LIDDELL v. NORTON. 1853. Nov. 25th. THIS was a motion for production of documents, which had been Production of adjourned from Chambers. Documents- will not be or A Defendant dered to produce letters, which, together with other goods in a port manteau, have been pawned by him before the commence By her answer, the Defendant stated that she had "many years ago in her possession or power some letters, in which reference was made" to the matters in question in the suit; and that all such letters "were deposited by the Defendant in a portmanteau containing articles of plate and trinkets and clothing; and that the said portmanteau, with such contents, was, many years ago, but when more particularly she was unable to set forth, parted with by her to J. Wright, of St. Catherine's-place, Norwich, for monies advanced by him to her; and that the said portmanteau, with such contents, was still in the possession of the said J. suit. Wright, who refused to part with it, or to give to the Defendant or allow her to take a list or schedule of the letters therein, until he was paid what was due to him from the Defendant." And the Defendant further said, that she was unable to set forth, as to her belief or otherwise, the dates of the said letters, or a list or schedule thereof, or their nature, purport, or effect, otherwise than as aforesaid. By an affidavit in aid of her answer, the Defendant stated that the amount now due to J. Wright for principal and interest was about 417.; and that she had no means whatever of paying such amount, having been for a long time dependent upon her son, who was a police constable, and with whom she was now living, for the means of supporting life; and that the documents so deposited with the said J. Wright were not in any way in her possession or power or under her control. The production, or some list or account, of these documents amongst others was now sought. Mr. Amphlett for the motion. Mr. Burdon, contrà, cited Palmer v. Wright (10 Beav. 234). The VICE-CHANCELLOR SIR W. PAGE WOOD said, that he thought no case had gone farther than Ex parte Shaw (Jac. 270), in which Lord Eldon ordered a Defendant to produce documents which were in the possession of his solicitor, who claimed a lien upon them, saying that the Defendant must pay ment of the 1853. LIDDELL v. NORTON. what was due to his solicitor if necessary. If documents were mortgaged, a Defendant would not be ordered to pay off the mortgage. The decision in Palmer v. Wright (10 Beav. 234), was not intended to overrule Ex parte Shaw (Jac. 270), as was proved by reference to the subsequent case of Rodick v. Gandell (10 Beav. 270), in which Ex parte Shaw was cited and followed, the Court giving to the Defendant liberty to apply in case he should be prevented from complying with the order, which put it upon the Defendant, if any difficulty occurred, to shew that it was of such a nature as prevented his compliance with the order. But where documents were pledged the case was different; and, therefore, there could be no order upon this motion. Dec. 3rd. Foreclosure Decree-Representation to de ceased Defendant-15 & 16 Vict. c. 86, s.44. A foreclosure decree gave to seven persons, or any of them, the right to redeem within a certain time. Before that time arrived one of the seven died, and there was some difficulty about obtaining administration to him. LONG v. STORIE. THIS was a foreclosure suit. A decree was made in 1852, giving to several defendants several successive rights of redemption, extending through a period of three years. The first had made default; the second right of redemption was given to seven different persons. These seven Defendants were interested in one and the same mortgage security, and the right of redemption given to them by the decree was in form given to them or any of them. One of these seven Defendants had since died, and had no personal representative. His widow had renounced probate, and the next of kin refused to take out letters of administration. An application had been made by a creditor to have letters of administration granted to him, which had been accordingly decreed; but before the proceedings in the Ecclesiastical Court were perfected, another creditor entered a caveat. Letters of administration Mr. Bazalgette now applied, under s. 44 of the 15 & 16 Vict. were, at length, granted by the c. 86, for an order, either that the proceedings under the decree Ecclesiastical for foreclosure might go on without any personal representative Court to a creditor, but be fore the proceeding was perfected another creditor entered a caveat. The Court of Chancery made an order under section 44 of 15 & 16 Vict. c. 86, appointing the former creditor to represent the estate of the deceased, after a week's notice given to the opposing cre ditor; or, if the former creditor should refuse to be such representative, then, upon evidence by affidavit of such refusal, appointing the other creditor to be such representative. Section 44 is only intended to apply to cases where there is a difficulty in obtaining representation, owing to the insolvency of the deceased or some such cause. of the deceased, and that his estate might be bound thereby, or that some proper person might be appointed as such personal representative for the purposes of such proceedings. The VICE-CHANCELLOR said, that if the time fixed extended to three years, there was no reason why they should not wait a short time for the perfection of the administration proceedings. The Ecclesiastical Court was sitting, and the proceedings could not take may days. Mr. Bazalgette said, that no proceedings were being taken, but the whole matter was in abeyance in the Ecclesiastical Court. VICE-CHANCELLOR SIR W. PAGE WOOD I think, as the creditor has gone on so far as to obtain an actual grant of letters of administration, he is not likely to stop until he has some compensation for the expense which he has incurred. The 44th section of the new statute is only intended to apply to a case in which there is a difficulty, either from insolvency or some other cause, in obtaining representation to a deceased party; but here a creditor has almost obtained representation, and you are asking me to proceed behind his back. I should require some intimation to be given to him. I will make an order, that this creditor should represent the estate of the deceased party for the purposes of the suit, only directing that the order shall not be drawn up for a week; and, meantime, notice must be given to the creditor who has entered a caveat; or, if the former creditor refuses, I will make a similar order respecting the opposing creditor. The order must be subject to your producing an affidavit of the consent or refusal of the former creditor to act, and, if he consent, that due notice has been given to the other creditor. 1853. LONG v. STORIE. 1853. Dec. 5th. Evidence-Ex amination of Witnesses re siding more than Twenty Miles from London15 & 16 Vict. c. 86, ss. 31, 35. The Plaintiff moved, that a solicitor might be appointed to examine wit nesses residing more than twenty miles from London: -Held, that the application might be made be made by motion in Court instead of at Chambers; REED V. PREST. MR. WEBB moved on behalf of the Plaintiff, that a gentleman, who was a solicitor, should be appointed to examine certain witnesses residing more than twenty miles from London. Mr. Howe, contra, objected that the application should have been made at Chambers, without incurring the expense of a motion in Court; that it was altogether unnecessary, as some of the witnesses had already been examined in London before the Examiner in the ordinary way, and there was no reason why the rest should not be; and that, from the nature of the evidence to be taken, the official Examiner, or some person of experience in taking evidence, ought to conduct the examination. The VICE-CHANCELLOR SIR W. PAGE WOOD said, that it was not absolutely necessary to make the application at Chambers, but it might be made in Court instead; that the former practice was not altered in the case of witnesses who resided more than twenty miles from London, and therefore the motion must be granted; but as the evidence was somewhat special, the person to be apthe old practice pointed should be a barrister, to be chosen by both parties. and that, in case of witnesses residing so far from London, was unchanged; The costs must be costs in the cause. but the evi dence in this case being special, a barrister, to be chosen by both parties, must be the examiner. Costs to be costs in the cause. Dec. 6th. Evidence by AffidavitDeed impeached--15 & 16 Vict. c. 86, ss. 29,30,36, & 38. HITCHCOCK V. CAREW. THIS was a motion on the part of the Plaintiff, that, notwithstanding the Defendant Charles Hallowell Hallowell Carew had elected that the evidence to be adduced in this cause should be taken orally, the Plaintiff might, on the hearing of the cause, be at liberty to prove by affidavit the execution of the indenture of In a suit by a mortgagee to redeem prior mortgages and for a sale, the mortgagor, by his answer, disputed the validity of the Plaintiff's mortgage, on the ground that the execution of it by the mortgagor had been obtained by a fraud concocted between one of the attesting witnesses to the deed and other persons, and without the Plaintiff knowing the contents of it. The Defendant had elected to have the evidence in the cause taken orally. The Plaintiff, not being able to obtain an appointment before the Examiner for some time, moved that he might be at liberty at the hearing to prove his mortgage deed by affidavit:-Held, that as the answer impeached the deed in this manner, it could not be proved as an exhibit at the hearing, and, as the witnesses would probably be cross-examined, no time would be saved by the proposed course; and, therefore, the motion was refused; and as, if granted, it would have been an indulgence, it was refused with costs. The advantage of having witnesses produced for examination and seeing their demeanour is a right of which the Court will not deprive the parties. mortgage of the 3rd of December, 1851, in the pleadings mentioned. The bill stated numerous mortgages by the Defendant Charles Hallowell Hallowell Carew, and ultimately a mortgage to the Plaintiff by a deed dated the 3rd of December, 1851, and prayed an account, and that the Plaintiff might be let in to redeem the prior incumbrances, or for a sale; and in the meantime for a receiver. The Defendant Charles Hallowell Hallowell Carew, by his answer, disputed the validity of the alleged mortgage deed of the Plaintiff; and stated, that the execution thereof by the Defendant had been obtained by a fraud concocted between the Plaintiff and other persons, of whom one was one of the witnesses to the deed, at a time when the Defendant was in ignorance of his rights, and without his knowing the nature of the deed, and without consideration, and when he was under duress, being in prison for debt on a judgment upon a warrant of attorney which had been improperly obtained from him. Mr. Amphlett, for the motion, referred to the 15 & 16 Vict. c. 86, ss. 29, 30; and s. 36, which provides, that, "notwithstanding that the Plaintiff or the Defendant in any suit in the said Court may have elected that the evidence in the cause should be taken orally, affidavits by particular witnesses, or affidavits as to particular facts and circumstances, may by consent, or by leave of the Court obtained upon notice, be used on the hearing of any cause; and such consent, with the approbation of the Court, may be given by or on the part of married women or infants, or other persons under disability;" and s. 38, providing for the cross-examination and re-examination of any witness who may have made an affidavit. He stated, that, owing to the press of business before the Examiners, no appointment for oral examination could be made for a time sooner than the end of January. Mr. Southgate, for the Defendant Charles Hallowell Hallowell Carew, opposed the motion, and contended, that the deed could not be proved as an exhibit, because it was impeached by the answer: Barfield v. Kelly (4 Russ. 355), Maber v. Hobbs (1 Y. & C., Exch., 585). Besides, as the Defendant would cross-examine the witness, an appointment must be had for that purpose, and therefore no time would be saved by the proposed proceeding. 1853. HITCHCOCK v. CAREW. |