tioner then sought leave to amend his petition so as to set forth an additional ground of negligence. It was held that it was too late to amend.2

§ 1138. Amendment of Demurrers.

A demurrer may be amended by leave of the court like any other pleading, and an application to this effect will be readily granted when it is made before the demurrer has been argued. As the use of the demurrer tends to abridge litigation and to lessen the costs, there is no reason why the court should not look with favor upon the amendment of demurrers, especially where there appears to be merit in the point intended to be raised by the demurrer. If a bill is clearly demurrable, as a whole, for want of equity, or is clearly bad in part, it is the duty of the court to allow, or even to direct, such an amendment of a demurrer to be made as will enable the demurrer to reach the defect in the bill, or in the faulty part of the bill. Indeed, it not infrequently happens that the court itself, upon examining the bill, finds it to be fatally defective in some particular. In such situation the court may direct a demurrer to be put in, though none has been filed whatever. This is very properly done by the court in the exercise of its general supervisory power c er the proceedings. It is sometimes said that, inasmuch as the demurrer is a dilatory pleading that operates to cut off the proceedings before a hearing on the proof, applications to amend a demurrer should not be favorably received. This rule may very well be applied when the demurrer is directed to a formal or technical defect in the bill, but it is not properly applicable where the demurrer goes to the equity or substance of the bill.

§ 1139. Amendment of Pleas.

If a plea discloses a substantial ground of defense to the bill but appears to be so defectively drawn that advantage cannot be taken of such defense under that plea, the court may allow the plea to be so amended as to set forth the defense in the proper way. Thus, if a plea directed to a defect arising from the nonjoinder of necessary par ties fails to name the additional necessary parties, the court may, at the argument of the plea, give the defendant leave to amend his plea by naming the necessary parties who are not joined.*

2 Clyde v. Richmond, etc. R. Co. 3 Gibson, Suits in Chan. (2d ed.) (1894) 59 Fed. 394. Compare Central §§ 316, 432.

Trust Co. v. Marietta, etc. R. Co. 41 Barb. Ch. Pr. 127, (1896) 75 Fed, 41.

An amendment of a plea will not be allowed unless the plea appears to be meritorious and in good form. An amendment of a plea will not be permitted the effect of which would be to make the pleading objectionably multifarious.5

Amending the Answer.

§ 1140. Practice as to Amending Answer.

The amendment of answers is a subject that presents a few peculiarities and demands a somewhat fuller treatment than the amendment of demurrers and pleas. The trouble here arises from the twofold nature of the pleading. An answer in equity is not only a defensive pleading but also a piece of sworn testimony, in short, a deposition. It contains evidence discovered by the defendant in response to the charges contained in the plaintiff's bill. This circumstance obviously complicates the problem as to the amendment of answers, in a considerable degree. To allow a party, by amendment, to change the statement of his defense is one thing; to allow him to change the tenor of his sworn evidence is another and much more serious thing. In modern practice the answer under oath is usually waived in the bill, and most answers are now unsworn. The discovery feature is thereby in a great measure eliminated from the suit, and the answer is no longer evidence in the cause, at least as against the plaintiff and in favor of the defendant. But the rules in regard to the amendment of answers were originally developed under the older practice, and these rules still exert a considerable influence under the changed system.

§ 1141. Correction of Clerical Error or Informality.

To begin with, a distinction should be drawn between mere clerical errors, or mistakes, in the answer, on the one hand, and matters of fact or of defense, on the other. There has never been a time when the court would not allow a mere clerical error or mistake to be amended on a proper showing. Thus, in one case, an answer was amended, after the hearing, where it appeared that a mistake had been made in engrossing the answer from the draft. So where an answer had been filed under a defective caption, leave was given for it to be amended."

5 Giant Powder Co. v. Safety Nitro Powder Co. (1884) 19 Fed. 509. Gainsborough r. Gifford (1727) 2 P. Wms. 427.

Eq. Prac. Vol. II.-44.

7 White v. Godbold (1816) 1 Madd, Ch. 269,

Errors of the kind here referred to are curable, it will be noted, by taking the answer off the file and correcting the error on the face of the answer. It is then resworn and refiled as amended.s

§ 1142. Correction of Matters of Substance.

As regards amendments that go to the substance of the answer, as where the defendant seeks to set up a new or different defense, or to withdraw an admission favorable to the plaintiff, or otherwise materially to vary the effect of his answer, the rule is stricter than that which prevails in regard to mere clerical errors. The courts have been very loath to countenance applications to make changes of this kind. Yet the power undoubtedly resides in the court to allow such an amendment; and this power will be discreetly exercised in furtherance of justice. Of course, if the fact that the defendant wishes to put on record by means of the amendment to his answer is prejudicial to himself, and favorable to the plaintiff, the leave will be readily granted, for every incentive to the speaking of the truth is here present. But if the amendment is more favorable to the defendant than the original answer, the application will be granted with difficulty.10

1. 2 Daniell, Chancery Practice, 337, 338: The following passage from the text of this author sufficiently illustrates the conditions under which the English Court of Chancery formerly permitted the answer to be amended: "After an answer has been put in upon oath, the court will not, for obvious reasons, readily suffer any alteration to be made in it. There are, however, many instances in the books in which it appears that the court, upon special application, has allowed the defendant to reform his answer. Thus where, in an answer to a tithe bill, the defendant had sworn that a certain close contained nine acres, he was permitted to amend it by stating the close to contain seventeen acres, even though issue had been joined and a commission issued. . . . The court has allowed a defendant to amend his answer where new matter has come to his knowledge since it was put in, or in cases of surprise, as where an addition has been made to the draft of the answer after the defendant has perused it. . . . The court has also permitted a defendant to amend an answer by limiting the admission of assets it contained, where it was clearly established that such admission had been made by mistake, and through the carelessness of the solicitor's clerk."

2. Cook v. Bee (1875) 2 Tenn. Ch. 343: Chancellor Cooper deduced the following rules from the English and American authorities as applicable to the

81 Dan. Ch. Pr. 342.

9"I am afraid," said Lord Hardwicke, "to give encouragement to applications of this kind," where it was sought to amend an answer so as to set up, by way of defense, a newly discovered title; and yet, observing that "the

defendant ought somehow or other to get at it," the learned Lord Chancellor granted the application. Patterson v. Siaughter (1755) Ambl. 292.

101 Smith, Ch. Pr. (2d ed.) 270, 271; 1 Dan. Ch. Pr. 340.

amendment of answers: 66 Although courts of equity are very indulgent in allowing amendments of answers in matters of form, mistake of dates, or verbal inaccuracies, it is, for obvious reasons, slow to allow material alterations in sworn answers. It is especially reluctant to listen to such applications after evidence has been taken and published, and at such a stage of the cause as would enable the defendant to experiment with the court, so as to avoid relying at first upon an unpopular defense, such as the statute of limitations and the statute of frauds. It has never permitted a material amendment where the application has been made merely on the ground that the defendant, at the time he put in his answer, was acting under a mistake in point of law; nor when the amendment would contradict the statements in the first answer, or change the whole ground of defense, unless, indeed, the object be to remove out of the plaintiff's way the effect of a denial, or to give him the benefit of an admission. The defendant must make such a case that it shall appear to be due to justice to permit the case already on record to be altered; or, as it has been more strongly put, he must show such circumstances as repel the notion of any attempt to evade the justice of the case, or to set up new and ingeniously contrived defenses or subterfuges."

In the federal courts the law as to the amendment of answers conforms, in its main features, with the doctrines applied in the English chancery. The opinion of Judge Story in the following case contains a very succinct and lucid statement of the principles by which the courts are governed in permitting the amendment of a sworn answer. The special skill of this learned judge in matters of equity pleading and practice supplies a sufficient reason for here quoting his precise language at some length.

Smith v. Babcock (1839) 3 Sumn. 583, Fed. Cas. No. 13,008: "In mere matters of form, or mistakes of dates, or verbal inaccuracies, courts of equity are very indulgent in allowing amendments. But when application is made to amend an answer in material facts, or to change essentially the grounds taken in the original answer, courts of equity are exceedingly slow and reluctant in acceding to it. To support such applications, they require very cogent circumstances, and such as repel the notion of any attempt of the party to evade the justice of the case, or to set up new and ingeniously contrived defenses or subterfuges.

"Where the object is to let in new facts and defenses wholly dependent upon parol evidence, the reluctance of the court is greatly increased; since it has a natural tendency to encourage carelessness and indifference in making answers, and leaves much room open for the introduction of testimony manufactured for the occasion. But where the new facts, sought to be introduced, are written papers or documents, which have been omitted by accident or mistake, there the same reason does not apply in its full force; for such papers and documents cannot be made to speak a different language from that which originally belonged to them.... Before any court of equity should allow such amended answers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satisfactory; that the mistakes to be corrected, or the facts to

be added, are made highly probable, if not certain; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence; and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party, since the original answer was put in and sworn to. Where the party relies upon new facts, which have come to his knowledge since the answer was put in; or where it is manifest that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvertence and oversight, there is generally less reason to object to the amendment, than there is where the whole bearing of the facts and evidence must have been well known before the answer was put in."

§ 1143. Relation of Amended Answer to Original Answer.

The answer to an amended bill or an amended answer to the original bill is considered a part of the original answer. The whole is to be taken and construed together as one pleading, at least so far as one part may be explanatory of the other.11

§ 1144. Distinction between Amended Answer and Supplemental Answer.

In the earlier practice of the English chancery it was customary, in all cases where leave was granted to amend the answer, for the defendant to take it off the file, make the necessary amendment in the answer itself, and then refile it, or to put in an entirely new answer embodying the desired correction. This practice was not entirely satisfactory, inasmuch as the original answer no longer appeared in the record. To all intents and purposes, such answer was as if it had never existed, and it could not be used to qualify or explain the statements in the answer. This circumstance caused Lord Thurlow to adopt a different practice. Instead of permitting the defendant to take the original answer off the file, he would merely grant an order that the defendant have leave to file a supplemental, or additional, answer. By this means, the statements made in the original answer remained in the record, subject to the explanations and changes introduced by the supplemental answer. This practice was subsequently followed in all cases where the object of the amendment was to correct or vary the answer as to a matter of fact. 12 It thus appears that, by the later practice of the English chancery, amendments of the answer, in the strict sense of the term, are limited to errors or mistakes in matters of form. To cure erroneous statements of fact, or to

11 Gier v. Gregg (1847) 4 McLean be granted, as the plaintiff is entitled to 202, Fed. Cas. No. 5,406.

121 Dan. Ch. Pr. 339.

Leave to take an answer off the file and substitute a new one should rarely

have the admissions of the first answer kept on the record. Caster v. Wood (1831) Baldw. 289, Fed. Cas. No. 2,505,