Clarke v Law
| Jurisdiction | England & Wales |
| Judgment Date | 12 November 1855 |
| Date | 12 November 1855 |
| Court | High Court of Chancery |
English Reports Citation: 69 E.R. 680
HIGH COURT OF CHANCERY
S. C. 2 Jur. (N. S.) 228; 4 W. R. 35. See In re Quartz Hill, &c., Mining Company, 1882, 21 Ch. D. 642.
New Practice. Party. Witness. Cross - examination on Affidavit before Evidence closed. 15 & 16 Vict. c. 86, ss. 38 and 40.
[28] clarke v. law. Nov. 12, 1855. [S. C. 2 Jur. (N. S.) 228; 4 W. E. 35. See In re Quartz Hill, &c., Mining Company, 1882, 21 Ch. D. 642.] f New Practice. Party. Witness. Cross-examination on Affidavit before Evidence closed. 15 & 16 Fief. c. 86, ss. 38 and 40. A party to a cause, filing or giving notice to read an affidavit before the evidence is closed, may be cross-examined upon such affidavit at once, without waiting until the evidence is closed. A party having filed or given notice to read an affidavit is not at liberty to withdraw it. This was a bill for an injunction to restrain an ejectment. [29] An interlocutory motion for the injunction had been made. Interrogatories were filed on the 23d of March 1855. The answer of the Defendant, Law, was put in on the 18th of June 1855. On the 25th of June replication was filed, and a special Examiner was appointed to take the evidence. Pending the examination Law gave notice of his intention to read at the hearing an affidavit made by him upon the interlocutory application in the cause, and the Plaintiff thereupon 2K. &J. 30. CLARKE V. LAW 681 required him to submit to cross-examination before the special Examiner. To this Law objected, on the ground that the evidence was not closed; and therefore, under the 38th and 40th sects, of 15 & 16 Viet. c. 86 and the orders of January 1855, the time for cross-examining the Defendant on his affidavit had not arrived. Law had since given notice that he wished to withdraw the affidavit. Mr. Daniel, Q.C., and Mr. Welford, for the Plaintiff, referred to sects. 38 and 40 of 15 & 16 Viet. c. 86, and the 5th Order of January 1855, and cited Williams v. Williams (17 Beav. 156), which decided that the words of s. 40 of the 15 & 16 Viet, c. 86 included motions for decree, and Lloyd v. Whitty (19 Beav. 57), in which a motion for an injunction having been ordered to stand over, with liberty to bring an action, it was held that a witness who had made an affidavit on the motion might be cross-examined thereon before the trial. Mr. Bolt, Q.C., and Mr. Bates, for the Defendant, argued that the Defendant was a witness, and that by sect. 38 he could not be cross-examined until after...
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