Thorn v. Germand

4 Johns. Ch. 363, 1820 N.Y. LEXIS 196, 1820 N.Y. Misc. LEXIS 9

• Court: New York Court of Chancery
• Decided: March 2, 1820
• Status: Published

Opinion

The Chancellor.

The application should have been for leave to withdraw the replication, for the purpose of amending the bill. No amendment can be allowed, going to the merits, while the replication remains. (1 Atk. 51. 1 Ves. jun. 142. Newland’s Pr. 82.) And if that had been the motion, the materiality of the amendment, and why the matter was not stated before, must have been shown, and satisfactorily explained. (Brown v. Ricketts, 2 Johns. Ch. Rep. 425. Turner v. Chalwin, cited in 1 Fowler’s Ex. Pr. 113.)

In this case, it is proved, on the part of the defendants, and it is not denied by the plaintiffs, that they, or one of them, knew the existence of the matter now sought to be introduced into their bill, before the filing of the bill. It is, therefore, not new matter, that is to be added by way of amendment, but matter before resting in the knowledge of the party'.

There is another fatal objection to the motion. Here has been a witness already examined in the cause. If no witness had been examined, an amendment, otherwise proper, and when the omission was duly accounted for, might have been permitted, for it has been permitted after publication. (Hastings v. Gregory, cited in Mitf. Pl. 258. and 1 Fowler’s Ex. Pr. 111.) But after the examination of witnesses, the pleadings cannot be altered or amended, except under very special circumstances, or in consequence of some subsequent event, unless it be for the sole purpose of adding parties. This is the established rule of practice on the subject. (Mitf. Pl. 258, 259.) The only course for the plaintiff, in these cases, when he cannot have permission to alter his original bill by amendment, is to apply for leave to file a supplemental bill. (Shephard v. Merril, 3 Johns. Ch. Rep. 423.)

Motion denied with costs.