"
The Bill states a verbal contract between Edward Jackson and
the defendant Cutright, by which it was agreed that if Edward
Jackson would clear out, and pay all expenses attending the
procuring a Patent, to a pre-emption right, which the said
defendant had to a certain quantity of land, that Edward
Jackson should be entitled to one half of the land thus
secured; that Edward Jackson, in pursuance and in execution
of this contract, did procure for said defendant the Warrant
Entry, and Survey, and patented 733 acres of land: that said
defendant had often acknowledged the contract, and proposed
to Edward Jackson to draw a deed for his part of the land,
which, through confidence in said defendant, had been
deferred; that said defendant had sent different persons to
purchase his part of said Edward Jackson; that, at length,
taking up the idea of defrauding said Edward Jackson, the
said defendant had entirely refused to execute his part of
the contract by conveying to the said Edward Jackson his
portion of the land; that he has sold part of the tract to
one Clark, who had notice of Edward Jackson's claim, and
is made a defendant; and the plaintiff prays a specific
execution of the contract."
"
Cutright's Answer states, that he had heard that there
was a verbal agreement, or conversation rather, between
Edward Jackson and this defendant's father, that if
Edward Jackson would get the Warrant, he might have half the
land. In his answer to the first interrogatory, he says, he
does not recollect making such a contract himself; but that,
it is possible, he might have agreed to fulfill his
father's. He believes Edward Jackson purchased the
Warrant; but he does not know whether at his own expense;
that he paid Edward Jackson ten dollars, not long before he
got the papers, to send to Richmond for the Patent; that he
heard Edward Jackson say the Warrant cost him twenty dollars:
and he has a strong recollection that he heard his father
say, in his life time, that he had paid for it; that Edward
Jackson claimed half the land, (under the old contract with
his father, as he supposes,) but said if the defendant would
give him the residue of the 1400 acres, (after deducting the
1130,) and 181. in cash, defendant might have the whole land;
which the defendant avers he did do. This new agreement in
the close of the Answer, not being responsive to the Bill,
needs the support of other evidence to establish it. There
appears none. This is the case on the Bill and Answer: of the
evidence I shall take notice presently.
Before
I proceed to consider the merits of the case, it may be
proper to notice some irregularities which have occurred in
its progress through the Court below. If the defendant does
not file his answer within three months after the filing of
the Bill, having also been served three months with the
subpoena, the plaintiff may have either a general commission
to take depositions, (which course he will generally pursue,
where he does not need the aid of the defendant's
answer,) or he may have the defendant brought in to answer
interrogatories; (and this he will do, where his Bill seeks a
discovery, and he cannot make out his case without an
application to the defendant's conscience:) in either
case, he may proceed on to hearing, as if the Answer had been
filed and the cause at issue. But the Court, for good cause
shewn, may allow the Answer to be filed, and give a farther
day for hearing. Under this law, the complainants, at the
November Court, 1810, obtained an order of Court, for
bringing in the defendant at the next Term to answer
interrogatories. At the next Term, however, it should seem
that the defendant shewed good cause to the Court in excuse
of his contempt, for he was then permitted, on motion, to
file his Answer. Thus far all is correct. And, now, the order
bringing in the defendant to answer interrogatories, should
have been discharged for two reasons, first, because, by
coming in and shewing such cause, as induced the Court to
prevent the filing of the Answer, he has cleared his
contempt: 2dly, because, by filing the Answer, the
interrogatories became useless: for no interrogatories could
properly be filed, but such as were extracted from the
plaintiff's bill, and fairly pertinent to the case stated
in it: and to all such the Answer would respond if
sufficient, and if insufficient, the Court would have refused
to receive it, but would have considered the defendant still
in contempt, and directed the proper proceedings. Instead of
this course, the Court, at the same Term, at which they
received the defendant's Answer, ordered that he should,
either at that or the next Court, answer the interrogatories,
and that, in the mean time, he should be attached by his
body: in other words, taken into actual custody. This order
was certainly improper. There is another error in this
Record; probably a clerical error. By the Act of Assembly
constituting and regulating the Chancery Court, it is enacted
that, after a general commission, six months shall be allowed
for taking depositions, and either party at the end of six
months may set the cause for hearing. It does not appear from
the Record, that this cause was ever set for hearing. I think
that step ought to appear: of this, however, I am not very
certain."
"
Having noticed these irregularities, I shall proceed with the
cause. But, before I come to its merits, there is still
another preliminary point to settle; that is, whether the
Court below did right, in permitting the defendant, on the
cause shewn by him, to amend his Answer, by adding the pleas
of the statute of frauds and perjuries, and the statute of
limitations. I have examined this question with some
attention. Courts of Chancery, without difficulty, permit
amendments in small matters, before issue joined; but, after
issue joined, depositions taken, and the cause ready for
hearing, they are extremely cautious of permitting a
defendant to amend his Answer; and for this strong reason
the plaintiff's case is now fully disclosed; the
defendant is fully apprized of the weight of his evidence; he
feels where it presses most heavily, and where his own cause
is weakest, and most in need of support: to suffer him, at
this time, to avail himself of his own oath by way of
amendment, would be to give him an unfair advantage, and
holds out too strong a temptation to perjury. It ought,
therefore, but rarely to be permitted. There are cases,
however, in which Courts do suffer it; for there is no fixed
rule on the subject, (say the books,) but every application
of this kind is to the discretion of the Court. In the case
of Liggon v. Smith, reported in 4 Hen. & M., 405, the
Chancellor of the Richmond District, after reviewing most of
the English cases on the subject, concludes that, under some
circumstances, leave to amend his answer may be given to a
defendant; and lays down rules for regulating such motions in
his Court. In Pearce v. Grove, 3 Atk. 522, the Court
refused to allow the...
