1845.

JONES

v.

TINNEY.

ROLLS.

1846. March 11th. In a suit for foreclosure, on motion by a subsequent mortgagee, the bill was ordered to be dismissed on the mover paying into Court a fixed sum on or before a day specified, to answer the Plaintiff's claim, and the costs of the Plaintiff and other Defend

ants.

Refer it to the Master to take an account of what is due to the Plaintiff in respect of his securities in the usual manner, on the footing of a mortgagee in possession; and refer it to the Taxing Master to tax the Plaintiff's costs of the suit and the other mortgagees' costs; and the Master was to certify what was due to the Plaintiff for principal, interest, and costs; and the Plaintiff and Defendant D. L. Harris were to be at liberty to apply.

CHALLIE v. GWYNNE.

THIS was a suit for foreclosure by a first mortgagee in possession against the mortgagors and subsequent mortgagees, and Lewis Lloyd, who claimed the equity of redemption, under a contract for purchase from the mortgagor.

A motion was made after answer, but before hearing, by David Lloyd Harris, a puisne mortgagee, substantially to stay proceedings on payment to the Plaintiffs of the amount of their mortgages.

Mr. Kindersley, Q. C., and Mr. Freeling, for the motion.

Mr. Turner, Q. C., for the Plaintiff, and other counsel for the Defendant Lewis Lloyd. The other Defendants except infants appear to have consented..

The sum of 28,000l. was fixed upon as sufficient to answer what was due to the Plaintiffs, together with the costs of the suit.

The order was made to the effect following:—

The Defendant D. L. Harris to pay into Court 28,000l. on or before the 20th April next.

The money, when paid, to be invested and accumulated.

The Court, thinking it for the benefit of the infant Defendants to waive accounts against the Plaintiffs, and the other Defendants (except the Defendants D. L. Harris and Lewis Lloyd) waiving such accounts and consenting, order, upon payment of the 28,000l. into Court, the bill to be dismissed against all the Defendants except the Defendant D. L. Harris.

The taxed costs of the Defendant Lewis Lloyd to be paid by the Plaintiffs.

The taxed costs of the Plaintiffs and of the other Defendants

to be paid, and the costs of Lewis Lloyd to be repaid out of the fund in Court.

The Defendant D. L. Harris consenting, by his counsel, to indemnify the Plaintiff against any proceedings which might be taken before the determination of the suit for redeeming the Plaintiffs' security, and against any suit by Lewis Lloyd in respect of their mortgage security, or in respect of their accounts as mortgagees in possession, and the Plaintiffs consenting,order the usual account of what was due upon the Plaintiffs' securities, upon the footing of their being mortgagees in possession. -Liberty to apply.

If the 28,000l. was not paid in within the time specified, it was to be deemed that no order was made on the application. But, in that case, the Defendant D. L. Harris was to pay the costs of the application.

1846.

CHALLIE

บ.

GWYNNE.

BRYAN v. WASTELL.

THIS was a suit for foreclosure.

1854. March 15th.

Amendment after Replication-Adding Parties-Or

Mr. R. W. E. Forster moved, ex parte, after the cause was at issue, for leave to amend, by adding two subsequent judgment der of course. creditors as Defendants.

An order of

The question was, whether this was a motion of course, or to course may be be made in Chambers under 15 & 16 Vict. c. 80, s. 26.

He cited Hitchcock v. Jaques (9 Beav. 192), where the answer raised the objection of want of parties; and it was argued, that the cause should have been set down upon that objection, under the 39th Order of August, 1841; and the Master of the Rolls held, that an order of course to amend by adding parties, obtained after replication, was irregular, and must be discharged.

In Brattle v. Waterman (4 Sim. 125), an order of course was considered regular in such a case, notwithstanding the 15th Order of April, 1828.

VICE-CHANCLLOR SIR W. PAGE WOOD thought, that the order might be made upon a motion of course, as no new issue would be tendered by the amendment (a).

(a) See Hayward v. Price, 14 Jur. 1083, where a similar order was made to amend a claim.

obtained, after replication, to amend by adding parties, where no new issue is thereby

tendered.

1854.

Traversing Note--Motion for Decree-15 & 16 Vict. c.

86, s. 15-57th Order of 8th of May, 1845.

After filing a traversing note against one De

fendant, the Plaintiff can proceed by motion for decree, as though the traversing note

were an answer.

March 16th.

MANIERE v. LEICESTER and KAMP.

IN this case the bill and interrogatories had been served on both
Defendants. Leicester filed his answer in due time. Kamp op-
posed, but filed no answer; and the Plaintiff, at the expiration
of the time for answering, filed a traversing note against Kamp.
On application by the Plaintiff to the Clerks of Records and
Writs for a certificate of the answer and traversing note, pre-
paratory to entering the cause for hearing by motion for decree,
the certificate was refused, on the ground that the Plaintiff, by
filing a traversing note, had precluded himself from proceeding in
any
other way
than by replication.

Mr. Prendergast now moved that the Clerks of Records and Writs might be directed to issue the certificate. He referred to the 15th section of 15 & 16 Vict. c. 86, and the 57th of the Orders of 1845, as to the effect of a traversing note; and argued that both the Defendants were in the position of Defendants who had answered; and that the traversing note, being merely an answer, made no difference in the Plaintiff's rights.

VICE-CHANCELLOR SIR W. PAGE WOOD thought, that the Plaintiff might have entered his cause for hearing on motion, without filing a traversing note, as the time for a defaulting Defendant to answer had expired; and intimated that the proper course was to move to take the traversing note off the file, if the Plaintiff desired to give notice of motion for decree.

The Lords Justices, on the matter being mentioned to them, considered the traversing note to be, for this purpose, equivalent to an answer, and that the Plaintiff might proceed accordingly by motion for decree.

PERRY v. TURPIN.

1854.

April 21st.

tion-15 & 16

THE bill in this suit contained no charge of the possession of Charge of Docudocuments by the Defendant, but interrogatories were filed, in- ments-Excep cluding, among others, the ordinary interrogatory as to documents, which the Defendant answered; and this was an exception to that part of his answer, for insufficiency.

Mr. Haig for the exception.

Mr. Rogers, contrà, objected, that the bill contained no charge of documents; and that his Honour had intimated in a previous case before him, that exceptions to an answer as to documents were rendered unnecessary by the new practice provided by the 15 & 16 Vict. c. 86, s. 18.

VICE-CHANCELLOR SIR W. PAGE WOOD:

Vict. c. 86, ss. 10, 12, 18.

It is not necessary now, in every case, to insert a charge of documents in

It seems to me, that, according to the true construction of the sary, because the discovery Act, 15 & 16 Vict. c. 86, I should not be complying with the may be enforcexpressed intention of the legislature, if I were to hold that it is ed in Chambers. necessary in every case to find in the bill a charge of the possession of books and papers by the Defendant, before this interrogatory can be filed. The 10th section enacts, that "every bill of complaint to be filed in the said Court, after the time hereinafter appointed for the commencement of this Act, shall contain, as concisely as may be, a narrative of the material facts, matters, and circumstances on which the Plaintiff relies."

Now, the Plaintiff cannot be said to rely upon the fact of the Defendant having relevant books and papers in his possession. He relies upon the facts of which they are evidence, and which he thinks they will help to establish. The section continues, "such narrative being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may be, a separate and distinct statement or allegation, and shall pray specifically for the relief which the Plaintiff may conceive himself entitled to, and also for general relief; but such bill of complaint shall not contain any interrogatories for the examination of the Defendant."

The 12th section enacts, that, "within a time to be limited by a general order of the Lord Chancellor in that behalf, the VOL I.

[i]

E. K. W.

1854.

PERRY

v.

TURPIN.

Plaintiff, in any suit in the said Court commenced by bill, may, if he requires an answer from any Defendant thereto, file, in the Record Office of the said Court, interrogatories for the examination of the Defendant or Defendants, or such of them from whom he shall require an answer, and deliver to the Defendant or Defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall be applicable to the particular Defendant or Defendants; and no Defendant shall be called upon or required to put in any answer to a bill, unless interrogatories shall have been so filed, and a copy thereof delivered to him or his solicitor within the time so to be limited."

Certainly, the old practice was to charge the Defendant with having books or papers in his possession or power, before you could interrogate him as to that fact; but, when the legislature has said, you must state the facts upon which you rely, and you are at liberty to file interrogatories to substantiate the case made by the bill, it is impossible to say, that it is necessary to have that charge in order to found the interrogatory, because it is not an interrogatory upon any fact issuable in the cause. The ques tion, whether the Defendant has in his possession particular books or papers, is not a point to be tried at the hearing, but merely a question of evidence, and the object of the statute is to keep the evidence and the facts distinct. The Plaintiff must state the facts, and not the evidence in support of them. The object of the legislature is, that the bill should be as concise as possible, which I should to some extent defeat, if I insisted upon having this charge inserted.

The other point pressed upon me by Mr. Rogers, was my expression of opinion in a former case, to which I still adhere. I dislike extremely these exceptions as to documents, when the discovery can be easily obtained at Chambers under the new practice.