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Common Pleas.

WINCHES-
TER

V.

BISHOP OF

the purpose of relieving the plaintiffs, who might have brought their T. T. 1847. action at a much earlier period. Moreover, there is not here any affidavit that during the last century the parties have been under MARQUIS OF any incapacity arising from religion or otherwise. The case of The King v. Archbishop of York (a) does not assist the plaintiffs here, as it was a quare impedit brought by the Crown, and the Crown may amend it any time: The Attorney-General v. Henderson (b). They KILLALOE. have not cited any case of amendment allowed under circumstances like the present. Even after argument only, the general rule is, not to suffer the party to amend: Cooke v. Birt (c); Brown v. Crump (d); Farmer v. Burton (e); Woodman v. Inwen (f); The King v. Carlisle (g); Hozier v. Arundell (h); Tooth v. Boddington (i).—[JACKSON, J. There is no doubt that such is the general rule.]-The policy of all statutes of limitation is to quiet possession; that policy should be supported in Courts of Law. It is not in the power of the Court to amend where a Term or more, as in the present case, has elapsed after judgment.-[DOHERTY, C. J. The facts here are very peculiar; the judgment was pronounced on the last day of Trinity Term; the plaintiffs then asked for an order to restrain the defendants from entering up judgment. This must be considered as a motion of Michaelmas Term, which, in order that it might be brought before the full Court, has stood over until the present time; the continued postponement having been occasioned by the illness of some of the Members of the Court.]-The awarding of costs to the defendant is no sufficient compensation for allowing these amendments. The plaintiffs have already amended once upon demurrer.

DOHERTY, C. J.

The Court have conferred upon this case, and feel that they have full authority to grant permission to the plaintiffs to amend the declaration. With respect to allowing the particular amendments sought to be made, the question is one altogether addressed to our discretion, and we at present abstain from giving any opinion as to those amendments: we merely say this, let the parties who seek to make those amendments be prepared to propose each amendment separately. We, however, lay down this limit for them-viz., that the

(a) 3 Nev. & Man. 453; S. C. 1 Ad. & El. 394.

(6) 3 Anst. 714.

(d) 1 Marsh. 567.

(f) Ibid.

(h) 3 Bos. & Pul. 11.

(c) 5 Taunt. 765.

(e) Barnes, 9.

(g) Ibid.

(i) 8 Moo. 42; S. C. 1 Bing. 208.

June 4.

T. T. 1847. intended alterations must be amendments in the strict sense of the Common Pleas word; we shall then deal with them seriatim. Prominently in the MARQUIS OF list of proposed amendments stand the two new counts; if Counsel

WINCHES

TER บ.

be of opinion that these can be supported, he must be prepared to argue them also separately. If there be any of the amendments at BISHOP OF present proposed, upon which the plaintiffs do not rely, it will be proper for him to withdraw them. Let it be understood, that as the further argument will be a continuation of the present motion, we shall hear one Counsel only on each side.

KILLALOE.

June 8, 10.

On these days the several amendments were proposed successively in order, and argued on the side of the plaintiffs by Hamilton Smythe, and on that of the defendant by M'O'Boy. Several formal amendments were allowed; of these the most important were—firstly, the introduction of an averment, that the monies in the letters patent of the 6th of April 1662, mentioned as payable by Rickard the sixth Earl of Clanricarde, or his heirs, to Charles M'Cartie Lord Muskerry, his heirs or assigns, were paid at the time and in the manner in the said letters patent specified; secondly, the plaintiffs were permitted to amend by setting forth in full detail the trusts of the term of three hundred years created by the private Act of Parliament of the 10 G. 3-the satisfaction of these trusts severally, and thereupon the cesser and determination of the term in accordance with the provisions of the Act which created it. On the other hand, the Court refused to allow the plaintiffs to strike out of the declaration the averment, that Rickard the sixth Earl was an Irish Papist; and also refused to sanction the omission, from the declaration, of the statement of the saving clause in the 217th section of the Act of Settlement, 14 & 15 Car. 2, c. 2. . Consequently upon this refusal, a subsequent application was made for leave to amend by negativing the saving clause, which the Court also declined to permit, assigning as grounds for refusal, that the onus probandi would, by such negation, be cast upon the defendant.

The first of the proposed additional counts stated letters patent of Queen Elizabeth whereby she granted (inter alia) the rectory and advowson of Kilgerrill to Rickard the second Earl of Clanricarde; it deduced title down to the great rebellion, and averred that the usurping powers seized the rectory, advowson, &c.; it set out the letters patent of the 6th of April 1662; it omitted the letters patent of 1681 to Lord Dunkellin, and the presentation thereunder by him to John Trench, but averred a presentation by the same Lord

T. T. 1847.
Common Pleas.

WINCHES

TER

V.

BISHOP OF

Dunkellin, after he had become eighth Earl of Clanricarde, to one Harvey. The second of the proposed additional counts ran on allfours with the first, save in treating the advowson of Kilgerrill as MARQUIS OF one in gross. The Court refused to suffer the filing of either of these counts, being of opinion that the plaintiffs relied by them upon a different title and a different presentation from the title and presentation relied upon in the original declaration; and JACKSON, J., said, KILLALOE. that they all felt that every reasonable length had been gone by them in favour of the plaintiffs; that although willing to allow all fair amendments in matter of form, and thus to prevent the plaintiffs from being turned round on purely technical objections, yet the Court could not countenance a total change of the case as at first puts forward.

Holmes, for the defendant, asked for all the costs of the amendments, and the costs of the motions respecting them, and that payment of costs should be made a condition precedent to making the amendments. [DOHERTY, C. J. The course now proposed for the rule as to costs is unusual; there is no instance of such an order in the case of amendments.-BALL, J. These are not costs in the cause, they are interlocutory costs and may be levied by attachment.]— The parties are out of the jurisdiction.-[DOHERTY, C. J. Have you required security for costs?]-We have not, and are for that very reason entitled to the order we ask for.

DOHERTY, C. J.

It is tolerably evident that the defendant is not very apprehensive as to losing his costs, not having required security for them from the plaintiffs, who are out of the jurisdiction. We grant the costs asked for by the defendant, but make no rule that payment thereof should be a condition precedent to amendment of the declaration.

NOTE. For a further consideration of the practice in reference to amendments, see the two following cases.

T. T. 1847.

Common Pleas.

June 12.

The Court, upon special grounds, refused to allow

an amendment

of two pleas,

in the nature of pleas of the Statute of Limitations, even before

argument on the special demurrer

taken to those pleas.

THE MARQUIS OF ORMONDE

v.

THE LORD BISHOP OF CASHEL.

QUARE IMPEDIT. This was a motion for leave to amend certain pleas to a declaration in quare impedit, to which pleas the plaintiff had filed a special demurrer, which had not as yet been argued. Some doubt existed as to whether the writ in this case, although issued before the 1st day of January 1845, had actually reached and been served upon the defendant either on or before that day. The 18th and 19th pleas were framed for the purpose of taking advantage of this doubt, by means of the statutes of the 6 & 7 Vic. c. 54, and 7 & 8 Vic. c. 27, which extend to Ireland the provisions of 3 & 4 W. 4, c. 27, with respect to advowsons, and after the 1st day of January 1845, limit, under certain circumstances, the bringing of actions or suits relating to any right to presentation. The defendant's attorney served a consent on the plaintiff's attorney for leave to amend the pleas on payment of costs. The latter agreed to sign the consent, provided that the 18th and 19th pleas were struck out of the pleadings, and the costs thereof paid. These terms not having been accepted

Scott, with whom was Gayer, now moved that the demurrer be allowed, and that leave be given to the defendant to amend the 18th and 19th pleas, as well as certain other pleas, and relied on Brasier V. Jones (a), where, in an action against the Marshal for an escape, there was a special demurrer, because the cause of action appeared to have accrued after the first day of the Term to which the bill had relation, and the Court allowed the plaintiff to amend on payment of costs, although it appeared by affidavit that the prisoner had returned into the custody of the Marshal before any application for liberty to amend was made. There the effect of refusing the amendment would have been, to compel the plaintiff to commence a new action, to which the recaption before action brought would have been an answer.-[BALL, J. This is a plea of the statute, under circumstances not to be encouraged.]-The language of Lord Tenterden in that case is quoted with approbation by Doherty, C. J., in

(a) 6 B. & C. 197.

MARQUIS OF
ORMONDE

บ.

Brennan v. Monahan (a), where this Court allowed an amend- T. T. 1847. Common Pleas. ment in a plea of the Statute of Limitations, and declined to enter into any consideration of merits, or to allow the plaintiff to open affidavits detailing special circumstances. In Meyler v. Morton (b) this Court followed the previous practice as settled by Brasier v. Jones and Brennan v. Monahan.-[DOHERTY, C. J. We do not feel inclined to give you the slightest assistance in this case.]-The Court will not embarrass itself with matters of fact, but will decide the matter according to the general rule.

Sir Thomas Staples and Butt resisted the application so far as it embraced the 18th and 19th pleas.

DOHERTY, C. J.

It is not requisite to lay the facts of this case before the Court; we have judicial notice of them already. This is an application to the discretion of the Court: we are unanimous in thinking that it ought to be refused, so far as relates to the 18th and 19th pleas. In denying permission to the defendant to make any amendment in those pleas, we do not think that, under the peculiar circumstances of this case, and the grounds upon which the defendant seeks to avail himself of the defence of the statute, we infringe in the least degree upon the general rule with reference to allowing amendments, as laid down either in the cases decided in this Court, or by Lord Tenterden. The uncontested amendments may be made upon payment of costs. We give no costs of this motion.

BISHOP OF

CASHEL.

(a) 4 Ir. Law Rep. 415.

(b) 7 Ir. Law Rep. 229.

NOTE. Further, as to amendments, see the cases which immediately precede and follow this case.

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