Freeman v. Michigan State Bank

1 Harr. Ch. 311

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor.

Leave to amend is usually based upon mistake, inadvertence, &c.

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 defence. 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 t.o amend under circumstances analogous to these has been refused, where the amendment is necessary to place the grounds of defence 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 (,]10 case cited, 2 Vesey 85, where leave was given to plead de n0V0-

This practice is consistent with the practice in permitting amendmentg tQ 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 defence 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 defence fairly before the courtl

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 defence and consistent with the original plea.

Amendment allowed if made within ten days.