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Notices of New Books : W'igrum's Law of Discovery.


discovery of such material facts as relate to the poration lost 70001. a year.' This observation ' plaintiff's case,' and does not extend to a applies to a specific case; but the mischief at discovery of the manner in which the defends which it points is not confined to cases in ant's case' is to be exclusively established, or specie the same with that which produced it. to evidence which relates exclusively to his Similar consequences may, in any case, ensue

discovery-an observation wbich, without com“4. Every objection to discovery which is ment, proves the necessity of placing under founded upon a denial of the plaintiff's right strict regulation the jurisdiction exercised by of suit, or of his right to proceed with it in its Courts of Equity in compelling discovery. existing state, should reguiarly be taken byde- “In Shaftesbury v. Arrowsmith, 4 Ves. 71. murrer or plea, according to the circumstances Lord Thurlow says : Permitting a general of the case ;--and, where the objection is not sweeping survey into all the deeds of the family so taken, and the defendant answers the bill, would be attended with very great danger and he will, in general, be held to have waived the mischief ; and where the person claims as heir objection, and will be obliged to answer the of the body, it has been very properly stated, bill throughout.'

that it may shew a title in another person, if the “5. Every objection to discovery which is intail is not well barrrd. And see 3 Ves. jun. not founded upon a denial of the plaintitf's 501, in Wallis y. The Duke of Portland: Van. right of suit, or of his right to proceed with his sittart v. Barber, 9 Price, 641 ; Hare, 185, 186. suit in its existing state, but depends exclu. "The argument which thus arises out of the sively upon the nature of the discovery sought, possibility of mischief to an innocent party, inay'regularly be taken by answer as well as by from a discovery improperly enforced-if cardemurrer or plea. As the mode of taking ob- ried to its extent-would strike at the very jections of this nature is thus unfeitered by foundation of the jurisdiction itself. The arrules of form, a defendant who has not actually gument, however, is not all on one side. Supanswered an interrogatory or interrogatories pose (to put an extreme case) a man wrongto wbich the objection may apply, cannot, as a fully to possess hiinself of another's estate, and general rule, be held to have waived it upon also of all the evidences of his title to it. No any merely technical grounds."

suggestion of possible mischief to an innocent We congratulate the profession that a party would support the conclusion that a man of so much eminence as Mr. Wigram diction attended with such risk, should permit

Court of equity, rather than exercise a jurishas been induced to publish the result of his the wrong-doer to withhold from the injured experienec and research in this important party his estate-by withholding the only means branch of law. The purpose and general of trying his title to it. scope of the jurisdiction exercised by Courts “Nor is the possibility of mischief of the of Equity in compelling discovery are thus nature suggested by Lord 'Eldon, in the case of stated by Mr. Wigram:

Cock v. St. Bartholomer's Hospital, the only

evil to be apprehended from the compulsory “A bill in equity generally requires, and the disclosure of evidence before the hearing of a Court enforces, the answer of the defendant cause. The danger of perjury, as will hereor party complained of upon oath. An answer after be seen, is the foundation of a settled is thus required and enfor exi, with a view to rule of practice, by which the right of a party furnish an admission of the case made by the to discovery is limited to the evidence neces. bill, either in aist of proof, or to supply the sary to sustain his own case, to the exclusion want of it, and to avoid expense,

of ihat by which the case of his opponent es. • The discovery which is thus required and

clusively may be sustained.” enforced is not contined to a discovery of facts resting merely in the knowlege of the defend- Mr. Wigram states that his object has been ant, but extends, within curtain limits, to to investigate and explain some of the leading deeds, papers, and writings in his possession rules by which the exercise of this jurisdicor power.”

tion is regulated in practice. After stating The difficulties attending this branch of some points which a general and systematic equitable jurisdiction, with a view to pre-treatise on the law of discovery would conventing its working injustice, are well de- tain, but which are excluded from the scope scribed.

of the present treatise, the author thus " The exercise of a jurisdiction of this na- proceeds: ture cannot be otherwise than pregnant with For the present, then, a case will be as. danger to the interests of those against whiom sumed—1, in which the jurisdiction of the Court it inay be enforced, unless careful provision were over the subject-inatter of the suit does not ware for guarding against its abuse. Upon a admit of controversy :-2, in which (except motion for the production of documents, in where it is otherwise expressly noticed) the the case of Cock v. St. Bartholomew's Hospital, distinction between a bill for discovery only 3 Ves. 141, Lord Eldon said: “The Newcastle and a bill for discovery and relief does not call case is a good lesson upon this subject of pro- for observation ;--and 3, in which the scope of duction. They produced their chariers to the cause is single, in the sense in which the satisfy curiosity; some persons got hold of word 'single' has been explained in a former them, and the consequence was, that the cor. place.


Notices of New Books : Wigram's Law of Discovery.

501 "Assuming, then, a simple case of the de- “ The distinction between that part of the scription just noticed, soune further observa- record called an answer which constitutes the - tions may usefully be made by way of intro- defense, and that part of it which contains the duction to the points about to be investigated. discovery required by the bill, is of the essence

“A right understanding of many, if not of of some of the most important rules in the law the majority of those points, requires that the of discovery. To a neglect of this distinction attention of the reader should constantly be may be traced the confusion in which some alive to a peculiarity which (excluding adefence important points in that law have become inby demurrer or disclaimer) for the most part volved. distinguishes a defence in equity from a de- “Where a plaintiff seeks to obtain discovery fence at law. At law, a defendant has merely to which he lias no right, or to obtain it by a to put upon the record the case upon which he forın of proceeding not in accordance with the relies as an answer (i. e. as his defence) to the practice of the Court, the defendant, as will plaintiff's claim in the action; and to this the hereafter be seen, may object to give the disrecord containing his defence is confined. In covery required, and demand the judgment equity, it is otherwise. In equity, as at law, of the Court whether he should give it or not. the defendant must not only put upon the re- “In addition to objections challenging the cord the case which he relies upon as an answer plaintiff's right of suit, or the regularity of the (i. e. as his defence) to the claim made against proceeding by which he seeks to obtain dishim, but he is also obliged-in addition to and covery, Courts of equity in many cases refuse upon the same record with this defence-to give to enforce particular discovery upon objections that discovery to which the common rule," al- founded in the nature of the discovery sought, ready noticed, entitles the plaintiff. The word and in that alone;—as where it would subject answer, then, as applied to a defence in equity, the defendant to penalties, --where it is immais a complex term,- embracing two things terial, where it relates exclusively to the deessentially distinguishable from each other : fendant's case, –and upon other grounds which namely, 1. The defence, i. e. the defendant's will be noticed hereafter. case; and, 2. The examination of the defenila “As the appropriate mode of taking an obant, consisting of the discovery sought by the jection to discovery varies in many cases with bill. Such are the distinct parts of which an the ground and nature of the objection itself, answer in equity may be said, in general, to it is of importance to distinguish between those consist. But, in practice the word

objections to discovery which challenge the is applied, almost indiscriminately,-10 the plaintiff's right of suit, or the regularity of the defence,-to the discovery or examination, proceeding by which he seeks to obtain it, and to the record which comprises both, -and to those objections to discovery which that thing which is technically called an answer grounded upon the nature of the particular in subsidium (as distinguished from an answer discovery objected to. It is one thing for a in support) of a plea, and which, though ad defendant to say, 'I will not answer because missible in pleading, is neither an examination you have no title to relief against me at law nor (properly speaking) a defence. To the or in equity, or because you seek it in a mangeneral and loose sense in which the word ner not warranted by the practice of the Court,'

” is thus used, without due regard to and another to say, 'I am not bound to make the essential distinctions just pointed out, may this discovery, even admitting your title were be traced much unprofitable argument and as you have asserted, and your manner of seekmuch of the confusion which appears to exist ing it to be free from all objection. The as to a plaintiff's right to discovery. An an. fourth and fifth propositions stated below, are swer, so far as it is a defence only, and a plea founded upon the above distinction. The in bar, as will hereafter be seen," stand upon fourth, relates to the appropriate mode of ohprecisely the same fonting as to a plaintiti's jecting to discovery, where the objection is right to discovery Where the defence is by founded upon a denial of the plaintiff's right plea, the plaintiff is entitled to all such dis- of suit, or to the manner in which he procceds covery (if any) as may be necessary to try the to obtain it, and the fifth, relates to the ap. truth and validity of the defence so made; propriate mode of objecting to discovery where and this right, so far as the matter of the plea the objection is founded exclusively upon the is concerned, is just as extensive when the le- nature of the discovery itself.” fence is made by plea, as when it is made by

Mr. Wigram then investigates each of In fact, the only diderence betweeii

The the two modes of defence, so far as the right the five propositions above stated. to discovery is concerned, will be found to second and third of which, comprising by far consist in this—that, in the former, (tbe de. the most numerous class of cases, are treated fence by plea), the point made by the plca is at great length, and we need scarcely say tried in the first instance, and the discovery that the whole work is worthy of the extherefore, in the first instance, is confined to tensive learning, sound judgment, and acutethat point ; whereas, if the matter of the plea

ness for which the learned author is distinbe insisted upon by ansier, other points in the cause, unconnected with the matter of the plea, guished. The present edition comprises the go to trial simultuneously with that matter, and points involved in the recent cases of Adams the discovery therefore is extended to thuse v. Fisher, 3 Myl. & Cr. 549 ; Neate v. Latipoints also.

mer, 2 Younge & Col. 237, 11 Bligh 149;





502 Notices of New Books.— The Student's Corner.- Selections from Correspondents. Pilkington v. Himsworth, 1 You. & C. 6:2; a needless and useless expense;" but it seems and Carter v. Goetze, 2 Keen 581. The other strange to me that it should never have ocprincipal decisions reviewed in the course of curred to him that, had he exercised the proper The work are Hindman v. Taylor, 2 Bro. C. degree of care in searching the Roll of Attor

. C. 7; Sanders v. King, 2 Sim. & S. 277; loss would not have been incurred.

neys previously to issuing the writ, this heavy Thring v. Edgar, Ib. 280; Pennington v.

I trust J. W. will adopt my hint, and search Beechey, Ib. 232; Attorney General v. El- the roll a little the next time he sues for rent lison, 4 Sim. 238; Crowley v. Perkins, 5 due to old ladies.

PHILOLETHES. Sim. 552; Hardman v. Ellames, 5 Sim.

Sir, 610 ; Lamberl v. Rogers, 2 Mer. 489. Besides these cases Mr. Wigram notices

As a member of the profession, I cannot those of Murray v. Walters and Grane vident “J. W.” p. 425,' would have done well

refrain from observing, that your correspon. Cooper, which are not reported, but doubt. if he had kept the circumstance he relates in less his statement of them may be implicitly your last number, to himself, instead of putrelied on.

iing it forth as a reason for his brethren to be deprived of one of their most ancient privileges,

because he was ignorant of that of which any THE STUDENT'S CORNER.

Tyro in the profession could have informed him.

I would remark, that if “J. W.” had been as wise as his antagonist, to whom he refers as

“ this respectable gentleman," possibly as re. Mr. Editor,

spectable as himself, though perhaps not so Will you or any of your readers be good prosperous, he would have saved “the needless enonghi to answer the question arising upon and useless expense” of which he complains, the following case: the question certainly ap- and thus saved an attorney the unpardonable pears a simple one, but as a doubt has arisen, sin of doing that for himself, which, if be were and I have referred to the act and several acting for a client, he would be bound to do. books upon the subject, without meeting any.

A SUBSCRIBER, thing bearing upon the point, I take the liberty of subinitting the same to you for your opinion.

A mortgage deed was executed some years PROPOSED ARTICLED CLERKS' CLUB. ago, which with the receipt, attestation, &c. Sir, Tan close to the prescribed number of folios. Having read in a late number of the Legal Upon the interest becoming due, it was re- Observer a letter from “ Milo,” I not only ceived by the solicitor for the mortgagee, who highly approve of the club he proposes, but upon handing the same over to his client, ge- am sure, that if it was once sei on foot, it nerally took a receipt for the amount upon the would soon be brought to bear, without giving dieed. Now the several receipts upon being counted, words and figures together, nuinbeř any particular trouble to any one in bringing four folios, being at least three folios beyond myself, would gladly join it; and I am sure

it about. I know several, who, as well as the number allowed for the stamps on the deed. The question then is, whether the re- useful society, and tend to the inprovement

every one must allow that it would be a very ceipts referred to, would come under the geo of those who are preparing to become members veral denomination of “any schedule, receipt, of the profession. Rules, of course, must be or other matter put or endorsed thercon,” as had recourse to, as well to sustain the respecin the act, and thereby invalidate the deed.


tability, as stability of the club. A few hints from some of your correspondents of apore experience than anyself, as to the best moile

of establishing such a club would be highly SELECTIONS acceptable to all articled clerks.



A defendant in an action in the Lord Mayor's In a recent number of your valuable journal, Court, lately surrendered, thinking thereby to p. 425, I notice a letter from J. W., indignantly get rid of the attachment, having removed complaining of the privilege possessed by at the proceedings into one of the Superior torneys of being sued in their own Courts. Courts of Westminster. He then took out a

This terrible privilege your correspondent summons before a Judge to shew cause why describes as “affording an attorney the means he should not be discharged out of custody, of putting suitors to a needless and useless which his Lordship refused, on the ground expense, as the costs are lost.”

that the imprisonment being voluntary, it did Now I quite agree with J. W. as to the fact not come within the act for the abolition of of the couis being list, and his client put to arrest,


Attorneys to be admitted, Trinity Term, 1810.



Trinity Term, 1840.

[Continued from p. 485.] Clerks' Name and Residence.

To whom articled and assigned.
Clavering, John, 44, Devonshire Street, George Delmar, Lincolu's Iun Fields.

Queen's Square.
Clarke, William, 4, New Millman Street ; Soiners Clarke, Brighton.

Guildford Street; and Brighton.
Crompton, John, High Crompton, Lancashire. James Whitelead, Oldham, Lancashire.
Collins, George Browne, 12, Liverpool Street, Thurston Collins, Saint Columb.

King's Cross; and St. Columb, Cornwall.
Chambers, Joseph, 1, Butler's Place, Chapel James Hoskins, Portsmouth.

Street, Pentonville; and Portsmouth.
Chauntler, Thomas, 39, Baker Street, Lloyd Thonias Hodgson Holdsworth, Gray's Inu

Square; and County Terrace, New Rent Square.

Road. Clark, Thomas Clark, Camberwell, Road op. Jonathan Ward, Stokesby, Yorkshire; assigned

posite the Navy School ; Killerby Hall, to Bowyer Mewburn, Great Winchester St.

Durham; and Crimscot Street, Bermondsey.
Clifton, Williain Henry, 50), Burton Street, John Parker, Worcester.

Burton Crescent; and Wbittington, near

Chillingworth, John Williams, 14, Bedford Edward Richmond Nicholas, Bewdley.

Place, Kenton Strect; Tavistock Place; and

Burton Crescent. Day, John, 17, Trinity Square, Southwark; Edward Amos Chaplin, 3, Gray's Inn Square.

Milverton, Somerset; 5, Saint Mary's Sq.

Lambeth; and 3, Gray's Inn Square. Davies, Thomas, Thavies’ Inn; and Cardigan. Oliver Lloyd, Cardigan ; Henry Beever, Sal

ford. Darwell, Thomas the younger, 9, Great Coram Jaines Frederick Beever, Salford.

Street; 9, Derby Street ; anıl Manchester. Dolman, Frederick William, 57, Clarendon Robert Cruickshank, Gosport ; assigned to

Street, Clarendon Square; and Lincoln's Antonine Dufaur, Lincoln's Inn Fields.

Inn Fields. Doughty, Thomas Neale, 1, Oriel Place, Col. William Saltwell, Carlton Chambers, Regent lege Street, Chelsea.

Street. Davies, Henry Daniel, 21, Warwick Street, Daniel Davis, 21, Warwick Street, Regent Regent Street.

Street. Dowinan, William, the younger, Sudbury; and William Dowman the elder, Sudbury, Suffolk.

7, Ebury Street, Pimlico.
Day, Samuel, 6, Ely Place; and Saint Neot's, Williain Day, Suint Neots.

Denshamn, Richard, Bampton, Devon.

George Sharpe, Upper Wharton Street, Lloyd

Davis, Henry Touchet, articled by the name Thoinas Macauley Crutwell, Bath.

of Henry Touchet, Clevedon, near Bristol,

and Bathi. Davies, Edward Martin, 8, Euston Grove, Thomas Thomas, Swansea.

Euston Square. Ellis, Arthur, 6, Charles Street, Grosvenor Sq. George Streater Kempson, Abingdon Street,

Westininster: assigned to John Luke Wet.

ten, Conduit Sireet. Edwards, William, 41, Argyle Street, New William Hazard, Redenhall with Harleston.

Road; Framlingham; and 24, Saint Tho.

mas's Street, East
Edwards, William James, 1, Stafford Place, William Edwards, Framlingham.

Pimlico; and Framlingham, Suifolk.
Eyre, William Vardy, 11, Lower Brook St. Samuel Field, Deddington.
Grosvenor Square; and Deddington, Oxford-

shire. Eyre, Frederick Edwin, 22, Bryanstone Sq. Walpool Eyre, 22, Bryanstone Square; as

signed to Johu Pinniger, Gray's Inn Square.


Attorneys to be admitted, Trinity Term, 1840
Clerks' Name and Residence.

To whom articled and assigned.
Fisher, Charles, 65, Charing Cross; Nelson Joseph Fisher, Bury Street, St. James's; as.

Terrace; Newport; Barnstaple; and 19, signed to Thomas Hooper Law, Barnstaple ; Edgware Road.

assigned to Samuel Fisher, Bucklersbury. Field, William, 64 Great Russell Street, Henry Downe Barton, Exeter.

Bloomsbury; and 24, Tavistock Place,

Tavistock Square.
Tookes, Thomas the younger, 3, Fig Tree Ct, Henry Charles Goodden, Sherborne.

Temple; Sherborne ; King William Street;
Tavistock Square ; and Norfolk Street,

Futroye, Edward, 25, Myddleton Square. James Fairbank, Staple Inn; assigned to

Henry Coode, Guildford Street.
Fen, Robert, 3, Raymond Buildings ; and John Burrell, Durham.

Chester-le Street,
Finlow, Richard Whiteley, Liverpool.

Richard Finlow, Liverpool.
Foster, Thomas, 15, Ely Place, Holborn. Joseph Foster, Wolverhampton; assigned to

Ellward Henry Rickards, Lincoln's Inn

Fields. Goodman, Hiller, 19, Salisbury Street, Strand; Henry Gilbert, Southampton ; assigned to

Southampton ; and 23, Southampton Build- John Barney, Southampton.

ings, Chancery Lane. Geldard, Christopher John, 36, Sidiouth St. Williain Robinson, Settle.

Middlesex; Cappelside, near Settle, York

shire. Gay, William, 1, Chapel Street, Bedford Row; Philip Wilson, King's Lynn, Norfolk.

King's Lynn; and 6, New Ormond Street,

Queen Square. Gadsby, John, 34, Arundel Street, Strand; David Welch, Derby; assigned to William

Derby; and 2, Old Millman Street, Bedford Stephens, Queen Street, Cheapside.

Gordon, William, 57, Old Broad Street,

Alexander Gordon, 57, Old Broad Street. Grant, Charles William, Leeds; Great Russell John Hartley, Settle, Yorkshire.

Street; and Plowden Buildings, Temple. Gell, Alfred, Lewes, Sussex.

Thomas Harding Gell, Lewes.
Gwyne, John, Hartley Witney, County of Thomas Bunnis, Elvetham; 17, Essex Street,
Southampton ; and Thavies Inn.

Gurney, John, 3, Wakefield Street, Brunswick Williain Paul, Truro, Cornwall.

Square; Trehaverne; and Everett Street,

Russell Square. Gutteres, George, 6, Park Place, Camberwell Thomas Webb, Gilbert, Brabant Court, Phil. Grove.

pot Lane. Gall, James Charles, 10, Saint Thomas's St. William Brooke, Kenninghall, Norfolk ; as

East : Gray Terrace, Dover Road; Single- signed to William Ransom, Stowmarket; aston Street ; Butterworth Street; and Great signed to Daniel Calver, Kenninghall, NorChart Street.

folk. Good, John Wiltshire, 32, Bedford Row. George Avstie, Devises, Wilts; assigned to

Edward Francis Fennell, 32, Bedford Row. Harben, Peter Tait, 16, Bridge Street, Vaux- William Waller, 12, Clement's Inn.

hall. Ilook, St. Pierre Butler, 21, Brunswick Cres- Sir George Stephen, Knight, 17, King's Arms cent, Lambeth.

Yard, Coleinan Street.
Hulton, Frederick B. Copley, Preston.

Charles Buck, Preston.
Hinton, Frederick, 1, Red Lion Square; and James Pullen Hinton, Bristol.

Hill, Richard, 8, Featherstone Buildings ; l, William Graham, Abingdon.

Cranmer Place, Waterloo Bridge; and 9,

Great Ormond Street, Hanbury, Thomas James, 1, Tonbridye Place, Thoinas Sewell, Newport, Isle of Wight; asNew Road; and 69, Lamb's Conduit Sireet. signed to Robert Carr, Forster, Raymond

Buildings. Hair, Thomas, Kidderininster.

George Price Hill, Worcestershire; assigned

to Henry Maddocks Daniel, Worcester and

Haxby, Joseph Barber; 11, Chapel Place, Twisleton Haxby, Wakefield, Yorkshire.

Cavendishi Square; and Wakefiell. Tlolmes, Edward Carleton, 15, Guildford St; William Tholmes, Brooksfield near Arundel: 6, Raymond Buildings.

assigned to Edward Foach Hillier, Cumming Street, Pentonville.

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