1844.-Richardson v. Hastings. club wound up, which could not be done, except in a suit to which all the members were made parties; Evan v. Stokes (a) That a suit could not be instituted by one of a class on behalf of the others, unless their interests were the same, and the relief sought was in its nature beneficial to all those whom the plaintiff undertook to represent; Gray v. Chaplin.(b) That here, the subscribers to the furniture fund were entitled to be first paid, and had manifestly an interest quite opposed to the general body of those members who had not subscribed, and which latter body ought in some way or other to be represented in the suit; Richardson v. Larpent.(c) *That the parties were not so numerous as to entitle [*306] the plaintiff to sue on their behalf; Bainbridge v. Burton,(d) where thirty-eight persons interested were required to be made parties. That Stewart was a necessary party, being a trustee of the lease; and that Dobson, who had signed the receipt for the purchase money for the furniture, and was liable for the amount, was also a necessary party to the suit. Mr. Kindersley, Mr. Turner, and Mr. Cameron, in support of the bill. The demurrer on record does not insist that all the members of the club are necessary parties, as has been argued at the bar. They are not, however, necessary parties, for the suit does not seek to have the affairs of the club finally wound up, but merely to compel the two defendants who have received the assets of the club, to account for and render them to the proper custody. If the latter part of the prayer of the bill be considered as asking a settlement of all the affairs of the club, such relief may, according to the recent authority of Wallworth v. Holt,(e) be had in a suit constituted like the present, or at all events, it may be waived at the hearing, and the relief asked confined to the first part of the prayer, namely, the account of the moneys (a) 1 Keen. 24. And see Deeks v. Stanhope, V. C. E., 21st of March and 12th July, 1844; [Reported 14 Sim 57.] b, 2 S. & St. p. 272. (c) 2 Y. & C. (N. C.) 507. 1844. Richardson v. Hastings. received by the defendants. It is to the common interest of all the members that this common fund should be recovered. The interests of the subscribers and non-subscribers to the furniture fund are no more conflicting than those of a mortgagee and the general creditors of a deceased party, in which [307] case the mortgagee may sue on behalf of himself and all other the creditors. Greenwood v. Firth,(a) Skey v. Bennett.(b) Neither Stewart nor Dobson are necessary parties; they have received no part of the assets, and are in no way accountable. THE MASTER OF THE ROLLS:-There is no doubt of the plaintiff's equity, but I am of opinion that this bill is so framed as by its nature to be defective for want of parties; it is in vain for the plaintiff to say that he will stop and limit the relief to that which is first prayed. The prayer of the bill is, in substance, that the affairs of this concern may be wound up, which cannot be effected unless all the questions between the parties are first settled and decided. It appearing, therefore, upon the bill, that questions may probably arise between those persons on whose behalf the bill purports to be filed, they cannot be settled in their absence. At one time, the court would not entertain a suit between parties in relation to partnership transactions, except upon a bill to wind up the partnership. That is not now the rule of the court, for I think, and the cases which have been referred to corroborate that view, that the court will, as between partners, entertain a bill to settle a question which may arise between them, without proceeding to wind up the concerns and affairs of the partnership.[1] One argument used in support of the bill is, that if it had [*308] stopped, and simply asked for the accounts against *these (a) 2 Hare, 241, note (b). (b) 2 Y. & C. (N. C.) 405. And see Aldridge v. Westbrook, 5 Beav. p. 193. [1] To entitle one partner to an order for an injunction and receiver against his co-partner, he must either show a dissolution, or facts, which if proved at the hearing, would entitle him to a decree for a dissolution. Smith v. Jeyes, 4 Beav. 503. 1844. Richardson v. Hastings. defendants, and that they should pay the balance found due in such a way as to be under the control contemplated by the agreement between the members, the other persons would not be necessary parties. That may be so; but so long as there can be any question between the plaintiff and those whom he proposes to represent, and which must be decided before the funds can be disposed of, so long I think the bill will be defective for want of parties. I think the case is so stated by the bill as not to preclude questions with respect to the several contributions. I do not see why either Mr. Stewart or Mr. Dobson should be made a party to this suit, nor do I think that the plaintiff would be prevented from calling these particular defendants to account for their receipts in the absence of the other members,[2] provided the bill stopped there, and did not go on to seek a final distribution of the funds and winding up of the partnership. I shall disallow the demurrer for want of equity, and allow it for want of parties without costs, and I shall give the plaintiff leave to amend the bill, either by adding parties, if he should be so advised, or by altering the frame of the bill so as to make it appear that it is not necessary to add parties.[3] [2] The Attorney General v. Wilson, Cr. & Ph. 1; The Attorney General v. The Corporation of Leicester, ante, 181. [3] The plaintiff amended his bill. See the subsequent proceedings in the case, post, 323, 354. As to the question of parties, see Milligan v. Mitchell, 3 Myl. & Cr. 84; Fish v. Howland, 1 Paige, 20; Robinson v. Smith, 3 Paige, 230; Egberts v. Wood, id. 520; Walker v. Devereaux, 4 Paige, 229; Brown v. Ricketts, 3 Johns. Ch. Rep. 553; Evans v. Stokes, 1 Keen, 32, 33; Baldwin v. Lawrence, 2 Sim & Stu. 19; Jones v. Garcia del Rio, Turn. & Russ. 297; Hichens v. Congreve, 4 Russ. 562; Bromley v. Smith, 1 Sim. 8; Deeks v. Stanhope, 14 Sim. 57. 1844-Wimborne Union v. Masson. [*309] *THE GUARDIANS OF WIMBORNE UNION v. Masson. 1844 April 23, 24. Under the 13th amended order of 1828, the six weeks after the answer is to be deemed sufficient, within which a plaintiff can obtain an order to amend, has reference to the answer to the original and not to an amended bill. After a full answer the plaintiff amended. The defendant answered the amended bill. Six weeks had expired from the time when the first, but not from the time when the second answer was to be deemed sufficient. Held, that any further application for leave to amend must be made to the court, and not to the master. THIS was a motion for liberty to amend the bill, and the question was, whether the application ought to be made to the master, or to the court in the first instance. The bill was filed against Masson, and against another defendant, who disclaimed, and was dismissed. After several ineffec tual attempts, Masson, on the 27th of July, 1843, put in a sufficient answer to the original bill. On the 7th of December, 1843, the plaintiffs obtained an order to amend, which they did accordingly. On the 29th of January, 1844, Masson, who was then the sole defendant, put in his answer to the amended bill, which became sufficient on the 25th of March following. This answer having disclosed circumstances which rendered it necessary for the plaintiffs to make E. C. a party to the suit, the plaintiffs applied to the court, in the first instance, for liberty to amend. The application was supported by the proper affidavit. By the 13th amended order of April, 1828, (a) it is provided, "That after an answer has been filed, the plaintiff shall be at liberty before filing a replication to obtain, upon motion or petition without notice, one order for leave to amend the bill; but no further leave to amend shall be granted after an answer and be fore replication, unless the court shall be satisfied," &c., [310] and "it afterwards proceeds, "but no order to amend shall be made after answer and before replication, either without notice or upon affidavit, in manner herein before mentioned, unless such order be obtained within six weeks after the answer, (a) Ord. Can. 8. 1844.-Wimborne Union v. Masson. if there be only one defendant, or after the last of the answers, if there be two or more defendants, is to be deemed sufficient." The 3 & 4 W. 4, c. 94, s. 13, enacts, that the masters in ordinary shall hear and determine all applications for leave to amend bills, &c.; and the 20th order of December, 1833,(a) directs "that all special applications for leave to withdraw replication as well as to amend bill, shall be heard and determined by such master in rotation." Under these circumstances the question was, whether the application ought to have been made to the master in the first instance, and to the court by way of appeal. Mr. Turner and Mr. Lewin, in support of the application.The question is, whether, under the 13th amended order, the six weeks are to be reckoned from the time when the answer to the original or to the amended bill was to be deemed sufficient. If from the former, then the 13th order is imperative, that no order to amend shall afterwards be made; and the master having no authority to relax this rule,(b) the application is properly made to the court.[1] It has been expressly decided that the six weeks has reference to the answer to the original bill: *Haddelsea [*311] v. Nevile, (c) and Bertolacci v. Johnstone; (d) and although Lord Lyndhurst in Wharton v. Swann,(e) said, that the impression upon his mind was, that the term "answer," used in the 13th of the new orders, referred to the answer to the amended bill, still, that is quite inconsistent with the decision of Lord Cottenham in the Attorney General v. Nethercoat,(g) and with Davis v. Prout.(h) If such were not the true construction of the order, a plaintiff might amend indefinitely, as every fresh amendment would extend the time for making another. Matchitt v. Palmer,(i) was also cited. (a) Ord. Can. 50. (b) Lloyd v. Wait, 4 Myl & Cr. 257; Smith v. Webster, 3 Myl. & Cr. 244. (c) 4 Beav. 28. (d) 2 Hare, 632. (e) 2 Myl. & K. 362. (g) 2 Myl. & Cr. 604. (i) 10 Sim. 241. [1] A master has no authority to inquire as to the regularity or propriety of an order of the court. Powell v. Kane, 5 Paige, 267. |