Brydges v. Branfill. On the 5th of February, 1842, the master reported that it would be most fit and proper, regard being had to the will of Thomas Parke, and to the objects of the charity, and to the nature and circumstances of the charity-estates, that so much of the charity premises as consisted of the public-house with the yard and out-buildings and two tenements adjoining, should be sold, to the corporation of Wisbech, for 1,200l.: and, on the 18th of April, 1842, the report was confirmed and an order was made in conformity to it. Mr. Metcalfe appeared for the petitioners, Mr. Craig for Thomas Clarkson, and Mr. Phillips for the trustees of the charity estates. *BRYDGES and another v. BRANFILL and others.- [*334] BRYDGES and another v. BRYDGES and others. Commission to examine witnesses.-Depositions.-Practice. Amendment.-Interrogatories. 1841: 4th and 10th August, and 15th Nov. An order for a commission to examine witnesses, was made, on the application of the plaintiffs, in a cause in which Sir J. Brydges, and another were plaintiffs, and C. E. Branfill and others were defendants, by original and amended bill: and in which Sir J. Brydges and another were plaintiffs, and Lady Brydges and others were defendants, by bill of revivor and supplement. The commission was made out in a cause in which Sir J. Brydges and another were plaintiffs, and C. E. Branfill and others were defendants, by original bill and bill of revivor and supplement. In the title to depositions taken under that commission, both the original and amended bill and the bill of revivor and supplement were mentioned, and the names of the parties to each bill were set forth at length. A motion by the defendants to suppress the depositions, grounded on the variance between the title of the commission and the title of the depositions, was refused. Commissioners for examining witnesses, need not sign every skin of the interrogatories; it is sufficient if they sign the last skin. Brydges v. Branfill. Although it is usual to express in the title to depositions, that they have been taken by virtue of a commission, "to us (naming only the acting commissioners) and others directed," yet, if the names of all the commissioners are inserted, the depositions will not be suppressed because they are not signed by all the com missioners, provided they are signed by those who acted. Commissioners for examining witnesses, omitted to certify, in their return to the commission, that they and their clerks, before acting, took the oaths annexed to the commission. The court, at first, ordered the depositions to be suppressed; but on being satisfied, by the affidavit of one of the commissioners, that the oaths had been duly taken, allowed the return to the commission to be amended by inserting that fact. THE original bill was filed, in March, 1836, by John William Egerton Brydges, a lunatic, by F. D. Swann, the committee of his estate, and by F. D. Swann, the said committee, against C. E. Branfill and several other persons. The answers of all the ma terial defendants were filed prior to November, 1837. [*335] In September *of that year Sir E. Brydges, bart., who was one of the defendants and the father of the plaintiff J. W. E. Brydges, died; and, in December following, another of the defendants died. In February, 1838, the plaintiffs amended their bill by adding 900 folios and three new defendants, which made a new engrossment necessary. The answers of the material defendants to the amended bill, were filed previously to November, 1838. In September, 1839, the plaintiffs filed a bill of revivor and supplement against Lady Brydges, the widow and executrix of Sir S. E. Brydges, and eight other persons, one only of whom was a party to the original and amended bill. In February, 1840, the plaintiffs obtained an order for a commission to examine witnesses. That order was intituled thus: "Between Sir John William Egerton Brydges, bart., late J. W. E. Brydges, a lunatic, by F. D. Swann, the committee of his estate, and the said F. D. Swann, plaintiffs, and C. E. Branfill, &c., &c., (naming all the other defendants,) defendants, by original and amended bill; and between the said Sir J. W. E. Brydges, by the said F. D. Swann, the said committee of his estate, and the said F. D. Swann, plaintiffs, and Dame Mary Brydges, &c., &c., (naming all the other defendants to the bill of revivor and supplement,) defendants, by bill of revivor and supplement." Brydges v. Branfill. The commission, which was issued in pursuance of that order, purported to be a commission to examine witnesses in a cause wherein Sir J. W. E. Brydges, bart., by his committee, and another were plaintiffs, and C. E. Branfill and others were defendants, by original bill and bill of revivor and supplement. So that neither the amended bill, nor the names of the parties to the supplemental bill, were mentioned. The short title of *the supplemental suit was: "Brydges and another [*336] against Brydges and others;" and no person of the name of Branfill was a party to it. In the title to the depositions taken under the commission, the amended as well as the original bill and the bill of revivor and supplement, were mentioned, and the names of all the parties to the original and amended bill and to the bill of revivor and supplement, were set forth. The plaintiffs exhibited fifteen skins of interrogatories for the examination of their witnesses under the commission; but the commissioners signed the last skin only. In June, 1840, the plaintiffs obtained an order for another commission. That order was intituled: "Brydges and another, plaintiffs, against Branfill and others, defendants, by original and amended bill:-Brydges and another, plaintiffs, against Brydges and others, defendants, by bill of revivor and supplement." The commission that was issued under that order purported, as the previous commission did, to be for the examination of witnesses in a cause wherein Sir J. W. E. Brydges, bart., by his committee, and another, were plaintiffs, and C. E. Branfill and others, were defendants, by original bill and bill of revivor and supplement : and the depositions taken under it were intituled in the same way as the depositions under the previous commission. The commissioners returned the second commission without certifying that they and their clerks, before they acted, took the oaths annexed to the commission.(a) Moreover, the depositions under that commission purported to be taken by all the commissioners (who were seven in number); although four of them only quali fied and acted; and those four alone signed the depositions. (a) See 2 Dan. Pract. 510, Brydges v. Branfill. [*337] *A motion was now made, on behalf of William Grane, one of the defendants to the original and amend. ed bill, that the depositions taken under the commissions might be suppressed. Mr. G. Richards, Mr. Anderdon, and Mr. Stinton, in support of the motion, said, first, that the title of the commissions did not tally with the title of the orders under which they were issued: secondly, that the heading of the depositions did not correspond with the title of the commissions under which they were taken thirdly, that the commissioners ought to have signed all the skins of interrogatories: fourthly, that, where some only of the commissioners acted, the practice was to express that the depositions had been taken by virtue of a commission: "to us (naming those who acted) and others directed;" but the depositions under the second commission, purported to have been taken by all the commissioners, and yet they were signed by only four of them: and, fifthly, that the commissioners, in returning that commission, had omitted to certify that they and their clerks had taken the required oaths: they added that, inconsequence of the above irregularities, an indictment for perjury could not be sustained against any of the witnesses who might have sworn falsely. Perry v. Silvester,(a) Pritchard v. Foulkes, (b) Campbell v. Dickens, (c) 1 Smith's Prac. 2d. edit. 369; 2 Dan. Prac. 510; Hind. Prac. 345 and 236. Mr. Wigram and Mr. James Russell appeared for the defendant Branfill. [*338] *Mr. Bethell, for the plaintiffs, objected that counsel for the defendant Grane, were alone entitled to be heard in support of the motion. But The Vice-Chancellor said that every one of the defendants might have an interest in the question, whether the depositions (a) Jac. 83. (c) 3 You. & Coll. 720. Brydges v. Branfill. ought to be suppressed or not; and, therefore, that their counsel must be heard. Mr. Knight Bruce and Mr. Parry, for the defendant Brooks, supported the motion on the same grounds as the counsel for the defendant Grane had relied on, and added that the first com. mission authorized the commissioners to examine witnesses in one cause only, namely, Brydges v. Branfil!; but that they had examined witnesses in two causes, namely, Brydges v. Branfill, by original and amended bill, and Brydges v. Brydges by bill of revivor and supplement. Robert v. Millicamp.(a) Mr. Wakefield appeared for the defendants Cooper, White and Sterry. Mr. Bethell and Mr. Hubback, for the plaintiffs, said that commissions for the examination of witnesses, were not seen by the solicitors of the parties who sued them out; but were sealed up and sent to the commissioners; and, consequently, the parties were not responsible for the form adopted, by the officer of the court, in making them out: that no one could deny that Brydges v. Branfill was an original cause, and one in which a bill of revivor and supplement had been filed: that, in drawing up orders, commissions and other proceedings in a *cause, all that was requisite was to insert the title of [*339] the cause, and to refer to the bills existing in it; for, by giving the title of the cause, it was identified and distinguished from any other cause; and, therefore, the commissions, in this case, were perfectly regular.-[The Vice-Chancellor :The motion now before me, is to suppress the depositions; and, therefore, I have nothing to do except to determine whether the depositions are right. The propriety of the orders and the commissions issued under them, is not called in question by the notice of motion; therefore, they must be taken to be right for the present purpose.] (a) 1 Dick. 22. |