Johnston v Todd
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 85
ROLLS COURT
For subsequent proceedings, see 5 Beav. 394, 597.
[218] johnston v. todd. April 29, May 2, June 25, 1840; Feb. 18, 1841. [For subsequent proceedings, see 5 Beav. 394, 597.] Disapproval of the practice of advancing money out of funds in Court, to enable parties to try an issue directed by the Court. An issue being directed which was to be conducted on one side by persons not parties to the cause, the Court refused to direct the depositions and affidavits used in the cause of witnesses who had since died, to be read on the trial of the issue. Where an issue is directed by the Court, and the Plaintiff makes default in going to trial, it will be taken pro confesso against him, unless reasonable cause for the neglect be shewn. A negotiation for a compromise held, in such a case, to be a reasonable cause. The object of this suit was to administer the real and personal estate of Eobert Marshall, the testator, who died in Jamaica in 1820. The residuary and some other legatees having died in the testator's lifetime, it became necessary to ascertain who, in the character of next of kin, and heir at law, were entitled to the undisposed-of real and personal estate of the testator. The Plaintiffs claimed to be sole next of kin. A reference had been made to the Master to ascertain the next of kin and heir at law, in which certain other persons, not parties to the cause, came in before the Master, and claimed to be the next of kin, as related to the testator in a nearer decree of propinquity than the Plaintiffs. The Master, however, reported that the Plaintiffs were the only next of kin. The other claimants took exceptions to his report, which came on for argument. Mr. J. Anderson, in support of the exceptions. Mr. Pemberton, for the executors. Mr. Kindersley, Mr. Turner, and Mr. Parry, for the Plaintiffs. Mr. Stuart and Mr. Moor, for a party claiming to be heir at law. [219] the master of the rolls, after argument, which turned principally on the evidence, directed an issue to ascertain who were the next of kin and heir at law, and he ordered the new claimants to be Plaintiffs in the issue. The Plaintiffs in the cause afterwards presented a petition to have a sum of 500 paid to them out of the funds in Court, for the purpose of enabling them to defend the iasue. They contended, that having been found to be next of kin by the Master, they had a primd facie case, and also that they had been placed in...
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