Finally, it was said that the delay which had taken place ought to debar the plaintiff from the relief asked. In cases falling under the statute of Will. 3, application must be made to the Court before the last day of the first Term after the award is published. In cases not falling under the statute, the Courts of Common Law had adopted a similar rule, which was only departed from under very special circumstances: the Court always insisting that any attempt to impeach the validity of an award ought to be made while the facts were still fresh in the minds of the parties. A similar rule held in Equity, Featherstone v. Cooper, 9 Ves. 67. On the other hand, the plaintiff alleged that the facts of the case did not come out till the trial, and that under those circumstances the Court would look into the merits, Jarvis v. Chandler, Turn. & R. 319; 7 DEC. 1863. WOOD, V.-C., said, that the arbitrators had clearly miscarried in taking the opinion of the umpire in the absence of the plaintiff's solicitor after he had made an application to them to be allowed to go before the umpire; and if the matter were fresh the award could not stand. It was argued that the Common Law Procedure Act, section 17, and the Bankruptcy Act, 1849, section 154, had, either alone or jointly, the effect of introducing into the reference to arbitration in the present case an agreement that it should be made a rule of Court. Thus the case would be brought within the statute of Will. 3, and the Court would have no jurisdiction, as was now well settled by the cases. But his Honour could not hold that either of these statutes imported into submission to arbitration all the consequences of the statute of Will. 3. If such had been the intention of the Legislature it might have attained its object either, directly, by an express reference to that statute, or, indirectly, by an enactment that every submission to arbitration should be deemed to include an agreement to make the award a rule of Court. The Legislature had not so enacted, and the case did not fall within the statute of Will. 3. His Honour then stated the proceedings at Law, remarking that the plaintiff had adopted the only mode of defence there open to him, the award not having been set aside. It was, however, finally decided that the objections to the validity of the award could not be raised by plea; the Court of Exchequer observing (7 H. & N. 509) that the objection, if well-founded, was of a sort which ought to be raised while the matter was fresh within the time prescribed by the statute of Will. 3 in cases which fell within its provisions, and by the practice of the Courts of Law in other cases. Now, there were two classes of cases not falling within the statute of Will. 3, in which the Courts of Law had set aside awards. One was, where, while an action was pending, a consent rule was made for the reference of the matters in the cause. There the arbitrator was regarded as standing in the place of a jury; and if his decision was disputed, it must be dealt with in the same manner as the finding of a jury, and application made to a Court of Law within the first four days of the term following the publication of the award. The other class of cases was, where, in like circumstances, there was a reference of the cause, and all matters in dispute between the parties. There the Courts of Law adopted a rule analogous to that laid down by the statute of Will. 3, and allowed the application to be made any day before the last day of the term after the publication. That rule was only departed from in very peculiar circumstances; and the case of Sherry v. Oke (3 Dowl. 349) might be cited as one in which the Courts had relaxed the rule as much as in any other. Thus, the award having been published in June, 1859, the plaintiff might have made it a rule of a Court of Law, and moved to set it aside any time before the end of Michaelmas Term, 1859. That he neglected to do: and the action was brought in December, 1859. In consequence of the appeals, the rights of the parties could not be ascertained till December, 1861: and in March, 1862, the present bill was filed. There had thus been some, but not very great, delay in bringing the matter before the Court. The question now arose, whether, under all those circumstances, the award could be set aside by the Court. Now, it was evidently the intention of the Legislature (an intention which had been followed up by the decisions of the Courts of Law), that an award should be final, and bring litigation to a speedy termination. Under these circumstances, the jurisdiction of the Court ought to be exercised with the greatest caution: and, indeed, the greatest reluctance had been shown to interfere with the ordinary course of the law in matters relating to arbitration, and where ample justice might have been done at Law if application had been made in due time. His Honour then referred to the observations of Lord Eldon in Featherstone v. Cooper (9 Ves. 68), and Lord Cottenham in Chuck v. Cremer (2 Ph. 477),. as showing that the Court would be slow to assist a plaintiff who came here to obtain the same relief which, if he had applied in the ordinary course of proceeding, he might have obtained from another tribunal. In the present case the plaintiff could certainly have obtained relief at Law: and, as observed by Sir John Leach in Davis v. Getty (1 S. & S. 411), to allow him to obtain the same relief at a much later period than he could have got it in a Court of Law, would be to permit him to take advantage of his own laches. The Court would therefore require a very strong case of fraud or injustice to be made out before it would interfere in a case where the plaintiff's neglect alone stood in his way at Law. If the present case had stood as put by the plaintiff, and he had lost a sum of about 60007., by the improper decision of the arbitrators, then his Honour thought that it would have been proper to interfere; but it seemed to him that the arbitrators had taken a correct view of the case, in following the mode of taking the accounts indicated by the letter of June, 1857, and little or no injustice would be done to the plaintiff. It had been urged on him that, following the practice at Law, he might have sent the case back for reconsideration by the arbitrators. That could not be done without reopening the whole of the accounts, which would totally frustrate the design of the parties, viz., to obtain a speedy settlement of the matters in dispute. The bill must be dismissed with costs. Practice-Parties-Husband and Wife-Redemption of Wife's Estate. The wife ought to be separately represented in a suit to redeem a mortgage of wife's estate. In a suit by husband and wife to redeem the wife's estate, where the husband was a bankrupt, leave was given at the hearing to amend the bill by adding a next friend to the wife, the husband remaining as coplaintiff. The bill in this cause was filed by a husband and his wife to redeem a mortgage of the wife's real estate of WOOD, V.-C., held, that the suit was wrongly framed, inasmuch as the wife ought to be separately represented on one or the other side of the record. His Honour could not recall any case in which a suit by husband and wife to redeem the wife's estate had been allowed; and now that it was settled that a suit by husband and wife was the husband's suit alone, it was clear that such a suit was defective for want of parties. As to the bankruptcy, the husband's beneficial inte rest for the joint lives of himself and his wife, and his estate by curtesy, if any, were of course vested in his assignees; but the legal estate remained in the husband and wife in right of the wife. There was therefore something in the husband which enabled him to sue. His Honour therefore would not at once dismiss the bill, but would let the cause stand over, with liberty to amend by adding a next friend to the wife, the husband remaining as co-plaintiff. Rolt observed that the next friend must adopt all the proceedings in the suit, so as to render himself liable for the costs. WOOD, V.-C., said, that there was no doubt that if the next friend came in, he would thereby become liable for all the costs from the commencement of the suit. Misdescription-Dismissal of Petition. inheritance. The husband had become a bankrupt, such petition had described himself as of a different Petition for adjudication by a bankrupt, who in and the defendants to the bill were the mortgagees, place from that of which he was described in a bill of the husband's assignee in bankruptcy, and the pur-sale executed by him shortly before his bankruptcy, chasers of the estate, which had been sold. On the cause being brought to a hearing, objections were taken to the frame of the suit, upon the ground that the wife's interest, apart from her husband's, was not represented, and that the husband, being a bankrupt, had, in fact, no interest which could enable him It was contended that a suit by husband and wife was the husband's suit alone, and the wife would not be bound by a decree in such a suit. to sue. The following were the authorities cited: Hughes v. Evans, 1 S. & S. 185; Reeve v. Dalby, 2 S. & S. 464; Wake v. Parker, 2 Keen, 59; dismissed. In this case E. Reed prayed the Court to dismiss a petition for adjudication, which had been presented by the bankrupt himself, on the ground of insufficient description. In the petition the bankrupt had described himself as of "Holywell Lane, Shoreditch," although in a bill of sale which he had given to certain creditors a short time before his bankruptcy, he was described as of "Dove Row, Hackney." On examination the bankrupt swore that he had never carried on business in Dove Row, that the statement in the bill of sale was false, and that he had Gleaves v. Paine, 1 N. R. 249 ; 1 De G. J. & S. not previously seen such statement, inasmuch as he 87; Mitford on Pleading [28]; Hope v. Fox, 1 J. & H. 456. Daniel, Q.C., and Cadman Jones, for the plaintiffs. Rolt, Q.C., W. Morris, Cracknall, and Horton Smith, for the various defendants. could not read. (It appeared, however, that the bankrupt knew how to write, as the bill of sale was signed by himself.) had told him that he (bankrupt) was carrying on In contradiction a creditor swore that the bankrupt business in Dove Row, and was doing well in such business; this witness also swore that he had seen the bankrupt in his shop at the last-mentioned Court by order of his Honour, made in November, place. 1863. Whereupon Reed submitted that the petition was fraudulent, and that the bankrupt had no locus standi in this Court. The facts were shortly as follows:-In November, 1862, the Bjornborg Tandstichs Lucifer Match Factory Association, a company incorporated according to the HIS HONOUR, after looking at the bill of sale, dis- law of Finland, and carrying on business in that missed the bankrupt's petition. Rule granted under section 79 of the Bankruptcy Act, 1861, and section 121 of the Consolidation Act, 1849, against a judgment-debtor, to show cause why substituted service of a judgment-debtor summons should not be made. Robertson Griffiths, on behalf of a judgment-creditor, applied, under section 79 of the Bankruptcy Act, 1861, for leave to effect substituted service of a judg ment-debtor summons. He read an affidavit, by which it appeared that all attempts that had been made to serve the judgment-debtor in this case had failed, by his keeping himself out of the way, and by the connivance of his servant. He submitted that, this being a peculiar case, his Honour would be justified, under sections 76 and 79 of the Act of 1861, in ordering the service to be made on the debtor's servant, or in such other way as the Court might direct. He also cited the 121st section of the Consolidation Act, 1849, and the 8th General Order made on the Bankruptcy Act, 1861. HIS HONOUR said, he thought he could so construe the 79th section of the new Act, by analogy to the 121st section of the Consolidation Act of 1849, as to enable him to make an order for substituted service in this case. The best course, however, to be adopted would be in the first instance to take a rule, founded on an affidavit of the facts, calling on the debtor to show cause why such substituted service as was here asked should not be made. Minute.-Ordered accordingly. Goulburn, Comr.} Re KULBERG. country, made a consignment of lucifer-matches to the bankrupt as their factor, or commission agent, for sale on their account. This consignment was made to Germany, but, with the approval of the association, the goods were forwarded to England for sale by the bankrupt. By terms made with the association, the bankrupt was not required to accept bills on account of consignments, or to pay insurance or other charges on the goods consigned. The bankrupt debited the association in his books with moneys paid for insurance against fire and other charges, but no sale of the goods was effected by him before his bankruptcy. The association drew bills of exchange for the value of the goods consigned, and such bills were still outstanding. Since the bankruptcy the goods had been sold, and the prohad come into the hands of the bankrupt's assignees, ceeds of such sale, amounting to the sum of 2647. 14s. 5d., and had been paid by them into the bank to the credit of the Accountant-General in Bankruptcy. Sargood, on behalf of the association, now claimed the above-mentioned sum of 2647. 14s. 5d., at the same time undertaking that any bills of exchange drawn by the association and accepted by the bankrupt in respect of the goods, should be cancelled and given up to the assignees, and that such sums as had been paid by the bankrupt for insurance or other charges should be deducted. He submitted that the bankrupt being a mere agent or factor, these goods, though in his hands at the time of bankruptcy, might be claimed by their original owners, and, if sold by the assignees, that the original owner was entitled to the purchase money. Such goods were not in fact in the order and disposition of the bankrupt at all. He cited, Whitfield v. Brand, 16 L. J. Ex. 103: estate. HIS HONOUR said, that had this been the case of a mere agent, he should have had some difficulty in the matter, there being, in his opinion, a decided distinction in Law between the characters of agent and factor. Factorship-Agency-Goods in the order and As, however, the bankrupt here had been undoubtedly 7 DEC. 1863. Disposition of Bankrupt. Goods in the possession of a mere factor at the time of his bankruptcy are not in his order and disposition so as to pass to his assignees. Quære. Whether the same rule would hold good in the case of an agent? This was a special case, stated for the opinion of the employed as factor, he should make the order asked for in favour of the claimants, subject to the deduc tion of any moneys paid by the bankrupt for insurance or other charges in respect of the goods consigned, and also subject to the claimants' surrendering to the assignees the bills of exchange. Minute.--Ordered accordingly. Q. B. COMMON LAW. RICHARDS v. MORGAN. 16 APRIL, 23 Nov. 1863. In an action of replevin, where the question in dispute was, whether a certain tract of land was part of the freehold of the plaintiff, or of W M, under whom the defendant held, and who was the real defendant in the action, the plaintiff tendered in evidence the depositions of two witnesses taken in a Chancery suit, instituted some years previously, by one E, against the said W M. The object of such suit was, to set aside a sale to W M of the estate of which (according to his contention in the action of replevin) the locus in quo formed part, on the ground that W M had fraudulently obtained the estate from E, at less than its real value. The depositions which the plaintiff thus sought to put in, contained statements respecting the value and extent of the estate, tending to prove that full value had been given for it, and showing, if accurate, that the locus in quo formed no part of it. They were taken, under the system then in operation in the Court of Chancery, before Commissioners sworn to secresy, but were published a month before the hearing of the cause, and after publication both parties had access to them, and it was at the option of either party to use or refrain from using in the suit the depositions taken on his behalf. At the hearing of the said suit of E v. M, the defendant's counsel read and used the depositions in question for the purposes of his case: Held (by COCKBURN, C.J., and CROMPTON, J., BLACKBURN, J., dissentiente), that these depositions were properly received in evidence in the action of replevin. This was an action of replevin for taking the plaintiff's sheep, tried before Wilde, B., at the Glamorganshire Spring Assizes, 1862. The defendant, by his avowry, alleged that he took the sheep damage feasant on the locus in quo, which he held as tenant to one William Meyrick, in whom the fee was vested. On this avowry issue was joined. The question in dispute at the trial was, whether the locus in quo, a mountain tract called Ysgwyddgwyn, was the freehold of William Meyrick, who was the real defendant in the action, or was the property of the Marquis of Bute, who is lord of the manor in which the locus in quo is situate, and who was the real plaintiff in the action. tion and that the locus in quo formed no part of it, put in evidence the answer of William Meyrick in a suit in Chancery, instituted against him by one Lewis Edwards, in the year 1842, and also, the bill of complaint in the suit, to which such answer referred. This suit was instituted for the purpose of setting aside the purchase by William Meyrick from Lewis Edwards, of the estate of which it was now alleged that the locus in quo formed part, on the ground that Meyrick had taken advantage of his position as Edwards' attorney, to obtain it for 2,1007., which was much less than its real value. William Meyrick in his answer, detailed the circumstances connected with Edwards' proposal, that he should become the pur chaser of the estate, and averred that immediately after such proposal, "the defendant sent to Henry Harries, who, recently, had been the tenant of the said two farins [Tyr Twppa and Ysgwyddgwyn], and had occupied the same as such tenant for some years then last past, together with the lands of the said Marquis of Bute intermixed therewith, which he held under one taking at a gross rent, and inquired from him what was the value of the said two farms, and the said Henry Harries informed the defendant that he considered the yearly value thereof under his taking from the plaintiff amounted to the sum of 657., and that, in his judgment, that sum was the full and fair value of the said two farms." The answer then went on to state, that 2,1007. was a large and ample price for the value of the said farms and lands at the time of such purchase; and that the defendant agreed to buy the said two farms, lands, and hereditaments, solely at the instance and request of the plaintiff. In addition to this bill and answer, the plaintiff's counsel tendered in evidence on the present trial, the depositions of two persons, named Henry Harries and Francis Morgan, which were taken in the suit above referred to. It was admitted, on behalf of the defendant, that these depositions were taken under the old system in Chancery, by Commissioners sworn to secresy. It was proved that publication passed a month before the hearing of the cause, and that after publication, both parties had access to the depositions, and that a party was not bound to use at the hearing the evidence of any witness, unless he pleased. It was also proved that Meyrick's counsel, at the hearing of the cause of Edwards v. Meyrick, read and used as evidence for him, the two depositions which were now tendered on behalf of the plaintiff in the present action. At the trial, the counsel for the plaintiff, for the The defendant's counsel objected that these deposi purpose of showing the extent of the estate in questions were inadmissible, but the learned judge over ruled this objection, and they were received in value of the said farms at rack-rent, without any evidence. deductions or allowances whatsoever, is 70l. per The contents of these depositions, so far as they are annum, and I have often told my master, the defenmaterial, are as follows:dant, so, and had hoped by this time he would have reduced the rent to that sum. I have striven hard to pay the rent for the farm, and I have given my master the whole gains; I had an advantage by being able to dispose of the produce of my farms to my three brothers-in-law, who were shopkeepers in the neighbourhood, and who purchased such produce." The deponent then spoke to the dilapidated condition of the premises, and the repairs which would be necessary to put them into a proper condition. Henry Harries deposed, "I have known the said farms called Ysgwyddgwyn and Tyr Twppa for these forty years. I was in the occupation thereof as lessee for a term of fourteen years, determinable on lives from the 2nd of February, 1818, to the month of February, 1823, under the complainant as lessor thereof. In the said month of February, 1823, the last life dropped, whereupon the lease determined. I held the said farms called Ysgwyddgwyn and Tyr Twppa, in conjunction with other lands, such other lands consisting of a farm called Gwern Dwyna, containing about 109 acres, also held by me under the complainant, who held the same under a lease for lives under the Marquis of Bute, and I paid for the whole of such two farms and such other lands the yearly rent of 1057. One Joseph Davies occupied the said farms and lands called Tyr Twppa and Ysgwyddgwyn under the said complainant for a year or two after I ceased to be tenant thereof. The said complainant offered me the two last-mentioned farms just before I left them in 1823 at the yearly rent of 651, which offer I refused because the Marquis of Bute refused to allow his farm to be occupied in conjunction with the said two farms of the complainant, and it did not suit me to rent those two farms without." The deposition then stated facts which went to show that the defendant was at first unwilling to purchase the estate, and only consented to do so at the instance and request of the plaintiff, and that the price paid was not only fair and reasonable, but was fixed by the plaintiff himself. And the deponent stated that, in answer to an inquiry by the defendant, he had told him "that he considered the farms worth 651. a-year to rent." Francis Morgan deposed, "I know the said farms and lands called Tyr Twppa and Ysgwyddgwyn, and I have known them well for the last nineteen or twenty years, and I lived in the immediate neighbourhood of them previously. I became tenant of the said farms in the year 1831 under the defendant, and have since continued the tenant thereof to the present time. The rent from the year 1831 up to about a year ago was 901. per annum, when the same was reduced to 807. per annum, but in consequence of my complaining every year to the defendant of the dearness of the farm, and my threatening to give it up to the said defendant, he, defendant, made me allowances varying from 51. to 87. in each year for the dearness of the farm, and in consideration for the improvement I made to it; the total extent of the said farm is, I believe, 135 acres, and consists of about twenty chain acres of arable land, about thirty chain acres of meadow, and the rest consisting of pasture, wood land, and rough land, the exact proportion of which I am In my opinion, the full and fair unable to state. The jury returned a verdict for the plaintiff, and a rule was afterwards obtained for a new trial, on the ground of the improper reception in evidence of these depositions. Against this rule W. M. James, Q.C., (of the Chancery Bar,) Tomlinson, and T. Allen, showed cause. Two These depositions were properly admitted. principles may be said to be established with regard to the reception of evidence of this nature: 1st. That the affidavit of a witness used by a party in any matter can be afterwards used against such party by any person producing that affidavit. 2nd. That the oral statement of a witness at nisi prius is not within that rule, because non constat that the witness has not said something totally different from what the party calling him expected; see Taylor on Evidence, 605 (2nd ed.). The depositions in question fall properly within the first, and not the second, of these classes, and there is no authority to show that Chancery depositions which have been used in a former suit are not admissible against the party who has so used them. Rushworth v. Countess of Pembroke, Hardres, 472, which is generally cited as an authority against their admissibility, has no real bearing on the case; the question there being, whether the depositions taken in one cause could be used on behalf of the same party in another. It is admitted that there are many dicta to be found to the effect that Chancery depositions are inadmissible in a subsequent occasion, even against the party who has previously used them. See Brickell v. Hulse, 7 Ad. & El. 454; All these dicta, however, have proceeded on a misapprehension of the practice in Chancery with respect to the taking of depositions. It has been supposed that until they were read in evidence at the hearing, the party on whose behalf they had been taken was unaware of their contents, and that they were thus strictly analogous to the case of the evidence of a witness at nisi prius. In truth, however, as we proved at the trial, publication always took place before the |