Lawrence v. Bolton

New York Court of Chancery

Lawrence v. Bolton

3 Paige Ch. 294

CourtNew York Court of Chancery

DecidedMay 15, 1831

StatusPublished

Cited by6 cases

This text of 3 Paige Ch. 294 (Lawrence v. Bolton) is published on Counsel Stack Legal Research, covering New York Court of Chancery primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lawrence v. Bolton, 3 Paige Ch. 294 (N.Y. 1831).

Pincite

Opinion

The Chancellor.

The defendants’ solicitor was under b mistake in supposing he was entitled to notice of the application for leave to file the supplemental bill. Such notice is only necessary where the complainant wishes to obtain a preliminary injunction, or some other special relief founded on the supplemental bill, previous to the time for the appearance of the defendants in the supplemental suit. In general, the leave to file such a bill is obtained upon an ex parte application. (2 Paige's Rep. 335.) And if it is filed without any sufficient grounds, the defendants must make the objection by plea, answer or demurrer. (1 Paige's Rep. 200. 2 Mad. Rep. 53, 387. 17 Ves. 144.) The bill was regularly filed in this case; but it was irregular for the complainant to enter an order to answer the same, without taking out process of subpoena, and before the defendants had appeared to the supplemental bill. By the practice of the court of chancery in this state, no subpoena ad respondendum is necessary upon a mere amendment, unless there are new defendants. But upon a supplemental bill, or bill of revivor, the complainant must proceed by subpoena, unless the defendant elects to appear voluntarily. (1 Brown's Ch. Prac. 267.) The defendants in this case have waived the irregularity of the order, to answer in forty days, by appearing before the injunction master and obtaining further time to answer the supplemental bill. As the issuing of the subpoena in this case, where the defendants were actually before the court in the original suit by their solicitor, was a mere matter of form, there is no reasonable grounds for inter[296]*296fering to correct the irregularity at this time; except so far as is necessary to give the defendants an opportunity to make then: defence. As they are residing out of the state, they are to have two months from the time of the entry of the order upon this decision, to plead, answer or demur to the supplemental bill, or the same may be taken as confessed against them.

As both parties are in the wrong as to their proceedings, neither is to have any costs on this application.

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The Chancellor.

The defendants’ solicitor was under b mistake in supposing he was entitled to notice of the application for leave to file the supplemental bill. Such notice is only necessary where the complainant wishes to obtain a preliminary injunction, or some other special relief founded on the supplemental bill, previous to the time for the appearance of the defendants in the supplemental suit. In general, the leave to file such a bill is obtained upon an ex parte application. (2 Paige's Rep. 335.) And if it is filed without any sufficient grounds, the defendants must make the objection by plea, answer or demurrer. (1 Paige's Rep. 200. 2 Mad. Rep. 53, 387. 17 Ves. 144.) The bill was regularly filed in this case; but it was irregular for the complainant to enter an order to answer the same, without taking out process of subpoena, and before the defendants had appeared to the supplemental bill. By the practice of the court of chancery in this state, no subpoena ad respondendum is necessary upon a mere amendment, unless there are new defendants. But upon a supplemental bill, or bill of revivor, the complainant must proceed by subpoena, unless the defendant elects to appear voluntarily. (1 Brown's Ch. Prac. 267.) The defendants in this case have waived the irregularity of the order, to answer in forty days, by appearing before the injunction master and obtaining further time to answer the supplemental bill. As the issuing of the subpoena in this case, where the defendants were actually before the court in the original suit by their solicitor, was a mere matter of form, there is no reasonable grounds for inter[296]*296fering to correct the irregularity at this time; except so far as is necessary to give the defendants an opportunity to make then: defence. As they are residing out of the state, they are to have two months from the time of the entry of the order upon this decision, to plead, answer or demur to the supplemental bill, or the same may be taken as confessed against them.

As both parties are in the wrong as to their proceedings, neither is to have any costs on this application.

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Bluebook (online)

3 Paige Ch. 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawrence-v-bolton-nychanct-1831.

Opinion

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