assembly, as appears in proof. But for that circumsta.nce I should impose a heavier fine. I do not find in the case that good will and fair intention which in cases of wrongful injunctions sometimes reduce the offence so that the court is satisfied with the penalty of costs. The case requires more than this to sustain the dignity of the court against wilfal breaches of its authority. So ordered.
and others v. MORGAN and others.
(Oircuit Court, D. New Jer,C'J/.
Leave to amend an answer, in a suit to foreclose a mortgage, by the insertion of an additional fact, refused, where such fact was known to the defendant at the time the answer was filed.-[ED.
On Bill to Foreclose, etc. NIXON, D. J. This is an application to the court to allow one of the defendants to amend his answer. The bill was filed to foreclose a mortgage executed originallyby one Joseph Cross, Jr., to Joseph Cross,to secure the payment of $8,500. After the due execution of the encumbrance, the mortgaged premises were sold to one James R. English, who assumed the payment of the mortgage as a part of the consideration money. English, in turn, conveyed the property to Anthony Q. Keasbey and Edward A. S. Man, as joint tenants, who also assumed the payment of the same. Keasbey and Man, holding the property as trustees for certain creditors, transferred it. to J. Pierpont Morgan,who, in the deed of conveyance to him, also assumed the payment of the mortgage as a part of the consideration of the transfer. The executors of the mortgagee filed a bill against the, said Morgan and others, praying therein not only for a decree of fQrecloaure, but also that the said Keaaby, Man, and Morgan might be respectively decreed to pay the deficiency, if the v.6,no.8-16
proceeds of sale of the mortgaged premises should not be sufficient to pay the amount due on the mortgage, with interest and costs. In answering the bill, the defendant Morgan admits that the premises were conveyed to him by Keasbey and Man, and that the deed contained a clause to the effect that he assumed and agreed to payoff and discharge the mortgage, as a part of the consideration thereof; but alleges that the said land had been conveyed to Keasbey and Man in exchange for other land of equal value by them held as trustees under a certain agreement, dated March 14, 1873, entered into by one William J. Pollock, as party of the first part, Drexel, Morgan & Co., of the second part, Addison Brown, party of the third part, Morton, Bliss & Co., party of the fourth part, and A. Q. Keasbey and Edward A. S. Man, party of the fifth part, wherein it was, among other things, agreed that the title to certain premises should be taken by Keasbey and Man, as trustees, to hold the same upon trust, to sell and dispose thereof in a certain manner and upon certain terms in the said agreement provided for, and to distribute the proceeds of the sale to certain persons in that behalf, .in the said agreement mentioned, with power and authority to the .trus.tees to cause the premises to be laid out in streets and lots, and to make the necessary exchanges of land to effect the Eame; that the before-mentioned conveyance by English to Keasby and Man was received by them as such trustees, and not otherwise;- and in the performance on their part of a previous agreement, before made by the said Pollock, as the owner of certain other land, with the said English, to exchange the same for the premises thereby conveyed; and the said premises became and were part of the fund so held in trust by Keasbey and Man; and that the said Keasbey and Man had no right, power, or authority, as such trustees, to make or give any promise, covenant, or agreement whereby they, as such trustees, assumed the payment of any mortgage uponsfl,id land, or charged the fund in their as trustees, with any such burden. "'1'8 answer then alleges that the sale for in the
was had, and that under the provisions thereof .to the effect that any party thereto might bEl. at liberty to bid and purchase at such sale, the said Drexel, Morgan & Co. purchased thereat, among others, the mortgaged premises described in the bill of complaint; that the same were sold free and clear of all encumbrances and liens; that in purchasing,. the said Drexel, Morgan & Co. were acting only for the purpose of protecting themselves against severe loss upon their debt against Pollock; and that, thereafter, he, the defendant, being a member of the firm of Drexel, Morgan & Co., received the deed: above mentioned in his own name, and now holds the same, as trustee, for said firm, "and tlUlf upon such conveyance to defendant, tlw said Keasbey and Ma.n claimed that they were entitled to such covenant of assumption of the mortgage as such trustees, and that the same was given and intended only as indemnity to them as such."
The amendment asked for is to strike out all of the last clause of the above sentence after the word "firm," and to insert in lieu thereof the following: "Audthat. upon such conveyance to defendant the said Keasbey and Man, claimentitled to such covenant of assumption of. ing that they the aforesaid mortgage as and for an indemnity to them as such trustees, inserted the same in said conveyance for that purpose,and not otherwise, without the knowledge, consent, or p:J;iyity of this defendant; and that defendant had no knowledge or information of the fact that such covenant of assumption:was so inserted therein, or that such claim. was so made by said Keasbey and Man until after the commencement of this Courts of equity have great reluctance to listen to applica._ tionsof this kind. After a defendant has deliberately sworn to his answer, it has always' been reckoned a dangerous pretctice to allow him to amend by putting in!1 new and different is especialiy the case after the vital statement of facts. cbaracter of th'e' change proposed, has been discovered during the taking the testiJIlQny in th,e . Enough has beEmrevealed by the affidavits pntin, in support of ,the application to amend, to render' it quite
the defendant Morgan had very little personal knowledge of the transactions out of which the present controversy grew. He left the details of the proceedings and negotiations to his legal advisers. Reasonable allowance should, therefore, be made for his ignorance of particular facts. But it cannot be claimed that, when his answer was sworn to, he did not know the fact, which was then not stated, and which he now wants inserted as a supplement to his defence. In his answer he alleges that Keasbey and Man claimed: they were entitled to the covenant of assumption of payment of the mortgage, as his trustees, and that the same was given and intended only as indemnity to them as such. In the amendment it is proposed to insert the additional fact that such covenant was put in without the knowledge, consent, or privity of the defendant. Daniells, in his Ch. Pl. & Pro 799, states broadly that the court never permits amendments of this nature where the application has been made on the ground that the defendant, at the time he filed his answer, was acting under a in point of law. Nor is he allowed to contradict the statements of his first answer. Livesey v. Wilson, 1 Ves. & Bea. 149; Vand.erveer v. Reading, 1 Stick. 446; Greenwood v. Atkinson, 4 Sim. 61. Nor do we find any well-considered case, authorizing a supplemental answer, which embraces any fact that was known to the defendant at the time his answer was sworn to, except in a few instances, where the court considered the reasons satisfactory which were given for their original omission. Smith v. Babcock, 3 Sum. 583; Suydam v.·Truesdale, 6 McLean, 459; Bowen v. Cross, 4 John. Ch. 876; Huffman v. Hummer, 2 C. E. G. 272. And here appears to be the difficulty with the defendant's case. He has not obtained his knowledge of the additional fact, which he wishes to put in, since his answer was filed. He knew it then, if he did not when the suit was commenced; and if it be a material fact it should ha.ve been then stated. The leading case in this country on the subject of amendments to an answer is Smith v. Babcock, supra, in which the learned judge (Story) says: "Considering the solemnity of answers, I should be sorry to see any practice introduced
CROSS V. MORGAN.
which should in any, the slightest, degree encourage negligence, indifference, or inattention to the duties imposed by law upon parties who are called upon to make statements under oath. And it seems to me that, before any court of equity should allow such amended answers, it should be perfectly satisfied that the reasons assigned for the application are cogent and satiElfactory; that the mists kes to be corrected or the facts to be added are made highly probable, if not certain; that they are material to the merits of the case in controversy; that the party has not been guilty of gross negligence, and that the mistakes have been ascertained and the new facts have come to the knowledge of the party since the original answer was put in and sworn to." In Huffman v. Hummer, supra, the late Chancellor Green, in denying a motion to amend, said: "It is clear that the mistake in the case has not been ascertained, and that no new fact has come to the knowledge of the defendant since the answer was sworn to. Every fact now within the knowledge of the defend::tnt was known to him at the time of putting in the answer, and it would tend to the encouragement of gross negligence to permit a defendant to remould an answer, to the truth of which he has sworn, with a full knowledge of all the facts. · · · If it was a mere mistake of the law, it is clear that the answer cannot be amended on that ground." In Suydam v. Truesdale, supra, the court refused, as a matter of course, leave to file a supplemental answer to a bill of foreclosure, because it appeared that the fact which the de.. fendants wanted to introduce was known to them at the time of the original answer, and that it had not been omitted by their mistake. Without multiplying authorities, which seem to be all in the same direction, the application to amend in this case must be denied.
(Circuit Oourt, D. New Jersey.
March 22, 1881.)
JOINT TRESPASS-SEVERAL BUITS-UNSATISFIED JUDGMENT.
An unsatisfied judgment against one joint trespasser is no barto a suit against another for the same trespass. . Lovejoy v. Murray, 3 Wall. I.-[ED.
On Motion to Strike Out Pleas, etc. NIXON, J. This is an application to strike out the seoond and third pleas filed by the defendant corporation to an amended declaration. The suit was originally brought in the supreme court of the state of New Jersey by the plaintiff against this defendant and one John McAndrews, as joint trespassers. The defendants severed in their pleadings, and after issue joined, and heforetrial, the Delaware, Lackawanna & Western Railroad Company, availing themselves of the provisions of the aots of congress on the subject, removed the issues which they had raised into this court for trial. The cause as to the other defendant, McAndrews, remained in the state court. It was there tried, and judgment was obtained against him in favor of the plaintiff for upwards of $2,000. After the removal here the plaintiff applied for and obtained leave to amend his declaration, and the defendant company pleaded thereto: (1) The general issue, and (2) and: (3) that the alleged grievanoeswere committed by the defendant, if committed at all, jointly with one John McAndrews; that before the filing of the amended declaration and of said. pleas,to-wit, on the twentysixth day of February, A. D. 1878, the plaintiff had reoovered a judgment against the said McAndrews in this suit; then pending in the. supreme oourtof the state of New Jersey, for $2,199.08, for damages whioh he had sustained by reason of the committing of the identioal trespasses in the said deolaration mentioned; that the oourt of errors and appeals of the state of New Jersey had affirmed the said judgment on appeal, and that the same was still remaining in full foroe and effect.