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![handle is hein.slavery/ssactsengr0670 and id is 1 raw text is: CORBET V. DAVENANT
[252] CORBET against DAVENANT. Lincoln's Inn Hall, July 21, [1787].
Commissioners making different returns, a new commission ordered ; but the defend-
ants should not have excepted, but moved to suppress the returns (see accordingly
Watson v. D. of Northumberland, 11 Ves. 153, and upon the principal case, ibid.
159, per Lord Eldon, C.) ; the deposit therefore ordered to be paid to the plaintiff.
A commission having issued, to four commissioners to make partition, two of them
made one return, and the two others another perfectly different, and awarding different
parcels to the parties. The defendants took exceptions to both the returns. Upon
the exceptions coming on to be argued, Mr. Mansfield objected, that the cause could
not go on, as the Court could not prefer one return to the other.
Lord Chancellor [Thurlow] refused to proceed, and ordered a new commission to
issue ; but said, the defendants should not have excepted to the returns, but moved
to have them suppressed, and therefore ordered (Note: Both the returns were ordered
to be quashed, &c. Reg. Lib.) the deposit to be paid to the plaintiff. (Reg. Lib. 1786,
A. fol. 593.)
COOKSON against ELLISON. Lincoln's Inn Hall, July 21, [1787].
[Over-ruled, Jerrard v. Saunders, 1794, 2 Ves. jun. 457; and see cases cited in note(l),
infra.]
[S. C. 2 Bro. C. C. 307; 3 Bro. C. C. 61 ; 1 Ves. jun. 100; and 2 Cox. 220.]-It is no
answer on exceptions, that the defendant is a mere witness, and ought not to have
been made a party, for, having submitted to answer, he must answer fully.(1)
The plaintiff made a party defendant, who was merely a witness to a conversation
[with her late husband and testator relative to the fortune of his daughter, the defendant's
wife], and might have been examined as such, and therefore might have demurred to
the bill. (Note : Or might plead if the objection did not appear on the face of the bill.
See Beames on Pleas, 131 and 256.) The defendant put in an answer, and not having
satisfied the plaintiff as to one interrogatory [viz. whether, if any promise was made
by the testator, he did not in the course of the conversation retract the same (Note :
This is an addition of Mr. Brown in his own copy)], the plaintiff took an exception,
and the Master reported the answer sufficient. Upon exceptions to the Master's Report,
it was objected, that the defendant need not have answered at all, but might have availed
himself by demurrer or plea.
Lord Chancellor said, as the defendant had submitted to answer, he could not
enter into the question, whether a demurrer or plea would have been allowed ; that the
practice of making a mere witness a party, was extremely wrong, and that he should have
encouraged a plea or demurrer, had it come on in that shape ; but that where a party
submits to answer, he must answer fully, and therefore the question being such as would
be clearly relevant if put to a party properlybefore the Court, he must allow the exception.
(Reg. Lib. 1786, A. fol. 596.) (Note : The exception was allowed, so far as related
to the second exception taken by the plaintiff to the defendant, S. Buck's answer, as
he was required to answer ' whether the testator did not in the course of such treaty
withdraw or retract such promise or engagement.' As to the rest it was overruled ;
and the deposit was divided. Reg. Lib. This course is now most frequent, see Dawson
v. Busk,. 2 Madd. Rep. 184.)
(1) Though Sir L. Keynon, M. R., was of a different opinion in Newman v. Godfrey, 2
Bro. C. C. 332, and held, that a mere witness, who being made a defendant thought proper
to put in an answer, should not be held to answer throughout, having already given more
information in that way than he could otherwise have been compelled to do ; yet Lord
Thurlow's decision seems the more sound, and had been approved by Lord Eldon, C.
See in Fenton v. Hughes, 7 Ves. 288, 289, and Baker v. Mellish, 11 Yes. 75, 76, &c.
[253] CREUZE against The Bishop of LONDON and Others. MITCHELL against HUNTER
and Others. Lincoln's Inn Hall, July 23, [1787].
Exception to a Master's report of a proper person to be receiver overruled ; as the report
ought to stand till the party approved is impeached as an improper person.(1)
An exception to the Master's report, by which he approved of a receiver of the rents
of the estates of Charles Orby Hunter, Esq., because he had approved of Mr. Pardon,
whereas he ought to have approved of Mr. Burn.
140
2 BRO. C. C. 252.](ViewImageLocal?handle=hein.slavery/ssactsengr0670&div=1&collection=&method=preview&ext=.png&size=3)