Ferrand v Hamer and Curzon
| Jurisdiction | England & Wales |
| Judgment Date | 22 December 1838 |
| Date | 22 December 1838 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 57
HIGH COURT OF CHANCERY
ò1 MY. & CR. 144. FERRAND V. HAMER 57 ferrand t . hamer and ccrzon. Dec. 17, 22, 1838. The common injunction having issued against one of two Defendants for want of answer, the Plaintiff afterwards, by an order of course, obtained leave to amend without prejudice to the injunction. Such an order, it seems, is not irregular ; and, at any rate, cannot be impeached by the Defendant against whom no injunction has issued. This was a motion on the part of the Defendant Hamer, that an order made, as of course, at the Rolls, giving the Plaintiff liberty to amend his bill, without prejudice to the common injunction which he had obtained against the other Defendant Curzon, might be discharged for irregularity. the solicitor-general [Rolfe] and Mr. Hetherington, for the motion. Mr. Monro, contrtl. The grounds on which the application was rested are so fully stated and considered in the judgment that any separate report of the argument would be superfluous. Dec. 22. the lord chancellor [Cottenham], In this case the common injunction was obtained against the Defendant Cnrzon for want of his answer. [144] The Defendant Hamer, against whom no injunction was obtained, answered; and the Plaintiff then obtained, at the Rolls, as of course, an order to amend, without prejudice to the injunction. The Defendant Hamer now moves to set this order aside for irregularity, contending that, after a common injunction, there can be no amendment without prejudice to the injunction, except upon a special motion. The Defendant who makes the motion is not affected by the injunction. As to him, therefore, the order is simply an order to amend. If the practice were, as contended for, it does not appear how the Defendant, not restrained, could complain of the order. But if he could, it would strongly exemplify the inconvenience of such a practice. There may be a case of injunction against one Defendant only, with which the other Defendants may be wholly unconnected, and yet that Defendant being subject to an injunction by default, the Plaintiff cannot (according to this argument) amend his bill, as against the other Defendants, without a special motion, although, as between them and the Plaintiff, the motion, when specially made, could not be refused, they having nothing to do with the injunction. There does not, therefore, seem to be any absolute necessity for determining the general question which has been raised, namely, whether it be a motion of course for a Plaintiff, after a common injunction and before answer, to obtain an order to amend Ids bill without prejudice to the injunction. No case has been found in which this...
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