Wayne County MI Archives Court.....Mason, V. Detroit City 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, 7:24 am

Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY
FIRST CIRCUIT.


Mason and Pritchette v. The Detroit City Bank and others.

Amendments to answer, how made. Where leave is given to amend an answer, a new 
answer, with the amendments added, must be made, filed, and copy served, or 
the original answer withdrawn by leave of the court, and the amendments added; 
or the amendments must refer to the portions of the answer on file, intended 
to be amended, and specifying their nature and application.

Amendments in the form of affidavits, without referring to the answer, are 
irregular, and a motion to dissolve an injunction will not be heard upon them.

This was a motion to dissolve an injunction on bill and answer.

The defendants at a former term had obtained leave to amend their answer. The 
papers on file, claimed by the defendants to be amendments, were drawn in the 
form of affidavits, and do not purport, either in the body or indorsement of 
them, to be amendments to the answer on file.

The complainants object to hearing the motion to dissolve the injunction, on 
the ground that no amendment to the answer has been filed or served.

T. Romeyn, for complainants.

The defendants, Howard and the bank, had leave to amend their answer, by 
having the answer of the bank sworn to, and its seal verified.

Without adverting to the substance of the affidavits filed as amendments to 
the answer of the bank, the complainants insist that these amendments are not 
legally and formally before the court, and that they have not been duly served 
upon the complainants.

The amendments do not refer to the pleadings on file. 

They should have been added to or incorporated with them in some way or other.

A new answer should have been drawn, and the amendments made a part of it; and 
a copy of the whole should have been served on the complainants.

The first answer was a nullity, for all purposes of a motion to dissolve the 
injunction. This is admitted; of course, there was no necessity for excepting 
to it to prevent such a motion. When it was perfected by being properly 
authenticated, then the right to except became available. But after this no 
copy was served.

The affidavits of Harris and Brown were served, but with no notice that they 
were intended as amendments to the answer; consequently the complainants have 
not had an opportunity of excepting to the amended answer.

Even if the first position of the complainants be incorrect, still it is 
evident that they have a right in some way or other to their exceptions, and 
that this is lost if the motion to dissolve is now heard.

If the court should not deem it necessary that the defendant should prepare a 
new answer, still it is beyond question that the amendments should refer to 
the answer on file. (See 1 Hoffm. Pr., 240, 290, 292.)

The amendments should have been made in one of three ways, viz:

1st. A new answer should have been drawn, the amendments added, and the whole 
served and filed; or

2d. The old answer should have been taken from the files by leave of the 
court, the amendments added, and properly served on the complainants; or

3d. The amendments should have been drawn, referring to the answer on file, 
and a copy should have been served, specifying their nature and application.

The papers now produced are mere general affidavits. They do not purport to be 
amendments. This practice is irregular and mischievous. They do not purport to 
be amendments to an answer. They do not refer to the answer as on file} and if 
false, no perjury can be assigned on them.

J. M. Howard, for defendants.

The Chancellor.—The first question presented is whether there has been such an 
amendment made to the answer as would compel the complainants to regard the 
answer as filed, and to except, or reply to it.

The defendants, Howard and the Detroit city bank, had leave to amend their 
answer. The papers purporting to be an amendment are in the form of 
affidavits, and are so indorsed.

The amendments should have been added to or incorporated with the answer in 
some way.

A new answer should have been made, the amendments added, served and filed ; or

The original answer should have been withdrawn by leave of the court, and the 
amendments added and served on the complainants; or

The amendments should have been drawn, referring to the portions of the answer 
on file intended to be amended, and specifying their nature and application.

The papers filed are merely general affidavits, and do not purport to be 
amendments.

The motion is therefore premature, and cannot now be heard.

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

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