I therefore think that the decree is perfectly right.

Decree affirmed, and deposit ordered to be paid to -the Plaintiff.

Reg. Lib. 1825. A. 1366.

1826.

COLEGRAVE

v.

MANBY.

A1

COURTENAY v. HOSKINS.

July 4.

T the hearing, Lake had been examined as a witness A witness, who to prove exhibits viva voce.

In the proceedings before the Master, the Plaintiff, on the 22d of July, examined Lake on interrogatories, in order to prove that a number of receipts were in the defendant's hand-writing. No intimation was then given, or application made by the defendant, as to the crossexamination of the witness; but, on the 28th of July, the defendant caused a subpoena ad testificandum to be served on Lake, for the purpose, as was stated, of cross-examining him. Lake did not attend to be cross-examined, nor were any steps taken to compel his attendance; and the Master, on the 9th of August, regarding the case in support of the plaintiff's charge as completed, ordered publication to pass.

Mr. Knight moved that the depositions of Lake might be suppressed; first, because, as he had been examined before the decree, he ought not to have been examined without a special order, Birch v. Walker (a); secondly,

has been examined at the hearing only to prove exhibits, may be examined beter on interrogatories to prove other exhibits, without a special order.

The refusal of a witness to

be cross-exreason for suppressing his deposition, but the adverse party must at

amined is no

the time enforce such right of crossexamination as

he has.

1826.

COURTENAY

v.

HOSKINS.

because the defendant had been prevented from crossexamining him, though process had been sued out for that purpose.

Mr. Pepys, contrà.

There would be great danger in suffering a party to try the chance of examining a witness twice to the same matter; and it is to guard against this evil that the Court will not permit the same person to be examined a second time as a witness, except by special order and upon interrogatories settled by the Master. But the danger does not exist, and the rule does not apply, where the witness has been examined only to prove exhibits. Birch v. Walker is an express authority, that, in such a case, the interrogatories need not be settled by the Master; and, on the same principle, it cannot be requisite to obtain a special order.

As to the other objection, the defendant did not crossexamine the witness at the proper time; and a party loses his right of cross-examination, if he does not exercise it at the time of the examination, or within that short period after it which the practice of the Court has prescribed. A party may have a subpoena for the examination of a witness in chief, but not to compel him to attend, in order to be cross-examined, at a subsequent time.

The LORD CHANCELLOR.

With respect to the first ground upon which this motion is made, a witness, who has been examined at or before the hearing only to prove exhibits, may unquestionably be examined to prove other deeds, papers, &c. before the Master, without a special order.

Supposing

Supposing that the [subpoena was rightly issued, and that the witness was liable to be cross-examined at that time, but refused to be cross-examined, the defendant had only to come to the Court, and the witness would have been compelled to do what the defendant had a right to require of him. On neither ground can this motion be supported.

Motion refused with costs.

1826.

COURTENAY

บ.

HOSKINS.

A

YOUNG v. GOODSON.

N order had been obtained upon petition at the rolls, that two Solicitors, who were partners, should deliver their bill of costs within a fortnight, upon the usual undertaking of the client. This order was served on one of the partners, at the office where they carried on business; the original order was shown there, and a copy of it was also left.

The order was not obeyed: and, upon an affidavit of such service, the four-day order was obtained and drawn up: but the Registrar, though he was of opinion that the service of the former order was sufficient, declined to deliver out the four-day order, till the opinion of the Court, on the validity of that service, was obtained.

Mr. Ching moved, that the Registrar might deliver out the four-day order.

The service, he contended, was sufficient; inasmuch as the order was duly served on one partner, and a copy of it was left at the place where the partnership business was carried on. As to solicitors,

such

July 6.

An order on two solicitors, as partners, is not duly

served by serving it on one

leaving a copy at the place

of them and

where the partnership business is carried on.

1826.

YOUNG

v.

GOODSON.

such service ought to be good, even if it were of questionable regularity as to other classes of partners; for there was no severity in affecting an officer of the Court by an order of the Court served on his partner, and of which a copy was left at the place, where he and his partner carried on their business, as officers of the Court, and must therefore be presumed to be present.

The LORD CHANCELLOR.

Í cannot make an order to commit two persons for not obeying a previous order, which was served only on one of them. The four-day order must not issue on this affidavit.

I F.L.382.

1826.

WRAY v. FIELD.

his will be

4000l. in trust

after the death

of his daughter
Caroline, who
married, for
her children,

was then un

the children

were under 21

and unmarried
at her death,

to such of

them as were

sons, at their
ages of 21, or
sooner, if the
trustees should

WILLIAM WAINMAN, by his will, dated in March A testator by
1814, after making a provision for his wife, be- queathed
queathed to his daughter, Caroline, the sum of 5000,
which he charged upon his real estates, as a portion,
or fortune; and he directed, as to 4000l., part of the
5000l., that his trustees should lay it out on securities,
and pay the interest to her during her life, to her to be paid, if
separate use and from and immediately after her
decease, upon further trust," that they, the trustees,
should assign and pay all such sums of money as should
be vested in them, by virtue thereof, and the interest
and proceeds of the securities for the same, to any one
child, or any of the children of the said Caroline Wain
man, or wholly to any issue of such child, or children,
or both, in such parts, shares, and proportions, at such
age or ages, time or times, on such contingencies,
&c., as she, Caroline Wainman should, by any deed, or
by her will, &c. appoint or bequeath the same, or any
part thereof; and, in default of any such bequest or apter Caroline's
pointment, in trust for, and to be paid, transferred, and
applied to and among all and every the child and chil-
dren of Caroline Wainman, lawfully begotten, or to
be begotten, in equal shares, and, if but one, then
to such one child, at such times, and in such manner,
after the decease of Caroline Wainman, as thereinafter consanguinity.
expressed; (that is to say,) to such of them as should
have attained the age of twenty-one years, or have been
married in the lifetime of Caroline Wainman, as soon as
conveniently might be after her decease; and, if under
that age and unmarried at her death, then to sons at

think fit; and
to such of
daughters, at
their ages of
21 years or

them as were

days of marri-
age; but, if af-

decease, the

children

should all die
under 21, and
unmarried,
then in trust

next of kin in

for Caroline's

Caroline mar

ried and died,
leaving R. her
infant. After
only son, an
her death, the
testator by a
codicil be-
queathed to

his grandson R. 6000l. payable when he should attain the age of 21 years, and di rected his executor to expend any sum not exceeding 250l. a year in the maintenance and education of R.: Held, that the legacy of 6000/. was not a substitution for the legacy of 4000l., and that R. was entitled to both legacies.

.VOL. II.

S

their