Kittredge v. Claremont Bank

14 F. Cas. 701, 3 Story 590

• Court: U.S. Circuit Court for the District of New Hampshire
• Decided: May 15, 1845
• Status: Published

Opinion

■STORY, Circuit Justice.

Some suggestion has been made in relation to the application made to amend the bill at the same time that exceptions were filed, as if it imported a positive irregularity. But this is not so; for it is entirely competent for the court, in order to avoid unnecessary delays, to grant leave to amend the bill, and, if the exceptions are allowed, to require the defendants to answer the amended matter and the exceptions at the same time, allowing a suitable time to accomplish the same.

An objection has been taken as .preliminary in its nature, and superseding the examination of the exceptions, if it be sustained by the court. The objection is, that the plaintiff became bankrupt, and obtained his discharge before the present suit was brought, and that his assignee is a proper party to the suit. It might be sufficient to say, that in the present stage of these proceedings, upon exceptions to the answer, the objection does not properly arise, for as the defendants have consented to answer, and have not taken the objection of bankruptcy in limine, by way of plea, but have consented to answer, they ought to answer fully to the merits. But in truth, there is nothing in the objection itself, with reference to the gravamen of the present bill. The plaintiff became a bankrupt in July, 1842; and the cause of action, as stated in the bill, arose from transactions originating in April, 1S43, and from a misapplication of monies, on which the assignee had and conld have no interest under the bankruptcy. These monies did not constitute any part of the assets of the bankrupt before his bankruptcy.

The defendants have declined arguing the exceptions, and it seems to me very properly, for, in substance, they are all well founded. For the most part they fall within the reasoning of the case of Byam v. Brooks [Case No. 1,949], and most of the cases cited by Story in Equity Pleading (sections 854, 855, 855a). It does not seem necessary to make any distinction between the answer of the bank, and the joint answer of Briggs and Stevens, as to the nature and character of the exceptions. I shall, therefore, allow the exceptions; and as the amendments were received by the district judge, I presume, that they were deemed by him as proper foundation for leave, to amend; and therefore I shall direct that the amendments and the exceptions be answered by the defendants on the rule day (the first Monday) in September next, unless further time shall then be allowed by the district judge. Neither party, however, is entitled to costs, for both parties have placed themselves in a predicament to require the court to abstain from the allowance; the plaintiff by asking for leave to amend, and the defendants by filing insufficient answers.

■ [Exceptions were filed to defendants’ amended answers, and said exceptions jvere sustained. Case No. 7,859.1