STUDD V. BURKITT. M. R. July 22, 1837. Ar the hearing of this cause, which was principally to ad- Decree with liberty to supply minister the personal estate of a testator, it was objected, proofs. upon the usual accounts being asked for, that although the bill stated one of the residuary legatees (Frederick Matthew the younger) to be out of the jurisdiction, yet that there was no evidence of that fact. The MASTER OF THE ROLLS said, that this was one of those cases in which for some years it had not been unusual to make a decree, which was more or less extensive according to circumstances, with liberty to supply proofs. Cur.-Order, that the plaintiffs be at liberty to exhibit an interrogatory or interrogatories in the Examiner's Office, and to examine witnesses thereon, to prove Frederick Matthew the younger to be out of the jurisdiction of the Court, &c. Mr. Pemberton and Mr. Cooper for the different par ties. In Butler v. Barton, 5 Maddock, 40 and 43, one of the defendants interested in the account sought was out of the jurisdiction, but that was not proved. Sir John Leach said, that an account might be directed in his absence, and that the deficiency of proof that he was out of the jurisdiction, might be supplied by allowing an interrogatory to be exhibited for that purpose. Other cases in which a decree is pronounced with liberty to supply proofs, as contra-distinguished from the cases where the only order made at the hearing is, that the cause shall stand over for a like purpose, are mostly cases of suits for the administration of assets, and in which there has been an omission or failure to prove the fact of trading, or the execution of a will. See Lechmere v. Brasier, 2 Jacob & Walker, 287, 289, and Seton on Decrees, pages 364, 365. One case of a different kind is Edney v. Jewell, 6 Maddock, 165. M. R. December 19,22, 1838. Short cause: costs of the day. Hartley v. Ikin, mentioned 4 Simons, 104, 106, was a creditors' suit, and the instrument neglected to be proved against some of the defendants constituted the plaintiff's debt. MELLISH V. BROOKS. THIS cause being in the paper of Short Causes, and appearing of a nature likely to occupy much time, was ordered to be remitted to its place in the general paper, whereupon the defendant applied for the costs of the day, upon the ground that there was neither order nor written. consent for hearing the cause as a short cause. The MASTER OF THE ROLLS said, that as the plaintiffs had not, in conformity with the practice adopted by him, procured the order of the Court that their cause might be heard as a short cause (a), they must pay the costs of the (a) See Mountford v. Cooper, 1 Keen, 464, and Hutchinson v. Stephens, ibidem, 659, also on appeal, 2 Mylne & Craig, 452. As there is nothing to prevent an order to advance a cause to be heard as a short cause, becoming like any other order the subject of enrolment, and as in that case it must be signed by the Lord Chancellor, the doubt expressed in the last report as to the Lord Chancellor's power to interfere with such an order, seems without foundation. The act too of 3 George 2, c. 30, has not more application to such an order, than to all other orders and decrees of the Master of the Rolls. By the present practice of the Vice-Chancellor's Court it should appear that the dissent, however unreasonable, of a single party will prevent a cause being heard as a short cause; Ker v. Cusac, 7 Simons, 520. Notwithstanding some assertions to the contrary, the author doubts whether that was the ancient course of the Court. The only description of short cause that he knows of, which, prior to the orders of 9th May, 1839, (No. 4), could not be heard as a short cause unless by consent, is a foreclosure suit, (Rashleigh v. Dayman, 2 Maddock, 147); and it seems to him that the exception must be taken as proving the course to have been as he has understood it and even foreclosure suits have been advanced, in order to be taken pro confesso; Baker v. Keen, 4 Simons, 498, and Barwick v. Ward, 5 Simons, 676. day, unless they could show that the defendant had concurred in the cause being inserted in the Short Cause list, but that a written consent was not necessary: that it would be sufficient were the conduct of the defendant such as to lead the plaintiffs to believe that no opposition would be offered to the cause being disposed of as a short one, should the Court and counsel see no objection. The plaintiffs' solicitor made an affidavit of the circumstances under which the cause was plaeed in the paper of Indeed it is difficult to conceive, that the Court can recognize the right of one of the parties to object to his cause being heard when it is ready for hearing; or that the Court having, as it undoubtedly has, the discretion to direct a cause to be advanced on sufficient allegation, (see Hoyle v. Livesey, 1 Merivale, 381,) the circumstance that a cause will occupy only a few minutes, is not to be regarded as sufficient allegation. In the Equity Exchequer the practice seems for some time past to have been similar to that prevailing in the Court of the Master of the Rolls. See General Order, Michaelmas Term, 1830, Younge, 145. The Irish practice appears equally in accordance. General Order of Lord Manners, 7th May, 1808. There is a General Order of the Equity Exchequer (Trinity Term, 1824), which might be usefully brought into operation in one at least of the branches of the Court of Chancery. By it no cause is to be placed in the paper as a short cause, in which any question arises or any point is to be discussed. M'Cleland, 708; 13 Price, 744. What is the ground of the practice, that in certain cases where a cause must be set down (defendant not being in custody), it may be advanced in order that the plaintiff may obtain a decree pro confesso, if it be not that such a cause is peculiarly a short cause? Mr. Sidney Smith (Chancery Practice, vol. i. p. 114, 1st ed.) in citing Hart v. Ashton, 1 Maddock, 175, where a cause was advanced for that purpose, has added a query, but without sufficient reason. In the time of Dickens such causes were heard as short causes both by the Lord Chancellor and Master of the Rolls. Rowley v. Ridley, 2 Dickens, 622, 626. But all doubt on this subject is now removed by a case before Lord Eldon, Bolton v. Glasford, lately printed from a note in the possession of the Vice-Chancellor, 5 Simons, 677. short causes, and the Court refused to give the defendant the costs of the day. Mr. Pemberton for the plaintiffs. Mr. Cooper and Mr. Dixon for the defendant. V. C. November 24, 1837. Form of creditors' decree since act rendering real estates assets for payment of simple contract debts. SARAH DAWSON, on behalf of herself and all other Simple Contract Creditors of WILLIAM DAWSON, deceased, v. JANE DAWSON and JOHN DAWSON. WILLIAM DAWSON died intestate. The defendant Jane was his administratrix, and the defendant John was his heir at law. The defendant Jane by her answer stating a great deficiency of the personal estate, it was insisted that in conformity with the policy of the act to render freehold and copyhold estates assets for the payment of simple contract debts, (3 & 4 Will. 4, c. 104,) an immediate sale of the real estates ought to be directed. But the VICE-CHANCELLOR said that the act made the real estates, of which a debtor died seised, and which he had not by his will rendered liable to his debts, assets to be administered in Courts of Equity only; that the act had not even conferred upon the simple contract creditors any remedy at law, such as the old act for the relief of creditors against fraudulent devises, (3 & 4 Will. & Mary, c. 14.,) (a) had given to creditors by bonds or other specialties in which heirs are bound, against heirs alienating before action brought, and also against devisees; that if the act had conferred any legal remedy, he was far from thinking that such circumstance would have authorised any change in the practice of Courts of Equity, when creditors thought fit to resort to that jurisdiction; that the restriction however of the remedy of simple contract creditors, as against the real estates, to Courts of Equity (a) Repealed by 11 Geo. 4 and 1 Will. 4, c. 47, an act for consolidating and amending the laws for facilitating the payment of debts out of real estate. See that act. must be taken as an indication, that in the administration of the assets it was not meant that the rules prevailing in those tribunals should be departed from; that the language of the act was similar to that of Sir Samuel Romilly's act for more effectually securing the debts of traders, (47 Geo. 3, c. 74, (a)); that where before the passing of the act suits were brought on the part of creditors against the heirs or devisees of real estates, it had not, at least of late years, been the course of the Court, without the consent of such heirs or devisees, to take effective measures against the real estate, until it had been ascertained by the report of the Master that there was a deficiency of the personal estate (b): that this was shown by the decretal forms used in numberless creditors' suits, particularly suits to have the benefit of such devises for the payment of debts, as were excepted out of the act against fraudulent devises (c), as well as in many suits for the marshalling of the assets, and in suits to have the benefit of Sir Samuel Romilly's act: that the decree must be for the common accounts of the debts and of the personal estate, to which would be added an inquiry what real estates the testator died seised of. Mr. Cooper and Mr. White for the plaintiff; Mr. Purvis for the defendants. JOHN SCHOLEFIELD V. JOSHUA INGHAM, ISAAC L. C. November 22, 1838. Question of an nual rests on bill to redeem IN 1830 the defendant Linley made a mortgage to the plaintiff, subject to a prior mortgage to the defendants Ingham, Hemsworth, and Whitaker. The defendants, against mortgagees in pos the prior mortgagees, had entered into receipt of the session. rents of the mortgaged premises in 1832, when about (a) See now 11 Geo. 4 and 1 Will. 4, c. 47. (b) See Seton on Decrees, pages 86 and 87. (c) Section 4 (3 & 4 Will. & Mary, c. 14,) repealed, but reenacted 11 Geo. 4 and 1 Will. 4, c. 47. |