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possession there by your authority and perPYE U. BUTTERFIELD AND Nov. 25.

mission, and did he derive his possession

through you? Interrogatories - Ejectment - Forfeiture

7. Have the said · house and premises of Lease.

been let by you to be used as a club, or

used for such purpose with your permission In the exercise of the powers conferred by and authority? section 51. of the Common Law Procedure The defendant answered these interrogaAd, 1854, in allowing a party to deliver tories as follows : interrogatories to the opposite party, this 1. To the first of the said interrogatories, Court will take as a guide the rules and that I am the lessee under the plaintiff principles acted upon in the courts of equity of the house and premises, No. 18, Clifas to bills of discovery, although it will not ford Street, and the lease is in my posconsider itself to be fettered by those rules. session.

In an action of ejectment the Court will 2. To the 2nd, 3rd, 4th, 5th, 6th, and not compel the defendant to answer interro- 7th interrogatories, that this action in which gatories where the answer would tend to K. J. P. is the plaintiff, and J. G. and T. B. shew that he had incurred a forfeiture of and others are the defendants, and in which his lease by reason of his having underlet the said interrogatories are administered, is the premises.

an action of ejectment brought by the plain

tiff to recover possession of certain premises, This was a rule calling upon the defen- No. 18, Clifford Street, held by me, as dant to shew cause why the plaintiff should tenant to the plaintiff under a lease, dated not be at liberty to deliver to the defen- the 24th of March 1857, for twenty-one dant, or his attorney, interrogatories in years, containing a covenant on my part not writing, and why the defendant should not to assign over or underlet, or in any way answer the questions in writing by affidavit. or manner part with the possession of the

It appeared that the plaintiff had brought said premises for any time during the term an action of ejectment against the defen- granted, to any person or persons, without dant and others, to recover possession of the licence and consent in writing of the certain premises held by the defendant. plaintiff, his executors, &c. for that purpose

The following interrogatories were deli- first had and obtained, and providing that vered under an order of Shee, J.

if I should not well and truly observe and 1. Are you the lessee under the plaintiff keep the said covenant, and all ańd every of the house and premises, No. 18, Clifford the covenants, clauses and agreements Street, and is the house in your possession, contained in the said lease, it should be or in whose possession is it?

lawful for the plaintiff at any time or times 2. Have you at any time assigned or thereafter into and upon the said premises, otherwise parted with the said lease to any or any part thereof in the name of the one, and, if so, to whom, and where and whole, wholly to re-enter, and the same to when ?

have again as in his first and former estate. 3. Have you underlet or in any way or And the plaintiff seeks to recover possession manner parted with the possession of the of the same premises and to enforce a said house and premises, or any part forfeiture by reason of my having underlet thereof? and, if so, state when and to the said premises to Grant Heatley Tod whom, and for how long.

Heatley and Alexander Doland. And I 4. Have you underlet the said house and object to answer the 2nd, 3rd, 4th, 5th, premises to Mr. Grant Heatley Tod Heatley, 6th and 7th interrogatories, on the ground and, if so, when and under what circum- that my answers may subject me to a forstances and for what purpose?

feiture of my interest as tenant and lessee 5. Do you receive any, and, if any, what of the premises. And I respectfully submit rent for the said house and premises; and, to the Court that I am not bound to answer if so, from whom, and how much?

the said interrogatories, they having a 6. Who is now in possession of the said tendency to shew that I had incurred house and premises, and is the person in a forfeiture. New SERIES, 34.-Q.B.




Laxton shewed cause against the rule.- ties, or to any kind of punishment, or to These interrogatories are such that the any forfeiture of interest.” But, further, it Court will not compel the defendant to is clear from the language of the 51st secanswer them. The point has not been ex- tion of the Common Law Procedure Act, pressly decided, but the Courts have always 1854, that reference must be made to the been unwilling to make a defendant answer principles established in the courts of equity, matters which would go to shew that he for that section only gives power to deliver had committed a forfeiture. The point was interrogatories “upon any matter as to touched upon in May v. Hawkins (1), which discovery may be sought.” The where Parke, B. said, “I am sorry that meaning of these words was considered in the case should be decided upon the minor Bartlett v. Lewis (3), where Erle, C.J. said, point; for it is very much to be desired “Nor do I read the 51st section as saying, that the Court should be in a position to that the practice of the Court of Chancery decide the principal one. I shall continue in respect of bills of discovery is to be imto pursue the principle I acted upon in ported into the Courts of common law, and this case at chambers, by refusing to allow that we are not to permit questions to be interrogatories which are framed with a put in the form of written interrogatories view to deprive a man of his estate; I be- in any case in which a Court of equity lieve that this principle is always recognized would not allow them to be put. I think in the Courts of Chancery, and I shall con- it means that interrogatories may be put in tinue to act upon it until there is a decision any case where a bill of discovery might be to the contrary in the superior Courts." filed, but I do not think it is intended that And Martin, B. said, “I take the same view the practice of the Court of equity relating of the matter as my Brother Parke. I to discovery should be introduced.” Referthink it would be monstrous to allow this ring then to the question, whether Court enactment to be used for the purpose of of equity would allow a bill of discovery to fishing out information in a matter of such be filed in such a case, we find it stated, in a penal character as the present." The point Wigram on Discovery, p. 81, that the plainalso arose in Chester v. Wortley (2); but the tiff is not entitled to an answer if the answer only decision was that the objection was would prove the defendant guilty of “a taken at the wrong time. There is a provision forfeiture of interest strictly so called. But in 46 Geo. 3. c. 37, that “a witness cannot the objection does not apply to the mere by law refuse to answer a question relevant to determination of an interest by force of a the matter in issue, the answering of which limitation.” Now, in the case before the has no tendency to accuse himself or to Court, there would be a “forfeiture of expose him to any penalty or forfeiture of interest,” for the defendant would lose his any nature whatsoever, by reason only, or estate. In Fane v. Atlee (4) a bill was filed on the sole ground that the answering of to discover whether the defendant had not such question may establish, or tend to assigned over a lease; the defendant pleaded establish, that he owes a debt, or is other- that there was a proviso in the lease that wise subject to a civil suit.”

in case he assigned over, the lease should [COCKBURN, C.J. - I am inclined to be void; and that this being in the nature think that that statute refers only to for- of a penalty or forfeiture, he ought not to feiture in a legal sense, and not to a for- be compelled in a Court of equity to discover feiture arising out of a contract between for the plaintiff. It was said that this was the parties, and of a civil nature.]

not a penalty, but a part of the contract, The statute is referred to in 2 Ph. & A.

yet the plea was allowed. The case is cited on Evidence, p. 492, where it is also stated in Mitford on Plearlings, p. 333, where the that “in courts of equity it is an established author says, “It has been also observed, principle that a party is not bound to answer that no person is bound to answer so as to so as to subject himself to pains and penal- subject himself to any forfeiture, or to any

thing in the nature of a forfeiture.” In Lord (1) 11 Exch. Rep. 210; 9. c. 24 LawJ. Rep. (N.s.) Exch. 309. (2) 17 Com. B. Rep. 410; B. c. 25 Law J. Rep.

(3) 31 Law J. Rep. (N.8.) C.P. 230. (N.8.) C.P. 117.

(4) 1 Eq. Cas. Abr. 77.

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Uxbridge v. Staveland (5), it was held that an estate was given by A. to his wife, but a demurrer would lie to a bill for discovery on condition that if she married again she of an assignment of a lease with licence, if should deliver up half to his brother, and the bill does not expressly waive the for- a bill of discovery was filed to find out feiture. The same doctrine is, in effect, laid whether she was married, a demurrer to down in Best on Evidence, 3rd ed. p. 757; the bill was overruled. and in Taylor on Evidence, p. 1236, it is [COCKBURN, C.J.-Yes, because it was written, “It has already been casually ob- a conditional limitation over of the estate, served, that some questions a witness is not and was expressly distinguished as not compellable to answer. First, this is the coming within the general rule. .

But if case where the answers would have a ten- you could do this, you might be perpetually dency to expose the witness ... to a penalty harassing a man.) or forfeiture of any nature whatsoever. This The 51st section of the Common Law rule, which is of great antiquity, and was Procedure Act, 1854, does not shew that even recognized by Chief Justice Jefferies the power of this Court is limited to cases where it told against the prisoner, is not where Courts of equity would allow bills confined to Courts of law, but is also ad- of discovery; the natural meaning of the ministered in Chancery,” &c. It is sub- words is to give power to file such intermitted, therefore, that the Courts of equity rogatories where the party desires it and would not allow this to be done, and that the Court is willing to grant it. this Court will follow the rule laid down [COCKBURN, C.J.—There is nothing to by them.

shew that it was intended by this section (CROMPTON, J.-Suppose at Nisi Prius, of the statute that the common law Courts now that the parties can be examined, the should acquire larger powers than the Courts defendant was called as to some other of equity have been accustomed to exercise; minor matters, it might be hard if he could and assuming that we had such larger refuse on cross-examination to answer whe- powers, ought we to set at naught the printher he had not committed some act which ciples upon which those Courts have acted would entail upon him the forfeiture of his for so many years ? MELLOR, J.-There is lease. COCKBURN, C.J.-If he volunteers no doubt that we may have power to order to give evidence upon some matters, or as inspection of documents in cases where the to some alleged forfeiture, it may be that Courts of equity would not grant a discovery, he would waive his privilege.

as, for instance, in actions for personal torts. Needham, in support of the rule.--This In Mitford on Pleadings, p. 230, reference is a nice and important question. Neither is made to Glyn v. Hourton (7), where the May v. Hawkins (1) nor Chester v. Wortley Master of the Rolls said, “I have looked (2) decides the question.

into the authorities which tend much to [COCKBURN, C.J.--The opinion expressed confirm my opinion that a bill of discovery

( by Parke, B. in May v. Hawkins (1) is a cannot be sustained in aid of an action for very strong one. It appears also that the a mere personal tort.” COCKBURN, C.J.Courts of equity have always exercised a That would not be within the province of discretion.

a Court of equity at all.] In Hare on Discovery, p. 145, it is stated, “if the bill seek a discovery of facts which COCKBURN, C.J.-I think that this rule would shew that the defendant never had ought to be discharged. I do not think that an interest in the property which he wrong- the statute, 46 Geo. 3. c. 37, which relates fully retains, or that having had an interest, to whether witnesses are to be. compelled that it has ceased by the taking effect of to answer and to their protection and some limitation over, the defendant will punishment, is applicable to this case. And not be allowed to set up the loss of

I do not think that the word “forfeiture,” sion which the proof of these facts would as there used, means such a forfeiture as in occasion, as a ground for withholding dis- the case now before us, of a person having covery"; and in Lucas v. Evans (6), where the possession of property and having com


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(5) 1 Ves, sen, 55. (6) 3 Atk. 259.

(7) 1 Keen, 239.



mitted a breach of covenant. But in the out by my Brother Mellor, there is a class exercise of the powers recently conferred of cases in which those Courts would not upon this Court, it seems to me that we allow a bill of discovery at all, and I do ought to be governed by the principles not feel clear that we are bound by their which have been recognized in the Courts mode of procedure in the exercise of the in which this branch of our jurisprudence new powers which have been given to us by was originally planted, nurtured and grown the act of parliament; but the rules laid up. This power was given to us in order down by them as to bills of discovery ought that the complication of business caused to be a guide to us. I do not look at this by the necessity of having recourse to other privilege or exemption from the liability Courts should be prevented, and when the to answer, in cases where the answer would legislature gave us such power it must be lead to a forfeiture, as an invention of those taken to have done so with a knowledge Courts, but rather as a rule adopted by of the rules according to which the power them from the Courts of law. It is a prinhad always been administered in those other ciple of the law of evidence which these Courts, and therefore, whether we are free to Courts have always recognized as apexercise our own discretion, or whether it plicable to the examination of witnesses, was intended that we should act in accord- and everything shews that they were ance with the Courts of equity, I think that to extending the power of diswe ought to abide by the principles and covery to cases of forfeiture. From the rules of those Courts. According to the

earliest times the rule has been adopted authorities which have been cited and the in the Courts of equity with regard to disexpressions used by the text-writers who covery. It may be that the distinction have written upon the subject, those rules between forfeitures and conditional limitaare perfectly fixed and well established, that tions, where the estate is said to be given no man shall be compelled to give an answer over by the donor upon the condition hapwhich shall have an effect leading to the pening, is a very fine and subtle one. But forfeiture of his estate, except when granted the kind of forfeiture in question here is subject to a conditional limitation. It may the one upon which nearly all the cases in be that the distinction is a fine and subtle equity have been decided. Dumpor's case (8) one, but the right to file a bill of discovery is an instance of a forfeiture being claimed in the case of an estate granted upon a on the very same ground as in this case. conditional limitation is a well-established We ought to be guided in this matter in exception to the rule, that a party shall the way suggested by Lord Wensleydale not be obliged to answer where the answer in May v. Hawkins (1); we all know how may have the effect of bringing about a closely he considered the question, and how forfeiture. The matter is too well estab- he acted, and how he said he should conlished to admit of any doubt. It is also tinue to act until one of the superior Courts said that the Courts of equity have exer

decided to the contrary. So also was the cised a discretion whether they will allow opinion of my Brother Martin. We cannot a party to be forced to answer in any par

disregard a rule so well established, and we ticular case, but I do not think that is so ought not, therefore, to allow the questions where the rule applies to which I have to be put. As I said during the argument, referred. I am of opinion that we cannot I cannot help thinking that there may be force the defendant to make this answer,

considerable difficulty, now that the parties which would be clearly in violation of the on both sides may be examined as witnesses; rule so well established in the Courts of and I entertain considerable doubt whether equity.

or not when a party has been examined as CROMPTON, J.-I am of the same opinion. a witness in his own behalf, either as to This is a rule calling upon the defendant to minor matters or as to some other forfeiture, shew cause why he should not answer a he could be compelled to answer a question question which would tend to the forfeiture as to whether he had done something else of his lease. I do not myself think that we which would lead to a forfeiture of his lease. are bound by the exact procedure in the Courts of equity, for, as has been pointed

(8) 1 Smith's Lead. Cas. 15.

a rule

But that is not the question here which we

CARR AND ANOTHER V. THE have to decide.

ROYAL EXCHANGE ASSURMELLOR, J.-I am of the same opinion. 1864.

ANCE CORPORATION. I agree with the distinction pointed out by Dec. 13.

CARR AND ANOTHER V. MONmy Lord and my Brother Crompton, that

TEFIORE AND OTHERS. though we are not fettered by the rules of the Courts of equity, inasmuch as we exer- Marine Insurance-Partial Loss-Pleadcise powers in some cases in which they do

ing -- Inconsistent Counts - Payment into not grant discovery, yet that we ought in

Court-Procedure-Jurisdiction of Court. the exercise of the new powers given to us to take their rules as a guide. As was

A declaration contained a count upon a said by my Brother Crompton, this par policy of insurance upon a ship and cargo, ticular rule has been adopted as

and also the usual money counts. The deof evidence by the Courts of equity, fendants, as to the first count, pleaded that and I think that it is not to be left they had not broken their covenants, and they to the absolute discretion of the Judge also paid into court, under the money counts, or of the Court to decide without reference the amount of the premiums, and the plainto what had been the procedure and practice tiffs took the money out of court. The cause in those Courts. I was at first struck with was referred to arbitrators, to fix the amount the subtlety of the distinction between for- of the loss, which they did, irrespective of the feiture and conditional limitations, but, as amount which had been paid into court : has been already observed, that distinction, Held, that the Court had power to prevent though a nice one, clearly establishes the injustice being done to the defendants, and rule, and in addition we have two cases in that the plaintiffs were only entitled to judgChancery so clearly in point that no distinc- ment for the balance which remained after tion between them and the present case can deducting the amount of premiums paid be pointed out by Mr. Needham ; and we into court. have besides the dicta of several Judges. We ought not, therefore, to allow these Rule calling upon the plaintiffs to shew interrogatories to go.

cause why the judgment roll should not be Rule discharged. amended by entering the verdict for the

sum awarded by the arbitrators, less the

amount of premiums paid into court. THE QUEEN, on the prosecution action had been brought upon a policy of

It appeared, from the affidavits, that an 1864. of JAMES HEPWORTH, v. THE

insurance effected upon a ship called the Nov. 22. INHABITANTS OF THE TOWN

Dos Hermanos and her cargo.

The declaration contained a count on the HighwayIndictment for Non-repair policy, and also the ordinary counts to rePlea, Guilty-Costs-5 & 6 Will. 4. c. 50. cover back the premiums, on the ground

that the policy had never attached. The

defendants paid money into court upon Where on an indictment for the non-repair the common counts; the plaintiffs took it of a highway the defendants have pleaded out of court, and went on with the action. guilty, there is no power in the Court before Before, however, going to trial an agreewhom it is preferred to award costs, under ment was entered into between the respecthe 5 & 6 Will. 4. c. 50. 8. 98, which makes tive attornies, the material part of which it lawful to award costs, if it shall appear to was as follows: “That in case the plainthe Court that the defence was frivolous and

tiffs shall be held to be entitled to recover veratious.

as for a total or a partial loss in this action,

on ship or cargo, or either of them, it [For the report of the above case, see shall be referred to Mr. Davidson and Mr. 34 Law J. Rep. (N.s.) M.C. p. 13.]

Richards, the average-staters of London, or in case they differ, to a third London average-stater, to be named by them, as



&. 98.

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