Connalley

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…