Alabama Warehouse Co. v. Jones, 62 Ala. 550

62 Ala. 550 | Ala. | 1878

BRICKELL, C. J.

1. The amendment removed two of the canses of demurrer to the original bill — the joining the stockholders as complainants with the corporation; and the relief prayed in reference to the pledge of the bonds of the city of Troy. The remaining ground of demurrer was not well taken. A creditor having a pledge for the payment of a debt, is not bound if he assails as fraudulent a subsequent conveyance by the debtor to other creditors, or asserts that it is a general assignment, in the benefits of which, he and all other creditors are entitled to participate, to offer to relinquish the pledge; or to bring it in as a contribution to a common fund for the equal benefit of the fraudulent donee' and himself, or that other just creditors shall share in it. The pledge is his own security, carved out by his own contract for his own protection, and the only equity other creditors can assert, is its application to the reduction of his debt, lessening his claim on the funds to which they can resort in common with him.

2. A bill may be originally framed with a double aspect, or may be so amended as to be of that character. The rule is inflexible, however, and a departure from it would produce vexatious uncertainty, and inextricable confusion, that the alternative case stated must he the foundation far precisely the same relief. — Story’s Eq. Pl. §§ 251 — 4. It may be the original bill assailing the mortgage to Lawson as fraudulent, and claiming that it should be vacated, and yet, in another aspect, asserting that it is a general assignment, enuring under the statute, to the equal benefit of all creditors, and praying that it be so declared, is repugnant and inconsistent in its allegations, and in its prayers for relief, offending the rule to which we have referred. This was not, however, assigned as cause of demurrer, and if it had been, an opportunity to amend would have been afforded the complainant. The statute confined the Chancellor and confines the court, to the causes of demurrer specifically assigned; all others, the demurrant is supposed to waive.

3. There is not an averment in the bill which negatives the power of the complainant to loan money; and if the demurrer was intended to raise that question, it finds no warrant in the averments of the bill, and it is the sufficiency of these alone it involves. That question, however, it is too late to raise' — -the judgment at law obtained by the complainant, without collusion with the debtor, is conclusive of the validity of the contract on which it is founded. — Mayor v. Lord, 9 Wall. 409.

4. Another ground of demurrer is, the want of a foot note to the amended bill, specifying the particular statements each defendant was required to answer. In Winter v. Quarles, 43 Ala. 692, it was held, the omission is good cause of demurrer. "Whether the defect is not rather a ground for a motion to strike the bill from the files, than cause of demurrer, it is scarcely necessary to consider. When the objection is presented in the one way or the other, the defect is so easily remedied, that the mode of presenting it cannot be a matter of practical importance. Under our practice amendments may be made by simply striking out facts of a bill or answer, by interlineation or erasure, when of a brief character. The essential is, that the amendment must be made in such manner, that it may be ascertained in what it consists. — Rule 42, Chan. Pr. The amendment in the present case was by striking out, as well as by introducing new matter; and as to the matter stricken out, no answer from the defendants could be required. The new matter was embraced in a single paragraph, and a foot note requiring an answer to it was unnecessary. ¡Such note is necessary, when the bill is divided into sections, and numbered, (as an original or amended bill must be when it consists of more than one section,) and a defendant has a right to know which of these he is required to answer.

5. It is not the office of an amendment to a bill, to introduce a new and different case from that made by the original bill — thereby, defects in the original bill would not be cured, or new matter put in issue to meet the allegations of an answer; but the amendment would be in fact a new bill, The amended bill is not obnoxious to this objection — the new matter introduced by it, was of facts occurring after the original bill had been filed, pertaining, and not foreign to the matter of the original bill. The rules of practice authorize the introduction of such matter, by an amendment. All relief in reference to the pledge of the city bonds was thereby shown to be unnecessary, and that the controversy in reference to them had been adjusted. If the original bill was multifarious because it sought to enforce the pledge of these bonds, the amendment abandoning that claim cured the defect.

The decree of the Chancellor, sustaining the demurrer must be reversed, and the cause remanded.