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    Gee V Bell

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    Mayanie Yeatie Koroma
    This case discusses the extent of relief a plaintiff can obtain when a defendant does not appear. Specifically, the court held that a plaintiff cannot obtain a personal judgment against a defendant for more than what was claimed in the writ, even if a statement of claim extending the claim was filed. Additionally, the judge questioned why the plaintiffs proceeded by writ instead of originating summons, as a receiver could have been appointed under the latter. Ultimately, the plaintiffs' costs were not limited since there was no impropriety, but using a writ instead of summons to appoint a receiver was not justified.

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    Gee V Bell

    Uploaded by

    Mayanie Yeatie Koroma
    78 views3 pages
    This case discusses the extent of relief a plaintiff can obtain when a defendant does not appear. Specifically, the court held that a plaintiff cannot obtain a personal judgment against a defendant for more than what was claimed in the writ, even if a statement of claim extending the claim was filed. Additionally, the judge questioned why the plaintiffs proceeded by writ instead of originating summons, as a receiver could have been appointed under the latter. Ultimately, the plaintiffs' costs were not limited since there was no impropriety, but using a writ instead of summons to appoint a receiver was not justified.

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    A case relating to Law of evidence

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    Gee v Bell

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    This case discusses the extent of relief a plaintiff can obtain when a defendant does not appear. Specifically, the court held that a plaintiff cannot obtain a personal judgment against a defendant for more than what was claimed in the writ, even if a statement of claim extending the claim was filed. Additionally, the judge questioned why the plaintiffs proceeded by writ instead of originating summons, as a receiver could have been appointed under the latter. Ultimately, the plaintiffs' costs were not limited since there was no impropriety, but using a writ instead of summons to appoint a receiver was not justified.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    78 views3 pages

    Gee V Bell

    Uploaded by

    Mayanie Yeatie Koroma
    This case discusses the extent of relief a plaintiff can obtain when a defendant does not appear. Specifically, the court held that a plaintiff cannot obtain a personal judgment against a defendant for more than what was claimed in the writ, even if a statement of claim extending the claim was filed. Additionally, the judge questioned why the plaintiffs proceeded by writ instead of originating summons, as a receiver could have been appointed under the latter. Ultimately, the plaintiffs' costs were not limited since there was no impropriety, but using a writ instead of summons to appoint a receiver was not justified.

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    Gee v Bell, (1887) 35 Ch. D.

    160 (1887)

    For educational use only


    *160 Gee v Bell
    No Substantial Judicial Treatment

    Court
    Chancery Division

    Judgment Date
    2 April 1887

    Report Citation
    [1886 G. 2322.]
    (1887) 35 Ch. D. 160

    Chancery Division

    North , J.

    1887 April 2

    Mortgage—Foreclosure—Writ or Summons—Costs—Claim for Receiver—Judgment in Default of Appearance—


    Extent of Relief— Rules of Supreme Court, 1883, Order XIX., r. 10 ; Order XX., r. 4 ; Order LV., r. 5a .

    Notwithstanding the provision of rule 4 of Order XX. , that, whenever a statement of claim is delivered, the plaintiff
    may therein extend his claim without any amendment of the indorsement of the writ—the plaintiff cannot, when
    the defendant does not appear to the writ and a statement of claim is delivered by filing it with the proper officer,
    obtain judgment in default of appearance for more than he has claimed by his writ.

    Semble , that a receiver may be appointed under an originating summons.

    THIS was a foreclosure action by first mortgagees against second mortgagees and the mortgagor.

    By the writ the Plaintiffs claimed an account of what was due to them for principal, interest, and costs by virtue
    of their mortgage; that the mortgage might be enforced by foreclosure or sale; and the appointment of a receiver.
    A receiver was appointed soon after the issue of the writ. The mortgagor did not appear to the writ. The Plaintiffs
    delivered a statement of claim to the mortgagor, by filing it with the proper officer of the Court, as provided by
    rule 10 of Order XIX. By the statement of claim the Plaintiffs, in addition to the relief claimed by the writ, claimed
    personal payment by the mortgagor of the mortgage money, with interest and costs, in pursuance of his covenant
    contained in the mortgage.

    The Plaintiffs now moved upon notice “for such judgment as upon the statement of claim the Court may consider
    the Plaintiffs entitled to.”

    The second mortgagees consented to an immediate judgment for foreclosure against them. The mortgagor did
    not appear.

    Nalder , for the Plaintiffs, asked for judgment as claimed.

    [NORTH, J.:—How can you have a personal judgment against the mortgagor, when you have not claimed it by
    your writ? The statement of claim has not been delivered to him.]

    © 2021 Thomson Reuters. 1


    Gee v Bell, (1887) 35 Ch. D. 160 (1887)

    The statement of claim has been delivered by filing it with *161 the officer of the Court, as provided by rule
    10 of Order XIX. 1 , and rule 4 of Order XX. enables the Plaintiff to extend his claim by his statement of claim,
    without amending the writ.

    NORTH, J.:—

    Rule 4 of Order XX. applies only when the statement of claim has been actually delivered to the defendant or
    his solicitor. It has been held that it does not apply to the case of a defendant who has not appeared to the writ,
    when the statement of claim is delivered only by filing it. The judgment must be limited to the relief claimed by
    the writ. But why did not the Plaintiffs proceed by originating summons in Chambers in accordance with rule 5
    a of Order LV. , instead of issuing a writ?

    Nalder , for the Plaintiffs:—

    The Plaintiffs desired to have a receiver appointed, and, except by consent, a receiver cannot be appointed
    otherwise than by motion in Court: Annual Practice, 1886–7 2 . As the mortgagor did not appear to the writ his
    consent could not be obtained. There is no ground for limiting the Plaintiffs' costs to the costs of a summons.

    NORTH, J.:—I will not deprive the Plaintiffs of any costs in the present case. But it must not be supposed that
    I assent to the view that the Plaintiffs were justified in proceeding by writ instead of by originating summons
    because they desired to have a receiver appointed. A proceeding commenced by originating summons under Order
    LV., r. 3 , is an action: In re Fawsitt 3 .

    Representation

    Solicitors for Plaintiffs: Collyer-Bristow & Co. , agents for Bell & Ingoldby , Louth.

    (W. L. C.)

    Footnotes

    1 Order XIX., r. 10 : “Every


    pleading or other document
    required to be delivered to a
    party, or between parties, shall
    be delivered in the manner
    now in use to the solicitor of
    every party who appears by a
    solicitor, or to the party if he
    does not appear by a solicitor,
    but if no appearance has been
    entered for any party, then
    such pleading or document
    shall be delivered by being
    filed with the proper officer.”
    Order XX., r. 4 : “Whenever a
    statement of claim is delivered
    the Plaintiff may therein alter,
    modify, or extend his claim
    without any amendment of the
    indorsement of the writ.”
    2 Page 586.
    3 30 Ch. D. 231 .

    © 2021 Thomson Reuters. 2


    Gee v Bell, (1887) 35 Ch. D. 160 (1887)

    (c) Incorporated Council of Law Reporting for England & Wales

    © 2021 Thomson Reuters. 3

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