Bennington Iron Co. v. Campbell, 2 Paige Ch. 159

Bennington Iron Co. v. Campbell

2 Paige Ch. 159 | New York Court of Chancery | 1830

The Chancellor.

There have been some irregularities on both sides, in this case, which it may be proper to notice in order to do justice between the parties. The manner in which amendments are to be made is stated by chancellor Kent in Luce v. Graham, 4 (John. Ch. Rep. 172.) If a party thinks proper to file or serve an entire new.bill, incorporating the original matter with the amendments, he must distinctly mark and designate the amendments, so that the defendant and the court may see what they are. And where a solicitor unnecessarily makes a re-engrossment or a full copy of the original matter, he will not be allowed for the *162same on taxation of costs.. In this case the defendants’ solicitor might have refused to. receive the copy of .the amended bill on which the amendments Were not npted.

The last answer was both irregular and impertinent. The impertinence consisted in. a repetition of the, whole matter' of .the former answers. The defendants should have declined .receiving the amended bill in its imperfect state, or ' have ascertained what the amendments were, and. answered accordingly. But as the complainants did not except to it on that ground, they cannot now make that objection. The answers were irregular'because the entitling thereof did not correspond with .the order under, which those answers were put in,' They are entitled as answers to the amended bill onlybut they should have been entitled, as further answers to the original bill of complaint and answers to the amended bill. De Tastet v. Lopez, 1 Simon’s Rep. 11.) ;As these answers were however in fact answers to the original exceptions as well as to the amendments, the order to answer hqs-been substan- - tially complied with, and it is now too late for the complainants to make the objection. ,

Where exceptions to .a. former answer and amendments to the bill are- answered together, -if neither the amendments nor exceptions are fully answered, the complainant is only at liberty to "file new exceptions founded on the'new matters introduced into the' bill by such amendments. The answers will then be referred .on the new exceptions, and upon such of the old exceptions as are specified in the order of reference, agreeably to the '52 rule.-' ■ In such cases the eomplainant must wait until the new exceptions are filed, and then refer both together in the same order if.the new. ex- _ ceptions are not submitted to within the eight days allowed for that purpose. Where the new exceptions are submitted, to,'the answer must be referred on the old exceptions, ox-some of them, within ten days thereafter, or, it will be deemed sufficient. , - '

New' exceptions for insufficiency cannot' be taken .to the further answer, founded, upon the matter of the original bill only. And where the- reference is -on the new exceptions - alone, the master, is not- at- liberty to enquire whether the old *163exceptions are fully answered, or whether any part of the original bill to which the old exceptions did not relate was answered by the first answer of the defendant thereto. (Partridge v. Haycraft, 11 Ves. 570. Williams v. Davies, 1 Sim. & Stu. 426.) The new exceptions in this case were properly entitled as exceptions to the answer to the amended bill. Under the order referring them, the master had no right to look into the answer, except so far as it was an answer to the amendments; and if he found it sufficient in that respect, it was his duty to overrule the exceptions. (Irving v. Viana, 1 M’Clel. & Young, 563.) This was done in Overyv. Leighton, (2 Sim. & Stu. Rep. 234,) where the exception to the answer to an amended bill might, on the same principle, have been taken to the first answer. The exception, if taken originally, would have been sustained; but the master overruled it as an exception to the second answer. On appeal from the decision of the master, the vice chancellor sustained his report.

If the exceptions, clearly and manifestly do not relate to the amendments, but to the original bill, only I think the defendant may move to take them off the files for irregularity. And where there is any doubt on the subject he may urge that objection before the master on the reference. Here it is evident that these exceptions do not relate to the amendments, and are not covered by the old exceptions. If the reference had not been proceeded in, they should be taken off the files. As the result will be the samé, they may now remain; but the exceptions to the master’s report must be allowed.

The exceptions and amendments being fully answered, the merits of the case are with the defendants. They are therefore entitled to the costs of the reference, and of the hearing on the exceptions to the master’s report. But as there have been some irregularities on both sides in matters of form, I shall give neither party any costs on the applica* tion to vacate the order of reference.