original Bill must be introduced, not by way of Amendment, but by a Supplemental Bill. Suppose a Release given after the filing of the original Bill, it could not be stated by way of Amendment. In some Cases, which form exceptions to the general Rule, circumstances occurring subsequent to the filing of the Bill may be introduced by way of Amendment, as when Administration is taken out after the Bill filed (h) by an Administrator; or where an Agreement is afterwards stamped (i). With these Exceptions, there is no Case where Matter subsequent to the Bill has been allowed to be added by way of Amendment; and if it were feasible, great inconvenience would be the consequence. Let me hear the Demurrer before I determine upon the Plea. Mr. Treslove:— The Demurrer arises out of another part of the Amendments relative to the Key, in which it is said, that, on the 9th of Nov. 1815, the Key was sent to the Defendant, a fact which took place subsequent to the filing of the Bill. As the time when the Key is said to have been sent is mentioned in the Amendment, we have demurred to that part of the Bill; but as the time when the Cause was tried was not stated in the Bill, we were under the necessity of pleading to that part of the Bill, to introduce the fact, that the Trial was on a day subsequent to the filing of the Bill. The Plea and the Demurrer both depend upon the same reasoning. Both are good, or both bad. (h) See 3 P. Wms. 351, (i) Davidson v. Foley, 3 Bro. 1816. KNIGHT T. MATTHEWS. This is a mere contest as to the Form of Pleading, for it is admitted that, if the Facts in question cannot be introduced by way of Amendment, they certainly may by a Supplemental Bill. The Plaintiff when he filed his Bill, stated the Matters as they then stood. The Answer was put in on the 14th Nov. 1815. In the interval many circumstances might have occurred, and the Defendant, when he puts in his Answer, must state the facts as they then are; and if circumstances are introduced in the Answer which occurred subsequent to the filing of the Bill, the Plaintiff must be allowed to make Amendments to the Bill, so as to show that such new circumstances mentioned in the Answer are not of the colour he represents them, and so as to obtain a complete Answer as to such circumstances. The Defendant, by his Answer, says that," the Action came on to be tried at the last Assizes held for the County of Gloucester, when Defendant recovered a Verdict therein;" and as to the Key, he says, "he afterwards sent the Key of the House to Messrs. Bateman and Jones, the Solicitors of the Plaintiff." Upon this Answer, which states two facts which occurred subsequent to the filing of the Bill, the Plaintiff could not go into Evidence as to the ground on which the Defendant obtained a Verdict, or to prove that the Key, when sent, was not accepted, those facts not being in Issue. Is it not then competent to the Plaintiff to introduce, by Amendment, a Statement which will put those facts in Issue, and afford the means of explaining those circumstances which are so relied upon by the Defendant in his Answer? There must be some mode of meeting that defence. It is said, it can only be done ,1816. KNIGHT V. y a Supplemental Bill. Would not that occasion Bills without end?-for then, all facts occurring between the Bill and Answer must be stated by Supplemental Bill, and thus, fresh facts occurring, many such Bills MATTHEWS. might be necessary. A Defendant generally states the facts as they are at the time of filing his Answer, but no instance is stated where that has occasioned a Supplemental Bill. The Defendant has in his Answer alleged facts posterior to the filing of the Bill; and all the Plaintiff wants is an opportunity of explaining those facts. A Bill when amended is considered only as one original Bill; how then can the Defendant plead and demur as to Matter to which he has answered? This Case steers clear of the Cases cited in favour of the Plea and Demurrer. This is the Opinion I have formed, looking at the Case upon Principle; but as no express Authority is cited on the part of the Defendant, I shall not immediately decide. The Vice-Chancellor, on a subsequent day, stated, he remained of the Opinion he had expressed. Plea and Demurrer over-ruled. 3d July. August 7th. Husband and Case, Ex parte ANDREWS in re EMETT (a). THE facts, and material Arguments in this appearing in the Judgment of the Court, renders any further Statement unnecessary. Wife assign to two Creditors of the Husband a if she survived a She dies before Contingent Interest, to which the Wife would be entitled 1816. Ex parte ANDREWS, in re EMETT. The VICE-CHANCELLOR Stephen Emett, the Bankrupt, being indebted to each of his Brothers, Charles Emett and Thomas Emett, in 1814, in order to cover the Debts due to them, executed an Assignment to each of them of a contingent Interest, to which he was entitled, determinable on the Death of his Wife Margaret. In January 1815, each of the Brothers insured his Interest in the Life of Margaret E.; and on her Death, in March of the same Year, received from the Insurance Office 2007. Under the Commission subsequently issued against the Bankrupt, each of the Brothers proved the whole of his Debt, without deducting the Sum received from the Insurance Office. The Question is, whether so much of the Proof should be expunged. Upon the Argument, I thought it right to be furnished with the Deeds of Assignment. They are both dated 29th Oct. 1814, made by the Bankrupt and his Wife, of the one part, and Charles Emett and Thomas Emett respectively, of the other part. The first Deed assigns Three Fourths of the Interest to Charles, the second, One Fourth to Thomas, upon Trust, in the first place to reimburse themselves all Costs, Expenses, &c.; next, to retain their Debts respectively, and then to pay the Overplus to Stephen Emett. Upon the Argument, this Case was assimilated to that of Godsall and Boldero (b), of which it is the converse. Here the Party has recovered, not his Debt, but the Sum insured by his Policy. But it is said, that inasmuch as in that Case the transactions were blended, and what was paid by the Executors absolved (b) 9 East, 72. the Office, so payment by the Office discharges the Debt. It may be argued, however, that it does not necessarily follow, that the Court, deciding that the Party having been paid by the Executors, could not recover from the Office, would have decided, that having been paid by the Office, he could not recover from the Executors. The Contract with the Insurance Office must be a Contract of Indemnity; it would be legal only as an Indemnity commensurate with the Interest of the Party. The Contract is to Indemnify from Loss, but there was no Loss. That Case, therefore, though it bears on this question, does not conclude it. another point arises on the Assignments, which must decide this Case. The Assignments have placed Charles and Thomas Emett in the situation of Trustees. The Bankrupt and his Wife have conveyed their contingent Interest to them, as Trustees, to act for them, with Indemnity against Expenses, Covenant not to interfere, and express devolution of their whole Right and Title. But From the date of this Contract the Bankrupt and his Wife could not themselves have insured in respect of their Property-having assigned it to a Trustee, they no longer had an Insurable Interest. The Trustee then acting in part for himself, in part for them, does an act beneficial to both Parties; at his own Expense meliorating the Property; laying out Money for the benefit of himself and his Cestui que Trust. The result of the act is, that the Estate is benefited 2007. Shall he be allowed to appropriate this benefit? It is clear, that a Trustee never can use for his own 1816. Ex parte ANDREWS, in re EMETT. |