in the heading of the replication, but only the names of such of the defendants as have appeared should be inserted or referred to in the body. If a defendant's name has been misspelled by the plaintiff, and such defendant has corrected the same by his answer, but the plaintiff has not afterwards amended his bill with respect to such name, the correction should be shown in the title of the replication; in the body of the replication, however, the correct name only should be inserted. When any defendant has died since the bill was filed, the words "since deceased" should follow his name in the title, but his name should be omitted in the body of the replication. If the plaintiff joins issue with all the defendants their names need not be repeated in the body; it is sufficient in such case to designate them as "all the defendants;" but if he does not join issue with all, the names of the defendants must be set out in the body.1 If the defendant has filed both a plea and answer, the replication should refer to both. The body of a general replication is substantially as follows: "This repliant, saving and reserving to himself all and all manner of advantage of exception, which may be had and taken to the manifold errors, uncertainties, and insufficiencies of the answer of the said defendants, for replication thereunto, saith, that he doth and will aver, maintain, and prove his said bill to be true, certain, and sufficient in the law to be answered unto by the said defendants, and that the answer of the said defendants is very uncertain, evasive, and insufficient in law, to be replied unto by this repliant; without that, that any other matter or thing in the said answer contained, material or effectual in the law to be replied unto, and not herein and hereby well and sufficiently replied unto, confessed or avoided, traversed or denied, is true; all which matters and things this repliant is ready to aver, maintain, and prove as this honorable court shall direct, and humbly prays as in and by his said bill he hath already prayed." A replication should be signed by the plaintiff's solicitors. The signature of counsel is unnecessary. A replication, like all other papers in a suit in equity, should contain

§ 159. Daniell's Ch. Pr. (4th Am. ed.) 830, 831.

2 Niccol v. Wiseman, 2 Vern. 46.

3 Story's Eq. Pl., § 878, note 4.

4 Story's Eq. PL, § 881; Daniell's Ch.

Pr. (4th Am. ed.) 830.

no scandal or impertinence. Proceedings thereon on account of its containing scandalous or impertinent matter are similar to those upon an answer of that character. In Queen Elizabeth's time, the plaintiff, for putting in too long a replication, was fined ten pounds, and imprisoned, and a hole made through the replication, which was hung about his neck, while he was obliged to go thus carrying it from bar to bar.

5 Milward v. Welden, 8 Eliz. li. B., fo. 678; Tothill, 101.

CHAPTER XII

AMENDMENTS.

§ 160. Amendments in general.-"In reference to amendments of equity pleadings the courts have found it impracticable to lay down a rule that would govern all cases. Their allowance must, at every stage of the cause, rest in the discretion of the court; and that discretion must depend largely on the special circumstances of each case. It may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to technical rules of practice. Undoubtedly great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side." The Revised Statutes pro

vide that the court "may at any time permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." States, charities,' infants, idiots, and lunatics, are allowed to amend in cases where courts might hesitate to grant the privilege to others.

The equity rules regu"The plaintiff shall

§ 161. When bills can be amended. late the amendment of bills as follows: be at liberty, as a matter of course, and without payment of costs, to amend his bill, in any matters whatsoever, before any copy has been taken out of the clerk's office, and in any small matters afterwards, such as filling blanks, correcting errors of dates, misnomer of parties, misdescription of premises, clerical errors, and generally in matters of form. But if he amend in a material point, as he may do of course, after a copy has been

§ 160. 1 Harlan, J., in Hardin v Boyd, 113 U. S. 756, 761. See Nellis v. Pennock Mfg. Co., 38 Fed. R. 379. 2U. S. R. S., §-954.

4 President of St. Mary M. College v. Sibthorp, 1 Russ. 154.

5 Serle v. St. Eloy, 2 P. Wms. 386; Pritchard v. Quinchant, Amb. 147;

3 Rhode Island v. Massachusetts, 13 Story's Eq. Pl., §§ 59, 892. Pet. 23.

1

so taken, before any answer or plea or demurrer to the bill, he shall pay to the defendant the costs occasioned thereby, and shall, without delay, furnish him with a fair copy thereof, free of expense, with suitable references to the places where the same are to be inserted. And if the amendments are numerous, he shall furnish in like manner to the defendant a copy of the whole bill as amended; and if there be more than one defendant, a copy shall be furnished to each defendant affected thereby." For the purposes of this rule, an answer which has been held or admitted to be insufficient is, it seems, considered as no answer. Where objections to the jurisdiction have been sustained without any general appearance, or any pleading by the defendant, the bill may always be amended.3 In New York, it was held that, after an insufficient answer, the complainant could not amend by leaving out the defendant's name, thus discontinuing the suit without costs. An amendment of a bill without payment of costs or service of a copy on the defendant may be withdrawn and does not then extend the defendant's time to plead. After an answer, or plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill on or before the next succeeding rule-day, upon payment of costs or without payment of costs, as the court or a judge thereof may in his discretion direct. But after replication filed, the plaintiff shall not be permitted to withdraw it and to amend his bill, except upon a special order of a judge of the court, upon motion or petition, after due notice to the other party, and upon proof by affidavit that the same is not made for the purpose of vexation or delay, or that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill, and upon the plaintiff's submitting to such other terms as may be imposed by the judge for speeding the cause. This rule applies only where leave to amend is asked

$161. Equity Rule 28.

2 Daniell's Ch. Pr. (2d Am. ed.) 473. See Chase v. Dunham, 1 Paige (N. Y.), 572.

3 Insurance Co. of N. A. v. Svendsen, 74 Fed. R. 346.

4 Chase v. Dunham, 1 Paige (N. Y.),

572.

5 Sheffield F. Co. v. Witherow, 149 U. S. 574, 576.

6 Equity Rule 29; Gubbins v. Laughtenschlager, 75 Fed. R. 615.

before a demurrer or plea is allowed." "If the plaintiff so obtaining any order to amend his bill after answer, or plea, or demurrer, or after replication, shall not file his amendments or amended bill, as the case may require, in the clerk's office on or before the next succeeding rule-day, he shall be consid ered to have abandoned the same, and the cause shall proceed as if no application for any amendment had been made." "No special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the court or a judge thereof may in his discretion direct." Such an amendment must be asked for whenever the plaintiff wishes to avoid and not merely deny a defense in the answer which has not been anticipated in the original bill.10

This rule does not require that the amendment set forth evidence, such as a judgment or decree, to establish any fact put in issue by the pleading." If upon a hearing any demurrer or plea is allowed, the court may, in its discretion, upon motion of the plaintiff, allow him to amend his bill upon such terms as it shall deem reasonable.12 When the plaintiff wishes to amend the bill after replication by the addition of new facts or charges, the regular practice is for him to apply for leave to withdraw his replication and amend." After a case has been set down for a hearing upon the facts, and especially after such a hearing, an amendment which substantially changes the case made by the bill will rarely be granted. But an amend

7 National Bank v. Carpenter, 101 held in North Carolina, that, where U.S. 567, 568.

8 Equity Rule 30.

9 Equity Rule 45. See Southern Pac. R. Co. v. U. S., 168 U. S. 1.

10 Wilson v. Stolley, 4 McLean, 275; Lant v. Manley (C. C. A.), 75 Fed. R. 627, 634; Piatt v. Vattier, 9 Pet. 405. Thus, where an answer to a bill for an injunction against the infringement of a patent set up a license, the complainant was not allowed to prove the abandonment of the license because the bill contained no allegation to that effect. Wilson v. Stolley, 4 McLean, 275. It was

a deed was pleaded in the answer together with averments of the facts upon whicn its validity depended, no amendment of the bill was needed to enable the plaintiff to attack the validity of the deed. Boyd v. Hawkins, 2 Dev. Eq. (N. C.) 195, 215.

11 Southern Pac. R. Co. v. U. S., 168 U. S. 1.

12 Equity Rule 35.

13 Daniell's Ch. Pr. (2d Am. ed.) 479. 14 The Tremolo Patent, 23 Wall. 518, 527; Gubbins v. Laughtenschlager, 75 Fed. R. 615; Bass, R. & G. v. Feigenspau, 82 Fed. R. 260.