Christ's Hospital v Grainger
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1847 |
| Date | 01 January 1847 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 774
HIGH COURT OF CHANCERY
634] christ's hospital*. grainger. Jan. 16, 17, 24, 1846. All applications for leave to amend under the 68th Order of May 1845, are to be made in the first instance to the Master. 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. In this case the bill having been once amended after answer, and the last answer to the amended bill having been filed on the 20th of June 1844, the Plaintiffs, on the 30th of October 1845, gave notice for the 2d of November, of a motion before the Vice-Chancellor of England, for leave to re-amend the bill without requiring a further answer. The VicfrChancellor having granted the application, and with costs, a motion was now made before the Lord Chancellor, on behalf of three of the Defendants, to discharge the Vice-Chancellor's order, and that the bill as amended pursuant thereto might be taken off the file on the ground-1st. That the original application ought to have been made to the Master and not to the Court. 2dly. That the affidavits on which it was founded were insufficient, it being contended on the part of the Defendants, that the case was to be governed by the General Orders of May 1845, and not by those of April 1828. The affidavits were all made by the managing clerk of the Plaintiff's solicitor, with the exception of one, which was made by the solicitor himself. The affidavits of the clerk, after giving the history of various attendances at Reading for the inspection of certain documents mentioned in the schedule to the Defendant's answer, and on the voluminous nature of which he mainly relied as a justification of the delay, concluded by stating that the proposed amendment of the bill was not intended for the purposes of delay or vexation; but, because the same was considered to be [635] material to the Plaintiffs case. The affidavit of the solicitor himself contained the same statement, and also a statement that the draft of the proposed amendments had been settled, approved, and signed by counsel. It contained, however, no statement as to reasonable diligence having been used; and the only part of it which went to the materiality of the amendments, was a statement that the Plaintiffs thereby sought to limit and vary the allegations in the bill respecting the acts and dealings of the Defendants, in regard to the estates in question in the cause. Mr. Bethell and Mr. Selwyn, for the appeal motion, cited Phillips v. Goding (1 Hare, 40), Winnall v. Featherstonehaugh (9 Jur. 1054). Mr. James Parker, Mr. Teed and Mr. Freeling, contrti, cited, On the question of jurisdiction, Lloyd v. Wait (4 Myl. & Or. 257), Hculdlesea v. Neville (4 Beav. 28), Dean v. HickinbotlMm, (4 Hare, 302), Wembmrne Union v. Mawon (7 Beav. 309), Matchitt v. Palmer (10 Sim. 241. And the cases collected in 9 Jur. 1002, 1054 and 1071). iph.w. christ's hospital r. grainger 775 On the application of the New Orders of May 1845, to proceedings pending at the time of their promulgation, Itmdkdge v. Gibson (13 Sim. 493), Spencer v. Allen (15 L. J. N. S. 31). Jan. 24. the lorb chancellor [Lyndhurst]. This was an application to discharge an order of the Vice-Chancellor of England, by which leave was given [636] to the Plaintiffs to amend their bill after the expiration of forty days from the filing of the last answer. Various points were made at the Bar with respect to the order. The first question raised was, whether the motion was to be governed by the Orders of April 1828, or by those of May 1845. The latter orders were published in the month of May of that year, and were to come into force on the 28th of October following. Ample notice, therefore, was given of them to the profession and to the public. Notice of the motion before the Vice-Chancellor was given for a day subsequent to the 28th of October. The notice itself was served on the 30th. By the first of the Orders of May, it was enacted that the Orders of April 1828, enumerated in that order, were to be abrogated from the time when the Orders of May came into operation, and among the orders specially mentioned as abrogated are the 13th and 15th relating to amendments ; it seems therefore difficult to contend that a motion, which by the terms of the notice was not to come on until a day subsequent to the 28th of October, is to be governed by the Orders of April, and not by those of May. But it was said that to hold the contrary would in this case be to give to the New Orders a retrospective effect, inasmuch as they require an affidavit of reasonable diligence having been used during a period in which the Old Orders, which required no such affidavit, were in operation. My answer to that is, that these orders merely differ from the former in regulating the evidence of facts, in the absence of which the Court would never have been justified in allowing an amendment. If there were any circumstance* to shew that what was, previously to the promulgation of these orders, considered as. reasonable diligence, is by reason of anything contained in these orders considered a& no [637] longer, those circumstances would be taken into consideration in this case. There is, however, authority on the point, in a decision of the Vice-Chancellor himself in Winnall v. Feathei'stonehaugh. That was even a stronger case than the present, for there notice was given in the early part of 1845, for a day in April, on which, under ordinary cireumatances, the motion would have come on before the promulgation of the New Orders, and yet because, owing to the pressure of business in the Court, it did not in fact come on till after the 28th of October, the Vice-Chancellor held that it was governed by the New Orders. Whether that was a right decision or not in the: circumstances of that case may be a question, for I understand that the case is now under appeal (NOTE.-The decision was afterwards reversed): but Mr. Parker seemed to consider that that must be the conclusion in this case, for he stated that the affidavits were inadvertently framed with reference to the Old Orders, arid he argued that, when properly and fairly considered and interpreted, they were sufficient to-justify the application under the New Orders. The next point was, that the application ought to have been made to the Master, and not to the Court. The 3 & 4 W. 4, c. 94, s. 13, directs that all applications for leave to amend shall be made to the Master in Bueh manner, and under such rules and regulations as the Court should by any General Order direct, and also subject to an appeal to the Court The orders in question, of May 1845, are the only General Orders now in force which relate to the matter. And the 68th of those orders says, that such applications are to be made in a certain manner, and subject to certain regulations as to the frame of the affidavits on which [638] they are to be founded; but it contains no restriction as to the time within which the application may be made. In that respect, it differs from the corresponding order of April, which contained negative words to the effect that no applications to amend the bill should be made, either without notice or upon affidavit, unless obtained within a certain time after the filing of the answer. In the absence of any such restriction in the New Orders, I see nothing in them to authorise the Court to take cognizance of this application. It is true there are cases in which the Court, from the peculiar nature of the application, has thought that it ought to be made to the Court in the first instance, and not to the Master. These cases a?e enumerated by the Master of the Eolls, in Strickland v. Strickland ; but this is not one of them, and I think, therefore, that this application ought to have 776 NEEDHAM V. NEEDHAM 1 PH. S. been made to the Master. I have consulted some of the other Judges, who concurred with me in the publication of these orders, and they agree with me in that opinion. That being the case, I might rest the decision on this point alone, but there is another question, a to the affidavits, on which it seems to me desirable that I should express my opinion. The New Orders require that, after the expiration of four weeks from the time when the last answer is to be deemed sufficient, the affidavit shall state not only that the draft of the proposed amendments has been settled, approved, and signed by counsel, and that the amendment is not intended for delay or vexation, which is all that is required before the expiration of that time, but further, that the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the bill. That affidavit is to be made both by the Plaintiff and his solicitor, except where the Plaintiff, from being abroad or from any other reason, is unable to join therein, in [639] which case it is sufficient if made by the solicitor alone. Here the Plaintiffs, being a corporation, are unable to make the affidavit, and therefore the affidavit of the solicitor alone would be sufficient. Two affidavits have in fact been filed, one by Mr. Maberley the solicitor, and the other by his managing clerk. In the affidavit, however, of Mr. Maberley there is nothing to satisfy the requisition of the 68th Order. I could hardly come to the conclusion from that affidavit that the matter of the amendments was material. It is not sworn that they are material: facts, indeed, are stated as leading to that conclusion; but not in such a way as to satisfy me upon the point. It is not, however, necessary to insist on this defect, because the affidavit does not go on to swear as to reasonable diligence. On this ground, therefore, I could not have supported the order of the...
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