Nellis v. Pennock Manuf'g Co.

38 F. 379, 1889 U.S. App. LEXIS 2824

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: February 13, 1889
• Status: Published

Opinion

Butler, J.

I have no doubt of the power to allow the proposed amendment to the bill. Such an amendment is not contemplated by the rules prescribed by tlie court, governing amendments generally. Tremaine v. Hitchcock, 23 Wall. 518; Neale v. Neales, 9 Wall. 1; Mitf. Eq. Pl. 326, 331; Story, Eq. Pl. §§ 904, 905; Daniell, Ch. Pr. 463, 466: McArtee v. Engart, 13 Ill. 242. It is quite clear that the claim covered by the amendment might have been joined originally in the claim embraced in the bill. Henry v. Soapstone Co., 2 Ban. & A. 221; Packer Co. v. Eaton, 12 Fed. Rep. 865; Spring v. Sewing-Machine Co., 13 Fed. Rep. 446; Grim’s Appeal, 105 Pa. St. 375; Hoyt v. Spraig, 12 Chi. Leg. N. 25; Sage v. Woodin, 66 N. Y. 578; Kimball v. Lincoln, 99 Ill. 578, 5 Bradw. 316; Brooks v. Brooks, 12 Heisk. 12; Mead v. Raymond, 52 Mich. 14, 17 N. W. Rep. 221. The claim was omitted by oversight. The evidence, however, on which it rests has been mainly taken. If the amendment was not allowed, the parties would be subjected to delay and expense, with no possible advantages to either of them. It will therefore be allowed, subject to any defense which defendant might have presented if the claim had been embraced in the bill when filed. If additional costs result from the omission so to embrace it, they will be placed on the plaintiff.