Re Hartley. Nuttall v Whittaker
| Jurisdiction | England & Wales |
| Year | 1891 |
| Date | 1891 |
| Court | Chancery Division |
Practice - Default in Appearance - Delivery of Amended Writ -
An amended writ may be delivered to a defendant who has made default in appearance, by filing it at the Central Office, personal service being unnecessary.
THE writ in this action was issued on the 9th of December, 1890. The Plaintiffs were Edmund John Nuttall and Constance Irene Nuttall an infant, beneficiaries under the will and codicil of Edmund Hartley. The Defendants were James Whittaker, Betty Whittaker, and Noel Shore, the three trustees of the will and codicil. The writ was indorsed with a claim for the appointment of new trustees of the will in the place of James Whittaker and Betty Whittaker; for a receiver; and costs against James Whittaker and Betty Whittaker. The Defendants, James Whittaker and Betty Whittaker, did not appear; the writ had been served upon them personally. Subsequent proceedings were filed against them in the Central Office. On the 19th of December, 1890, a receiver was appointed, and leave to amend the writ was given. The writ was amended by entitling the action, “In the matter of the Estate of Edmund Hartley, deceased,” extending the claim in terms to the codicil as well as the will, and adding a claim for execution, so far as was necessary, of the trusts of the will and codicil.
The amended writ was filed but not otherwise served on the Defendants James Whittaker and Betty Whittaker. Judgment was given on the 31st of January, 1891, for administration, and directing the appointment of new trustees in the place of James Whittaker and Betty Whittaker, and ordering them to pay the costs of the action.
A motion was now made on behalf of the Defendants James Whittaker and Betty Whittaker, that they might be at liberty to enter an appearance and defend the action; (2.) that the judgment might be set aside as irregular on the ground that a copy of the amended writ was not served upon either of the applicants; (3.) that the Plaintiffs might be ordered to pay the costs of the motion.
The motion was supported by an affidavit by the applicants to the effect that they had neglected to pay proper attention to the process of the Court through ignorance, and in reliance on statements made by the testator in his lifetime, and that they had a good defence to the action.
Napier Higgins, Q.C., and Church...
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