
    Kirby and Wife against Thompson and others.
    
      A second amendment of a bill was refused, after an answer by one „ defendant, and a plea by another, who was a surety, and the plea allowed, and the bill, as to him, dismissed, and a motion for a rehearing granted, and, after eighteen months had elapsed, since the first amendmei#, and no evidence of any new information since acquired, but the second amendment being substantially the same as the first, though more directly charging the defendants with fraud.
    MOTION for leave to amend the bill, by introducing material averments, charging the defendant, Thompson, as principal, with fraud, in procuring a release from the plaintiff, and charging the defendant, Taylor, who is sued as surety for the defendant, Thompson, with being privy to the fraud.
    The answer of the defendant, Thompson, was filed on the 1st of August, 1820, and a replication was filed th'e 29th of September, 1821, and a rule to produce witnesses entered by the defendant on the same day. The plea of the defend ant, Taylor, was filed ón the 22d of August, 1820, and set down for hearing; and after the plea was so set down for hearing, but before replication was filed to the answer, the plaintiffs, on the 3d day of November, 1820, moved for leave to amend their bill, which was granted, and the amendment prayed for, concerned the same matter, in substance, now sought to be introduced, though not with the same direct averment of fraud, respecting the release. The cause was again set down for argument, upon the plea, in May term, 1821, and argued, and the plea allowed, and the bill, as to the defendant, Taylor, ordered to be dismissed, and a rehearing was, afterwards, in November term, 1821, applied for and granted; and the cause remained open for rehearing.
    
      
      W. Duer, for the motion.
    
      Henry, contra.
   The Chancellor.

The plaintiffs do not state any sa-" tisfactory reason why the matter to be introduced by the amendments was not stated before. An amendment to the bill was granted eighteen months ago, and six months before the plea was argued. The merits of the plea have' been argued and decided upon, and the rehearing was granted for the sake of a review of the pleadings, as they stood. It is believed, there is no case that allows an amendment to the bill, under such circumstances, and at so late a stage of the cause. The Court, says Lord Eldon, (3 Vesey & Beam. 147.) very rarely allows a re-amendment of an amended bill. The plaintiffs do not state any material information received since the former application to amend, and that omission is deemed fatal, The practice of the English Exchequer is settled against such an indulgence, after so much delay, without good cause shown for the delay ; and that Court requires not only that the amendments should be material, but that the circumstances should have come to the knowledge of the plaintiffs subsequent to the time of filing the replication. (Milward v. Oldfield, 4 Price, 325. and Turner v. Chalwin, 1 Fowler's Ex. Pr. 112.) The same doctrine was declared by this Court, in Brown v. Ricketts, and in Thorn v. Germand, (2 Johns. Ch. Rep. 425. 4 Johns. Ch. Rep. 363.) The bill cannot, in any case, in the English Chancery, be amended, after the cause has been set down for hearing upon the plea, without the payment not only of the 20s.,, but of the full costs of £5. (Dickens, 358. 1 Vesey, jr. 447.) The case of a demurrer is quite analogous ; and there, after a demurrer to the whole bill, allowed upon argument, it is deemed irregular to amend, and the cause is out of Court. (2 P. Wms. 300. and Notes. Dickens, 67.) This is the regular course, though the Court' may, in its discretion, “ set the cause on foot again.” (6 Vesey, 778,779. 11 Vesey, 72. Cooper’s Tr. 115.)

Here has been great delay, and an amendment once granted, and the cause heard on the plea, and a decree made upon the merits of that plea, and a rehearing applied for, without any suggestion of a defect in the bill; and here is a case in which the amendment is to charge a surety, and no evidence whatever that any new information has been acquired since the plea and the answer were filed. The motion must be denied, with costs.

Motion denied.  