Hope v. Brinckerhoff , 4 Edw. Ch. 660 ( 1845 )

The Vice-Chancellor :

The ground on which this demurrer is taken is, that the matter of substance introduced by way of supplement might have been introduced into the original bill by way of amendment; and, hence, that a supplemental bill is unnecessary. It is true that wherever the same end can be obtained by amendment, the court will not permit a supplemental bill to be filed (Mitford, 62); but new matter or events which have arisen since the filing of the original bill cannot be set up by amendment—and if they are intended to be invoked as a ground for relief, resort must be had to a secondary bill. Now, in this instance, the share or interest of the defendant in the estate of his deceased mother existed and was just as perfect before and at the time of filing the original bill as it was afterwards; and, by amending the bill, the complainants could have had a decree against the defendant Brinckerhoff, compelling him to assign the claim to a receiver so that the same should be collected and applied to the payment of their debt. If, however, it was necessary or if not actually necessary, yet if it was proper to make John L. Lawrence a party defendant in order directly to reach the funds in his hands as administrator, that course could only be pursued by means of a supplemental bill. John L. Lawrence, it appears, did not become such administrator and possess himself of the assets until long after the original bill was filed; and, having funds in his hands belonging to the defendant, as this bill now shows, I cannot undertake to say that it was improper to make him a party and to ask that he be decreed to apply so much of it as may be necessary to satify the complainant’s judgment debt and to have him enjoined in the mean time from paying the money over to the defendant. This specific relief, it seems to me, the complainants have a right to ask for; and having that right, it is only available to them by a supplemental bill. If the complainants had been content to seek payment out of this specific fund, through the medium of an assignment by Mr. Brinckerhoff to the receiver in the cause, it might have been necessary to have done no more than to amend the bill by alleging the existence of the property in the hands of Lawrence under a grant of letters of administration, though subsequent. Such a bare allegation being admissible as an amendment within the exception to the general rule adverted to by the chancellor in Buck, ex'r. v. Buck, 4 Saratoga Sentinel Rep. 4, 5.

Order: that demurrer be overruled, with costs.