Reviving in. all the circumstances of the bill, and a true bill for perjury junction. supersedeas, to stay all further proceedings, on the judgment and execution aforesaid, until a final decision shall be had on the appeal. "Neither the fact, that Carpenter and Hanrick obtained the judgment at law, as administrators of an unsettled estate, or any other circumstance connected with the case, is deemed sufficient to distinguish it from others, that often occur. "The simple questions raised by the petition, are-1st. After the dissolution of an injunction and the dismissal of the bill, has an appeal from the decree, on the terms prescribed by statute, the effect to revive and continue the injunction? 2d. If it has not, of itself, is it competent and proper for this court, to award a supersedeas of the execution at law, on the grounds assumed by the petitioner ? "The statute authorizes an appeal from any final judgment or decree of any circuit court, upon the appellant's entering into bond and security, "for prosecuting the same, with effect, or performing the judgment, sentence or decree, which the supreme court shall pass or make thereon," provided the cause be decided against him. It is clear, that the appeal bond thus required, would not bind the security, for the amount of the judgment, enjoined, in the event of an affirmance of the decree; nor can the appeal have the effect to discharge the security, in the injunction bond. "The only power which chancery can exercise over a judgment, is to per petuate the injunction in whole or in part; or to dissolve it altogether: it can render no decree for the debt, or any part of it; nor for damages on the judg ment, in the event of an affirmance of the decree. The former is not subject to legal revision, either for reversal or affirmance; consequently, the appeal bond can only bind the security for the costs in chancery, if decreed against the appellant. "But, it is insisted that the injunction bond sufficiently insures the ultimate payment of the judgment at law, if not relieved against: also, that, by statute, "whenever an injunction shall be dissolved, damages, after the rate of six per cent. shall be added to the amount provided, the court shall be of opinion, that the injunction was obtained for delay." "As respects the six per cent damages, it is sufficient to say, whenever such may be decreed, they would become identified with the judgment at law, as a part thereof, and the security for the injunction, would be no less bound for the damages, than for the original amount of the judgment and interest thereon. As to the payment, though security has been given, it was entered into with reference to the decree of the circuit court, either dissolving or perpetuating the injunction, after the dissolution has been decreed, if the effect of the appeal would be to revive the judgment, the applicant ought from analogy to other cases, to have been required to give new security for the debt thereby farther enjoined. Had this been done, then, according to the principle recognized by this court, in the case of Winston et al. v. Rives, the security in the injunction bond would have been discharged, and the subsequent responsibility have rested on the new security taken on the appeal. Without any security it would not be contended, the appeal could have been granted, or that a writ of error would have operated as a supersedeas. Then can it be supposed, for a moment, that the Legislature intended that a bond for a nominal amount, one to secure the costs in chancery, should operate as a supersedeas of the judgment for any amount, however large. Such a course would not only endanger the debt, from the possible insolvency of the former security, during committed in that answer had been found by the grand Reviving injury.(a) junction. (a) Clapham v. White, 8 Ves. 35. the revived existence of the injunction, but also produce great injustice to "In Green v. Winter, it was held that an appeal in the first instance, stays all proceedings on the matter appealed from; and if the party wishes to proceed, notwithstanding the appeal, he must apply to the chancellor for leave; and to give or refuse it, is a matter of discretion, according to the circumstances. The opinion of the chancellor further remarked, that the rule now in England, is, that an appeal does not stay proceedings, unless by the special order of the House of Lords; that according to the more ancient practice there, it had that effect unless otherwise ordered; that he considered the practice in New York to have been according to the former practice in the English Chancery; and that it was so established by several rules adopted by that court; by one of which it was expressd, that an appeal should prevent the issuance of process upon the decree. It was there also said, that the difference between the English practice and that of New York, was, that by the former, the party must apply for an order to stay the proceedings; but in the latter, the adver sary must apply for leave to proceed. It will be observed, however, that the practice in the courts referred to, is governed by rules of their own adoption, which are different from any we have, or are competent to declare; our statutes have regulated the right, also, the effect of appeals and writs of error. But what is most material to be noticed, is, that the case of Green v. Winter was an original bill for an account and settlement against a trustee; such was the object of the decree appealed from, and the chancellor considered it a decree from which an appeal could be taken. From this it sufficiently appears, that that case only maintains the principle, that an appeal lies from a decree rendered in an original bill, and when legally prosecuted, it suspends the execu tion of such decree; that such is the correct practice, under our law, also, I have no doubt. But the question is essentially different, whether an appeal from a decree dismissing an injunction bill and dissolving the injunction, can revive the injunction. petitioner, which if "One case, it is true, has been cited on the part of the considered sound law, would be an authority in his favor. Turner v. Scott and another, (5 Rand. 332,) where the court of appeals of Virginia, held, that a dissolved injunction was revived by an appeal taken in the Amendment. *After the answer has come in, the plaintiff frequently court of chancery; and that it was improper in the appellee, to take out an execution, so long as the appeal was depending. The force of that decision, however, is much weakened from the circumstance, that it is irreconcilable with the principles of previous decisions of the same court; that no authorities appear to have been cited by the counsel or the court; and that it seems not to have been argued or solemnly considered. "In the previous case of Epps v. Thurman, (4 ib. 384,) an injunction to a judgment at law had been dissolved, and the bill dismissed. From this decree the court of chancery allowed Epps, the complainant, to appeal, on his executing a bond, in the penalty of two hundred dollars, with one Jordan as his security; the condition of the appeal bond was, that the appellant should prosecute the said appeal with effect, or should perform the same, and well and truly pay all such damages and costs as should be awarded against him, by the court of appeals, in case the said decree should be affirmed. A rule having been granted against the appellant, to show cause why he should not give other security for the payment of the judgment enjoined, the court of appeals referred to the statute prescribing the terms on which appeals were authorized to be granted; showing that bond was required, in a reasonable penalty, with condition to satisfy and pay the amount recovered in the court appealed from, and all costs, and to perform, in all things, the said decree, or final order, in case the same should be affirmed. Under that statute, the authority to take bond, on appeal, for the amount of the judgment enjoined, was at least equal to the authority of our statute. The court of Virginia said, 'the bond thus to be given is to have respect to what the appellant was bound to do, or what was recovered from him by the decree of the court appealed from.' Further, they said, 'in the case before us, there was nothing in the decree of the chancellor, which bound the appellant to pay the judgment at law; there was nothing recovered from him but costs. The appellant had a right to appeal, on the terms which are prescribed by law.' This case was argued and appears to have been maturely considered by the Virginia court. "A similar principle was recognized in another case, in the same court. M'Kay v. Hite's ex'rs, 4 Rand. 564. There the question was, whether a party appealing from an order, dissolving an injunction, was bound to give security for the payment of the debt, as on the grant of an original injunction? The court of appeals said, that question had been solemnly considered by the court, and it had been decided that such an appeal must be allowed, on the appellant giving security merely to perform the decree of the inferior court, and to pay costs and damages awarded there, if the decree should be affirmed. "These are the principles which are considered irreconcilable with the doctrine, that an appeal from a decree, dissolving an injunction and dismissing the bill, on giving such bond as is required by the statute of Virginia or this state, is entitled to the effect of a supersedeas of the judgment, which had been enjoined. "If the Virginia court considered the principles of these decisions consistent, (which is doubtful,) this court cannot so regard them. "Several cases decided in New York, are more decisive and satisfactory on this point. In Hoyt v. Gelston, (13 Johns. 139,) the supreme court held, that an injunction could not be revived by an appeal from a decree dissolving it. In explaining the principles of that decision, the court says-'By the present rules in the court of chancery, certain masters, designated by the chancellor, finds it expedient to amend the bill. [1] This naturally leads Amendment. are authorized to grant injunctions, and which are binding until dissolved by him.' That, 'in the case before them, the injunction had been dissolved, from which order there was an appeal; and it is now urged that this appeal suspends all proceedings in this court, as much as if the injunction was still in force. To give such effect to an appeal from an order dissolving an injunction, would be very mischievous in practice, and serve as a great engine of delay. We must consider the case now in this court, as if no injunction had ever issued,' &c. 'It is enough for us, that there is no existing injunction.' "The court, in the same case, admitted that an appeal would lie, by the statutes of that state, from a decree dissolving an injunction; or even from a refusal to grant one, on the first application; but that the appeal could not, in either case, tie up the proceedings at law. "Under our statute, authorizing appeals, only from final judgments or decrees, this court has often held that an appeal will not lie, from a decree which merely dissolves the injunction; but, according to the opinion of the court of New York, if the right of appeal be admitted, it cannot suspend the proceedings at law, by reviving the injunction. "The case of Wood v. Dwight, (7 Johns. Ch. Rep. 295,) is also fully in point. There, the question was, whether an appeal from an order dissolving an injunction, staying an execution at law, had the effect to revive the injunction? "The chancellor said-'If the injunction could be revived by the mere act of the party in filing an appeal, it would be giving to him not only a power of control over the orders of the court, but of creating an injunction.' "He referred to the opinion of the supreme court of the United States, in Young v. Grundy, (6 Craun. 51,) as an authority that no appeal would even lie upon an interlocutory order, dissolving an injunction. He also remarked, that whether an appeal can be sustained, is a question for the court of errors; but supposing it can be sustained, it is impossible that a process that is duly discharged, and functus officio, can be revived by the mere act of the party. 'How, (says he) could this court undertake to enforce the process, and punish contempts of it, in the very face of the order dissolving it: when a process is once discharged and dead, it is gone forever; and it can never be revived, but by a new exertion of judicial power.' "2. From the view taken of the first point, it is sufficiently evident that this court does not conceive itself authorized, on the ground of the supposed illegality in its issuance, to award a supersedeas of the execution at law, or do otherwise than deny the prayer of the petitioner." If an injunction be dissolved, and the decree be appealed from, the injunction is thereby kept in existence. Talbot v. Morton, 5 Litt. 326. [1] The bill may be amended for the correction of mistakes, or for the suppression of impolitic admissions in the original statements, or for adding new parties, or for inquiring into additional facts, or for the further investigation of facts which have been only partially disclosed, or for putting in issue new matter stated in the answer. Stephens v. Frost, 2 Young & Coll. 297. Milligan v. Mitchell, 1 Mylne & Craig, 433, 442; Gresley on Ev. 21, 23; Hare on Discov 22, 24. If the plaintiff has omitted to state any matter or to join any person as party to the suit, which he ought to have done, he may supply such defect by amending his bill. Mitf. Eq. Pl. by Jeremy, 55, 325, 326. Jones v. Rose, 4 Hare, 52. Or if, after the defendant has put in his answer, the plaintiff thereby obtains further information as to his case he may amend his bill accord Amendment. to the consideration of the question, how far an injunction is affected by amendment? ingly. Mitf. Eq. Pl. by Jeremy, 55, 325, 326. And if any necessary parties are omitted, or unnecessary parties are inserted, the court, upon application, will permit the proper alteration to be made upon terms, according to the nature of the case. Ib The time for allowing amendments is said to have been borrowed from the civil law, according to which the plaintiff, by the leave of the court, might add any new positions to the libel before the replication was filed; for the replication was the contestation of the answer. And after the answer was contested there could be no new positions; but the parties went immediately to the proofs. Story's Eq. Pl., sec. 889. No amendment is generally allowable in equity, after the parties are at issue upon the points of the original bill and witnesses have been examined. Mit£ Eq. Pl. by Jeremy, 55, 325; Cooper's Eq. Pl. 333. Goodwin v. Goodwin, 3 Atk. 370. Jones v. Jones, 3 Atk. 110, 111. Stafford v. Howlett, 1 Paige's Rep. 200. As a general rule it is not allowable to introduce into the bill, by amendment, any matter which has happened since the filing of the bill. Cooper's Eq. Pl. 333. Candler v. Pettit, 1 Paige's Rep. 165. Brown v. Higdon, 1 Atk. Rep. 291. When the plaintiff discovers the necessity of new parties, the plaintiff may add them at any time by leave of the court, limiting his amendment to that purpose. Cooper's Eq. Pl. 333; Mitf. Eq. Pl. by Jeremy, 325. Leave has also been given to amend the prayer of the bill under particular circumstances after the proper time has passed; as where the prayor has been omitted by mistake, or the prayer for the proper relief has not been made. Cooper's Eq. Pl. 333; Mitf. Eq. Pl. by Jeremy, 325, 331; Story's Eq. Pl., sec. 887. Motions to amend the pleadings in a cause, either at law or in equity, are always addressed to the sound discretion of the court; and this legal discretion seems to acknowledge no other limits than those which are required by the purposes of justice, and for the restraint of gross and inexcusable negligence. But a defendant in equity will not be permitted to amend his answer after the opinion of the court and the testimony have indicated in what respect it may be modified, so as to effect his purpose. Calloway v. Dobson, 1 Brockenbrough, 119. Amendments can only be granted when the bill is defective in parties, or in prayer for relief, or in the omission or mistake of a fact or circumstance connected with the substance, but not forming the substance itself, nor repugnant thereto. The latter part of this principle applies to all pleadings in equity. Verplank v. The Mercantile Ins. Co., 1 Edwards, 46. A court of equity may allow an amendment of a bill, after deciding against the bill, and allowing a demurrer on argument. Hunt v. Adm'rs of Rousmaniere, 2 Mason, 342. Amendments of the bill should be marked and distinguished, that they may be easily seen by the defendant. Luce v. Graham, 4 Johns. Ch. Rep. 170. An injunction bill will not be amended unless the proposed amendments are distinctly stated to the court, and verified by the oath of the complainant; nor unless a sufficient excuse is rendered for not incorporating them in the original bill. Rodgers v. Rodgers, 1 Paige, 424. A bill cannot be amended by inserting therein facts known to the complainant at the time of filing the bill, unless some excuse is given for the omission. Whitmarsh v. Campiell, 2 Paige, 67. The eleventh rule of the court of chancery of New York, allowing the plaintiff to amend his bill of course at any time before answer, plea, or demurrer |