Page images
PDF
EPUB

c. 86.

158 16Vict. lating the period within which a plaintiff may obtain an order

of course to amend, means the last answer required in the then state of the record. (Forman v. Gray, 9 Beav. 200.) The “ last of several answers," in the 66th Order of May, 1845, and the “last answer," in the 68th Order, mean the last answer that is required to be put in before a replication can be filed. (Arnold v. Arnold, 1 Ph. C. C. 805 ; see Sprye v. Reynell, 10 Beav. 351.) A special order for leave to amend a bill is not to be granted without affidavit to the effect, first, that the draft of the proposed amendments has been settled, approved, and signed by counsel: and, secondly, that such amendment is not intended for the purpose of delay or vexation, but because the same is considered to be material for the case of the plaintiff. (67th Order, May, 1845.) In an application under this order, it is enough for the plaintiff to swear that the amendments are considered by him and his advisers to be material. (Collett v. Preston, 3 Mac. & G. 432.) After the plaintiff has filed, or undertaken to file, a replication, or after the expiration of four weeks from the time when the answer, or last answer, is deemed sufficient, a special order for leave to amend a bill is not to be granted without further affidavit, showing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into such bill. (68th Order, May, 1845.) A plaintiff applying for leave to amend under this order, must not only swear that the proposed amendments are material, and could not, with reasonable diligence, have been sooner introduced into the bill, but he must also show the materiality of the amendments by bringing them before the court, and must state facts, so as to enable the court to judge of the truth of his deposition on the point of reasonable diligence. (Stuart v. Lloyd, 3 Mac. & G. 181.) Such affidavits as are mentioned in Orders 67 and 68, are to be made by the plaintiff and his solicitor, or by the solicitor alone, in case the plaintiff, from being abroad, or otherwise, is unable to join therein. (69th Order, May, 1845.) An affidavit to amend an information, must be made' by the solicitor to the relators. (Attorney-General v. Wakemun, 15 Sim. 358.) Where the General Orders require an affidavit of the solicitor, an affidavit of the solicitor's clerk is not sufficient; but in cases where the facts to be deposed to are within the personal knowledge of the clerk only, the court may require an affidavit from both. (Christ's Hospital v. Grainger, 1 Phill. C. C. 634.) Where the plaintiff obtains an order for leave to amend his bill, and does not amend the same within the time limited for that purpose, the order to amend becomes void, and the cause, as to dismissal, stands in the same situation as if such order had not been made. (70th Order, May, 1845.) Where plaintiffs, through the misconduct of their solicitor, had neglected to amend their bill within the time limited, a motion for further time

c. 86.

was refused. (Clarke v. Mayor of Derby, 10 Jur. 978.) An 158 16Vict. amendment at the hearing will not be allowed, so as to alter the case made on the bill. (Watts v. Hyde, 2 Ph. C. C. 406. See further as to amending bills, Dan. Ch. Pr. 376, 403, 2nd ed. Order 12th May, 1838.) (k) If the new matter introduced does not exceed in any

New

engrossone place two folios of ninety words each, the record contain- ment. ing the original bill may be interlined; or if the amendment be by omitting some original matter, the same is struck out of the record. But if the amendment be too considerable to be introduced by interlineation in the original record, a new bill is engrossed, and annexed to the original bill. (Hinde, 22. See Boyd v. Mills, 13 Ves. 86.) If a new engrossment is necessary to be filed of record, counsel's signature must be attached to it. (Kirkley v. Burton, 5 Madd. 378; Webster v. Threlfall, 1 Sim. & S. 135; Pitt v. Macklew, 1 Sim. & S. 136, n.) If the description of the plaintiff, when the bill is amended, is not the same as that in the original bill, the new description ought to be stated in the amended bill. (Kerr v. Gillespie, 7 Beav. 296.)

IX. It shall be lawful for the Lord Chancellor Power to from time to time to make any order or orders cellor to redirecting that the provisions hereinbefore contained vive the preas to printing or otherwise shall be discontinued as to filing of or suspended until further order, and to direct that bills, &c. all or any of the present practice as to the filing of bills and claims, and the issuing and service of subpæna sand writs of summons, may be revived and come into operation as if this act had not passed (1).

(1) See 12th and 13th Orders, 7th August, 1852.

X. Every bill of complaint to be filed in the said Bills of comcourt after the time hereinafter appointed for the Plintoto commencement of this act shall contain as concisely narratives of as may be a narrative of the material facts, matters, facts, &c. diand circumstances on which the plaintiff relies, numbered such narrative being divided into paragraphs num- paragraphs, bered consecutively, and each paragraph containing, contain interas nearly as may be, a separate and distinct state- rogatories. ment or allegation (m), and shall pray specifically for the relief which the plaintiff may conceive himself entitled to, and also for general relief (n); but such bill of complaint shall not contain any interrogatories for the examination of the defendant.

(m) See 14th Order, 7th August, 1852, and form of bill,

c. 86.

158 16Vict. schedule (B). The rights of the several parties, the injury com

plained of, and every other necessary circumstance, as time,

place, manner, or other incident, ought to be plainly, yet sucStatements and allega

cinctly alleged. Whatever is essential to the rights of the tions in bills. plaintiff, and is necessarily within his knowledge, ought to be

alleged positively and with precision ; but the claims of the defendant may be stated in general terms; and if the matter essential to the declaration of the plaintiff's claims is charged to rest in the knowledge of the defendant, and must of necessity be within his knowledge, and is consequently the subject of a part of the discovery sought by the bill, a precise allegation is not required. (Mitf. Pl. 47, 48, 5th ed. See Buring v. Nash, 1 Ves. & B. 551.) Time ought to be alleged with such certainty as to prevent doubt, but it was held that an allegation, that a person died on or about the 2d July, 1806, was sufficiently definite to show that the person died in 1806, so as to prevent the plaintiff from being barred by the Statute of Limitations, 3 & 4 Will. 4, c. 27, ss. 2, 24. (Leigh v. Leigh, before Lords Commissioners, 6th and 8th August, 1835, Dan. Ch. Pr. 351, 2nd ed.)

If title deeds or other instruments are referred to, they should not be set out verbatim, but the substance of such portions only of them as are necessary to a right understanding of the real matters of the bill. It may be noticed here that, in stating deeds or other written instruments, it is usual to refer to the instrument itself in some such words as the following; viz." as in and by the said indenture, reference being thereunto had, when produced, will more fully and at large appear.” The effect of such reference is to make the whole document referred to part of the record. It is to be observed that it does not make it evidence. In order to make a document evidence, it must, if not admitted, be proved in the usual way; but the effect of referring to it is to enable the plaintiff to rely upon every part of the instrument, and to prevent his being precluded from availing himself at the hearing of any portion of the instrument which may not be inserted in the bill, or which may be inaccurately set out. (Dan. Ch. Pr. 349, 350, 2nd ed.) Where the will concerns real estate, the reference should be to the will only, for the plaintiff cannot, in a question as to real estate, avail himself of a reference to the probate copy, which is not evidence as to a will of real estate (Gibson v. Whitehead, 4 Madd. 245.) Where the will comprises personal estate only, the reference should be to the probate of the will. Where the suit and the will relate to real and personal estate, the reference should be to "the will and the probate copy thereof."

It is improper to set out in pleadings a public statute, as the Lands Clauses Consolidation Act. (Re Manchester, &c. Railway Compuny, 8 Hare, 31.)

There must be such certainty in the averment of the title upon which the bill is founded that the defendant may be distinctly informed of the nature of the case which he is called

c. 86.

upon to meet. (Houghton v. Reynolds, 2 Hare, 265; East 158 16Vict. India Company v. Henchman, 1 Ves. J. 287 ; Cresset v. Milton, ibid. 449 ; Ryves v. Ryves, 3 Ves. 343; Jones v. Jones, 3 Mer. 161; Walburn v. Ingilby, 1 My. & K. 61; Balls v. Margrave, 3 Beav. 284.) A general demurrer was allowed to a bill on

ground of the vagueness and uncertainty of its statements. (Wormald v. De Lisle, 3 Beav. 18.) A mere allegation in a bill that the defendants are trustees for the plaintiff is insufficient, unless it appears by the bill how the trust arose. (Jackson v. North Wales Railway Company, 1 Hall & T. 75; see Hvdgson v. Espinusse, 10 Beav. 473.) A statement that the defendant alleges, and the plaintiff believes the fact to be, is not a sufficient allegation of a material fact. (Egremont v. Cowell, 5 Beav. 620.) It is not a sufficient allegation of fact in a bill to state that the plaintiff is so informed. (Lord Uabridge v. Staveland, 1 Ves. 56.) In pleading a title by descent, the rule of the Court of Chancery is to follow the rule of pleading at law. The defendant is entitled to be apprised of all the links which constitute the chain of des cent. (Baker v. Harwood, 7 Sim. 373.) If a bill prays that the trustee of leasehold property may be declared to be a trustee for the plaintiff, as claiming through a person to whom it accrued by an intestacy, the bill must state or charge that the intestate did not dispose of or incumber the property, and that it was not applied in, or required for, the payment of his debts. (Stephens v. Frost, 2 Yo. & C. Ex. 297.) An allegation that a party “duly made and signed his last will and testament” is sufficient, without stating the signature and attestation. (Hyde v. Edwards, 12 Beav. 160.) A bill by an assignee in insolvency need not allege that the consent of the creditors has been obtained to the institution of the suit. (Spooner v. Payne, 2 De G. & S. 439.) In a bill for a specific performance of an agreement, it was stated that the agreement was in writing, and the court presumed its signature. (Rist v. Hobson, 1 Sim. & S. 543.) In a bill for an account, the plaintiff in general terms charged errors in the accounts between him and the defendant, and stated that they appeared in a certain report of an accountant, but the bill did not state the report, or specifically point out the errors. It was held that the plaintiff could not on this record give evidence of the report or of such errors, and that notwithstanding the defendant had stated the report in his cross bill, and had explained some of the errors. (Shepherd v. Morris, 4 Beav. 252.) In a bill for an account of particular items, in sustaining which the plaintiff fails, and the bill contains a general vague charge that there are intricate and voluminous accounts between the parties, which is inserted merely as a pretext for bringing the case within the jurisdiction of the court, such allegation will not protect the bill against a demurrer for want of equity. (Durthes v. Clemens, 6 Beav. 165; Dinwiddie v. Bailey, 6 Ves. 136 ; King v. Rossett, 2 Yo. & C. 33; Bowles v. Orr, 1 Yo. & Col. 464.) A demurrer was allowed to a bill on the ground of

158 16Vict. uncertainty. A bill was filed against the drainage commisc. 86.

sioners, under a local act, complaining of a misapplication of the funds, but neither treated the commissioners collectively as a corporation, or separately as individuals each answerable for himself, but partly in one character and partly in another ; and the charge most relied on, of applying monies to their own purposes, was not so stated as to make it appear whether all or which of the defendants were sought to be affected. A general demurrer was allowed. (Armistead v. Durham, 11 Beav. 422.) Allegations are to be taken most strongly against the party making them. (Benson v. Hatfield, 5 Beav. 546.) And hence, in order to charge a party with a breach of trust, it is necessary that the case made against him by the bill should be such as to be incapable of being construed otherwise than as a case of a breach of trust. (Attorney-General v. Mayor of Norwich, 2 My. & C. 406.) Where there are alternative allegations of facts, the opposite party is entitled to adopt as against his opponent whichever of the alternatives

he pleases. (Williams v. Flight, 5 Beav. 41.) Prayer for (n) In complicated cases the framing of the prayer for relief relief. requires great care and attention ; for although, where the

prayer does not extend to embrace all the relief to which the plaintiff may at the hearing show a right, the deficient relief may be supplied under the general prayer, yet such relief must be consistent with that specifically prayed, as well as with the case made by the bill, for the court will not suffer a defendant to be taken by surprise, and permit a plaintiff to neglect and pass over the prayer he has made, and take another decree, even though it be according to the case made by the bill. (Pulk v. Lord Clinton, 12 Ves. 48 ; Williams v. Shaw, 3 Russ. 178, n.; Whitworth v. Gaugain, Cr. & Phill. 325.)

The following is the form of prayer for general relief, “And that your orator may have such further or other relief in the premises as the nature and circumstances of this case may require, and to your lordship shall seem meet.” It has been usual to add this prayer, so that if the plaintiff mistakes the relief to which he is entitled, the court may yet afford him that relief to which he has a right. Indeed it has been said, that a prayer of general relief, without a special prayer of the particular relief to which the plaintiff thinks himself entitled, is sufficient; and that the particular relief which the case requires, may at the hearing be prayed at the bar. But this relief must be agreeable to the case made by the bill, and not different from it; and the court will not in all cases be so indulgent as to permit a bill framed for one purpose to answer another, especially if the defendant may be surprised or prejudiced. If, therefore, the plaintiff doubts his title to the relief he wishes to pray, the bill may be framed with a double aspect, that if the court determines against him in one view of the case, it may yet afford him assistance in another. (Mitf. Pl. 41, 42, 5th ed. See Barker v. Walters,

« EelmineJätka »