Thorn v. Germand
New York Court of Chancery
MOTION to amend the bill, by adding new and material charges, after issue joined, a rule to produce witnesses, a commission to take testimony sued out, and one witness examined. The petition stated, that after issue joined, and while the solicitor for the plaintiffs was preparing to take testimony, the matter proposed to be introduced by way of amendment, was discovered. The affidavit, as to the above facts, was sworn to by the solicitor for the plaintiffs.
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MOTION to amend the bill, by adding new and material charges, after issue joined, a rule to produce witnesses, a commission to take testimony sued out, and one witness examined. The petition stated, that after issue joined, and while the solicitor for the plaintiffs was preparing to take testimony, the matter proposed to be introduced by way of amendment, was discovered. The affidavit, as to the above facts, was sworn to by the solicitor for the plaintiffs. To oppose the motion, an affidavit of G. B., a third person, was produced, stating, that before the filing of the bill, he communicated…
1Opinion of the Court
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…
2Cases cited2 opinions
- Brown v. RickettsNew York Court of Chancery · 1817
- Shephard v. MerrilNew York Court of Chancery · 1818
3Cited by5 opinions
- Gillett v. HallSupreme Court of Connecticut · 1840
- Reed v. CowleyDistrict Court, N.D. New York · 1868
- Chase v. SearlesSupreme Court of New Hampshire · 1864
- Kirby v. ThompsonNew York Court of Chancery · 1822
- Knapp v. FowlerNew York Supreme Court · 1883