Wolcott v. Mayor of Wilmington

The original information sought, in general, to enjoin the payment of money, by a municipal corporation acting pursuant to an ordinance, irregularly enacted. After the bill was filed, and before the order of the Chancellor restraining the payment had been actually served, the money was paid. Later an Act of the General Assembly was passed purporting to validate the ordinance.

After reasonable notice by the solicitor for the relator to the solicitor for the moving defendants of an intention t'a ask for leave to file these particular amendments to the bill, and before answer filed by the defendants, except The Union National Bank, leave was granted, the solicitor for the moving defendants not appearing to the notice. The amendments set up the above new facts and claimed that the Act was unconstitutional. A prayer was added requiring a refunding of the money to the bank so that the status quo prior to the filing of the bill be maintained.

*3Without discussing the general rule that new matter, meaning thereby matters which have occurred since the filing of the bill, should be brought into the case by supplemental bill and not by an amendment thereto, it is sufficient to state that the motion as made will be denied. The defendants had opportunity to do so before the filing of it, and cannot by motion to strike out obtain what he did not ask for when opportunity was afforded. It is also stated by an author of repute, that before answer filed such new matter may be put in by amendment. Story’s Equity Pleading, §885. Here the defendant which has answered, viz., the bank, is not in any way affected by the new matter injuriously. It alleged payment of a check drawn regularly on the city funds in its hands, and the amendments and amended prayers seek to have restored to the bank the money so withdrawn by the check which it was alleged was irregularly issued, even if regular in form. Clearly the bank is not affected by the new matter. Indeed, the bill might, perhaps, be dismissed as to it, in view of the new facts.

The general rule excluding amendments as to new matter has been abolished elsewhere, and it is a rule technical in character in any view and of little service to litigants. According to Lord Redesdale, the practice of introducing by supplemental bill matters arising subsequent to the institution of the stilt, was established to preserve order in the pleadings and for the convenience of the defendant. Redesdale on Pleading (4th Ed.) 207. This was quoted in Wray v. Hutchinson, 2 Myl. & K. 236. If the defendant has not answered no injury can be done him by such amendments, and he is not inconvenienced thereby. It is, therefore, a reasonable exception to the general rule, and such amendments should be allowed before answer, rather than apply an ancient technical rule discarded elsewhere as obstructive to speedy justice for no good purpose.

For both reasons the motion is refused. An order will be made fixing the time within which the defendants who have not answered shall plead, answer or demur to the bill as amended.