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![handle is hein.slavery/ssactsengr0358 and id is 1 raw text is: LAWRENCE V. MAUD
[481] LAWRENCE, Attorney of Thomas v. MAUD AND PICKWELL. Prerogative
Court, Trinity Term, 1st Session, 1823.-Quwre, whether the Court has power
to rescind the conclusion of a cause, after sentence, against the sense and consent
of the party for whom it was given. Parties praying to be heard upon their
petition, as to any question, in the exercise of any other than a sound discretion,
do so at the imminent risk of costs.
(Oin petition.)
This was all application to the Court to rescind the conclusion of a cause, after
sentence, but with a question still outstanding as to costs,(a)l under the circumstances,
and for the purpose stated in the judgment, made in behalf of Mary Maud and Sarah
Pickwell, and opposed on that of Frances Mary Thomas respectively, parties in the
cause. It was made, ill the first instance, on a motion which, being 6pposed, the Court
declined acceding to. It was then renewed, as were also Mrs. Thomas's objections in
the present act on petition, which was sustained in the usual manner on both sides
by exhibits and affidavits.
Jugmet-Sir John Nicholl. This was originally a cause of interest (see page 331,
ante) between Frances Mary Thomas, alleged to be cousin german once removed, and
Mary Maud and Sarah Pickwell, alleged to be the second cousins of Elizabeth Harrison,
the party deceased in the cause. The intcrests of the parties were propounded
re-[482]-spectively in two several allegations; but it was agreed (a)2 that evidence
should be taken upon that of Mrs. Thomas alone, she being alleged of kin to the
deceased in the superior or nearer degree. The parties entered into this agreement
in consequence of the recommendation of the Court (see pages 334-336, ante), founded
upon a suggestion that Maud and Pickwell, in the event of Mrs. Thomas proving her
allegation, had no interest upon their own showing ; and that, failing to prove it, she,
Mrs. Thomas, had no concern with the case set up by Maud and Pickwell; which,.
whether proved or not, must, to her, be matter purely inditferent.
Accordingly, evidence was taken upon Mrs. Thomas's allegation only, or rather
upon such articles of it (being those subsequent to the I1th article inclusive (c)) as
went to the single fact really at issue [483] between the parties, namely, the marriage
of Peter Harrison, uncle of the deceased and grandfather of Mrs. Thomas, with.
Elizabeth (Pelham) her grandmother, and the consequent lawful descent of Mrs.
Thomas from this Peter Harrison, whom Maud and Pickwell alleged to have died
a bachelor. And upon publication of this evidence, and its perusal by both parties,
the fact of such lawful descent of Mrs. Thomas from Peter Harrison appeared to be
so fully substantiated, that administration of the deceased's effects was decreed to
Mr. Lawrence, as her attorney, without opposition on the part of Maud and Pickwell,
their proctor declaring that he proceeded no further in the cause. This decree
passed oil the 4th Session of Hilary Term in the present year; and the question of
costs stood for the bye-day. In the mean time, however, the proctor for Maud and
Pickwell received from America certain documents to the effect which I shall presently
state, upon which the present application founds itself ; in disposing of which the first
point for consideration is the precise nature and object of the application itself.
(a)' In pronouncing for the interest of Mrs. Thomas, the Judge had refused to give
costs ; whereupon her proctor, on behalf of his party, had prayed to be heard on his
petition, as to this question of costs on the bye-day.
(a)2 This could only be by agreement-the rule being, incauses of interest, that the
parties shall propound their interests and proceed throughout in proof of them, pari
passu, even where the alleged next of kin, as in this case, are in different degrees of
relationship. This rule also obtains in the case of an executor setting up a will, and a
party claiming to be next of kin, whose interest is denied. But where an administra-
tion has been fairly and regularly taken the rule varies; for the administrator in such
case is not bound even to propound his interest till that of the party questioning it
has first been both propounded and proved. See Dabbs v. Chisman, &c., 1 Phill. 135.
(c) The proctor for Maud and Pickwell had admitted in an act or minute of Court
Mrs. Thomas's allegation, as laid to the 1 th article inclusive, in return for permission
given him, in the same act or minute, by the adverse proctor, to question or deny the
rest of the allegation, without propounding (for the actual admission of Maud and
Pickwell's allegation stood over) and going on to prove his clients' interest to question
or deny it in the first instance-that is, in other words, without proceeding pari passu
in the cause.
I ADD. 481.](ViewImageLocal?handle=hein.slavery/ssactsengr0358&div=1&collection=&method=preview&ext=.png&size=3)