
    Selden v. Vermilya and others.
    April 19 ;
    May 8, 1847.
    An order to amend the bill, obtained before appearance, is regular and valid, although the defendant appears before the amendments are actually prepared anS filed.
    Where an injunction bill is amended on leave, the injunction continues in force, although the order granting leave, is silent on the subject.
    Motion to set aside amendments to an injunction bill. The bill was filed and an injunction issued thereupon, on the 25th day of February 1847. On the 3d of March, none of the defendants having appeared, the complainant on motion ex parte, obtained an order granting him leave to amend his bill in certain particulars specified. The order contained no clause to the effect that it should be without prejudice to the injunction, and it did not allude to that process. On the 11th day of March, the amendments duly verified were filed with the clerk. In the mean time, on the fourth day of March, the defendants entered their appearance and served notice of the same. It was claimed by the defendants, that the amendments made, altered materially the case presented by the bill; and that they were irregular, as having been made after appearance and without notice of the application. And that if regularly made, the injunction was thereby dissolved.
    
      A. H. Dana, for the defendant Boyd,
    cited 1 Paige, 424; 2 Ves. & B. 102; 2 Simons, 85; 2 Y. & Jerv. 181, and the New Orders in Chancery in England, adopted in 1840.
    
      
      D. B Ogden, for Yermilya and others, referred to Rule 43 ; 1 Sira. & St. 433; 2 Simons, 488.
    P. Y. Cutler and E. Sandford, for the complainant,
    cited 2 Barb. Ch. Pr. 210; 1 Dan. Ch. Pr. 529, 531; 1 Madd. R. 449; 3 Merivale, 465 ; 1 J. C. R. 433.
   The Vice-Chancellor.

The objection that the amendments filed were inconsistent with the matters of the original bill, is not well founded.

Next, were they irregular, because not filed until after appearance, although allowed before ? I think they were not. The order for amendment was regular, indisputably; and it would be unreasonable to deprive the complainant of the benefit of his order, by the accident, as it were, of the defendant’s entering his 'appearance before the amendments could be prepared and filed-The difference between the next day after the making of the order, and eight days after, is not in this respect material. If irregular to file them on the 11th, it was equally so to file them on the 4th of March. By the English practice since 1828, the complainant is restricted to make his amendment within three weeks; and in injunction cases, by the orders of May 1839, the amendment is to be made in one week after the date of the order. The order in this case, contained no limitation as to time, and the delay was not unreasonable. If a complainant do not proceed diligently on obtaining such an order, there is no difficulty in the defendants acting upon the original bill.

The remaining question is the effect of the order upon the injunction. The point was somewhat unsettled in the English practice, until the orders of May 1839 rendered it no longer important, whether on amending the bill after the common injunction had issued, before answer, by an order of course, it was without prejudice to the injunction. But the practice there was clearly established, that on a special injunction, when an order to amend was obtained, it was without prejudice to the injunction. (1 Daniell’s Ch. Pr. 527, 531; Drewry on Inj. 390.) We have nothing like the common injunction in our practice, and-1 think with Mr. Hoffman, that with us an injunction does not drop on amending the bill, although the order granting leave may be silent on that subject. (1 Hoff. Ch. Pr. 301.)

The respective motions must be denied with $8 costs on each.  