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

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"4. Every objection to discovery which is founded upon a denial of the plaintiff's right of suit, or of his right to proceed with it in its existing state, should regularly be taken by demurrer or plea, according to the circumstances of the case; and, where the objection is not so taken, and the defendant answers the bill, he will, in general, be held to have waived the objection, and will be obliged to answer the bill throughout.'

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poration lost 7000. a year. This observation applies to a specific case; but the mischief at which it points is not confined to cases in specie the same with that which produced it. Similar consequences may, in any case, ensue discovery-an observation which, without comment, proves the necessity of placing under strict regulation the jurisdiction exercised by Courts of Equity in compelling discovery.

"In_Shaftesbury v. Arrowsmith, 4 Ves. 71, Lord Thurlow says: Permitting a general sweeping survey into all the deeds of the family would be attended with very great danger and mischief; and where the person claims as heir of the body, it has been very properly stated, that it may shew a title in another person, if the intail is not well barrrd. And see 3 Ves. jun. 501, in Wallis v. The Duke of Portland: Vansittart v. Barber, 9 Price, 641; Hare, 185, 186.

5. Every objection to discovery which is not founded upon a denial of the plaintiff's right of suit, or of his right to proceed with his 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, may 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 unfettered by rules of form, a defendant who has not actually answered an interrogatory or interrogatories to which the objection may apply, cannot, as a general rule, be held to have waived it upon any merely technical grounds."

We congratulate the profession that a man of so much eminence as Mr. Wigram has been induced to publish the result of his experienec and research in this important branch of law. The purpose and general of the jurisdiction exercised by Courts scope of Equity in compelling discovery are thus stated by Mr. Wigram:

"A bill in equity generally requires, and the Court enforces, the answer of the defendant or party complained of upon oath. An answer is thus required and enforced, with a view to furnish an admission of the case made by the bill, either in aid of proof, or to supply the want of it, and to avoid expense,

The discovery which is thus required and enforced is not confined to a discovery of facts resting merely in the knowlege of the defendant, but extends, within certain limits, to deeds, papers, and writings in his possession or power."

foundation of the jurisdiction itself. The argument, however, is not all on one side. Suppose (to put an extreme case) a man wrongfully to possess himself of another's estate, and also of all the evidences of his title to it. No suggestion of possible mischief to an innocent party would support the conclusion that a diction attended with such risk, should permit Court of equity, rather than exercise a juristhe wrong-doer to withhold from the injured party his estate-by withholding the only means of trying his title to it.

"Nor is the possibility of mischief of the nature suggested by Lord Eldon, in the case of Cock v. St. Bartholomer's Hospital, the only evil to be apprehended from the compulsory disclosure of evidence before the hearing of a cause. The danger of perjury, as will hereafter be seen, is the foundation of a settled rule of practice, by which the right of a party to discovery is limited to the evidence necessary to sustain his own case, to the exclusion of that by which the case of his opponent exclusively may be sustained."

Mr. Wigram states that his object has been to investigate and explain some of the leading rules by which the exercise of this jurisdiction 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

scribed.

tain, but which are excluded from the scope of the present treatise, the author thus proceeds:

"The exercise of a jurisdiction of this nature cannot be otherwise than pregnant with danger to the interests of those against whom it may be enforced, unless careful provision were made for guarding against its abuse. Upon a motion for the production of documents, in the case of Cock v. St. Bartholomew's Hospital, 3 Ves. 141, Lord Eldon said: The Newcastle case is a good lesson upon this subject of production. They produced their charters to satisfy curiosity; some persons got hold of them, and the consequence was, that the cor-place.

"For the present, then, a case will be assumed-1, in which the jurisdiction of the Court over the subject-matter of the suit does not admit of controversy;-2, in which (except where it is otherwise expressly noticed) the distinction between a bill for discovery only and a bill for discovery and relief does not call for observation ;-and 3, in which the scope of the cause is single, in the sense in which the word 'single' has been explained in a former

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

501

"The distinction between that part of the record called an answer which constitutes the defence, and that part of it which contains the discovery required by the bill, is of the essence of some of the most important rules in the law of discovery. To a neglect of this distinction may be traced the confusion in which some important points in that law have become involved.

"Where a plaintiff seeks to obtain discovery to which he has no right, or to obtain it by a form of proceeding not in accordance with the practice of the Court, the defendant, as will hereafter be seen, may object to give the discovery required, and demand the judgment of the Court whether he should give it or not.

"In addition to objections challenging the plaintiff's right of suit, or the regularity of the proceeding by which he seeks to obtain discovery, Courts of equity in many cases refuse to enforce particular discovery upon objections founded in the nature of the discovery sought, and in that alone;-as where it would subject the defendant to penalties, where it is immaterial,-where it relates exclusively to the defendant's case, and upon other grounds which will be noticed hereafter.

Assuming, then, a simple case of the description just noticed, some further observations may usefully be made by way of introduction to the points about to be investigated. "A right understanding of many, if not of the majority of those points, requires that the attention of the reader should constantly be alive to a peculiarity which (excluding a defence by demurrer or disclaimer) for the most part distinguishes a defence in equity from a defence at law. At law, a defendant has merely to put upon the record the case upon which he relies as an answer (i. e. as his defence) to the plaintiff's claim in the action; and to this the record containing his defence is confined. In equity, it is otherwise. In equity, as at law, the defendant must not only put upon the record the case which he relies upon as an answer (i. e. as his defence) to the claim made against him, but he is also obliged-in addition to and upon the same record with this defence-to give that discovery to which the common rule, already noticed, entitles the plaintiff. The word answer, then, as applied to a defence in equity, is a complex term, embracing two things essentially distinguishable from each other: namely, 1. The defence, i. e. the defendant's case; and, 2. The examination of the defend- "As the appropriate mode of taking an obant, consisting of the discovery sought by thejection 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 "answer" objections to discovery which challenge the is applied, almost indiscriminately,-to 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 cbjections 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,' 66 answer "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 existing it to be free from all objection.' The as to a plaintiff's right to discovery. An answer, so far as it is a defence only, and a plea in bar, as will hereafter be seen, stand upon precisely the same footing as to a plaintiff's right to discovery. Where the defence is by plea, the plaintiff is entitled to all such discovery (if any) as may be necessary to try the truth and validity of the defence so made; and this right, so far as the matter of the plea is concerned, is just as extensive when the de-nature of the discovery itself.” fence is made by plea, as when it is made by answer. In fact, the only difference between the two modes of defence, so far as the right to discovery is concerned, will be found to consist in this-that, in the former, (the defence by plea), the point made by the plea is tried in the first instance, and the discovery therefore, in the first instance, is confined to that point; whereas, if the matter of the plea be insisted upon by answer, other points in the cause, unconnected with the matter of the plea, go to trial simultaneously with that matter, and the discovery therefore is extended to those points also.

are

fourth and fifth propositions stated below, are founded upon the above distinction. The fourth, relates to the appropriate mode of objecting to discovery, where the objection is founded upon a denial of the plaintiff's right of suit, or to the manner in which he proceeds to obtain it; and the fifth, relates to the appropriate mode of objecting to discovery where the objection is founded exclusively upon the

The

Mr. Wigram then investigates each of the five propositions above stated. second and third of which, comprising by far the most numerous class of cases, are treated at great length, and we need scarcely say that the whole work is worthy of the extensive learning, sound judgment, and acuteness for which the learned author is distinguished. The present edition comprises the points involved in the recent cases of Adams v. Fisher, 3 Myl. & Cr. 549; Neate v. Latimer, 2 Younge & Col. 257, 11 Bligh 149;

502 Notices of New Books.-The Student's Corner.-Selections from Correspondents.

Pilkington v. Himsworth, 1 You. & C. 612; and Carter v. Goetze, 2 Keen 581. The other principal decisions reviewed in the course of the work are Hindman v. Taylor, 2 Bro. C. C. 7; Sanders v. King, 2 Sim. & S. 277; Thring v. Edgar, Ib. 280; Pennington v. Beechey, Ib. 282; Attorney General v. Ellison, 4 Sim. 238; Crowley v. Perkins, 5 Sim. 552; Hardman v. Ellames, 5 Sim. 640; Lambert v. Rogers, 2 Mer. 489. Besides these cases Mr. Wigram notices those of Murray v. Walters and Grane v. Cooper, which are not reported, but doubt less his statement of them may be implicitly

relied on.

THE STUDENT'S CORNER.

STAMP ACT.-INDORSEMENT.
Mr. Editor,

Will you or any of your readers be good enough to answer the question arising upon the following case: the question certainly appears a simple one, but as a doubt has arisen, and I have referred to the act and several books upon the subject, without meeting any thing bearing upon the point, I take the liberty of submitting the same to you for your opinion.

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a needless and useless expense;” but it seems strange to me that it should never have occurred to him that, had he exercised the proper degree of care in searching the Roll of Attor neys previously to issuing the writ, this heavy loss would not have been incurred.

I trust J. W. will adopt my hint, and search the roll a little the next time he sues for rent PHILOLETHES. due to old ladies.

Sir,

As a member of the profession, I cannot refrain from observing, that your correspondent "J. W." p. 425, would have done well if he had kept the circumstance he relates in your last number, to himself, instead of putting 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 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 respectable as himself, though perhaps not so prosperous, he would have saved "the needless and useless expense" of which he complains, and thus saved an attorney the unpardonable sin of doing that for himself, which, if he were acting for a client, he would be bound to do. A SUBSCRIBer.

proposed arTICLED CLERKS' club.
Sir,

A mortgage deed was executed some years ago, which with the receipt, attestation, &c. ran 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, highly approve of the club he proposes, but upon handing the same over to his client, ge-am sure, that if it was once set on foot, it nerally took a receipt for the amount upon the would soon be brought to bear, without giving deed. Now the several receipts upon being any particular trouble to any one in bringing counted, words and figures together, number it about. I know several, who, as well as four folios, being at least three folios beyond myself, would gladly join it; and I am sure the number allowed for the stamps on the every one must allow that it would be a very deed. The question then is, whether the re-useful society, and tend to the improvement ceipts referred to, would come under the geof those who are preparing to become members neral 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 TYRO. from some of your correspondents of more experience than myself, as to the best mode of establishing such a club would be highly acceptable to all articled clerks.

SELECTIONS

FROM CORRESPONDENCE.

F. L. T.

Sir,

PRIVILEGE OF ATTORNEYS.

In a recent number of your valuable journal, p. 425, I notice a letter from J. W., indignantly complaining of the privilege possessed by attorneys of being sued in their own Courts.

This terrible privilege your correspondent describes as "affording an attorney the means of putting suitors to a needless and useless expense, as the costs are lost."

Now I quite agree with J. W. as to the fact of the costs being lost, and his client put to

CITY ATTACHMENT.-IMPRISONMENT.

A defendant in an action in the Lord Mayor's Court, lately surrendered, thinking thereby to get rid of the attachment, having removed the proceedings into one of the Superior Courts of Westminster. He then took out a summons before a Judge to shew cause why he should not be discharged out of custody, which his Lordship refused, on the ground that the imprisonment being voluntary, it did not come within the act for the abolition of arrest,

Civis.

Attorneys to be admitted, Trinity Term, 1840.

ATTORNEYS TO BE ADMITTED.

Trinity Term, 1840.

[Continued from p. 485.]

Clerks' Name and Residence.
Clavering, John, 44, Devonshire Street,
Queen's Square.
Clarke, William, 4, New Millman Street;
Guildford Street; and Brighton.
Crompton, John, High Crompton, Lancashire.
Collins, George Browne, 12, Liverpool Street,
King's Cross; and St. Columb, Cornwall.
Chambers, Joseph, 1, Butler's Place, Chapel
Street, Pentonville; and Portsmouth.
Chauntler, Thomas, 39, Baker Street, Lloyd
Square; and County Terrace, New Kent
Road.

Clark, Thomas Clark, Camberwell, Road op.
posite the Navy School; Killerby Hall,
Durham; and Crimscot Street, Bermondsey.
Clifton, William Henry, 50, Burton Street,
Burton Crescent; and Whittington, near
Worcester.

To whom articled and assigned.
George Delmar, Lincoln's Inn Fields.
Somners Clarke, Brighton.

James Whitehead, Oldham, Lancashire.
Thurston Collins, Saint Columb.
James Hoskins, Portsmouth.

503

Thomas Hodgson Holdsworth, Gray's Ina
Square.

Jonathan Ward, Stokesby, Yorkshire; assigned
to Bowyer Mewburn, Great Winchester St.
John Parker, Worcester.

Chillingworth, John Williams, 14, Bedford Edward Richmond Nicholas, Bewdley.
Place, Kenton Street; 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.

Darwell, Thomas the younger, 9, Great Coram
Street; 9, Derby Street; and Manchester.
Dolman, Frederick William, 57, Clarendon
Street, Clarendon Square; and Lincoln's
Inn Fields.

Doughty, Thomas Neale, 1, Oriel Place, Col-
lege Street, Chelsea.

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

Dowman, William, the younger, Sudbury; and
7, Ebury Street, Pimlico.

Day, Samuel, 6, Ely Place; and Saint Neot's,
Hants.

Densham, Richard, Bampton, Devon.

Davis, Henry Touchet, articled by the name
of Henry Touchet, Clevedon, near Bristol,
and Bath.

Davies, Edward Martin, 8, Euston Grove,
Euston Square.

Ellis, Arthur, 6, Charles Street, Grosvenor Sq.

Edwards, William, 41, Argyle Street, New
Road; Framlingham; and 24, Saint Tho-
mas's Street, East
Edwards, William James, 1, Stafford Place,
Pimlico; and Framlingham, Suffolk.
Eyre, William Vardy, 11, Lower Brook St.
Grosvenor Square; and Deddington, Oxford-
shire.

Eyre, Frederick Edwin, 22, Bryanstone Sq.

Oliver Lloyd, Cardigan; Henry Beever, Salford.

James Frederick Beever, Salford.

Robert Cruickshank, Gosport; assigned to
Antonine Dufaur, Lincoln's Inn Fields.

William Saltwell, Carlton Chambers, Regent
Street.

Daniel Davis, 21, Warwick Street, Regent
Street.

William Dowman the elder, Sudbury, Suffolk.

William Day, Saint Neots.

George Sharpe, Upper Wharton Street, Lloyd
Square.

Thomas Macauley Crutwell, Bath.

Thomas Thomas, Swansea.

George Streater Kempson, Abingdon Street, Westminster: assigned to John Luke Wetten, Conduit Street.

William Hazard, Redenhall with Harleston.

William Edwards, Framlingham.

Samuel Field, Deddington.

Walpool Eyre, 22, Bryanstone Square; assigned to John Pinniger, Gray's Inn Square.

504

Attorneys to be admitted, Trinity Term, 1840

Clerks' Name and Residence.

Fisher, Charles, 65, Charing Cross; Nelson
Terrace; Newport; Barnstaple; and 19,
Edgware Road.

Field, William, 64 Great Russell Street,
Bloomsbury; and 24, Tavistock Place,
Tavistock Square.

To whom articled and assigned.

Joseph Fisher, Bury Street, St. James's; assigned to Thomas Hooper Law, Barnstaple ; assigned to Samuel Fisher, Bucklersbury. Henry Downe Barton, Exeter.

Tookes, Thomas the younger, 3, Fig Tree Ct, Henry Charles Goodden, Sherborne.
Temple; Sherborne; King William Street;

Tavistock Square; and Norfolk Street,
Strand.

Futvoye, Edward, 25, Myddleton Square.

Fen, Robert, 3, Raymond Buildings; and
Chester-le Street,

Finlow, Richard Whiteley, Liverpool.
Foster, Thomas, 15, Ely Place, Holborn.

Goodman, Hiller, 19, Salisbury Street, Strand; Southampton; and 23, Southampton Buildings, Chancery Lane.

Geldard, Christopher John, 36, Sidmouth St. Middlesex; Cappelside, near Settle, Yorkshire.

James Fairbank, Staple Inn; assigned to
Henry Coode, Guildford Street.
John Burrell, Durham.

Richard Finlow, Liverpool.

Joseph Foster, Wolverhampton; assigned to
Edward Henry Rickards, Lincoln's Inn
Fields.

Henry Gilbert, Southampton; assigned to
John Barney, Southampton.

William Robinson, Settle.

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;
Derby; and 2, Old Millman Street, Bedford
Row.

Gordon, William, 57, Old Broad Street.
Grant, Charles William, Leeds; Great Russell
Street; and Plowden Buildings, Temple.
Gell, Alfred, Lewes, Sussex.

Gwyne, John, Hartley Witney, County of
Southampton; and Thavies Inn.

Gurney, John, 3, Wakefield Street, Brunswick
Square; Trehaverne; and Everett Street,
Russell Square.

Gutteres, George, 6, Park Place, Camberwell
Grove.

Gall, James Charles, 10, Saint Thomas's St.
East Gray Terrace, Dover Road; Single-
ton Street; Butterworth Street; and Great
Chart Street.

Good, John Wiltshire, 32, Bedford Row.

Harben, Peter Tait, 16, Bridge Street, Vauxhall.

Hook, St. Pierre Butler, 21, Brunswick Crescent, Lambeth.

Hulton, Frederick B. Copley, Preston.

Hinton, Frederick, 1, Red Lion Square; and
Bristol.

Hill, Richard, 8, Featherstone Buildings; 1,
Cranmer Place, Waterloo Bridge; and 9,
Great Ormond Street.

Hanbury, Thomas James, 1, Tonbridge Place,
New Road; and 69, Lamb's Conduit Street.

Hair, Thomas, Kidderminster.

Haxby, Joseph Barber; 11, Chapel Place,
Cavendish Square; and Wakefield.
Holmes, Edward Carleton, 45, Guildford St;
6, Raymond Buildings.

David Welch, Derby; assigned to William
Stephens, Queen Street, Cheapside.

Alexander Gordon, 57, Old Broad Street.
John Hartley, Settle, Yorkshire.

Thomas Harding Gell, Lewes.
Thomas Bunnis, Elvetham; 17, Essex Street,
Strand.

William Paul, Truro, Cornwall.

Thomas Webb, Gilbert, Brabant Court, Phil-
pot Lane.

William Brooke, Kenninghall, Norfolk; as-
signed to William Ransom, Stowmarket; as-
signed to Daniel Calver, Kenninghall, Nor-
folk.
George Anstie, Devises, Wilts; assigned to
Edward Francis Fennell, 32, Bedford Row.
William Waller, 12, Clement's Inn.

Sir George Stephen, Knight, 17, King's Arms
Yard, Coleman Street.
Charles Buck, Preston.
James Pullen Hinton, Bristol.

William Graham, Abingdon.

Thomas Sewell, Newport, Isle of Wight; assigned to Robert Carr, Forster, Raymond Buildings.

George Price Hill, Worcestershire; assigned to Henry Maddocks Daniel, Worcester and Kidderminster.

Twisleton Haxby, Wakefield, Yorkshire.

William Holmes, Brooksfield near Arundel; assigned to Edward Foach Hillier, Cumming Street, Pentonville.

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