1819. KNIGHT and others v. KNIGHT. together with any other person or persons, but they have continued to live apart upon the terms expressed in the herein stated Indenture of Separation, as altered by said Indenture of Defeazance, of even date therewith :-That on or about the 7th day of October, in the year 1813, said Frances Knight brought forth and was delivered of a Male Child, being the Defendant hereinafter named-That said Frances Knight did on or about the 21st day of May 1814, procure said Child to be baptized and registered in the Parish Church of the Parish of St. Mary-le-Bone in the County of Middlesex, by the name of Henry Charles; and that in the Register of Baptisms of said Parish, the Baptism of said Child is registered in the words and figures, or to the purport and effect following; (that is to say) Baptisms solemnized in the Parish of St. Mary-le-Bone in the County of Middlesex, in the year 1814: When Baptized. Child's Christian Parents Christian Surname. 1814: May 21. - Heny Charles - Chas. & Honor. Abode. Frances J Knight. St. Mary-le-Bone. Esquire. Rev. Dr. Heslop. 7th Oct. 1813. That said Child has been, and is called or known by the name of Henry Charles Knight; and the said Henry Charles Knight is now, or late was residing with said Frances Knight, at or near Gerard's Cross, in the County of Bucks:-That under and by virtue of said Will and Codicil of said Robert Earl of Catherlough (and of a certain Act of Parliament) directing a sale of part of the Hereditaments devised by said Will and Codicil, the Money arising from such sale to be laid out in the purchase of Estates, to be settled to the Uses of said Will, the aforesaid Hereditaments of said Robert Earl of Catherlough, not directed to be sold by said Act of Parliament, and the Estates purchased and to be purchased with the Money arisen and to arise from such sale as aforesaid, stand limited and assured to the use of Plaintiff Robert Knight, for his life; and, upon his decease without Issue Male, to the use of Plaintiff Henry Ralegh Knight, for his life, with remainder to the use of Charles Ralegh Knight, in Tail Male, with remainder to the use of Plaintiff Jane Fuller for her life, with remainder to the use of her first and other Sons, successively in Tail Male, with remainder to the use of Plaintiff Georgiana Knight in Tail Male, with remainder to Plaintiff Julia Knight in Tail Male, with remainder to the use of Caroline Emily Knight in Tail Male, with the ultimate remainder to Plaintiff Robert Knight in Fee; and Plaintiffs ought, according to their respective interests aforesaid, and upon the happening of the successive events aforesaid, successively to enter upon and quietly enjoy the aforesaid Hereditaments. The Bill then charged, that Defendant gives out and pretends that he is lawful Son of the body of Plaintiff Robert Knight, by said Frances Knight his Wife, and as such entitled to an Estate Tail in the aforesaid Hereditaments, prior and in preference to the Plaintiffs; whereas Plaintiffs expressly charge, that Defendant is not the Son of Plaintiff, said Robert Knight; and that said Robert Knight had no access to, nor with, nor in the presence of said Frances Knight, within the period of ten months next preceding the birth of said Defendant, nor at any time since the year 1804: that several Witnesses, who can prove the title of Plaintiffs, are very old and infirm, and Plaintiffs are in great danger of 1819. KNIGHT and others v. KNIGHT. 1819. KNIGHT and others v. KNIGHT. being deprived of their testimony by their deaths; and said Defendant threatens, and intends upon the death of said Plaintiff Robert Knight, to dispute the Right of Plaintiffs, and the said several other Parties immediately entitled to the said Estates, and the reversionary Interest of the said Plaintiff Ralegh Knight therein, and to lay claim to them himself. And Plaintiffs Henry Ralegh Knight, Charles Robert Knight, Charles Fuller, and Jane his Wife, and Frances Elizabeth Knight, further show, that they, in or about Trinity Term 1814, filed their Bill, stating and charging the several matters aforesaid, and thereby praying, as hereinafter is prayed; but, that since the close of the execution of the Commission, which was issued and granted for the purposes after mentioned, they have discovered divers various and other facts of which they were then ignorant, the testimony whereof is very material to be perpetuated. The Prayer of the Bill was, That Defendant might answer the premises; and that the several Witnesses, to prove Plaintiffs said Title and the Matters aforesaid, might be examined concerning the same; and that their testimonies might be perpetuated and recorded in this Court; and that one or more Commission or Commissions might issue out of and under the Seal of this Court, for the aforesaid purposes. To this Bill, the following Demurrer was put in : "This Defendant not confessing, &c. doth demur thereto; and for cause of demurrer says, that it appears by the said Plaintiffs own showing by their said Bill of Complaint, that the said Plaintiffs are not entitled to the discovery or relief prayed by their said Bill against this Defendant; wherefore, &c." Mr. Agar, and Mr. Roupell, in support of the Demurrer. It may be questioned whether persons can file two Bills to perpetuate testimony; are they to examine Witnesses examined before? They may have acquired, by secret means, a knowledge of what the Witnesses swore, and by tampering with them, may now wish to re-examine them. The former Bill has not all the same Parties as this; the new Parties are connected in privity of Estate, and might, without filing this Bill, have had all the benefit of the Evidence taken on the former Bill. They say, that since the close of the Commission under the first Bill, they have discovered divers various and other Facts material to be perpetuated; but they do not say what Facts, or to what they mean to examine, or whom they mean to examine. In Bartlett v. Hawker (b), not reported, a Demurrer to such a Bill as this was allowed, because the facts were not stated as to which the Plaintiffs meant to examine Witnesses. On this Bill they might go into the widest examination possible. On this part of the case, they cited Gill v. Hayward (c), and Cresset v. Mitton (d). Mr. Wingfield, Mr. Heald and Mr. Willis, contra :- (b) According to the Reporter's MS. Note of that Case, it was argued on the 8th and 22d of May 1805; and the Lord Chancellor on the first argument observed, "That great danger might arise from such Bills, unless the facts to which the Plaintiff wished to examine, were particularly (c) 1 Vern. 312. (d) 1 Ves. jun. 449. S. C. 3 Bro. C. C. 449. 1819. KNIGHT and others v. KNIGHT. 1819. KNIGHT and others v. KNIGHT. i be examined to; if nothing is to be examined to but that which is stated in the Bill, what use is there in the general interrogatory as to what the Witness knows on the subject? It has never been decided that no more than one Bill can be filed to perpetuate Testimony. Any person, however slender his Interest may be, is entitled to file such a Bill (e); it is not necessary to show collusion as to the first Bill, to entitle Parties to file a second Bill. If no mention had been made of the first Bill in this second Bill, it is clear these new Parties might have sustained such Bill, they being the Children of H. Knight, who have come in esse since the filing of the former Bill; the mention of the former Bill does not vitiate the present. The VICE-CHANCELLOR : The present question is whether, upon a Bill to perpetuate Testimony, the examination of Witnesses having been completed, and the Commission closed, the Plaintiffs can sustain a Supplemental Bill for the further examination of Witnesses, upon the ground that new material Facts have been discovered since the filing of the former Bill, without stating in the Bill what these Facts are. I consider that the addition of new Plaintiffs makes no difference, because, by incorporating themselves with the original Plaintiffs, they adopt the former proceedings, and, for the present purpose, stand in the same situation. If new evidence had been discovered after the Commission closed, as to Facts stated in the (e) Lord Dursley v. Fitzhardinge, 6 Ves. 251. |