Nicholson v Peile
| Jurisdiction | England & Wales |
| Judgment Date | 13 May 1840 |
| Date | 13 May 1840 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 1274
ROLLS COURT
[497] nicholson v. peile. May 13, 1840. A Plaintiff submitted to a demurrer, and obtained an order of course to amend, undertaking to amend within three weeks; he did not comply with the undertaking, but after the expiration of the three weeks, obtained a second order of course to amend upon similar terms. No answer having been filed: Held, that the second order was not irregular. The Defendant Peile filed a general demurrer to the Plaintiff's bill, and set it down for argument, whereupon the Plaintiff, before argument, submitted to the demurrer, and on the 2d of April obtained an order of course for liberty to amend, upon payment to the Defendant Peile of 20s. costs in respect of the amendment, and the coats of the demurrer, and without costs as to the other Defendant, amending her office copy, "the Plaintiff undertaking to amend the bill within three weeks." The costs were taxed, and paid on the 1st of May; but the Plaintiff did not amend his bill within the three weeks, which expired on the 24th of April. On the 29th of April he obtained, as of course, a second order to amend similar in terms to the first. No answer had been filed. It was now moved on behalf of the Defendant Peile, that the second order might be discharged with costs for irregularity. The affidavit in opposition stated, [498] that immediately on the first order being obtained, instructions were laid before counsel to amend the bill, but that owing to other engagements, the amended bill was 2BEAV.499 MORRICE V. SWABY 1275 not obtained from him until the day after the expiration of the three weeks mentioned in the first order, which was the reason of the default in not amending within the time. Mr. George Turner, for the motion. The Plaintiff having failed in the performance of his first undertaking, had no right to get a second order as of course giving him further time to amend, otherwise, by obtaining a series of such orders, a Defendant might be infinitely delayed, without the possibility of relieving himself therefrom, as he could not put in an answer pending an order to amend. A demurrer being put in, the Plaintiff has submitted to it, and on certain terms he has been allowed the indulgence of amending his bill; he must strictly comply with his undertaking, and upon his default, either the demurrer ought to be considered as...
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Horsley v Fawcett
...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 dischar......
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Brooks v Purton and Others
...v. Swann (2 Myl. & K. 362), and the Plaintiff may obtain a second order notwithstanding his first undertaking ; Nicholson v. Peile (2 Beav. 497). The order to amend without prejudice to the injunction is quite regular; Ferrcmd v. Hamer (4 Myl. & Cr. 143); and the second order of the 9th May......