1844.-Bate v. Bate.

numbers were altered, in consequence *of the introduc- [*529] tion of the new interrogatories. The note at the foot

remained the same, and required the two defendants Thomas Bate and Robins respectively to answer "all the above interrogatories."

These facts gave rise to the first question now before the court. A second question arose out of the following circumstances. The bill, among other things, charged, that certain indentures of the 28th and 29th of September, 1826, "were in fact prepared from instructions given by the defendants Thomas Bate and William Robins, or one of them unknown to and without any com munication with the plaintiff and John Hezey Bate and George Bate, or any or either of them, and the said Thomas Bate and William Robins, or such of them as gave instructions for the same, caused the same to be prepared in such way as they or he thought best for their or his own views and purposes, and they always refused to produce or show the conveyance of the said premises or the draft thereof to the plaintiff and the said John Hezey Bate and George Bate, or any or either of them, although the plaintiff frequently applied by letter, and otherwise for an inspection thereof, as by reference to the correspondence in the plaintiff's possession when produced will appear." The corresponding interrogatory, after asking if inspection had not been refused, and why, proceeded, "and whether your orator has not frequently or how often applied, and whether or not by letter, and otherwise, for an inspection thereof."

The bill also, after charging a pretence on the part of the defendant Thomas Bate, that the plaintiff and *Fran- [*530] ces Bate had given an authority, dated the 5th of September, 1838, to Thomas Bate to act for them, proceeded, "and your orator charges that the said defendant Thomas Bate has, on several occasions, stated by letter to your orator since the month of September, 1838, that he had done nothing under the said alleged authority, save and except the signing, on behalf of your orator and the said Frances Bate, the deed relating to the sale to the said new joint-stock company; and particularly your orator charges, that on or about the 5th of March, 1842, the said Thomas Bate wrote and sent to your orator a letter [stating it] as by the VOL. VII.

57

1844.-Bate v. Bate.

the said letter to which for greater certainty your orator craves leave to refer, when produced to this honorable court will appear."

The plaintiff, in his bill, stated two letters of the 26th of August, 1826, and the 7th of September, 1826, which had been sent to him; he did not, however, admit them to be in his possession, though he referred to them in these terms, "as by the said letters to which for greater certainty your orator craves leave to refer, when produced will appear." These matters were interrogated.

It was now moved, on behalf of the defendants Thomas Bate and Robins, that they might have a month's time to put in their answer to the said complainant's amended bill, after the interrogatories, contained in the interrogating part thereof, should have been so conveniently divided from each other, and the note at the foot of the bill so framed, as that the said defendants should not be required to answer, or compellable to take an office copy of, such of the said interrogatories contained in the said amended bill as were contained in the same words in the original bill,

and had been fully answered by the said defendants, [*531] and also such other of the said interrogatories contained in the said amended bill, as were only varied from interrogatories in the original bill which had been fully answered by the said defendants, by immaterial alterations, as by the additions of dates or particulars stated in the answer of the said defendants to the original bill. And that the complainant might pay to the said defendants all costs which had been, and should be incurred or occasioned, by their having been required to answer and compelled to take an office copy of such interrogatories as aforesaid, and all costs of and incident to the re-amendment of the said bill with reference to the purposes aforesaid; or that the court would make such other order with reference to the dividing and numbering of the said interrogatories and the said note at the foot of the said bill as should seem meet. And further that the said defendants might have a month's time to answer the said amended bill, after the said complainant had produced and deposited with the clerk of records and writs for the inspection of the said defendants, and the said defendants should have been permitted to take copies of the documents following; that is to say, the correspondence in the said bill stated to be in the said complainant's

1844.-Bate v. Bate.

possession, whereby he alleges it would appear "that the said defendants refused to produce or show the conveyance of the premises in the bill mentioned, or the draft thereof to the said complainant, and J. H. Bate and George Bate, or any, or either of them, although the said complainant frequently applied by letter and otherwise for an inspection thereof," the particulars of such correspondence to be verified by affidavit; and also the letter from the defendant Thomas Bate to the said complainant dated the 5th of March, 1842, in the said bill stated and the other letters in the said bill referred to, whereby, as it is *alleged by the said bill, "the said defendant Thomas [*532] Bate has stated to the said complainant since the month of September, 1838, that he had done nothing under the authority in the said bill stated," except as therein mentioned; the particulars of such letters to be verified by affidavit, and also the letters from John Hezey Bate to the said complainant, dated 26th of August, 1826, and 7th of September, 1826, in the said bill referred to.

The affidavit of the defendant Thomas Bate, stated as follows:That he kept no copy of the alleged letter written by him to the said plaintiff, dated the 5th of March, 1842, in the said bill set forth, or of the several other letters written by him to the plaintiff, respecting the matters in the said bill stated.

That he and Robins could not properly put in their answer to the said plaintiff's amended bill, until they had had the opportunity of inspecting the said alleged letter of the 5th of March, 1842, and the other letters in the said bill referred to, whereby, as was alleged by the said bill, "the defendant Thomas Bate had, on several occasions, stated by letter to the said plaintiff, since the month of September, 1838," &c. &c., and also the correspondence in the said bill stated to be in the plaintiff's possession, whereby he alleges it will appear, " that the indentures of the 28th and 29th of September, 1826," &c.

Mr. Roupell, and Mr. Prior in support of the motion, argued that the plaintiff was bound by the 17th order of August, 1811,(a) to specify the interrogatories in the amended bill, to which

(a) Ordines Can. 169.

1844. Bate v. Bate.

[*533] he required an answer in order *" that the office copy of the bill taken by the defendant should not contain any interrogatories, except those which such defendant was required to answer;" and to save the defendants the expense of taking an office copy of the bill, to which a further answer was not required.

That this was like a case in which the plaintiff having abandoned a portion of his case, was ordered to pay the costs of the portion so abandoned; Strickland v. Strickland ;(a) and the application ought to be made immediately upon the cause of complaint arising.(b) Secondly, that the plaintiff was bound to produce the documents in his possession, without which it would be impossible for the defendants properly to put in their answer to the amended bill.(c)

Mr. Kindersley, Mr. G. Turner, and Mr. Heathfield, contra, contended that the general order referred to did not apply to a sole defendant, (d) or to a case like the present, where two defendants answered together, and that there was no hardship as the defendants well knew what part of the original bill had been found by the master to have been insufficiently answered, and the new matter was easily distinguishable.

Secondly, that a plaintiff was not bound, at the instance of a defendant, to produce documents which might be in his possession, except he offered by his bill to do so, or unless required by a cross bill.

The following cases were also cited, Jones v. Lew[*534] is,(e) *Penfold v. Nunn,(g) Muntz v. Lord Lauderdale,(h) Princess of Wales v. Lord Liverpool,(i) Milligan v. Mitchell.(k)

(a) 3 Beav. 224.

(b) Mounsey v. Burnham, 1 Hare, p. 22.

(c) Shepherd v. Morris, 1 Beav. 175; Taylor v. Heming, 4 Beav. 235.

(d) Lynch v. Lecesne, 1 Hare, 626, and see Boutcher v. Branscombe, 5 Beav. 545. (e) 2 Sim. & St. 242, and 4 Sim. 324.

(g) 5 Sim. 409.

(h) V. C E. 1840.

(i) 1 Swan. 114, 580, and 3 Swan. 567, and 1 Wils. C. C. 113, & 2 ibid. 29; and see Jackson v. Sedgwick, 2 Wils. C. C. 167,

(k) 6 Sim. 186.

1844. Bate v. Bate.

THE MASTER OF THE ROLLS :-Independently of the question of costs, this motion has two objects, one of which is, in substance, to compel the plaintiff to produce for the inspection of the defendants, certain letters which are in his possession; and the other is, to compel the plaintiff to alter the form of his bill by a further distribution of the interrogatories into numbers. Those two objects are quite distinct from each other, and require a separate consideration.

It is perfectly plain, and it has never been doubted, that the general order which directed the plaintiff to number the interrogatories in his bill, (a) was intended to apply to cases, in which there were several defendants answering separately. The object is perfectly plain, although, it must be conceded, the order is so expressed as to apply itself to all bills; where therefore we come to apply this order to particular cases, we must have regard to that particular object.

In this case there are three defendants, one of whom has not been called upon to answer at all; and the other two, although there seem to be charges against them which are distinct, are nevertheless so jointly concerned in interest, that they joined in one answer. There is no complaint as to the form of the original bill. The interrogatories appear to have been numbered *in a manner that is not complained of. These interro- [*535] gatories were not fully answered; which is a most material matter in the consideration of this particular case. Exceptions were taken and allowed. A further insufficient answer was put in, and an order was then obtained, that the plaintiff should have leave to amend his bill, and that the defendants should answer the amendments and exceptions together. It is therefore obvious, that the defendants could not be under any ambiguity, as to what it was their duty to answer; they were to answer the exceptions and to answer the amendments. Moreover, there is a general order "that a defendant shall not be bound to answer any statement or charge in the bill unless specially and particularly interrogated thereto :"(6) therefore, as to any amendments which were

(n) Ord. Can. 169. [See the orders referred to in the text, Cr. & Ph 371, 372.) (b) 16th Order of August, 1841. Ord. Can. 168.