The Sun.
London, England, 1839-12-16 00:00:00

ROLLS' COURT.-(THIS DAY.)

The Master of the Rolls, on coming into Court this
morning gave judgment in the following case

111`KENNA V. EVERETT.

This was a motion to discharge for irregularity ,nn or-
der obtained cx parte for the examination of two wit-
nesses de bene esse, one of them, Elizabeth Evans,
being stated in the order to he in the 70th year of ber
age, in a very infirm state, and not likely to live long.
His Lordship having looked at all the cases hearing on
the point, was of opinion that the order was not strictly
according to the rule of the Court, that rule being, that
where the age or the health of a witness was
stated as a reason for an examination, de bene
esse, the age must be seventy years, and the health

in a dangerous state. Those two o facts were not sworn
to in this case, and the order, therefore, so far as it re-
lated to the evidence of Elizabeth Evans, mast be dis-
charged. The other part of the order, which was for
the examination, de bene esse, of Thomas Davis, stated
to be a private soldier in her Majesty's corps of Sappers
and Miners, and under orders to proceed to Bermuda,
there to remain for seven years, was contended to be
irregular, as it was contrary to the practice and esta-
blished decisions of the Court, to permit the examinajon
of a witness, de bene esse, who was about to quit dui
kingdom. His Lordship had read through the cases with
a view to that point, and though he had found several
instances in which it was said the three cases in which
witnesses might be examined de bene esse upon an order
obtained ex parte, or as of course, were the cases of a
witness being 70 years of age, in a dangerous state of
health ; or the only witness to a material fact in the
cause ; yet he could not find it had ever been distinctly
stated by the Court that an order of course might
not be obtained for the examination of a wit-
ness who was about to quit the kingdom. In the
13th volume of Vesey's Reports there was a case
in which it was stated a witness, who was about
to quit the kingdom, might be examined de bene ease,
and there was a case so far back as the time of Lord
Hardwicke, in which an order had been granted, aS
of course, for that purpose, but the expressions used by
the Court in those cases were such as to make it some-
v, hat doubtful whether that point could be considered
as decided or not ; and he (the Master of the Rolls)
could not say an order of that sort was irre-
gular because obtained without notice. The
order, therefore, must be discharged as to the
first witness, but not as to the second.

ItOMILLY V. GLINT.
The application in this case was to discharge an order
obtained by the defendant for leave to defend in forma
pauperis, on the ground that such order had been ob-
tained on false suggestions ; and that the defendant, in-
stead of being a pauper, as he had alleged himself to be
in the affidavit on which the order was obtained, was .a
person carrying on trade as a boot and shoemake', In
good circumstances, having extensive credit and consider-
able property. In support of that allegation an affidavit
had been filed, which the defendant had answered ; and the
result (his Lordship observed) was either that the defen-
dant was fraudulently putting on an appearance of credit,
by which he deceived the whole world in the mode of
carrying on his business, or that he had improperly ob-
tained the present order. Considering the mode in
which the defendant had denied.some of the allegations
in the affidavit of the plaint iff, and the number of alle-
gations he had not denied at all, sufficient remained to
satisfy his Lordship the order ought not to stand, and
therefore it must be discharged with costs.