2 Johns. Ch. 425 | New York Court of Chancery | 1817
The petition states two objects of the motion for leave to withdraw the replication ; the one is, to except to the answer; the other, to amend the bill.
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As to the first object; the plaintiff does not state, in his petition, wherein the answer is defective, nor why the defects, if any, were not discovered before. It is now upwards of three months since the replication was filed. There is, indeed, an affidavit presented on making the motion, but that affidavit was not served on the opposite solicitor, and if notice of the motion was requisite at all, (which is not disputed,) a copy of the affidavit on which it was founded ought equally to have been served. The affidavit is, therefore, not regularly before me on this motion; *and even if it were, the reason therein assigned for the motion is not sufficient. The plaintiff’s solicitor says, he filed the replication through misapprehension, inasmuch as he mistook an incorrect draft of the bill for the corrected copy on file, and that the answer, though good as to the former, is not as to the latter. But this' affidavit does not disclose wherein, or to what extent, the answer is insufficient, nor when the variation between the draft of the bill, and the one on file, was discovered, nor in what that variation consists. The excuse itself is feeble and imperfect. The solicitor to the bill compares the answer with some defective draft of his own bill, and now comes, three months after the cause is put at issue, with such a plea of negligence, and with all this want of precision and regularity in bringing forward the motion, for leave to file exceptions to the answer. This would be granting an unreasonable indulgence, and one leading to vexation and delay in the prosecution of a suit. It was said, by Lord Hardwicke, in Pott v. Reynolds, (3 Atk. 565.) that the Court rarely grants leave to withdraw the replication, unless there be some special cause shown to induce the Court to grant this indul • gence; and the books say, that as the replication admits the
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*The other object of the present motion is to amend the bill. The petition states, that the bill is materially defective ; but the affidavit of the plaintiff’s solicitor states, that the bill fully charges the matters which he, at first, thought had been omitted, and the same solicitor now states, in support of his motion, that the bill is full, and that the only amendment desired is one of mere form, and requiring no further answer. It will readily be perceived, that this is not sufficient ground for withdrawing a replication several months after it has been filed. To withdraw the replication for the purpose of amending the bill, the plaintiff must show the materiality of the amendments, and why the matter to be introduced by the amendment was not stated before, otherwise the rules of the Court to prevent vexatious delays of the plaintiff would be nugatory. (Longman v. Calliford, 3 Anst. 807.)
The motion is, accordingly, denied, with costs.
