the answer to those averments would be: "You may come here after your appeal has been heard, but, as long as that decree stands, you have stated yourself out of Court, you have stated a decree remaining unreversed, by which your rights are precluded." It is said that that point was not raised, or rather that it was not pressed, during the argument. Certainly, it was suggested; and, if it were as effective an answer to the suit as is now contended, I can hardly suppose that it would not have been pressed with effect; and I can hardly suppose that the very learned Judges of the Court of Appeal, before whom the whole case was brought, would not have perceived this defect in the bill, and would not have allowed the demurrer on that ground, even if the question had not been raised in argument.

However, it is necessary, perhaps, to say a few words on the point, as it has been again raised in this discussion.

The principles on which the Court has proceeded with regard to foreign judgments are now sufficiently established. When parties have been litigant before a foreign Court, having complete jurisdiction over the subject-matter in litigation, it is now settled, if it was not so before, by the case of Ricardo v. Garcias (12 CI. & F. 368), that the judgment of such [133] a Court may be pleaded in bar to a demand in this country between the same parties in respect of the same subject-matter.

But that does not at all touch, or rather, it seems to exclude, the case (which is the case I have before me) of a foreign Court coming to a conclusion upon a subjectmatter in effect entirely distinct. The foreign Court in this case did not try, and could not try, the effect of the will of this testator on lands in England. It is impossible that the question could ever, in any shape, be raised before that Court in that suit, or, I apprehend, in any suit. The Court had before it a certain alleged will, purporting to devise certain Irish estates, and it directed an issue to try the validity of that will. The issue was found against the validity of the will, and the Court then decided upon the only thing upon which it could decide, namely, that that instrument was not an operative devise of the Irish estates.

It is true that, in arriving at that ultimate conclusion, the Court in Ireland tried, collaterally, a matter which may materially affect, for aught I know, the decision that a jury in this country may come to in trying the question now submitted to this Court. But, independently of the general observation that the Court in Ireland had not, and could not exercise, a jurisdiction over the English estates, one may observe (it is not probably the case in this particular instance, but it is an exemplication of the inconvenience of allowing a decision of this kind to operate on property not at all in question in the Irish suit) that there has been an instance-Lord Trimlestown's case (1) in Ireland is an instance-in which a will, obtained by undue influence, was held to be good in part and held to be bad in part; it was held to be bad as to the devise obtained in [134] favour of the solicitor, but good as to the rest of the will. I mention that as an instance. I do not say that such a case exists here; but it is quite possible that questions may arise of a totally different character with respect to the English estates from those that arise on the Irish estates; and, at all events, whatever question there might be behind with reference to one particular description of property, it could not possibly be raised in any shape or way in the discussion of the matter in the Court in Ireland. They never could exercise any jurisdiction over this instrument as affecting the English estates. I apprehend the Court must have felt that difficulty, because I believe that the course, when a will is clearly established to be invalid, is that the heir has a right to ask to have the instrument delivered up, as a cloud over his title. There has been no decree of the Irish Court to that effect; (2) and there could not be, because this is a will affecting to devise the whole of the real estates; and if the Court were once informed that there were estates situated in another country, over which it had no jurisdiction, the Court could not proceed to deal with the instrument further than it has dealt with it, very properly, namely, by

(1) Lord Trimlestown v. D'Alton, 1 Dow (N. S.), 85; S. C. 1 Bligh (N. S.), 427. (2) At the conclusion of the judgment the Defendant's counsel attempted to account for the absence of such a direction by mentioning the circumstance that, when the decree was made, the will was in England, lodged in England and proved here, and that the Court in Ireland had no jurisdiction over it.

saying that, as regards all the estates in question in that cause which were the Irish estates, the will was invalid.(1)

Mr. Prior has cited a case which is the authority nearest to this kind of question which could be cited, namely, the case of Bouchier v. Taylor, which related to proceedings in the Ecclesiastical Court for trying who were, or who were not, the next of kin in a suit where the right to administer [135] was disputed. There the Ecclesiastical Court having determined that a certain set of parties were the next of kin, the House of Lords held that that decision of the Ecclesiastical Court was an effectual bar to any inquiry on the same point before another Court, namely, the Court of Chancery. That only followed the rule that I conceive to have been established, as I have already said, namely, that the decision of any Court of competent jurisdiction is at once a bar to any suit between the same parties upon the same subject-matter. The Ecclesiastical Court has full and complete jurisdiction on the point as to who are, and who are not, the next of kin. It is immaterial whether, in the exercise of that jurisdiction, they arrive at a particular conclusion in one proceeding or another, namely, in respect of letters of administration, or of any other particular point which may be before them. They have jurisdiction, they have tried the question, and, having pronounced a decision upon that question, the consequence is that the question never can again be litigated. But here, as regards the proceedings in Ireland, the result of the whole case is this. The Court in Ireland, in truth, has no jurisdiction of itself to pronounce upon the validity or invalidity of a will without the intervention of a jury, and without the assistance of another Court. The Court of Chancery in England, and the Court of Chancery in Ireland, have both disclaimed any such jurisdiction. In order to obtain, therefore, the assistance of another Court, it sends to that other Court an issue to be tried with reference to the validity or invalidity of the will, which is to assist itself, when the issue has been determined, in arriving at the decree which it is proper for the Court to make. But what decree (as I said before) is the Court to make? It is to be a decree relating to the Irish estates alone, and the validity of this devise, which operates as a conveyance of them; and the thing to be pleaded in bar, if anything could be pleaded, would manifestly not be this decree. It does not touch the question in this cause, being directed to estates in Ire-[136]-land. If anything could be pleaded in bar the only thing that could be pleaded or set up as a bar would be the verdict of the jury. It is not attempted to be argued here, and I apprehend would not be effectively argued (and no one has attempted to argue it), that the verdict of the jury upon this issue, although adopted by the Court as the foundation for its decree, is in itself a thing which could be set up in bar to the proceedings in this Court with reference to that over which this Court, and this Court alone, has jurisdiction as contrasted with the Irish Court, namely, the validity of this will as affecting the disposition of the English estates. If one supposes, for instance, that, instead of being one will, there had been two wills executed on the same day, under the same circumstances, with the same attesting witnesses, and at the same moment, the one devising the Irish estates, and the other devising the English estates, one sees at once that a determination upon the one instrument could not affect the determination on the other. It might be very good evidence possibly (upon that I say nothing) when they came to a trial between the same parties upon the second instrument, but the invalidity of the one instrument having been determined by a jury in Ireland could not affect the right of the Plaintiff to proceed on the other instrument containing a devise of the English estates. And, in effect, although contained in one sheet of paper, the operation of the single instrument is just as distinct as if it had been severed into two instruments; and the impossibility of the Court in Ireland dealing with the English estates is just as great when both estates are comprised in one instrument as it would have been if there had been two instruments, in which case no one would have supposed that the instrument affecting the English estates could have been submitted to the Irish Court.

A great many arguments were pressed upon the ab-[137]-surdity of the result that might be derived from this view. I wish that our laws were in such a state of

(1) The Vice-Chancellor subsequently referred to the form of the decree in Hippesley v. Horner, Set. Decr. 522.

perfection that any argument of inconvenience would at once be a reductio ad absurdum. There are many cases in which it is not so. With regard to this very matter of wills, it is more than a hundred years since Lord Hardwicke said he trusted that some member of the Bar, who occupied a seat in the Legislature, would take care to get rid of the extreme absurdity of its being possible to hold that a testator was utterly incapable of bequeathing his personal estate, and yet that he was perfectly capable, by the same instrument and at the same time, of disposing of the whole of his real estate. It is a matter that strikes me as extremely inconvenient, but it is the state of the law. Many other cases may be mentioned; for instance, the case of ejectment is one of everyday occurrence. Ejectments may be tried in every county of England, with various results; and one does not know what may be the ultimate result of writs of error to the Court of Common Law with regard to all those trials. So again here, if the heir had proceeded by ejectment instead of proceeding, as he did, by bill-if he had proceeded by ejectment at once in Ireland, I apprehend he could not have complained of the absurdity or the inconvenience of the result, when he succeeded there, of having to try the question over again by an ejectment in this country for the land as to which he here sought to recover. The inconveniences in all these cases may be very great, but I am afraid that they are inconveniences which, as long as there are two separate jurisdictions in England and Ireland with regard to real estate, must continue to exist.

Another way of viewing it is this: the Court having held at all times that it will not determine the question of the validity or invalidity of a will impeached for fraud, except through the intervention of a jury, how am I to interpret [138] that rule of the Court with reference to a will affecting English estates, in which the only thing that is presented to my mind is that there has been the determination of an Irish jury upon that will? I apprehend that, when it is said that the Court will not try the validity or the invalidity of a will except through the intervention of a jury, that means a jury competent to try the question with reference to that will, and an Irish jury is certainly not competent to try the question of the validity of a will of English estates and if the rule be good that the conscience of the Court must be satisfied by the verdict of a jury, it must be by the verdict of a jury of this country, competent to try the question that will be so submitted to it, and not by the verdict of an Irish jury, or of any other foreign jury, which might have arrived at the same conclusion upon a will affecting estates or property situate in the foreign country.

It seems to me, therefore, on every ground-upon the ground of principle as well as upon the ground that the case in that respect was not overlooked on demurrer, but really stands just in the position in which I think the Court of Appeal must have viewed it on demurrer-that the circumstance of there having been a previous trial with reference to the Irish estates, as to the validity of this will, is no bar at all to the present suit.

The other argument-the argument of the inexpediency of granting an issue in a case of this description-is one which, of course, requires much more consideration. I have had the opportunity of considering it a good deal since I had the advantage of Mr. Swanston's argument; and I do not find that Mr. Prior's argument, which has also been extremely able, has displaced the view I felt myself bound to come to on that point.

[139] I think it is quite settled now that the heir is entitled as of right to an issue; because the case cited by Mr. Swanston, of Man v. Ricketts, in no way interferes with that principle, the heir there claiming under the will, and only attempting to invalidate, for particular reasons, certain devises centained in that instrument. The rule is not so as to a devisee, and the Court may say to a devisee, "Your case is of that weak character that the Court sees at once it is only for the purpose of harassing and vexing the heir that your suit has been instituted, and consequently it does not think fit to grant you an issue, or to put the heir to any expense with reference to the assertion of his rights."

And the case presented here is, in some respects, a strong one for the heir; for he says, "I have had to try this right in respect of a question affecting estates of £9000 a year, where every effort was made by the parties who now seek to try the validity of the will with regard to the English estates. Having tried that right, the Plaintiff

has had every advantage. She has moved for a new trial, and a new trial has been refused; and the only evidence produced on the present occasion is simply the evidence of one of the attesting witnesses to the will."

Now, first, I think I am entitled to consider, in regard to the question of the expediency of granting this issue, a circumstance which I was not entitled to consider at all with regard to the question whether or not the previous suit was a bar in law to the present demand, viz., the circumstance that the decision of the Court in Ireland is under appeal. Certainly this lady, who is now seeking to try the question in England, has in no way submitted to the decision in Ireland. I think there would be a strong case for saying, "You shall not try in England a question so analogous, to say the least, to that which you have tried [140] in Ireland and have submitted to." She has not done so. She has presented an appeal from that decision.

It is, however, said that she has greatly delayed that appeal, and that she wishes to have an indirect advantage in trying this question to affect that appeal. I do not say that it would be any ground for granting an issue that a party might have such an advantage, but I am by no means clear that it is so undue an advantage that this Court will feel justified in refusing an issue, because possibly circumstances which she may have to adduce, and possibly the different view which an English jury may take of this matter from an Irish jury, may avail the Plaintiff indirectly in another suit. What I simply wish to observe is that I think that is no bar to her application, although it may be one of her motives-and I cannot shut my eyes to the fact of its being a probable motive-for her wishing to have the case tried again. I do not think that that wish or intention is one that should at all operate either to prevent my having the case tried or to postpone the trial.

With regard to any alleged delay, the House of Lords has its rules, which prevent any delay they may think improper; and I must assume that the House of Lords will exercise its jurisdiction in that respect so as to force the party to bring on the case at the time when it ought to be brought on. If any improper delay takes place the House of Lords will know how to deal with it, and they will proceed with that appeal as they think fit. The only case I have before me is this-that I have a judgment, certainly not acquiesced in; and it would have been most improper, as it seems to me, for these parties to have gone into evidence before me to shew that the Irish verdict was an improper one. I think it would have been quite impossible for me to have tried over again the ques-[141]-tion of new trial upon this Irish verdict, which is before a competent Court for its decision, and which is now waiting the decision of the House of Lords. I could not have tried that case, and all that it results in is this-that, there having been such a verdict, and the result having been against the present Plaintiff, as the case now stands, she, so far from acquiescing in it, has continued to dispute it.

Again, to revert for a moment to the first proposition, namely, the right which I conceive a party must have before he is concluded upon the point of the validity of the will, to have it submitted to a jury of the country where the lands are situate, in respect of which the validity of the will is to be tested. Suppose the case had been the other way; suppose the verdict in Ireland had established the will against the heir, and the heir were now the party insisting upon an issue, I could not possibly refuse it. He would have it as a clear matter of right; and it would be no answer to the heir claiming the English lands to say, "You have had your right to Irish lands tried by an Irish jury and found against you." And if that be so as to the heir, then, although it is perfectly true that the devisee cannot claim, as of right, an issue, yet I think it would be extremely hard to hold that the circumstance of the verdict having been found against the will is in itself so strong as to prevent my directing now, upon the application of the devisee, the issue which I should be obliged, ex necessitate, to concede to the heir.

There are circumstances of hardship also suggested with reference to the present position of the case, namely, that one witness, who has been examined in Ireland, and whose cross-examination is supposed to have been very effective in support of the heir's case, is now deceased. If that could be attributed to any default on the part of the Plaintiff, [142] if she could be supposed really to have been guilty of any laches with reference to bringing her case before this Court, I should have thought it an argument

of great weight; but she appears to have filed this bill with all sufficient speed. The case in Ireland does not seem to have been determined (I have not the exact date of the decree) until 1853.

Mr. Cairns. It was not settled till July, and our bill was filed in August.

THE VICE-CHANCELLOR. All the delay that has taken place since has been owing to the proceedings of the Defendant; not that I impute any blame to the Defendant, because I think the case was a very important one, and one which it was natural that he should wish to have raised in every form that he thought would save him further delay and expense; but he is not in a position to tell me, a year after the hearing of this cause on demurrer, when, if he had submitted to the bill, the issue would have been tried at the last Summer Assizes, that now the unfortunate circumstance of the death of a witness ought to weigh with me to prevent my putting the case in a course of trial, if I do not feel that the other grounds are sufficient to prevent it. The same may be said with regard to the illness of the other witness. Whether or not (and I pronounce no opinion upon that) the testimony given in Ireland in the trial between the same parties, and with the same subject-matter in the trial, namely, the validity or invalidity of this paper-writing, can, when the witness is deceased, be given in evidence on a new trial, may also be a question to be considered. I will assume, for the present purpose, that it could not be. But I do not feel, under the circumstances-the default not having been in any way on the part of the Plaintiff or attributable to her-that I could say that that is a reason for refusing her the [143] issue, if I find no other ground for coming to that conclusion.

I have purposely abstained from referring to the numerous authorities cited, with the exception of Bouchier v. Taylor, for this reason: The cases cited to prove that the Irish decree was a bar to this suit are all of them consistent with what I stated at the commencement, viz., that, in order to be a bar, the decision must be a decision of a Court of competent jurisdiction upon the same subject-matter between the same parties. With regard to the question of discretion, none of the cases, I think, apply. I will take the strongest, as it appears to me, namely, the case of Lord Breadalbane v. Lord Chandos, in which Lord Cottenham said that the party Defendant might have raised the point in Scotland, and did not raise it; and, therefore, he was not now entitled to ask for a trial. Mr. Prior says, "A fortiori, he is not entitled where the point has been decided." I think the answer to that is the same as the answer to the question of the decision being a decision in bar. The party had not the opportunity of raising the case. This party could not have tried, if she had been ever so minded, in the Irish cause, any question upon these English estates: it was a thing utterly impossible. Therefore there never was any opportunity of trying this question; and under these circumstances it seems to me that the ordinary course must here be followed of granting to the Plaintiffs that which they ask, namely, an issue devisavit vel non upon the will of the 6th of August 1842. If the Defendants require it there must be a second issue devisavit vel non with regard to the instrument of the 5th of August 1842; otherwise there will only be an issue on the instrument of the 6th of August 1842.

[144] The heir at law declining to ask for an issue as to the instrument of the 5th of August the Court directed that circumstance to be mentioned in the decree.

Application was made for the costs of the heir who, it was contended, was entitled to his costs at each stage of the proceedings; but the Court held that the settled course was for the heir to apply for his costs on further directions and not from stage to stage.

Some discussion having then arisen as to the admissibility of the affidavit filed after the time for the admission of evidence had closed, the Court expressed an opinion that although, in strict form, nothing could be done without leave, after the period for closing the evidence, so that, in strictness, the drawing up of the order would be stayed until an application for such leave had been made; yet, having regard to the date of the events the subject-matter of the affidavit, and to the circumstance that those events could not have been deposed to before, the Court could take upon itself at the hearing, and without a special application, to give the permission.

It appearing, however, that the affidavit contained other matter which, the