Ellice v Roupell
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1863 |
| Date | 08 May 1863 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 117
ROLLS COURT
S. C. 32 L. J. Ch. 563; 8 L. T. 191; 9 Jur. (N. S.) 530; 11 W. R. 579.
[299] ellice v. eoupell (No. 1). Feb. 26, 27, 1863. [S. C. 32 L. J. Ch. 563; 8 L. T. 191; 9 Jur. (N. S.) 530; 11 W. R. 579.] Principles and practice as to bills to perpetuate testimony stated. The Plaintiffs filed a bill to perpetuate testimony, on the ground that the matters in dispute with the Defendants could not then be made the subject of judicial investigation. The Defendants answered, and the Plaintiffs then amended the bill in immaterial matters. The Defendants then pleaded that, since the answer, the Plaintiffs had themselves filed another bill, raising the point in dispute, and shewing that the matters in question could now be made the subject of judicial investigation. Held, that the plea could not be sustained, and that, if at all, it ought to have been pleaded in the first instance. 118 ELLICE V. EOUPELL 82 BEAV. 300. The 9th rule of the 14th Consolidated Order does not enable a Defendant who has answered the original bill to plead to it after amendment, where it still raises the same issue. This was a bill to perpetuate testimony, filed by two gentlemen named Ellice and Manners Sutton against Richard Roupell and Sarah Roupell. The bill alleged that Eichard Palmer Roupell (deceased) was seised in fee of the Roupell Park estate, and that by an indenture of the 26th of September 1853, and made between R. P. Roupell and Sarah his wife of the one part and William Roupell their aon of the other part, R. P. Roupell and his wife, in consideration of natural love, conveyed the Roupell Park estate to William Roupell in fee. It alleged that this deed was executed by R. P. Roupell and his wife, and was attested by Alfred Douglas Harwood, and that it was duly acknowledged by Mrs. Roupell before Mr. Justice Talfourd. William Roupell afterwards mortgaged the estate for £100,000, and the mortgages became vested in the Plaintiffs, who, in February 1862, entered into possession of the estate, except a stable and coach-house. Richard Palmer Roupell died in September 1856. In April 1862, the interest being in arrear, the Plaintiffs advertised the estate for sale by auction, but [300] they were prevented selling it by a notice of Richard Roupell (another son of R. P. Roupelt), who claimed the estate as heir at law or devisee of R. P. Roupell. The Plaintiffs thereupon brought an action of ejectment to recover the stable and coach-house, which Richard Roupell at first defended, but he withdrew before the trial and the Plaintiffs obtained judgment. The bill stated that the Defendants alleged that R. P. Roupell did not execute the conveyance of 1853, and that the Plaintiffs had no right or title to the estate, and that, upon the father's death, his son Richard Roupell became entitled to the whole estate. It also stated that Sarah Roupell alleged that, on the death of her husband, she, as devisee under his will, became entitled to the estate. The Plaintiffs charged that there were several other persons besides A. D. Harwood (and one of whom was old and infirm), who could prove the validity of the indenture and the right of the Plaintiffs, and that R. P. Roupell admitted his son's title under the indenture. The Plaintiffs charged that the matters aforesaid, and in particular the validity of the said indenture, could not be nucule the xubject of judicial investigation, and inasmuch as the Defendants might delay to dispute the validity of the indenture and to prosecute their claim, until such time as they might think proper, the Plaintiffs were in danger of losing the testimony of A. D. Harwood and the other witnesses. The bill prayed, " that the Plaintiffs might be at liberty to examine A. D. Harwood and other their witnesses who could prove any matters or things tending to shew and establish the due execution, by R. P. Roupell and Sarah his wife, of the indenture of the 26th day of September 1853, and the right and title of the Plaintiffs thereunder, upon the several matters [301] thereinbefore mentioned or any matters connected therewith, and that the testimony of A. D. Harwood and of other the Plaintiffs' witnesses might be recorded and preserved, in and by this honorable Court, in order to the perpetuity thereof, and that, if necessary, the Plaintiffs might have a commission for the examination of the said witnesses or any of them." The Plaintiffs filed interrogatories, and Mrs. Roupell in December 1862 put in a full answer thereto. The then Plaintiffs amended their bill, and the only new statements were as follows:-That K. P. Roupell knew that he (William Roupell) entered into possession by virtue of the said indenture, arid that from the time when William Roupell entered into possession, R. P. Roupell treated him as owner of the said estate. That they (the Defendants) admit that in the year 1854 William Roupell entered into possession of part of the Roupell Park estate, and that they ought to set forth under what title he did so. That the Defendant Sarah Roupell admits that she executed the indenture of the 26th of September 1853, and acknowledged it before a Judge, and she ought to set forth the full particulars as to the said indenture and her execution and acknowledgment thereof, and as to R. P. Roupell's knowledge of the said indenture. ELLICE V. ROUPELL 119 To the amended bill Sarah Roupell, on the 16th of February 1863, put in the following plea to all the discovery, relief and order sought by the bill:-. "Saith, that since the answer of this Defendant Sarah Roupell filed in this cause on the 17th December 1862, the Plaintiffs have, on the 2d February 1863, filed a bill in this honorable Court against this Defendant Sarah Roupell, and also against Richard Roupell, and [302] also against Frederick Chinnock" and other parties [naming them], " and thereby the Plaintiffs state the contention of this Defendant Sarah Roupell and the said Defendant Richard Roupell, that the indenture dated 26th September 1853, in the said re-amended bill stated, was a forgery, and deny the truth of such contention, and raise the issue, whether the said indenture was or was not a forgery, and pray that this Defendant, Sarah Roupell, and the said Defendant Richard Roupell may be restrained, by the order and injunction of this honorable Court, from, commencing or prosecuting any action or actions to recover from the Plaintiffs the hereditaments which are comprised in the said indenture of the 20th of January 1854, in the said re-amended bill mentioned. And, by the said secondly-filed bill, the Plaintiffs have made the several matters in the said re-amended bill mentioned, and in particular the validity of the said indenture dated the 26th September 1853, the subject of judicial investigation. And this Defendant saith that she has, since the filing of her said answer, ascertained, by the means aforesaid, that it is not true, and she saith that it is not true, that the said several matters in the said re-amended bill mentioned, and in particular the validity of the said indenture dated the 26th September 185$, cannot be made, by the Plaintiffs, the subject of judicial investigation. All which matters and things in this plea stated this Defendant avers to be true, and pleads the aame." The plea now came on for argument. Mr. Selwyn and Mr. C. Swanston, in support of the plea, argued that the equity of the present bill depended on the statement of the inability of the Plaintiffs to make the mattera in dispute the subject of judicial investigation at the present time; but that the contrary [303] now appeared from the second bill filed by the Plaintiifs themselves. That this fact, being introduced into the record by plea, displaced the equity on which the bill was founded. That the fact pleaded having occurred since the filing of the answer, it might properly be made the subject of a plea. That as to the technical difficulty in pleading, the General Orders (14th Consolidated Order, rule 9), provided against the old objection that a plea was overruled by an answer. Mr. Hobhouse and Mr. Cotton, for the Plaintiffs, argued that the objection raised by the plea, if valid, ought to have been pleaded at first to the bill, and that by answering the Defendant had waived the objection. That the Defendant could not plead and answer to the same bill, such a course being inconsistent; and that the objection was not removed by the 14th Consolidated Order, rule 9, which only removed the technical difficulty, in cases where part of the subject covered by a plea was also answered ; Attorney-General v. Cooper (8 Hare, 166). Feb...
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...106). A trustee indemnity clause is to be assumed under the statute 22 & 23 Viet. c. 35, s. 31. He also referred to Ellice v. fioupell (32 Beav. 299, 308, 318). the master of the rolls [Sir John Romilly]. I am of opinion that the liability of this trustee is fixed by the ordinary doctrine o......
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