Page:Federal Reporter, 1st Series, Volume 8.djvu/891

LICHTEHAUEE V. CHENET. ���8?T ���Nelson, D. J. On June 13, 1881, an order was obtained, on motion, giving the complainant leave to am«nd his Mil on file in certain re- spects ; among others, so as to make the Bxchange Bank of Canada a party defendant. The order was granted under equity rule 29, the first paragraph of which reads: , "After an answer, plea, or de- murrer is put in, and before replication, the plaintiff may, upon motion or petition, without notice, dbtain an order from any judge of the court to amend his bill of complaint on 'or before the next rule- day,",etc. �The bill was regularly ameuded by the complai'uant within the time specified, and the a.mendment8 eerved as the order' provided. A riiotion is now made by the solicitdrs, who appear' for the Exchange Bank of Canada, tb etrike from the reijord the ordei*, ot set it aside, so as to get rid of the amendments. The bill, beiiig properly aitoended, acCording to the equity praotioe must stand, and the defendants- are required to answer, file a plea, or dfemur thereto. �It is not' possible to get rid of the amendments regularly made by a motion to have the order under rule 29 set aside. The complain- ant is entitled under this rule to thus amend his bill of couiplaint, ajod the motion! must be denied. ' �This decision does not meet the question -frhich is urged upon the court by the defendant's solioitor, viz, : that suit- against the bank is barred by 'the limitation in the last clause of section 5057, Eev. St., (section 2, baukrupt act.) �If a demunrer is interposed, the bill as now framed against the bank would be dismissed for the reason that conceding every state- ment in the amendment true with reference to a secret fraud of the Exchange Bank of Canada, there is no allegation that it wals discov- ered within the time allowed by the statute of liinitations to avoid the bar. �The Bolicitors for the complainant urge that the allegation that the bank "now claims some interest," etc., is sufficient, the amendment being allowed June 13, 1881; but non constat ih.aX the complainant only discovered the alleged fraud at that time. �If the complainant amends his bill in this respect, and a demurrer is interposed, I will hear further argument, if desired, on the bar of the statute. ��� �