charges, tending to impeach the election, on the ground that Dent had not such a qualification, as the law required that a coroner should be possessed of.

The prayer was, that the election and return of John Dent might be declared void, and set aside; that, in case the election should appear to have been proceeded in, within due time after the receipt of the writ de coronatore eligendo, it might be declared that John Ford Hyatt was duly elected one of the coroners of the county; and that, if necessary, the sheriff might be directed to amend his return: or that John Dent might be removed from the office; and that a new writ might be issued for electing a coroner in the said county.

The allegations of the petition were supported by affidavit.

The affidavit of Mr. Dent, filed in opposition to the petition, did not contradict the allegations of the petitioners, with respect to the dates on which the different proceedings were taken towards the election; but it contained the following statement :

"That neither before the election began, nor during its progress and continuance, nor after its close, until the petition of certain freeholders, in the interest of John Ford Hyatt, against John Dent's return was presented, was any objection made by John Ford Hyatt, or by any freeholder or freeholders, to the time appointed by the sheriff for the election; but that, on the contrary, John Dent was informed, and verily believed, that John Ford Hyatt was privy to the adjournment, and consented thereto; and told the under-sheriff that no advantage should be taken thereof on his behalf."

The only point insisted on in the argument was, that the election was irregular in point of time. It was not thought necessary to go into the objections to Mr. Dent's qualification.

The Lord Chancellor requested the attendance of the Lord Chief Justice of the King's Bench, and of the Lord Chief Justice of the Common Pleas.

Mr. Agar and Mr. Rose appeared for the petitioners ;

Mr. Wheatley, for Mr. Dent;
Mr. Lovat for the sheriff.

By the 58 Geo. 3. c. 95, (said the Counsel for the petition,) it is enacted, that "upon every election to be made of any coroner or coroners of any county in England and Wales, the sheriff of the county where such election shall be made, shall hold his county court for the same election, at the most usual place or places of election of coroners, within the said county, and where the same have most usually been held for forty years last past, and shall there proceed to election at the next county court, unless the same fall out to be held within six days after the receipt of the writ de coronatore eligendo, or upon the same day; and then shall adjourn the same court to some convenient day, not exceeding fourteen days, giving ten days' notice of the time and place of election."

In this case, the writ was received on the 1st of April; and the next county court was held on the 13th, which was not within six days from the receipt of the writ. The election, therefore, should have been held on that day. But it was not then held. After the under-sheriff had received the writ, he gave notice to the candidates that the election would take place on the 27th; and on the 13th, the county court was adjourned to the 27th, for the purpose of the election. The requisitions of the act were not pursued; and the election must therefore be void.

On the other side it was argued, that there had been a proceeding to elect on the 13th; and that it was incident to all courts to possess a power of adjournment. On the 13th the vacancy was announced; a day was appointed for taking the poll; and the writ was read. That was a proceeding to elect. The election must be regarded as begun on the 13th; and what was done on the 27th, was merely the completion of it.

The words of this clause of the act are the same as those of the statute of William and Mary, for the regulation of the election of members of parliament. But in that statute there is an express clause, providing that the sheriff shall not have the power of adjourning, unless with such consent as is therein mentioned: thus showing, that the power of adjourning the county court, could not be taken away from the sheriff by inference.

In reply, it was said, that the argument, for the respondents, proceeded upon an error in fact; that the election had begun on the 13th, and had been continued by adjournment on the 27th. The affidavit in support of the petition states, that the election was had, not upon the 13th, but upon the 27th. The affidavit in opposition does not controvert that fact. It does not allege that the sheriff proceeded to the election on the 13th. It does not even state that the writ was read on that day. Suppose that he then announced the vacancy, and fixed the poll for the 27th; can that be called a proceeding to elect?

The Lord Chancellor observed, that, when a writ for the election of a coroner was applied for, the person applying undertakes to give due notice of the election. The act of the 58 of the late King, requires expressly, that the sheriff shall proceed to the election at the next county court, if not held within six days from the receipt of the writ. The notice, therefore, to be given, by the person who has undertaken, to the great seal, is a notice that the election shall proceed at the next county court, unless it falls within the limited six days. It is said, that here the sheriff did proceed to elect on the 13th. But is not that a mistake, as to what was really done? Did not the sheriff, in effect, say, "In order to proceed to the election on the 13th, I say that I will not proceed on the 13th, but will proceed on the 27th ?"

His Lordship then called on the Lord Chief Justice of the Common Pleas, and the Lord Chief Justice of the King's Bench, for their opinions.

Lord Chief Justice Best.-My opinion is, that this is not a valid election of a coroner for the county of Stafford. Whatever might have been the practice formerly, the preamble of the 58 Geo. 3. c. 95. shows that it was the express object of the statute, to settle the mode of electing coroners: it points out, in plain and distinct terms, how coroners shall be elected; and its provisions must be followed strictly. The words of the act are," Whereas there are no sufficient regulations for the elections of coroners for counties, be it therefore enacted, that from and after the passing of this act, upon

every election to be made of any coroner or coroners, of any county in England and Wales, the sheriff of the county, where such election shall be made, shall hold his county court for the same election, at the most usual place or places of election of coroners within the said county, and where the same have most usually been held for forty years last past, and shall there proceed to election at the next county court, unless the same fall out to be held within six days after the receipt of the writ de coronatore eligendo, or upon the same day, and then shall adjourn the same court to some convenient day, not exceeding fourteen days, giving ten days. notice of the time and place of election; and in case the said election be not determined upon the view, with the consent of the freeholders there present, but that a poll shall be demanded for determination thereof, then the said sheriff, or, in his absence, his undersheriff, with such others as shall be deputed by him, shall forthwith there proceed to take the said poll in some public place, by the same sheriff, or his under-sheriff as aforesaid in his absence, or others appointed for the taking thereof as aforesaid; and every such poll shall commence on the day upon which the same shall be demanded, and be duly and regularly proceeded in from day to day, (Sunday excepted) until the same be finished; but so as that no poll for such election shall continue more than ten days at most, (Sunday excepted); and the said poll shall be kept open seven hours at the least each day, between the hours of nine in the morning and five at night."

Now, it appears that the writ for electing a new coroner, was lodged in the under-sheriff's office on the 1st of April; and that the next county court occurred on the 13th. On that day, therefore, the sheriff ought to have proceeded to the election. But he did not proceed to the election on that day. It is said, he adjourned the election, and that the power of adjournment is incident to every court. The question of adjournment, however, does not arise; for, to adjourn, you must begin; and there was no beginning of the election on the 13th. The sheriff says, "I will not begin on this day, and I will adjourn the court till the 27th of April." If the election had begun on the 13th, he could not have adjourned it for such a length of time; for

in the subsequent part of the clause, it is enacted, that "the poll shall be duly and regularly proceeded in from day to day, Sunday excepted, until the same be finished." For these reasons, I am of opinion, that this election is void.

Lord Chief Justice Abbott.—I also am of opinion, that the election on this occasion is a void election. This act, made for the express purpose of regulating the elections of coroners of counties, enacts in distinct terms, that the election shall take place at the next county court after the receipt of the writ, unless that county court falls within six days of the receipt of the writ. Here, the writ was received more than six days before the next county court; but the sheriff did not at that county court take any step towards the election. Whether, if he had begun the election, he might have adjourned it, we need not consider; for it is manifest that he did not begin. He had, in truth, to a certain extent, disabled himself from beginning; for he had on the 1st given notice to the candidates, that he would proceed to the election on the 27th. So that, if he had begun the election on the 13th, they might have had some reason to complain. Those notices show, that he had previously fixed his purpose not to proceed to the election at the next county court. In so doing, he acted contrary to the regulation of this act of parliament, the only object of which is, to fix the time and manner of electing coroners.

Where the object of an act of parliament is to ordain that something shall be done, which was not done before, and it goes on to enact, that that thing shall be done within a time mentioned, it has been held in some cases, which might have been referred to, that the provisions as to time are directory only; and that the thing, though not done within the prescribed time, may be done afterwards. And it has been so held for this reason-that if the thing, not having been done within the time limited, be not allowed to be done afterwards, the primary object of the act would be disappointed. As to the election of assignees, for instance, the bankrupt acts require that assignees should be chosen; they direct also, that they should be chosen at a meeting of creditors,

This was a bill filed for the redemption of some mortgaged premises. The mortgagee had taken possession of the property, and died in possession in 1803, devising the mortgage term to trustees upon trusts, for the benefit of his children.

The children were not parties to the suit.

Mr. Hart and Mr. Wray appeared for the plaintiff';

Mr. Treslove and Mr. Knight were for the defendant.

An objection was taken, that the children were not parties. The trustees, it was said, who were before the Court, had not the beneficial interest in the land or in the money; and a court of equity never dealt with property, when the parties before it represented only the legal interest.

Mr. Hart, on the other hand, insisted, that complete relief could be given in the suit as it now stood. The mortgage account could be taken, and the trustees could re-convey to the mortgagor. It would be a great hardship on a mortgagor to be entangled in the intricate trusts in which his mortgagee might choose to involve the premises. In Yates v. Hambley, (1) Lord Hardwicke says, "Where a mortgagee, who has a plain redeemable interest, makes several conveyances upon trust, in order to entangle the affair, and to render it difficult for a mortgagor or his representatives to redeem, there it is not necessary, that the plaintiff should trace out all the persons who have an interest in such trust, in order to make them parties."

On the other hand, Yates v. Hambley was relied on as an authority in support of the objection. There, an absolute conveyance of the estate had been made by the mortgagee in fee, with several limitations over; and the objection was, that the persons in remainder were not parties; and Lord Hardwicke held, that it was necessary to bring, at least, the first tenant in tail before the Court. The dicta which have been cited from him, apply to a special case of improper conduct on the part of the mortgagee. This mortgagee, in devising the property to trustees upon trust for his children, was not guilty of any improper conduct; he merely exercised his ordinary rights in the ordinary manner.

Vice Chancellor.-In this suit there are two questions: first, is the mortgage redeemable? Secondly, supposing it to be redeemable-what is the amount of the sum due from the mortgagor? The plaintiff has brought before the Court certain persons, trustees under a will, who have no personal interest in either of the questions. It is indifferent to them whether the mortgage is, or is not redeemable, and whether the sum due on it be great or small.

Upon general principles, the cestuis que trust ought to be brought before the Court. Only one authority has been cited. If I were to act upon that authority, I should say (taking Lord Hardwicke's language in

(1) 2 Atkyns, 237.

its plain sense,) that he adopts the general principle, and states one particular case by way of exception. My opinion is, that the objection is a valid one; but I shall give it further consideration.

December 15.-Vice Chancellor.-I am of opinion, that as a general rule, the cestuis que trust ought to be parties. Even if special circumstances were necessary, in order to impose upon the plaintiff the duty of making them parties; and if, without special circumstances, they need not be parties: yet here, there are special circumstances which would bring the case within that rule. But it does not appear to me, that special circumstances are necessary. On the general principle, the cestuis que trust, under the devise of the mortgagee, must be parties.

The cause was ordered to stand over.

In a suit instituted against A and B, to have bills of exchange, which have been negotiated from A to B, delivered up, on the ground, that it was a fraud in A to negotiate them, and that B was a party to the fraud— the admissions of A, while the bills were in his possession, that he was not entitled to negotiate them, are admissible in evidence.

Even if evidence is read without any objection being taken at the time, its admissibility may be objected to in the course of the argument.

Under what circumstances B shall be held to have been privy to the fraud committed by A.

Claughton had delivered to Lee certain bills of exchange, on which he, Claughton, would have been liable, in order that Lee as his agent might, by means of them, raise money for his (Claughton's) use. Circum

stances occurred, before they were negotiated, which rendered it unnecessary to negotiate them; and Lee represented, that he had cancelled them. In fact, however, he negotiated them, so that they came into the hands of Harrison, who claimed payment of them as a bona fide holder. Claughton had become a bankrupt, so also had Lee.