LONDON, JANUARY 15, 1853. ...... 2 In a former number of THE JURIST, when the Chancery Improvement Act had just been passed, we discussed the clauses relating to the oral examination of witnesses, and suggested that the cross-examination of witnesses, who have made affidavits on interlocutory applications, cannot, under the act, take place in court, but must be conducted before the examiner. The point has been so ruled by Sir R. T. Kindersley, V. C., in Smith v. The Swansea Dock Company, (16 Jur., part 1, p. 1130). COURT OF COMMON PLEAS. Lambert and Others, Apps., The Overseers of St. Thomas, New Sarum, Resps.-(Appeal under Registration of Voters Act).-Parliament-County VoteNotice of Objection · 6 Vict. c. 18, ss. 7, 101, Sched A. 5) COURT OF EXCHEQUER. Price v. Hewett.-(15 & 16 Vict. c. 76, s. 80-Pleading and demurring to same Matter-Fraud-Infant) ........ 4 t applicant the immediate relief that he seeks, but, in effect, to determine the cause-that is, by obtaining the opinion of the Court on the point affecting the immediate relief, to make all further proceedings useless. It is on this ground, if on no other, of the highest importance that every means should be provided for making the investigation and determination of interlocutory applications as complete and accurate as possible, since thereby often a prolonged litigation may be prevented. We come, then, to the material point, whether it is not much better that the cross-examination of a witness should take place before the judge who is to hear the matter in which he has been examined in chief, than before an official person, not a judge, who is merely to take down his evidence, without its being necessary that he should form any idea of the merits of the case of this mode of proceeding have been so often discussed This is one of the defects of the act; whether the omission was intentional, or the result of a slip, we have, of course, no information; but that it is a defect is sufficiently obvious—that is, if we are to assume that oral cross-examination of witnesses upon affidavit is 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 between that and the hearing of a motion, which should make the oral cross-examination of witnesses before the Court in the latter case useless? The distinction which actually exists between an interlocutory application and the hearing of a cause, has, in truth, no bearing whatever upon the mode of taking evidence. It is true, that it has been the old practice, on motions, 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. The use of an interlocutory application, it should be nesses, and to wait the turn of the parties to obtain an appointment in the examiner's office, in addition to all other delays, before a decision can be had. The NEWSPA 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 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 would have to wait a ruinously long time before exercising its right, or the mischief would be done before the remedy could be applied; and, one way or the other, injustice would be inevitable. In effect, therefore, we say that in the very cases in which it is generally most wanted, oral cross-examination of the witnesses on a motion is impossible, and that so far the act has miscarried. This is a question quite apart from the larger question, whether the whole system of oral examination before an examiner is not a mistake. In this journal we have before frequently urged, and we again repeat the opinion, that it is a mistake; that the value of oral examination depends mainly upon its being conducted before the tribunal that is to pronounce a decision upon the facts, and at the particular hearing on which the evidence bears; and sooner or later, and we believe rather sooner than later, we have no doubt that the separate oral examination of witnesses before an examiner will be abolished; and that wherever oral examination is used, it will take place before the Court, as already has been done on some occasions, with great success, before the Lords Justices of the Court of Appeal in Chancery. Correspondence. TO THE EDITOR OF THE JURIST." SIR,-It appears from your report of Pegg v. Wisden (16 Jur., part 1, p. 1105) that the Master of the Rolls has very lately decided that the act of examining an abstract with the original deeds amounts to an acceptance of title on behalf of a purchaser. If this is to be a rule, the sooner solicitors are made generally acquainted with it the better; for certainly it is an extremely common practice to have an abstract examined with the deeds before it is submitted to counsel, as every conveyancer must be aware. But solicitors, in doing this, have never considered that they had already precluded themselves from making the objections which their counsel might suggest. Your obedient servant, T. S. [There can be no doubt that, in ordinary cases, the examination of the deeds is not an acceptance of the title. Indeed, it is recommended in the Treatise on Vendors and Purchasers, and by other authorities, that the abstract should be so verified before it is submitted to counsel. The opinion of the Master of the Rolls in Pegg v. Wisden must have been founded on all the circumstances of the case taken together, though we confess the foundation does not appear to us sufficient.-ED.] The Lord Chancellor has appointed Charles N. Wilde, Esq., to be the Registrar in Lunacy. The Queen has been pleased to direct letters-patent to be passed under the Great Seal of the United Kingdom, appointing the Right Hon. Sir George James Turner, Knt., to be a Judge of the Court of Appeal in Chancery, in the room of the Right Hon. Robert Monsey, Lord Cranworth, resigned. A POWER OF SALE. (From a Correspondent). WE think the attention of the Profession should be particularly directed to the decision of Lord St. Leonard's in Stroughill v. Anstey, (16 Jur., part 1, P. 671; 1 De G., Mac., & G. 635), as tending to reand Forbes v. Peacocke, as to the liability of persons open a discussion we thought closed by Page v. Adam dealing with trustees to see to the application of the money where there is a general charge of debts. The case was this:-Trustees of a will held the testator's residue, of which certain houses were part, upon trust, at such time or times as to them should seem meet, to sell and convert into money, and to hold the proceeds upon trust to pay the testator's debts, an annuity, and certain legacies; and as to the residue, for A. and B. The will contained a clause in a very extensive form, declaring, not only that certain purchasers, but also that any "person who from time to time should have" any part of the trust monies in their hands, should not be accountable, after payment to the acting trustee or trustees, for the misapplication or non-application thereof, and that every receipt of the acting trustee or trustees should be a sufficient discharge for every sum therein acknowledged. A. was one of the trustees as well as one of the persons interested in the residue, and he and co-trustee, sixteen years after the death of the testator, raised 28007. by deposit of the title deeds of part of the unsold property and an agreement for mortgage, and both the trustees entered into a personal undertaking to repay the sum so raised. The co-trustee 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 a delivery up of the title deeds-reversing the decision of Sir J. L. Knight Bruce, V. C., who had made a decree for payment or sale of the mortgaged premises. his This case has all the appearance of a careful decision by Lord St. Leonard's, who referred to and commented on the authorities in his judgment, and without a rehearing or an appeal to the Lords, it must be taken to be law. Therefore the efficacy of a receipt clause to persons dealing with trustees, and the doctrine that a mortgage is a sale pro tanto, must be considered as very much narrowed, as well as the doctrine that a general charge of debts exempts a purchaser or mortgagee from making inquiries. There was in Stroughill v. Anstey a general charge of debts, a discretionary power of sale, and a clause to exonerate all persons paying money from seeing to the application; and yet a mortgagee was held not safe, and lost 2800/., advanced to the trustees. It seems at first sight difficult to contend, that raising money on mortgage is not a due execution of a power to "convert into money;" but the narrow point strictly decided by Stroughill v. Anstey is, that a mortgage is not a due execution of a power to sell and convert into money. However, the principle on which Lord St. Leonard's put his judgment is, that persons dealing with trustees, raising money after a considerable 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 security of purchasers and mortgagees, it certainly tends to unsettle the principles on which their advisers can transact their business. What amount of inquiry is to be necessary? What evidence of that inquiry is to be preserved? If each case is to stand on its own peculiarities, we are then entirely at sea, and possibly no two legal advisers could be got to agree as to what amount of inquiry will render a purchaser or mortgagee safe. Again: what time is to be deemed considerable? In 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 to inquire whether all the debts had been paid. In fact, it seems very difficult to consider Stroughill v. Anstey except as overruling Forbes v. Peacocke, and as restoring what Lord St. Leonard's calls " the opinion of the Profession prior to that case." We should be glad to hear that Stroughill v. Anstey was to be reheard before the full Court of Appeal; but we have done our duty by calling the attention of legal advisers and practitioners very particularly to the question, as of the utmost importance, practically, in all cases of sales or mortgages by the trustees of a will, notwithstanding a clause to exonerate persons taking receipts from liability for non-application. REGULA GENERALIS. ORDER OF COURT.-Dec. 24, 1852. The Right Honourable EDWARD BURTENSHAW Lord ST. LEONARD'S, Lord High Chancellor of Great Britain, doth hereby order and direct in manner following, that is to say J. When any of the Masters in Ordinary shall request the opinion of any of the conveyancing counsel, nominated by the Lord Chancellor under the 15 & 16 Vict. c. 80, s. 41, to be taken upon any matter depending before such Master, such business is to be laid before the conveyancing counsel in rotation, to be ascertained in the manner prescribed by the General Orders of the 16th day of December, 1852; and a memorandum or minute of every such request is to be prepared by the Master's chief clerk, and signed by him, and such memorandum or minute, when marked with the name of the conveyancing counsel in rotation, shall be a sufficient authority for such counsel to proceed with such business; and if the conveyancing counsel in rotation shall be unable or decline to proceed therewith, the same shall be offered to the other conveyancing counsel, nominated as aforesaid, successively, according to their seniority at the Bar, until some one of them shall accept the same. II. Where, under a decree or order of the Court, whether already made or hereafter to be made, any estate or interest shall be put up for sale with the approbation of one of the Masters in Ordinary, an abstract of the title to such estate or interest is, upon the request of the Master, to be laid before the conveyancing counsel in rotation, for the opinion of such counsel thereon, to the intent that the said Master may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest. III. Notwithstanding the preceding Orders, the Master is to be at liberty to request the opinion of any one in particular of the said conveyancing counsel to be taken upon any matter before such Master, where the circumstances of the case may render it expedient to do so. (Signed) ST. LEONARD'S, C. The Queen has also been pleased to direct letterspatent to be passed under the Great Seal of the United Kingdom, granting the office of a Vice-Chancellor unto Sir William Page Wood, Knt., in the room of the Right Hon. Sir George James Turner, Knt., resigned. Pleas, Demurrers, Causes, Claims, 24 Further Directions, and Exceptions. { Motions. Pleas, Demurrers, Causes, Claims, 29 Petitions in General Paper. 31 Motions. Short Causes, Short Claims, Consent Causes, Unopposed Petitions, and Claims, every Saturday, at the sitting of the Court. Notice.-Consent Petitions must be presented, and copies left with the Secretary, on or before the Thursday preceding the Saturday on which it is intended they should be heard. 20 Motions. 21 EQUITY CAUSE LISTS, HILARY TERM, 1853. The following abbreviations have been adopted to abridge the space the Cause Papers would otherwise have occupied:-4. Abated—Adj. Adjourned-A. T. After Term-Ap. peer. E. Caise Day Cl. Claim-C. Costs-D. Demurrer-E. Exceptions-F. D. Further Directions-M. Motion-P. C. Pro Confesso-Pl. Plea-Pin. Petition-R. Rehearing-S. O. Stand Over-Sh. Short. Court of Chancery. Before the LORDS JUSTICES, at Lincoln's Inn. order) {(Petition-day).—Petitions (unopposed M-Intosh & Great Western Morgan Makinan (4) 22 Short Causes, Short Claims, & Causes. 24 25 Saturday Monday.. Tuesday.. Wednesday Pleas, Demurrers, Exceptions, Claims, Causes, and Further Directions. Before Vice-Chancellor Sir RICHARD KINDERSLEY, at Williams v. Williams (E to Pinkerton v. Andrew (3 cau., N. B.-Unopposed Petitions, (not exceeding ten), at the Turner v. Nicholls (F D, C) sitting of the Court, every day (except Seal Day). Duke of Beaufort v. Patrick C) Monk v. Cartwright (Cl) Hawker v. Colchester {Pleas, De, murders, ther Dive Causes, Trevillian v. Mayor, &c. of Mawdsley v. Harley (FD, C) Claims, and Further Directions. Pleas, Demurrers, Exceptions, Causes, Claims, and Further Directions. Short Causes, Short Claims, & Causes. Motions. 20 21 .... 22 Petitions (unopposed first). Exeter Freeth v. Hoskins Same v. Marshall Attorney-Gen. v. Överton Causes, Lane o. Horlock Claims, and Further Directions. 29 Petitions (unopposed first). 31 Motions. Whitbread v. Smith Baldwyn v. Rogers (F D, C) c) {30port Claims, Claims, and Causes. Barlow (F D, C Society v. 24 Pleas, Demurrers, Exceptions, Causes, ....... 27 Motions and Claims. Monday Tuesday. Wednesday Thursday... C) Worsley v. Woodford (F D, C) Macbean v. Babington (F D, C) Haynes v. Haynes (Sp. case) Squire v. Wray (F D, C) Meech v. Malcolmson (CI) Smith v. Smith (CI) St. Aubyn v. St. Aubyn (F D, | Pickering v. Wellesley v. Wellesley (F D, C) Menlove v. Hogg Same v. Trustees of the Liver- chester Junction Railway Co. Yeatman v. Monsley (Cl) King v. Heenan (Special case) Bondfil v. Purchase (F D, C) Same v. Same (F D, C) }œ |