Bowen v. Cross

4 Johns. Ch. 375 | New York Court of Chancery | 1820

The Chancellor.

The former practice in the English Chancery was, that where there was a clear mistake, proper to be corrected, the answer was taken off the file, and a new answer put in. But Lord Thurlow adopted a better course, by permitting a supplemental or additional answer to be filed, thereby leaving to the parties the effect of what had been sworn before, with the explanation given by the supplemental answer. The latter is the settled course now pursued in the English Equity Courts, (S Ves. 79. 10 Ves. 285. 401. 1 Wightwick, 32. 3 Price, 83.) and it is the safer and wiser practice. But to obtain this permission, said Lord Eldon, (10 Ves. 402.) the defendant must state, by affidavit, that when he put in his answer, he did not know the circumstance upon which he applies, or any other circumstances upon which he ought to have stated the fact otherwise. In the subsequent case of Livesey v. Wilson, (1 Ves. & Beam., 149.) Lord Eldon showed the great caution with which these amendments to an answer ought to be allowed. In that case, the defendant moved for leave to file a supplemental answer, upon affidavit, as to a mistake in a material point, and that it arose from his not stating the fact to his solicitor, or conceiving it at all material to be introduced into his answer, and that the omission was not by design, but arose purely through ignorance. The motion was, however, denied, on the ground that there was not the mistake of a fact, and that it was necessary for the defendant to have stated in his affidavit, that he meant to swear to his original answer in the sense he then desired to be at liberty to swear to. In subsequent cases, (2 Ves. & Beam., 163. 256.) the Chancellor said, that the supplemental answer must be held strictly to a mistake clearly sworn to, and that “ the Court did not yield to such an application without the most careful examination,” and that an additional answer was always admitted with great difficulty, if prejudicial to the plaintiff. So, it has been held in the Exchequer, that an amendment is only allowed where a mistake has been made, in the true sense of the word, and not where a defendant has mistaken the nature of his defence. (1 Fowler's Exch. Prac. 390.)

The cases, both ancient and modern, in which the answer has been permitted to be amended, are generally those of mistake or surprise ; (Chute v. Dacre, 1 Ch. Cas. 29. Mullins v. Simmonds, Bunb. 186. Ely v. James, Bunb. 295. Gainsborough v. Gifford, 2 P. Wms. 424. Foster v. Foster, 2 Bro. 619.) and, sometimes, it has been allowed where new matter had been discovered since the original answer was put in. (Patterson v. Slaughter, Dickens, 285.) A new fact has, likewise, been permitted to be added to the answer, under special circumstances; (Wharton v. Wharton, 2 Atk. 294.) and, in some cases, a dangerous admission of assets in an answer has been allowed to be restricted. (Dagley v. Crump, Dickens, 35. 2 Bro. 619, note. Roberts v. Roberts, cited in 1 Fowler's Ex. Pr. 390.) There is no precise and absolute rule on this subject; the question, as Lord Eldon said, is always applied to the discretion of the Court, in the particular instance. It has been allowed, after issue joined, on payment of costs of opposing the application, and withdrawing the replication. (Fowler's Ex. Pr. vol. i. 383-5.)

There can be no doubt that the application ought to be narrowly and closely inspected, and a just and necessary case clearly made out. In the present case, the defendant moves to make sundry amendments, but there is no ground for the indulgence, except as to the mistake sworn to have arisen on the ingressment of the answer, and not discovered until after it was filed, and as to the omission of the solicitor to make the schedule referred to in his affidavit, a substantive part of the answer. The defendant handed the document to the solicitor when he was to prepare the answer; and, no doubt, it was his intention that it should have been used in a way the most fit and proper for his defence. The omission to annex it may be imputed to a mistake in the solicitor ; and, after some hesitation, I am inclined to permit a supplemental answer to be filed in respect to those two omissions, and as to them only. In Bryan v. Truman, cited in 1 Fowler's Ex. Pr. 389. an answer was amended by annexing schedules therein referred to, and re-swearing to the s'ime. This, seems to be a case very considerably in point. I shall allow to the plaintiff his costs for resisting this application, and direct that the defendant furnish him with an office copy of the supplementary answer gratis, and that the plaintiff have the usual time to except thereto. The allowance of costs is agreeable to the order in several cases, on the equity side of the Exchequer, cited in 1 Fowler’s Ex. Pr. 383—8.

Order accordingly.