after stating the facts.—While I concur in the result announced in this case, I have been led to my conclusion by reasons somewhat different from those stated, though not inconsistent with. them. They are briefly these.
The application, being in an equity suit, is to be governed by the analogous practice in a Court of Chancery.. That practice, in relation to facts occurring subsequently to issue joined, or to facts discovered subsequently, was in one of two modes. It was either by a supplemental answer, to file which leave was asked; or by a cross bill, in the nature of a plea _puis darrien continuance., for which no liberty was required. The latter appears to have been the best settled course (Hayn v. Hayn, Nelson's R., 105 ; S. C. 3 R. in Ch., 19 ; Lube, Eq. Pl., 301; 1 Daniel's Pr., 365 ; Mitford's Pl., 81;' Willis' Eq. Pl., 364, in which is the form of such a bill to set up a release obtained after issue; Anon. Hopkins' R., 27 ; Smith v. Smith, 4 Paige, 438; Gibs v. Gibs, 1 Bailey's Eq. R., 428 ; Scott v. Grant, 10 Paige, 486 ; Miller v. Fenton, 11 Paige, 20; Taylor v. Titus, 2 Edwards' Ch. R., 135; Jackson v. Parrish, 1 Simons, 505; Tidwell v. Bower, 7 Simons, 64 ; Barrington v. O’Brien, 2 Ball & Beatty, 140).
As to the case of matter discovered after answer, although existing before, Jackson v. Parrish (1 Simons, 505), allowed it to be brought up on a motion for a supplemental answer, to put in a deed since discovered. In Barrington v. O’Brien, it was done by bill. In Smith y. Smith, Chancellor Walworth speaks of either course being open. In Taylor v. Titus, and *70collect by tax the sum of seventy thousand dollars for 1 county contingencies’ (Laws of 1856, 271, ch. 176), and this sum has accordingly been levied and collected for this purpose Vice-Chancellor McCoun appears to consider a supplemental answer proper.
But the Code has adopted, as applicable to each class of cases, the course of supplemental answer; and section 177 provides that the defendant may be allowed, on motion, to make such answer, alleging facts material to the case, occurring after the former answer, or of which the party was then ignorant.
I consider that this section gives a presumptive right to the party, to set up as a new defence, what he could have set up had he known the fact at the time of answering, provided he has brought himself within the provision, and has applied with reasonable promptitude. When he has but recently been apprized of the material matter, and then applies, I do not see that he is asking any such favor of the court as brings him within the doctrine of amendments, or other acts of judicial grace. These presuppose a fault, neglect, or violation of a rule of proceeding on his part, for which he seeks relief. There is nothing of this kind here.
I do not suppose that the court is precluded from exercising a legal discretion in refusing or allowing such applications. As to cases of a new fact or instrument, the court may reject it upon such grounds of fraud or breach of agreement as influenced it in the cases of Tuffts v. Gibbons (19 Wend., 639), and Hickey v. Hunt (7 Taunt., 48). Pleas puis darrein continuance were there stricken out, for a direct breach of faith or fraud of the party connected with the subject. And in cases of newly discovered evidence, it may happen that the matter is so plainly frivolous or inadmissible, that it would be stricken out upon demurrer ; and hence its introduction in a pleading may be refused.
Yet this course is open to the serious objection, that in such case the party may be without remedy against an erroneous decision, and to the observations of Lord Eldon in Jones v. Wood (1 Jac. & Walker, 315), of the inconvenience of deciding such questions of the validity or sufficiency of a release or agreement, upon a motion.
I think the defendant in this case has not been guilty of laches in making his application. I think there is no fault to be attributed to him in connection with the alleged release. I deem it unadvisable to pass upon the sufficiency or operation of the in*71strument in this form, but consider that it should arise upon demurrer or otherwise; and for these reasons I conclude that it would not be a legal exercise of the discretion given by the Code, to refuse the introduction of the answer.
Hence the order at special term should be reversed in this particular.