subpoena, the Lord Chancellor a few days afterwards said, he had sent to the Subpoena Office; and there is no other subpoena than that stated by the Master of the Rolls; the label giving notice, that it is to testify, where the examination is in town: but where it is in the country, the body of the subpoena expresses, that it is to give testimony.

Upon this decision Mr. Manley went before the Master.

1. WHENEVER the Master certifies, that a commission for examination of witnesses is necessary, such commission issues of course. Sandford v. Biddulph, 9 Ves. 36; Bearcroft v. Berkeley, 2 Cox, 109. But the Master cannot, under a decree directing inquiries, examine a witness who has been examined in chief, without leave of the Court. Smith v. Graham, 2 Swanst. 264; Willan v. Willan, Coop. 292; S. C. 19 Ves. 592; Purcell v. M’Namara, 17 Ves. 435. Still, though witnesses examined in the cause cannot, without leave specially given, be reexamined before the master, even on substantially different interrogatories, (Greenaway v. Adams, 13 Ves. 360; Sawyer v. Bowyer, 1 Brown, 388,) the Master, when making the inquiries, or taking the accounts, directed by the decree, may examine other persons, without a special order from the Court, and receive in evidence any depositions from such fresh witnesses as bear upon the question in issue; the Master may also receive evidence which, as being on the record, was, in a certain sense, before the Court in the cause, though it was not actually read at the hearing. Smith v. Althus, 11 Ves. 564.

2. As to the general rule, that interrogatories for a second examination of the same witnesses must be settled by the Master; sec, ante, note 3 to Sandford v. Paul, 1 V. 398.

3. Although a Master has once closed his examination, it is in his discretion to receive farther interrogatories. Price v. Lytton, 5 Mad. 465; Lynn v. Buck, 3 Mad. 282, unless the depositions first taken have been published; Willan v. Willan, 19 Ves. 592. Or (as it is proposed by the bill now before Parliament for regulating the practice in Chancery,) unless he has issued the usual warrant on preparing his report. The same bill proposes that Masters in Chancery should be armed with the power of examining viva voce.

4. As to the effect of continued practice, even when in contradiction to a positive order; see Boehm v. De Tastet, 1 V. & B. 327; Broomhead v. Smith, 8 Ves. 363; The Queen v. The Bailiffs of Bewdley, 1 P. Wms. 223; v. Chillender, Hardr. 98; The King v. Man, 2 Str. 755.

[* 609]

MATCHWICK v. COCK.

[ROLLS.-1798, FEB. 19.]

TESTATOR directed his children generally to be maintained during the life of his wife, but distributed his property after her death in words, which would not comprise after-born sons: they were held entitled to the former provision. (a)

JAMES MATCHWICK by his will, dated the 9th of March, 1791, after certain legacies, gave, devised, and bequeathed, to John Cock and two other persons, their heirs, executors and administrators, all

(a) A Court of Equity is always anxious, under the word children, to include all children in existence at the time of the death of the testator. Ringrove v. Bramham, 2 Cox, 384; and particularly when he stands in the relation of parent to the legatees, the Court, presuming that he intended to do his duty in providing for all

his freehold, copyhold and leasehold, messuages or tenements, farms, lands, hereditaments, and premises, and all his household goods, household stuff, furniture, ready money, money in the funds, securities for money, and all other his personal estate, upon trust, that they should receive the rents, interest, dividends, proceeds and profits, of his real and personal estate, and from time to time and at all times pay, apply and dispose of, such rents, interest, &c. as might arise from such parts of his real and personal estates as might remain after payment of his legacies and of his debts and funeral expenses, and the expense of proving his will, (which he willed should be paid out of his personal estate) in manner following: then after giving a specific legacy of stock to the separate use of his sister Mary Taylor for life, and after her decease to her son James Taylor, his executors, &c. to be transferred to him at twenty-one, as to the rents of his said real estates, and the interest, dividends, proceeds and profits, of the remainder of his said personal estate, in trust to pay, apply and dispose of, the same unto and for the maintenance of his beloved wife Ann, and the maintenance and education and bringing up of his children, in such manner, parts and proportions as his said trustees shall think most eligible and beneficial, until the decease of his said wife. The testator then directed his trustees with all convenient speed to sell a particular estate, and to invest the produce of the sale in the public funds and the dividends or interest thereof from time to time to pay, apply and dispose of, in the manner and for the purposes last before mentioned; and he empowered his trustees to sell out or dispose of any reasonable parts, as to them should seem eligible and proper, of his said moneys in the public funds, as a premium to place out his son Thomas Matchwick as a clerk or apprentice, or for the advancement or promotion of either of his daughters, whenever and at such times as might be thought necessary and proper; and he directed, that his wife should not have any one or more of her relations to board with her; and that his trustees should and might in such case, or if his wife should marry again, withhold from and refuse to pay her all or any part or [*610] parts of the said rents, interests, dividends, proceeds and profits, and dispose of the same wholly to the maintenance and education of his children (they being in the event of such marriage of his wife guided by the prudence or imprudence of her choice); and immediately after the decease of his wife in trust, that his trustees, their heirs, executors, &c. should convey unto his said son Thomas Matchwick, his heirs and assigns for ever, or according to the tenure,

his children at his death, will lay hold of any general expression to give effect to this presumed intention, and will not permit such general expression to be narrowed by the context. 2 Williams, Exec. 797. The leading principle is, that where a bequest is to "children" in a class, children in existence at the death of the testator are alone entitled; among which children in ventre sa mere are to be considered. Ibid; Doe v. Clarke, 1 H. Bl. 399; Trower v. Butts, 1 Sim. & Stu. 181. And it will make no difference that the bequest is to children "begotten or to be begotten." Ibid; Stoors v. Barbor, 2 M. & K. 46; Swift v. Duffield, 5 S. &

a messuage and lands at Elstead; it being his will that such estate should remain in his family; and in trust, that his trustees, their executors, &c. should immediately after the decease of his wife assign, transfer, pay and deliver over, unto each and every of his daughters, which might be then living, the sum of 1000l. clear, unless they or either of them should have before that time had any advancement or portion given to her or them by virtue of the power before reserved to his said trustees for that purpose, and in such case then only so much as would make the portion or fortune of either of his daughters 1000l. only; and in trust that his said trustees, their executors, &c. should at such time last aforesaid assign and deliver unto all his said children severally and respectively all his household goods, furniture, plate, linen, china and books, she his said wife being permitted to have the use thereof, and also to assign, transfer, pay and deliver unto his said son, his executors and administrators, all the rest of his property: but nevertheless in such last-mentioned respects regarding the minority of the said children, and not investing them with any such property till the full age of twenty-one; and he appointed the said trustees his executors.

The testator died in 1795; leaving his widow, and five children; of whom three, namely, Thomas, Cornelia, and Sarah, were living at the time of making the will; and two sons, namely, James and William were born after that time. The testator had another daughter, Sophia, living at the time of making his will: but she died in his life.

The bill was filed on behalf of the infant daughters, Cornelia and Sarah, to have the will established and the trusts thereof carried into execution and the question was, whether the Defendants James and William Matchwick, the children born after the date of the will,

could have the benefit of the provision for the maintenance [*611] and education of the testator's children during the life of his widow, the Defendant Ann Matchwick; or whether the children living at the date of the will were exclusively entitled to that provision?

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. It is very clear, that if the testator has really forgot, that he may have other children, and has upon the face of the will given to those living at that time, and omits those to be born in future, it is impossible to supply that defect, and to give them any provision, however the Court may wish it; but by the certificate in a case before Lord Mansfield the Court of King's Bench has gone a vast way towards it; holding an after-born child entitled, though he was not in contemplation. This testator, bound by every obligation to provide for his children, uses words, which, unless controlled by subsequent words, would be sufficient to comprehend them all. Then comes a power to the trustees to apply a part of the fund in placing out his son Thomas Matchwick or for the advancement or promotion of either of his daughters. That is very strong to show, he had forgot the possibility of having any more. He then goes on to divide his

property after his wife's death, and gives to his daughters 10007. each in words, that would take in other daughters: namely, to each and every of his daughters which might then be living. He then gives the residue to his said son.

It is impossible certainly under this will, to admit after-born sons to a share of the residue: or to give them the sums provided for daughters but those questions do not arise now. : One cannot but suspect, and, if it was not in the case of parent and child, one must make the inference, that he intended only to provide for that son and those two daughters: but it was an obligation upon him at his death to provide for all his children. I must construe it every way, if possible, to apply the words to after-born children; and I will not deprive them of the provision, which under the general words they may be supposed to have.

Therefore declare, that during the life of the testator's wife the rents and profits of the real estate and the interest of the personal estate are applicable to the maintenance, education and bringing up, of all the children.

I almost wonder, the law of England allows a man totally to disinherit his child, and leave it upon the parish (1).

THE authority of the principal case was recognized, and a similar decree made in Freemantle v. Taylor, 15 Ves. 363; where (as in the present instance) maintenance during their minority was allowed to infant children of the testator, who, under the terms of his will, could not be let in to participate in the final distribution of his property.

WATTS v. BROOKS.

[1798, FEB. 21.]

[* 612]

CONTRACT to be jointly concerned in ship insurances is void by stat. 6 Geo. I. c. 18, s. 12, though the policies are subscribed by the underwriters in their separate names; but, though the contract could not be executed, the Court would not exclude the result of it in decreeing a general account. (See the note (1).) Insuring each other is not within stat. 6 Geo. I. c. 18, s. 12, [p. 613.]

A man cannot set up his own illegal act to avoid his own deed, [p. 613.] Smuggling transactions or illegal dealings in stock shall be brought into an account, though the Court would not execute the contract, (a) [p. 613.]

IN 1768 the Plaintiff and Defendant executed a memorandum in writing, by which it was agreed between them, that they should be equally concerned in whatever policies of insurance they might

(1) Freemantle v. Taylor, post, vol. xv. 363.

(a) The old cases often gave relief, both at Law and in Equity, where the party would otherwise derive an advantage from his iniquity. But the modern doctrine has adopted a more severely just, and probably a more politic and moral rule, which is to leave the parties, where it finds them, giving no relief, and no countenance to claims of this sort. See 1 Story, Eq. Jur. § 298, note, where the cases at law and in Equity in illustration of this are collected; McCullum v. Gourley, 8

write in any office in Liverpool; and that they would each advance one moiety in case of any loss or losses, that might happen in any office or offices. Immediately after entering into this agreement they began to underwrite in their separate names policies of insurance on ships or vessels and their cargoes and freight, and also policies on lives in the offices of the Plaintiff and other insurance brokers in Liverpool; and the joint concern in the business of underwriting was carried on in this manner until the 31st of December, 1780, when the said partnership or connection was by mutual consent dissolved.

The bill prayed a general account of all the aforesaid dealings and transactions.

Mr. Mansfield and Mr. Fonblanque, for the Plaintiff. This transaction is not within the statute 6 Geo. I. c. 18, s. 12; the insurances having been made in the separate names of the partners. The object of the Act is to prevent joint insurances, in order to give the two great Offices for insurance, not a monopoly, but a preference, by preventing any other insurance by a joint fund: and it is a penal Act. The assured could have recovered upon these policies; and the Defendant in the action could not have averred, that it was in respect of a partnership. Therefore the contract remains. If the policy is not void against the assured, it is not within the Act. It is individual credit. The party could not recover against a dormant partner. Lees v. Smith, 7 Term Rep. B. R. 338.

Solicitor General, [Sir John Mitford] and Mr. Stanley, for the Defendant. The Court cannot sit by and see parties enforce what the law declares to be illegal: Rooth v. Hodgson, 6 Term Rep. B. R. The Court is therefore not warranted to make any decree, that shall include insurances upon ships.

405.

[* 613]

*Lord CHANCELLOR [Loughborough]. There is nothing immoral in the transaction: but it is against a prohibitory statute. I doubt a little the policy of the Act: but I cannot allow it to be argued, that you can break a law covertly. What you cannot do openly you cannot do secretly. Lees v. Smith was upon insuring each other; which is not within the Act certainly. As to the objection, that the assured could recover, a man cannot set up an illegal act of his own, in order to avoid his own deed.

Though I am clearly of opinion that the judgment of the Court of King's Bench upon the Act is quite right, it goes no farther than that the Court will not execute these contracts; but where the parties have had dealings together upon a variety of transactions, and

Johns. 147; Inhab. of Worcester v. Eaton, 11 Mass. 368; Phelps v. Decker, 10 ib. 267. But in cases where the agreements or other transactions are repudiated on account of their being against public policy, the circumstance, that the relief is asked by a party, who is particeps criminis, is not in Equity material. The reason is, that the public interest requires, that relief should be given; and it is given to the public through the party. Ibid. This Court will not compel any discovery respecting a contract made in evasion, and contrary to the meaning and intent, of the statute. Fitzgerald v. Arthure, 1 Irish Eq. 184; Edwards v. The Grand Junetion Railway Co. 1 My. & Cr. 650; S. C. 7 Sim. 337.

VOL. III.

38*