Unknown County MI Archives Court.....Freeman, V. Michigan State Bank 1837
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File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 8:21 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.
FIRST CIRCUIT

John Freeman v. The Michigan State Bank.

Amendment of plea. In an application to amend the defendant's pleading, the 
proposed amendments should be set out. (a.)

A plea may be allowed to be amended for the purpose of placing before the 
court an additional fact unknown to the defendant when the plea was filed, and 
consistent with the defense then made. But it will not be permitted for the 
purpose of setting up a fact or state of facts inconsistent with the original 
defense.

This was a motion for leave to amend a plea. The motion was based upon an 
affidavit, setting up certain facts which had come to the knowledge of the 
defendant's officers after the original plea had been filed in the cause, and 
which it was proposed to incorporate therein. The proposed amendment was set 
out in the application.

Joy & Porter} for the application, cited Story's Eq. PL., secs. 701, 895, 896, 
897, 902, 903; 13 Ves., 438.

H. H. Emmons, contra, denied that this was a proper case for amendment. Pleas 
are only allowed to be amended in case of surprise, mistake or inadvertence; 
not to meet facts which defendant claims not to have known, but which he might 
have known had he been sufficiently diligent. He cited Story's Eq. Pl., secs. 
701, 896; 1 Hoff. Ch. Pr., 226; Coopers Eq. Pl., 336, 337.

The Chancellor.—Leave to amend is usually based upon mistake, inadvertence, 
etc.

In this case it is sworn in the affidavit, that the additional fact which it 
is desired to present to the court by this amendment, was unknown at the time 
of filing this plea.

Courts have always been rigid in requiring that amendments of this kind should 
be stated in the application, and a defendant will not usually be permitted to 
set up a fact or a state of facts inconsistent with the original defense. But 
the amendment here contemplated goes no farther than to state an additional 
fact unknown at the time of filing the original plea, and perfectly consistent 
with it.

In examining all the cases cited, I can find no one where leave to amend under 
circumstances analogous to these has been refused, where the amendment is 
necessary to place the grounds of defense fairly before the court.

The rule is stated in Cooper's Pleading, 336, that it is not usual to refuse 
leave to amend pleas, yet the defendant must be tied down to a very short time 
in which to amend; and this is fully sustained by the case cited, 2 Vesey, 85, 
where leave was given to plead de novo.

This practice is consistent with the practice in permitting amendments to 
sworn answers, and I can see no reason why the rule should not be admitted in 
amending pleas as well as sworn answers.

This is not a case where a party first obtains the opinion of the court, and 
then sets up an additional fact known to him at the time of pleading, or a 
defense inconsistent with the first plea.

It appears that this was unknown at the time of filing the plea, but has since 
been ascertained. I can see no danger in allowing an amendment in such a case 
when it seems absolutely necessary to place the defense fairly before the 
court.

On the contrary, it seems to me to be in entire harmony with the practice in 
analogous cases. If a plea may be amended upon the ground of a mistake or 
inadvertence, I do not see why it should not be for the purpose of stating a 
newly discovered fact necessary to the defense and consistent with the 
original plea.

Amendment allowed if made within ten days.

----------------------
(a.) See Mason v. Detroit City Bank, ante, 222; Graves v. Niles, post, 332. 

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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