1842. NOKES V. WARTON. at liberty to explain, or state in detail, any of the items in the bills of costs. NOTE. The rule as to taxation after payment has been altered by the 6 & 7 Vict. c. 73.; and see In re Lees, antè, p. 410., and In re Downes, antè, p. 425. Nov. 12. 14. A new commission granted, and publication enlarged, on A SAYER v. WAGSTAFF. MOTION was made on behalf of the Defendant Wagstaff, that the depositions taken on behalf of the Plaintiffs under a commission in this cause might be the ground of suppressed, and that a new commission might issue for misconduct of the examination of witnesses; or if the depositions commissioners already taken were not to be suppressed, that a new nominated by commission might issue. one of the the party applying. A solicitor may com a witness before his and take down in writing what he The grounds for making this application were, that municate with the Defendant had not examined his witnesses under the commission in consequence of the misconduct of A. examination, B., the gentleman whom the Defendant had named as his commissioner. It appeared that the Plaintiffs and Defendant had joined in a commission for the examination of witnesses, which was appointed to be executed on the 27th of September. One of the commissioners nominated by the Defendant Wagstaff, was A. B., a solicitor of Worcester. can depose to, but to prepare the de positions of a witness before-hand would be improper, and form a ground for suppress ing the depo sitions. sioner should After A. B. had been appointed commissioner, he had acted as solicitor for the Defendant Wagstaff in this not act as solicitor on behalf of a party. matter; matter; he had seen several of the parties proposed to be examined for Wagstaff, and had ascertained from them the nature of the evidence which they would be able to give. He had also seen some depositions which had been prepared by one of the other Defendants, and others which had been prepared by the Plaintiffs' solicitor for their witnesses to swear to, and he was desirous of having the intended depositions of Wagstaff's witnesses drawn out to shew them to the solicitor on the other side. After obtaining this information and seeing the depositions prepared by the other side, he recommended Wagstaff to refer the cause, being afraid that he had a bad case. This impression was stated in a letter to Wagstaff's London solicitor, who, in reply, expressed a fear that some of the opposite parties had intimidated and tampered with him. An angry correspondence then took place, and in the result, Wagstaff, who seemed no longer to have regarded A. B. as his partizan, gave him notice not to act as commissioner. The Plaintiffs proceeded to examine their witnesses before the two remaining commissioners, but neglected, as it was alleged, to give the names of their witnesses to A. B. or Wagstaff. Wagstaff, insisting on the irregularity of the proceeding, and relying on the alleged misconduct of his commissioner, refrained from examining his witnesses, and now moved, in the terms stated, to suppress the depositions, and for a new commission. Mr. Kindersley and Mr. Moore in support of the motion; Mr. G. Turner for A. B.; and Mr. Pemberton and Mr. Parry, for the Plaintiffs. 1842. SAYER v. WAGSTAFF. Mr. 1842. SAYER บ. WAGSTAFF. Mr. Kindersley, in reply. The MASTER of the ROLLS. I regret the circumstances which have given rise to this application. After being appointed a commissioner, A. B. was totally unjustified in acting as solicitor for a party who had to examine witnesses under the commission. (a) It seems, however, that he not only assumed to act as a commissioner, by signing summonses for witnesses to attend, but also took upon himself to act as solicitor for the Defendant Wagstaff, advising him, proceeding to make inquiries, communicating with his solicitor in London, giving advice as to the framing of the interrogatories, and taking steps to know the evidence to be given for the Plaintiffs; these are facts admitted by himself, and are proved by his bill of costs. In all this his conduct was erroneous; having regard to his character of commissioner, he ought not to have so proceeded. But it is said, that however indiscreet it might have been to act thus, the Defendant has no right to complain, because he acquiesced in its being done; and it is said that even the Defendant's town solicitor was willing to take advantage of the advice given and of this conduct of A. B. I am of opinion that both Wagstaff and his London solicitor were aware that A. B. was acting as solicitor, and that they were willing to have the benefit of his services as such; but it does not follow that because the Defendant has acquiesced in an error, he cannot be allowed to complain of that which not only affects him personally, but also seriously affects the due administration of justice. What (a) Wy. Pr. Reg. 121.; Selwyn's Case, 2 Dick. 563.; Cooke v. Wilson, 4 Mad. 380. What subsequently happened seems to explain the differences which took place. The impression made on the mind of A. B. in the course of his enquiries, was not so favourable to the interests of Wagstaff as Wagstaff had hoped, and probably as had been expected by his solicitor. His solicitor however ex pressed no indignation at A. B.'s interfering as solicitor, but merely complaints and apprehensions that he had suffered himself to be intimidated. Wagstaff and his solicitor appear at that time to have lost their confidence in A. B.'s zeal in their favour; they had expected from him something more than his duty as commissioner, namely, his services as solicitor, and they thought his zeal had been damped. The result was, that Wagstaff gave notice to A. B. not to act as commissioner. The commission had been sealed, and authority had been given by this Court to the commissioners, yet this Defendant thought he was at liberty to countermand that authority, as if the commissioners were his agents. I am surprised that such a notion should be entertained. A. B. had a duty committed to him by the Court, and I have no doubt that if he had not been engaged as solicitor in this transaction he would utterly have disregarded the notice and have performed his duties as commissioner. But he could not do this with propriety, for the Plaintiffs had a right to complain of his having deviated from his duty as commissioner, by acting as the solicitor of the Defendant. Had he not acted wrong previous to the notice, he would not have been justified in declining to act as a commissioner; but considering the circumstances and the position in which he had placed himself, I think he was right in abstaining from acting. There remained two commissioners who were perfectly competent to proceed on the commission; but that VOL. V. I i did 1842. SAYER v. WAGSTAFF. 1842. SAYER v. WAGSTAFF. did not suit the purpose of Wagstaff. He had at this time lost his confidence in the zeal of A. B., who ought not to have entertained any favour towards either party. He seems to have said, "I will not interfere with this matter at all. I am dissatisfied with the conduct of A. B. ;" and A. B. instead of attending there as a person who desired the commission to proceed, seems to have been wandering about the bar, the house, and in the streets, and to have done any thing rather than attend to the commission. The Plaintiffs, on the other hand, seem to have been perfectly regular, and to have done all that could be required. But it is said that they did not give the names of the witnesses to A. B. or to Wagstaff's solicitor. Why should they have given them to a person, who said he would not interfere? It does not appear to me that the Plaintiffs were in any way in fault, and whatever comes of this case, they must be indemnified as to costs. Mr. Kindersley said he could not ask to suppress the depositions, but that there might be grounds for depriving the Plaintiffs of the costs, because they had not done what they ought, namely, given the names of witnesses: my opinion is that both A. B. and Wagstaff so conducted themselves as to release the Plaintiffs from the performance of that duty. As to a new commission, the question is of some importance. One of the witnesses for the Plaintiffs was F., and it was stated to me (though I have not sufficient evidence to prove the fact), that his depositions had been prepared by C. D., a Defendant; and it has been assumed, in the course of this discussion, that this was a proper thing to do. I cannot consider it to be a right thing, for any solicitor to prepare depositions for a witness before examination. He ought to be examined upon the interrogatories by the Examiner; and if he goes |