interest in any property accruing to the party so offending by force of such marriage, and to order the property to be secured" for the benefit of the innocent party, or of the issue of the marriage, or of any of them, in such manner as the said court shall think fit," &c. "and if both the parties so contracting marriage shall, in the judgment of the court, be guilty of any such offence as aforesaid, it shall be lawful for the said court to settle and secure such property, or any part thereof, immediately for the benefit of the issue of the marriage, subject to such provisions for the offending parties, by way of maintenance or otherwise, as the said court, under the particular circumstances of the case, shall think reasonable, regard being had to the benefit of the issue of the marriage during the lives of their parents, and of the issue of the parties respectively by any future marriage, or of the parties themselves, in case either of them shall survive the other."

1844: July 5, 8.

*RADBURN V. JERVIS.

[*353]

Whether the modern rule of practice, that motions of course may be made on any day in or out of term, is universal, or is subject to any qualifications, quære.

THE master having made his general report,

Mr. Willcock, at the expiration of eight days moved to confirm it absolute. The motion was made out of term, on a day which was neither a seal day nor the continuation of the seal. He cited Lord Harborough v. Wartnaby, (a) in which the Lord Chancellor is stated to have laid down, that all motions of course may be made out of term, as well as in term, on any day, whether a seal day or not.

THE MASTER OF THE ROLLS said he had some reluctance in making the order, but that if the Lord Chancellor had laid down the rule as broadly as it was stated, he would follow it with pleasure. That he was, however, desirous of communicating with the Lord Chancellor on the subject.

July 8.-Mr. Willcock again mentioned the case, and admitted that the rule must receive some qualification, as where the

(a) 1 Phil. 364.

personal liberty of a party would be affected; but he said that this case was not of that description.

THE MASTER OF THE ROLLS observed, that he thought that the generality of the rule ought to receive some qualification; that, though there did not appear to be any great objection to its application to the present case, still he did not like to go on [354] acting upon this general rule, without knowing whether it was to receive any qualification; and that therefore he would not make the order at present,

The case was not mentioned again.[1]

swer.

[1] Stagg v. Brown, post, 513. Lane v. Barton, 1 Phillips, 361. In Lord Harborough v. Wartnaby, 1 Phillips, 364, (cited in the text,) which arose upon an order for the production of documents before the master, pursuant to the decree made ex parte by the Lord Chancellor, on a day out of term and not a seal day, a motion to discharge the order for irregularity was refused. Lord Lyndhurst, after referring to the case of the Earl of Chesterfield v. Bond, 2 Beav. 263, thus proceeds: "That decisiou did not proceed upon any general order, but on analogy to what had been decided with respect to the common injunction for want of an anThe injunction in that case was for want of appearance; but from analogy and on the ground of convenience, the Master of the Rolls thought it might be had on a day not a seal day. I think that analogy may with propriety be extended further, and that the same principle of public convenience which guided the decision of the Master of the Rolls in that case, applies equally to the present, and warrants me in laying it down as a general rule of practice for the future, that motions of course may be made out of term, as well as in term, on any day, whether a seal day or not. I have communicated on the subject with the Vice Chancellor of England, Vice-Chancellor Knight Bruce and the Master of the Rolls, and they all agree with me in thinking that the analogy to which I have referred ought to be extended to all cases. Public convenience is obviously in favor of such a course, and in the present circumstances of the court I see no reason against it." In Clarke v. Clarke, 4 Beav. 497, the Master of the Rolls made an order during vacation, at his private residence, in regard to a defendant who had been arrested under a commission of rebellion. The regularity of the proceeding being afterwards questioned, his Lordship said; "The order in this case was made by me in the long vacation for the convenience of the prisoner and all other parties. My impression certainly is, that wherever a judge of this court is, there is his court; I think that, for a century and more, it has been considered that the court of a judge of this court is the place where he administers justice. If the order had been made here in my private room, could such objection prevail?" S. C. affirmed by Lord Lydhurst, 1 Phillips, 116.

1844. Richardson v. Hastings.

RICHARDSON v. HASTINGS.

1844: June 7; July 31.

One member of a club, on behalf of himself and the rest, sued two other members, to recover back moneys belonging to the club. It having been determined that the other individual members were not necessary parties: Held, that the defendants could not resist the production of documents in their possession, on the ground that the other members had an interest in them.

A plaintiff ought not to use for any collateral purpose, documents ordered by the court to be produced for the purposes of the suit.

THIS case is reported on the argument of the demurrers.(a) The defendants put in their answer, admitting that they had in their possession a number of documents relating to the matters in the bill mentioned. The answer however stated, that the plaintiff was the attorney of plaintiffs, in several proceedings at law, instituted by different creditors of the Alliance Club, at the instigation of the plaintiff or his partner, against the defendants as members of the committee of the said club," which proceedings were afterwards more particularly stated, and one of which actions was stated to be still pending. They claimed to have such particulars protected from the inspection of the plaintiff under the authority of the court.

Mr. Cameron now moved for the production of the docu

ments.

Mr. Purvis contended, first, that the other members were equally interested with the defendants in the documents, *and that an order for production could not be made in [*355] their absence. Production was refused in Murray v. Walter, (b) and in Lopez v. Deacon, (c) where the documents ewer in the possession of an agent, on behalf of the defendant, and persons not parties to the cause.

Secondly, that the object of the plaintiff was not to use the documents for the legitimate purposes of this suit, but to assist in

(a) Ante, p. 301, and 323.

(b) Cr. & Ph. 114.

(c) 6 Beavan, 254; and see Tay. lor v. Rundell, Cr. & Ph. 111.

1844-Richardson v. Hastings.

the actions brought, and to be brought, by the creditors against the defendants.

Mr. Cameron, in reply. The question of want of parties has been disposed of by the decision on the demurrers. The plaintiff sues on behalf of himself and all the other members; therefore every person interested in the documents is before the court.

As to the other point, the plaintiff is willing to undertake not to use the documents for the purposes apprehended by the defendants.

THE MASTER OF THE ROLLS having, during the argument, referred to Few v. Guppy,(a) said he would consider the points.

Juty 31.-THE MASTER OF THE ROLLS:-In this case, I think that the defendants are bound to produce, or to permit, the [*356] inspection of the documents in their possession. I think that they cannot refuse the production on the ground that other persons not parties to the cause have an interest in them, it having been determined that those other persons are not, under the circumstances of this case, necessary parties to the cause.[1]

It was objected that the plaintiff is an attorney in actions brought against the defendants by different creditors of the club whose affairs are the subject of this suit, and that he may use the documents sought to be produced, as evidence of the demands which those creditors have against the club.

I think that the plaintiff ought not to use the documents for any such Collateral object; and as he has offered, if I should

(a) Hare on Discovery, 124, and Wigram on Discovery, p. 245.

[1] Where a defendant is interrogated as to the contents of the books of a company in which he is a partner, and the question is one which he is bound to answer if he can, it is no excuse for not answering, to say, that the books are in the custody of the officer of the company, and that his partners will not allow him access to them. If he has a right to inspect the documents, he is bound to enforce that right, and the court will, if necessary, give him time for that purpose. Taylor v. Rundell, 1 Phillips, 222; S. C. 1 Yo. & Coll. C. C. 128; and see Stuart y. Lord Bute, 11 Sim. 442; S. C. 12 Sim. 460.

1844.-Richardson v. Hastings.

think it right, to undertake not to use the documents, or any copy of them, for that purpose, I shall make the order for the production or inspection of these documents, on his undertaking to that effect.

*SMITH V. THE EARI, OF EFFINGHAM.

1844: March 11, 13; May 6.

[*357]

In 1817, a tenant for life of freehold estates, subject to long outstanding terms, granted a personal annuity to the plaintiff, secured by warrant of attorney, on which judgment was forthwith entered up and docketed. Afterwards, in 1818 and 1819, he created other incumbrances, two of which were by demises of the estate. The plaintiff did not sue out any elegit till 1822, when he did so. The inquisition being duly returned, he commenced an action of ejectment, which he discontinued, in consequence of the outstanding terms. In a suit to which the plaintiff was no party, the priorities of the other incumbrancers were declared. The plaintiff, within twenty years from the last payment of the annuity, filed this bill against all the other parties, to have it declared that he was entitled to stand as first incumbrancer; that the decree, &c. might be altered, or that the plaintiff might be at liberty to proceed at law, and that the defendants might be restrained from setting up the terms. One of the defences was, that the plaintiff's annuity was usurious. The court held that the plaintiff was not barred by the proceedings in the suit, and retained the bill for a year, giving the plaintiff leave to bring an action for the recovery of the freehold, and restraining the defendants from setting up the terms; and also, (though not specifically asked by the bill,) from setting up the statute of limitations. The court also refused to interfere with the application of the rents in the meantime, or to grant inquiries as to the validity of the plaintiff's charge, holding that prima facie credit was to be given to the judgment, and that if the defendants had any equitable case to make against the judgment, they ought to adopt proceedings of their own to establish that case. In a suit in which the priorities of different incumbrancers on an estate were determined, a receiver had been appointed. A. B., who claimed to be first incum. brancer, not having been made a party to that suit, filed a bill of his own to establish his right: Held, that the receiver was not a necessary party, and but for the decision in Lewis v. Lord Zouche, 2 Simons, 388, he would have been considered an improper party.

THIS bill was filed by Mr. Smith and Mr. Dudgeon, claiming to be the first incumbrancer on the estate of a Mr. Primrose, which was subject to a number of other incumbrances, and had