Majority
p. 184Lyon & Brockway against Tallmadge and others. August 30th and 31st.
Headnote
Where a bill, on demurrer, is dismissed for want of equity, on the merits of the case, as stated, leave to amend the bill will not be granted.Amendments are granted only where there is some defect, as to parties, or some omission, or mistake, of a fact or circumstance, connected with the substance of the case, but not forming the substance itself, or where there is some defect in the prayer for relief.
THE bill stated, that Brockway was imprisoned on a ca. sa., at the suit of Tallmadge and others; that Lyon <$/• Brockway, and the defendant, Dewey, as surety, gave to Richmond, sheriff of the county, one of the' defendants, a bond for the liberties of the goal. Tallmadge fy Co. brought an action against the sheriff, for the escape of the defendant from the gaol liberties, which was tried in June, 1811, and the jury, under the direction of the judge, found a verdict for the plaintiffs. It appeared on the trial, that Brockway returned within the liberties before suit brought. A case having been made and argued, before the supreme court, judgment was given thereon, for the plaintiffs, in May, 1812; and the case having been, by consent, turned into a special verdict, a writ of error was brought to the court for the correction of errors. Lyon and Dewey undertook to defend the suit brought against the sheriff for the escape, and employed counsel for that purpose; and, to indemnify the sheriff, confessed judgment on the bond which had been given for the gaol liberties. Tallmadge and others offered to relinquish the judgment which they had
p. 185
obtained against the sheriff, for the escape of Brockway, if the sheriff would assign to them the judgment confessed to him on the bond given for the gaol liberties. The sheriff . „ ° ° , , informed the plaintiffs and Dewey, the person who gave bond, of this proposal, and that he should accede to it, unless they would deposit the money,, or give further security for his indemnity, which they were unable to do; and the sheriff, in September, 1813, against the wishes, and without the assent, of the plaintiffs and Dewey, assigned the judgment he had obtained against them on the said bond, to Tallmadge Co., who thereupon released the judgment they had obtained against the sheriff for the escape; and which prevented the further prosecution of the writ of error, brought on that judgment. That T. Mumford, as attorney for Tallmadge Co., applied to Lyon, and representing to him the danger of having the payment of the whole judgment fall on him alone, if there should be any delay, obtained the consent of Lyon, that execution should immediately issue on the judgment; and an execution was accordingly issued against the plaintiffs and Dewey, and levied on their real and personal estates, which were sold by the sheriff, at auction, for an inconsiderable sum. The plaintiff, Lyon, alleged, that Dewey, being displeased at Lyon's having consented to the issuing the execution, had associated himself with Tallmadge and others, the plaintiffs in the suit at law, and had become hostile to the plaintiffs, and unwilling to do any act favourable to the plaintiffs, or unfavourable to the defendants, with whom he had made his peace. That the proceedings in the suit had been stayed by an order of the supreme court, but he, Lyon, apprehended that steps would be speedily taken to dispose of his property under the execution ; that the question as to the liability of the sheriff"for the escape, where the prisoner returned before suit brought, had been brought before the court of errors, in a similar case; and the judgment of the supreme court, in Tillman v. Lansing, on which the court relied in giving judgment in
p. 186August 30th. cited 10 Johns. Rep. 509 . 549. 563. Pothier on Oblig. par. 4. c. 3. s. 6. Hinde’s Pr. 17. Barton’s Suit in Equ. 40. 2 Atk. 3. 13 Vesey, 114. 2 P. Wms. 156. 3 Atk. 755. Dickens, 533. Cooper’s Eq. Pl. 129. 139. Mitford, 4. 2 Johns. Cas. 1 . 2 Powell on Cont. 163, 164. 2 Vesey, 159. 3 Vesey, jun., 253.
the suit of Tallmadge and others v. Richmond, had been reversed.
The bill, then, stated some agreement that the case of the piajnt;gg should be brought within the last decision of the court of errors; and there was a prayer for general relief, and for an injunction to stay all proceedings, by the defendants, on the judgments at law.
There was a general demurrer to the bill.
Gold; for the plaintiffs,
Riggs, contra.
There is no equity appearing on the face of this bill. The assignment of the judgment against Lyon and Dewey, to Tallmadge and others, and the release of the judgment against Richmond, are not charged as fraudulent acts, or done with a fraudulent intention. The very state of the case repels any possible presumption of fraud. Richmond gave notice to the plaintiffs of the proposition made to him, and required of them the deposite of the sum, for which he stood charged, so as the more effectually to indemnify him; that was not done. He then required additional security: that was not given ; and he told the plaintiffs that he should make the assignment, if this effectual indemnity was not given. There was no concealment or fraud in the case; but due notice was given of his intention. Nor was it an unreasonable or oppressive demand on the part of Richmond. He stood charged with the escape, by the judgment of the supreme court; and Lyon and Dewey stood
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behind him, and were bound to save him harmless. He had a right to- be acquitted and discharged from all hazard, and was not bound to permit a litigation to go on in his name, and at his risk. He had a right, at any time, to relieve himself from the burthen of the risk, and of the litigation, by placing the surety in his place, with all his means of defence. It was a right founded on a clear fundamental principle of equity. This he offered to do, and asked only a deposite of the sum for which he stood charged; or, if that could not be done, that he should receive additional security. There is no hardship, or injustice, or fraud, imputed to Richmond, either byx any averment, or by the facts stated in the bill. But the bill admits, that, after all this was done, the plaintiff consented that the assignees should issue execution on the judgment confessed. If ever the maxim applied, it does here, that volenti non Jit injuria. With a knowledge of all the facts, and as the last act in the history of the case, the plaintiffconsentstohavehis,aud his co-sureties’ property charged, in execution, and sold for the payment of the debt. This consent is alleged to have been obtained upon the representations of Th. Mumford, as counsel for the defendants | but Mumford is no party to this bill, and is not called upon to answer to the truth of those representations, nor are these representations even charged as being untrue, or made with any fraudulent intention.
August 31st.
The bill, therefore, does not contain any gravamen, or equity. There is nothing that the defendants need to answer. The bill must be dismissed with costs.
Gold, for the plaintiff, then moved for leave to amend the bill.
Riggs, contra.
The motion for leave to amend the bill, is not founded upon any specified omission or imperfec
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tion. The demurrer was decided upon the merits, and on the ground that the bill contained no equity. A general leave to amend would be the same as leave to make a new an¿ j think the indulgence - of amendments is not to be carried so far. If the bill be found defective in its prayer for relief, or in proper parties, or in the omission or mistake of some fact or circumstance connected with the substance' of the case, but not forming the substance itself, the amendment is usually granted. But the substance of the bill must contain ground for relief. There must be equity in the case, when fully stated, and correctly applied to the proper parties, sufficient to warrant a decree. Here, as I have already observed, the substance of the bill is defective. The plaintiff gives a plain and candid statement of his case, and it cannot entitle him to relief, for the reasons assigned in pronouncing the decree. In the absence of authority, I should deny this motion ; because, as far as the doctrine of amendments can be reduced to general rules, or principle, it is against it. But there are cases which govern the present one. In Napier v. Effingham, (2 P. Wms. 401.,) Lord Ch. King observed, that there was not any precedent, in this court, of an amendment to a bill in a part wherein it has been dismissed upon the merits ; and in a case before Lord Talbot, and which is cited by Mr. Cox, in his notes to P. Williams, (2 P. Wms. 300.,) the Chancellor observed, that, after a demurrer to the whole bill allowed, the bill was regularly out of court, and there was no instance of leave to amend it.
Motion denied, with costs.
Cases cited
- Tunno & Cox v. Lague 2 Johns. Cas. 1 p. 186