as formerly, take any chances by replying to the pleas and thus taking issue thereon. Pearce v. Rice, 142 U. S. 28, 42, 12 Sup. Ct. 130, 35 L. Ed. 925; Horn v. Dry Dock Co., 150 U. S. 610, 14 Sup. Ct. 214, 37 L. Ed. 1199; Elgin Wind Power Co. v. Nichols, 12 C. C. A. 578, 65 Fed. 215. The case of Daniels v. Benedict, 38 C. C. A. 592, 97 Fed. 367, is not opposed to the cases in the Supreme Court, because the plea of separation in that case covered the whole equity of the bill. The right to plead or answer to the amended bills: As stated above, complainants amended the bills by leave of court by joining as a party John B. Parsons, of Philadelphia. He is brought in as one of the represented defendants under the first paragraph of the bill, making Henry G. Foreman and others parties in their own right and as representatives of the owners of bonds, who are not joined because they are so numerous and their names are unknown, the evidence having developed that Mr. Parsons was from January 1, 1894, to January 12, 1897, vice president and general manager and a director of the complainant companies, and wrongfully co-operated with Yerkes to carry out the illegal purpose charged in the bill, the said Yerkes having admitted into said scheme and into a participation thereof the said Parsons, and that Parsons received a large number of shares of several of the constituent companies, and later received in lieu thereof 8,455 shares of the stock of the Consolidated Company, and on April 1, 1900, surrendered said shares to the Equitable Trust Company, and received in lieu thereof 380 of the Consolidated bonds, which said bonds said Parsons still owns. Such amendments having been made, certain of the defendants now move for leave to plead, answer, or demur anew to the bills, insisting that any amendment to the bills, however unimportant, gives all the defendants the right to plead as fully as if they were pleading to the original bills, even to the extent of putting in an entirely new defense. Counsel for complainants, on the other hand, submits that the defendants have only the right to plead, demur to, or answer the new matter contained in the amendments and that no substantial change was made in the bills; Parsons having been made a quasi party by paragraph 12 of each of the original bills, charging that Yerkes admitted into his scheme and a participation of the profits other officers and directors of the North and West Companies, and that such persons received such profits in the shape of shares, first of the constituent companies, and subsequently of the consolidated companies, but that complainants are unable to ascertain the names of such persons, and ask that, when discovered, they may be made parties defendant. The practice in respect to the right of a defendant, who has answered, to replead, demur, or answer anew after the bill is amended, seems to be quite unsettled. There is nothing in the equity rules adopted by the Supreme Court which throws any light upon the question. This being the case, the practice laid down in Justice Bradley's note to Thomson v. Wooster, 114 U. S. 104, 112, 5 Sup. Ct. 788, 29 L. Ed. 105, applies. Rule 90 of the equity rules provides as follows:

"In all cases where the rules prescribed by this court or by the circuit court do not apply, the practice of the circuit court shall be regulated by the present practice of the high court of chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local con

veniences of the district where the court is held, not as positive rules, but as furnishing just analogies to regulate the practice."

In the note referred to Justice Bradley says that reference is made by this rule to the first edition of Daniell's Chancery Practice, published in 1837, as being, with the second edition of Smith's Practice, published the same year, the most authoritative work on English chancery practice in use in March, 1842, when the federal equity rules were adopted, supplemented by the general orders made by Lords Cottonham and Langdale in August, 1841. Such rules and orders, Justice Bradley says, exhibit that "present practice of the high court of chancery in England," which by the ninetieth rule was adopted as the standard of equity practice in cases where the rules prescribed by the Supreme Court or the Circuit Court, do not apply. The learned justice further says that the later editions of Mr. Daniell's work have been much modified by extensive changes introduced by the English orders of later date.

The rule quoted by counsel is found in the first edition of Dan. Ch. Pr.* 519 (307), and is as follows:

"It may be observed here that any amendment of a bill, however trifling and unimportant, authorizes a defendant, though not required to answer, to put in an answer making an entirely new defense and contradicting his former answer."

Mr. Daniell cites only one case, and that unreported, decided by Vice Chancellor Shadwell. In later editions to his work, however, he cites the case of Bosanquet v. Marsham, 4 Sim. 573, decided October 31, 1831, also a decision by Vice Chancellor Shadwell, who used the language quoted from Mr. Daniell. In the same edition of Mr. Daniell's work (*509 [301]) he lays down the rule as follows:

"But, although the original and amended bill constitute but one record, and are so considered at the hearing, the defendant, in case he has answered the original bill, ought to answer the amendments only." Citing only a practice work.

In the Bosanquet Case, above referred to, a general demurrer to a bill was overruled. Defendant then demurred ore tenus for want of parties, and that demurrer was allowed, with leave to plaintiff to amend. The bill was then amended by adding a party and charging him to be out of the jurisdiction, but the case made, and the relief prayed, remained the same as before. Defendant then put in a general demurrer to the amended bill. Plaintiff objected that defendant could not demur twice to the same matter. "The Vice Chancellor [Shadwell] said that after a defendant has answered a bill, if any amendment, however trifling, were made in it, it would be entirely competent to the defendant to put in another answer, and to make an entirely new defense; and that he thought the same rule applied to a demurrer." It will be noticed that this case was that of a new demurrer, and the Vice Chancellor refers to what he regards as the existing practice applying to an answer.

In Ellice v. Goodson, 3 Myl. & Cr. 653, decided in 1838, Vice Chancellor Shadwell had allowed a demurrer which had been interposed to a bill amended after answer. The amendments were considerable

in

in extent, but did not require any new engrossment of the bill. They consisted partly in expunging matter which stood in the original bill, and striking out the names of some defendants who turned out not to be interested in the controversy. The original bill was filed on behalf of the plaintiff and other specialty creditors, but by the amendments it was converted into a suit on behalf of the creditors generally. The Vice Chancellor allowed a demurrer to be pleaded to the amended bill and held the demurrer good. Lord Cottonham held that the answer standing upon the record operated to overrule and set aside the demurrer. He says that the defendant cannot justify repeating by his answer to the amended bill what he has stated in answer to the original bill, for it would clearly be impertinent for him to do so. He may troduce anything qualifying his former statements, but he cannot substantially repeat what he has said in his former answer, because to do that there is already an answer, and all he has to do is to complete the record. He can no more demur to that which he has before answered than he can answer to it. If the amendments make an entirely new case, the original bill would go out, and the answer would follow the same fate. The rule laid down in Ellice v. Goodson was changed by Order in Chancery No. 37, adopted in August, 1841, found in 1 Craig & Phillips, Rep. 379, and will be found also in Bates' Federal Practice. This rule provides that no demurrer or plea shall be held bad. and overruled upon argument only because the answer of the defendant may extend to some part of the same matter which may be covered by such demurrer or plea. These citations show, I think, that the practice in England was not clearly settled at the time of the adoption of the federal rules of equity practice in 1842.

Counsel for defendants, however, cite the cases of Blythe v. Hinckley (C. C.) 84 Fed. 228, 244; Nelson v. Eaton, 13 C. C. A. 523, 66 Fed. 376; Fisher v. Simon, 14 C. C. A. 443, 67 Fed. 387; French v. Hay, 22 Wall. 238, 22 L. Ed. 854. In Blythe v. Hinckley defendants put in a cross-bill which was never answered, and then took a decree pro confesso for want of an answer. After taking this decree, they amended their cross-bill twice, not introducing new matter, but withdrawing allegations as to practice in another judicial district, and striking out the name of one of the original defendants in the cross-bill. Judge Morrill lays down the rule quoted from Daniell, but it is evident that the question here presented was not before him in any way. The defendants, not having answered at all, were, of course, entitled to answer fully the amended cross-bill. In Nelson v. Eaton, above cited, no answer of any kind was ever put in, but after a decree pro confesso was entered, and after defendants had moved to vacate the decree and either dismiss the bill for want of jurisdiction or for leave to answer, the court allowed complainant to amend his bill to show jurisdiction. Whereupon he denied the defendant's motion, and entered a final decree for the complainant. It was held on appeal that the defendant should have been allowed to answer. In this case, also, the question here involved was not presented. Fisher v. Simon, above cited, was also a case where no answer was ever put in. The court entered a decree supposing it to be interlocutory which was in fact final, and when his attention was called to it set aside the decree. After

the decree had been set aside complainant amended the bill so as to show the jurisdiction of the court, and the defendants were allowed to plead, whereupon plaintiff appealed. The question here pending was in no manner involved in the case. In French v. Hay, also above cited, complainant filed an amended bill entirely changing the case as to two of the defendants, attempting to charge them with the amount of certain rents due from another defendant who was insolvent. These defendants never appeared to or answered the amended bill. A decree pro confesso was entered against one of them for the value of the rents. Such defendant moved to set aside the decree, whereupon it was vacated in part, but left standing so as to charge him with the rents. He then answered as to the whole case. The court say that the general rule is that an amendment to the bill gives the defendant the right to answer as if he had not answered before. In view of the facts in the case, however, it is apparent that it is not authority on the question here presented. The language of Mr. Daniell above quoted has been repeated in a number of cases in the state courts, but there are many cases holding to the rule contended for by counsel for complainants, to the effect that a defendant has only a right to answer the new matter set up by amendment to the bill. It seems clear that such rule must apply to a case like this, where the complainant by the amendment simply brings in a represented party defendant, a person who was referred to in the original bill as unknown. Much confusion would result from adopting a rule that every time the complainant in an omnibus bill brings in a represented party complainant or defendant all the other defendants who have answered have the right to plead, answer, or demur anew, either contradicting their original answers or pleas or setting up any new defense. The following cases seem to sustain the rule contended for by defendants: Bowen v. Idley, 6 Paige (N. Y.) 46; Burney v. Ball, 24 Ga. 505. In Thomson v. Maxwell Land Grant Co., 3 N. M. 269, 6 Pac. 193, a bill was amended by eliminating certain portions, thus making an entirely new case. It was held that defendant might put in an entirely new answer, approving 1 Dan. Ch. Pr. 409, to the effect that the amendment to a bill after answer does not authorize a defendant to demur for any cause to which the original bill was open, unless the nature of the case is changed by the amendment. The court allowed the defendant to put in a new answer, notwithstanding that the Supreme Court of the United States had, on reversing a former decree in the same case, given leave to the defendant to answer any new matter contained in the amended bill. See, also, Bauer Grocery Co. v. Zelle, 172 Ill. 407, 50 N. E. 238. The case of Casserly v. Waite, 124 Mich. 157, 82 N. W. 841, 83 Am. St. Rep. 320, contains a satisfactory discussion of this subject, and holds that a purely formal amendment adding a new party defendant after answer, but in no way changing or affecting the rights of the answering defendant, does not authorize the latter to file an amended answer; his original answer having covered the particular defenses to the or iginal bill. See, also, Keene v. Wheatley, Fed. Cas. No. 7,644, 9 Am. Law Reg. 33, 7 Leg. Int. 349, 4 Phila. 157, 5 Pa. Law J. Rep. 501. I think the motion of the defendants for leave to demur or plead or answer fully to the bills as amended should be denied.

The other motion is that the complainants be compelled to annex to their bills the side agreement fully set out above. This motion is made upon the ground that the bills, having stated that an agreement existed, and annexed that part of the agreement consisting of the amended leases and the tripartite agreement relating to the stock of the North and West Companies, ought to be compelled to complete the statement by attaching the rest of it. On this motion I adopt the practice stated by Judge Wheeler in Phelps v. Elliott (C. C.) 26 Fed. 881, to the effect that the practice under a state Code, to require the plaintiff to make his complaint more definite and certain, does not apply to the equity side of the Circuit Court, and that in a suit in equity the defendant has no right to have the plaintiff amend his bill, nor is it required of him so to do, nor to expose defects or supposed defects in his case. On the argument of this matter I thought that the motion did not involve an amendment of the bills, because it is therein stated that an agreement was made, and I thought that annexing the whole agreement by attaching a copy of the side agreement, by which the whole contract between the parties was completed, would not operate as an amendment to the bill. Further reflection, however, has convinced me that the bills would be in substance and effect amended, and the case somewhat changed by attaching the agreement in question. This motion is also denied.

Pleas No. 5 in Case 27,508, and No. 9 in 27,509, the amended fourth plea in 27,508, and amended eighth plea in 27,509, all proposed by the defendant Owsley, are allowed to be filed, and are sustained. The proposed pleas of the Union Company and Equitable Trust Company, to be amended by alleging that the side agreement was approved by the receivers, are allowed filing and sustained. The defendant Foreman did not file any plea of estoppel. If defendant Parsons elects to enter a general appearance, he has the right to plead, answer or demur, as he shall be advised. All other pleas filed or proposed are overruled.

On Motion for Leave to Amend Bills.

The pleas of estoppel and release having been sustained pursuant to the opinion filed December 17, 1906, complainants move to amend the bills in order to set up matters in avoidance of the pleas and in some other respects. The amendment relating to the matter of estoppel is, in substance, as follows: The negotiations resulting in amending the leases were conducted on behalf of complainants by the protective committees, who requested the Union Company to cause the dummy directors to resign and the protective committees to be elected directors in their place; also to allow the protective committees to examine the books and papers of the North and West Companies, in order to familiarize themselves with the facts affecting their interests. The Union Company refused to grant their request until the protective committees should first agree upon the terms of the amended leases. By reason of the refusal the committees could not acquire and did not have any knowledge of the facts stated in the bill in respect to the alleged Yerkes frauds, the operating agreement, the Consolidated Company mortgage, nor the Yerkes release. While negotiations were being conducted, the question arose whether the Consolidated lines should be included in the