1829.

CARRINGTON

v.

CORNOCK.

mination of Witnesses on their behalves, whereby he was debarred from cross-examining the Witnesses produced and examined under that Commission.

Mr. Bickersteth, in support of the Motion, cited the Mayor of London v. Perkins (a), Williams v. Broadhead (b); and said that the reason why the application was refused in Goodenough v. Alway (c), was, that the depositions had been taken in another Court.

Mr. Sugden, for the Plaintiff:

If the Witnesses are living, is not the Plaintiff to have an opportunity to cross-examine them in this Suit? In Goodenough v. Alway the decision did not turn on the other Suit being in the Exchequer, but because it was not between the same Parties. The Tithes demanded in these two Suits are not the same; for the Tithes of Milk and Foals are sought to be recovered in one Suit, and not in the other. Eade v. Lingood (d), Mackworth v. Penrose (e).

Mr. Bickersteth, in reply:

The Bill in this Cause is filed for Tithes of the same Parish, and against Persons standing in the same situation as the Defendants in the former Suit, and though the defence set up in this Suit might have been different from the defence made in the other, yet that is not the case; for the Answer has been put in and replied to in this Cause, and it appears that there is no difference between the defences made in the two Suits.

[The Vice-Chancellor :-It appears that the Witnesses, whose depositions were sought to be read in the Mayor of London v. Perkins, were all dead.]

As the order is applied for, saving all just exceptions, if it appears that any of the Witnesses, whose depositions are proposed to be read, are living, their testimony may be objected to. The only objection made by the Plaintiff, is that he did not cross-examine the Witnesses; but it was his own neglect, and the Defendants are not to be prejudiced by it.

The VICE-CHANCELLOR:

If it appears that any of the Witnesses in the Cause of Carrington v. Jones are dead, the Court will order that their depositions may be read in this Cause, saving just exceptions. But, before the Court can make that order, it ought to appear, by Affidavit, which of the Witnesses are dead.

An Affidavit was afterwards made, by the Solicitor for the Defendants, stating that five of the Witnesses in Carrington v. Jones, whose names were mentioned, were dead; upon which the Court ordered that the Defendants should be at liberty to read, at the hearing of the Cause, the depositions of those five Witnesses, saving just exceptions.

1829.

CARRINGTON

v.

CORNOCK.

25th July.

570

MEMORANDA.

Mr. Knight in arguing a case of Cliffe v. Wilkinson, in Hil. Term 1831, stated that Sir Anthony Hart, on a day subsequent to that on which he had made the order in Camac v. Grant, ante vol. i. 348, had directed that the order should not be drawn up, as he did not consider himself to be warranted, by the practice of the Court, in making it.

The Decision in Prebble v. Boghurst, reported ante, p. 246, was affirmed by Lord Lyndhurst, C. on the 22d day of Nov. 1830.

The question that arose in Williams v. Thorp, reported ante, p. 257, again came before the Court, upon the hearing of a Bankrupt Petition, ex parte Colville, in the matter of Severn, at the Sittings after Michaelmas Term, 1830. On the 10th of January 1831, The Vice-Chancellor delivered Judgment, in which he adhered to his Decision in Williams v. Thorp, and concluded by saying that, upon the whole he was bound to declare the Law to be that, where a person who has effected an Insurance on his Life, assigns the Policy and delivers it to the Assignee, but does not give notice of the Assignment to the Insurers, if he afterwards becomes Bankrupt, the Assignment is void as against the Assignees under the Commission.

To the case referred to ante, p. 454, note (a), add Thring v. Edgar, 2 Sim. & Stu. 274, Sanders v. King, ibid 277, and Pennington v. Beechey, ibid 282.

The case of Jones v. Yates, referred to ante, p. 470, note (k), is reported in 2 Young & Jer. 373.