Burton Baker v. Baldwin and Wife

Per Curiam.

We are of opinion that no alteration can be made in a bill after it has once been filed and made a part of the record, without leave. The rule is ; “ The plaintiff may amend his bill before the defendant has taken a copy thereof, without paying costs, but if he amend in a material point, after such copy obtained, he shall pay the defendants all costs occasioned thereby.” There is nothing said about obtaining leave in any part of the rule, yet it is plain from the latter part of it, which directs that costs shall be given to the defendants in case of a material amendment, that the whole matter was to be under the direction of the Court. After the bill is filed, no amendment should be made without authority of the Court. It appears in this case that leave was given to amend and the amendment made on the 1st of April,, and subpoena issued and a copy of the amended bill offered to the defendant’s counsel. We are perfectly clear that this exhausted the authority given by the Court. The plaintiff could not have a right to amend and take out subpoena and then amend again. Yet, the bill was further amended on the 19th and on the 30th of April. After these amendments, the plaintiff petitions for an injunction upon a promissory note. This note is not mentioned in the original bill nor in the bill as amended under leave of the Court. It is first stated in the unauthorized amendment of April 30th. But an unauthorized amendment is no amendment, and as an application for an injunction must be based upon the allegations of the bill, there is nothing here for us to act upon. The motion must therefore be dismissed ; and since the record has been altered without authority, it must be restored as it was before. And hereafter no motion to amend a bill will be entertained unless the substance of the amendment is set out in the motion.

Motion dismissed.