Lyon v. Tallmadge, 1 Johns. Ch. 184

Lyon v. Tallmadge

1 Johns. Ch. 184 | New York Court of Chancery | 1814

The Chancellor.

There is no equity appearing on the face of this bill. The assignment of the judgment against Lyon and Dewey, to Tallmadge and others, and the release of the judgment against Richmond, are not charged as fraudulent acts, or done with a fraudulent intention. The very state of the case repels any possible presumption of fraud. Richmond gave notice to the plaintiffs of the proposition made to him, and required of them the deposite of the sum, for which he stood charged, so as the more effectually to indemnify him; that was not done. He then required additional security: that was not given ; and he told the plaintiffs that he should make the assignment, if this effectual indemnity was not given. There was no concealment or fraud in the case; but due notice was given of his intention. Nor was it an unreasonable or oppressive demand on the part of Richmond. He stood charged with the escape, by the judgment of the supreme court; and Lyon and Dewey stood *187behind him, and were bound to save him harmless. He had a right to- be acquitted and discharged from all hazard, and was not bound to permit a litigation to go on in his name, and at his risk. He had a right, at any time, to relieve himself from the burthen of the risk, and of the litigation, by placing the surety in his place, with all his means of defence. It was a right founded on a clear fundamental principle of equity. This he offered to do, and asked only a deposite of the sum for which he stood charged; or, if that could not be done, that he should receive additional security. There is no hardship, or injustice, or fraud, imputed to Richmond, either byx any averment, or by the facts stated in the bill. But the bill admits, that, after all this was done, the plaintiff consented that the assignees should issue execution on the judgment confessed. If ever the maxim applied, it does here, that volenti non Jit injuria. With a knowledge of all the facts, and as the last act in the history of the case, the plaintiffconsentstohavehis,aud his co-sureties’ property charged, in execution, and sold for the payment of the debt. This consent is alleged to have been obtained upon the representations of Th. Mumford, as counsel for the defendants | but Mumford is no party to this bill, and is not called upon to answer to the truth of those representations, nor are these representations even charged as being untrue, or made with any fraudulent intention.

August 31st.

The bill, therefore, does not contain any gravamen, or equity. There is nothing that the defendants need to answer. The bill must be dismissed with costs.

Gold, for the plaintiff, then moved for leave to amend the bill.

Riggs, contra.

The Chancellor.

The motion for leave to amend the bill, is not founded upon any specified omission or imperfec*188tion. The demurrer was decided upon the merits, and on the ground that the bill contained no equity. A general leave to amend would be the same as leave to make a new an¿ j think the indulgence - of amendments is not to be carried so far. If the bill be found defective in its prayer for relief, or in proper parties, or in the omission or mistake of some fact or circumstance connected with the substance' of the case, but not forming the substance itself, the amendment is usually granted. But the substance of the bill must contain ground for relief. There must be equity in the case, when fully stated, and correctly applied to the proper parties, sufficient to warrant a decree. Here, as I have already observed, the substance of the bill is defective. The plaintiff gives a plain and candid statement of his case, and it cannot entitle him to relief, for the reasons assigned in pronouncing the decree. In the absence of authority, I should deny this motion ; because, as far as the doctrine of amendments can be reduced to general rules, or principle, it is against it. But there are cases which govern the present one. In Napier v. Effingham, (2 P. Wms. 401.,) Lord Ch. King observed, that there was not any precedent, in this court, of an amendment to a bill in a part wherein it has been dismissed upon the merits ; and in a case before Lord Talbot, and which is cited by Mr. Cox, in his notes to P. Williams, (2 P. Wms. 300.,) the Chancellor observed, that, after a demurrer to the whole bill allowed, the bill was regularly out of court, and there was no instance of leave to amend it.

Motion denied, with costs.