Evory v. Candee

The proposed amendment sets up a new defence. It was not introduced, nor was it intended by the pleader to be introduced, in the accurately and carefully drawn answer Of the defendant. There was no inadvertence, or slip, or mistake.

The affidavit of the .defendants’ manager that he supposed the answer contained a denial of the manufacture of the boots or shoes described or claimed in the plaintiffs’ patent, I do not regard as material. The fact is that the defence is not one which was relied upon as a defence to the bill at the time the answer was filed. But the defendant has the benefit of this defence before the master, before whom it can be shown that the licensed article has not been manufactured by the defendant.

The inconvenience of trying this question before the master, (who has commenced his hearing) is not equal to the inconvenience and expense which would result from delay and a trial before the court The pecuniary result which is probably involved in this suit does not justify the delay, inasmuch as the decision of the question will be reached before the master, and by exceptions to his finding. The motion is denied.