Renwick v. Wilson

6 Johns. Ch. 81 | New York Court of Chancery | 1822

The Chancellor.

If this was the case of an ordinary bill not sworn to, the amendments would be admitted as of course, under the fifteenth rule of this Court, for the answer of the three principal defendants was excepted to for insufficiency, and the exception, on reference, has been allowed. But it is an injunction bill, and this makes the difficulty in the case. The 90th rule will not allow an amendment, as of course, before answer to a bill which has been sworn to. That rule, by the express terms of it, had reference to the 11th rule, and it does not apply to cases •arising under the 15th rule; and the allowance of amendments to the bill, under the circumstances of a casé like the present, must depend on sound discretion, and the general course and practice of the Court.

In the late case of Dipper v. Durant, (3 Merivale's Rep. 465.) the defendant had put in an answer to an injunction bill, and in a case where an injunction had been obtained, and exceptions taken to the. answer. Lord Eldon said, it was of course to grant leave to amend, so long as the defendant had not put in a further answer, and the defendant answers the amendments and exceptions together. Nothing was said in the order as to the injunction being saved, and it was taken for granted, that the amendment did not prejudice the injunction previously obtained. So, in the case of Adney v. Flood, (1 Madd. Rep. 449.) a motion was made for leave to amend the bill, after exceptions to the answer allowed, but not answered. It was a case in Vhich an injunction had been allowed; and the Vice Chan-cellar observed, that the words, “ without prejudice to the injunction,” were unnecessary, as the amendment would not affect the injunction. The condition to the order for amendment, that it should be without prejudice to the injunction, was, however, required in a case, (Dixon v. Redmond, 2 Sch. & Lef. 515.) where exceptions to the answer had not been disposed of.

The decision of the Vice Chancellor was contrary to what Lord Eldon had previously said, in Bliss v. Boscawen, (2 Ves. & Bea. 101.) for he there held, that an injunction fell, by amending the bill, unless expressly saved in the order for amendment. But the rule, as declared by the Vice Chancellor, is best established. In Mason v. Murray, (Dickens’ Rep. 536.) Lord Bathurst held, that art injunction did not drop, of course, on amending a bill, for the amendment might not, in the least degree, affect the injunction: and the report of Mr. Dickens, the Register, in that case, appears to have supported that point by very sufficient considerations, and which carried conviction to the mind of Lord Bathurst.

The cases seem to leave no doubt of the practice of the Court, in allowing amendments after answer to an injunction bill; and the conclusion which they establish is, that the injunction must stand or fall upon the original bill and the answer thereto, and the amendments cannot be used in support of the injunction. (Mayne v. Hochin, Dickens 235. Vere v. Glynn, Dickens, 441.) In Sharpy v. Ashton, (3 Ves. & Bea. 144.) after exceptions to the answer were allowed, the plaintiff had leave to amend an injunction bill, and where the injunction had issued; and the order was, that the defendant answer the amendments and the exceptions at the same time. But before the answer came in, the plaintiff applied for leave to re-amend on payment of costs, and without prejudice to the injunction ; and on affidavit that, except by answer to the amended bill, the plaintiff had no notice of a material fact. Lord Eldon admitted the practice to amend injunction bills, but said, that the Court very rarely allowed a re-amendment of an amended bill, and the Court must know what were the . proposed amendments, and whether they were material, and the plaintiff must show by clear and positive affidavit, that he had not knowledge of the facts to bring the case upon record sooner. So in Mair v. Thellusson, (cited in note to 3 Ves. & Bea. 145.) Lord Eldon allowed an amendment to an injunction bill, after an application by the defendant for further time to answer, and then a re-amendment in specified particulars.

In the application of these cases to the one before me, the circumstance of its being an injunction bill, is no obstacle to the allowance of the amendment, provided a proper case for the amendment be otherwise made out. The petition here does not specify what amendments are proposed to be made. The matter of the amendments is not stated, so as to enable me to see and judge of the materiality of the amendments. This was required by Lord Eldon, in the two last cases of re-amendments to an injunction bill j but, ordinarily, I believe the plaintiff is allowed to amend, as he shall be advised, and the orders are to that effect, (Equity Draftsman, p. 590, 591. Lond. ed. 2 Harr. Pr. 57. Mitf. 256.)

I shall, therefore, grant the petition, so far as relates to additions to be made to the bill; but I cannot allow any part of the bill to be stricken out, without a previous specification of the parts intended to be omitted. There are two of the defendants whose answers have not been excepted to. If an order was to be made, co-extensive with the general prayer of the petition, the whole substance of the existing bill might be expunged, and all the material facts admitted in it might be withdrawn. Such a general power of amendment to an injunction bill, sworn to,, and upon which process of injunction has been obtained, ought not to be granted, without further explanation of the way in which the bill is to be amended. If the injunction is to be left to rest upon the merits of the original bill, it implies that none of the charges in that bill are to be expunged.

The following order was entered :

“ Ordered, that the petition of the plaintiff be granted, so far as that she be at liberty, within 20 days, to amend her bill by inserting such additional statements, mattery, and charges, as she shall be advised are material, and that the same be made without prejudice to the injunction$' and that the defendants, Benjamin Gray, John Wilson, and Thomas Harbottle, answer the exceptions and the amendments together ; and that the residue of the prayer of the petition be denied, with liberty, nevertheless, to the plaintiff, at her election, to act under this order, or, on or before the first day of the next term, upon payment of the costs of resisting this motion, to renew her motion, upon due notice thereof, to amend, accompanied with an affidavit, stating, clearly and precisely, the amendments, alterations, •and omissions proposed.”