1834.

CULLING

WORTH

V.

GRUNDY.

1835.

Feb. 16.

WHARTON v. SWANN.

cation filed, the 21st of November 1831, the Plaintiff filed his

the Plaintiff

has on special

cave amended

his bill in such

a manner as to call for an answer, he may after

wards obtain,

as of course,

a further order

to amend at any time before the

original bill in this cause. On the 14th of May 1832, the Defendants, Swann, Norrison, Smithson, and Otley, put in their answers. On the 14th of March 1833, the Defendants having obtained an order to dismiss the bill for want of prosecution, the Plaintiff gave the usual undertaking to speed, and filed a replication. On the 14th of June, the Plaintiff, by a special order, obtained leave to withdraw the replication and amend his bill, and also to file a bill of revivor against answer to the the representatives of the Defendant Swann, who had died; and on the 25th of the same month the bill of revivor was put upon the file, and the original bill was at the same time amended, pursuant to the order of the 14th of June. The amendments were numerous and extensive, and rendered a fresh engrossment necessary. On the 5th of September 1833, the Defendants obtained an order for six weeks' time to answer the amended bill. On the 12th of June 1834, an order was made that the suit should stand revived as against the executors of Swann. On the 5th of August following

amended bill

is put upon the file.

tne Plaintiff obtained a common ex parte order to reamend his bill; and on the 26th of the same month the re-amended bill, which was greatly enlarged and required a second reengrossment, was put upon the file.

Mr. Barber and Mr. Wakefield now moved, on behalf of different Defendants, that the order of the 5th of August 1834 might be discharged for irregularity, and that the re-amended bill, filed in pursuance of that

order,

order, might be taken off the file with costs. The question depended upon the construction to be put on the thirteenth of the new orders, as that order existed in its revised form, published in November 1831.* It was there expressly provided, that after answer and before replication, which, as the replication had been by leave withdrawn, was, in fact, the present case, one order only to amend should be obtained as of course; and surely the circumstance that the preceding order to amend was special, ought not to put the Plaintiff in a better situation. An order for a second amendment could only, under such circumstances, be obtained upon a special application; Tarleton v. Dyer. (a) If it were held that, after answer and replication filed, and after the replication had been by special leave withdrawn for the purpose of allowing a new case to be made by amend

The order is as follows:"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 before replication, unless the Court shall be satisfied by affidavit that the draft of the intended amendments has been settled, approved, and signed by counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material to the case of the plaintiff;

such affidavit to be made by the
plaintiff, or one of the plaintiffs
where there is more than one,
and his, her, or their solicitor,
or by such solicitor alone, in case
the plaintiff or plaintiffs from
being abroad or otherwise, shall
be unable to join therein; but
no order to amend shall be made
after answer and before repli-
cation, either without notice or
upon affidavit, in manner herein-
before 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."

(a) 1 Russ. & Mylne, 1.

1835.

WHARTON

v.

SWANN.

1835.

WHARTON

V.

SWANN.

amendment, the Plaintiff were to be at liberty to go on amending as often as he pleased, until an answer to the bill as last amended was on the file, the consequence would be, that such amendments might be made in infinitum upon orders of course; for each successive amendment which called for a fresh answer would keep alive the Plaintiff's right, and the whole object of the thirteenth order, which was framed for the express purpose of preventing vexatious delay and expense, would be effectually defeated.

Mr. Rolfe and Mr. Elderton, contrà, contended, that after a bill was amended in such a manner as to call for a fresh answer, it became, in fact, a new bill, and that, till an answer to the bill so amended was placed upon the file, the thirteenth order had no application. The answer there mentioned was plainly to be understood as the answer which the Defendant was called upon to put in. If any mischievous consequences were found in practice to result from such a construction, they might easily be guarded against by a new order, or by putting the Plaintiff upon terms, whenever the Court, after replication, gave special leave to amend. The order of the 5th of August 1834, now sought to be discharged, was obtained on an ex parte application; but the attention of the Vice-Chancellor who made it was fully called to the circumstances, and his Honor then thought that the proceeding was regular.

- The LORD CHANCELLOR.*

At the close of the argument the impression upon my mind was, that the term "answer," used in the thirteenth of the new orders, referred to the answer to the amended

* Lord Lyndhurst.

amended bill; the answer to that bill which the party
was bound to answer.
I have since had a commu-
nication with the Vice-Chancellor with respect to his
understanding on the subject, and I learn from him that
the construction which he puts upon the language of
the order coincides with my own; and that that con-
struction, moreover, is, as he believes, consistent with the
intention of the Judges by whom the order was framed.
The motion must, therefore, be dismissed, but as it was
a fair question to raise, without costs.

1835.

WHARTON

v.

SWANN.

ARNOLD v. ARNOLD.

THE will of George Arnold, a Lieut. Colonel in the service of the East India Company, bearing date 18th of September 1828, and executed in India, where he and his wife and family then resided, contained this pas

sage:

ROLLS.

1834. Nov. 12. 15.

1835. Feb. 2.

The testator

gave to each

of certain infant nephews and nieces, by

name, 400l. "with com

pound interest at 5 per cent. per annum, from the day of their birth, to be settled on their marrying or attaining twenty-one years, whichever may first happen:" Held, that compound interest at 5 per cent. was to run on each of the legacies from the birth-days of the several legatees till their marriage or majority respectively, and not merely to the day of the testator's death.

A bequest of" my wines and property in England," held to pass the testator's property in England of every description, including money in the funds and at his banker's, debts, and arrears of a pension due to him, and not confined to property ejusdem generis with wines.

The testator desired that A., B., and C. might each enjoy, during life, the interest of 800. sterling, the principal to devolve eventually to his residuary legatees. He directed the residue of his property to be divided into three equal parts, one part to each of his brothers and his sister; and if his brothers and sister should not survive him, or have legal issue living at the testator's death, then their shares to devolve in equal proportions to the survivors, as well as the shares that might have been devised to their issue. The testator's estate was not sufficient to pay the legacies in full: Held, upon the death of one of the tenants for life, that an apportionment of the legacy of 800l., set apart to answer her life-interest, fell into the residue, and was not given over to the residuary legatees in their individual character; and that the surviving tenants for life were entitled to have the deficiencies in their annuities satisfied out of the released fund.