22 F. Cas. 428 | U.S. Circuit Court for the District of Massachusetts | 1839
The general rules of courts of equity in the amendment of answers are well known. In mere matters of form, or mistakes of dates, or verbal inaccuracies, courts of equity are very indulgent in allowing amendments. But when application is made to amend an answer in material facts, or to change essentially the grounds taken in the original answer, courts of equity are exceedingly slow and reluctant in acceding to it. To support such applications, they require very' cogent circumstan
The whole matter rests in the sound discretion of the court. I should be sorry, that it should be supposed, that the court had no authority to grant leave to file an amended answer, wherever it was manifest that the purposes of substantial justice required it. On the other hand, considering the solemnity of answers, I should be sorry to see any practice introduced, which should in any, the slightest degree, encourage negligence, indifference, or inattention to the duties imposed by law upon parties who are called upon to make statements under oath. And it seems to me, that, before any court of equity should allow such amended answers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satisfactory; that the mistakes to be corrected, or the facts to be added, are made highly probable, if not certain; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence; and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party, since the original answer was put in and sworn to. Where the party relies upon new facts, which have come to his knowledge since the answer was put in; or where it is manifest that he has been taken by surprise, or where the mistake or omission is manifestly a mere inadvertence and oversight, there is generally less reason to object to the amendment, than there is where the whole bearing of the facts and evidence must have been well known before the answer was put in.
The present case is not an application to substitute one written document for another, which was annexed to the original answer by mistake, the mistake having been subsequently ascertained. If it were, the court would not hesitate to allow it; for the danger of perjury, or of a corrupt manufacture of an instrument to suit a new purpose, would not ordinarily occur. And, indeed, the court, before allowing the amendment, would require plenary proof of the antecedent existence, as well as of the genuineness, of the instrument. Nor can this be said to be a case, in which the amendment proposes to offer parol evidence to mere facts in pais. It is an Intermediate case, where the proposed amendment seeks to show, that the instrument. annexed to the answer is not the-original instrument, executed at the time of the conveyance, or a copy thereof; but that it varies from that instrument in some important particulars, material to the present controversy; that the original has been lost or mislaid by the party (not the defendant) to-whom it belonged; that the contents, so far as they are material in this application, as-well as the existence and genuineness of the-paper, can be established by satisfactory evidence of disinterested persons, Who were-present at its execution and knew its contents; and that the mistake in the answer was not discovered until long after the answer was sworn to and filed, upon a conference with the parties, who were connected with the original transaction; and that the-materiality of the mistake was wholly unsuspected, until it was recently brought out, as-a point of objection, by the other side.
Now, upon the present application, it is. not necessary, nor would it be proper finally to decide, whether the fact of such a mistake is positively and absolutely made out, or the-existence and genuineness of such an original established beyond all controversy by the-evidence. That would be more proper for consideration upon the final hearing of the-cause upon the whole evidence, when all these and the other matters are put in issue-before the court,by the whole evidence in. the cause. All that is required on the present ex parte application, is that the court should be satisfied that the defendant, Noble, has not been guilty of gross or inexcusable negligence in not before ascertaining the-facts, or instituting inquiries respecting-them; that there is a high probability that there was such a genuine, original instrument, different from that annexed to the-answer; that there has been an entire good faith on the part of the defendant, Noble;.' and that there has been a real and inadvertent mistake. I must say, that, upon all these points, the evidence is clear and cogent. I do not say that it is conclusive or-irresistible. That there was such an original, genuine instrument, differing from that annexed to the answer, is made out by the-affidavits of Mr. Cross and Mr. Kinsman, in a manner which I can scarcely deem open to serious doubt. At least I cannot, in the-present state of the evidence, overcome it without believing both those gentlemen have-made very gross misstatements, and deliberately affirmed matters absolutely false. Certainly I can come to no such conclusion. Their narratives carry with them an intrinsic probability; and I may say, that Mr. Kinsman’s known character at the Portland' bar forbids such an imputation.
I have paused a good deal upon this matter, because I am exceedingly unwilling to-
I have examined the authorities with some care and solicitude, to assist my own judgment upon the present occasion. The known caution and scrupulous hesitation of Lord Eldon make his decisions on such a subject of peculiar value. He has not hesitated to go as far as I have gone. Nay, he and other judges have gone somewhat further. In Livesey v. Wilson, 1 Ves. & B. 149, Lord Eldon was asked to allow a defendant to amend his original answer, which had stated, that he took possession of the whole of certain real estate, under a contract, of which a specific performance was sought, so far as to show, that he had taken possession of a part only. He refused it, unless the defendant would swear, that when he swore to the original answer, he meant to swear in the sense, in which he now desired to be at liberty to swear to the fact. This seems to convey a manifest implication, that if he would so swear, he might file an amendment of the answer, although it was merely evidence of a fact in pais, and resting in the knowledge of the defendant In Strange v. Collins, 2 Ves. & B. 163, the defendant had sworn in his answer (April, 1813), that he had obtained letters of administration on his father’s estate, in which character he was sued for a legacy. He now moved to file a further answer, stating (among other things) by his affidavit, that upon looking over papers and deeds, since putting in his answer, he found that an administration was granted to him of his father’s effects in the year 1797, at which time the defendant was just of age, and but little acquainted with business, and entirely ignorant of law, and considering that he was only doing some formal act, to make out a title to some leasehold property of his father which he had sold. Lord Eldon, upon the • whole circumstances, which were detailed at large in the affidavit, allowed the amendment to be filed. Upon this occasion his lordship said: “This is a motion of considerable importance, for leave to filé a supplemental answer; the object of which is to admit that the defendant is administrator of his father, and, as such, has effects sufficient to satisfy this legacy; which the answer denies. There is no suggestion by affidavit, that this application is made in consequence of any knowledge, or threat of an indictment for perjury. The application is supported by an-affidavit, stating positively, that, when the defendant gave instructions for, and swore to, his answer, he had no recollection of the letters of administration; or that they in any way related to the matters in the bill; and that he never considered himself, but considered his mother as altogether in possession, she keeping the accounts; a representation not unnatural by an ignorant man. It is obvious, that, unless there is some general ground, upon which the defendant ought not to be permitted to put in a supplemental answer, it is for the benefit of the plaintiff that he should do so. But, whether the plaintiff may choose to except to it or not, care must be taken that public principle is not infringed; and the objection that has been made justifies me In requiring commissioners to pay more attention to transactions of so solemn a nature as taking answers upon oath, than has been applied in this instance; in which there is a degree of carelessness, which is shocking in moral consideration; the answer twice positively denying, that the defendant is the administrator, and that he ever possessed any part of his father’s effects; the former a pure denial of a matter of fact; the other a fact, upon which an ignorant farmer might make a mistake, but commissioners, or the attorney, couftl not.” In Edwards v. M’Leay, 2 Ves. & B. 256, a motion was made to file á supplementary answer upon an allegation of the discovery of an entry or minute in a parish book, after the answer had been sworn to and filed, the defendant by his affidavit stating, that at the time of filing his answer he had no recollection of such entry.
I shall, therefore, make an order allowing a supplementary answer to be filed; but I shall expect it to contain a full and positive statement of all the circumstances, and of the substance of the original instrument, and in what particulars (as far as may be practicable) it differs from that annexed to the original answer in this case. Order accordingly.
See Wells v. Wood, 10 Ves. 401; Bowen v. Cross, 4 Johns. Ch. 375, and the cases there cited, and those collected in the Reporter’s note a to Livesey v. Wilson, 1 Ves. & B. 149, 150.