8 Paige Ch. 589 | New York Court of Chancery | 1841
The affidavit on the part of the complainants shows that a replication to the answer of Andrew was necessary to enable them to bring the cause to a hearing upon its merits. The only question, therefore, was as to which party was technically right upon the point of practice. For where a party insists upon retaining a mere technical advantage of his adversary, if it turns out that he himself has mistaken the practice, and that the adverse party was in the right, the latter is of course entitled to his costs.
Where the complainant amends his bill after answer, the defendant has a right in all cases to put in a further answer, or even a new defence to the amended bill, if he thinks proper to do so. (Bolton v. Bolton, 1 Dan. Ch. Prac. 519. Savory v. Dyer, Amb. Rep. 70. Bosanquet v. Marsham, 4 Sim. Rep. 573. Gambier v. Leheup, 1 Dickens, 44. Richardson v. Richardson, 5 Paige’s Rep. 58.) But where the complainant waives the putting in of a further answer to the amended hill, the defendant will not, upon a mere formal amendment which in fact requires no further answer to protect his rights, be allowed costs of putting in a new answer to the amendments. And if he elects to put in an entirely new defence to the bill, in such a case, the costs of such new defence must abide the event of the suit. By the practice in England, where no amendment is allowed except upon a previous order, if the complainant is permitted to amend after the answer of the defendant is put in, the order itself shows that a further
At an early day, soon after the practice of taking bills as confessed without requiring proof thereof was first adopted, Lord King overruled a decision of Sir Joseph Jekyl, the master of the rolls, which allowed the whole bill to be taken as confessed for want of a further answer, (Hawkins v. Crook, 2 Peer Wms. 559.) But he in effect overruled his own decision in that case a few months afterwards, in Abergavenny v. Abergavenny, (2 Eq. Ca. Abr.
By the present practice of this court, where the com
Upon an amendment of course after answer, where the complainant does not intend to waive the further answer to the amendments, he may enter the usual order, of course, in conformity with the principles of the 24th rule, that the defendant answer the amendments in forty days after service of a copy thereof, or that the bill as amended be taken as confessed ; or that an attachment may issue, as the case may be. But where an amendment is allowed by a special order of the court, after answer, then the order itself should contain the recital of such waiver of a further answer, according to the English practice ; and the defendant should be directed to answer the amendments within the forty days, or that his former answer should stand as the answer to the amended bill. Or, if an answer to the amendments is required, the order should contain the usual directions requiring the defendant to answer, or that the bill as amended be taken as confessed • or where a further discovery is necessary, that an attachment may issue, See, In all cases of amendment, however, the complainant has a right to file a replication within the usual time after the
Here the order, which the parties had agreed upon, instead of waiving a further answer and directing the former answer to stand as an answer to the amended bill if the defendant should not elect to put in a new or further answer, was through inadvertence so drawn as to require the defendant to answer the amended bill, or that the same should be taken as confessed. The complainants, therefore, had no other course left, after the refusal of their adversary to consent to have the original answer stand as the answer to the bill as amended, with the usual right to reply to such answer, than to enter the order to take the bill as confessed. And the defendant’s counsel having insisted upon strict practice, for the purpose of getting another bill of costs out of the complainants, upon a motion for leave to file a replication, and it turning out that the defendant was himself in the wrong, the order setting aside the complainant’s proceedings for irregularity, and charging them with the costs, must be reversed with costs.
But as it is evident the solicitor for the defendant mistook the practice, his client must be relieved upon the usual terms of paying the costs of the proceedings which the complainants had regularly taken against him, and the costs of opposing his application. An order must therefore be entered, setting aside the order to take the bill as confessed and all subsequent proceedings thereon, and that the former answer stand as an answer to the amended bill, with the liberty to the complainants to reply thereto ; provided the defendant Andrews, within twenty days after service of a copy of the order to be entered hereon, pays to the complainant’s solicitors such costs, including their costs upon this appeal. But if such costs are not paid within the time