Wyllie v Ellice
| Jurisdiction | England & Wales |
| Judgment Date | 26 February 1848 |
| Date | 26 February 1848 |
| Court | High Court of Chancery |
English Reports Citation: 50 E.R. 754
ROLLS COURT
S. C. 17 L. J. Ch. 378; 12 Jur. 711.
[99] wyllie v. ellice. April 15, May 30, 1848. [S. C. 17 L. J. Ch. 378; 12 Jur. 711.] A Plaintiff by his bill described himself as resident within the jurisdiction. The Defendant had some notice of his being resident abroad. The Defendant answered, and on a subsequent amendment, a demurrer was allowed with liberty to amend. The Plaintiff having amended and described himself as resident abroad, the Defendant obtained an order of course for security for costs. Held, under these circumstances, 1st, that such an older might be obtained as of course, though after answer. 2d, that it was not necessary in the petition for the order to state that an answer had been filed; and, thirdly, that though the Defendant might have precluded himself from asking for security for costs in the suit as it stood before the last amendment, still he was not so precluded, after the Plaintiff, by amendment, stated himself to be resident abroad. This was a motion to discharge an order of course for security for costs. The bill was filed in March 1847, and the Plaintiff described himself as resident within the jurisdiction. In July following, the Defendant, hearing that the Plaintiff was abroad, gave notice of motion for security for costs; but on the 26th of July he filed his answer, and gave notice of abandoning his motion. The Plaintiff came back to England in December, and, on the 16th of January 1848, the Defendant filed a demurrer to the amended bill. On the 13th of March the Defendant had clear notice that the Plaintiff1 was abroad, and on the same day (13th of March 1848) the demurrer was allowed, with liberty to amend. The Plaintiff amended his bill on the 27th of March, and, in conformity with the decision in Ken- v. Gittespie (1 Beavan, 269), he then stated that he resided in France. On the 29th of March the Defendant obtained an order of course for security for costs; but he omitted to state, in his petition for the order, all that had previously occurred in the cause. Mr. Turner and Mr. W. Morris now moved to discharge the order for irregularity ; first, because the [100] order ought not to have been made as of course after answer. 2dly. Because the fact of an answer having been filed, had been suppressed in the petition for the order of course. Cooper v. Lewis (2 Phillips, 178), Hooper v. Paver (6 Beavan, 173), and St Victor v. Devereux (6 Beavan, 584). 3dly. Because there had been a waiver of the irregularity (if any), by the proceedings taken by the Defendant, subsequently to his knowledge of the Plaintiff's absence from England. Mr. Teed and Mr. Brett, contra. 11BBAV.M1. WYLLIE V. ELLICE 755 1st. A demurrer having been allowed, the bill was out of Court, the Plaintiff proceeded de novo, and there was no answer to the new bill. The Defendant was, therefore, perfectly regular in obtaining the order of course, when the Plaintiff, for the first time, described himself as resident abroad. 2dly. There was no suppression of any material fact, for all that preceded the allowance of the demurrer was immaterial to this question. 3dly. The Defendant applied for security for costs the moment he had conclusive evideace of the Plaintiff being resident abroad. Therefore there was no waiver. Mr. Turner, in reply. : the master of the rolls [Lord Langdale]. In this case there are two questions: 1st, whether an order such as this ought [101] ever to be made under the circumstances as an order of course; and, 2dly, whether the petition omitted to state all material special circumstances. It has been argued, that, by the allowance of the demurrer, the bill was out of Court. The expression " the bill is out of Court" is frequently used; but still it remains for ever on the files of the Court, and several things may be done, after a demurrer has been allowed to it. What is meant by the expression is, that it is in such a state that no relief can be had upon the bill as it stands; but if, on allowing a demurrer, the Court, at the same time, gives leave to amend the bill, though no relief can be had upon in its present shape, yet there may be upon an amendment, and for that very purpose leave was given to amend. I cannot, therefore, consider the bill out of Court. The circumstances are these :-A bill being filed, in which the Plaintiff described himself as living within the jurisdiction, and several proceedings having been had, and a demurrer being allowed to the bill, an amendment is afterwards made, by which it was, as I think properly, stated that the Plaintiff had not then the same residence which he had on filing the original bill, but such a residence as if it had been stated on the original bill, would have given the Defendant a right to an order of course for security for costs ; and the question is, under such circumstances, whether the Defendant is entitled to take an order of course. It is admitted, that, where the Plaintiff is within the jurisdiction at the time the bill is filed, and afterwards goes out of the jurisdiction, he is not to be asked to give security except on a special motion. It is very necessary that this should be the case; for otherwise the temporary absence of a Plaintiff would be sufficient [102] to entitle the Defendant to an order for costs; and the circumstance of filing a bill in Chancery would hinder a Plaintiff from moving about the world as his family and business might require. Cases have occurred in which a party has gone abroad, and security for costs being asked, I have refused it, because I thought, that the mere circumstance of the Plaintiff going abroad, upon necessary business and affairs, was not to be taken as a withdrawal out of the jurisdiction. Bnt if a Plaintiff saves all trouble, and does not leave it a matter of doubt, whether he has gone abroad for a temporary purpose, or to reside permanently, if he states that he is residing abroad, what necessity is there for all the investigation which is requisite where the matter is doubtful? There is an end of the matter so far as the case is to be considered independent of the proceedings in the suit. As to the proceedings in the suit, it appears, that, the Plaintiff being abroad, the Defendant did intimate his intention of applying to the Court for security for costs ' he did not prosecute it; he might have had sufficient reason for so doing; he might not have had sufficient evidence, especially as this gentleman has since returned, and has actually been here; non constat, therefore, that he might not have been then here. I cannot say that this objection is to prevail and preclude a party from obtaining security for costs, when he had it clearly admitted by the party himself that he was resident abroad. I will...
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