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Analytical Digest of Cases : Courts of Equity.

151 without procuring it to be delivered up, filed sufficient to allege generally that they were rehis bill against such indorsee for value, and a ceived in a confidential capacity; enough must subsequent indorsee, charging that the indorsee be stated in the demurrer to show that they to whom the payment had been made, had were confidential. Walsh v. Trepanion, 34 afterwards indorsed the bill to the other de L. 0. 62. fendant, without consideration, in order to recover the money from the plaintiff a second time, and praying that an action commenced

Practice as to taking bills pro confesso. The against him to the amount might be restrained,

“ order

referred to in the 21st General Order and the bill delivered up to be cancelled. De of May, 1845, is not the “decree,” that the murrer, for want of the drawer as a party to

bill be taken pro confesso, but the " preliminary the suit, overruled. Earle v. Holt, 5 Hare, order," that the clerk of records do attend with 180.

the record. Cases cited in the judgment: Kemp v. Pryor,

The object of the 81st Order of May, 1845, 7 Ves. 237 ; Penfold v. Nuan, 5 Sim. 405.

was to assimilate the practice where there is

one defendant to that when there are several. 5. Where one of two executors proves a Brown v. Home, 8 Beav. 607. will, power being reserved to the other to come in and prove, the probate on the death of

PUBLICATION, PASSING. the executor enures to the other, and it is not

Aid of a foreign court.—This court will order necessary therefore in a suit for the adminis- publication in a suit to perpetuate testimony to tration of the testator's estate to bring before pass in aid of a similar suit in the court of Irethe court any other personal representative than land. Morris v. Morris, 33 L. O. 476. the surviving executor. Howard v. Gash, 32

REDEMPTION. L. 0. 396. 6. Demurrer.-A demurrer for want of parties

See Mortgage. cannot be sustained, because the bill asks some

RE-HEARING. relief, which could not be given in their absence, if there is relief asked which could be given on six years rehear an appeal upon the grounds of

The court will not, after the lapse of five or the record constituted as it is. Lewis v. Cooper, irregularity in the Master's proceedings in ex, 33 L. 0. 45. And see Partnership.

punging scandal without reporting it. Oldfield

v. Cobbett, 33 L. O. 281. 7. Joint-stock companies. - A bill by one member of a joint-stock company, on behalf of himself and the other shareholders, seeking to See Dismissal, 3. protect a common fund belonging to the com

REVIVOR. pany, but not praying for a dissolution, is not demurrable for want of parties, because all the

Remainder-man.-An order to revive against other shareholders are not before the court. the personal representatives of a defendant, in Cooper v. Webb, 33 L. 0.376.

a suit whereby it is sought to affect a right which has descended to such representative in

the character of remainder-man, will have no Parties. When a plaintiff by his will prays effect in respect to so much of the suit as seeks the dissolution and winding up of a company, to affect such right. Hilton v. Lord Granville, he cannot sue on behalf, &c. All the partners 33 L. 0. 500. must be made parties. Harvey v. Bignold, 8 Beav. 313.

1. Where a suit relates to a wife's separate

estate, she, as well as her husband, must be A married woman may sue in formá pauperis. served with a copy bill. (24th Ord. of Aug. Semble, but the pauper order cannot be ob- 1841.) Salmon v. Green, 8 Beav. 457. tained as of course. Coulsting v. Coulsting, 2. Creditors under trust-deed. — Bill by a 8 Beav. 463.

debtor, who had conveyed property to a trustee Case cited in the judgment: Dowden v. Hook, for the benefit of his creditors, to have the 6 Beav. 399.

trusts of the deed administered by the court, PLEA.

charging that one of the creditors had forfeited

his debt by a breach of his covenant not to sue If a bill seeks relief as to more than one sub

or molest the debtor. Held, that the creditors, ject, the defendant may put in a plea as to each parties to the deed, other than the trustee and subject.

the creditor charged with the breach of coveIf an averment in a plea is inconsistent with nant, were suficiently made parties by being the matter pleaded, the plea is bad.

served with copies of the bill under the 23rd A plea is bad, if it raises, by averment, an Order of August, 1841.

Duncombe y. Leoy, issue not raised by the bill. Emmott v. Mitchell, 5 Hare, 232. 14 Sim. 432.


See Demurrer. Demurrer by witness.-To support a demurrer to interrogatories asking a witness to produce certain letters and documents, it is not! 23rd Order of August, 1841.-Course of pro













Analytical Digest of Cases, Superior Courts ; Lord Chancellor. ceeding where a defendant, served with a copy contradicting any facts alleged in the plaintiff's of the bill under the 23rd Order of August, state of facts, and that they might be at liberty 1841, dies before appearance. Edington v. to sue out a commission for that purpose. Banham, 2 Coll. 619.

Mr. Cooper, on behalf of the plaintiff, moved, See Bankrupt ; Creditor's suit.

that this order might be discharged, and that defendants might be ordered to pay the costs

of the motion before his Honour; and he subSeparate answers.--Costs.-On the dismissal mitted that it was not usual to allow parties to of a bill with costs, the court referred it to the go into evidence after publication had passed, Master to inquire whether it was necessary or except upon the grounds of surprise or special proper that several defendants, consisting of circumstances, neither of which occurred in trustees and their cestui que trusts, appearing the present instance to authorize the above by the same solicitor, and having no conflicting order. The evidence now sought to be obtained interests, should file two separate answers to might be destructive of the plaintiff's case. the bill. Woods v. Woods, 5 Hare, 229.

The Lord Chancellor. That might be, and Cases cited in the judgment: Van Sandau v.

yet the plaintiff's witnesses might not be conMoore, 1 Russ. 441 ; Walsh v. Dillon, note to tradicted — for instance, the plaintiff might Reades v. Sparkes, 1 Moll, 13.

prove that a debt had been contracted with him by the defendant, but it would be very hard

not to allow the latter to prove a release from RECENT DECISIONS IN THE SUPE- it. RIOR COURTS.

Mr. Cooper referred to Lord Talbot's order, in Smith v. Turner, 3 P. Wms. p. 413, and cited Willan v. Willan, 19 Ves. 589; Green

wood v. Parsons, 2 Sim. 229; Winpenny v. Lord Chancellor.

Courtney, 5 Sim. 554.

Mr. Daniel followed on the same side, and Parker v. Peet. April 30, 1847. quoted the case of Lord Nelson v. Lord Brida DEFENDANT'S

op port, 6 Beav. 295, as strongly illustrative of the

principle upon which the court acts, in respect PUBLICATION

of such admissions as that now sought. SITIONS ON THE PLAINTIFF's.

Mr. Lowndes and Mr. Wright, contrà, argued A defendant who, under special circumstances, that there was no unbending rule which pre.

has not been required by the Master to put vented the making of the order now appealed in a counter-statement to the plaintiff's against. Willian v. Willan, suprà, showed that state of facts, may be allowed after publi- it is a matter for the discretion of the judge. cation of the depositions on the latter, to [Lord Chancellor. But it is a discretion rebring in such counter-statement and ex- gulated by the practice of the court.] Under amine witnesses for the purpose of support the circumstances the Master had acted judiing it, but not for the purpose of disproving ciously in not allowing the defendants to put or contradicting the facts in the plaintiff's in a counter-statement until it was ascertained statement.

that the plaintiff could prove his state of facts, After publication had passed in a suit in- and the order expressly provided that they stituted against the representatives of certain should not attempt to disprove or contradict executors for the recovery of the testator's un- the facts which he had alleged. administered assets, amounting to a small sum,

Mr. Cooper replied. a decree had been made directing a special in

The Lord Chancellor. If it were not for the quiry.

special circumstances of the case, I should not The Master ordered the plaintiff to bring in have had the slightest hesitation in deciding a state of facts, the depositions on which were that this order was contrary to the practice, and subsequently published by order. The plain- what ought to be the practice, of this court; tiff had previously called upon the defendants and although this order is very carefully to carry in a counter-statement, which they de- guarded to prevent any advantage being taken clined to do, and the Master under the circum- of the published evidence, yet this would not stances of the case, and because such counter- induce me to sanction an order which is constatement would occasion unnecessary expense trary to the practice, and which I consider the if the plaintiff should fail in his evidence, re- wholesome practice, of the court. Under the fused to make any order in respect thereof. circumstances, I think it would be extremely The plaintiff's state of facts having been es- hard not to allow the defendants to go into evitablished by witnesses contrary to the expecta- dence in support of their state of facts under tion of the defendants, the latter, under the im- the restrictions mentioned. I think that the pression that they had a good defence, after- order of the Vice-Chancellor is right, and conwards carried in a state of facts, and obtained sequently this motion must be dismissed with from Vice-Chancellor Knight Bruce, on the 27th costs. of March last, an order that they might be at liberty to examine witnesses, for the purpose of proving the facts alleged in their state of facts, but not for the purpose of disproving or

Superior Courts : 'Rolls.-Vice-Chancellor,

153 Kolls Court.

alteration under an order to amend, the order Howard y. Prince. May 1, 1847,

ought to state the circumstance.

Mr. Shapter then asked that the order which STAMP.-PROBATE DUTY,-ACCOUNT. he had obtained might be discharged, and a The executor cannot sue in equity for a sum new order made in the form suggested by his

alleged to be due to his testator's estate, al- | lordship; but
though dependent upon the result of an ac-

Lord Langdale said, he could not make a count, without obtaining a proper stamp.

binding order to that effect in the absence of

the other parties, except upon notice; though Whether the stamp must cover the amount he ultimately made the order subject to the

specifically claimed, is left to the decision risk of any application being made to set it of the commissioners.

aside. This was a suit by the executor of Lady Bolton, who claimed a large sum as due to her Vice-Chancellor of England. estate. The frame of the answer made it ne

Pascall v. Scott, April 22, 1847. cessary that the probate of her will should be produced at the hearing, but the probate was

COMPETENCY OF WITNESS. insufficient to cover the sum claimed. The claim involved the taking accounts.

Where a person during the time he held the Mr. Kindersley and Mr. Goldsmid now asked

office of guardian of a parish, had joined in that the will should be admitted in evidence

prosecuting a suit against another guardian, without requiring any additional stamp, until

and in appropriating the parish money to. it should be ascertained by the result of the

wards the expenses of the suit, and had afaccount before the Master, whether any and

terwards ceased to be a guardian : Held,

that under the circumstances he had not what sum was due. It was true, that in the case of a suit at law the courts required a pro

such an interest in the suit as to prevent bate sufficient to cover the amount claimed,

him from being examined as a witness be. which, however, the stamp office were in the

fore the Master, on behalf of the plaintiffs. habit of affixing in such cases, upon security This was a motion by the plaintiffs in the being given for the payment of the duty, in the suit, to obtain from the court a direction, that event of a successful issue to the cause. But the Master in the prosecution of certain inthey contended, that a claim in equity depending quiries, ordered by a decree in the suit to be upon the result of an account stood in a differ- taken before him, should examine Edward Scar. ent position, inasmuch as until the account was gill as a witness, for the purpose of establishing taken the amount to be claimed could not be their claims, his evidence having been refused ascertained, and great inconvenience might re- on the ground of interest. A suit had been in sult from requiring a stamp to the full amount. stituted by Pascall and Adams, two of the

Mr. Turner and Mr. Lloyd were on the other guardians of the poor of the parish of Clerken. side;but

well, against Scott, another guardian, for al. Lord Langdale, without calling upon them, leged misappropriation of the parish monies. said, that although he fully concurred in the Scargill was a parish guardian from the year observations which had been made as to the 1833 to 1841, but had then ceased to be one, inconvenience which might be produced in the and during the time he held such office had case of claims dependant upon the result of an concurred with the others in appropriating the account from requiring a stamp in respect of the monies of the parish towards the expenses of amount claimed by an executor, and should be the suit, and had been on the committee apglad if his decision should be reversed, yet he pointed for taking proceedings against the de. thought the practice at law must be followed, fendant Scott; as such member of the commit, and the proper stamp must be obtained. tee he had directed such proceedings, and had

Mr. Kindersley inquired whether the stamp agreed that Mr. Pascall and Mr. Adams should must be for the full amount claimed; but his be the plaintiffs in the suit. Mr. Selby was at lordship said, he must leave that question to this time the solicitor employed by the comthe commissioners.

mittee, and a sum of 3001. was on the 30th

March, 1841, paid to him by order of the comWalls v. Symes. May 7, 1847.

mittee out of the parish monies, to defray the

expenses of the suit. Both Master Lynch and AMENDMENT OF BILL. - CLERICAL ERROR. Master Senior, to whom the matter had been A bill cannot be amended by altering the evidence of Scargill, on the ground that he,

referred, concurred in refusing to receive the name of a plaintiff under an order which with the other guardians, had improperly apdoes not specify the alteration to be made.

propriated the parish monies, that such approIn this case Mr. Shapter applied to the court priation was contrary to the act of parliament to direct, that under a common order to amend, authorizing the raising the rates, that he with the bill might be amended by altering the them was on that account liable to have an inchristian name of the plaintiff, in which a cleri- formation filed against them by the Attorneycal error had been made.

General, at the instance of any of the rateLord Langdale refused the application, ob- payers; that he also had an interest in the serving, that if it was intended to make such an recovery of the costs of the suit from Scott's

164 Superior Courts : Vice-Chancellor. Queen's Bench.-Q. B. Practice Court. estate, and consequently had such an interest R. Vickery to show cause why a writ of attachin the cause as to render him incompetent to ment should not issue against him for his conbe examined as a witness.

tempt in not obeying a writ of subpæna, issued Mr. Teed and Mr. Rogers appeared in sup- out of this court, commanding the said R. V. port of the motion, and contended, that Scar- personally to appear before the justices at petty gill was merely a nominal party, suing in be- sessions, there to testify the truth, upon an aphalf of the parish, and that, therefore, under plication to be then and there made by the the stat 3 & 4 Vict. c. 26, ought to have been parish officers of Stawley, in the county of admitted as a witness; they cited Meredith v. Somerset, for an order for the removal of certain Gilpin, 6 Price, 146; stat. 54 Geo. 3, c. 107, paupers chargeable to the said parish of S., to 8.9; Fletcher v. Greenwell, 1 Crom. Mees. & the place of their last legal settlement, and to Ros. 754; M'Gahey v. Alston, 2 Mees. & Wels. bring with him certain books, in order that they 206; Ralston v. Řowatt, 1 Cl. & Fin. 424 ; might be produced in evidence before the said Atttorney-Generab v. Pearson, 2 Col. 581 ; justices. The affidavits on which the notion Needham v. Law, 12 Mees. & Wels. 560. was made, stated that the paupers were residing

Mr. Stuart and Mr. Daniell, contrà, urged, in and chargeable to the parish of S., that inthat Scargill was virtually a plaintiff on the re- quiries had been made by the parish officers, cord, and in that character directly interested and that it was ascertained that the paupers in the suit; at all events, it was quite sufficient were lawfully settled in another parish; that for them to show that he had such an interest the subpæna was served on the defendant in as to make him liable for costs, and it appeared August last, and that on the 3rd September, on his examination, that he had authorized application was made by the parish officers of payments out of the parish funds for costs of S. to the justices at petty sessions for an order the suit ; in respect of these he might at any for the removal of the said paupers ; that the time be called upon to refund, upon an infor- said R. V. attended in obedience to the said mation filed by the Attorney-General, at the writ, and was duly sworn, but refused to answer instance of any of the rate-payers; he was certain questions which were asked of him, and therefore interested in the suit, and as such, in that in consequence of such refusal to answer capable of being examined. They cited Bell v. the said questions, no order of removal could Smith, 5 Barn. & Cres. 188 ; Edwards v. Good- be obtained, and that the paupers still remain win, 10 Sim. 123; Attorney-General v. Compton, chargeable to the parish of S. 1 Y. & Col. 417.

Mr. Serjeant Kinglake, on showing cause The Vice-Chancellor said, it appears to me against the rule, took a preliminary objection, that Mr. Scargill, independently of the fact of that it did not appear on the affidavits that a his being a rate-payer, is in no way liable to complaint was made to the justices by the parish the costs of this suit. Mr. Selby, who was the officers of Stawley that the paupers were chargesolicitor first employed in this suit, has been able. Regina v. The Justices of Buckinghampaid his costs; he has ceased to be such solicitor, shire. (Stopped.) and the person now carrying it on is doing so Pashley, contrà. The affidavits allege, that under the authority of those who employ him, an application was made to the justices on beand to those he looks for the payment of his half of the overseers of Stawley, which if made costs. I cannot comprehend the proposition, by their attorney or by one of their own body that Scargill not being now a party to the record acting for and in the name of the rest, would be can by any means be made liable to the costs sufficient. Regina v. Bedingham. No objecof the suit. If the guardians recover the fund tion of this sort was taken before the justices. it will be disposed of by them as guardians, and Lord Denman, C. J. It cannot be supposed will either form a bonus to the rate-payers or that we are to issue an attachment for not go to pay off the losses incurred. I do not giving evidence before a judicial tribunal, unless think that in any way can Scargill be considered that tribunal is first shown to have had juris: as a person having any interest except as a diction. We cannot presume from these affirate-payer, and in that character the statute davits that a proper cox-plaint was made before has provided, that he should be a competent the justices. witness.

Patteson, Coleridge, and Wightman, J.'s, concurred.

Rule discharged without costs. Queen's Bench. (Before the Four Judges.)

Queen's Bench Practice Court. The Queen v. Vickery. Hilary Term, 1847.

(Before Mr. Justice Wightman.) PRACTICE.-AFFIDAVIT.

Smith v. Sparrow, Hilary Term, 1847. The affidavits in support of an application AWARD.—EXAMINATION OF PLAINTIFF AS A for an attachment for disobedience to a

WITNESS.-IRREGULARITY. crown office subpæna to appear and give evidence before justices touching a pauper

A cause having been referred to arbitration, it settlement, must show that a proper com

was expressly stipulated on the part of the plaint was made to the justices.

a 3 Q. B. R. 800. A rule nisi had been obtained, calling upon

i New Sess. Cases, 106.

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Superior Courts : Queen's Bench Practice Court.

155 defendant that the plaintiff should not be admission of a witness to give evidence being a examined as a witness at the reference in matter of law on which the decision of the arsupport of his claim, and the usual clause bitrator is final; citing Symes v. Goodfellow, in the order of reference giving the arbitra- 2 Bing N. C., 532; Jupp v. Grayson, i c. M. tor power to examine the parties to the suit & R., 523. He also contended that even if was struck out by consent. At the refer- there was any irregularity, it was waived by the ence the arbitrator allowed the plaintiff to course taken by the defendant's counsel in be called, and heard his evidence, against the cross-examining the plaintiff and going into the consent and express protest of the defendant. defendant's case, and thus taking the chance of A motion being made on the part of the de- an award being made in his favour. On this fendant to set aside the award, Held, that point he cited Allen v. Francis, 9 Jur. 691 ; the arbitrator had exceeded his authority, The Queen v. Clark and another, 6 Q. B. 349. and that the award was bad. Held, also, Watson and Naylor were heard in support that the fact of the defendant's counsel of the rule, contending that the arbitrator had having after protest cross-examined the clearly exceeded his authority in examining plaintiff and gone into the defendant's case, the plaintiff when had no power to do so, and did not preclude him from moving to set the defendant's counsel having taken the objecaside the award. Semble, That if the de- tion, had done all that was necessary, and was fendant had been examined as a witness in not bound to withdraw from the reference. support of his case, it would have disquali

Cur. ad. vult. fied him from taking any objection to the

Wightman, J., (25th Jan.,) gave judgment. admission of the plaintiff as a witness. This was an application to set aside an award In this case the plaintiff had brought his upon several points, but ultimately the second action against the defendant as the executor of and fourth raised the only questions which apEdward Meadows, deceased, to recover a peared to me to require consideration. The balance of account alleged to have been due to first of these was, whether the arbitrator ought the plantiff from Meadows at the time of his to have received the evidence of the plaintiff in death. Before the cause was at issue it was support of his own case, and whether the award referred to the arbitration of a lay arbitrator, it ought to be set aside on that ground. I have being expressly stipulated on the part of the been unable to find any case in which there has defendant, that the arbitrator should not have been an express decision as to the power of an power to examine the plaintiff in support of his arbitrator to allow a party to the suit to give claim, and the usual clause in the order of re- evidence as a witness in support of his own ference giving the arbitrator power to examine case, though objected to by the other side, and the parties to the suit was struck out. At the though there was no express power given by first meeting before the arbitrator, the plaintiff's the submission to examine the parties. In attorney who conducted his case tendered the Warne v. Bryant, 3 B. & C. 590, where an , plaintiff as a witness in support of his claim. order of reference did give power to the arbi-' This was objected to by counsel who appeared trator to examine the parties if he thought fit, for the defendant, on the ground that the arbi- the court held that he might, under an order trator bad no power to examine the parties to the so framed, examine a party to the suit, even in -suit under the order of reference, and therefore support of his own case; 'leaving it, however, the plaintiff could not be examined; he also doubtful whether without express authority the called the attention of the arbitrator to the arbitrator would be at liberty to examine a agreement which had been entered into between party in support of his own case. Upon printhe attorneys at the time the case was referred. ciple such a course would seem objectionable, The plaintiff's attorney however told the arbi- and an excess of the authority of the arbitrator, trator that he had still a discretionary power especially in cases like the present where the incidental to his character of arbitrator which defendant is an executor and not likely to be enabled him to examine the parties, if he personally cognizant of the transaction. But thought fit to do so. The arbitrator, upon this, I do not find myself called upon to decide this allowed the plaintiff to give his evidence. The question ; for under the special circumstances defendant's counsel protested against the course of the case, I think it clear that the plaintiff taken by the arbitrator, and then proceeded to ought not to have tendered his own evidence, cross-examine the plaintiff

, and went into the nor ought the arbitrator to have received it. defendant's case. Subsequently the arbitrator Before the order of reference was made the demade his award in favour of the plaintiff. fendant expressly refused to allow the plaintiff Some time since Watson obtained a rule nisi to to be examined, and the usual clause authoset aside this award on several grounds, but the rising the arbitrator to examine the parties was only one on which any decision was given was, for that reason by mutual consent struck out. that there had been a breach of faith and mis- It is clear to me from the affidavits that the conduct on the part of the plaintiff and his at- defendant would not have referred the case if torney in tendering and causing the plaintiff to the plaintiff was to be examined ; and after the be examined as a witness in the said reference. clause giving authority had been by consent - Worlledge now showed cause, and contended, struck out, he might reasonably conclude that first, that even if the arbitrator was wrong in he would not be examined; and the examining admitting the evidence, still that was not a suf- the plaintiff as a witness for himself afterwards ficient ground for setting aside the award. The is so much in fraud of the defendant, that the

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