Horsley v Fawcett
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1849 |
| Date | 21 March 1849 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 556
ROLLS COURT
556 HORSLEY V. FAWCETT 10 BEAT. 191. [191] horsley v. fawcett. March 11, 1847. After answer, a Plaintiff obtained an order of course to amend. He then made A. a party ; but finding that A. was dead, he, before answer to the amendment, obtained a second order of course to amend, and substituted A.'s representatives with apt words to charge them. The second order was discharged for irregularity, with costs. This was a motion to discharge an order of course to amend, and to take the amendments off the file. The bill was filed against Fawcett and three other Defendants; and, after full answer had been put in by three of the Defendants, the Plaintiff, on the 19th of January 1847, obtained an order of course to amend, which he acted on. [192] Before an answer had been put in to the amendments, the Plaintiff, on the 5th of February 1847, obtained a second order of course to amend "as he should be advised ;" and he amended his bill accordingly. Mr. Teed and Mr. Collins now moved to discharge the second order to amend for irregularity, and that the amendments might be taken off the file. They argued that, after an answer had been filed, the Plaintiff was only entitled to one order as of course, 66th Order of May 1845. (Ord. Can. 308; and see Haddelsea v. Nevile, 4 Beav. 28; Bertolacd v. Johnstone, 2 Hare, 636; Davis v. Prout, 5 Beavan, 375; Edge v. Duke, 10 Beav. 184.) Mr. Messiter, contra, argued that the order was not irregular. He stated that, by the first amendments, a Mr. Dixon had been made a Defendant; but it having been discovered that he was dead, the second order to amend was obtained, merely to state his death, and in order to substitute his executors aa parties, and state the mode in which they had become his representatives. He argued that this was a formal amendment, and came within the 65th Order. That even if there had been a slip, it would be useless to mutilate the record by expunging the amendments, which, on an application to the Master, would be restored. He cited Brattle v. Waterman, (4 Sim. 125); Smith v. Evans (1 R. & Myl. 80); Whartffn. v. Swann (2 Myl. & K. 362); Nicholson v. Peile (2 Beavan, 497). the master of the rolls [Lord Langdale], There can be no question that the second order of course is irregular, and it [193] must be discharged. With that order the amendments must also fall, and the Plaintiff must pay the costs of the application. I do not consider that the second which had been stated is a formal amendment; the addition of new parties, and the statements as to representation might materially alter the situation of the Defendants, besides which the order is unlimited, to amend, " as the Plaintiff should be advised." Having vindicated the practice of the Court, it ought to be considered how the matter can best be set right...
To continue reading
Request your trial
-
Minn v Stant
...them, the trustees alone are necessary parties: Franco v. Franco (3 Ves. 75); May v. Selby (1 Y. & Col. (C. C.), 235); Horsley v. Fawcett (11 Beav. 565); Bridget v, Hames (1 Col. 72); Richardson v. Hastings (11 Beav. 17); Robinson v. Evans (7 Jurist, 738). Here, if the mortgage money [54] h......
-
The Right Hon. JOHN RICHARDS, one of the Barons of HM Court of Exchequer, CAROLINE RICHARDS, Widow, CAROLINE MARIA RICHARDS, otherwise WOODHOUSE, and another, v CROASDAILE MOLONY, HENRY MOLONY and Others
...6 Madd. 46. Breedon v. Breedon 1 R. & M. 413. Keon v. Magawley 1 Dru. & War. 401. Balfour v. Welland 16 Ves. 151. Horsley v. FawcettENR 11 Beav. 565. Magennis v. FallonUNK 2 Molloy, 561, 565, 566. Llewellyn v. Mackworth 2 Eq. Cas. Ab. 579. Hovenden v. Annesley 2 Sch. & Lef. 629. Pentland v.......