¶11. Bankruptcy — Equity Practice — Amendments under Equity Kule 29.
¶2Amendments, regularly made under equity rule 29, cannot be avoided by a motion to strike from the record, or set aside, the order allowing them,
¶32. Equity Pleadinc.
¶4Semble that a bill to set aside a conveyance by the bankrupt, on the ground of fraud, is demurrable in the absence of anjr allegation that the fraud was discovered within the time prescribed by the statute.
¶5W. P. Warner and Hiram F. Stevens, for complainant.
¶6J. B. & W..H. Sanborn, for defendant bank.
¶8On June 18,1881, an order was obtained, on motion, giving the complainant leave to amend his bill on file in certain respects ; among others, so as to make the Exchange Bank of Canada a party defendant. The order was granted under equity rule 29, the first paragraph of which reads: “After an answer, plea, or demurrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, obtain an order from any judge of the court to amend his bill of complaint on or before the next rule-day,” etc.
¶9The bill was regularly amended by the complainant within the time specified, and the amendments served as the order provided. A motion is now made by the solicitors, who appear for the Exchange Bank of Canada, to strike from the record the order, or set it aside, so as to get rid of the amendments. The bill, being properly amended, according to the equity practice must stand, and the defendants are required to answer, file a plea, or demur thereto.
¶10It is not possible to get rid of the amendments regularly made by a motion to have the order under rule 29 set aside. The complainant is entitled under this rule to thus amend his bill of complaint, and the motion must be denied.
¶11This decision does not meet the question which is urged upon the court by the defendant’s solicitor, viz.: that suit against the bank is barred by the limitation in the last clause of section 5057, Rev. St., (section 2, bankrupt act.)
¶12If a demurrer is interposed, the bill as now framed against the bank would be dismissed for the reason that conceding every statement in the amendment true with reference to a secret fraud of the Exchange Bank of Canada, there is no allegation that it was discovered within the time allowed by the statute of limitations to avoid the bar.
¶13The solicitors for the complainant urge that the allegation that the bank “now claims some interest,” etc., is sufficient, the amendment being allowed June 13, 1881; but non constat that the complainant only discovered the alleged fraud at that time.
¶14If the complainant amends his bill in this respect, and a demurrer is interposed, I will hoar further argument, if desired, on the bar oí the statute.