Ramsbottom v Edwards
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 250
ROLLS COURT
S. C. 15 L. J. Ch. 84. See Morgan v. Morgan, 1851, 14 Beav. 80.
[22] gwynne v. edwards. gwynne v. hicks. ramsbottom v. edwards. July 12, 14. Nm . 16, 1845. [S. C. 15 L. J. Ch. 84. See Morgan v. Morgan, 1851, 14 Beav. 80.] Generally, the Court leaves the question of rehearing to the certificate of counsel, reserving, nevertheless, its power and jurisdiction, and if the order to rehear be obtained under such circumstances, or in such a manner, that any party has a right to complain, the proper proceeding is to apply to take the petition off the file. Where a person, not a party to the suit, is desirous of obtaining a rehearing, he must apply for leave to present a petition to rehear. A bill by a creditor, to obtain relief inconsistent with an order in a previous suit, was filed nearly twenty years subsequent to the date of the order, and prayed that the order might be reviewed. An application to rehear the former suit was refused, on the ground of laches, acquiescence, and length of time, but with liberty to renew the application at the hearing of the second suit. A party who comes in in a creditor's suit, intrusting the management of the suit to the Plaintiff, must, upon an application to review the proceeding, stand in the place of the Plaintiff, and, in the absence of fraud, be bound by his knowledge. This was a motion made by the Plaintiff Ramsbottom, for leave to file a petition to rehear two orders made in the cause of Gwynne v. Edwards, one of the orders being made in the month of May, and the other on the 27th of June 1825. In the cause of Gwynne v. Edwards, the bill was filed in 1807, by Thynne Howe Gwynne, on behalf of himself and the other specialty creditors of John Bennett Popkin, who died in the year 1804, having made a will, whereby " he directed all his just debts to be paid as soon as conveniently might be after his decease." At the time of his death, he was entitled to the equity of redemption of three several copyhold estates, one of which was mortgaged to Elizabeth Lewis ; another was mortgaged, together with certain freeholds, to Albany Wallis; and the third was mortgaged to John Landeg. The mortgagees, Elizabeth Lewis, Lewis Bayly Wallis (the representative of the mortgagee Albany Wallis), [23] and Landeg, were made Defendants to the suit, and the bill prayed the usual accounts, and that the testator's debts, as to any deficiency of the personal estate to pay the same, might be paid by money to be raised by the rents or by sale or mortgage of the real estates; and in case it should be necessary to apply the copyhold estates in payment of the debts, and the same had not been 9 BEAV;. GWYNNE V. EDWARDS 251 surrendered to the use of the will, it was prayed, that the surrender thereof might be supplied by this Court in favour of the creditors. It did not appear that the mortgagees, or any of them, made any objection to being made parties to the suit. Samuel Hawkins waa made a Defendant to the cause, as claiming an interest in part of the testator's estate, and also as a trustee of the other part thereof; and, pending the suit, viz., on the 16th of April 1810, Hawkins assigned to Ramsbottom and others, under whom the Plaintiff claimed, four several bonds executed by the testator and bearing penalties, which, with the costs, amounted in the whole to 10,572, 14s. 9d. The cause was heard on the 8th of December 1812. The usual accounts were directed, and, if the personal estate should be insufficient for payment of the debts by specialty, the Master was to inquire what freehold, copyhold, and leasehold estates the testator died seized or possessed of, or entitled to, either in possession or reversion, which were liable to the payment of his debts, and whether such copyhold estates were duly surrendered to the use of his will; and in case the Master should find that the same were not so surrendered, it was declared that such surrender ought to be supplied ; and it was ordered, that the customary heir should procure himself to be admitted to such estates, and surrender the same accordingly, except such estates of which the testator was entitled to the equity [24] of redemption only, as to which an inquiry was directed. And the Master was to inquire, what mortgages, liens, and other incumbrances there were on the testator's freehold, copyhold, and leasehold estates. And it was ordered, that the freehold and leasehold estates which the Master should find liable to the payment of the debts should be sold. Under this decree, and on the 14th of November 1814, Messrs. Ramsbottom claimed to be creditors, by assignment from Hawkins, under the four bonds. The establishment of the claim was long delayed, but finally allowed in January 1824. During the proceedings before the Master, the title to the mortgages of the copyhold underwent certain devolutions. Elizabeth Lewis died ; her mortgage became vested in Leyshon Rogers, who was made a party to the cause; but in the year 1818 he assigned his interest to Charles Calland, who claimed to be interested, not only in the mortgage assigned by Rogers, but also to be entitled to the equity of redemption. The mortgage in the freeholds and copyholds, which had passed from Albany Wallis to Lewis Bayly Wallis, became vested in Hugh Smith. And Landeg having died, his mortgage became vested in Reynolds and Vaughan, or one of them, and they were made parties. At a period long before the date of the Master's report, a question seems to have been made, whether the mortgaged copyhold estates were liable to the payment of the testator's general specialty debts. [25] Mr. Hugh Smith, who had become the owner of Wallis's mortgage, made a proposal for receiving payment; and in November 1818 an order was made, to take an account of what was due thereon ; and, by a separate report, made on the 6th of July 1823, it appeared that the sum of 5119, 15s. 7d. was due; and the...
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