
    Hughes vs. Phelps.
    
      October 19.
    By the fta. tute of 1802, the- defendant has.» ri/hc to amend his an. fwet before re* plication.
    The act of 1811, which dispenses with replication, changes the rule oí taking the aaftfcer as true where ihe*-© is no jepUcarion
    Bat does not take away the light ef the defendant to amend before ré* plication filed*
   OPINION of the Court, by

Ch. J. Boyce

We are of opinion that the court below erred in not permitting the plaintiff in error, who was defendant in that: court, to amend his answer.

The cause stood upon the bill and answer without replication, and in such a case the right of the defendant to amend his answer is expressly given by an act of assembly of 1802 — See 3 Littell, p. 20. This right, we apprehend, is not taken away or curtailed by the act concerning proceedings in suits at law and in chancery, approved January 30th 1811, (4 Littell 260, § 2) by which suits in chancery are permitted to stand lor trial’ upon bill and answer without replication.

Prior to the passage of the latter act, the complainant might, without replying to the defendant’s answer, have; set the cause for hearing ; but in such case, as the answer was not traversed, it would be taken as true ; whereas by the act of 1811 such a consequence would not follow : and this, it is believed, is the only effect which that act can have. It is true that the defendant also applied for a continuance of the cause, for which no reason is shewn ; but his application for that t© which he had no just claim ought not to hare produced a rejection of that to which he had by law a right. Had the amendment been wholly immaterial, the defendant could not have been prejudiced by its rejection, and would therefore have had no right to complain ; but it is apparent that the amendment was material, in as much as its object was to introduce an original paper evidencing the contract about which the controversy arose, a copy of which only had been made an exhibit in the original answer, to the use of which as evidence the comnlainant had filed a notice that he would except.

Exhibits may be pr¡>.ed viva v u ->n the hear ing m chancery —Acc. Barnes vs. Leet vol. 528*

There was indeed no deposition in the cause by which the genuineness or identity of the original paper was proven; but this circumstance does not shew that the amendment was not material: for if the paper had been made an exhibit, it might have been proven on the trial by viva voce evidence.

The decree must be reversed, the cause remanded to the court below and the defendant in that court have leave to file his amended answer.  