1842. HOTHAM v. SOMERVILLE. or such person as he shall appoint, upon Messrs. Fownes and White being satisfied that the Plaintiff, or such other person, has entered into a good and valid covenant to the satisfaction of the mortgagees, for the production of the deeds, according to the intent of the deed of covenant of the 9th of June 1838. Nov. 2. STARTEN v. BARTHOLOMEW. Two suits were instituted for similar objects, one was attached to the Lord Chancellor, and the other to the Master of the Rolls' court. A reference was made at the Rolls to inquire which was most for STARTEN v. BARTHOLOMEW. MR. F. BAYLEY moved, that it might be referred to the Master to ascertain which of the above two suits was most for the benefit of the infant. He stated that the only difficulty was as to the jurisdiction, one of the causes being marked M. R. and the other L. C. (a) The MASTER of the ROLLS. Before the abolition of the Equity Exchequer, such a reference might have been obtained upon a motion in this Court alone where there were two suits, one in this Court and the other in the Exchequer. I am therefore inclined to make the order. the benefit of The Registrar, however, had better inquire as to the practice. the infants. The Registrar made inquiry, and the order was afterwards made. (a) 9th and 12th Orders of May 5th, 1837. See Ord. Can. p. 114. 116. 1842. THIS BARWELL v. BARWELL. IS was a motion, after answer, for an injunction Nov. 4. Upon an application for an injunction to stay proceedings at law, affidavits cannot be read against the answer as The case made by the bill was, that in 1837 the Plaintiff Edward Barwell borrowed of David Barwell a sum of 2007., and gave his promissory note for that sum. That in 1838 and 1839 they had some joint dealings in a speculation in potatoes, in the course of on informwhich the 2007. became paid. to facts therein stated ation and belief. An application was made, after The Defendant, who was the executrix of David Barwell, commenced an action at law on the promissory note; and the Plaintiff filed this bill for taking the accounts between Edward and David, and for an injunc-ings at law, tion to restrain the action. The Defendant, by her answer, stated, she had been informed, and believed it to be true, that in every case of joint speculation between the parties the accounts were immediately settled, and was the subject of a separate and distinct account, and that there was no open account at the death of the testator, and that the accounts of the speculation were never blended with the account of what was due on the promissory note; and she stated, she was confirmed in such belief by the entries she was able to obtain inspection of, and she believed that the 2007. and interest was due from the Plaintiff to the testator. Mr. Turner moved for the injunction. He proposed to read an affidavit contradicting the statement as to the settlement answer, for an injunction to stay proceed and was refused. The Plaintiff was ordered to pay the costs. 1842. BARWELL V. BARWELL. settlement of the accounts, and the effect of the entries. He contended that he was entitled, by the practice of the Court, to read the affidavit; because the Defendant had contradicted the allegations of the bill on information and belief only, and without stating the ground of such belief; Ord v. White. (a) That as the Defendant professed that her belief was supported by the entries in the books, an affidavit was admissible to shew their effect. The MASTER of the ROLLS. I stated what was my impression on the subject when the case of Ord v. White was before me; but I did not decide the point. When the case comes regularly before the Court, it will be seen whether that impression was well founded. Lord Eldon often had occasion to observe on the great degree of credit which must be given to the answer on an application for an injunction to stay proceedings at law; but as to receiving affidavits, he seemed to me to have expressed different opinions in two cases; nobody ever doubted that an affidavit is inadmissible where a Defendant distinctly states his belief. The motion must be refused. Mr. Pemberton and Mr. Tennant asked for the costs of the motion, on the ground that this was not a case of shewing cause on the answer, but was an independent motion. The MASTER of the ROLLS. The Plaintiff is not right in this motion, he must therefore pay the costs. (a) 5 Beav. 357.; and see Castellain v, Blumenthal, 12 Simons, 47. DAVIS v. PROUT. 1842. Nov. 4. THIS HIS was a motion to discharge an order to amend, After one of obtained, as of course, by the Plaintiff. The bill was filed in April 1841 against several Defendants. Owen, one of them, filed his answer in June 1841. In January 1842 the Plaintiff obtained an order of course to amend his bill. It was accordingly amended in February 1842, but it required no answer from Owen. Hamby, one of the original Defendants, did not answer the bill until May 1842. In July 1842, the Plaintiff obtained a further order of course to amend. Mr. Tripp moved to discharge it; and in support of the motion, contended that after the answer of one Defendant had been filed, it was not competent for the Plaintiff to obtain more than one order of course to amend his bill; and that if a Plaintiff, in such a case, required a second order to amend, he must obtain it on special application, accompanied with the requirements of the 13th Order of 1828 (a): Attorney-General v. Nethercoat. (b) Mr. Pemberton and Mr. Rogers, contrà, contended that a Plaintiff was at liberty to obtain one order of course to amend his bill after the last Defendant had answered, for then, for the first time, the Plaintiff would be able to see the several Defendants has answered, the Plaintiff can only obtain one order of course to amend. 1842. DAVIS บ. PROUT. the case made by the Defendants. That in the AttorneyGeneral v. Nethercoat the sole original Defendant had put in his answer, and there, as the right to amend as of course had expired, it was held that it could not be revived by adding a new Defendant. That if the practice were otherwise, one Defendant might, by collusion, delay putting in his answer, and prevent the Plaintiff amending his bill, and thus enable the other Defendants to obtain an order for dismissal for want of prosecution. They cited Wharton v. Swann. (a) Mr. Kinglake, for the other Defendants. The MASTER of the ROLLS. This general order was made for the benefit of all Defendants who have answered, and for each and every of them. So far as appears in the present case, the amendments were made under such circumstances, that if a special application had been made to the Court, leave to amend would have been given without the least hesitation; but the question is, whether the case comes within the order, and whether the Plaintiff was right in obtaining the order as of course, without the affidavit required by the 13th Order. I think he was not. This order is irregular, and it must therefore be discharged. (a) 2 Myl. & K. 362. |