Vice-Chancellor's Court, ...
B3efore the AfASTRot Of t?eROT.T. 1Ctr. tAitT applied on the part o0 the defendants in this suit, for an order to direct a commrission to issue for the examination of wit. nesses abroad, to ascertain the next of kin to the late Air. Nollekens the sculptor, and also for an order to direet that the sum of 3001. should be paid it out of the fuiid in court, to defray the expenses of the said commission. The defendants, Sir William Beechey and aiother, were appointed executors under the will of Mlr. Nollekens, who died worth upwards of 200,0001. ARl of this property was ap. propriated by the will, except a fouttis part, which wss lapsed, and would go to the next of kin. In order to discover the ntext of kin advertisemnents bad been inserted in the papers of the Netherlands, and a claim, which appeared to be well fOunded, hatd been put in by a family of the name of Nollekens, residing near Antwerp. The circumstances of the case had been represented to the Master, who thereupon granted a certificate of the propriety of issuing a com- missiont upon which the present application was founded. Awlr. sidedDN appeared on the part of the plaintiffs in the suit, who resided in England, and claimed to be the next of kin,to oppose the motion. It was impossible, according to the practice ot the Court, that a single shilling of the fund in court could be granted to defray the expenses of the commission which was prayed for. The Lord Chancellor had over and over again decided, payticularly in the casc of "pFarman and Fairly," that parties claiming to be next of kin, and calling for a commissioni to examine evidence, should pay the expense., of the commission out of their own pockets. .'fis Lerdehip in those decisions proceeded upou the principle that it would be unjust to allow a person to waste an estate in prosecuting a claim, which ultiriatelyv might appear to be quite unfounded. It was likewise, lhe apprehlended,iconslssnt with the practiceof the Coart, to issue a commission to examine witnesseWs abroad,under the circam- stances stared,upon theapplication of executors. Indeed, if that were not the case, the most inconvenient effects might result; for one executor miglht sue for a commission to establish the clain of one set of next of kin in one quarter of the globe, and another executor might ap. ply for one to establish the claim of another set in another quarter, until in the end every shiLing of the estate might be expended. Alr. .MARTIN and Mr. JAC02S followed on the same side. Alr. HART, in his reply, said, that this application was made by the executors, not with sue view of favouring the claims of any par- ticular persons, but in order that justice might be done to all parties. Mr. Sugden, he thought, was wrong in what he had stated regarding the practice of tbe Court, for he (Mlr. Hart) rermem- bered, that in the cases of General Paoli and General Bertine, (thelatter diedin the East Indies,and left property to a vast amount, to be distributetl in the ncighbourhood of Lisle), commissions were issued for examininlg witnesses abroad, and the Court granted money out of the funds in court to defray the expense of them. His HoSouR said that he was of opinion that the parties claim. ing to be next of kin must in all .cases sue out a commission for ta ing evidence abroad at their own expense. He thought that if a commission were issued, some persons ought to be appointea to at. tend it, and none could be so proper as the executors in that case, the Court would. in all probability, lndemnify the executors. Mr. HART said he would abantlon that part of tie motion whlich prayed tor money, and confine himself to that which prayed for the issuing of the commission. His Hl0oroun saidi, that his impression was, that a commission could not be issued at the instance of an executor. He would thlerefore dismiss the applicstion, but if he could find any precedent for issuing a commission as the prayer of an execator, he woould re- voke his nresent Al-eim inn VICE.CHANCELLOR'S COURT. Movnxv- ATTa- 9 PECK V. 3EEECHEY ANfD A%'Mu-