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![handle is hein.slavery/ssactsengr0790 and id is 1 raw text is: MANLY V. SAINT
it. I should be unwilling to go so far as to say, that, if an attorney has notice of a
transaction in the morning, he shall be held in a Court of Equity to have forgotten
it in the evening. It must, in all cases, depend on the circumstances.
His Lordship said, it was contended, that that case was the only one applicable to
the present case; but it did not appear that, in that case, the solicitor had the
previous transaction in his mind at the time of the second transaction. In that view
of the case it is clearly not applicable to the present case. His Lordship was, therefore,
clearly of opinion, that the mortgage to the Plaintiffs had priority to the second
mortgage to the executors.
Counsel.-Mr. Pemberton, Mr. Kindersley, Mr. Walker, and others.
Cases cited.-Warrick v. Warrick, 2 Atk. 294; Stedd v. Whitaker, Barnard. 220;
Hiern v. Mill, 13 Ves. 121 ; Mountford v. Scott, 3 Mad. 34 ; Hamilton v. 1?oyse, 2 Scho.
& Lef. 327; the last ed. of Sugden's V. &. P.; Lowther v. Carlton, 2 Atk. 242;
Brotherton v. Hat, 2 Vern. 574; Le Neve v. Le Neve, 3 Atk. 646; Tunstall v. TraTpes,
3 Sim. 286.
LORD CHANCELLOR'S COURT.
[40] MANLY V. SAINT. March 11 [1836].
Practice. Enlarging Publication.
After an undertaking to speed, by which the Plaintiff was bound to pass publica-
tion in Hilary term, 1836, and to set down his cause in Easter term following, the
Plaintiff applied, by motion, to the Vice-Chancellor, on the last day of Hilary term,
for an order to enlarge publication till the first day of Easter term, and for a
commission to examine witnesses. On the motion being made, it was admitted that
the application to enlarge publication ought, under the terms of the orders of the
Court, to be made before one of the Masters; and the Plaintiff's motion having been
for a commission as well as to enlarge publication, he was allowed to save his notice
of motion till the second seal after term (that is to say), until the question as to
publication was decided. The affidavit filed in support of the motion to enlarge
publication, made by the solicitor of the Plaintiff, alleged illness on the part of the
solicitor, and great distress of mind occasioned by the death of a near relation, which
prevented his attending to basiness.
The Master, though he admitted that this affidavit, filed in support of the motion,
did not make out a sufficient case to warrant the application, decided on enlarging
publication, on the ground, [41] that if the Defendant would consent to having the
cause set down in the same term in which publication passed, he would not suffer any
delay; and upon the Defendant refusing to bind himself by any terms, declined
making any order as to costs.
From this order the Defendant appealed.
THE LORD CHANCELLOR [Cottenham], after stating that the case was one in which
the Defendant could not suffer from the delay, he should allow the Plaintiff to enlarge
publication, but, upon terms, directed the counsel for the Defendant to state what
terms he required.
And on the following morning, it was ordered, by arrangement between the
counsel of the parties, that the Plaintiff should be allowed to enlarge publication till
the end of Easter term, and have his commission to examine witnesses, upon payment
of the costs of the motion before the Vice-Chancellor, and the costs of the application
to the Master : the costs of the appeal to be costs in the cause.
Counsel.-Mr. Wigram, Mr. Jacob, Mr. Knight, Mr. Hethrington, Mr. Webster.
Cases cited.-hitelocke v. Baker, 13 Ves. 512 ; Hewes v. Hewes, 4 Sim. 1.
213
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