In re Leeming. In re Gascoyne.

KNIGHT BRUCE, V. C., said, that he thought that the application to the master was not obnoxious to the 68th order. He would not discharge the master's order, but give leave to the plaintiff to amend generally.

In re LEEMING. In re GASCOYNE.1

July 19, August 5, 1851.

Receiver-Petition-Infant.

A receiver of the rents of real estates descended on an infant appointed on petition, without suit.

THE petition in this case, after stating that certain real estates had descended on the petitioner, who was an infant, prayed for a guardian and maintenance out of the rents, and for a receiver.

Mr. Amphlett, for the petition.

KNIGHT BRUCE, V. C., made the order.

The registrar having declined to draw up the order, on the ground that it was against the practice to appoint a receiver on petition, and that a suit was necessary for that purpose; the matter was on a subsequent day mentioned to the court.

Mr. Amphlett stated the difficulty which had arisen in the registrar's office.

KNIGHT BRUCE, V. C., said that the order might go.

In the matter of Gascoyne a similar petition was presented to that in In re Leeming.

Mr. B. L. Chapman, for the petition.

KNIGHT BRUCE, V. C., made the order.

The registrar stated to the court the same difficulty as that mentioned in the last case as to the appointment of a receiver on petition.

KNIGHT BRUCE, V. C., said that he made the order deliberately. He was not the first judge that had made such an order, and he had very high authority for so acting.

120 Law J. Rep. (N. s.) Chanc. 550.

Nutting v. Hebdin.

NUTTING V. HEBDIN.1

April 23, 1851.

Parties-Want of Interest-Bill of Revivor.

The personal representatives of a defendant having been made parties to a suit by a bill of revivor, pleaded that their testatrix assigned her interest pendente lite, and that they never took any interest in the subject-matter of the suit. The plea was allowed.

A SUIT had been instituted for carrying into effect the trusts of a will, under which Isabella Hebdin became entitled to one sixth of the estate. In 1850 Isabella Hebdin died before the suit was wound up, and in 1851 the plaintiff filed this bill of revivor against her executors to have the suit and proceedings revived against them.

To this bill the executors put in a plea, "that they had not and never had any right, title, interest, or demand whatsoever to or in relation to any or either of the matters or things mentioned in the bill:" and that by a deed, dated the 23d of August, 1849, Isabella Hebdin had assigned all her interest to Mr. Bennett, by which no right, title, interest, or demand whatsoever in relation to any or either of the matters in the bill mentioned, or comprised in or affected by the several suits, or by the several decrees, orders, or other proceedings in the said bill mentioned, or any or either of them, ever devolved upon, came to, or was or is vested in these defendants as the execu tors of the said Isabella Hebdin.

Mr. Fleming. The defendants have no interest in the subject-matter of the suit, and have raised that defence by plea. An heir may plead a devise, preventing an estate descending upon him, if he is made a party as heir, and personal representatives might plead that no interest vested in them. Mitford's Pleadings, 235; Beames on Pleas, 131.

Mr. Amphlett, in support of the bill. If the suit become imperfect by the death of Isabella Hebdin, the plaintiff had no other course but to revive it. The office of a bill of revivor was only to place the suit in the situation it was in when it abated: if there was any defect then existing it could not be corrected by demurrer-Metcalfe v. Metcalfe, 1 Keen, 74; s. c. 5 Law J. Rep. (N. s.) Chanc. 340. No assignment pendente lite could affect the rights of the parties to the suit The Bishop of Winchester v. Paine, 11 Ves. 194. A party was subject to the costs of the suit, and his personal representatives, therefore, were subject to the same liability.

The MASTER OF THE ROLLS. Isabella Hebdin had no interest in the property at her death; she had parted with that, and her executors by their plea say they never acquired any interest in the property by

120 Law J. Rep. (N. s.) Chanc. 555, 14 Beavan, 11.

Ward v. Homfray.

her will; but though she had no interest in the property at her death, and though it was not proper to bring her personal representatives before the court in respect of what she had parted with, still the only mode of stating that fact to the court was by a plea of want of interest; and as no error had been shown, it must be allowed.

WARD V. HOMFRAY.1

April 24, May 1, 1851.

Witness-Examination of Plaintiff vivâ voce-Master's OfficeJurisdiction.

The court has no jurisdiction to order a plaintiff to be examined viva voce before a master under a decree.

By a decree, made in the cause in 1847, accounts were directed to be taken between the plaintiff and the defendant: the parties were directed to produce all deeds, papers, &c., and to be examined upon interrogatories as the master should direct. Under this decree the plaintiff was examined upon interrogatories, but his examination was unsatisfactory; and the defendant now asked that he might be at liberty to examine the plaintiff vivâ voce.

Mr. Walpole and Mr. W. T. S. Daniel, in support of the motion. The 72d order of 1828, Ord. Can. 27, enables the master to examine parties coming in under a decree upon interrogatories, or vivâ voce, but there is no order with reference to the examination of parties in a cause. In Ex parte Saunderson, 2 Cox, 194, it was thought that, under an order similar to the present, the master might have examined the parties vivâ voce, though they had been examined upon interrogatories, but he made an order upon the petition for their examination vivâ voce. Under the words of this decree the plaintiff could not be examined vivâ voce. If, therefore, the master could not get the whole truth, the only means of supplying the deficiency was by an examination viva voce. It is stated in Seton on Decrees, p. vi. that the usage of the court for many years was to have the defendant brought before the chancellor and examined vivá voce, and that the "calendars" afforded evidence of that practice. The jurisdiction of the court to examine a witness vivá voce to ground a prosecution for perjury, was decided in Moore v. Aylet, 2 Dick. 641, by the Court of King's Bench, and also by the House of Lords in a writ of error. In Farquharson v. Balfour, Turn. & Russ. 184, 197, the defendant was examined personally after a fourth insufficient answer. The question was, whether the court had the power to require from the parties Yes or No to the

120 Law J..S. Rep. (N. s.) Chanc. 556.

Oldfield v. Cobbett.

question if a fact was true. In this case the contest has lasted for years; the master was unable to arrive at the truth; and though the defendant was willing to be examined, the plaintiff was not. The question was, therefore, whether the court had jurisdiction.

Mr. Roundell Palmer and Mr. Frith were not heard, but they stated that the case of Ex parte Saunderson was a decision in Bankruptcy, and that a similar application had been made to Vice-Chancellor Knight Bruce in Phelps v. Prothero, 2 De Gex & Sm. 285; s. c. 17 Law J. Rep. (N. s.) Chanc. 404, and refused, and that a similar application had been refused by Sir C. C. Pepys, M. R. in 1834 in an unreported case of Dillon v. Coppin.

The MASTER OF THE ROLLS. In the absence of authority, I cannot vary the practice of the court, or depart from the course hitherto followed. I consider myself concluded, and cannot make the order asked; and I must refuse the motion with costs.

OLDFIELD V. COBBETT.1

May 1, 1851.

Feme Covert-Rights of Suitors.

A wife, in person, has no right to be heard on behalf of her husband upon an application by him to the court.

THIS was a motion, by Mrs. Cobbett, on behalf of her husband, asking for an order nisi for a supersedeas of a writ of attachment, under which her husband was confined in the Queen's Bench Prison.

The MASTER OF THE ROLLS. The Court of Queen's Bench has decided that a wife has no right to appear in a civil suit, and conduct the case of her husband. In that decision I concur, and consider that the same rule applies in this court, and consequently I must decline to hear you.

Cobbett v. Hudson, 15 Q. B. Rep. 181, n.; Doe d. Bennett v. Hale, Ibid. 171; s. c. 19 Law J. Rep. (N. s.) Q. B. 353.

1 20 Law J. Rep. (N. s.) Chanc. 557. 14 Beavan, 28.

Tapp v. Tanner.

THE MERCERS COMPANY V. THE WITHAM NAVIGATION COMPANY AND THE GREAT NORTHERN RAILWAY COMPANY.1

May 6, 1851.

Affidavit-Swearing in Court.

An affidavit will be permitted to be sworn in open court in case of urgency.

Mr. Lloyd. An injunction has been this morning granted against the defendants in a matter of some importance. I have been instructed to move at the rising of the court that it may be dissolved, and am instructed now to ask that an affidavit wanted for the purpose of the motion may be now sworn in open court. It is the urgency of the application that induces me to ask for a departure from the usual practice.

The MASTER OF THE ROLLS acceded to the request, and allowed the affidavit to be sworn in his presence by the registrar.

TAPP v. TANNER.2

January 7, 23, 1851.

Costs, Allowing Suit to proceed for.

The defendant having satisfied the demand for which the suit was instituted, the court refused to allow it to be proceeded with for the costs; but upon the terms of an agreement, to which the plaintiff had consented, but which the defendant had not strictly observed, ordered the defendant to pay the costs of the plaintiff out of pocket in the suit and on this notice of motion.

THIS was a motion, by the plaintiff, asking that the defendant, William Henry Tanner, might pay the costs of the suit, including the costs of this application, he having since the institution of the suit satisfied the demand in respect of which it was instituted.

It appeared that Mary Tapp was entitled to an annuity of 201 a year, which Richard Smith in 1819 charged upon certain real estates, of which W. H. Tanner had since become the trustee.

Mr. Tanner made default in payment of this annuity, and upon the institution of this suit the defendant neglected to put in his answer, and an attachment was issued against him.

Mr. Tanner then proposed to pay the arrears, and also to purchase a government annuity for the life of the plaintiff, if she or her trustees would pay the difference between the expenses out of pocket and the full costs of suit. These proposals were agreed to on behalf of the

1 20 Law J. Rep. (N. s.) Chanc. 557. 14 Beavan, 20.

220 Law J. Rep. (N. s.) Chanc. 559.