marriage; and that upon the death of Anne Eggleso, but not until then, the petitioner might be entitled to the relief sought.

Finally, both the respondents offered, to prove the facts and charges set forth by them in such manner as the Court should direct, and insisted that the petition should be dismissed, with costs. On the part of the petitioner two affidavits were filed in reply to the answering affidavit; one by her solicitor, who had been solicitor for E. H. Hatchell in both the mortgage transactions, denying that he (the solicitor) had then notice of the articles of settlement of 1842, and denying all the facts from which the respondents Anne Eggleso and George Chancellor had inferred such notice; and also stating that he (the solicitor) firmly believed that E. H. Hatchell had not any notice of those articles. The other affidavit was made by the solicitor for Henry Eggleso in the mortgage transactions, and denied that he (the solicitor) or any other person to his knowledge had given E. H. Hatchell or his solicitor notice of the articles of settlement of 1842.

1851. Chancery.

HATCHELL

v.

EGGLESO.

Statement.

Mr. Brewster and Mr. Frederick Walsh, for the petitioner.

Mr. Christian and Mr. O'Leary, for Anne Eggleso. There is a preliminary objection to the use by the petitioner of the two affidavits filed on his behalf in reply. Those affidavits have been filed without the permission of the Court, and therefore cannot be now read. That permission cannot be granted until the hearing. From the 12th section of the Court of Chancery Regulation Act, it is plain that not until the hearing has the Court power to "direct" how the evidence is to be taken; and that each case must in the first instance be heard upon the petition and answering affidavit only. The Court may then direct the evidence to be taken by affidavit, or vivâ voce, or upon interrogatories. It was never intended to give to a party himself the power of forestalling, by means of affidavits, the evidence of persons who may afterwards be called upon to depose either vivâ voce or upon interrogatories. Were such a system permitted, every witness might be tutored through the medium of an affidavit prepared for him. Prima facie the ordinary

Argument.

1851. Chancery.

HATCHELL

บ.

EGGLESO.

Argument.

mode of examining upon depositions is to be resorted to. If at the hearing the Court. see fit, it has power to order otherwise. The English Act (13 & 14 Vic. c. 35 s. 28) corroborates this view; it enacts that "it shall be lawful for the said Court at the hearing of any cause to receive proof by affidavit." The Irish Act gives liberty "to direct the whole or any part of the evidence to be taken either vivâ voce on oath before the Court or Master, or upon affidavit, instead of upon interrogatories, or in addition to an examination upon interrogatories." Great inconvenience would ensue from receiving these affidavits in evidence, because upon them the Court would be compelled to hold that the want of notice of the articles of settlement of 1842 was fully proved, and thus those articles would be excluded from the consideration of the Court. Affidavits are not a sufficiently stringent mode of investigating such a question. The feeling of many members of the Profession is, that such affidavits should not be used at the hearing; but that if permitted, counter-affidavits should also be allowed.

Mr. Brewster and Mr. F. Walsh.

In the 12th section of the Court of Chancery Regulation Act the words are, that affidavits may be used not merely in any suit or matter "being heard," but "in any suit or matter pending or being heard." That word "pending" does not occur in the English Act. It is a matter of discretion at the hearing whether or not the Court will decide the matter upon affidavit. The practice is settled by Glascock v. Ross (a). Counsel also referred to the case of Smith v. Constant (b).

Judgment.

The LORD CHANCELLOR.

It has been my impression ever since the Court has been acting upon this statute that the affidavits of strangers to the cause are admissible at the hearing. It seems to me to be plain that the object of the statute was to substitute the form of hearing adopted. upon petitions before the passing of the Act in lieu of the form (b) 15 Jur. 97.

(a) 1 Ir. Chan. Rep. 50.

1851. Chancery.

HATCHELL

v.

EGGLESO.

adopted in causes upon bill and answer, &c. It is now contended in substance that, except in the case of petitions under the 15th section, the only effect of the Act was to change the word "bill" into "petition." I do not read the Act so. It appears to me that its object was to put the rights of the parties in a position for adjudica- Judgment. tion at as early a period as possible, and for this purpose persons are enabled to apply to the Court by petition. The practice heretofore on petitions was well understood. The party presented his petition to the Court and verified it by affidavit. The respondent was brought before the Court by notice, and supported his case by his own affidavit, and the affidavits of as many other persons as he pleased, and the matter was heard upon the petition and affidavits. The 5th section of the Act no doubt enables the petitioner to verify any petition presented under the Act generally by the short form given in the schedule; but the same section provides that with respect to petitions presented under the 15th section "no costs of any further or additional affidavit in verification shall be allowed, unless specially allowed by the Court;" plainly showing that further and additional affidavits in support of petitions under the Act generally are contemplated.

The respondent might, if he were so advised, have applied by motion to the Court to stay proceedings, in order that a bill might be filed on which evidence might be taken vivâ voce, or upon interrogatories, because the 12th section enables the Court to give such a direction, not only when a suit or matter is at hearing, but also in any suit or matter pending before it. It is, I conceive, impossible to hold that the course to be adopted on petitions, not under the 15th section, must be according to the forms and solemnities of the old practice, expensive and dilatory as they were. I look upon the Act generally as drawing a line of distinction between proceedings by bill and proceedings by petition, and that much more was intended by it than to change the name of a document. But it is said that the true mode of proceeding is merely to throw down the petition and the answering affidavit, and then that the Court is to decide upon the course to be pursued. I confess that if that were to be the practice, I would think it had been better to have left matters as they were before the Act, leaving the parties to decide

1851. Chancery.

HATCHELL
V.
EGGLESO.

Judgment.

as to what points they would examine-what they would give in evidence, and whom they would produce as witnesses; slow and expensive, as experience has taught us, that the ancient procedure

was.

The 12th section empowers the Court to dispense with interrogatories when it pleases, but does not, in my judgment, declare that in all cases under the Act the evidence is to be taken upon interrogatories, unless the Court shall otherwise direct; and I cannot read that section as amounting to this, viz., that no information is to be given to the Court at the first hearing save what appears within the four corners of the petition and the answering affidavit. On the contrary, it seems to me that either party may support his The Court case by the affidavits of several people if necessary.

will then determine whether the case is one in a condition to be disposed of at that stage, and it should then he so disposed of if there do not appear to be any grounds for contending that the facts are not sufficiently before the Court. If they be not before the Court, that is the proper time for pointing out the mode of investigation. But to return to the original system of taking preliminary depositions, would be to do nothing substantially useful to the suitors of this Court.

The procedure by claim in England under Lord Cottenham's Rules There affidavits are, is different from that instituted by this Act. however, allowed upon both sides; and all that I understand to have been decided by V. C. Bruce, in Smith v. Constant (a), is, that in a case of disputed facts the Court would not allow the plaintiff to read his own affidavit; and that the affidavit of a defendant is to have The Irish Chancery Regulation the same weight as an answer. Act, however, expressly recognises the admission of the petitioner's affidavit, and there may in this respect be grounds for a different rule as to its effect in evidence, subject of course to the ordinary consideration applicable to the testimony of an interested party. I may observe also on the question of affidavits that the 10th section of the Act contains the words "all affidavits and interrogatories " in the plural number, implying that there may be more affidavits (a) 15 Jur. 97.

than one on both sides. Inconveniences may arise in the administration of this system, but in the majority of cases it will, I am persuaded, work satisfactorily.

Mr. Christian suggested either that the Act could not be carried out, with reference to cases not under the 15th section, until the publication of General Orders under the 31st section; or if it could be carried into effect, that could only be done by the system applicable, not to petitions before the Act, but to suits by bill.

The LORD CHANCELLOR.

I am much obliged to Mr. Christian for suggesting to me the views which have occurred to him upon this Act. It, however, appears to me that the system which I have mentioned is the proper one to be applied to all petitions under the Act not presented under the 15th section, and that General Orders are not necessary for this purpose.

1851. Chancery.

HATCHELL v.

EGGLESO.

Judgment.

Mr. Christian and Mr. O'Leary next argued that Anne Eggleso had an equity to a settlement out of the premises comprised in the leases of the 29th of April 1828, and 12th of May 1837, inasmuch as these had originally been her property; and that she had such an equity against the other leasehold premises in respect of the monies (her property) laid out upon those premises by Henry Eggleso; and in support of both propositions cited Sturgis v. Champneys (a); Hanson v. Keating (b), and Newenham v. Pemberton (c).

Mr. Brewster and Mr. F. Walsh denied that she had any such right.

The LORD CHancellor.

As to this claim of the respondent Mrs. Eggleso to an equity to

(c) 17 Law Jur. N. S. 99; S. C. 11 Jur. 1071, 1 De Gex. & Smale. 634.