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![handle is hein.slavery/ssactsengr0665 and id is 1 raw text is: The Lord Chancellor. A witness is not to be re-examined before a Master, upon the
same interrogatory, upon which he has been examined in chief; yet, I should have
thought upon a substantially different interrogatory he might : but I find it cannot be
done without leave; this was laid down in Browning v. Barker (2 Dick. 508), in 1774,
by the Chancellor and Master of the Rolls. If the interrogatory mislead the witness
out of the matter in issue, the interrogatory must be suppressed, and the deposition
falls with it. As to other matters, you may except before the Master ; but it appears,
the examination, if to the same matter, must be by order, otherwise it is practising upon
the witness. Pract. Reg. in Ch. 165. Motion granted. (Reg. Lib. 1783, B. fol. 484.)
(The matter was compromised; and it was ordered, by consent, that upon F. S. paying
to the said F. B. and M. his wife, £5 for their costs, the depositions should stand. R.L.
and 2 Dick. 640. In Vaughan v. Lloyd, 1 February 1787, it was held that witnesses
examined before hearing, cannot be examined upon a commission afterwards without
leave. [1 Cox, Ch. Ca. 312, S. C.].)
MAWER against MAWER. [1784.]
[S. C. 1 Cox, 104.]-Order for defendant to appear under 5 Ceo. 2, c. 25, notwithstanding
a subpcena had been served. (1)
This was a bill of foreclosure : The defendant had been served with a subpcena, but
had never appeared, and the plaintiff had proceeded to attachment and sequestration.
The defendant not being found on any of these processes, and the sequestrators having
returned that he had no real or personal [389] estate ; a motion was made that he might
be ordered to appear upon a day certain, and the order inserted in the London Gazette,
and otherwise published as directed by the 5 Geo. 2, c. 25, to the end that the bill might
be taken pro confesso under that act, notwithstanding he had been served with a sub-
pcena, and had absconded since. Motion granted.(1) (Reg. Lib. 1783, B. fol. 489 b.)
(1) The ordinary process of taking a bill pro confesso, independently of the statute,
applies only where the party has appeared ; the statute interferes to enable the plaintiff
to obtain a decree without appearance ; and this remedy attaches ithether the party has
been served or not ; so that an affidavit is made in strict conformity to the act, that the
defendant absconds to avoid the [subsequent] process of the Court. See Short v. Douner,
2 Cox, Ch. Ca. 84. Ogilvie v. Herne, 13 Ves. 565. The observation, therefore, Wyatt,
Pract. Reg. 405, is incorrect. Mr. Cox's report of the principal case is somewhat more
full than the above. It is there stated that some doubt had arisen whether this was a
case within the statute 5 Geo. 2, on the idea that the act extended only to cases where
defendant had never been served at all, whereas in this case he had been served with a
subpcena, though not with the subsequent process. But the Lord Chancellor, looking
into the act, was of opinion, that it extended to every case where the party had avoided
anypart of the process whatever, though he might have been served with subprnna, &c.
The order made was, that the defendant should appear to the plaintiff's bill on or
before the first day of Michaelmas Term then next. R. L.
RIDGE against MORRISON and Others. Lincoln's Inn Hall, 8th July 1784.
[See Whyte v. Whyte, 1873, L. R. 17 Eq. 58.]
Two legacies, of equal sums, being given to the same person, the one by the will, the other
by a codicil,(1) the legatee shall take both. [In this case, the rule in favour of the
benefits being accumulative, as given by different instruments,(1) was supported by
particular expressions of kindness towards the legatee.]
Nicholas Toke, of Linton, in the county of Kent, made his will, dated the 16th of
November 1763, duly attested to pass real estate, and, thereby, ordered his real estates
(consisting [rartly] of gavel-kind lands) to be sold by his executors, and the money
applied in aid of his personal estate. He then gave several legacies, and among the
rest to [Isaac and] Nicholas Layton, the children of his nephew Isaac Layton, £500
each.(2) He made Morrison and Plumley. two of the defendants, his executors, and
the plaintiffs and the other defendants are his heirs at law, next of kin, and residuary
legatees.-By a codicil, written under his will, dated 1781, he gave to T. Ashby £20,
and to Nicholas Layton, that I put apprentice to a grocer, near Cripplegate, £500.
MAWER V). MAWER
.1195
I BRO. 0. 0. 389.](ViewImageLocal?handle=hein.slavery/ssactsengr0665&div=1&collection=&method=preview&ext=.png&size=3)