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Webb, C. J., 464

Wicks, J. S., Richardson, J., Wilson, R., & Wilson, J. S., / Woods, J., 474
F. P. R., 424
& Smith, H., 502


Woodyatt, W., 103
T. B. B., 154
Wilding, J., & Wood, M., Winn, G., 316

Wrenn, W., 465
Weller, W., 84


Winter, G., & Winter, J., Wright, J., 480
Wells, J., 95
Wilkinson, T., 527

W., 125
West, W., & West, J., 94 Williams, E., 54

J., 365

Wrightson, C., 435 Westbrook, R., 375

H., the younger, 474,

R., 216

Wyburn, R., 350 Wheeler, J., 84


W., 254
H., 510

J., 298

Witt, B., 69
White, F. W., 228

M., 253
Wood, M., & Wilding, J., 365

H. J., 290

R., 341

R., 171
J., 412
R., 230


Yllas, H., 183 J., 144

R. J., 472

Woodhead, J., & Woodhead, Young, F., 100
R., 95
Willmott, R., 145
J., 171

T., 84
Whitfield, J. H., & Lyth, F., Wills, J., 492

Woodhouse, E.J., & Jenkins, Younger, W., the younger, 161 Wilson, C. G., 125

A. H., 99


No. 836-Vol. XVII.

JAN. 15, 1853.

Price 1s., with Supplement, 2s,


Harvey o. Brooke.—(Practice-Master in Chancery
Abolition Act, 8. 40–Reference to Conveyancing

Lambert and Others, Apps., The Overseers of St. ThoCounsel-Infant)


mas, New Sarum, Resps.-(Appeal under Registra.

tion of Voters Act).- Parliament~County Vote-1 VICE-CHANCELLOR PARKER'S COURT.

Notice of Objection 6 Vict. c. 18, 88. 7, 101,, Benison o. Worsley.-(Appointment of Guardian for

Sched A.5)

3 Infant without his Appearance in Court, and with. out Commission)...


COURT OF EXCHEQUER, COURT OF QUEEN'S BENCH. Goodwin 0. Cremer.—(Bill of Exchange - Action by Price v. Hewett.---(15 & 16 Vict. c. 76, 8. 80—Plead. Indorsee against Acceptor-Payment after Action

ing and demurring to same Matter-Fraud-In- Recovery of Costs).

2 fant)

LONDON, JANUARY 15, 1853. applicant the immediate relief that he seeks, but, in

effect, to determine the cause—that is, by obtaining In a former number of The JURIST, when the Chan- the opinion of the Court on the point affecting the imcery Improvement Act had just been passed, we dis- mediate relief, to make all further proceedings useless. cussed the clauses relating to the oral examination of It is on this ground, if on no other, of the highest witnesses, and suggested that the cross-examination of importance that every means should be provided for witnesses, who have made affidavits on interlocutory making the investigation and determination of inapplications, cannot, under the act, take place in court, terlocutory applications as complete and accurate as but must be conducted before the examiner. The possible, since thereby often a prolonged litigation may point has been so ruled by Sir R. T. Kindersley, V. C., be prevented. in Smith v. The Swansea Dock Company, (16 Jur., part 1, We come, then, to the material point, whether it is p. 1130).

not much better that the cross-examination of a witness This is one of the defects of the act; whether the should take place before the judge who is to hear the omission was intentional, or the result of a slip, we matter in which he has been examined in chief, than have, of course, no information; but that it is a defect before an official person, not a judge, who is merely to is sufficiently obvious—that is, if we are to assume that take down his evidence, without its being necessary oral cross-examination of witnesses upon affidavit is that he should form any idea of the merits of the case at any time valuable; for if it is valuable at the hear-on which the evidence bears. The arguments in favour ing of a cause, what possible distinction can be taken of this mode of proceeding have been só often discussed between that and the hearing of a motion, which and urged, that we shall not trouble our readers with should make the oral cross-examination of witnesses a recapitulation of them. We shall content ourselves before the Court in the latter case useless ? The dis- with asserting broadly and positively, that if, on motinction which actually exists between an interlocutory tions, the witnesses are to be cross-examined, it would application and the hearing of a cause, has, in truth, be infinitely to the advantage of truth that they should no bearing whatever upon the mode of taking evidence. be so examined while the 'motion is going on, and in It is true, that it has been the old practice, on motions, the presence of the judge who hears it. to take affidavits; while, at the hearing, evidence upon Further: while this cannot be done, it is a farce to interrogatories only was admissible. But this practice talk, in practice, of oral cross-examination of the witgrew rather out of the necessity of admitting the more nesses on a motion—that is, in the largest and most rapid process by affidavit for motions, if motions were important class of cases, viz. those where immediate to be heard at all, than out of any peculiarity in mo- damage is apprehended, and a decision must be had tions, as substantially distinguished from the hearing. quickly, if severe injury is not to be inflicted on one or And since it has been determined by the Legislature other of the parties. Fancy, in a case of a motion to rethat affidavits may be used at the hearing as well as on strain a railway company from opening its line, and runmotions, so far assimilating interlocutory and final ning its trains in a given manner, or from intersecting & hearing, it seems quite idle to say that a particular given road, or knocking down a mansion-house--fancy, mode of cross-examining witnesses is good at the hear- in such a case, having to serve subpoena on the witing, and is not good on motion.

nesses, and to wait the turn of the parties to obtain an The use of an interlocutory application, it should be appointment in the examiner's office, in addition to recollected, is very often, not merely to obtain for the all other delays, before a decision can be had. The

Vol. XVII.


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result would be, that to bring on a motion would take WHETHER A MORTGAGE IS JUSTIFIED BY nearly as long as to bring the cause to a hearing; and

A POWER OF SALE. the very object of a motion, which is to obtain a speedy determination of the preliminary point in dispute, would be wholly defeated. Either the company

(From a Correspondent). would have to wait a ruinously long time before exer- We think the attention of the Profession should cising its right, or the mischief would be done before be particularly directed to the decision of Lord St. the remedy could be applied ; and, one way or the Leonard's in Stroughill v. Anstey, (16 Jur., part 1, other, injustice would be inevitable. In effect, there- p. 671; ! De G., Mac., & G. 635), as tending to refore, we say that in the very cases in which it is gene- and Forbes v. Peacocke, as to the liability of persons

open a discussion we thought closed by Page v. Adam rally most wanted, oral cross-examination of the wit- dealing with trustees to see to the application of the nesses on a motion is impossible, and that so far the money where there is a general charge of debts. The act has miscarried.

case was this:--Trustees of a will held the testator's This is a question quite apart from the larger question, residue, of which certain houses were part, upon trust, whether the whole system of oral examination before at such time or times as to them should seem meet, an examiner is not a mistake. In this journal we have upon trust to pay the testator's debts, an annuity, and

to sell and convert into money, and to hold the proceeds before frequently urged, and we again repeat the opi- certain legacies; and as to the residue, for A. and B. nion, that it is a mistake; that the value of oral exa- The will contained a clause in a very extensive form, mination depends mainly upon its being conducted be- declaring, not only that certain purchasers, but also that fore the tribunal that is to pronounce a decision upon any person who from time to time should have any part the facts, and at the particular hearing on which the

evi- of the trust monies in their hands, should not be account

able, after payment to the acting trustee or trustees, dence bears ; and sooner or later, and we believe rather for the misapplication or non-application thereof, aná sooner than later, we have no doubt that the separate that every receipt of the acting trustee or trustees oral examination of witnesses before an examiner will should be a sufficient discharge for every sum therein be abolished; and that wherever oral examination is acknowledged. A. was one of the trustees as well as used, it will take place before the Court, as already has one of the persons interested in the residue, and he and

his co-trustee, sixteen years after the death of the tesbeen done on some occasions, with great success, before tator, raised 28001. by deposit of the title deeds of part the Lords Justices of the Court of Appeal in Chancery. of the unsold property and an agreement for mortgage,

and both the trustees entered into a personal under

taking to repay the sum so raised. The co-trustee Correspondence.

misapplied the funds, and Lord St. Leonard's held that the mortgage could not be enforced against the cestui que

trust, as not being within the power of sale, and decreed THE JURIST.”

a delivery up of the title deeds--reversing the decision SIR, -It appears from your report of Pegg v. Wis- of Sir J. L. Knight Bruce, V. C., who had made a den (16 Jur., part 1, p. 1105) that the Master of the decree for payment or sale of the mortgaged premises. Rolls has very lately decided that the act of examining This case has all the appearance of a careful decision an abstract with the original deeds amounts to an by Lord St. Leonard's, who referred to and commented acceptance of title on behalf of a purchaser. If this on the authorities in his judgment, and without a reis to be a rule, the sooner solicitors are made gene- hearing or an appeal to the Lords, it must be taken to rally acquainted with it the better; for certainly it is be law. Therefore the efficacy of a receipt clause to an extremely common practice to have an abstract exa- persons dealing with trustees, and the doctrine that a mined with the deeds before it is submitted to counsel, mortgage is a sale pro tanto, must be considered as very as every conveyancer must be aware. But solicitors, in much narrowed, as well as the doctrine that a general doing this, have never considered that they had already charge of debts exempts a purchaser or mortgagee from precluded themselves from making the objections which making inquiries. There was in Stroughill v. Anstey their counsel might suggest.

a general charge of debts, a discretionary power of sale, Your obedient servant,

and a clause to exonerate all persons paying money T. S. from seeing to the application; and yet a mortgagee

was held not safe, and lost 28001., advanced to the [There can be no doubt that, in ordinary cases, the trustees. examination of the deeds is not an acceptance of the It seems at first sight difficult to contend, that title. Indeed, it is recommended in the Treatise on raising money on mortgage is not a due execution of a Vendors and Purchasers, and by other authorities, power to “convert into money;" but the narrow point that the abstract should be so verified before it is strictly decided by Stroughill v. Anstey is, that a mort; submitted to counsel. The opinion of the Master of gage is not a due execution of a power to sell and the Rolls in Pegg v. Wisden must have been founded convert into money. However, the principle on which on all the circumstances of the case taken together, Lord St. Leonard's put his judgment is, that persons though we confess the foundation does not appear to us dealing with trustees, raising money after a considerable sufficient.–Ed.]

lapse of time, are bound to inquire and see that no breach of trust is being committed; and though he

professes to consider this as not tending to lessen the The Lord Chancellor has appointed Charles N. security of purchasers and mortgagees, it certainly Wilde, Esq., to be the Registrar in Lunacy.

tends to unsettle the principles on which their advisers The Queen has been pleased to direct letters-patent can transact their business. What amount of inquiry to be passed under the Great Seal of the United King- is to be necessary? What evidence of that inquiry is to dom, appointing the Right Hon. Sir George James be preserved? If each case is to stand on its own pecuTurner, Knt., to be a Judge of the Court of Appeal in liarities, we are then entirely at sea, and possibly no two Chancery, in the room of the Right Hon. Robert Mon- legal advisers could be got to agree as to what amount sey, Lord Cranworth, resigned.

of inquiry will render a purchaser or mortgagee safe.




13 Appeals.


Again: wliat time is to be deemed considerable ? In

Court Papers. Stroughill v. Anstey the time was only sixteen years, but in Forbes v. Peacocke the time was twenty-seven years, and the Court there refused to permit a purchaser EQUITY SITTINGS, HILARY TERM, 1853. to inquire whether all the debts had been paid. In fact,

Court of Chancery. it seems very difficult to consider Stroughill v. Anstey except as overruling Forbes v. Peacocke, and as restoring Before the Lord CHANCELLOR, at Lincoln's Inn. what Lord St. Leonard's calls“ the opinion of the Pro- Tuesday .... Jan. 11 Appeal Motions. fession prior to that case.” We should be glad to hear Wednesday 12 Petition-day. that Stroughill v. Anstey was to be reheard before the Thursday full Court of Appeal; but we have done our duty by Friday

14 calling the attention of legal advisers and practitioners Saturday

15 very particularly to the question, as of the utmost im- Monday. 17


18 portance, practically, in all cases of sales or mortgages Tuesday, by the trustees of a will, notwithstanding a clause to Wednesday 19 exonerate persons taking receipts from liability for Thursday 20 Appeal Motions.


21 Petition-day. non-application.


22 Monday.




Thursday 27 Appeal Motions.

28 Petition-day.

Saturday 29 Appeals.
ORDER OF COURT.-Dec. 24, 1852.

Monday........ 31 Appeal Motions.
The Right Honourable EDWARD BURTENSHAW Lord
ST. LEONARD's, Lord High Chancellor of Great Britain, Before the LORDS JUSTICES, at Lincoln's Inn.
doth hereby order and direct in manner following, Tuesday .... Jan. 11 Appeal Motions.
that is to say


Thursday I. When any of the Masters in Ordinary shall request łne opinion of any of the conveyancing counsel, nomi- Friday

Petitions in Lunacy, Bankruptcy, and

14 { Pe Appeal Petitions nated by the Lord Chancellor under the 15 & 16 Vict. Saturday 157 c. 80, s. 41, to be taken upon any matter depending Monday. 17 » Appeals. before such Master, such business is to be laid before Tuesday. 18 the conveyancing counsel in rotation, to be ascertained

Wednesday 19 { Petitipes, i petitionery, Bankruptcy, and in the manner prescribed by the General Orders of the 16th day of December, 1852; and a memorandum or Thursday .. 20 Appeal Motions.

21 minute of every such request is to be prepared by the Friday

22 Master's chief clerk, and signed by him, and such' me- Saturday


Appeals. morandum or minute, when marked with the name of Monday..

25 the conveyancing counsel in rotation, shall be a suffi- Tuesday.. cient authority for such counsel to proceed with such Wednesday 26 { Petiripes

, Petitioney, Bankruptcy, and business; and if the conveyancing counsel in rotation

Thursday ... 27 Appeal Motions. shall be unable or decline to proceed therewith, the

Friday ... 281 same shall be offered to the other conveyancing counsel,



} Appeals. nominated as aforesaid, successively, according to their Monday. 31 Appeal Motions. seniority at the Bar, until some one of them shall accept the same.

Rolls Court, II. Where, under a decree or order of the Court, whether already made or hereafter to be made, any

Before the Right Hon. the MASTER OF THE Rolls, at

the Rolls.
estate or interest shall be put up for sale with the ap-
probation of one of the Masters in Ordinary, an abstract Tuesday .... Jan. 11 Motions.
of the title to such estate or interest is, upon the request

Wednesday 12 Petitions in the General Paper.

13 of the Master, to be laid before the conveyancing coun


14 sel in rotation, for the opinion of such counsel thereon,

Saturday 15 Pleas, Demurrers, Causes, Claims, to the intent that the said Master may be the better Monday.. 17 Further Directions, and Exceptions. enabled to give such directions as may be necessary Tuesday.. 18 respecting the conditions of sale of such estate or Wednesday 19 interest.


20 Motions. III. Notwithstanding the preceding Orders, the Friday, Master is to be at liberty to request the opinion of any


22 24

Pleas, Demurrers, Causes, Claims,

Monday.. one in particular of the said conveyancing counsel to be


Further Directions, and Exceptions. taken upon any matter before such Master, where the

Wednesday 26 circumstances of the case may render it expedient to Thursday

27 Motions. do so.

Pleas, Demurrers, Causes, Claims, (Signed) St. LEONARD's, C.

Friday ...

Further Directions, and Exceptions.
Saturday 29 Petitions in General Paper.

31 Motions.

Short Causes, Short Claims, Consent Causes, Unopposed The Queen has also been pleased to direct letters. Petitions, and Claims, every Saturday, at the sitting of the patent to be passed under the Great Seal of the United Court. Kingdom, granting the office of a Vice-Chancellor unto Notice.-Consent Petitions must be presented, and copies Sir William Page Wood, Knt., in the room of the left with the Secretary, on or before the Thursday preceding Right Hon. Sir George James Turner, Knt., resigned. the Saturday on which it is intended they should be heard,

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21 { (Petisiyo - day).–Petitions (unopposed M'Intoshy č.Great Western Parents Waikinan AB

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Vice-Chancellors' Courts.


The following abbreviations have been adopted to Lincoln's Inn.

abridge the space the Cause Papers would otherwise have occu. Tuesday .... Jan. 11 Motions and seven adjourned Petitions. pied: A. Abated—Adj. Adjourned-A. T. After Term-Ap.

Appeal-C. D. Cause Day-Cl. Claim-C. Costs—D. De. Wednesday first).

tion-P. C. Pro Confesso-Pl. Plea-Ptn. Petition-R. ReThursday. 13 | Pleas, Demurrers, Exceptions, Claims, hearing-s. 0. Stand Over-Sh. Short. Friday

14 ) Causes, and Further Directions. Saturday 15 Short Causes, Short Claims, & Causes.

Court of Chancery. Monday... 17

Pleas, Demurrers, Exceptions, Claims, Tuesday.

Before the LORDS JUSTICES, at Lincoln's Inn. Wednesday

Causes, and Further Directions. 19

Swift v. Grazebrook (Ap by | Eddleston v. Collins (Ap) Thursday .. 20 Motions.


Rawlins o. Daylish (Ap on CI) Friday ..... first).

Railway Co. (Ap)

Pearce o. Watkins (Ap) Saturday ....... 22 Short Causes, Short Claims, & Causes. Thornton o. Court (Ap) Evans v. Evans (Ap) Monday..


Pleas, Demurrers, Exceptions, Claims,
Tuesday.. 25

Causes, and Further Directions.

Before Vice-Chancellor Sir RICHARD KINDERSLEY, at Thursday ... 27 Motions.

Lincoln's Inn.

Williams v. Williams (E to Duke of Beaufort v. Patrick Saturday

Creswell o. Gaskell

29 Short Causes, Short Claims, & Causes.
31 Motions.

Pinkerton o. Andrew (3 cau., Horner o. Horner (F D, C)
Pon, part heard)

Johnstone o. Ure (E, FD, C) N. B.- Unopposed Petitions, (not exceeding ten), at the Turner o. Nicholls (FD,C) ? Dickenson o. Wolferston (FD, sitting of the Court, every day (except Seal Day).

Hanson o. Hartley (CI)

Monk v. Cartwright (CI) Before Vice-Chancellor Stuart, at Lincoln's Inn.

Evans o. Saunders (Sp. case) Williams v. Lomax (CI)
Moorley v. Jenkins

Vigurs o. Vigurs (F D, C) Tuesday .... Jan. 11 Motions.

Barratt v. M-Dermot (Cau.) Herbert v. Bateman (F D, C) Short Causes, Short Claims, Pleas, M.Dermot v. Kealy (Ptn) Miller v. Huddlestone (F D, Wednesday 12 Demurrers, Causes, Exceptions, and Wood v. Sutcliffe

Further Directions.

Knowles v. Oliver

Hawker o. Colchester Thursday 13 Pleas, Demurrers, Exceptions, Claims, Attorney-Gen. o. Blackburn Wallis v. Glubb (CI) Friday ... 14) Causes, and Further Directions. Patrick v. Walker (PC) Rutherford v. Knight (CI) Saturday 15 Petitions (unopposed first).

Russell o. Walker (CI) Jopling v. Watson (CI) Monday.... 17 Pleas, Demurrers, Exceptions, Claims, Ellison v. Hector (3 causes) Micklethwaitev. Micklethwaite Tuesday.. 18) Causes, and Further Directions. Widdicombe v. Muller (CI) M.Leod v. Annesley Wednesday 19 Short Causes, Short Claims, & Causes. Menlove v. Carter (E) Barlow v. Barlow (F D, C) Thursday. 20 Motions.

Crouch v. Booney

Gray v. Gray (6 cau., FD, C) Friday .... 21 Claims, and Further Directions. Exeter

Pickering o. Harley (F D, C) Saturday 22 Petitions (unopposed first).

Freeth v. Hoskins

Wellesley o. Wellesley (F D, Monday. 24 ) Pleas, Demurrers, Exceptions, Causes, Same v. Marshall Tuesday.. 25 ) Claims, and Further Directions.

Attorney-Gen. v. Overton Menlove o. Hogg Wednesday 26 Short Causes, Short Claims, & Causes. Willetts v. Hutchins (CI) Same v. Trustees of the Liver. Thursday 27 Motions.

Jenkins v. Robertson (F D, C) pool Dock Co. (E)

Jones v. Bird
Friday ... 28
Claims, and Further Directions. Whitbread v. Smith

Thomas v. Davis
Saturday 29 Petitions (unopposed first).

London and South-western Preston v. Liverpool and ManMonday 31 Motions.

Railway Co. v. Barwick (CI) chester Junction Railway Co. Pattenden o. Hobson (F D, C) Illingworth v. Maund (CI)

Evans v. Evans (F D, C) Leonard o. Ord (F D, C) Before Vice-Chancellor Sir W. P. Wood, at Lincoln's Inn.

Fry v. Watson (CI)

Bennett o. Stone (CI) Tuesday .... Jan. 11 Motions and Claims.

Watson v. Goring (F D, C) Beale o. Symonds (F D, C)

Tyrrell o. Preston
first) and Causes.

Mason v. Clarke
Pleas, Demurrers, Exceptions, Causes, Falk v. Gibson

Solomon v. Solomon (F D, C) Thursday ...... 13

Claims, and Further Directions. Williams v. Williams (FD, C) Eckford v. Roome (F D, C) Short Causes, Short Claims, Claims, Lewes v. Lewes

Gauntlett v. Carter

and Causes.

Baldwyn v. Rogers (F D, C) Lord v. Wightwick (F D, C) Saturday 15

Rochester v. Taylor (F D, C) Barnard v. Cooke Monday

17 Pleas, Demurrers, Exceptions, Causes, Mackinnon v. Stewart I (FD, Yeatman o. Monsley (CI) Tuesday. 18 Claims, and Further Directions. Moore v. Same

Talbot v. Lord Dormer Wednesday 19

Burl 0. Jones (F D, C) Earl of Shrewsbury v. Same Thursday 20 Motions and Claims.

Brown v. Brown (F D, C) Evans o. Brooks (CI)
Short Claims, Claims, and Causes. Barlow (F D, C)

Richmond v. Jefferies (F Saturday

Worsley o. Woodford (F D, C) C) Monday.. 24 Pleas, Demurrers, Exceptions, Causes, Macbean v. Babington (F D, Bondfil v. Purchase (F D, C) Tuesday.. 25 Claims, and Further Directions.

Gould v. Gould (F D, C) Wednesday 26

Haynes v. Haynes (Sp. case) Bowman v. Green Thursday ....... 27 Motions and Claims.

Squire v. Wray (F D, C) Dyne v. Custobadie (E) (Petition-day). — Petitions, Short Meech v. Malcolmson (CI) Johnson v. Tucker Friday ......... 28 Causes, Short Claims, Claims, and Smith o. Smith (CI)

Hodges o. Hodges (F D, C) Causes.

St. Aubyn v. St. Aubyn (FD, Clark v. Pedder (F D, C)
Pleas, Demurrers, Exceptions, Causes, C)

Kidd o. North
Saturday ....... 29
Claims, and Further Directions. Roberts v. Roberts

Same v. Same
(FD, C) North v. Ward

(F D, C) Monday ........ 31 'Motions and Ditto.

Same v. Radcliffe

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