Griffith v Ricketts
| Jurisdiction | England & Wales |
| Judgment Date | 20 April 1844 |
| Date | 20 April 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 469
HIGH COURT OF CHANCERY
3 HARE, 476. GRIFFITH V. KICE.ETTS 469 [476] griffith v. eicketts. April 17, 18, 20, 1844, The 49th Order of August 1841 does not dispense with the necessity of stating, in a bill of revivor, so much of the pleadings in the original suit as is sufficient to shew the title of the Plaintiff, as against the Defendant, to revive the suit. If the statements in the bill of reviver do not shew a title to revive, the Plaintiff cannot On demurrer supply the defect by reading the record of the original bill, although that record be referred to in the bill of revivor. The title to revive the suit against the Defendant is not shewn by the mere statement that such Defendant is the representative of a party who had answered the original bin. '..;'. The Plaintiff cannot, on demurrer, sustain the bill by waiving the relief prayed against the demurring Defendant. Where, consistently with the statements in a bill of revivor, the Defendant might have been made a party either to receive or pay what was due to her from the estate of which she was the representative, or to account for her own receipts, but it did not appear whether she was a party for any of such purposes, or in what character she was brought before the Court, her demurrer was allowed. The bill, which was filed by Albina Griffith, the devisee of E. Griffith, against Richard Eicketts the younger, Caroline Eosina Frost and Henry Eicketts, stated that Edmund Griffith, on or about the 3d of February 1827, exhibited his original bill against W. P. Lunell, Eichard Eicketts the younger and Elizabeth, his wife, Isaac Leonard, John Leigh Frost and Ann, his wife, stating, among other things, that certain hereditaments therein mentioned were, by indentures of lease and release, dated the 5th and 6th of December 1800 respectively, conveyed by way of mortgage to Eichard Eicketts, and that Eichard Eicketts subsequently entered into the possession of the said mortgaged premises, and, in or about the year 1812, let one Solomon Moore into possession of the same premises, and stating.that Solomon Moore continued in such possession until his death, and that thereupon John Leigh Frost and Ann, his wife (the daughter and administratrix of Solomon Moore), came into such possession, and had continued in such possession ever since; and also further stating the death of Eichard Eicketts, having by his will appointed W. P. Lunell, Eichard Eicketts the younger (in the said bill stated to be the heir at law of Eichard Eicketts) and Isaac Leonard his executors, and prayed that Edmund Griffith might redeem and have a reconveyance of the said hereditaments, and in order thereto that an [477] account might be taken of what was due upon the said indentures of the 5th and 6th of December 1800, for principal and interest, and also an account of the rents and yearly produce of the said hereditaments during the time that Eichard Eicketts and his said executors and John Leigh Frost had been in possession thereof; and that the said executors and John Leigh Frost and Ann, his wife, might be charged with the rents of the said hereditaments received by them, or which, but for their own wilful default, might have been received by them; and that all necessary accounts might be taken of the respective personal estates of the said Eichard Eicketts, deceased; and the usual directions for reconveyance on redemption, by the said Edmund Griffith paying what, if anything, might be found due on the said mortgage security; and for a receiver and injunction in the meantime. That the said executors and John Leigh Frost and Ann, his wife, put in their answers (now as of record) to the said bill; that the statement in the said bill, that Eichard Eicketts the younger was the heir at law of Eichard Eicketts, was erroneous, for that one Elizabeth Eicketts was such heiress at law, and on the death of Eichard Eicketts, the legal estate on the mortgaged premises descended to, and was vested in the said Elizabeth Eicketts: that the said Plaintiff, Edmund Griffith, died the 15th of June 1835 intestate, whereupon the said suit and proceedings became abated, and E. Griffith, the heir at law of Edmund Griffith, and late husband of the Plaintiff, became entitled to the equity of redemption of the mortgaged premises; and the said E. Griffith died the 8th of December 1842, having by his will given and devised all his real and personal estate to the Plaintiff, his widow: that W. P. Lunell and Isaac Leonard 470 GRIFFITH V. BIOEETTS 3 HAKE, 478. had died, leaving Richard Eicketts the younger the sole surviving executor of Eichard Eicketts: that the said Elizabeth Eicketts had died, leaving the Defendant, [478] Henry Eicketts, in whom the legal estate of the said mortgaged premises was now vested, her heir at law: that John Leigh Frost died in October 1836 intestate, and letters of administration to his estate and effects were granted to Ann Frost, his widow, who had got in all his personal estate: that Ann Frost was the sole next of kin of Solomon Moore, and the said Ann Frost died on the 16th of July 1842, having by her will appointed her daughter, the Defendant, Caroline Eosina Frost, her sole executrix, who in September 1842 duly proved the will, and was the sole legal personal representative of Ann Frost, and entitled to letters of administration to the personal estate of Solomon Moore: that, immediately on the death of Ann Frost, the Defendant, Caroline Eosina Frost, entered into possession or receipt of the rents and profits of the said mortgaged premises, and continued in such possession and receipt, and had received considerable sums on account thereof, and letters of administration de bonis non of Solomon Moore were subsequently granted to her: that the Plaintiff was entitled to have the said suit and proceedings revived against Eichard Eicketts the younger and Caroline Eosina Frost, and that Caroline Eosina Frost ought to account to the Plaintiff for the rents and profits of the mortgaged premises received by her or by the said Ann Frost, or which, without their respective wilful default, might have been received. The .bill prayed that the said suit and proceedings so abated as aforesaid might be revived against the Defendants, Eichard Eicketts the younger and Caroline Eosina Frost, and be in the same plight and condition as at the time of such abatement, and that the Plaintiff might have the benefit thereof; and that an account might be taken of the rents and profits of the said mortgaged premises received by the Defendant, Caroline Eosina Frost, and that she might1 either admit assets of Ann Frost sufficient to answer [479] anything that might be found due to the Plaintiff from the estate of Ann Frost, or that an account might be taken of the personal estate of Ann Frost come to the hands of the Defendant, Caroline Eosina Frost, and that the same might be applied in a due course of administration, and that the Plaintiff might have such "relief against the Defendant, Henry Eicketts, as was prayed by the said bill against Eichard Eicketts the younger, as heir at law of Eichard Ricketts, deceased, in respect of the legal estate in the said mortgaged premises. The Defendant, Caroline Eosina Frost, demurred to the bill for want of equity. Mr. Eomilly and Mr. Osborne, for the demurrer, contended that there was no statement in the bill shewing any title to revive the suit against Caroline Eosina Frost. They referred to the cases of Foster v. Hodgson (19 Ves. 180), Frietas v. Dos Santos (1 Y. & J. 574), Woods v. Woods (10 Sim. 197), Phelps v. Sproule (4 Sim. 318). Mr. Tinney and Mr. Pirie, in support of the bill (besides insisting upon the effect which they argued ought to be given to the several statements in the bill), relied on the Order XLIX. of August 1841 as dispensing in the bill of revivor with the statements in the pleadings in the original suit. They referred also to Metcalfe v. Metcalfe (1 Keen, 79), Story, Com. Eq. PL, pi. 384, p. 253 ; and Ld. Eedes. Tr. PL, p. 56, ed. 4. [480] the vice-chancellor [Sir James Wigram]. It is always necessary that a bill of revivor should contain statements shewing the right of the Plaintiff to revive the suit against the Defendants; and the question is whether the statements in this bill are sufficient to shew the right to revive. What statements are necessary for that purpose must of course depend upon the circumstances of each particular case. It may sometimes be unnecessary to state in a bill of revivor any of the statements in the original bill; as, for example, in a common creditor's suit against the personal representatives of the deceased debtor, praying the usual accounts and nothing more. After the answer of such personal representative has been put in, the statement that the Plaintiff filed his bill, the character in which he filed it, and the prayer, and that the Defendants to the original bill (stating in what .character they were sued) answered the bill and died, and that the Defendant to the bill of revivor had obtained probate or letters of administration (as the case might be) to the debtor against whose estate the accounts were .prayed, might be a sufficient statement. In other cases all the allegations of the original bill may be necessary to be repeated. But, on the 3HABE, 481. GRIFFITH V. RICKETTS 471 other hand, it was not necessary that the Plaintiff in a bill of revivor should state more than, would shew his title to revive. However, before the orders of August 1841, a practice had grown up of stating at great length in all bills of revivor the very case made by the original bill, thereby 'occasioning, in the majority of eases, great and unnecessary expense to the suitor. Whether this practice arose as it has been suggested from a passage in Lord Redesdale's Treatise,(l) or whether it arose, as it was said to have done, from some de-[481]-cisions of Sir John Leach, it was...
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