1844. RICHARDSON v. HASTINGS. these 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, provided the bill stopped there, and did not go on to seek a final distribution of the funds and the 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. 1844. The Guardians of WIMBORNE UNION v. MASSON. 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 ineffectual 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. order to amend, has reference to the answer to the original and not to an amended bill. After a full answer the Plaintiff On the 29th of January 1844, Masson, who was then the sole Defendant, put in his answer to the amended amended. bill, which became sufficient on the 25th of March The Defendant answered following. This answer having disclosed circumstances the amended which rendered it necessary for the Plaintiffs to make bill. Six E. C. a party to the suit, the Plaintiffs applied to the Court, in the first instance, for liberty to amend. application was supported by the proper affidavit. The weeks had expired from when the first, the time but not from the time when the second answer was to be deemed sufficient. any further 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 Held, that obtain, upon motion or petition without notice, one application order for leave to amend the bill; but no further leave for leave to to amend shall be granted after an answer and before be made to replication, unless the Court shall be satisfied," &c., and (a) Ord. Can. 8. amend must the Court, and not to the it Master. 1844. WIMBORNE v. MASSON. it afterwards proceeds, "but no order to amend shall be made after answer and before replication, either without notice or upon affidavit, in manner hereinbefore mentioned, unless such order be obtained within six weeks after the answer, 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 applica'tions 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. It has been expressly decided that the six weeks has reference to the answer to the original bill: Haddelsea v. Nevile (a) Ord. Can. 50. (b) Lloyd v. Wait, 4 Myl. & Cr. 257.; Smith v. Webster, 3 v. Nevile (a), and Bertolacci v. Johnstone (b); and although Lord Lyndhurst in Wharton v. Swann (c), 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 (d), and with Davis v. Prout. (e) 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 (g) was also cited. Mr. Willcock, contrà. This application ought to have been made to the Master, for the six weeks must be counted from the period when the answer to the existing record, namely to the amended bill is to be deemed sufficient; from that answer alone the necessity for a further amendment became disclosed. It has been so decided by Lord Lyndhurst in Wharton v. Swann, and recently by Sir L. Shadwell in Wilson v. Wilson. (h) In Haddelsea v. Nevile, and Attorney-General v. Nethercoat, the decision of Lord Lyndhurst in Wharton v. Swann was not referred to. Mr. Turner in reply. The MASTER of the ROLLS. In a former case I had occasion to observe, that by the 13th Order, the Court intended a protection for 1844. WIMBORNE v. MASSON. 1844. WIMBORNE v. MASSON. each and every of the Defendants who had answered, and I retain that opinion. As it is represented that there is unfortunately a conflict of authorities on the point, I will look at all the cases; but I do not see how it is possible to construe the word "answer" differently in the two parts of this General Order. April 24. The MASTER of the ROLLS said, he had examined the authorities, and that he was of opinion that the answer referred to in the 13th Order was the answer to the original, and not to the amended bill. NOTE. This decision has been since followed by Sir J. Wigram in Dean v. Hickinbotham, 24th July 1845. |