Dodge v. Dodge

29 N.H. 177

• Court: Superior Court of New Hampshire
• Decided: July 15, 1854
• Status: Published

Opinion

Gilchrist, C. J.

As a general rule, where an imperfection exists in the frame of the original bill, which was not discovered in time to allow of its being corrected by amendment, the rules of chancery furnish means of supplying the defect by permitting a supplemental bill to be filed. Where the imperfection of a suit arises from a defect in the original bill, or in some of the proceedings under it, and not from any event subsequent to the institution of the suit, it may be added to by a. supplemental bill merely. Mitf. PI. 61.

In Pedrick v. White, 1 Met. 76, it was held that to warrant the filing of a supplemental bill, one. class of cases was that where the facts relied on first came to the knowledge of the plaintiff, or were made known to him in such a manner that he could avail himself of them after the case had passed the stage in which he might have had leave to amend. Another class mentioned is that where the plaintiff has been ' prevented through inadvertence, misapprehension, &c., of himself, his agent, or his counsel, or other cause satisfactorily shown, from availing himself of the proposed matter of his supplemental bill at an earlier stage of the cause.

But if a plaintiff has omitted to pray for proper relief by his bill, and has not stated a case sufficient to procure an extension of the relief prayed for under the prayer for general relief, he will not, at the hearing, be permitted to file a supplemental bill for the purpose of remedying the defect. Danl. Ch. Pr. 1655; 4 Sim. 76. In the case of Downer v. Fortescue, 3 Atk. 110, Danl. Ch. Pr. 1660, the plaintiff applied for an account of the rents and profits from the time his title accrued, which was resisted on the ground that the bill did not specifically pray an account of the rents and profits, but only for general relief, but Lord Hardwicke held that under the prayer for general relief he was entitled to an account, and said: “ But suppose the original bill to be as defective as the defendant’s counsel would have it to be, could anything be more proper than to bring a supplemental bill to put this matter in issue and supply the defects, if any, in the original bill?”

Where a bill by way of inducement only mentioned that there were fraudulent circumstances attending the case, without making a distinct charge of fraud, there being also a charge of forgery in the bill, the plaintiff sought to establish a case of fraud, which was objected to, because the fraud was not distinctly charged, but Lord Hardwicke permitted a supplemental bill to be filed for the purpose of charging the fraud. Jones v. Jones, 3 Atk. 110.

In the present case, the imperfection was in the framing of the bill. The plaintiff did not know that all the facts were not stated, until after the time of amending had expired. There was also some inadvertence on the part of himself or his counsel. And the authorities justify the admission of a supplemental bill in this case.