which from the causes of demurrer at the time of amendment shall not come within the former part of these rules, the complainant's right to amend, and the terms on which it may be done, shall be in the discretion of the court, and may be ordered at any time before a decree allowing the demurrer.(j)

A replication cannot be withdrawn for the purpose of amending the bill, unless the plaintiff shows the materiality of the amendments, and why the matter proposed to be introduced as an amendment was not before stated in the bill.(k)

Where a bill on demurrer is dismissed for want of equity on the merits of the case as stated, leave to amend the bill will not be granted.

In Chancery.

Between

A. B. Complainant,
and

C. D. Defendant.

day

E. F. of the city and county of New-York, being Affidavit. duly sworn, doth depose and say, that on the of last, he served personally upon G. H. the solicitor for the defendant in the above cause, the notice of motion whereof the annexed is a true copy.

Take notice, that this Honorable Court will be Notice of mo moved on

the

day of

next, at the tion. opening of the court, or as soon thereafter as counsel can be heard, for leave to amend the bill of the com

plainant in this cause.

1816.

Dated the

day of

Upon reading and filing an affidavit, E. F. solicitor Order of the for the complainant, of the due service of notice of mo- court.

day of

tion for the
that the com-
plainant in the above cause have leave to amend his
bill, and on motion of Mr.

his counsel, it is ordered, adjudged and decreed, and his Honor the Chancellor doth accordingly order, adjudge and decree, that the said complainant have leave to amend his bill upon the payment of costs.

Motions for the amendment of a plea.

A plea may be amended where there is a slip, if the material grounds of defence appear sufficient, but not otherwise.(1)

See the proceedings ante in relation to the amendment of the complainant's bill, page 212.

Motions for the amendment of an ansner.

If the defendant discerns that he has made a mistake or slip in his answer, he may amend, although there should be no exceptions. If it be a small matter he may amend it without notice, but if it be in a material point he must give notice, and the court sometimes grant an order upon an affidavit that the defendant was surprised and in payment of costs.(m)

Amendments are granted only where there is some defect as to parties, or some omission or mistake of a fact or circumstance connected with the substance of the case, but not forming the substance itself, or where there is some defect in the prayer for relief.(n)

The 11th rule of June, 1806, allowing the plaintiff to amend his bill of course, at any time before answer, plea or demurrer filed, does not apply to the case of a bill sworn to by the plaintiff as an injunction bill.(0)

See the proceedings ante relative to amendment of the complainant's bill, page 212.

p. 143.

(7) Parker 12. Bro. Ch. Rep. vol. 2. and others, 1 Johns. Ch. Rep. 184. (0) Parker & Bliss v. Grant and others, 1 Johns. Ch. Rep. 434.

(m) 2 Mad. 287.

(n) Lyons and Brockway v. Talmadge

Motion for an amendment on a suggestion of the death of one of the complainants.

By the seventh section of the act of the 10th of April, 1813, (a) it is provided that no suit in Chancery shall abate by reason of the death of any one or more of the complainants or defendants, but the same shall survive to the surviving complainants, or against the surviving defendant, if the cause of action will admit of survivorship, and in such case, if the death of such person or persons shall be satisfactorily suggested and shown to the court, the said action shall proceed against the surviving defendant or defendants, or in favor of the surviving complainant or complainants; but if the cause of action will not admit of the doctrine of survivorship, but other persons shall become parties in interest, then and in such case, the action shall abate only as to the person or persons so dying as aforesaid, and the surviving parties may proceed without reviving the suit against the representatives of the deceased or any other person who has become interested therein by reason of such death.

But no order or decree of the court shall bind any person not a party thereto; but in case the complainant shall incline to make the representatives of any deceased party, or any other person interested in consequence of such death as aforesaid, a party to such suit, no bill of revivor or subpoena ad revivandum, shall be necessary, but the court may order and direct the suit to stand revived, which order shall be served on the adverse clerk, and unless the representatives of the deceased party, or the parties interested by reason of such death, shall, within eighty days after such service, (a) 1 N. R. L. 488,

1

appear and put in their answer, or signify their disclaimer of the suit and the matters in controversy therein, the complainants may notice their appearance to be entered, and in such case the answer of the deceased party shall be deemed the answer of the representatives or other person interested by the death of such person: Ana further, in case the complainant shall die pending any suit wherein the cause of action shall not survive, his lawful representatives, and other persons, interested by his death, may on affidavit thereof, and on motion in open court, be inserted as complainants in the suit, and be permitted to amend the bill as his interest may require, to which amendment the defendant shall be compellable to answer, and the action shall proceed to issue and trial as in ordinary cases; and in case any such person shall not in eighty days after such death of the complainant, cause himself to be entered as complainant as aforesaid, then the surviving complainant (if there be any,) may insert his name as a defendant in the suit, and may proceed as before directed, where the representatives of a deceased defendant are made parties. (See the proceedings, ante, for the amendment of the complainant's bill, page 212. Bills of revivor, 42.)

Motions for dismissing a bill for want of prosecution— affidavit-notice of motion-certificate and order of

the court.

After the elapse of three terms without any proceeding in a suit after the filing of a bill, the practice in England is, to obtain an order of court for its dismissal for want of prosecution.(a) But by the 12th

(a) De Graves v. Lane, 18 Ves. 201.