Brooks v Purton and Others
| Jurisdiction | England & Wales |
| Judgment Date | 21 December 1841 |
| Date | 21 December 1841 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 479
HIGH COURT OF CHANCERY
brooks v. purton and others. August 11, 1841. That part of the 10th Order of December 1833, which provides that in every cause for an injunction to stay proceedings at law, if the Defendant do not plead answer, or demur to the Plaintiffs bill within eight days after appearance, the Plaintiff' shall be entitled, as of course, upon motion, to such injunction, includes amended bills as well as others. And the 3d Order of May 1839, which requires that applications for an injunction upon amended bills shall, in certain cases, be supported by an affidavit of the truth of the amendments, relates only to cases in which the injunction is applied for upon amendments made in the bill after an answer to it has been put in. And, therefore, when the bill has been amended before answer, the Plaintiff may obtain an injunction under the provisions of tho 10th Order without any affidavit of the truth of the amendments. After the Defendant Purton had appeared to the original bill in this cause, the Plaintiff amended it, and then the Defendant put in a plea to the amended bill. The Plaintiff submitted to the plea, and amended the bill a second time. The Defendant then appeared to the bill as so amended, arid demurred. The Plaintiff submitted to 480 BROOKS V. PURTON OR. & PH. 2M. the demurrer, and, on the 1st of July, amended the bill a third time. On the 5th of July the Defendant appeared to the bill as so amended; [234] and, on the 19th of July, no answer, plea, or demurrer having been put in, the Plaintiff obtained an order for the common injunction, as of course, without any affidavit of the truth of the amendments. On the 4th of August the Vice-Chancellor, upon the motion of the Defendant Purton, discharged that order, and dissolved the injunction, with costs. The Plaintiff now moved, by way of appeal, before the Lord Chancellor, that the order of the Vice-Chancellor of the 4th of August might be discharged, and that the Defendant Purton might pay the costs of the motion upon which it was made. Mr. Bethell and Mr. Parry, in support of the appeal motion. The Vice-Chancellor discharged the order for the injunction upon the ground that it had been obtained without an affidavit verifying the amendments, considering the case to be within the 3d Order of May 1839 (1); but that order clearly relates only to applications for an injunction upon amendments made after an answer has been put into the original bill, and not to cases in which the amendments have been made before answer. The word " afterwards " in that order must have some meaning, and it is only by referring it to the [235] word "answer " that the preceding part of the clause can be made sensible. It will be said, however, that if the case is not within the 3d Order of May, it falls within the 10th Order of December 1833 ; and that, according to that order, as construed by the Vice-Chancellor in Lee v. Ramnscroft (6 Sim. 474), an injunction cannot be obtained upon an amended bill until the expiration of five weeks from the time of the Defendant's appearance. Now, it is true that that case appears to have been decided by His Honour after conferring on the subject with your Lordship; but it is impossible not to suppose that the opinion there attributed to your Lordship-that the word " bill" in that part of the 10th Order which relates to injunction causes applied only to original bills-must have been the result of some misapprehension. [the lord chancellor. I have no recollection of having ever expressed any such opinion : it is quite sufficient for a Judge to be responsible for what he says in his own Court, and nothing is more likely than that a misapprehension should occur on one side or the other in communications of that kind out of Court.] The term used is general, and is sufficient to embrace all the different kinds of bills specified in the preceding clause. Besides, that such a limited construction cannot be the correct one is evident, from considering what the practice was when that order was made, and what was the object of that order. The intention of the learned Judges who framed that order was simply to abolish the old orders for time, and, consistently with [236] that object, to retain the existing practice, in injunction causes, which nobody complained of. Now, the old practice in these suits was that the Plaintiff was entitled to an injunction upon the Defendant's being in default, subject only to this condition that, where an answer had been put in and the bill was afterwards amended, it was necessary to make a special application upon an affidavit verifying the amendments, James v. Downes (18 Ves. 522), Vipan v. Mortlock (2 Mer. 476) ; and all that the 10th Order did or was intended to do was, while it abolished the orders for time in all cases, to retain the old period of eight days in injunction bills, as that, at the expiration of which, if the Defendant did not, in the meantime, plead, answer, or demur, he was to be considered as in default. It may be difficult, perhaps, to understand what necessity there was, after that provision, for the 3d Order of May 1839 ; because, when once the period of default was fixed, all the other incidents of applications for injunctions which existed under the old practice would attach, of course, and, amongst others, the necessity for an affidavit where the application waa made upon an amended case after the equity of the original case had been denied by an answer; but it is sufficient for the present purpose to say that, whatever may have been the object of that order, it does not apply to a case like the present; and that, as there is nothing in the old practice, or in the provisions of the 10th Order, which requires an affidavit in support of amendments made before answer, no such affidavit was requisite in the present case. Mr. Wakefield and Mr. Cooper, contm. The interest of the suitors requires that the General Orders should be construed according to their plain [237] and obvious meaning ; but the construction of the 3d OB. Ss PH. 238. BROOKS V. PURTON 481 Order of May 1839, which is now contended for, would require that several words should be inserted which are not now to be found in it. [THE lord chancellor. That construction would be satisfied by reading the words, " or having been, obtained, shall have been dissolved," as if they were in a parenthesis.! It is well known that that order was made for the purpose of obviating the inconvenience occasioned by the judicial construction put upon the 10th Order of December 1833 by the decision in Lee v, Raioenscroft, by which it was held that the word " bill " in that part of the order which has been referred to, meant an original bill only ; and it certainly is impossible to say, as is now argued, that that word is so general as to embrace all the different kinds of bills before spoken of, for it clearly cannot refer to a bill of revivor, which is one of them. [THE lord chancellor. If, however, it means original bills only, what will you do with supplemental bills which pray for an injunction? can it have been intended that one time should be fixedi for obtaining an injunction upon them, and another upon original bills 1 The Vice-Chancellor seems to have thought that the llth Order necessarily referred to original bills only, but I do not see why that...
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