Patchett, R., 258 Paterson, H., 397 J., 484 Pattenden, N., 481 Paton, E., 109 Pauling, W., 529 Pavant, J., 150 Pavis, J., 306 Paynter, F., 57 Peachey, J., 109. J., 33 Peacock, A., 155 Peake, J., 491 Pearce, C. T., 428 Pearson, T., 109 W., 527 W. S., 33 Perkins, W., 288 Perrers, L., 123 Perrett, J., & Garton, C., 200 Roberton, C., 450 Perriam, J., 85 Roberts, G., & Roberts, R., Silvester. J., 241 288 Roberts, H., 78 J., 306 J., 167 P., 418 R., 114 S., 155 Robins, G. J., 474 Robinson, J., 63 J., 491 S., 399 T., 187 Robson, J., 242 Roden, W., 57 Roe, M., 99 Potts, C., Potts, A., & Potts, Rogers, H., 200 J., 78 Powell, M., 282. Price, G., 8 J. R., 18 W., 348 Rollison, J. S., 189 Ross, T., 456 Row, G., 137 Sim, J., Sim, J., & Sim, D., 114 Simmonds, P. L., 26 Simmons, W., 98 W., 101 Slater, D., 417 J., 187, T., 46 Sloper, T., 228 Smallwood, E., 398 Smart, W. R., 378 Smiles, R. W., 54 Smith, C., 149 C. S., 378 D., & Smith, F. D., 146 No. 627-VOL. XIII. JAN. 13, 1849. Price 1s., with Supplement, 28. *The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: LONDON, JANUARY 13, 1849. the rule originally took its rise from this, that as in equity you have a right to ransack the defendant's THERE are some rules of practice, both at law and in conscience, so as a set-off you shall believe what the equity, so contrary to modern reason, that no one can defendant says until the cause is at issue, and that, as conceive how they ever came to be rules, and that the a consequence, all counter-evidence would be useless, Courts are continually compelled to make fine distinc- because it could not be believed; or whether the rule tions in order to elude the rule as far as possible. Of took its rise from some imagined difference between this character is the rule of Courts of Equity, that, on the solemnity of swearing an answer and that of swearan interlocutory proceeding, such as a motion for a ing an affidavit, it is now difficult, nay impossible, to receiver, or an injunction, or to compel the defendant ascertain. Why the rule should still be retained, when to pay money into court, the title must be wholly it is execrated by judges, and serves at this day no taken from the answer; and that not only can no affi- purpose but to entangle and complicate interlocutory davits be read against the answer, but that they cannot applications, it is as difficult to understand. A defendeven be read to substantiate facts ignored by the an- ant's answer is evidence, nothing more. It is the deswer, if directly or indirectly they affect the title. liberate assertion on oath of a person entitled to credit, unless he be discredited. So is an affidavit. Affidavits are admitted as to matters of fact; why should they not be as to matters of title? Suppose a cestui que trust files a bill for the appointment of new trustees, and for a receiver, and the trustee admits the plaintiff's title, but denies the misconduct: an affidavit may be read against the answer as to the misconduct; but if the trustee denies the identity of the plaintiff, or the execution of the instrument under which he claims, then an affidavit cannot be read against the answer. What possible rational ground can be assigned for this distinction? If it be said, that, by receiving and believing affidavits on the question of title, the Court might be, in fact, wrongfully ejecting the defendant, the answer is, so it might by hearing affidavits as to acts of misconduct. If a man is wrongfully turned out of possession, it cannot matter to him whether it is because the Court wrongfully believes he never had title to be in, or because it wrongfully believes that he has so behaved that he must be turned We have more than once heard judges, in administering this rule, apparently simple, but complicated in its application, wonder how it ever came to be the rule; and Lord Eldon, who, great judge as he was, delighted in a legal absurdity, if it was but refined enough, and inconsistent enough with substantial justice, put the absurdity of the rule in its most glaring light when he refused to revive an injunction which had been dissolved upon the answer, though the grand jury had found a true bill on an indictment for perjury on that very answer. For, said his Lordship, "the grand jury may have believed, and in most cases must have believed, those very persons upon their oaths for that purpose, whose depositions this Court would not permit to be read for the purpose of discrediting the answer." (Clapham v. White, 8 Ves. 35). So that the rule of practice is, that the defendant's answer is of such conclusive credibility, that nothing can be allowed to be heard but it, even though you have the strongest evidence that it is false. Whether VOL. XIII. A D, C) } S 0 **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. Appeal-C. D. Canse Day-C. Costs-D. Demurrer-E. Ex-Same v. Green ceptions-F. D. Further Directions-M. Motion-P. C. Pro | Stronger v. Hawkes Confesso-Pl. Plea-Płn. Petition-R. Re-hearing-S. O. Hawkes v. Hawkes Stand Over-Sh. Short. Paterson v. Mills S O Before the VICE-CHANCELLOR OF ENGLAND. Dobson v. Lyall (F D, part Miller v. Priddon Robinson v. Sollory SO Dunston v. Dunston (3 causes, Boycott v. Morse (2 causes) Digby v. Boycott (3 causes) Jan. 25 Marshall v. Carter S O Gregory v. Wilson SO Willis v. Jones (F D, C) Attorney-Gen. v. Finch (2 Surtees v. Hopkinson (F D, James v. Jones Alt v. Gregory SO G Banner v. Strachan (F D) Myers v. Perigal (FD, C) S O Rowland v. Witherden Coleman v. Mellersh Earl of Balcarras v. Hudson Daintree v. Day Lee v. Delane Rees v. Chilton Trelawny v. Mostyn Mortimer v. Hartley (F D, C) Twyford v. Massey Alexander v. Bushby (F D, Penrice v. Penrice (F D, C) Ptn, part heard) Aglionby v. James (F D) Dixon v. Linn (3 causes, FD) Foligno v. Goldner Fowell v. Dodson (2 causes) Browne v. Milne (F D, C) Wynne v. Price Steele v. Parsons (F D, C) Preece v. France (F D, Elsam v. Hall (F ́D, C) ton Hutton v. Hayley Haydock v.Tomlinson C) Jones v. Francis (F D, C) Moorley v. Smith Whitchurch v. Whit church Same v. Parrott Before Vice-Chancellor KNIGHT BRUCE. CAUSES, FURTHER DIRECTIONS, AND EXCEPTIONS. Churchman v. Capon JC, pt. (F D, regson v. East Anglian Rail- | Yetts v. Norfolk Railway Co. Raworth v. Archer Pin. of way Co. (D) Hooper v. Salman (Part and Coke Co. heard Easter Term) (F D, C) and Coke Co. Smith v. Oliver} (FD, C) |
