1843.

Earl NELSON

before he certifies, should see that the matters as to which it is proposed to examine the witnesses abroad are such, as render it absolutely necessary for the purBRIDPORT. poses of justice to grant a commission; for that purpose he must see the interrogatories.

บ. Lord

Mr. Tinney and Mr. Gardiner, for the Plaintiffs.

The course of proceeding in Sir G. Wilson's office is not warranted by the practice of the Court. (a) The practice in the offices of all the other Masters is different. In nine of them it is not considered necessary to produce the interrogatories, and in the tenth (Master Senior's) the Master himself settles the interrogatories.

The production is useless, as the interrogatories, when exhibited, are in no way identified, nor is it pretended that the Master examines or settles them, as in the case of the examination of a party (b), or of a witness previously examined. (c) Anciently the interrogatories were annexed to the commission (d), and all commissions for the examination of witnesses were directed to be super inter inclusis (e), and not ministrand (g), but now the practice is, for the commissioners to examine on the interrogatories exhibited on opening the commission. (h)

Secondly, if the practice of the Master's office be regular, and the Plaintiffs be bound by the order of the 8th

(a) See Anon. Seton on Decrees, 19., and 2 Smith's Pr. 163. (3d edit.)

(b) See Purcell v. M'Namara, 17 Ves. 434.

(c) See Vaughan v. Lloyd, 1 Cox, 313.

(d) Forum Rom. 126., Cur. Can. 243.

(e) Beames' Ord. 30.

(g) 2 Collectanea Juridica, 202. (h) 4 Beavan, 83, 84.

8th of June, still that was superseded by the consent order of the 14th of July, which in no way limited the examination.

Thirdly, the Defendants' solicitors appear to have been aware of the proceeding; they have therefore, by their acquiescence, waived the objection.

Even if the Plaintiffs have been in error, the Court will not deprive them of their evidence by suppressing the depositions, but will make such order as justice to the Defendants requires. Willan v. Willan (a) was

also cited.

The MASTER of the ROLLS.

It is not necessary to decide whether there ought to be an uniform rule in the offices of all the Masters, or whether the peculiar practice in the offices of Sir Giffin Wilson and of Master Senior ought to be extended to the other offices, or the practice in the remaining offices adopted by the former. It does not appear to me to be necessary to decide whether the practice in Sir G. Wilson's office is right or wrong, the question being, whether the order of the Court has been duly obeyed by the Plaintiffs, and if not, what is to be the consequence of the disobedience.

The Master was directed to make certain inquiries, and on consideration of the matter, he was of opinion, upon the application of both parties, that it was necessary that witnesses should be examined in Sicily, and he accordingly gave both to the Plaintiffs and to the Defendants certificates, that a commission was necessary to examine witnesses abroad under the interrogatories pro

(a) 19 Ves. 590.

duced

1843.

Earl NELSON

v.

Lord Bridport.

1843.

Earl NELSON

v.

Lord BRIDPORT.

duced to him. The certificates extended no further than to these interrogatories, and the two orders of the Court granting commissions were in conformity with the certificates, and extended no further. It afterwards occurred, that it would be for the benefit of both parties that an extraordinary Examiner should be appointed, and both parties agreed that one of the Examiners of the Court should be appointed sole commissioner; accordingly, by consent, an order was made appointing him. It is alleged that this order, made by consent, wholly superseded the others, and entirely altered the terms on which the examination was to proceed. I cannot concur in that interpretation of the order. If the parties had thought it necessary, nothing would have been more easy than to have procured an extension of the order, because my impression is, that the matter need only to have been mentioned to the Court, in the presence of all parties, and an examination on interrogatories to be produced to the Examiner by both parties at the opening of the commission would have been ordered; but I am clearly of opinion that the order actually made, was founded on the certificates, and upon the interrogatories certified to have been produced to the Master.

What is said in defence of the course pursued by the Plaintiffs is reduced to three heads, first, that the order of July varied the previous orders and certificates. I am not of that opinion. Secondly, that the practice in the office of Sir G. Wilson is unreasonable and ought not to be sanctioned by the Court. Whether it is reasonable or not, is a matter to be considered on another and proper occasion. Certainly there is great inconvenience in having the practice of one of the Masters' offices varying from the rest, for it has a great tendency to mislead the practitioners. The question is, whether a party who has obtained such an order as the present, when

when he might have obtained one more extended by a proper application to the Court, is to be held freed from the terms of it, while the other party has had the disadvantage of acting under the impression that he was bound by it.

Thirdly, it is said that the Defendants' solicitors had notice of the proceedings, but, under the circumstances, I do not think that I can allow that objection to prevail.

If I allow the Plaintiffs' depositions to be suppressed, and the depositions of the Defendants to be published, the consequence will be, that the Plaintiffs will be deprived of their evidence, a result which one cannot contemplate without regret. The Court is naturally anxious to have before it, all the evidence necessary to enable it to come to a satisfactory conclusion on the very difficult question of Sicilian law involved in this case. To decide such a question on evidence confessedly imperfect would be most unsatisfactory. I cannot make the order which is asked. The Defendants' solicitors have not stated whether they would have produced fresh interrogatories, if they had been aware that they could have done so. I will therefore give them an opportunity of stating, whether they wish to have any further examination of witnesses, and then I will determine who is to pay the costs of these proceedings.

1843.

Earl NELSON

v.

Lord BRIDPORT.

The Defendants' solicitors stated, that though they would most probably, like the Plaintiffs, have had a personal communication with the witnesses, previous to the preparation of the interrogatories, if they had been aware they might have done so, still, being ignorant of the evidence already taken, they were uncertain whether

further

Dec. 12.

1843.

Earl NELSON

บ.

Lord BRIDPORT.

further evidence could usefully be adduced on the behalf of the Defendants.

The MASTER of the ROLLS.

It is impossible to tell what injury has been done to the Defendants by this course of proceeding on the part of the Plaintiffs. The Plaintiffs, I think, ought to have pursued an opposite course, and if they had wished to exhibit fresh interrogatories, they should have made an application to the Court for that purpose, and have given notice to the other side.

I cannot make up my mind to suppress these depositions, but I must direct the costs of the application to be paid by the Plaintiffs, who have occasioned the necessity of making it. This order must be without prejudice to any application which the Defendants may think fit to make to the Court after the publication of the depositions.

Nov. 11.

The ultimate

limitation in a marriage settlement of a fund belonging to the husband was "for the next

of kin or personal representatives of the husband, in a due course

BY

KILNER v. LEECH.

Y a marriage settlement, dated in 1806, a sum of 5000l. belonging to Mr. Allen was settled, in trust for Mr. Allen for life, with remainder to his intended wife for life, with remainder as Mr. Allen should appoint, and in default, "in trust for the next of kin or personal representatives of John Allen, in a due course of administration, according to the statute of Distribu

tions."

of administration, according to the statute of Distributions." The husband left his wife surviving, and A. B., his next of kin, was a feme covert. In another suit, the fund had been treated as part of the residuary estate of the husband, and had been ordered to be paid over to two charities, who were residuary legatees. A bill being filed by the representatives of A. B., the next of kin, claiming the fund:-Held, that the next of kin of the wife of the settlor and the charities were necessary parties, but that the representatives of the deceased husband of A. B., who had administered to his wife, were not necessary parties to the suit.