Johnston v Todd
| Jurisdiction | England & Wales |
| Judgment Date | 23 May 1845 |
| Date | 23 May 1845 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 630
ROLLS COURT
S. C. 5 Beav. 597.
[394] johnston . todd. Feb. 14, 1843. [S. C. 5 Beav. 597.] A. and B. were found to be next of kin by the Master, who rejected C.'s claim. C. excepted to the report, and upon an issue directed by the Court, he was found to be sole next of kin. A. alone moved for a new trial. Held, that B. might be heard in support of the motion. The question in the cause was who was entitled to the residuary estate of Robert Marshall deceased. (3 Beav. 218.) On a reference to the Master, he found the Plaintiffs and certain of the Defendants to be his next of kin. Peter Marshall, who was not a party to the cause, having claimed to be next of kin, the Master of the Rolls directed an issue, to try "whether Peter Marshall of, &c., was the next of kin of Robert Marshall, the testator, at the time of his death, which took place in or about the month of December 1820." (1) See Kinder v. Forbes, 2 Beav. 503; Weymmth v. Lambert, 3 Beav. 333; Lane v. Hardwcke, 5 Beav. 222; Holhouse v. Courtney, 12 Sim. 140. BBEAV.SM. CATTELL V. SIMONS 631 Peter Marshall was directed to be Plaintiff in the issue, and the Plaintiffs in equity were to be Defendants at law, and the Defendants in equity were all to be at liberty to attend the trial. The jury found in favour of the claim of Peter Marshall, whereupon the Plaintiffs in equity gave notice of motion for a new trial of the issue, but the Defendants in equity gave no such notice. Mr. Kindersley and Mr. Parry, for the Plaintiffs in equity, were heard in support of the motion ; after which, Mr. George Turner, for the Defendants in equity, was proceeding in support of the motion, when Mr. S. Wortley, Mr. Anderson, and Mr. Monteith, for Peter Marshall, objected that he could not be heard, his [395] clients not having given notice of motion. They argued, that this was like the case of exceptions to a Master's report, in which none but the excepting parties could be heard against the report; or the case of an appeal, in which the Appellants only could be heard against the decree. They cited Stubbs v. Sargon (3 Beav. 408. And see Bonser v. Cox, 4 Beav. 379 ; and Attorney-General v. Potter, ante, 168), to shew that the same principle applied to the case of a motion. [THE master OP the eolls. There is a distinction between the case of an appeal from the whole decree and from part.] Mr. Turner, contra. The general rule is, that the Court will not make an order affecting the interests of parties, without giving them all an opportunity of being heard. In the instances referred to, there was an existing order or decree of the Court, of which a party could not complain unless he gave notice or appealed; here there is none, the object of the issue being only to inform the conscience of the Court. Mr. S. Wortley, in reply. the master op the rolls [Lord Langdale]. It is strange that no direct authority has been produced on this point; but as the matter stands, I think Mr. Turner must be heard. The Master has found in favour of his clients, and all proceedings which have subsequently taken place were for the purpose of assisting the Court in determining on the validity of the Master's finding. [396] All persons interested in a report have a right to support the Master's finding, and I therefore think the parties are entitled to be heard, because that which is now asked to be done tends to disturb the report.
English Reports Citation: 49 E.R. 710
ROLLS COURT
710 JOHNSTON V. TODD 8 BEAV. 597. [597] johnston v. todd. Feb. 14, 15, 20, 1843. Observations on traditionary evidence in pedigree cases, and its fallibility. It is not to be wholly rejected because error is proved as to part. The veracity, or even accuracy, of an ignorant and illiterate person, is not to be conclusively tested by comparing an affidavit made by him, with his vivd voce testimony; discrepancies between them is not conclusive against his testimony. Observations on the value of testimony given by affidavit. When the witness is ilb'terate and ignorant, the language is not his own, but that of the person preparing the affidavit; being taken ex parts, it is almost always incomplete, and often inaccurate. Where on an issue, the evidence is fairly before the jury, and the Judge is satisfied, there is great difficulty in supporting a motion for a new trial on the ground that the verdict is not supported by the evidence; but the Court will, nevertheless, entertain the motion, and attend to the course of the trial, the issue having been directed for its satisfaction. This case has been several times before the Court. (See 3 Beavan, 218; and 5 Beav. 394.) It now came on upon a motion for a new trial of an issue directed by the Court. The facts are sufficiently stated in the judgment of the Court. Mr. Kindersley and Mr. Parry, in support of the motion. Mr. Turner, in the same interest. Mr. S. Wortley, Mr. J. Anderson, and Mr. Monteath, contra. the master of the rolls [Lord Langclale]. An issue having been directed to try whether Peter, the son of John Marshall of Longformacus was the next of kin of Robert Marshall the testator, at the time of his death, and the jury having found in the affirmative, a motion is now made for a new trial. There is not, on this occasion, any complaint that evidence has been improperly rejected or admitted; it is [598] not alleged that any new evidence has been discovered, or that all parties did not come fully prepared for the trial, or that the true-state of facts, as appearing by evidence, was not duly presented to the jury; and though some observations were made on the summing-up of the Judge, from which it may be collected that the Defendants considered that some things might have been more favourably stated for them, no allegation is made that the jury were misled by any misdirection. The sole ground of the application is the allegation that the verdict is not...
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Libke v The Queen
...577–578 per van der Riet J. 57 Wigmore, Evidence in Trials at Common Law, Chadbourn ed (1970), vol 3, at 173 [781]. 58Johnston v Todd (1843) 5 Beav 597 at 601–602 [ 49 ER 710 at 59Elliott v Boyles 31 Pa 65 at 66 (1857) per Lowrie J. 60Mechanical and General Inventions Co Ltd v Austin [1935]......
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Libke v The Queen
...577–578 per van der Riet J. 57 Wigmore, Evidence in Trials at Common Law, Chadbourn ed (1970), vol 3, at 173 [781]. 58Johnston v Todd (1843) 5 Beav 597 at 601–602 [ 49 ER 710 at 59Elliott v Boyles 31 Pa 65 at 66 (1857) per Lowrie J. 60Mechanical and General Inventions Co Ltd v Austin [1935]......
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Libke v The Queen
...577–578 per van der Riet J. 57 Wigmore, Evidence in Trials at Common Law, Chadbourn ed (1970), vol 3, at 173 [781]. 58Johnston v Todd (1843) 5 Beav 597 at 601–602 [ 49 ER 710 at 59Elliott v Boyles 31 Pa 65 at 66 (1857) per Lowrie J. 60Mechanical and General Inventions Co Ltd v Austin [1935]......
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Re The London Dock Company
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