Miscellaneous fendants as the plaintiff shall desire shall be inserted in a sub

Cases.

pœna.

22nd Order of April, 1828. Time of serving notices of motion and petitions.-See the Commonwealth Lords Commissioners' Order of 23d January, 1649. In Ireland, see Lord Bowes' Order of 19th November, 1757; and Lord Clare's Order of the 1st of June, 1791.

24th Order of April, 1828. Taking up process of contempt against defendant filing insufficient answer, at the point to which plaintiff had before proceeded.-See Lord Nottingham's Order of Easter Term, 1676.

25th Order of April, 1828. Production at seat of Clerk in Court of witness to be examined before examiner.-Service of notice of name and description of witness.-See Collection of Orders of Commonwealth Lords Commissioners, 1649, title "Examination of Witnesses." Lord Clarendon's Orders, May, 1661, same title; and Lord Guildford's Order, 9th May, 1685. For Ireland, see Primate Boyle's Rules and Orders, November, 1685, No. 25.

26th Order of April, 1828. Examiner taking both examination in chief and cross-examination.-See Parliamentary Ordi nances, 1654, c. 44, s. 16; the act 50 Geo. 3, c. clxiv. for making regulations in the Examiner's office, s. 11; and Lord Eldon's Order of 22d of April, 1811. For Ireland, see Lord Redesdale's Order of 1st March, 1806. See the preceding page.

45th Order of April, 1828.-Clerical mistakes in decrees and orders.-See Lord Bacon's Ordinances, January, 1618, No. 2, and Collection of Orders of the Commonwealth Lords Commissioners, 1649, title "Decrees." For Ireland, see Lord Chancellor Bolton's Directions, 1639, No. 25; and Primate Boyle's Rules and Orders, November, 1685, No. 75.

52d, 53d, 54th and 55th Orders of April, 1828. See Lord Coventry's Ordinances, November, 1635, Nos. 17 and 18.

9th Order of December, 1833. Dedimus to take answer in the country.--By the Parliamentary Ordinances, 1654, c. 44, s. 8, where a defendant might answer by commission in the country, he was no longer to be enforced to take a commission, but without taking any commission might answer upon oath before a Master of the Chancery in the country in like manner and by such time as if a commission had issued.

11th Order of December, 1833. Recital in order for common injunction.-See Order of Commonwealth Lords Commissioners, 26th November, 1649.

V. C. January 11, 1838.

Bill by hus

band and wife

in

respect of trust fund

limited to wife

for life to her

separate use,

next friend to

GEORGE PLATEL and CATHERINE his Wife and PETER PLATEL an Infant, by the said GEORGE PLATEL his next Friend, v. JOHN CRADDOCK. THE bill was filed to render the defendant responsible, by reason of his omission to call in and invest money assigned to him by the marriage settlement of the plaintiffs George and Catherine Platel, and the trusts of which were, that the interest should be paid to Mrs. Platel for life to her remainder to separate use, and after her death to her husband for life, husband for with remainder, as to the capital, for the benefit of the by adding a children of the marriage. Witnesses had been examined, the wife. and the cause had for a considerable time been standing in the paper for hearing, when an application was made for liberty to cure the objection arising out of Mr. and Mrs. Platel being both plaintiffs, and there being no next friend to the wife. The following order was pronounced: -Let the plaintiffs be at liberty to amend their bill without costs in respect of such amendment, either by adding the name of a person as next friend to the plaintiff Catherine Platel, or otherwise by striking out the name of George Platel as a plaintiff and making him a defendant, and by adding the name of a person as the next friend of the plaintiff Catherine Platel; but in the latter alternative the plaintiffs are first to give security, according to the course of the Court, by bond to the two senior six clerks, not towards the cause, in the penalty of one hundred pounds, conditioned to answer any costs up to this time, in case this Court should think fit to award any; and at the hearing of this cause the respective admissions made and entered into by and between the plaintiffs and defendant are to be received; and in either case the plaintiffs are to amend the defendant's office-copy of the said bill, and to undertake to amend within one month and let the plaintiffs pay to the defendant the costs of this application, to be taxed by the Master of this Court in rotation, in case the parties differ.

:

The bill was amended by inserting the name of a next

friend to Mrs. Platel, retaining her husband as a co-plaintiff, in respect of his life estate in the trust money, in case he should survive her.

Mr. Knight Bruce for the plaintiffs; Mr. Cooper for the defendant.

See Sigel v. Phelps, 7 Simons, 239. Except Laird v. Tobin, 1 Molloy, 543, and an unreported case, Owden v. Campbell, V.C. 1837, the writer has met with no direct authorities not mentioned in the recently reported case of Wake v. Parker, 2 Keen, 59.

V.C. May 4,

1837.

affidavits in

support of mo

tion.

CLEMENT V. GRIFFITH.

Period for filing UPON Mr. Cooper and Mr. Pigott moving for a special injunction, Mr. Knight objected to the affidavit being read, it appearing that the notice of motion was for the 20th April, but that the affidavit in support was not filed until the 27th April.

The VICE-CHANCELLOR said, that according to the strict practice, such affidavits only can be read as are filed between the service of the notice of motion and the day on which, according to such notice, the motion is to be made that the adverse party is not bound to extend his search for affidavits to a period either prior or subsequent-and that consequently, if it is desired to read affidavits filed at any other time, notice of the filing of such affidavits, and of the intention to read them, should be given.

So Bent v. Reynolds, M. R., January, 1838.

By the general orders of the 28th February, 1632, and the 15th November, 1660, it is ordered that all affidavits thenceforth to be taken before any Master of the Court, should be brought to the register of affidavits, or his deputy for the time being, to be there filed and registered in some due and convenient time after the same are sworn unto, and before use is made thereof in Court, as well to prevent vexation and trouble to the suitors in coming so often to inquire for such affidavits before they come into the said office, as also that the parties against whom such

affidavits are made, may have time by their counsel to inform the Court of any cause of exception they may have to allege against the same.

See further Praxis Al. Cur. Canc. vol. i. p. 30, first edition, (1694); Harrison's Accomplished Practiser, vol. i. p. 14, first edition (1741); and Hinde's Practice, p. 452 (1785).

The late time at which an affidavit is filed cannot be objected, if the affidavit be such as by the practice of the Court admits of no denial, as that the plaintiff cannot with safety proceed to a trial of an action until the answer of the defendant comes in. 8 Vesey, 46.

Jones v.

Lord Eldon once said, that he had often thought of a rule that all affidavits should be filed in a certain time before the discussion but his Lordship at the same time suggested that such a rule might be productive of injustice, that would counterbalance the mischief which he stated arose from what had been the uniform practice of the Conrt, a mischief which had been daily felt. and complained of, without an attempt to remedy it. See 6 Vesey, 432.

In the Equity Exchequer there is a general order, 10th February, 1821 (9 Price, 88), that where a notice of motion is necessary to be given, the filing of any affidavit in support of the application shall be also mentioned at the foot of the notice, to enable the opposite party to obtain a copy thereof. By the same general order, all affidavits to be used on any special application to the Court, must be filed one clear day before the application is made. See Rock v. Unett, Younge, 268; and by a more recent General Order of the same Court, 6th June, 1837, No. 3, (2 Younge & Collyer, page i.) affidavits intended to be read in support of every notice of motion and petition, must be filed at least two clear days before the hearing of such motion or petition, unless otherwise specially ordered by the Court.

At law (King's Bench) affidavits sworn before the time of showing cause, although after the time mentioned in the rule nisi, may be read, unless by the terms of the rule it is required that the affidavits shall be filed by a particular day. Tilley v. Henly, 1 Chitty, 136.

In a late case, Anon. July, 1839, the Vice-Chancellor said, that where a plaintiff had obtained an injunction ex parte upon certificate of bill filed and affidavits, and then the defendant made an application upon counter affidavits to dissolve such injunction, it was his uniform habit to entertain such application immediately, and not to give the plaintiff any time for replying to such affidavits ;

that it was true that in some cases justice might require that the plaintiff should have an opportunity of filing affidavits in reply; but whether that was so or not in each particular case, it was his practice to determine for himself after hearing the matter, and that he afforded or refused such opportunity according to circum

stances.

M. R. July 6, 1837.

Discretion of trustees as to

application of income for bene

fit of testator's wife and children.

COLLINS V. VINING, CARY and others.

JOHN COLLINS by his will, dated 6th June, 1831, devised his real estates, and bequeathed the residue of his personal estate to the defendants Vining and Cary, upon trust that they and the survivor of them, his heirs, executors, and administrators, did and should apply and dispose of the rents and profits and interest of the same, at their and his discretion, to and for the use and benefit of his wife and children during the life of his said wife, and after her death then for the benefit of his said children until the youngest, who should attain the age of 21 years, should so attain.

The MASTER OF THE ROLLS said that, it not being even suggested that the trustees had made or contemplated any fraudulent or mischievous application or disposition, the Court would not interfere with the exercise of their discretion, unless they concurred and consented.

Cur.-The defendants Vining and Cary, by their counsel, waiving any discretion as to the application of the income of the testator's estate during the lives of the testator's wife and children, and the infancy of such children after the wife's death:-Declare that the same is applicable, under the direction of the Court, as if no such discretion had been given by the said will.

Mr. Tinney for the plaintiffs. Mr. Cooper and Mr. Barrington for the defendants.

The student may consult, amongst other authorities, Livesey v. Harding, Tamlyn, 460, and French v. Davidson, 3 Maddock, 396.