North American Coal Co. v. Dyett, 2 Edw. Ch. 115

North American Coal Co. v. Dyett

2 Edw. Ch. 115 | New York Court of Chancery | 1833

The Vice-Chancellor:

I am inclined to the opinion that it is not indispensably necessary to make the substituted trustees, Messrs. Warner and Hoffman, parties to the suit, although, strictly speaking, the complainants have a right to bring them in before a decree is made in the, cause; and as they were appointed trustees subsequent to the filing of the bill, a supplemental bill would be the proper medium for the purpose. There is not enough to1 warrant a supplemental bill for any other purpose.

As respects the trust in Thomas L. Wells. It is merely alleged that, since the filing of the original bill, the complainants have been informed and believe he has been appointed a special trustee of some other part of the real estate : not, that his appointment has been since made. The opposing affidavits show he was appointed long before the commencement of the suit. The complainants could, with ordinary attention, have made him a party to the bill in the first instance ; and if this were not easy, they might afterwards, using due diligence, have offered a good excuse for the omission and, upon an application proper in other respects (it being the case of a sworn bill) have had leave to amend in this particular. They are now too late to obtain the benefit of an amendment; and it cannot be granted—more especially in this form: Colclough v. Evans, 4. Sim. 76.

Next, as to the alleged discovery of testimony since the proofs were closed. No excuse' is shown for not making this discovéry earlier ; and if there were any thing offered to excuse the delay, this is not the mode of opening proofs in a cause with a view to the introduction of further testimony. An application should be made by way of special motion and not by supplemental bill. A bill of this descrip*119tion may be filed, after the publication is passed or proofs have been closed, for the purpose of putting such new matter m issue as is proper to be brought forward by way ot supplement: Usborne v. Baker, 2. Mad. C. R. 379; and even when this is done, it will be irregular to examine witnesses to matters already in issue and not proved in the original cause: Lube on Equity Pl. 182, 183. The supplemental bill now presented does not state new matter to be put in issue: but only the discovery of further evidence in relation to matters already in issue. It is not admissible.

Then as to the charges made for the purpose of laying the foundation for an injunction. So far as it is prayed for to restrain the trustees from paying over and the cestui qui trust from receiving or using the rents and profits or income of the real estate in a manner consistent with the trust, it has been already decided in this cause that the complainants have no right to such an injunct:on ; and even from the statements now made, in relation to the sufficiency of the trust estate in order to satisfy debts and incumbrances, I am not warranted in making a different decision. And so far as an injunction is prayed for to prevent another change of trustees pendente lite, it is altogether unnecessary. There is a sufficient notice of lis pendens; and the rights of the complainants cannot be affected by any change in this particular.

The complainants may have leave to file the supplemental bill for the mere purpose of making the present trustees, Warner and Hoffman, defendants in the suit. All other parts of such bill, alleged by way of supplement and calling for a discovery, must first be expunged, and the original defendants stricken out so as not to be obliged to answer. It is sufficient to exhibit it against the new trustees only. They will then answer, admitting themselves to be trustees ; and the cause will .stand for hearing upon the original pleadings and proofs and upon the supplemental bill and answer only. Nothing further is proper or necessary in this stage of the case: Lube, 180. 183. I have marked upon the margin the parts which are to be expunged from the bill and underscored the names which are to be stricken out.

As the complainants have brought the defendants here upon a motion for much more than they were entitled to *120and thereby put the defendants to the necessity of preparing affidavits in opposition, the complainants must pay the dec , . J tendants their costs upon the motion.