tain the benefit struments. defaced and avoided, as stated in the bill," and the demurrer In Suits to obwas allowed. "It is to be observed, that the Lord Chief of cancelled InBaron (Sir A. Macdonald), in his judgment, appears to have proceeded upon the ground that the plaintiffs had not confined themselves to seeking a discovery and re-execution of the bond, but had gone on to pray for payment of the sum already due; though certainly that distinction does not appear to have been recognized by the other learned Baron (Thompson), who delivered his opinion upon the occasion. It is, however, submitted that the reason given for the decision in King v. King, and recognized by Lord Redesdale, is quite satisfactory; for as the ground for the interference of a Court of Equity in such a case is not the loss, but the cancellation of the instrument so as to render it impossible to use it at law, no relief will be granted by the Court until it is satisfied that the cancellation has taken place, by the production of the cancelled instrument: whereas, in the case of the loss of a document, the Court has in general no means of satisfying itself that the document has been lost but the assertion of the party himself, which it consequently requires should be made upon oath. any Another case, in which it is required that the bill should be accompanied by an affidavit, is, where a bill is filed under the stat. 53 Geo. 3, c. 159, which was passed for the purpose of limiting the responsibility of shipowners in certain cases. By the first section of the Act, it is declared that no owner of ship or vessel shall be liable to make good any loss or damage, occasioned without the fault or privity of such owner, which may happen to any goods, wares, merchandise, &c., laden on board any such ship or vessel; or which may happen to any other ship or vessel, or to any goods, wares, merchandise, &c., on board any other ship or vessel, further than the value of his own ship or vessel; and the freight due, or to grow due for the voyage which may be in prosecution, or contracted for at the time of the happening of such loss or damage. And by the seventh section it is enacted, that if several persons shall suffer any loss or damage in or to their goods, &c., ships or otherwise, by any means for which the responsibility of the owners is limited by the Act, and the value of the ship or vessel and freight should not be sufficient to make full compensation to In suits to limit 53 Geo. 3, In Suits under 53 Geo. 3, c. 159. In suits to examine witnesses de bene esse. all such persons, it shall be lawful for the person liable to make such satisfaction for such damage, or for any one or more of them, on behalf of themselves and the other owners of such ship or vessel, to exhibit a bill in any Court of Equity having competent jurisdiction against all the persons who shall have brought any actions or suit, and all other persons who shall claim or be entitled to any recompense for any loss or damage happening by the same accident or act, to ascertain the amount or value of the ship or vessel's appointments and freight, and for payment and distribution thereof rateably among the several persons claiming recompense, in proportion to the amount of their loss or damage, according to the rules of equity. And by the same section it is provided, that the plaintiff or plaintiffs in such bill shall annex to such bill an affidavit that he, she, or they do not directly or indirectly collude with any of the defendants thereto, or with any other owner or owners of the same ship or vessel, or with any other person or persons, but that such bill is filed for the purposes only of justice, and to obtain the benefit of the provisions of the Act; and that the several persons named as the defendants to the said bill are, as the person or persons making such affidavit verily believes, all the persons claiming to be entitled to recompense for loss or damage sustained by the same accident, act, neglect or default, or on the same occasion; and that all such defendants do claim such recompense, and to be entitled to proportions of the value of such ship or vessel, appurtenances and freight; and that no other person claims to be entitled to any proportion thereof under the provisions of the Act; and that the amount of the value of such ship or vessel, appurtenances and freight, does not exceed a sum to be specified in such affidavit; and that the several claims made by the defendants to such bill do exceed the amount of the value of such ship or vessel, appurtenances and freight(g). The other cases, in which bills are required to be accompanied by an affidavit, may be mentioned here, although they do not come within the description of bills which are now the subject (g) Under this Act, the plaintiff, on filing the bill, must obtain an order for payment of the value of the ship, appurtenances and freight, into Court. Vide post. Interpleading Suits. such as Examination of of discussion. These are bills for the purpose of examining In Suits for the witnesses, de bene esse, where, from circumstances, the age or infirmity of witnesses, or their intention of leaving bene esse. the country, it is probable the plaintiff would lose the benefit of their testimony; in which case an affidavit of the circumstances, by means of which the testimony may probably be lost, must be annexed to the bill (h); and bills of interpleader, In interpleading which also, to avoid a demurrer, must be accompanied by an suits. affidavit by the plaintiff that there is no collusion between him or any of the parties (i). the omission of the affidavit It is to be observed that, in cases of this nature, advantage In what manner can only be taken of the omission of an affidavit, by demurrer; and that where a plaintiff, instead of demurring on this ground in the first instance put in a plea to the whole bill, which was over-ruled, he was not allowed to demur ore tenus, on the ground that the necessary affidavit was not annexed (k). may be taken advantage of. SECT. VII. Of Filing the Bill. Filed. AFTER a bill has been drawn, or perused and signed by In what manner counsel, it must be fairly engrossed on parchment, and carried to a clerk in court to be filed. The clerk in court first enters it in his cause-book, and then in the general bill-book of the office; after which he marks it at the top, with the day of the month and year on which it was brought into the office, and subscribes his name at the bottom, on the left side: he then delivers it to his six clerk to be filed, or, if the six clerk be absent, he puts it over his study-door, and the six clerk having entered it in his book, files it(). In the Court of Exchequer the process of filing bills is In the Exche nearly the same. They are filed of the term in which the quer. pro cess issues or is tested, and are signed at the head by one of the sworn clerks, who writes the term, the day on which it is filed, and the county thereon; and, after obtaining a fiat from (h) Ld. R. 121; Philips v. Carew, 1 P. Wms. 117. (i) Ld. R. 40. (k) Hook v. Dorman, 1 S. & S* Filed. In what manner the Lord Chief Baron, or one of the Barons, at the foot of the bill, for issuing the process (which is a matter of course), the bill is then entered in the bill-book, under the head of the county where either party dwell, or the property which is the subject of the bill appears to be situated (m). When bill must be dated. No pleading of record before filing. -nor can any office copy be made. By the orders of the Court, commonly called Lord Clarendon's orders, it is directed that all bills be dated the same day they are brought into the Six Clerk's Office, and that no six clerk presume to antedate any bill; and that no under-clerk presume to keep any bill by him, but with the first opportunity deliver the same to the six clerk, or his allowed deputy, to be accordingly filed (n). It is also ordered that no bill, answer, or other pleading shall be said to be of record, or to be of any effect in Court, until the same shall be filed with such of the six clerks with whom it ought to remain (o); and by a previous order, dated in 1646 (p), it is ordered that no bills, answers, or other pleadings shall be copied before they be duly filed. In what cases Amendments may be made. By inserting new matter or parties. By the omission of matter or par ties already there. SECT. VIII. Of amending Bills. WHEN a plaintiff has preferred his bill, and is advised that the same does not contain such material facts, or make all such persons parties as are necessary to enable the Court to do complete justice, he may alter it, by inserting new matter subsisting at the time of exhibiting his bill, of which he was not then apprised, or which he did not think necessary to be stated, and may add such persons as shall be deemed necessary parties; or in case the original bill shall be found to contain matter not relevant, or no-longer necessary to plaintiff's case, or parties which may be dispensed with, the same may be struck out and the original bill, thus added to or altered, is termed an amended bill (q). But, although it is the practice to call a bill thus altered an amended bill, the amendment is in fact esteemed but as a continuation of the original bill, and as forming part of it; for both the original an amended bill constitute but one record (r), so much so, that where an original bill is fully answered and amendments are afterwards made, to which the defendant does not answer, the whole record may be taken, pro confesso, generally (s), and an order to take the bill pro confesso as to the amendments only will be irregular (t). An amended bill must therefore, in all cases, be addressed to the same Lord Chancellor, Lord Keeper, or Lords Commissioners to whom the original bill was addressed, although a change has taken place in the custody of the Great Seal, between the times of filing the original bill and the amendment (u). But, although the original and amended bill constitute but one record, and are so considered at the hearing, the defendant, in case he has answered the original bill, ought to answer the amendments only (x). Where there is a bill, or cross bill, and the plaintiff in the original suit amends his bill before answer he will lose his priority of suit, and his right to have an answer before he is called upon to answer the cross bill. And it seems that, if such amendment be made after an order has been obtained for time to answer the cross bill till the answer to the original bill shall have come in, such order will in that case be discharged upon motion, without costs (y); and where a plaintiff, after amending his bill, obtains an order for time to answer a cross bill till the answer to his original bill shall have come in, the order for time will be discharged for irregularity, with costs (z). In what cases Amendments may be made. Original and amended bill constitute but one record. And must be taken pro confesso together. Must be addressed to the same judge. Defendant after ginal bill to answer amended only. answer to ori Plaintiff in bringing bill by amending, loses his priority over cross bill. alteration of parties. Amendments to a bill are of two sorts, those which relate Amending by to parties, and those which affect the substance of the case: amendments relating to parties are either by the addition or omission of them: the practice of the Court, with respect to amendments of this nature, has been before pointed out. There is also another class of amendments relating to parties, (r) Vere. Glynn, 2 Dick. 441. (s) Jopling v. Stuart, 4 Ves. 619. (1) Bacon v. Griffith, ib n. (4) Hind 22. (x) Ibid. (y) Johnson v. Freer, 2 Cox, 371. By changing plaintiffs into defendants. |