case ware versus sir John eyles at the chancellor house Lord chancellor Mr  attorneygeneral for the plaintiff a bill be bring by sir John eyles and the  other trustee for the sale of the estate of the late director of the south sea  company against sir John blunt and Mr ware to have pound repay and pound south  sea stock transfer to they by Mr ware which sir John blunt one of the late  director have pay he for the purchase of a estate in grey lane and Wapping in  the year and to set aside the say purchase as fraudulent and subsequent to the  time allow by act of parliament by the article of agreement sir John blunt be  to pay pound at a day certain pound when the conveyance be execute and pound  by a transfer of pound south sea stock with the dividend and the purchase be  decree to be set aside and the money repay and the cross bill be to have the  purchase establish the defendant obtain a order to refer the deposition for  irregularity and the master have certify that they be irregular because the  mosely report witness be examine to the same matter that be in issue in the  original cause and they be settle by a decree of the court the great question  in the original cause be when the article and conveyance be execute Mr annesly  mosely report er p be examine when sir John blunt lie the article before he  but not the particular day depose it be some time in the winter and we have a  order to examine Mr pierce viva voice at the hear but your lordship be of  opinion we can not examine he to the time but Mr annesly be examine in this  cross cause swear that on look over the book in which his fee be enter he find  that the article be lie before he for his perusal that January which be before  the disable act take place and Mr pierce swear Mr ware show he the article in  August the witness be person of undoubted reputation and have not prove any  thing that tend to contradict what be prove in the former cause but only what  tend to explain and illustrate it and though I allow that the court be very  tender of examine witness after publication yet they admit of auxiliary or  explanatory proof Keilw a b as where a and b be suppose to have do such a act  the proof of which be but obscure set forth in the witness deposition they not  give any reasonable testimony of their knowledge touch the performance of such  act in any particular now if such obscure deposition be publish and the  deponent happen to die other may well depose that they be present at the  performance of that act and so explain the first deposition but if they depose  any thing contrary to the former deposition or which may alter any part of the  substance thereof such deposition be void and ought to be reject Hardr sir  John Langham versus Laurence Mr will the master have give two reason why the  deposition be irregular because the witness be examine to the same matter in  the original cause and because all those matter be settle and determine by the  decree but this last reason be only proper for your lordship judgement and be  out of the submission to the master the defendant may think the matter by the  original bill be not bring proper before the court and may be Willing to state  his own case but by this argument no cross cause can be bring to hear after a  decree in the original cause the other reason go to all the evidence and so be  in effect to say we shall not bring our cause to a hear because we can read  our deposition it be not proper to examine witness to contradict what be swear  in the other cause but it be agreeable to reason and the practice of the court  that where any matter be doubtful in the original cause to allow auxiliary  proof in the cross mosely report cause to explain it and this be the reason  why the court in many case direct a issue yet that be liable to the same  objection that the same witness may be examine to the same point indeed if  they swear contrary to their deposition no weight will be lie on their  evidence and so your lordship at the hear may give what credit you please to  these deposition where they contradict the former the decree be make not  because the evidence be against we but because we have not make out the fact  necessary to our defence nothing be prove against we but we have not prove  enough all we have do in this cause be to explain and supply what be doubtful  but not to contradict even the plaintiff evidence can Cas on a appeal upon a  commission of charitable use the question be whether certain house be parcel  of Bridewell or of Dorset house and the court direct a trial of law and a  commission be move for to examine a witness eighty year old who be not  discover before and unable to travel the motion be oppose because of  publication be pass and the Lord keeper say though the rule of nonexamination  after publication have be strict in this point yet the court be the judge and  so he order a commission by this it appear that be discretionary in the court  to grant a commission after publication and though that be a examination after  publication in the same cause that do not make the case different from we for  the reason why a examination be not allow after publication for fear to  introduce fraud and perjury when the party know where the cause pinch be equal  whether the examination be in the same or another cause Mr mead the trustee by  their answer to our cross bill say that the article or the endorsement of the  payment be not execute when they hear date these then be matter particular put  in issue in this cause and publication be pass in the original cause before  their answer come in it be proper and not inconsistent with the rule of the  court to examine to these point there be no examination in the original cause  to the particular time the article be execute and upon the hear Mr justice  price be of opinion that there ought to have be a further inquiry and the  witness in this cause give their reason from write evidence why they can  remember the particular day so this be no more than prove exhibit and offer  mosely report er p explanatory evidence and give the witness a opportunity to  see whether they can find any thing to explain and fix their evidence Mr mason  say he remember it to be the seven of September because on that day he receive  a note from sir John blunt draw on the sword blade company which he make a  exhibit so Mr mosely report annesly in his former examination say sometime in  the year now he set out the day and Mr pierce be positive from a letter that  he see and peruse the article in August and his deposition be not irregular  because the same witness can be twice examine for he be not examine in the  former cause it be very usual on application to examine a witness over again  before the master after a hear to matter of account and the like and this be a  examination in another cause there be no reason to apply for leave Mr  fazakerly here be a exhibit hear date in July which be to be presume be  execute at that time and we have only examine to fortify that presumption and  since we have a right to proceed in our cross cause it be reasonable we may  examine to all the fact necessary to make out our case the witness have  refresh their memory by write entry which can mistake and if your lordship on  application will have grant this examination in the same cause as be just add  reasonable of common right we have liberty to examine to it in the cross cause  without leave when a court direct a issue it be liable to the same objection  as this examination if these deposition shall be suppress we shall be without  remedy though the justice of the case be with we if your lordship permit they  to be read you may give what credit you please to they and they will not  conclude the property of the defendant but if your lordship please you may  direct a issue Mr solicitor general for the defendant the only question be  whether the examination in the cross cause be regular in we bring our bill and  in may the cross bill be file publication pass in our cause the that of July  follow and our answer come in the December after we set out by our bill the  whole fraud and contrivance that the house be set by ware upon fictitious  lease to mason at a pound a year rend and fifty year purchase give for they by  sir John blunt that the agreement be not carry into execution till after the  that of January and that the article be antedate and this be the most material  point in issue in that cause the cross bill relate to the same individual  thing to discharge the claim of the trustee and to quiet the plaintiff in the  enjoyment of the money and stock and be as much by way of defence only as  their answer the cause be hear four day by your lordship assist by the Lord  chief justice Raymond the master of the roll and Mr justice price and your  lordship declare the whole mosely report proceed to be fraudulent and decree  that blunt and ware shall account for the money and stock and this decree have  be sign and enrol a account take and a report make our answer to the cross  bill come in before the decree or we may have plead it in bar to their relief  for a decree can never be vary by a new bill but by a bill of review only  because the same court may make contrary decree on the same equity and the  party will be entitle to the aid of the court to carry they into execution so  that the process of the court will fight with itself they say as they have a  right to go on with their cause they have a right to prove their case but they  can examine to the same matter after publication either in the same cause or  in a cross cause because they equal see what be swear and this occasion that  constant application to the court to enlarge publication in the original cause  till they have examine their witness in the cross cause that they may not be  preclude from examine and the reason be to prevent perjury and the  contradiction of evidence to misguide the court by a misrepresentation of fact  and the eke out evidence by explanation as this be a general rule let we see  whether there be any reason to dispense with it in the present case they say  they examine only to illustrate the former evidence and to a point that be  think not material in the other cause but this be the principal point in issue  in that cause and a fact they themselves examine to but if after a cause be  hear and the court lie hold of a defect of evidence the party may examine to  the same matter in a cross cause it will be the strong temptation to make out  and supply what they find material and the examination be equal introductive  of perjury whether it contradict the former evidence or carry it further upon  their find it material and they draw their argument from what the witness have  swear in this examination which can be consider for the question be whether  the same or now witness have be examine to the same matter that be mosely  report er p at issue in the original cause not what they have swear on the  examination we oppose the examine Mr pierce viva voice in the other cause to  the time because they can examine he only to the execution and the reason be  because such a witness may have see the deposition and not to save the  register a little trouble but there be not that room for perjury when he be  examine only to the execution so these deposition be not warrant by the course  of the court nor by the reason offer for the plaintiff as to the case that  have be quote it be not say in Keilway whether it be agree by the court or by  the council at the bar as their opinion and there the deposition be obscure  and the witness dead but I be sure the contrary opinion have be hold ever  since and their go so far back be a strong proof that the modern practice be  against they the case in Hardress be nothing to the purpose a mosely report  trial be direct and a bill bring for a discovery and the defendant demurrer  because the plaintiff ought not to have supplemental proof in the same cause  and the demurrer be overrule here they will have supplemental proof in the  same court and to overturn a decree but it be proper to apply for evidence on  a trial and the one case have no relation to the other they say the court  after publication often direct issue on the hear true and the defendant in the  former cause press for a trial but your lordship and his honour the master of  the roll be of opinion from the extreme danger of perjury after the party have  measure their strength and because this whole case be a complication of fraud  and if the court at that time will not grant they what it often do to the  suitor there be great reason to adhere strict to the rule of the court Lord  chancellor you need not go on there be no rule in this court more sacred than  that witness shall not be examine in another cause to matter in issue in a  former it be sometime do on a appeal in the spiritual court in the same cause  viva voice and informand Conscieniiam judge because the court be to satisfy  themselves all the way they can cross bill be at first unwilling allow of the  court foresee great inconvenience from they and the rule relate to they be  introduce by sir Nicholas Bacon they be in the nature of a defence and be  allow of that the party may more full have the benefit of somewhat he can not  so well profit himself of be a defendant though it be at issue in the other  cause but they can examine to the same matter after publication as evident  appear from the motion that be every day make to enlarge publication in the  original cause but the plaintiff have be guilty of a breach of another rule  that a cross bill be to be bring time enough to examine to before publication  passes in the original cause the answer come before the decree so they can  only answer and deny the fact and if any thing happen after that hinder a  examination to they that can be help the decree have establish these fact and  can be alter only by a bill of review or a appeal and the matter in issue in  the original cause or settle by the former decree can be examine to in the  cross cause so the exception to the master report must be overrule cur cane  Chan Cas Keilw a Hardr pract Reg in cane introd to clerk tut in cane Chan Cas  vern vern Chan Cas mosely report Friday June the that