CROSSMAN v. GRIGGS

Equity Pleading and Practice, Decree, Amendment. Practice, Civil, Amendment, Costs. Waiver. Attorney.

An order in a rescript of this court of "Bill dismissed" and a docket entry in the Superior Court in pursuance of it do not constitute a final decree, and the plaintiff thereafter may be allowed by the Superior Court to amend by changing his suit in equity into an action at law.

Where a plaintiff is allowed to amend a suit in equity into an action at law on payment of costs to the defendant by a certain day and the defendant accepts a payment of the costs after the day named and retains the money, and subsequently files a general appearance and answer to the declaration at law, this is a waiver by the defendant of any right to object to the plaintiff's amendment on the ground that the plaintiff did not pay the costs within the time named in the order allowing the amendment.

The attorney for a defendant may make a valid agreement in writing with the attorney for the plaintiff extending the time for the payment of costs which the plaintiff has been ordered to pay as a condition on which he is allowed to amend a suit in equity into an action at law.

KNOWLTON, C.J.

The rescript "Bill dismissed," and the docket entry in pursuance of it, were not a final decree which precluded further action in the case. The court had power to allow an amendment changing the suit in equity into an action at law. This was expressly decided after full consideration in a similar case. Merrill v. Beckwith, 168 Mass. 72.

The order authorizing the amendment was complied with. Under the circumstances, the fact that the payment of costs was not made on the day mentioned in the order is immaterial. The defendant, on August 5, 1904, having knowledge by his attorney of all the facts, accepted the costs, the payment of which was made the condition of allowing the amendment, and he still retains them. Whether he had personal knowledge or not, he is bound by the knowledge of his attorney. Sartwell v. North, 144 Mass. 188. Afterwards he filed a general appearance and an answer to the declaration at law. This conduct in itself ought to be held a waiver of his right to object that the original condition stated in the order was not complied with literally.

The condition as to payment of costs at the prescribed time was for the benefit of the defendant, and he might waive it by an extension of the time, or otherwise. A valid agreement in writing for an extension of the time was made by the attorneys of the parties and subsequently filed with the papers in the case. There is express statutory authority for similar agreements in the R.L.c. 173, §§ 69, 70. See also Wieland v. White, 109 Mass. 392; Moulton v. Bowker, 115 Mass. 36; Shattuck v. Bill, 142 Mass. 56.

Exceptions overruled.