Arnison v Smith
| Jurisdiction | England & Wales |
| Date | 1888 |
| Court | Court of Appeal |
Practice - Death of one of several Plaintiffs before Judgment - Application by Executors after Judgment to carry on Action against the Defendants -
An action for damages was brought by several Plaintiffs having separate causes of action. Two of the Plaintiffs died before the trial, but no application was made to put off the trial, and judgment was given for the Defendants and the action dismissed. The executors of the deceased Plaintiffs applied under Order XVII., rule 4, for an order to carry on the action against the Defendants:—
Held (affirming the decision of Kekewich, J.), that the order ought not to be made: Cotton, L.J., holding that the Court had no jurisdiction to make such an order after final judgment: and Lindley and Lopes, L.JJ., holding that whether the Court had jurisdiction or not, it was not necessary or desirable to make such an order in the present case.
THE action in this case was brought by certain shareholders, fifty-four in number, of the General Waterworks Company, against the directors, claiming damages for misrepresentations in the prospectus of the company whereby they were induced to take shares. The writ was issued in October, 1887, and issue was joined in January, 1888. Edwards, one of the Plaintiffs, died on the 28th of November, 1887; another, Wells, died on the 17th of July, 1888, but probate of his will was not granted till the 7th of August, 1888.
The action came on for trial before Mr. Justice Kekewich on the 3rd of August, 1888, but the solicitor for the Plaintiffs was not aware till after the trial had commenced that either of the Plaintiffs was dead. No application was made to postpone the trial in consequence of the deaths of the Plaintiffs; and the trial proceeded and the Judge dismissed the action with costs.
The executors of the two deceased Plaintiffs afterwards applied to Mr. Justice Kekewich, under Order XVII., rules 2, 4, that the executors might be made parties and that the action might be carried on between them and the Defendants.
The Judge refused the application and the executors appealed.
Oswald, for the Appellants:—
The Plaintiffs in this action had all separate causes of action, and the case must be treated as though separate actions had been brought, and the damages ought to be assessed accordingly: Booth v. BriscoeF1.
[LOPES, L.J.:— Is...
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