CONNALLEY, Appellant, v. SYLVESTER F. PECK, ROBERT M'DOWELL, JOHN A. PECK, JAMES B. M'DOWELL, ROBERT MILLS, DAVID G. MILLS, and JOHN M'NISH, Respondents, 3 Cal. 75

Heydenfeldt, Justice, delivered the opinion of the court, with which Wells, Justice, concurred. In the examination of this case, two positions appear to be very clear; first, that the proof does not sustain the allegations of the bill; second, that by the proof, the complainant is entitled to relief in a court of equity, if his pleadings had been properly proved. The question, therefore, for consideration, is, whether the chancellor acted properly in dismissing the bill, or if he should not; at the hearing, have directed an amendment of the bill, or leave to file a supplemental bill.

As the latter course would save expense, and circuity of action, it is in my opinion the better, if it can be sustained by authority. The main conflict between the cases I have examined, seems to be, whether an amendment or a supplemental bill should be allowed. Judge Story has treated the question according to the variety of decisions.

In his Eq., PI. sect. 891, he says, “If upon hearing the cause the plaintiff appears entitled to relief, but the case made by the bill is insufficient to ground a complete decree, the court will not allow an amendment, but it will sometimes give the plaintiff leave to file a supplemental bill, to bring before the court such matter as is necessary, in addition to the case in the original bill.” “ And in some cases, where a matter has not been put in issue by a bill with sufficient precision, the court has, upon the hearing of the cause, given the plaintiff liberty to amend the bill.” He also says, that amendments are allowed to defendants, with much more caution than to plaintiffs.

And yet it is uncommon to refuse these amendments, whenever a proper case is made out. At sect. 902, the same author proceeds: “ Upon the hearing of a cause, the same indulgence will be granted to a defendant as to a plaintiff.

If it has appeared that the defendant has not put in issue facts which he ought to have put in issue, and which must necessarily be in issue to enable the court to determine the merits of the case, he will be allowed to amend his answer for the purpose of stating those facts.” It seems to me, that the true doctrine to be declared, as consonant with the authorities, and with the spirit of equity, is, that whenever the evidence conclusively shows the party entitled to relief, an amendment should be allowed or directed, to conform the pleadings to the facts which ought to be in issue, in order to enable the court to decree fully on the merits, and that whenever this is not done it is error.

The present case falls within this doctrine, and it necessarily follows that the decree must be reversed, and the complainant below be permitted to amend his bill, or file a supplemental bill. The costs will abide the event of the suit.