298

Superior Courts: Common Pleas.—Exchequer.

the party would be finally protected and his
property distributed. The order too must be
one for distribution and protection, in order,
under the 10th sec. of the former act, which
was enlarged by the latter, to amount to a good
bar to an action like the present, and the de-
fendant was bound to prove it in that sense at
the trial. Now, the order produced is only an
order under the 28th sec. of the 7 & 8 Vict. c.
96, which says nothing about its being a bar
to an action. As therefore this order is not
such as either the 10th sec. of the 5 & 6 Vict. c.
116, or the present plea apply to, there has
been a failure of proof at the trial, and the rule
must be made absolute.

Cresswell and Williams, J. J., concurred.
Rule absolute.*

Court of Exchequer.

Harrison v. Thompson and Bryant. Jan. 12,

1848.

AFFIDAVIT.—JURAT.

When an affidavit is sworn by more than one deponent, the name of each deponent must be inserted in the jurat.

obtained. All the particulars furnished had been for money paid, (varying the sums and credits,) without stating to whom paid or otherwise particularizing any of the payments. This last order only had the words "dates and items" inserted. From the plaintiff's affidavit it арpeared that he was not capable of giving the names, &c., the books, papers, and vouchers containing the same being in the custody of the defendant. There was also an affidavit by the defendant that the plaintiff had a copy of all such documents as were necessary to furnish the required information.

Alderson, B. The plaintiff does not state in his particulars that the books, papers, ard vouchers contain the names. The defendant ought to have better particulars, by the plaintiff's stating the names, or in some manner referring to them.

Platt, B. The words "dates and items" are not in the printed forms, but are frequently improperly introduced by the attorneys, and the judge if he sees them will always strike them out.

Per Curiam. The words "dates and items" must be struck out.

Strange. Jan. 11, 1848.

PLEADING.

The words "is a holder" in the 26th section of 8 Vict. c. 16, mean was a holder at the time of the calls made.

Atherton, in showing cause against a rule obtained by Lush, took a preliminary objection. Belfast and County Down Railway Company v. that the affidavit upon which the rule had been obtained was not in conformity with the rule of court of Trinity Term, 1 G. 4, 8 Price, 501, which requires that when an affidavit is made by more than one deponent the name of each of the deponents must be stated in the jurat; whereas in the present case the jurat did not contain the names, but was merely in this form :-"Sworn by both deponents at my chambers, Rolls' Gardens," &c. In support of the application for costs he cited Cobbett v. Oldfield and others, 16 Law Jour. N. S. Exch. 150; Blackwell v. Allen, 7 M. & W. 146.

Lush, contrà, wished to cite some analogous cases, but

THE declaration being for the amount of calls in the above company, stated that "the defendant before and at the time of the com mencement of this suit, was and still is the holder of certain shares in the said company, and was and is still liable," &c.

To this the defendant pleaded, besides never indebted, 2ndly, "That at the time of the commencement of this suit he was not the holder Per Curiam. The rule of court is plain, of shares in the said company," &c.; 3rdly, distinct, and absolute. This rule must be dis-That he was not at the time of the calls made charged with costs of appearance.

the holder," &c.

A rule having been obtained to show cause why either of the latter pleas should not be struck out,

Atkinson contended that under the particu lar form of the declaration both were requisite to meet the facts.

Ogle, contrà. "Never indebted" would cover the whole of the pleas. The declaration was according to the form given by the statute Vict. c. 16, s. 26.

8

Parke, B. The form of declaration has not been framed by a very careful pleader. "Is a holder" means was a holder at the time the calls were made. The only person liable to the amount of calls is the person who held them at the time of making the calls, and no other.

Per Curiam. The second plea must be amended by striking out the words "at the time of the commencement of this suit," and the third plea be struck out altogether.

Analytical Digest of Cases: Courts of Equity.

ANALYTICAL DIGEST OF CASES.
REPORTED IN ALL THE COURTS.

299

Courts of Equity.

EVIDENCE.

ADMISSION.

office of guardian of a parish, had joined in prosecuting a suit against another guardian, and in appropriating the parish money towards ceased to be a guardian: Held, that under the the expenses of the suit, and had afterwards circumstances he had not such an interest in the suit as to prevent him from being examined as a witness before the Master, on behalf of the plaintiffs. Pascall v. Scott, 34 L. O. 153.

CREDITOR'S SUIT.

Answer.-Trustee and cestui que trust.-A. transferred a sum of stock into the joint names of herself and B., and then informed B. of the transfer, expressing her confidence that B. would fulfil the wishes, which 4. might express to her, respecting the same. After the death of A. her administratrix filed the bill against B. for the transfer of the stock as part of the per- Decree. In a creditor's suit, where no evisonal estate of A. B., by her answer, admitted dence was given in the cause of the plaintiff's the transfer of the stock into the joint names debt, the usual decree was made on an affidavit of A. and B., and stated that A. afterwards from of the testator's signature to the promissory time to time told her (B.) what part of the note on which the debt was founded. Gascoyne stock and dividends should be transferred and v. Lamb, 34 L. O. 525. paid to different persons, and, subject to such dispositions, desired her to hold the remainder for her own use; and B. also, by her answer, stated that she had, in pursuance of such directions, paid the several sums to the persons mentioned: Held, that the plaintiff having read

from the answer the admission of the transfer upon trust, was bound also to read from the answer the directions or declarations of A. as to the trusts upon which the fund was to be held and disposed of.

That the plaintiff ought not, in the circumstances of the case, to be allowed to withdraw that part of the answer which had been read.

That as to B.'s statement of the declaration of A, that the residue should belong to B. herself, the court would direct an issue, giving the plaintiff an opportunity of examining B. thereon as to the directions given to her by A. That the plaintiff was not bound to read the statement in the answer as to the fact of the payments to the other persons having been made; and that B. was bound to prove by other evidence the payments which she had made in pursuance of the trusts. Freeman v. Tatham, 5 Hare, 329.

Case cited in the judgment: Rider v. Kidder, 10 Ves. 360.

ANSWER, READING.

See Admission; Executor; Married Woman.

BANKRUPT.

DEATH.

under the seal of the General Registry Office,
A certified copy of the register of a death
ficient evidence of the death.
accompanied by an affidavit of identity, is suf-
Parkinson v.
Francis, 15 Sim. 160.

DEFENDANT.

Witness.-Although relief is prayed against a defendant, he may be examined as a witness by a co-defendant, against whom, independently, relief is prayed. Ashton v. Parker, 14 Sim. 632.

And see Examination.

EXAMINATION OF DEFENDANT.

1. Witness.-A. filed a bill against B. and C. B. was the principal defendant, and the only question in the cause was between A. and him, but the court could not make a complete decree without an account being taken as between A. and C., and as A. had examined C. as a witness in the cause, the court held that no decree could be made in the suit, and dismissed the bill, but without prejudice to the filing of a new one. Champion v. Champion, 15 Sim.

101.

Case cited in the judgment: Bernal v. Marquis of Donegal, 3 Dow. 133.

2. Notwithstanding the 6 & 7 Vict. c. 85, the evidence of a co-defendant cannot be read where both defendants have exactly the same cases. Munday v. Guyer, 34 L. O. 463.

EXAMINATION OF WITNESSES.

Admission of Defendant's state of facts after publication of depositions on the plaintiff's.

Vendor and Purchaser.-A bankrupt from whom a purchase had been made was examined as a witness for the plaintiff in a suit instituted by the purchaser. Upon an objection being taken to nis evidence, on the ground of his interest in the surplus of his estate, the cause A defendant who, under special circumwas ordered to stand over. A release was then stances, has not been required by the Master to executed, and liberty was given to the plaintiff put in a counter-statement to the plaintiff's to prove the execution, and to examine the state of facts, may be allowed after publication bankrupt upon the old interrogatories, or upon of the depositions on the latter, to bring in such the new, the plaintiff paying the costs as be- counter-statement and examine witnesses for tween solicitor and client. Bousfield v. Mould, the purpose of supporting it, but not for the 34 L. Q. 597. purpose of disproving or contradicting the facts in the plaintiff's statement. Parkér v. Peet,

COMPETENCY OF WITNESS.

Where a person during the time he held the 34 L. O. 152.

200

EXECUTOR.

Analytical Digest of Cases: Courts of Equity.

Discharge.

NEXT FRIEND.

Cases cited in the judgment: Walker v. Wingfield, 15 Ves. 178; Head v. Head, 3 Atk. 547; Armiter v. Swanton, Amb. 393.

Answer and examination. An order for the examination of a next friend Breach of Trust.-Acquiescence.-On an in- as a witness, if obtained exparte, is irregular, quiry before the Master, the plaintiff read from and especially if it be made pending a reference the answer and examination of the defendant, to the Master as to the propriety of the suit. the executor, an admission that a promissory Palmer v. Horton, 14 Sim. 633. note for 4001. belonging to the testator, had come to the hands of the executor shortly after the testator's death, and the executor was then allowed to read the further statement, that some years afterwards, when the plaintiff, (the sole residuary legatee,) came of age, he had delivered the note to the plaintiff, who thanked him for taking care of it. East v. East, 5 Hare, 343.

FOREIGN COURT.

See Perpetuation of Testimony.

INSOLVENT PLAINTIFF.

1. The court refused to make an order for examining an insolvent who had been plaintiff in the original suit, although his assignees had, in consequence of the defect, filed a supplemental bill for the same objects, and asked leave to examine him. Fisher v. Fisher, 34 L. O. 597.

2. A plaintiff who has become insolvent during the suit cannot be examined by his assignees as a witness in their bill of revivor and supplemental in the cause. On appeal. Fisher v. Fisher, 35 L. O. 8.

OBJECTIONS,

The Master in his report stated, that he had admitted certain evidence, and that thereupon he found certain facts. A party objecting to the admission of the evidence, aud to the conclusion thereupon, cannot open that objection as appearing on the face of the report, without having taken exceptions. East v. East, 5 Hare,

347.

PARTNERS.

A bill having been filed by the plaintiff for contribution from his co-partners in an unsuc cessful adventure, Held, that the evidence of those defendants who had disclaimed all profits and had been released by the plaintiff from all demands by him, was admissible for the pur pose of establishing the fact of the co-partnership. Hills v. Nash, 34 L. O. 596.

PERPETUATION OF TESTIMONY.

Foreign Courts.-Jurisdiction. It is no ob

3. The rule that a plaintiff cannot be ex-jection to the publication of depositions which amined as a witness in the cause is an absolute have been taken in a suit to perpetuate testirule of practice, not depending on the question mony, that the proceedings for which they are whether in the particular case he may or may required are in the court of a foreign country, not be liable for costs. Fisher v. Fisher, 2 or that other depositions taken in a similar suit Phill. 236. in that country have already been published.

Cases cited in the judgment: Hewatson v.
Tookey, 2 Dick. 799; Ewer v. Atkinson, 2
Cox, 393.

ISSUES.

Semble. This court has jurisdiction to per petuate testimony with a view to proceedings in foreign courts. Morris v. Morris, 2 Phill

205.

REJECTION OF EVIDENCE.

A tenant for life in remainder filed a bil against a tenant for life in possession, and a tenant in tail in remainder also filed a bi against the same party, and evidence was taker the evidence in one cause should be read in the in each suit, the defendant not consenting that

Different modes of ascertaining legal right.— A bill by a vicar claiming as such a customary payment of 6d. in the pound on all claims and houses within the parish was, on a rehearing, retained, with liberty to the plaintiff to bring an action, the Lord Chancellor considering this a more proper course than the one proposed to be taken by the court below of direct- other. The court refused to allow that course ing first an issue to try the immemoriality of to be taken, there being no proof that the witthe custom, and then taking the opinion of the nesses were dead or incapable of being exacourt of law upon the validity of such a custom, mined. Blagrave v. Blagrave, 34 L. O. 180. the case being one in which the jurisdiction of this court was resorted to merely as ancillary to a legal right.

Suggestion as to the propriety of going to law first to ascertain the right before filing the bill in this court.

TRUST.

The answer of a trustee, who had handed over a trust fund to a co-defendant in the suit. by whom it had been applied to discharge li bilities of the trustee to himself, is not admis sible for the purpose of raising a case for inNeither party to try an issue directed by the quiry as to whether the co-defendant had not court is precluded by going to trial from after-notice of the trust. Hawks v. Howard, 34 wards appealing against the order by which it L. O. 613. was directed. Butlin v. Masters, 2 Phill. 289.

MARRIED WOMAN.

See Admission; Executor.

VENDOR. AND PURCHASER.

See Issues.

Where a married woman answered jointly See Bankrupt. with her husband, in a suit relating to the wife's separate estate, the court, in the absence of any authority to the contrary, allowed such answer to be read against herself. Callow v. Howle, 35 L. . 65.

VICAR.

WITNESS..

See Competency; Defendant; Examination.