Hunt v Neve
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 1863 |
| Date | 17 July 1863 |
| Court | High Court of Chancery |
English Reports Citation: 71 E.R. 110
HIGH COURT OF CHANCERY.
Practice. Cause and Cross - cause. Cross - examination.
110 NEVE V. PENNELL 1H.&M. 252. [252] neve v. pennell. hunt v. neve. June 25, 1863. Practice. Cause and Gross-cause, Cross-examination. Where a suit is brought on by motion for decree, and issue is joined in a cross-suit, and an order is obtained by the Plaintiff in the original suit for him to use in the cross-suit affidavits filed in his own suit, it is at the option of the Plaintiti' iti the cross-suit either to treat these affidavits as filed in the original suit, and so cross-examine the witnesses before an Examiner, or to consider them as evidence to be used in his own suit, and give notice of cross-examination in open Court at the hearing. These suits were cause and cross-cause. Notice of motion for a decree had been given in Neve v. Pennett, and replication had been filed in Hunt v. Neve ; and it had been arranged between the counsel on both sides that, in order to save expense, the evidence should only be filed in one suit, and an order should be obtained for reading it in the other. At the time when this arrangement was made Hunt had declared his intention of cross-examining Neve in open Court at the hearing of Hunt v. Neve. In pursuance of this arrangement various affidavits were filed in Neve v. Pennell, and, amongst others, an affidavit of the Plaintiff; and an order was obtained as of [253] course in Hunt v. Neve, dated June 2d, 1863, in the following terms :- "Upon the humble petition of the Defendant, William Tanner Neve, this day preferred unto the Kight Honourable the Master of the Rolls, for the reasons therein contained, it is ordered that the Petitioner be at liberty at the hearing of this cause to read and make use of the following documents filed in a certain other cause in this Court of Neve v. Pennell, that is to say, an affidavit of William Tanner Neve, an affidavit of Maria Neve," and certain other affidavits, and a paper of admissions therein specified. A similar order was obtained by Hunt. The time for filing evidence in Hunt v. Neve expired on the 4th June 1863; and on the next day Hunt's solicitors gave him notice that he would be required to produce himself at the hearing for cross-examination on the affidavit above mentioned. They also on a subsequent day obtained an appointment in Neve v. Pennell for cross-examination of Maria Neve on her above-mentioned affidavit before one of the Examiners of the Court. On the 17th of June Neve's solicitors wrote a letter to Hunt's solicitors, suggesting that the proper course would be to have Neve's cross-examination conducted before the Examiner; to which Hunt's solicitors replied on the 19th of June, by a letter which insisted on his cross-examination in open Court as a right. Mr. A. E. Miller, for Hunt, now moved that Neve should be ordered to attend at the hearing of Hunt v. Neve-for cross-examination on his affidavit. The 7th rule of the Order on Evidence provides (G. 0. 5th Feb. 1861) that no cross-examination shall take place in a cause in which issue is joined otherwise than [254] in open Court, except in four special cases, none of which have any application to the present case. The moment the order of 2d June was obtained the affidavit in question became evidence to be used at the hearing of Hunt v. Neve, and therefore within the General Order referred to. This was no surprise on Neve, who had express notice that this cross-examination was intended ; and the order of 2d June would have been opposed had it been supposed that any attempt to avoid this cross-examination would be made. Mr. Wickens, for Neve. This is a pure point of practice. The affidavit in question is merely an affidavit in Neve v. Pennell, and therefore cross-examination upon it ought to take place in that suit, in which case it would necessarily take place before an Examiner. Doubtless, an order has been obtained giving leave to use in Hunt v. Neve evidence filed in Neve v. Pennell; but still that evidence is merely evidence in the last-named suit, and is subject to all the incidents of such evidence. 1H. &M. 235. DAVIS V. DAVIS 111 Hunt has himself taken this view of the affidavit of Mrs. Neve, which is exactly in the same position as that of Neve. VlCE-CHANCELr/m Sir W. page wood. I think, if the order of 2d June had been to tbe effect that all the evidence in Neve v. Pennell was to be used as evidence in Hunt v. Neve, there might have been some ground for Mr. Wickens's contention ; because in that case all the evidence, both direct and in cross-examination, would at once have become available in both suits, and there would, strictly speaking, he no evidence whatever in the cross-suit. But here I have merely an order that certain specified affidavits and admissions may be used in the [255] cross-suit, an order made to save the expense of filing them twice; and under these circumstances I do not think that any cross-examination which might be had in Neve v. Pennell before an Examiner could be used, in the face of this G-eneral Order, in Hunt v. Neve. That being so, I think Hunt is in the same position as if these affidavits had each been filed in both causes, and that Mr. Miller has a right to say, "I will exercise my own discretion in which cause I will cross-examine any particular witness;" and that he is entitled to cross-examine one witness before the Examiner, treating his affidavit as filed in the original cause, and another in open Court, treating his affidavit as filed in the cross-cause, if he see reason for taking that course. Order Neve to be produced for cross-examination at the hearing ; and, Hunt agreeing to waive formal notice, make a similar order as to him. And, by consent, direct all cross-examinations taken in either cause to be used in both.
English Reports Citation: 71 E.R. 427
HIGH COURT OF CHANCERY.
S. C. 33 L. J. Ch. 19; 9 L. T. 285; 11 W. R. 986. See In re Wight's Mortgage Trust, 1873, L. R. 16 Eq. 48; Pledge v. White [1896], A. C. 195.
Mortgage. Consolidation. Priority. Middlesex Registry Act. Time of Registration.
[170] neve v. pennell. hunt v. neve. July 15, 17, 1863. "[S. C. 33 L. J. Ch. 19 ; 9 L. T. 285 ; 11 W. R. 986. See In re Wight's Mortgage Trust, 1873, L. R. 16 Eq. 48; Pledge v. White [1896], A. C. 195.] Mortgage. Consolidation. Priority. Middlesex Registry Act. Time of Registration. A mortgagee, having a number of mortgages over different properties, all created by the same mortgagor, is entitled, as against a puisne mortgagee of one of these properties, to consolidate all his mortgages. Arid this right is not affected by the circumstance that such puisne mortgagee is really prior in point of date, and merely postponed by the operation of the Registry Act; nor by the circumstance that the mortgage, in respect whereof the right to consolidate is claimed, is equitable merely, arid that the puisne mortgagee had no notice thereof. An agreement that a deposit of title-deeds of lands in Middlesex shall be made to secure the payment of a debt, containing a, provision that a legal mortgage shall be given upon demand, is a document requiring registration under the Act (9 Anne, c. 20). (1) Ex parte The Bishop of London, 2 De G. F. & J. 14 ; and see Re Lord Lonsdale's -S. E., 11 W. R. 410; Be Byron's Estate, 1 De G. J. & S. 358. 428 NEVJi V. PENNELL 2H. &M. 171. Where two deeds are both registered in the Middlesex Registry on the same day and at the same hour, that which is denoted by the earlier riumbei- must be, in the absence of direct evidence to the contrary, presumed to have been first registered. Such priority of registration is, in the absence of notice, sufficient under the Act to give priority of charge to a mortgage posterior in date to that created by the deed so subsequently registered. David Hughes, the well-known solicitor of Gresham Place, was for some time before he absconded [171] from this country, as hereinafter mentioned, largely concerned in speculations with building land. Amongst other property acquired by him in the course of these speculations were certain lands at Dalston...
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