Star.
London, England, 1808-11-08 00:00:00

LAW INTELLIGENCE.

HALL, NOVEMBER ?.

This being the first day of the. Michaelmas Taint
the Judges breakfasted, as usual, with the Lord Chan-
cellor, and from thence proceeded in state to their dif-
ferent Courts.

COURT Of CHANCERY, NOVEMBER 7.

The Lord Chancellor and the Master of the Rolls,
accompanied by two of the Ordinary Masters in
Chancery, having taken their seats on the Bench,
The Loan CHANCELLOR expressed a desire, his
Honour the Master of the Rolls being. now present, to
avail himself of his Honour's advice in the summary
application made by the Defendant, for the examina-
tion of a witness de bone cm, in the case of Palmer v.
the Earl of Aylesbury.
Mr. RICHARDS and Mr. Owes, in support of this
application, stated, that the suit in question regarded
boundaries of a parcel of land, which was said to
have belonged, in the year 1741, to a Mr. Holds-
worthy, whom the Plaintiff now:represented. The
point in dispute was simply this, whether, at the pe-
riod mentioned, the lands in question were, or were
not, the property of Mr. Holdsworthy ? On this
point a commission was granted, publication took
place, and on a hearing an issue had been directed for
trying the question of fact. Previous to publication
passing, it had come to the knowledge of the Defen-
dant, that there was a witness whose evidence would
throw considerable light on the question ; but whom,
knowing that an issue must take place, the Defendant
waved then bringing forward, from a wish not to over-
load the record. This person, who was of the age
of 79, had been lately taken ill, and there was reason
to fear, that if his examination were postponed to the
trying of the issue, his testimony might be entirely
lost. To prevent such an oscurrence, the Learned
Counsel submitted, that the Court would feel itself
authorised to interfere in this summary manner, and
allow the witness to be examined de hese use. No
more was asked here than any litigant had a right to
demand, on a bill for discovery in that Court, or in
an accounting or inquiry before the Master. In or.
Bering an issue to be tried, the Court must have had
in view the adducing of farther evidence, and that
being the object of the issue, it would hardly consent
that this very object should be disappointed by a re-
fusal to comply with the present application, which,
with reference to the issue granted, could only be
compared to an ordinary bill for the perpetuating of
evidence.

Sir S. ROMILLY, Mr. HART, and Mr. WETHERALL,
on the other hand, contended, that the Defendant
had here slipped two opportunities of examining the
witness in question. In one of these, the witness, in
the event of its being doubted that his evidence would
have been lost, might have been examined out of his
regular course ; in the other, he might have been re-
gularly brought forward. Both these opportunities,
however, had been knowingly and intentionally ne-
glected. The directing of an issue had not by any
means followed, as the Defendants would insinuate,
as a matter of course ; but in withholding. the evi-
dence which the Defendant now confessed it was at
all times in his power to have brought forward, he
must have speculated on an improper advantage to
have gained to himself, in the event of an issue being
ultimately directed, in which case his opponent would
be kept in ignorance of what this witness could prove.
In ordinary cases, after publication, such applications
would not be listened to unless upon the depositions
of the parties, his Solicitor, Clerk, and Clerk of Court,
that they had not seen or perused the other deposi-
tions in the case. It would, therefore, be going too
far to lay it down, that not only after publication,
but after a hearing of the case, such a manifest advan-
tage should be given to a party, when his witness had
fallen ill, after he had speculated on the risk he
should run in withholding his evidence till an issue
should be tried, on the event of its being deemed ne-
cessary to direct one.
The LORD CHANCELLOR said this was a question of
very great importance, Be was therefore desirous
to have the opinion of his Honour the Master of the
Rolls upon the subject. There were no cases exactly
in point • but at the same time he thought he saw in
2d Dickens, in the case of Sandford v. Paul, and
other cases in the same author, a doctrine laid down
negative to the principle of Mr. Richards's argument,
which from these decisions seemed to require some
special reason to support it. He hoped the Master
of the Rolls would have the goodness to consider of
the matter, and favour him with his opinion.
The MASTER of the RoLLs was inclined to view the
matter in the same light in whichit had been regarded
by his Lordship. He should look into the cases
pointed out by bis Lordship, however, and give his
ultimate opinion upon the point.