Majority
p. 448Grim v. Wheeler and another.
Headnote
After answer, and exceptions thereto disallowed, complainant moved to amend his bill; defendant showed that a new answer would be necessary and that the amended bill might, very likely, be demurrable. The court allowed amendment, but required payment to the defendant of his former answer, and gave him liberty to demur to the amended bill.In amending, it is not correct to state in the body of the bill: And your orator, by way of amendment, &c., showeth.
p. 449Jan. 19, 1841.
Practice. meni 0y hill.
Application to amend the bill. One of the defendants had not appeared; but the other defendant, Wheeler, had put in an answer. Exceptions had been taken to such answer; they were disallowed; and the complainant had paid costs. The complainant, finding that he could not get the desired discovery without amending his bill, moved accordingly.
The application was met by an affidavit from the defendant Wheeler, showing the putting in of an answer on the twenty-ninth day of May last; that most of the material facts stated in the bill were charged upon the information of the complainant only, without averring his belief; and, for that reason, many of the interrogatories in relation to the matters so charged, were not answered by this defendant; that if the complainant ■should be permitted to amend his bill, an entire new shape would be given to it and it would be necessary for him to put in an entire new answer, except as to certain formal matters. Also, that he was advised by his counsel and verily believed that the said bill, when amended, as proposed by the complainant, would not show any sufficient ground for discovery or relief against the defendant and that a demurrer thereto would be sustained.
The Complainant in pro. per.
Mr. Hurlbut, for the defendant David E. Wheeler.
The complainant may be permitted to amend his bill, as proposed, omitting the words in brackets.[1] ) But, upon the affidavit of the defendant, showing that an almost entirely new answer will become necessary, the complainant must pay the costs of putting in the answer now on file, as a condition of allowing the amendment: I Hoff. Pr. 285; and with leave to the defendant also, after the bill shall be amended, to demur thereto, if he shall be so advised.
(a (a ) These words referred to the amendments, as thus; “ And your orator, (by way of amendment to this his hill of complaint, now) showeth, &c.”