to narrow the operation of this section, as contended for, it would be in effect to render the section inoperative. LEFROY, B.-I confess, if this matter were res integra, I should be disposed to agree with Judge Patterson, that the court has no jurisdiction in cases like the present; but there are two later authorities the other way; and though I cannot see my way to the construction of the act of parliament, I can see it very clearly to follow those authorities. COURT OF CHANCERY. plaintiff 6 & 7 Vic. c. 85. The evidence of a defendant, who might have been made a co-plaintiff, is admissible for the plaintiff under the provisions of the 6 & 7 Vic. c. 85. The testator in the cause devised certain lands to his daughters Rebecca Matilda, and Anna Maria Sproule, the latter, in the testator's lifetime, being about to marry the defendant, Morgan, the testator, by a codicil to his will, settled her portion of the land to her separate use; after his death Re becca Matilda married the plaintiff Harpur. The bill was filed by the plaintiff Kelly as the trustee of Mrs. Harpur, against the defendant Bennison, who had been the agent of Mrs. Morgan and Mrs. Harpur over these lands, for an account of the rents and profits received by him in that capacity. Mrs. Harpur and her husband were plaintiffs, and Mr. and Mrs. Morgan defendants. Mrs. Harpur and Mrs. Morgan took as tenants in common under the will. To prove the reception of the rents and profits of the lands by the defendant Bennison, the evidence of James Morgan, the husband of Mrs. Morgan, was tendered by the plaintiffs and objected to. Monaghan, Att.-G. with Christian, C. and there would be more difficulty, but it goes on to say "And that any interest which such defendant so to be examined may have in the matters, or any of the matters in question in the cause, shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness." Now what interest could a defendant have in matters in the cause when examined for the plaintiff? It cannot mean an interest to defeat the plaintiff's case, for in that case the evidence would be receiv able against the party who examined him. It must mean an interest similar to that of the plaintiff. Then, if we admit the evidence of a defendant in a similar interest, where can we draw the distinction? In the present case, although the witness has not an interest in the actual monies to come to the plaintiff, he has an interest on the same side as the plaintiff, for the bill prays the payment to him, or to his wife which is the same thing, of monies to be found due on taking the account prayed in the bill; but I cannot read the Act in any way save as read by Sir J. Wigram. Perhaps if a case like this had been sug gested to the Legislature, they would have prevented any such arrangement of the record, to use no harsher term, being made available for the purpose of admitting evidence which would have been excluded by its natural and proper frame. But the case not having been provided for, and the authorities upon this point being balanced, I will give the preference to V. C. Wigram's construction-I shall receive this evidence. IRWIN V. ROGERS.-Nov. 14. Evidence-Stat. 6 & 7 Vic. 85-Co-Defendant. A defendant claiming under a deed impeached by the bill, may be examined in support of that deed on behalf of co-defendants. This was a bill filed to set aside, or declare revoked, a voluntary conveyance by which, amongst other provisions an annuity of £20 per annum was F. L. Smith, for the plaintiff, cited Wood v. Row-granted to the defendant Byrne. Byrne was excliffe, (6 Hare, 183.) amined on behalf of Catherine Hopkins, another defendant, in support of that conveyance. Green, Q. C. with Martley, Q.C. for the defendant, Bennison, cited Monday v. Gayer, (1 Dé G. and Mon. 182.) LORD CHANCELLOR.-I will receive this evidence on the authority of Wood v. Rowcliffe decided by Sir James Wigram, V. C., I think less harm will be done, by receiving than by excluding it, but if the parties wish I will give them an opportunity of sending it, if they be so advised, to obtain the opinion of the highest tribunal on the construction of this Act. When I consider its language and intention, I can put no other construction on it than that of V. C. Wigram. It applies to proceedings both at law and in equity. If the section stopped at the word "respectively" in the first part of the proviso, the effect of that might have been to exclude the practice of this Court with respect to the examination of parties to the record as witnesses. prevent that operation it is provided "That in courts of Equity any defendant to a cause pending in any such court, may be examined as a witness on behalf of the plaintiff, or of any co-defendant in any such cause, saving jus exceptions." If it stopped there, But to J. D. Fitzgerald, Q. C., with F. Fitzgerald, offered the depositions of the defendant Byrne. Brewster, Q.C., with Christian, Q. C. and Drury, opposed the admission of this evidence. This is, in fact, the defendant being examined for himself. When your lordship decided Kelly v. Bennison, Clark v. Wyburn, (12 Jur. 613), was not cited. LORD CHANCELLOR.-The proviso as to courts of Equity overrules all the prior saving. If the act be defective, Parliament alone can remedy it. As I said in Kelly v. Bennison, I must take the words as I find them. I will receive this evidence. entered into by the defendant with one E. R., by which he was to pay the said annuity, and that certain premises had been assigned to secure the same. That after the death of E. R., S. M. R. procured from defendant an assignment of said premises. The defendant by his answer stated, that the annuity had been assigned to him by the plantiff. The bill was then amended, and prayed this assignment should be declared fraudulent and void. Held upon demurrer that the case made by the amended bill was no misjoinder, nor was there any departure from the case made by the original bill, it being competent for a plaintiff to put forward facts which avoid the defence. Held also, that upon the statements in the bill S. M. R. was not a necessary party, although she might be so when the evidence came to be read at the hearing. be declared entitled to said annuity, and that the defendant might be compelled to pay, and to secure to him an annuity of £60 per annum, pursuant to the directions contained in the will of the testator, John Tomlinson. To the amended bill, the defen dant demurred. "For that the relief sought by the bill, to carry into execution the trusts of the will of John Tomlinson, and the accounts and direc tions therein prayed, and the further relief sought by the amended bill, that the indenture of the 17th of April, 1837, and the account set forth in defendant's answer, should be declared fraudulent and void, appear to relate to several and distinct matters, and which ought not to have been joined together, and that Sarah Maria Richardson should be a party to the said bill, inasmuch as it is stated therein, that she obtained the re-assignment in bill mentioned. That the case made by the amended bill was a departure from that in the original bill, inasmuch as the defendant is there sued as executor, whereas in the amended bill he is sued as trustee." Martley, Q.C. and Dobbs for demurrer-In its original form, the bill was simply that of an annuitant, praying for payment of his annuity; by the amended bill a totally different case is made, and relief is sought against the defendant as trustee. The bill prays that the assignment to him from his cestui que trust may be set aside, this is a clear misjoinder, Salvidge v. Hyde, (5 Mad. 146); Campbell v. Mackay, (1 My. & Cr. 619); Ward v. Duke of Northumberland, (2 Anstr. 469). The bill states that the annuity was reconveyed by the defendant to Sarah Maria Richardson, now she must have been aware that the relationship of trustee and cestui que trust existed between the plaintiff and defendant, and if the defendant was not able to pay this annuity, she could be decreed to pay it, she is therefore a necessary party to the amended bill. Hughes, Q.C. and H. Smythe, in support of the bill, cited Darcy v. Beytagh, (F. and K. 481) on the point of multifariousness. The bill stated that John Tomlinson, the testator in the cause, by will bearing date the 30th May, 1835; bequeathed to the plaintiff Patrick, as much of his personal property as would purchase an annuity of £60; and by a codicil, appointed the Rev. William Cox (the defendant) sole executor. That the testator died on the 29th of June, 1835. That the will was duly proved by the defendant, and that plaintiff was informed that the defendant had entered into an agreement with one Edward Richardson, whereby Richardson was to pay said annuity to the plaintiff, and as a security for payment had assigned certain houses to the defendant. That on the 13th of December, 1837, after the decease of said Edward Richardson, Sarah Maria Richardson his widow obtained an assignment of said houses, and that some small sums had been paid on a count of the annuity. The bill prayed that the trusts of the will of John Tomlinson might be carried into execution. That an account might be taken of the sums due to plaintiff. That the defendant might admit assets, or that an account might be taken of the personal estate and effects of the testator, and his assets applied in a due course of administration. The defendant in his answer, stated, that by an indenture dated the 17th of April, 1837, and made between plaintiff of the one part, and defendant of the other; the plaintiff assigned the said annuity to the defendant, who, in consideration thereof covenanted to pay for the board and lodging of the plaintiff. The answer also set forth an account as between plaintiff and defendant, by which a large balance appeared to be due to the latter. The bill was then amended, stating that the annuity given to the plaintiff was in said will directed not to be sold or disposed of by him, as from infirmity of vision and understanding, plaintiff was without knowledge of the world. That the defendant had applied to his own use, the money received from Sarah Maria Richardson. That the plaintiff was induced to execute the assignment to defendant by fraud, and that the same was void, having been obtained by a trustee for his own benefit, and in violation of the testators will. The amended bill then prayed, that the said indenture of the 17th day of April, 1837, and the said account might be declared void as against the plaintiff, and that notwithstanding said indenture of assignment, and the account, that the plaintiff might MASTER OF THE ROLLS.-The bequest to the plaintiff directed that the annuity was not to be sold, or disposed of by him, as from imperfect vision and understanding he was without knowledge of the world, so that on the face of this pleading, the trusts which Mr. Cox as executor undertook to carry into execution, and the incapacity of the plaintiff with respect to want of knowledge of the world are clearly set forth, yet with full knowledge of this fact, the executor fraudulently and by misrepresentation-such being the statement in the will, which, on the argument of this demurrer I am entitled to assume to be true-procures to himself a conveyance of this annuity. In the amended bill there is no departure from the case made by the original bill, it merely gets rid of the defence set up by the answer, and if a fraudu lent instrument be set up, it is competent for the plaintiff, by amendment, to put forward any facts that will avoid the defence. I am entitled to look to the answer, for the purpose of ascertaining if it has overruled the demurrer; but I can only look to it for that purpose, and I must take the statements in the amended bill, with respect to the a signment to Sarah Maria Richardson, without READ V. Dublin, DUNDRUM, AND RATHFARHAM regard to those contained in the answer. The refuse the costs of this petition; when a suit is argument on the part of the defendant is, that the pending, if another creditor should file a bill, I trusts of the will have been fulfilled by the pur- could not stay proceedings until a decree is obtainchase of the annuity by him, and that if the plain-ed, it would be very desirable that some alteration tiff accepted of this arrangement in satisfaction of should be made in the practice. In the incumbered his legacy, it deprives him of his right to it. I do estates act, there is a provision, I believe, that not consider that the existence of this second in- pending any proceedings under it no suit can be strument amounts to a satisfaction of the plaintiffs instituted. I must, however, take the case as I find claim under the first, there were some dealings it. The only order I can make is to extend the between him, Richardson, and the defendant, when receiver already appointed in the suit to the petithe annuity was purchased, but this does not seem tion matter. to have been with the assent of the plaintiff, and I cannot conceive how the trusts of the will can be considered as fulfilled by this transaction to which the plaintiff was no party. I do not see, therefore, any facts on the face of this will, to shew that these trusts have been carried into execution, and if not, there is no ground for the objection of misjoinder, as to the objection for want of parties, putting out of consideration any passage read to me from the answer. I find no statement in the bill, to shew that Mrs. Richardson is a necessary party, the course taken by the defendant is very incorrect, for I am forced to decide this demurrer, knowing there are other facts in the case, but which being contained in the answer are not properly before me, besides the prayer of the bill is simply to carry into execution the trusts of the will, and no relief is prayed against her. I do not now offer any opinion, as to whether, when the answer is read, Mrs. Richardson may not be a necessary party, but upon the vague statements in the bill I do not think she is.-Demurrer overruled. TOWNSHEND v. BARRY.-Nov. 6. Practice-Appointment of a receiver. Pending a creditors suit; a petition was presented by a judgment creditor, a defendant in the suit, for a receiner over the lands in the pleadings mentioned. Held, that the pendency of the suit was not sufficient cause against the appointment of the receiver, and that the peti tioner was entitled to his costs. Sherlock in this case shewed cause against a conditional order for the appointment of a receiver. The petition was presented on the 12th of June last, on the 7th of March previous, a bill had been filed for a receiver over the same lands. To this suit the defendant was a party, and had been served with notice of the proceedings. It is not stated in this petition that the cause was pending, nor is there any allegation that it was not properly conducted; A consent was entered into, in the suit, that if the answers were not filed before the 20th of October, the bill should be taken as confessed, and a receiver appointed, and accordingly on the 4th of November, the answers not having been filed, the bill was taken pro confesso and a receiver appointed over these lands. The petitioner should have informed the court, that the suit had been instituted. C. Kelly, contra-The answers were not filed on the 19th June, when the petition was granted, and we had no means of compelling the plaintiff to proceed in the cause. MASTER OF THE ROLLS.-I do not think I can Practice-Evasive answer—Side bar rule to elect. If a plaintiff proceeds at law and in equity, a defendant cannot, immediately after a short or evasive answer, enter a side bar rule, calling on the plaintiff to elect, such a rule is entered at the peril of the defendant, and if upon exception the answer is found not to be full, the rule will not be effectual. This was a motion shew cause against a side bar order to elect entered by the defendant. The bill in this case was filed, to compel the specific performance of an agreement, for the sale of certain premises. On the 7th of April, 1848, the defendants filed their answer, to which the plaintiff excepted for insufficiency, on the 13th of June a further answer was filed, and on the same day a side bar rule was entered by the defendant, that the plaintiff should elect whether he would proceed at law, or in equity. On the 16th of June, notice of motion was served by the plaintiff, to set aside this order for irregularity, and on the same day, notice of exception to the second answer was served. This exception was allowed, and a further answer put in, before the notice of the 16th of June came on to be moved; on that motion his Honor directed that the plaintiff should be at liberty to serve a notice of motion, and shew cause against the side bar order; instead of serving this notice, the plaintiff, by mistake,-served notice of an application for a reference to the master, to enquire whether the case was a proper one to put the plaintiff to his election. Brewster, Q.C. with H. West.-The practice in England is to enter a side bar rule. That the plaintiff shall elect within eight days after serving notice, (1 Dan. Ch. Pr. 791). The practice in this country, as settled by Hollyer v. Hedges, (9 I. E. R. 37), is to enter a rule forthwith after answer, that the plaintiff shall elect in eight days, this rule is to be entered at the peril of the defendant, and if the answer should be insufficient, the rule is a nullity, for until full answer, it is impossible for the plaintiff to know whether he will elect. In the present case, if no further answer was put in, the case would be as if there were none, how then can it be said, that because a party afterwards files an answer, the side bar rule is to be continued as if the answer was full in the first instance. Butt, Q.C. and T. Darley, contra.—A sufficient answer is now filed to support this side bar order, according to the case of Hollyer v. Hedges, there is no condition annexed to the entry of the rule. The notice is irregular, by the notice of 29th July, plaintiff asks for a reference, and complies with the side bar order, and if this order is now set aside, he would be entitled to enter it again without any objection. This is a clear case to put the party to his election, the proceedings at law and equity are for the same matter. MASTER OF THE ROLLS.-The former practice in England having been found inconvenient, was altered by the general orders of 1839, since adopted in those of 1845. At the end of eight days after answer, a defendant may now enter an immediate rule calling on the plaintiff to elect. The question I had decided in Hollyer v. Hedges, was, whether the side bar rule to elect could be entered in eight days after answer, or was to be postponed for six weeks, the time the plaintiff had to except, and there was no case on the books in which the point had been expressly decided, and I considered it more convenient to make the practice here and in England as nearly in conformity as possible, but it never was intended that a party was to be at liberty to put in an evasive answer, and call upon the plaintiff to elect. The plaintiff should `not be obliged to do so, until he sees what defence is made. A defendant ought to know if answer is short, and, whether it is or not, the rule is taken, at the peril of the defendant. I will not now decide whether it is necessary to enter a new side bar rule for the effect of the notice of motion by the plaintiff's calling for a reference is to treat the answer as sufficient, and it would not be reasonable to allow an amendment of that. On this notice of motion for the purpose of setting aside this rule, which raises the real question between the parties, I will act upon the plaintiff's own construction of the order, and treat it as if the eight days commenced upon the 9th of July. I will make the order of reference in the words of the case of Mills v. Fry, (3 Ves. & B. 9,) and after the report I will dispose of the costs of the motion. It is not necessary to decide whether a second side bar order is necessary, that objection having been waived. RICHARDSON v. Ansten.-Nov. 13. Practice-Receiver. A bill filed to raise the amount of a judgment was taken pro confesso; motion for a receiver granted, although the bill did not pray for a receiver. Johns moved for a receiver.-The bill in this case was filed to raise the amount of a judgment and had been taken, pro confesso, against John Ansten, the principal defendant. An answer had been filed by him since the order was made. Pitt Kennedy, for John Ansten, the inheritor. This motion should be refused; there is an answer on the file, and if it is not regular the plaintiff should apply to have it taken off for irregularity. Cheyne for M'Carthy, a mortgagee. In this case a receiver cannot be appointed as the plaintiff does not pray one by his bill. Johns.-The case of Malcolm v. Montgomery, (2 Moll. 500,) decides that it is not necessary to pray for a receiver. Kennedy. The case of Meredith v. Wise (1 Moll. 26, note,) decides the contrary. MASTER OF THE ROLLS.-In this case I must grant a receiver. The bill prays for a sale, and the inheritor has no right to oppose the application; as for the mortgagee, it will be for his benefit to secure the rents. MOLONY v. O'BRIEN-Nov. 13. Practice-Witness-Re-examination. Where by mistake of the examiner, a witness was not examined to two interrogatories, a re-examination was allowed after publication had passed, and the cause was set down for hearing. Gayer, Q.C. applied that Mr. Rollestone, a witness for the plaintiff, might be examined as to two additional interrogatories, publication having passed. By mistake of the examiner, the witness had been examined to the eighth and ninth interrogatories only, and the error was not discovered till after publi cation had passed, on the 2d of October. On the following day the cause was set down for hearing, and, on the 24th of October, notice of the present application was served. A consent had been prepared by the plaintiff, but the defendant had refused to sign it. Gayer, with H. Richards. This is a proper case for the court to permit the witness to be examined. If the mistake originated with the examiner, it is the duty of the court to grant the application, Potts v. Curtis, (1 Yo. Ex. Č. 343). J. Greene contra. It is stated that the witness told the examiner that it was not necessary that he should be examined to those interrogatories; and, although this is denied by Mr. Rollestone, the exa miner should be sent for to ascertain how the fact is; this was the course adopted in Ingram v. Mitchell, (5 Ves 297.) In all the cases in which a re-examination has been allowed, it has appeared by affidavit that the depositions have not been seer. MASTER OF THE ROLLS.-In this case the plaintiff and his solicitor are free from all blame. The list of witnesses was handed to them, and amongst them Mr. Rollestone, who was to be examined to the tenth and eleventh interrogatories; his not being examined was clearly a mistake. I consider the case of Ingram v. Mitchell does not apply. This application does not require any authority in support of it. I have no hesitation in making the order, except so far as the notice seeks costs against the examiner; for in a case such as this I will be slow to make the officer pay costs. The examiner, how. ever, should be careful not to take any directions from the witnesses, for, if any witness refuses to answer, it is the officer's duty to report the matter to the court, and the witness would be liable to attachment. I cannot make the defendant pay costs because he would not sign the consent, however, I will not give him any costs of appearing on the motion. KELLY V. Fox.-Nov. 14. Practice-Witness-Order pro confesso. A defendant against whom an order has been made to take the bill pro confesso, may be examined as a witness on the part of the plaintiff. This was an application on behalf of the plaintiff for liberty to examine a defendant against whom the bill had been taken pro confesso. Pilkington-There is no direct authority in support of this motion, but it falls within the principle of the rule as laid down by Lord Langdale, in the case of Holmes v. Mayor of Arundel, (4th Beav. 155, 335.) By allowing the bill to be taken pro confesso, the defendant in point of fact admits the truth of the allegations contained in it, and it cannot now in any way affect him to be examined as a witness to those statements. MASTER OF THE ROLLS.-I have made one order of this kind since I sat here, and I then felt the difficulty of there being no authority on the point; however, as I consider this application falls within the principle of the case referred to, I will make the order. of EQUITY EXCHEQUER.-Nov. 7. Practice-Course of proceeding under 1 W. 4, c.73, payable half yearly. "The declaration then stated a covenant "by the said John Kelly, his heirs, executors, administrators, and assigns, that he or they should not during the said term demise, or assign the said lands without the consent in writing of the said plaintiff, his heirs, or assigns, and in case such letting or agreement should be made, that the lease was to be void, and that it should be lawful for the plaintiff, his heirs or assigns, to re enter upon the demised premises, or to charge the said John Kelly double the said reserved yearly rent, to be recovered in like manner as the said reserved yearly rent, at the option of the plaintiff." The declaration then stated, "that John Kelly devised his interest in the premises to the defendant and died; that the defen. dant entered, and that such assignment was made without the consent in writing of the plaintiff. By virtue of which said premises, the plaintiff became The defendant demurred, and assigned for cause ; entitled to double the said reserved yearly rent." First, that it appears upon the said declaration, that the double rent in the declaration mentioned, was to be charged against John Kelly, and not against his assignee; secondly, that according to the terms of the said indenture, the said John Kelly alone was to be charged with the said double rent. Joinder in demurrer. Kernan and J. D. Fitzgerald, Q.C. in support of the demurrer. The declaration in this case, does not aver, that a covenant was entered into by the assignee himself, or by any one on his behalf. It is a rule of pleading, that all those parts of the contract, which are material for the purpose of en. 1 W. 4, c. 73, s. 1. The affidavit stated that A. B. had obtained, as of Trinity Term, 1848, a judgment in the Queen's Bench against C. Dabling the court to form a just idea of what the late proprietor of a certain newspaper, for £500 damages and costs, in an action for libel against C.D. That A. B. had issued a Fi. Fa. accordingly, and there was a return of nulla bona; that defendant had no goods or chattels to satisfy the condition, and that deponent had received letters purporting to have been written by the defendant, stating that the defendant was unable to satisfy the judgment, and that deponent believed defendant to be in insolvent circumstances, and the amount of sureties. QUEEN'S BENCH.-MICHAElmas Term. 66 AYLMER V. CONLAN.-Nov. 7. Pleading-Covenant against Alienation-Penal rent-Liability of assignee-11 Ann. Ir. c. 2. Declaration stated, that J. K. covenanted with G. A. not to assign certain premises, without his consent in writing, and in case of such assignment, that it should be lawful for G. A. to reenter, or to charge J. K. double the reserved yearly rent." Held on special demurrer, that the assignee of J. K. was not liable upon the covenant, as set forth in the declaration. COVENANT by lessor against assignee of lessee. Declaration stated that by indenture of release bearing date, &c.," the plaintiff demised certain lands to one John Kelly, his heirs and assigns, for a term of two lives and 21 years, at the yearly rent of £70, tainty and precision, Blakey v. Dixon, (2 Bos. and contract actually was, should be stated with cerPull. 321); Andrew v. Whitehead, (13, East. 102) The declaration states a covenant to charge John Kelly, and not the assignee of John Kelly; the plaintiff was bound to aver in his declaration a covenant on the part of the defendant. The asdeclaration; in fact no breach is averred, and it is signee is not liable upon the lease as stated in the not stated for what time the double rent was to last. Hamilton Smythe, and Napier, Q.C. contra.-It must be admitted, that it ought to appear in the declaration, that the covenant was entered into on behalf of the assignee. The covenant is clearly binding upon John Kelly, his heirs, executors, and administrators, and the assignee becomes liable by the operation of the 11th Ann. Ir. c. 2, s. 6., enacts "that all and every person and persons, who, from and after the 25th of march, 1712, shall take any assignment of all the residue of any term of years, or life or lives, their executors or administrators, shall be liable to all the covenants whereunto the lessees, their executors, and administrators, were liable by or by virtue of the said leases," a statute peculiar to this country. The legal effect of the lease is to charge the lessee, and the assignee is charged by force of the statute. If, therefore, the assignee is liable to all the covenants, the assignee's liability is co-extensive with the lessee's, Earl of Lucan v. Gildea, (2 Hud. and Br. 635). This statute came under the consideration of this court the case of Grogan v. Magun, (Al. and N. 366; s. c. 2, Jones, 307), and it was there held, that the |