Star.
London, England, 1806-08-06 00:00:00

LAW INTELtIGWA'CR.

COURT OF CHANCERY, AUGUST s.

SHIRLAY. SAM V. NtWNHANI.
The Sosiciroa G moved for a commillion
to examine witneffes dv lame fffi, under the particular
circuinfiances of this msti remarkable cafe. It was
a queflion of the legitimacy of the Defendant, who
was an infant. This bill was filed on the 23d of
ehruary. The Defendant had had two orders for
time to anfwer, and there was an order for an at-
tachment again(' him for not putting in his anfwer.
On the 23d of April there was an order for a Mef
Fenger to bring the Defendant into Court, for the
purpofe of having a guardian affigned to him by the
Lord Chancellor, and a Clerk in Court direr ed to
put in that anfwer for the infant, fo that the parties
might be able to proceed to take the depofitions of
witneffes, and prepare for the hearing of the cattle,
the queßion being on the legitimacy of the Defen-
dant ; but fence the laR order had been obtained, the
party who had the charge of it, and Mr. Williams,
the officer of the Court, had not been able to find the
Defendant. They were apprehenfive that he might
be kept out of the way, perhaps carried to Scotland, or
fame place out of the jurifdietion of the Court, until the
witneffes neceffary to be examined, and who are the
only wirnefres who can (peak to the feli as to his
birth, &c. (hall be dead, fo that the Plaintiff' may
lofe, entirely, the benefit of their teftimony.
Mr. RICHARDS, on the fame fide, Rated the c
cumilances of the cafe, and fubmitted, that the par:'
ties were perfeetly regular In this application, and the
Court would be juflified in complying with it, be•
caufe juflice could not be obtained- without it, foe
here were a great number of witnefles to certain fa.ts
eflential to be proved in this caufe, and which none
could prove, becaufe none knew them but thefe
wit-
neffea; fuch as the birth of lt#il young gentleman,
and tht like.
Mr. Bess appeared fof the -infant, and obferved
that his talk was very gait in this cafe, becaufe the
Lord Chancellor would gtiardabe interefic of the in-
font in every refpeet without sheitid of Counfel. The
infant was faid to be a fuppofitinus, or a natural
child. His mother was faid to be abroad, and out of
the juriidietion of the Court, and it was laid that the
father was to be a witnef, againd ibe infant, to prove
tome fatts to eftablifh his illegitimacy. Thus fit inter!,
the infant had no protestor but his Lordlhip. As to
his not having put in his anfwer, that, Mr. Bell laid,
was by his advice; under ail the circurnitances of this
cafe, he told the parties that no anfwer ought to be
put in, but the proper mode would be, that he fhould
be taken before the Lord Chancellor in Court, then
his Lordfhip would nominate one of the Six Clerks
as a guardian to put in an anfwer for him, under the
common order of the Court, in cafes where infants,
having no guardians, are made Defendants; and the
neceffary proceedings would take place. But, he
apprehended, that the allegations of the affidavit
about the infant being likely to be taken out of the
jurifdiaion of the Court, to take the chance of the
witneffes dying before he fhould put in his anfwer, fo
as to defeat the objeet of this fuit, was fomewhat
overflated by Mr. Solicitor General, who, from the
multiplicity of his bulinefs, had been prevented from
looking fo minutely into the detail of the circum-
fiances, as he might otlterwife have done, for there
was no intention of taking the infant away from the
jurifdietiun of the Court, for the purpole of eluding
the adminifiration of jullice. He fubmitted, howe-
ver, that this motion was not warranted by the prac-
tice of the Court : there were but three cafes in which
the Court would grant a comtniffion to examine wit-
neffes fe de bent si? ; to perpetuate their taimony.
In the fir(' it was, where the witnefs is above fcventy
years of age ; and therefore likely to die before the
caufe can be tried. Secondly, that be may be going out
of the jutifdiftion of the Court. Thirdly, that he is
the only wallet's to a material fad, in a slink ; nei-
ther was fuggelled to be the cafe here, therefore there
was no precedent for this.
LORD CHAINC/LLOR.. No ; hut as Lord Thorlow
raid on another cafe I fay in this : I will make a
precedent—and I will undertake to gain the silent of
your excellent underftanding to the propriety of my
doing fo, Mr. Bell. His Lordfhip took a view of
the prsftice of the Court in thefe cafes, and confirm•
ed the Ratement of Mr. Bell in that refpat. The
law of England, nbferved his Lordfhip, has (hewn
more regard and favour to fuppofed legitimacy than
any other affumed fAet; fo much fa, that the rules
of common reafoning have been in many inflances
entirely difpenfed with ; the mere reputation of the
parents has been received as evidence of legitimacy.
Here his Lordthip illutirated that propofiti"n, by re-
ference to queltions of accefs or non•accefs of the
hulband to the wife, in the qtießions of legitimacy of
a child born in wedlock ; and obferved, that by the
ancient law of England, accefs of the hufband to the
wife was to be preiumed, if he was within the narrow
feat for nine months previoufly to the birth of the!
child, although the faa was notorirlifly otherwife.
However, modern cafes had altered the law in that I
refine, and accefs of the Itufband to the wife was now
like every other feet, to be the fubjeCt of proof.—
But of the evils which were felt from the loft of the
tettim, ny of witneffet, none could form an adequate
idea but thole who have lived, as it were, in Courts
of Pike ; fordaid his Lordfhip, if a witnefs dies
only fire minutes before the trial of a eaufes nopower
can make any thing he faid evidence upon a trial,
though he were ,the Archbifhop of Canterbury, or
ail other man whofe veracity no human being ever
quedioned ; it is therefore highly intereßing that the
teftimnny of witneffes may be preferved and perpetu-
ated in all cafes where there is danger of its being loft
before a caufe that is depending can be heard ; and,
therefore, I have no doubt I (ball grant this commit.
lion, unlefs the Defendant be brought into Court to
have a guardian affigned to him in due form, left he
fhould be taken nut of the jurifdietion of this Court,
or lett Death, who has jurifdiCtion over me too:fieuld
deprive the parties of the benefit of the teilimony of
ti,eir witneffes."

It was then agreed that if the Defendant's Solicitor,
who is an eminent Genticmsn in the City, than pro-
lime his client it. Court nn Tuefelay. this Commiffion
&al not due, And here ended the dilcudion for the
ptelent. - - _______ -

TUI6DAY, •UOVIT 5.
SU , BAIT. V. MI WNHAIII,

The Defendant this day appeared in Court, a
handfome and intereiling boy, about fix yews old.
Mr. Bess then moved, that the fenior Clerk in the