Chace v. Holmes

68 Mass. 431

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1854
• Status: Published

Opinion

By the Court.

The plaintiff, having elected to file a bill which called for an answer under the oath of this defendant, cannot, at this stage of the case, be allowed to amend by dispensing with an answer under oath. It might essentially change the character of the defence. The plaintiff must elect, in the first instance, whether he will insist on a discovery, which the defendant is bound to make on his oath, and at his peril; but if he does, he confers on the defendant the right of making his answer, if responsive, evidence for him. The plaintiff having made his election, and shaped his bill accordingly, and called on the defendant to make his defence adapted to such a bill, it would be inequitable to permit him to change it.

Motion overruled.

The court then fixed the time within which the defendant should file an answer; but before an answer was filed, the case was settled by the parties, and all the allegations contained in the bill were withdrawn.