Between Helena Wellesley, Wife of the Defendant The Honourable William Pole Tylney Long Wellesley, by Henry Harrison, her next Friend, Plaintiff; and the said William Pole Tylney Long Wellesley, John Wright, the Reverend John Greenly, William Richard Arthur Pole Tylney Long Wellesley, Thomas Paterson, William Lawrence Bicknell, James Archibald Casamajor, and William Hart, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1839 |
| Date | 23 November 1839 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 213
HIGH COURT OF CHANCERY
S. C. 9 L. J. Ch. (N. S.), 21; 4 Jur. (0. S.), 2.
[554^ Between helena wellesley, Wife of the Defendant The Honourable iLUAM pole tylney long wellesley, by henky harrison, her next Friend, Plaintiff; and the said william pole tylney long wellesley, john weight, the Reverend john greenly, william richard arthur pole tylney long wellehley, thomas paterson, william lawrence bicknell, james archibald casamajor, and william hart, Defendants. Nov. 20, 22, '23, 1839. [S. C. 9 L. J. Ch. (N. S.), 21 ; 4 Jur. (0. S.), 2.] A demurrer to a bill having been put in, on two grounds, viz., want of equity and want of parties, the Judge was of opinion that it was good, as a demurrer for want of 214 WELLESLEY V. WELLE8LEY 4 MY. & CR. MS. parties, though not as a demurrer for want of equity. An order was therefore made, which allowed the demurrer, but gave leave to amend. The bill was amended accordingly. The Defendants, who had demurred, afterwards presented a petition of appeal to the Lord Chancellor against this order; but before the appeal was heard they demurred to the amended bill. Under these circumstances, the Lord Chancellor dismissed the appeal, with costs. Observations upon the form of drawing up an order upon demurrer, in a case whore the Court is of opinion that one of two grounds of demurrer is good, and the other bad. In this case, two of the Defendants, viz., John Wright and John Greenly, demurred to the original bill, and assigned, upon the record, two causes of demurrer, viz., first, want of equity, and secondly, want of parties. Upon the 24th of July 1839 the Vice-Chancellor made an order, upon the argument of the demurrer, which was afterwards drawn up in the following form, viz.: The Court held the demurrer, so far as it was a demurrer for want of equity, to be insufficient; and did, therefore, order that the same should be overruled; and the Court held the demurrer, so far as it was a demurrer for want of parties, to be good and sufficient; [555] and did, therefore, order that the same should stand and be allowed and, after ordering that the Plaintiff should pay to the demurring Defendants their costs of the demurrer, it was ordered that the Plaintiff should have leave to amend her bill, by adding proper parties thereto, with apt words to charge them, and otherwise as she should be adviaed. In pursuance of the leave to amend so given, the Plaintiff amended her bill in the mouth of August 1839, but did not add any new Defendants: and, on the llth of September, the Defendants Wright and Greenly put in a demurrer to the amended bill, assigning, as causes of demurrer, want of equity and want of parties. On the 3d of September, however, the same Defendants had presented to the Lord Chancellor a petition of appeal from the Vice-Chancellor's order of the 24th of July, which complained of so much of the order as ordered that the demurrer, so far as it was a demurrer for want of equity, should be overruled, and as gave liberty to the Plaintiff to amend her bill, and prayed that so much of the order as last mentioned might be reversed or discharged, and that the demurrer, so far as it was a demurrer for want of equity, might be allowed, and that the Plaintiff's bill might be dismissed, with costs, as against the Appellants. The appeal now came on to be heard. Mr. Wigram and Mr. Toller appeared in support of the appeal, and argued the case on behalf of the Appellants. On the 22d of November, when the Plaintiff's counsel (Mr. Jacob, Mr. Richards, and Mr. Willcock) were about to support the Vice-Chancellor's decision, [556] the lokd chancellor said; Mr. Wigram-before Mr. Jacob goes on- this order appears to me to have been drawn up in a very irregular form. There can be no such thing as allowing a demurrer and overruling it in the same proceeding. The demurrer is allowed just as much for want of parties as it would have been for want of equity. The present form of the order may, however, have been adopted for the purpose of giving the leave to amend. It is very important that it should be kept in view that there is but one demurrer; whereas, it would appear, by the form of the order, that there had been two demurrers. The demurrer was allowed, in the result; but the Vice-Chancellor gave leave to amend, and the amended bill is actually on the file. The only question is, whether or not the Plaintiff should have had leave to amend. Mr. Wigram said that the Plaintiff had amended the bill before it was possible that the Defendants could appeal from the Vice-Chancellor's order giving her leave to amend, the lord chancellor [Cottenham]. An application might have been made to stay the amendment until the appeal should have been disposed of. I very much doubt whether, after leave to amend has been given, and the amendment has actually been made, and the Defendants have pleaded to the amended bill-no application having been made to stay the amendment pending an appeal-it is proper that I 4 MY. is CB. 7. WELLESLEY V. WELLESLEY 215 should now entertain the question of the propriety of the leave to amend. I think you should have applied to me, either to hear the appeal at once, or to stay the execution of the order giving leave to amend. [557] Mr. Jacob and Mr. Willcock urged that, as the demurrer was allowed, with costs, the only question really involved in the present appeal, brought after the amended bill had been actually filed, was whether the Defendants should be paid for the first office copy of the bill; and that it was quite immaterial to the Defendants whether the bill now upon the file was considered as an entirely new, and therefore original, bill, or as an amended bill; inasmuch as a bill amended by leave, after demurrer allowed, was, for the purpose of answering, considered an original bill. They also said that in consequence of the Defendants not having made an application to the Court such as the Lord Chancellor had suggested, the Plaintiff had been obliged to amend within the short time given by the order allowing the demurrer. They further stated that numerous Defendants to the original bill had not demurred to it, and were still before the Court. Mr. Wigram, on the other hand, said that the question whether leave to amend ought to have been granted was a question of most substantial importance, for it depended upon another question, namely, whether the bill ought to have been allowed for want of equity, a question which turned upon the construction of two deeds stated in the bill; and that if his Lordship were of opinion that the demurrer ought to have been allowed for want of equity, there would be an end of the litigation altogether, for the Plaintiff would file no new bill after his Lordship's opinion to that effect should have been given. the lord chancellor [Cottenham]. The Court never gives an opinion, except as it is necessary to found some order; and the only question [558] before me is whether I shall amend the Vice-Chancellor's order by striking out the liberty to amend the bill which it gives. It appears to me that, however unfortunate it may be, the parties have not taken the right course to obtain the judgment of the Court upon that question. The order was, certainly, drawn up in a very irregular form, and care must be taken that no orders are drawn up in that form in future. There was one demurrer which assigned two causes of demurrer: one was the want of equity stated in the bill, and the other was want of proper parties. The Vice-Chancellor, in substance, though not in form, gives leave to amend, which he might have done if he had given no opinion upon the general demurrer. It is not usual, upon allowing a general demurrer, to give leave to amend, but it may be done. It is in the discretion of the Court so to do. In all those orders of discretion, the Court of Appeal considers whether, under all the circumstances of the case, it is expedient to alter an order which the other branch of the Court has made. Now, in this case, I find that the order having been made on the 24th of July, by which the leave to amend had been granted, the other party did not come to this branch of the Court to apply to have the demurrer immediately argued upon appeal, or to have an order made that the parties should remain as they were until it could be disposed of. The Plaintiff amends, and the Defendants demur to the amended bill, but, afterwards, ask that the order giving leave to amend may be reversed. The only effect of doing that would be to take off the file that bill which has been amended, involving the Plaintiff in considerable difficulty as to the other parties, and making her file a new bill, which she could do only by dismissing this bill against all the other parties. Considering what has taken place, I think it would be a very unsound exercise of my jurisdiction if I were now [559] to interfere with the Vice-Chancellor's discretion in giving leave to amend. If the parties wish to take my opinion upon the merits, there will be an opportunity of so doing in the subsequent stages of the cause. the lord chancellor postponed, till the following day, his decision with respect to the costs of the appeal. Nov. 23, On the next day the lord chancellor [Cottenham] said: I find, in this case, an exercise of the discretion of the Vice-Chancellor, upon which the parties have acted; and it is impossible to place the parties in the same condition in which they were before those proceedings took place. Whether, therefore, I agreed with the Vice-Chancellor in the discretion which he...
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