Vertner v. Griffith's Administrator , 1 Miss. 414 ( 1831 )

OPINION OF THE COURT. — By the

Hon. JOHN BLACK.

It appears that the bill in this case was filed 2d December, 1829; that on the 2d June, 1830, an answer was filed to a part of the bill, and plea to part.

The plea was set down for hearing, and argued, December term, 1830, Upon advisement, after argument, the court ordered the cause to be re-argued, as to the plea, at the present term. The complainant’s .solicitor now moves for leave to amend the bill, by inserting a charge that the settlement made in the orphans’ court, which was set up by the plea, was obtained by fraud; and states that he was not advised that it was material to make such charge in the bill, until the present term of the court.

An application to amend, is one addressed to the discretion of the court. And the court is very liberal in allowing amendments relative to charges •stated, in substance, in the bill; and will always permit new, or additional facts to be stated, more fully to explain or enforce them; but, when the application is to insert a new ground of equity, which will present the case in a different aspect before the court, and will require of the defendant a new and different defence, after answer or plea filed, and the cause 'set for hearing — and, more especially, after argument, — the court will permit it in very few, and especial cases; as, for example, when the matter was ■originally intended to have been insisted on, and was omitted through accident or mistake; or where knowledge of the facts upon which the amendment is predicated has lately come to complainant, and he presents his application in proper time thereafter. The court of chancery has ample power, at all times, to allow such amendments as may be thought necessary to bring the cause to a fair hearing on the merits; but must see that this privilege is not abused; 2 Mason, 367.

The complainant’s bill is to surcharge and falsify a settlement, made in the orphans’ court, on account of omissions and mistakes. He now wishes to insert a charge of fraud in passing the account. This would be, as it were, to admit a new cause of action, entirely different from what he intended originally to insistupon; and would give to the whole case a new •aspect. Besides, it must be recollected that this application is two years ■after filing the answer and plea. It comes too late.