Warner v Murdoch. Murdoch v Warner

JurisdictionEngland & Wales
CourtCourt of Appeal
[COURT OF APPEAL] WARNER v. MURDOCH. [1876 W. 133.] MURDOCH v. WARNER. [1876 M. 189.] 1877 Jan. 12, 13. JAMES, L.J., BAGGALLAY and BRAMWELL, JJ.A.

Trial by Jury - Trial before a Judge of Chancery Division - Judicature Act, 1873, ss. 29, 30, 37 - Rules of Court, 1875, Order XXXVI., rr. 1, 4, 8, 16, 29, 29a; Order XXXIX.; Order XLI., rr. 1, 5.

A trial by jury cannot be heard before a Judge of the Chancery Division. Actions commenced in the Chancery Division, if they are to be tried by a jury, must be set down in the general list, to be tried by one of the Judges of the Common Law Divisions.

Clarke v. CooksonF1 approved.

THE first of the above-mentioned actions was brought by the trustees of the United Kingdom Temperance and General Provident Institution to set aside a policy of assurance on the life of John Turner, deceased, on the ground of misrepresentation in the policy. The second action was brought by the Defendants in the first action, who were the personal representatives of John Turner, against the trustees of the company, for the recovery of the sum secured by the policy.

On the 16th of November, 1876, on the application of the Plaintiffs in the first action, the Master of the Rolls made an order consolidating the two actions, and giving the control of the proceedings to the Plaintiffs in the first action; and at the request of the Defendants in the first action he also ordered that the action should be tried before a special jury, but that the trial should not take place without further order.

On the 11th of December, 1876, by arrangement between the parties, an application was made by the Plaintiffs for a direction to the Registrar to set down the action to be tried before the Master of the Rolls with a jury, whereupon his Lordship, without hearing any argument or expressing any opinion of his own, said that he thought it right to follow the decision of Vice-Chancellor Hall in Clarke v. CooksonF2, that trials with a jury could not be heard before a Judge of the Chancery Division.

From this decision the Plaintiffs appealed.

Chitty, Q.C., and Kekewich, for the Appellants:—

Consider how the practice stood as to trials by jury before the Judicature Act. Lord Cairns' Act (21 & 22 Vict. c. 27) gave the Court of Chancery power to have cases tried by a jury before the Court itself, and the operation of this enactment was extended by Sir J. Rolt's Act (25 & 26 Vict. c. 42). The Judicature Act, 1873 (36 & 37 Vict. c. 66), did not repeal either of these Acts, but gave the High Court all the powers which the several Courts had before it passed. By sect. 23 the jurisdiction thus conferred on the High Court is, in the absence of any special provision in the Act or Orders, to be exercised, so far as regards procedure and practice, in as nearly as may be the same manner as it might have been exercised by the Courts from which it was transferred. To the same effect is sect. 21 of the Judicature Act, 1875. Now, there is nothing in the Act or Rules to prevent this jurisdiction being exercised in the same way as before. The 29th and 30th sections of the Judicature Act, 1873, are not sufficient for this purpose. Cannot v. MorganF3 contains a clear expression of opinion by the Lord Chancellor that a case may be tried by jury before the Court of Chancery. The Master of the Rolls gave no opinion of his own, but followed the only reported case on the subject, Clarke v. Cookson. The Vice-Chancellor there refers to several sections of the Act which, it is submitted, do not justify his conclusion. Sect. 29 is an enabling clause, and does not appear to exclude trials by a jury elsewhere. Sect. 30 prescribes that sittings for trial by jury are to be held in...

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3 cases
  • Secretary of State for War v Studdert
    • Ireland
    • Court of Appeal (Ireland)
    • 17 June 1902
    ...11 Ch. D. 240. The Temple BarELR 11 P. D. 6. Timson v. WilsonELR 38 Ch. D. 72. Walsh v. RyanIR [1895] 1 I. R. 504. Warner v. MurdochELR 4 Ch. D. 750. Wedderburn v. PickeringELR 13 Ch. D. 769. 240 THE IRISH REPORTS. [1902. SECRETARY OF STATE FOR WAR v. STUDDERT (1). (1901. No. 44.) Practiceâ......
  • Rodway v R
    • Australia
    • High Court
    • Invalid date
  • Lord Defreyne v Fitzgibbon and Others
    • Ireland
    • Chancery Division (Ireland)
    • 13 July 1904
    ...(1) The pleadings are fully given, ante, p. 402, et seq. (1) Unreported. (1) Unreported. (1) [1904] A. C. at p. 188. (1) 2 Ch. D. 746. (2) 4 Ch. D. 750. (3) 20 Ch. D. ...

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