
    THE ADMINISTRATOR OF EDWARD S. BELL v. JOHN B. HALL AND HENRY B. STOLL.
    1. An application for leave to amend an answer, or file a supplemental answer, after depositions have been taken, should be listened to with distrust.
    2. The defendant had answered that he did not know of a certain agreement, until after the assignment to him of a certain judgment and execution. The execution had been levied on the goods of the defendant in the execution. The defendant in this court, who had put in his answer, had released the goods levied on from the lien of the execution. He moved for leave to amend his answer by stating that he did not know of the agreement until after he had executed the release, or for leave to file a supplemental answer to make that allegation. The motion was denied.
    3. What the affidavit on which an application to amend an answer, or file a supplemental answer, should, in general, state.
    The case made by the bill is this: In March, 1840, Henry B. Stoll and Edward S. Bell entered into partnership as merchants, at Stanhope, under the name of Stoll and Bell, and bought a stock of goods from Andrew A. Smalley, of that place, and gave to Smalley their notes for the price; one of which he assigned to Coursen and Woodruff, of New York. In March, 1841, the partnership of Stoll and Bell was dissolved, by mutual consent, by an agreement in writing, by which, among other things, it was agreed that Stoll should take the stock of goods on hand and the accounts and the effects of the partnership, and pay the debts of the partnership and release Bell therefrom. In May, 1843, Coursen and Woodruff recovered judgment against Stoll and Bell, on the note of Stoll and Bell so assigned to them, and caused an execution to be issued thereon, returnable to the August Term, 1843, of the Sussex Circuit Court. The execution was levied on the personal estate of Stoll, including his stock of goods and merchandise, and on his real estate; and was also levied on the personal and real estate of Bell. Stoll paid Coursen and Woodruff f 100 on the execution. The judgment and execution were then assigned by C. and W. to the defendant, John B. Hall. After this, Stoll continued to sell from the stock of goods levied on, and Hall gave to the sheriff directions to stay proceedings on the execution. Bell then informed Hall of the agreement made between Stoll and him at the dissolution, that Stoll was to pay the debts of the firm. Stoll afterwards sold and delivered to Andrew A. Smalley the whole stock of goods ; and Hall released to Smalley all claim thereon under the said judgment and execution. Smalley gave his notes to Stoll for the price of the goods, which notes were transferred by Stoll to Hall.
    Hall, in his answer, says that at the time of the assignment of the judgment and execution to him, he had no knowledge or intimation of any agreement between Stoll and Bell that Stoll was to pay the debts of the firm ; that he had never seen any such agreement, and had no knowledge of any, until some time after the assignment of the judgment and execution and the stay of the execution given by him to the sheriff.
    A replication was filed, and depositions have been taken on both sides.
    A motion is now made for leave to amend the answer of Hall, by inserting an allegation that he had no knowledge of the agreement between Stoll and Bell, till after the release given by him to Smalley was executed, or for leave to file a supplemental answer to make that allegation.
    
      
      Johnson and Haines, for the motion.
    
      Leport and P. D. Vroom, contra.
    
   The Chancellor.

By the present practice in England, an amendment of an answer is not permitted; leave must be obtained to file a supplemental answer. I am not aware that this rule has been adopted in this court. But, whether the application is for leave to amend the answer, or for leave to file a supplemental answer, if the allegation proposed to be super-added is material, and prejudicial to the complainant, and the application is not made until after depositions have been taken, it should be listened to with distrust. It is an application to the discretion of the court. An omission by plain mistake might, under favorable circumstances, be allowed to be supplied ; but, in general, the defendant should state by affidavit that, when he put in his answer, he did not know the circumstances on which he makes the application, or any other circumstances on which he ought io have stated the fact otherwise. 1 Smith’s Ch. Prac. 270; 4 Hen. and Munf. 405.

I think it would be a dangerous precedent, in this stage of the cause, to allow so material an amendment as that proposed to be made.

Motion denied.  