of his continuing to have at the hearing of the cause that right, which he very fairly alleged he had at the commencement. I must add, that I do not think it is by any means clear that if he had brought the cause to a hearing while his interest continued, he would have been entitled to costs; it does not appear to me to be clear, it is possible that he might, but that would depend upon circumstances, the evidence and the report; these are matters upon which I cannot now form a proper opinion. The Plaintiff's interest having altogether ceased, and there being no special circumstances in this case, which, in my opinion, entitle him to be reimbursed, by the other party, those costs which were incurred for his own benefit, I must refuse this application with costs. The other petition to stay proceedings does not ask for costs, and I must simply make an order according to the prayer. of it. 1842. HAY V. BOWEN. THE EGREMONT v. COWELL. 1843. Jan. 11. 18. HE question in this cause arose under the 34th A demurrer is The twelve days limited by that order for the Plaintiff to set down the demurrer, expired on the 1st of January 1843, which was on Sunday; and it being in the vacation, the Plaintiff, on the following day (Monday the 2d of January), left the order for setting down the demurrer (a) Ord. Can. 174. considered as set down, from the time when the order for setting it down is carried into the Registrar's office, and not from the time of its entry in with the Regis trar's book. 1843. EGREMONT บ. COWELL. with a clerk in the registrar's office, but the demurrer was not actually set down in the registrar's book until Tuesday the 3d. By the order in question it is ordered, "That where the Defendant shall file a demurrer to the whole bill, the demurrer shall be held sufficient, and the Plaintiff be held to have submitted thereto, unless the Plaintiff shall, within twelve days from the expiration of the time allowed to the Defendant for filing such demurrer, cause the same to be set down for argument." Mr. Pemberton and Mr. Beavan moved, that the demurrer having been submitted to, the costs of the suit might be taxed and paid by the Plaintiff. They argued that there had not been a setting down of the demurrer within the time, and that under the 34th Order the Plaintiff must be considered to have submitted thereto, unless, upon a special application to be made by him, the Court should think fit to relieve him from the effect of the 34th Order. That the order required the Plaintiff, "to cause the demurrer to be set down," and it therefore became the duty of the Plaintiff's solicitor, not only to take the order into the registrar's office, but to see that the demurrer was actually set down in the book, and which he had not done in this case. They referred to Charlton v. Richmond (a) decided as shewing that the twelve days did not mean office days. Mr. (a) 4 Beav. 397. Mr. Koe and Mr. Shee for the Plaintiff, were not heard by The MASTER of the ROLLS who said, he would make enquiry as to what had really taken place, for there appeared some inconsistency on the affidavits. 1843. EGREMONT v. COWELL. The MASTER of the ROLLS, after stating the facts as ascertained by him from the officers of the Court said, The whole is reduced to this, whether a Plaintiff who obtains an order for setting down a demurrer, and leaves it within the limited time at the registrar's office has not complied with the order. I am clearly of opinion that he has. I must consider this demurrer as set down from the time when the order was delivered to the clerk at the registrar's office, and as there was no surprise or prejudice to the Defendant, I must refuse the motion with costs. Jan. 18. It appeared in the course of this motion, that it was the practice of the registrar's office not to allow an inspection of the Book of Causes until the commencement of the term; so that it could not be ascertained what causes &c., had been set down between the two terms, or when they had been entered. The MASTER of the ROLLS disapproved of the practice and expressed a wish that it might be altered, so that the public and the suitors of the Court might not be excluded from the opportunity of ascertaining the real state of the Cause Book. 1843. Jan. 21. A statement "that the Defendant al leges and the Plaintiff be lieves the fact to be," is not a sufficient al THE EGREMONT v. COWELL. THE original cause is reported in a former volume. (a) It was a suit by a pauper for foreclosure and redemption, and one of the mortgages having been made to Greenwood and Bollond, and the latter being dead, it was objected that his personal representatives were necessary parties, on the ground that they were tenants in common of the mortgage money. The objection was allowed, and at the hearing, it was ordered, "that the case should stand over with held defective liberty to the Plaintiff to amend, by adding parties with apt words to charge them, and bring on the case to a hearing as she should be advised." legation of a material fact. A bill was, for want of parties, and stood over. Another bill was filed, stating that at the hearing the sole Plain It turned out, that at the former hearing, Mrs. Vickers tiff was dead, the sole Plaintiff had been dead nearly a twelve month. and stating circumstances intended to remove the objection for want of parties, and pray ing the discharge of the former order and a revivor. A demurrer for want of parties was sustained. A new bill was now filed by the representative of the Plaintiff, which stated, that at the former hearing the sole Plaintiff was dead, and alleged that the order then made was irregular. The bill then went on to state that Greenwood and Bollond were trustees of a post nuptial settlement of a sum of 60007., "and that the Defendant Greenwood alleged, and the Plaintiff believed the fact to be," that the sum of money lent on mortgage was part of the trust funds comprised in the settlement, and that Greenwood and Bollond were jointly interested in the mortgage money, and that the Plaintiff was advised that the mort (a) 1 Beav. 529. gage gage money survived to Greenwood, and submitted that Bollond's representatives were not necessary parties. The bill prayed that the suit might be revived, and that the order made on the previous hearing might be discharged, &c. The Defendant Cowell demurred, on the ground that Bollond's representatives had not been made parties. Mr. Pemberton and Mr. Beavan, in support of the demurrer, contended that there was no sufficient allegation that Greenwood and Bollond were joint tenants of the mortgage money; for the statement was, that Greenwood stated, and the Plaintiff believed the facts to be but this was a mere statement by Greenwood in his own favour, and of the belief of the Plaintiff therein; that this was not a distinct allegation of the fact, and in cases of this kind the statement was to be taken most strongly against the pleader; Balls v. Margrave. (a) so; Mr. Koe and Mr. Shee, contrà, contended that the allegation of fact, being one relating to the Defendant's case was sufficiently alleged; and, secondly, that a Defendant could not demur to a bill of revivor for want of parties, the object of which species of bill was to place the pleadings in the same state as they were at the time of the abatement; Metcalfe v. Metcalfe. (b) The MASTER of the ROLLS. When it was ascertained that this suit had abated before the hearing, the first and proper thing to be done was to revive the suit, and then to consider what was to be done as to the objection for want of parties. (a) 3 Beav. 284. When (b) 1 Keen, 74. 1843. EGREMONT บ. COWELL. |