Rehden v Wesley
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1861 |
| Date | 08 February 1861 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 965
ROLLS COURT
26 BEAV. 432. REHDEN V. WESLEY 905 [432] rehden v. wesley. March 22, 1859. On a notice of motion for a decree, the Plaintiff had given notice to use the answers of some of the Defendants. Held, that he might cross-examine those Defendants on their answers, without prejudice to the right of the other Defendants to object to the cross-examination being used against them. But held, also, that the Plaintiff could not examine, in chief, other witnesses not mentioned in his notice of motion for a decree. This suit was instituted by a legatee against Wesley and Alexander (the executors), and against other persons interested under the will. The bill prayed for the administration of the trusts of the will, and sought to make the executors liable for wilful default. On the 2d of March the Plaintiff gave notice of motion for a decree for the 4th of April, and specified that at the hearing of the motion, and in support thereof, she would read the answers of the executors, Wesley and Alexander. On the 15th of March the Plaintiff summoned the executors to attend at the Examiner's office, on the 18th of March, to be cross-examined on their answers. The Plaintiff also subpcenaed other witnesses to be examined in chief, who were not referred to in the notice of motion for a decree. The executors declined to be sworn, and the matter was thereupon referred into Court. Mr. Waller, for the Plaintiff, cited Wicjhtman v. fHieelton (23 Beav. 397), and was stopped by the Court. Mr. Smythe, for Wesley and other Defendants. The Plaintiff has given notice that she will use the answers [433] in support of her motion for a decree. She has thereby made the answers her own evidence, and it is not competent for her to crosa-examine witnesses whose answers she has elected to use on her own behalf. It is the same as if she had examined an independent witness in chief: she could not cross-examine him. Kay v. Smith (20 Beav. 566) was overruled by Man/iy v. Bewicke (26 Law J. Ch. 20). On a motion for a decree, the answer of a Defendant may be read against him without notice; but the answer of one Defendant cannot be read against another Defendant without it; Cmisins v. Fdsey (9 Hare, Ixi.); it is therefore intended to use the answer of one Defendant as evidence against another Defendant, if so, the latter alone has the right of cross-examination. Secondly. The Plaintiff proposes to examine witnesses in chief who are not...
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Equitable compensation for breach of trust: off Target.
...LJ), 31 (Chitty LJ), affd Sharp v Jackson [1899] AC 419, 446 (Earl of Halsbury LC). (92) See Rehden v Wesley (1861) 29 Beav 213, 215; 54 ER 609, 609-10 (Sir John Romilly MR); Re Salmon; Priest v Uppleby (1889) 42 Ch D 351, 367 (Cotton (93) If the beneficiaries wish to have the amount that w......