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No. 827-VOL. XVI.

NOVEMBER 13, 1852.

NAMES OF THE CASES REPORTED IN THIS NUMBER.

PRICE 18.

VICE-CHANCELLOR STUART's Court. Rogers v. Jones.-(Practice-15 & 16 Viet. c. 86, 8. 44-Proceeding in Absence of Representative of deceased Defendant)

Lowes v. Lowes.-(Practice-Sect. 52 of Stat. 15 &
16 Vict. c. 86-Revivor by Creditor not Party to
Administration Suit)

Cable v. Cooper.-(Practice-Evidence under 39th
Order of August, 1852, in Suit at Issue before
passing of the 15 & 16 Vict. c. 86)

EXCHEQUER CHAMBER.

Challis and Another v. Doe d. Evers and Wife.-(Devise, Construction of-Limitation over to a Class -Compound Event-Remoteness-Contingent Remainder-Executory Devise)....

968

968

969

969 The Earl of Stamford and Warrington v. Lowndes.... 973 COURT OF QUEEN'S BENCH.

975

Holmes v. Sparks and Another.—(Pleading-Recital
of Stat. 28 Eliz. c. 4, s. 1-Allegation of no Levy
in Action for Extortion)..
Hayes v. Keene.-(County Court-Detention under
Warrant of Commitment—Duration of Warrant) 976
Gapp v. Robinson.-(Common-law Procedure Act,
15 & 16 Vict. c. 76, ss. 10, 12-Alias Writ under
2 Will. 4, c. 39, s. 10-Practice).

COURT OF EXCHEQUER.
Morgan v. Jones.-Doe d. Leigh v. Holt.-(Common-
law Procedure Act, 15 & 16 Vict. c. 76—Judgment
as in Case of Nonsuit-Ejectment)

......

977

978

ticular documents relating to the matters in issue, he shall be able, on making out that case primâ facie to the Court, to have immediate production of them, without being put first to file interrogatories—a facility of itself very considerable: and assuming that, and that only, to be the operation of the act, it would be by no means useless. But to support the contrary construction of the act, we must suppose that it intended to dispense in every case with the necessity of interrogating as to

regards a defendant, that it can hardly be supposed the act intended to abolish it, not having expressly said so.

On this subject it will be useful to refer to the practice at law under the 14 & 15 Vict. c. 99, s. 6.

THE new Chancery practice is beginning to be carried into effect, and as the judges have adopted the most satisfactory course of conferring together upon any new application to either branch of the Court, before a decision is given, the points of practice, as they successively arise, will be at once definitively settled, instead of remaining, as used to be the case when new Orders came out, incessantly fluctuating, by reason of differ-books and papers-a practice so settled, at least as ences of opinion in the several branches of the Court. On the point decided by Vice-Chancellor Stuart under the 20th section of the Chancery Practice Act—that a defendant, moving for production of documents against a plaintiff, must shew to the Court some materials on which to assume that the plaintiff has documents, and what documents he has observations by two different writers have already appeared in our columns. We will only here add, in support of the construction put on the act by the Vice-Chancellor, that it by no means follows from that construction that the 18th and 20th sections are useless. What was intended, we conceive, by the act, was this-that when a plaintiff or a defendant has knowledge or belief that his opponent possesses parVOL. XVI. R R

That section is as follows:-" Whenever any action or other legal proceeding shall henceforth be pending in any of the superior courts of common law at Westminster or Dublin, or the Court of Common Pleas for the county palatine of Lancaster, or the Court of Pleas for the county of Durham, such court, and each of the judges thereof, may respectively, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under

the control of such opposite party relating to such | The new measure will therefore, in practice, be nearly

action or other legal proceeding, and, if necessary, to take examined copies of the same, or to procure the same to be duly stamped, in all cases in which previous to the passing of this act a discovery might have been obtained by filing a bill, or by any other proceeding in a court of equity, at the instance of the party so making application as aforesaid to the said court or judge."

And on this the Court of Exchequer said, in Hunt v. Hewitt, (16 Jur., part 1, p. 503)—"Under the recent act of Parliament, where an inspection is litigated, an affidavit will no doubt be necessary as to all the disputed facts; and if all are disputed, the affidavit ought to state a sufficient case in all respects to entitle the applicant to inspect, as would have been necessary to obtain an inspection which the Court had before, and still has, the power to grant at common law. The affidavit, therefore, ought not only to shew that an action or other proceeding is pending, but also to state, not a mere suggestion, but circumstances sufficient to satisfy the court or judge that there are in the possession or under the control of the opposite party certain documents, and that those relate to such action or other legal proceeding: a primâ facie case calling for an answer must at least be stated in this respect, as it must in the old proceeding to obtain inspection of documents held by a trustee. Further, the affidavit must shew that the applicant would, by a bill for a discovery or other proceeding, be able to obtain a discovery and inspection of those documents."

as effective as if the power of compelling a discovery were expressly given to the common-law courts."

Another important decision has been made in ViceChancellor Kindersley's branch of the Court, under the 42nd section of the act, in Mildmay v. Methuen, (reported in the present number of THE JURIST, part 1, p. 965), in which it was held, that in a cause in which a general reference had been made to the Master, before the Masters Abolition Act, the Court had no power, in making a further reference to the Master, to delegate to him authority to call in the aid of a scientific person, that power being confined by the act to the judges of the Court; but it was held that the Court could take the matter out of the hands of the Master, and direct it to be transacted in chambers; and accordingly, in that case, on a question whether a testator's estate was indebted to a builder, on a complicated bill, requiring the investigation of an architect, and which, if tried at law, would necessarily have gone to arbitration, the Court ordered the inquiry to be taken before the judge in chambers, intimating that any question of law, not requiring material argument, the judge would himself decide at once in chambers, and that if any question of substantial difficulty arose, he would order it to be argued in court.

From this, as well as from other indirect intimations and rumours which have been floating about, and from the very significant Order relating to the allowance of the costs of attending by counsel in chambers, (the 56th Order of the 16th October), it would seem to be the

And the following rules were laid down on the sub-intention of the judges that counsel shall attend as little ject of inspection:

"First, what is the nature of the suit, and of the question to be tried in it; and it seems also that he should depose in his affidavit to his having just grounds to maintain or defend it.

"Secondly, the affidavit ought to state, with sufficient distinctness, the reason of the application, and the nature of the documents, in order that it may appear to the court or judge that the documents are asked in order to enable the party applying to support his case, not to find a flaw in the case of the opponent, and also that the opponent may admit or deny the possession of them.

"To this affidavit the opponent may answer, by swearing that he has no such documents, or that they relate exclusively to his own case, or that he is for any sufficient reason privileged from producing them; or he may submit to shew facts, covering the remainder, on affidavit that the part concealed does not in any way relate to the plaintiff's case. The same course would be pursued in equity.

"Although the recent act of Parliament has not given the Courts of law the direct power of compelling a discovery of documents, and in that respect they are not so effective as Courts of equity, they have in truth nearly as great power given by the section in question; for it will rarely happen, where documents material to the issue are really in the hands of the opposite party, that there will not be sufficient circumstances known to the applicant to constitute a primâ facie case for him, and to justify the interference of the court or a judge if no answer is given to them by affidavit.

as possible, if at all, before them in chambers, and that matters requiring the assistance of counsel shall be debated in open court.

With respect to the mode of working out Orders in chambers, all is at present still dark, and very much is left to the discretion of the judges. For instance, in the very outset, the 23rd Order of the 16th October, relating to the mode of carrying in materials for an inquiry, is too vague to give the practitioner much assistance. He is not to carry in a state of facts, but short and concise statements, and extracts from documents, if need be; that is, he is not to carry in a state of facts, yet he is to take in that which in effect is a state of facts. If the chief clerks in the first instance, and the judges in overlooking them, are not on the alert, this Order will very soon be forgotten, and states of facts, in all their old luxuriance, only under a new name, will soon be revived,

SIR,-In your observations upon the Common-law Procedure Bill, 1852, and upon the consequent statute, you have not yet noticed that the chief source of expense of a trial at law, which every experienced attorney knows is in the payment of witnesses' necessary expenses, is untouched. I venture to offer a few remarks and suggestions upon this subject, with reference to country trials.

You may probably be aware, that at some of the smaller assize towns, we can, during the assizes, only

I would propose to appoint assize towns throughout the country, without regard to their being county towns or not, or to the present division of counties, and to have, when necessary, several assize towns in one county, selecting, as far as possible, large populous commercial towns having the best railway accommoda-mercial-road East, Middlesex, shoemaker, Nov. 25 at 2, tion; and I would propose to have quarterly assizes, and empower a judge at chambers, on either party's application, to direct or change the place of trial.

The letter from "Observator" shall appear in our next at half-past 11, div.-Francis Joule Smith, Eccleshall, Staf

Court of Bankruptcy, Birmingham, aud. ac.; Nov. 29 at 10, out of business, Nov. 25 at 11, County Court of Cheshire, at div.-William Ward Evans, Ludlow, Shropshire, butcher, Nantwich.-Thomas P. Raggett, Kingsholm, Gloucestershire, Nov. 30 at half-past 11, District Court of Bankruptcy, Bir- out of business, Nov. 25 at 10, County Court of Gloucester. mingham, div.-Robert Barr, Glasgow, Scotland, and John shire, at Gloucester.-William Johnson, West Derby, LanSykes, Huddersfield, Yorkshire, Huddersfield Spinning Com-cashire, land steward, Nov. 8 at 11, County Court of Lanpany, Nov. 26 at 11, District Court of Bankruptcy, Leeds, cashire, at Liverpool. div. joint est., and sep. est. of Robert Barr.-Hodgson Lewis and James Hervey, Halifax, Yorkshire, spirit merchants, Nov. 26 at 11, District Court of Bankruptcy, Leeds, div.John Watson, Shipton, Yorkshire, linendraper, Nov. 26 at 11, District Court of Bankruptcy, Leeds, div.-Robert Squire James, Leeds, Yorkshire, wholesale_ironmonger, Nov. 26 at 11, District Court of Bankruptcy, Leeds, div.-Geo. Moon, Borrowby, near Thirsk, Yorkshire, corn miller, Nov. 26 at 11, District Court of Bankruptcy, Leeds, div.