Trust Fire Insurance Co. v. Jenkins ( 1841 )

The chancellor decided in this case that where a complainant amends his bill after answer, the defendant has a right, in all cases, to put in a further answer or even a new defense to the amended bill, if he thinks proper; but that ■where the complainant waives the putting in of a further answer to the amendments, the defendant will not, upon a mere formal amendment, which in fact requires no further answer, be ^allowed costs of putting in anew answer to the amendments; and that if he elects to put in an entire new defense to the suit in such case, the costs of such new defense must abide the event of the suit. That where a complainant amends of course, if he intends to waive a further answer to the amendments he should, at the time he serves his amendments upon the defendant’s solicitor, give him a written notice that a further answer is waived; and that if the defendant does not, within the forty-days allowed to answer the amended bill, put in a further answer to the same, he will be considered as having elected to have his former answer stand as an answer to the bill as amended. That then if the defendant does not plead, answer, or demur to the amended bill within the proper time, or obtain an extension of the time to answer, the answer already put in will stand as the answer to the amended bill; and that the complainant must reply to same within ten days or be precluded. That upon an amendment of course after answer, if the complainant wishes a further answer to the amendments, he must enter the usual order, under the 24th Rule, that the defendant answer the amendments in forty days after service of a copy thereof. But that if the amendment is allowed by the order of the court, then the order itself should contain the waiver of the further answer; and the defendant should be directed to answer the amendments within the forty days; or that his former answer stand as the answer to the amended bill. Or, if an answer to the amendment is required, the order should contain the usual directions requiring the defendant to answer, or that the hill as amended be taken *as confessed, or that an attachment issue, etc. That in all cases of amendment, the complainant has a right to file a replication within the usual time after the amended bill is fully answered, unless prohibited by the order. Order to set aside order taking bill as confessed, etc., on payment of costs.