This demurrer was filed on the 21st of March, and by Lord Cottenham's Order, it became incumbent on the Plaintiff to set it down for argument within twelve days. It is said that the Plaintiff was desirous of setting it down at once, but was prevented, because the preliminary step of entering it had not been taken by the Defendant that the Plaintiff was therefore compelled to wait till the end of the eight days, and the Defendant not having entered the demurrer with the Registrar, the Plaintiff is entitled to have it overruled. When an application was made to me on a former occasion, I directed the objection to stand over, and gave leave to the Plaintiff to set down the demurrer for argument, without prejudice to his right to insist on his objection.

We are now in this situation : -the Defendant, alleging that he has cause of demurrer, is desirous of submitting it to the Court to-day. The Plaintiff says, no, I will take advantage of non-entry, and the demurrer must be overruled. Suppose all this were done, the Defendant would still be allowed to make a special application to be relieved, and to have the demurrer heard. How, therefore, any advantage can arise by refusing to hear the demurrer now, I cannot make out.

It is said that this course is warranted by the strict practice. Now, as to the practice, it is plain, that these demurrers were, in ancient times, referred to the Master. Lord Bacon's Order was made to prevent it, and directs that no reference upon a demurrer shall be made to the Masters, but that it shall be heard in Court. For that purpose it was necessary that it should be set down, but no provision for setting it down was made by Lord Bacon's Order; and the hearing, therefore, of the demurrer might be indefinitely delayed. To meet this,

VOL. VII.

S

the

1844.

DALTON

บ.

HAYTER.

1844.

DALTON

v.

HAYTER.

the Order of Lord Coventry was made (a), which evidently proceeded on the supposition, that the entry was for the purpose of setting it down to be heard by the Court; for the Registrar, at the instance of the party demurring, was to "put it into the paper of causes after the hearings, assigning a speedy day to every one in order."

This Order was varied by Lord Clarendon's Order, directing demurrers to be determined in open Court, "and for that purpose the Defendant was to enter the same with the Registrar within eight days after the filing." It was to be entered with the Registrar, for the purpose, no doubt, of being set down to be heard by the Court. It is clear, however, from the subsequent practice, that the entering and setting down was not, afterwards, considered the same thing, for after entry with the Registrar, another application was necessary to have it set down to be heard on the next day for hearing demurrers. (b) The rule was, that after a demurrer had been once entered with the Registrar, either party might make application to have it set down to be heard in Court (c), so that the preliminary duty of entering it with the Registrar was to enable either party to have the demurrer heard in Court, and such was the invariable practice of the Court until the new Orders of 1841.

The 34th Order imposes on the Plaintiff the necessity of setting down the demurrer for argument, within twelve days from the time allowed for filing the demurrer; not from the time of filing the demurrer or of the Defend'ant's

(a) Sanders' Ord. 180.

(b) See the form of the order, 2 Turner's Prac. 278.; 2 Newland's Prac. 332.

(c) 1 Turner's Prac. 813.

ant's entering it with the Registrar, but from the time allowed for filing a demurrer. The question is, whether after this Order, when the Court has imposed on the Plaintiff the penalty of having the demurrer to the bill allowed, unless he does a certain act within twelve days from a time described, you are to shift that period, and say that the Plaintiff shall not have twelve days from the time allowed for filing a demurrer, but from the time of the Defendant's entering it with the Registrar. I was desirous of knowing what had been the practice since these Orders came into operation, and I have been informed that demurrers have constantly been set down. for argument here, without any regard to the entry. When the demurrer has been set down elsewhere, the practice may have been otherwise.

I am at a loss to say that the entry is necessary to enable the Plaintiff to do that act in default of which the demurrer is to be allowed, or that his compliance with the 34th Order is to depend on any act of the Defendant. I have some doubt, whether, since Lord Cottenham's Order, Lord Clarendon's Order is applicable, and whether any entry is now necessary; but, without determining that point, I must say that even if there had been an irregularity, I should, under the circumstances, give leave to the Defendant to correct it. It is for the benefit of the Plaintiff himself that the matter of the demurrer should be decided.

1844.

DALTON

v.

HAYTER.

NOTE. By the XLIV. General Order of the 8th of May 1845, pleas and demurrers need not be entered with the Registrar.

1843.

Nov. 10.
Dec. 11.

Where, at the hearing, a cause stands over, with

liberty to amend, and the bill is amended accordingly, a

THIS

DAVIS v. PROUT.

HIS cause came on upon the 10th of November 1843; on which occasion, the Defendant Prout did not appear, but a proper affidavit of service of the subpoena to hear judgment was produced.

The other Defendants who appeared having objected new subpoena to the frame of the record, the cause was ordered to to hear judgment must be stand over with liberty to amend. served.

The bill was accordingly amended, and the cause again came on for hearing on the 11th of December, but no new subpœna to hear judgment had been served.

The REGISTRAR observed that the cause could not proceed, there being no proof of service on Prout of a new subpoena to hear judgment.

The MASTER of the ROLLS considered the objection valid, observing that if the other Defendants had not voluntarily appeared, the Plaintiff could not have obtained a decree against them, upon proof of the service of the former subpoena to hear judgment.

1843.

THE

PRINGLE v. CROOKES.

HE Defendant Crookes and his partner Todd were
the agents and consignees in England of the

testator, Robert Marshall of Jamaica.

Dec. 9. 22.

A Defendant took exceptions to the

Master's re

port, and also presented a petition of rehearing, objecting to the original decree, on the

ground of

want of

By his will Robert Marshall directed his executors in Jamaica to sell his real and personal estate in Jamaica, and remit the proceeds to Great Britain, to his executors there; and he appointed Todd and the Plaintiff Pringle his executors in England. After the testator's parties, and death, his executors in Jamaica made their remittances to England (including therein the proceeds of the real estate in Jamaica), to the house of Todd and Crookes, intending them for the executors in England, viz. for Todd (who was a partner in the firm of Todd and Co.) and the Plaintiff Pringle.

This bill was filed after the death of Todd by Pringle, the surviving English executor, to have, as against Crookes the surviving partner, and against the executor of Todd the deceased partner, an account of the receipts and pay ments of Todd and Co. as such agents and consignees. The heir at law was not made a party to the suit.

The

also to a part
cree. The
exceptions
and rehearing
came on
together.
Held, that the
Defendant
was entitled
to begin.
A testator
directed his

of that de

real estate to be sold by his

Jamaica exe

cutors, and remitted to 4. the produce and B., his English executors. B. and C. were

the consignees and agents of the testator, and of his executors. The assets, including 22551., part of the produce of the real estate, were remitted from Jamaica to B. and C. on account of the executors in England, and the amount was entered to the credit of the estate of the testator. After the death of B., A. instituted a suit for an account of the receipts of B. and C., on account of the personal estate of the testator since his death, but the heir at law was not made a party. The bill specified the item of 2253/., which the answer stated to be the produce of the real estate. The decree directed an account of the dealings and transactions in the bill mentioned, and of the receipts of B. and C. on account of the testator's personal estate since his death, and the Master, in taking the accounts, charged C. with the 22531. The Defendant C. obtained a rehearing of the cause, and excepted to the report, and contended, either that the decree was wrong in authorizing an account of the real estate in the absence of the heir, or that the Master had been wrong in including this item; but the Court overruled the objection.