Drake v Drake
| Jurisdiction | England & Wales |
| Judgment Date | 15 July 1858 |
| Date | 15 July 1858 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 781
ROLLS COURT
[641] drake v. drake (No. 1). Jan. 28, 30, 1858. It is not proper to enter in a decree evidence as "read da lime, esxe, saving just exceptions." If its admissibility be disputed, the point should be determined by the Court. On the hearing of this case, upon a motion for a decree, inquiries were directed to be made, and some extrinsic evidence, which was objected to, was directed to be entered de bene ess?, saving just exceptions. On a subsequent clay, the master of the rolls [Sir John Romilly] said, in Drake, v. Drake, which was before the Court the other day, the facts of the case were stated to me, but no point was argued. It was said there was some evidence which it was desirable to enter as read, but its admissibility having been questioned, I directed it to be 782 DRAKE V. DRAKE 25 BEAV. 612. entered tie bene esse, saving all just exceptions. Mr. Latham, the registrar, has since very properly called my attention to two cases before Lord Cottenham, who very strongly reprobates that course, and points out the great inconvenience which arises from it, in the event of the case going to a higher tribunal. This would not occur here; but I am of opinion that the principle applies. The cases are Watson v. Parker (2 Phillips, 9) and Parker v. Morrell (2 Phillips, 453). Lord Cottenham makes observations upon the subject which induce me to consider that it would be improper to adopt the course I proposed. The result, I think, will be this: that if it be not stated in the decree that the evidence was tendered [642] and rejected, it may be used in Chambers, so far as it is proper evidence, upon the inquiries which I have directed. Unless some objection be made to that course, the evidence must not be entered in the decree, but, if the parties require it, I must have the point arising on the reception of the evidence argued and determined. Ultimately an order for preliminary inquiries was made and the motion for a decree ordered to stand over.
English Reports Citation: 53 E.R. 782
ROLLS COURT
S. C. 4 Jur. (N. S.) 727; 6 W. R. 791. Affirmed on appeal, 8 H. L. C. 172; 11 E. R. 392; 29 L. J. Ch. 850; 3 L. T. 193. Adopted, Charter v. Charter, 1874, L. R. 7 H. L. 377. See Garland v. Beverley, 1878, 9 Ch. D. 219. Distinguished, In re Ely, 1891, 65 L. T. 452. Cf. Cope v. Henshaw, 1866, 35 Beav. 423.
[642] drake v. drake (No. 2). July 13, 14, 15, 1858. [S. C. 4 Jur. (N. S.) 727 ; 6 W. B. 791. Affirmed on appeal, 8 H. L. C. 173 ; 11 E. E. 392 ; 29 L. J. Ch. 850; 3 L. T. 193. Adopted, Charter v. Charter, 1874, L. E. 7 H. L. 377. See Garland v. Brmrky, 1878, 9 Ch. D. 219. Distinguished, In re Ely, 1891, 65 L. T. 452. Cf. Cope v. Henshaio, 1866, 35 Beav. 423.] A...
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