on the ground of adultery. Application was now made for leave to withdraw the replication (which had been put in after a supplemental bill) and to amend or be allowed to file a further supplemental bill: in order to set forth acts of adultery committed by the husband since the original bill was filed.

Mr. W. N. Dyckman, Jun. for the motion.

Mr. B. Haight for the defendant.

The question in my mind is, whether the complainant, upon her intending to rely upon the new facts, must not file an entirely new bill ? I consider it not a case for amendment or a supplemental bill. The latter is generally filed to continue the original suit or is, in its matter, directly connected with it and because of the original bill being somewhat defective. But here, there is new substantive cause of action upon which a decree can be had without connecting it with the original bill. The complainant is here wanting to go entirely upon new ground. In fact, to make a new case. If this is to be done, it must be by a dismissal of the present bill and the filing of a new one.

I must refuse this motion.

p. 115

Mr: Dyckman asked for leave to dismiss the original bill without costs : the application being in the alternative ; “ or for such other order,” &c.

The Vice-Chancellor :—I cannot allow that, on the present motion; nor do I think it can be done, without costs, at any time.