
    The Western Reserve Bank vs. Stryker and others.
    An answer will not be allowed to be amended or a supplemental answer to correct an error in the original answer, to be filed, except with great caution.
    When a supplemental answer, to correct an error, is allowed, it is always upon equitable terms, as to costs, and furnishing copies gratis.
    An answer containing mere clerical or accidental mistakes, may be amended by supplemental answer; and so when matters have arisen or come to the knowledge of the defendant after the first answer has been put in.
    When an answer is amended or a supplemental answer is put in, the old answer mqst remain on file as it was originally put in.
    An application from a defendant to amend his answer or to file a supplemental answer, so as to change the whole grounds of his defence set up in the first answer, will not be entertained.
    
      Henry K. Smith, one of the defendants in this suit, and a counsellor in this court, presented his petition for leave to amend the answer put in by him in this cause. The petition states in substance, that this suit is instituted to foreclose a mortgage executed by the petitioner and others, to Hiram Pratt, now deceased—that the petitioner is the only defendant who has appeared and answered—that in his answer he insists, as a defence, upon the fraudulent representations of Pratt, as to the title of the mortgaged premises—and that the mortgage was assigned to the complainants in payment of a precedent debt due from Pratt to the complainants—that a replication is filed to said answer, but no proofs taken. The petition further states, that the petitioner has recently discovered that the bond and mortgage were assigned to the complainants upon a consideration which he deems renders it void, as in violation of the usury laws, and restraining law of this state—and that the administrators of Pratt, have informed him, that they intend to file a bill against the complainants to get possession of the said bond and mortgage, and prays that his answer may be amended, by striking out the statement of the assignment of the bond and mortgage, as therein stated, and inserting a statement of the facts set forth in the petition, as constituting a violation of the usury and restraing laws.
    
      C. B. Lord, Contra.
   The Vice Chancellor.

When this petition was presented, I was under the impression that there would be but little difficulty in allowing the amendment asked for upon proper terms. As it was, however, the first application of the kind made to me, it "3ecame m7 duty to examine the question. I find, upon such examination, that it was the former prac^ce °f die English court of Chancery, in proper cases, to permit the answer on file to be amended, but that this has been almost entirely superseded by leave to file a supplemental:answer to correct any error. 1 Hoff. Ch. Pr. 241 ; 19 Vesey, 628 ; 4 Johns. Ch. Rep. 375 ; 2 Vesey and Beames, 256 ; 1 Smith’s Ch. Pr. 270 ; 10 Vesey, 284, 401. I learn also, from an examination oí the cases, that the court permit supplemental answers of this character to be filed with great caution and even reluctance. In Edwards vs. McLeary, 2 Vesey and Beames, 256, Lord Eldon says, “ the course has “ therefore been to permit an additional answer to “ be filed; always with great difficulty when an ad- “ dition is to be put upon the record prejudicial to “ the plaintiff; though the court would be inclined “ to yield to the application, if the object was to “ remove out of the plaintiff’s way, the effect of a “ denial, or to give him the benefit of a material ad- “ mission.” See also Strange vs. Collins, 2 Vesey and Beames, 163. In Curling vs. Marquis Townshend, 19 Vesey, 628, language^of a similar import used, saying in plain terms, that the court would look with great care and jealousy, before it will allow a defendant to withdraw a statement that is beneficial to the plaintiff—and in that case the application was refused. In Bowen vs. Cross, in our own "court of Chancery, and almost the only case in our court; 4 Johns. Ch. R. 375. Chancellor Kent, holds the same general doctrines, and has a condensed reference to most of the then decided cases. Further cases may be found, and the general doctrine briefly summed up in 1 Smith’s Chancery Practice, 269; and some cases are referred to, in 3 Equity Digest, by Barbour and Harrington, page 171 ; and Hoffman in his Chancery Practice, vol. 1, page 241, has notes of several cases. From all the authorities it appears that the court allow answers to be amended, or supplemental answers to be filed with great caution in every case—that it is generally granted upon payment of the costs of opposition, and requiring the defendant to furnish a copy of the supplemental answer gratis, and give the complainant the usual time to except. When there are mere clerical or accidental mistakes, the application is favorably received, even if it in some degree affects the merits of the cause—if the affidavit is as full as is required in Wells vs. Wood, 10 Vesey, 401. TV here the matter which is the ground of the amendment has occurred, or come to the knowledge of the defendant since the filing of his original answer, the amendment will in proper cases be allowed.

If the fact to be added by the supplemental answer, is prejudicial to the plaintiff, the application is granted with difficulty, but if for his benefit, readily. If the fact to be expunged from the answer, is favorable to the plaintiff, it will hardly be suffered to be expunged. Indeed, in any event, by the present practice, the old answer must remain on file as it was first put in. It*is said, also, that statements in a supplemental answer, contradictory of the first answer, will not in any event be allowed ; but this must be taken with some qualifications, as in 2 Vesey and Beames, 163, and in some other cases, when further answers were allowed, there was a contradiction between the new and old answers.

In the case before us, the effect of permitting the defendant to amend his original answer, or to file a ^ supplemental answer, will be to permit him to aban^on his original ground of defence, and assume an entire new ground of defence. The amendment would alter and entirely change the whole basis of the defendant’s defence. His first answer sets up fraudulent representations/^ the mortgagee as to the title of the mortgaged premises, as the ground of defence. His proposed amendment seeks to substitute for this, the defence of usury, and a violation of the restraining laws, in the transfer of the mortgage from the mortgagee to the complainants ; and it seems to me upon full examination, that to allow, in this mode, the substitution of an entire new defence, would be extending the privilege of amendment farther than it has ever yet been done, and farther than I am warranted to go by well settled principles.

It is true the defendant swears that the subject matter of this new defence came to his knowledge after filing the original answer, but this can hardly justify him in changing the position which he assumed by the first answer, so entirely as he proposes to do. The complainants have a right to use the allegations in the 'first answer for what they are worth.

I do not, in coming to this conclusion, put it at all upon the ground that the defence proposed to be thus set up is an unconscionable one.*

It is true, as a general rule, that when a party applies to the favor of the court with a view of letting in a defence of usury, the court will not grant him the favor, unless he will first do equity, i. e. pay the amount of money actually borrowed, with simple interest thereon. This is a rule upon which I understand this court usually acts ; and its propriety, has been recognised by the court ol errors m the case of Beach vs. The Fulton Bank, 3 Wendell’s Rep. 573.

But it does not appear to me that the facts in this case bring it within the principle of that rule. Here the original mortgage is untainted with usury. This defendant does not pretend that he has suffered by usuiy, or that the mortgage, when it passed from his hands, was affected by that taint. It is not usury practised upon him that he wishes to set up, but he wishes to set up usury committed in the assignment of the mortgage, which he supposes renders the title to the mortgage void in the hands of the complainants. He wishes, in other words, to test the question whether the mortgage legally belongs to the complainants or not, so as to protect himself from paying it twice. In this point of view, I can see no objection to the amendment on account of the nature of the defence proposed to be interposed.

It is upon the first ground, before mentioned, that the motion is denied. The defendant may possibly have a remedy by bill, in nature of a cross bill, but his present motion is denied with costs to be taxed.  