connected with the chief point in issue: and it in fact comprised all that the defendant knew about the subject of the suit.

For the report it was contended, that some parts of these documents were altogether irrelevant, and that, even so far as they were irrelevant, it was unnecessary to have them set forth. The substance of them might have been stated shortly; or, by means of apt words of reference, and depositing the documents with his clerk in court, the defendant might himself have had, and might have given the plaintiff all the information and benefit that could possibly be gained, by the oppressive course of embodying them in the answer or of annexing them to it.

Vice Chancellor.-The Master, it ought to be observed, has not expunged as impertinent the passages of the answer, which refer to this schedule; so that it is clear, he did not consider the matter of the sche dule to be irrelevant, and that he proceeded on the notion, that to set forth these documents verbatim et literatim, was not necessary, and therefore was impertinent. As, however, the defendant is stating his belief with respect to a matter not within his personal knowledge, it cannot be impertinent for him to explain on what grounds his belief rests, on what evidence it is that he proceeds in the answer with which he meets the plaintiff's case. The grounds of his belief here are certain documents; and the precise language of these documents may be important to show, how far the belief, to which he swears, is well or ill founded, and to what degree of credit it is entitled. I cannot hold this schedule to be impertinent: the consequence is, that I

must

Allow the exception.

BEFORE THE LORD CHANCELLOR.

From the decisions of the Vice Chancellor on the latter exception, the plaintiff appealed to the Lord Chancellor.

Mr. Shadwell and Mr. Palmer were for the appellant.

The ground, they said, on which the Vice Chancellor had allowed the exception was, that the defendant, being called on to

declare his belief as to certain matters, had a right to state the grounds on which his belief was founded. But see what oppression might be sanctioned by such a principle. Suppose a suit instituted to restrain a defendant from pirating a book, and that the defendant insists that the plaintiff is not entitled to the aid of a court of equity, either because the work in question is of an immoral tendency, or because, being itself merely a transcript from former works, it has no claim to the protection given by the law to copyright; what would there be to prevent the defendant in such a case from setting forth in his answer, or in a schedule, the whole or the greater part of the volume in question, and of the works from which it is alleged to be borrowed. Mr. Horne and Mr. Grant, contrà.

Lord Chancellor.-Inasmuch as the credit due to the defendant's answer, the correctness or incorrectness of his belief as to the matters in suit, depends on the particular language of the affidavits and certificates contained in this schedule, I cannot think it useless to set them forth. This introduces a question of very great importance to the course of proceeding here-Whether a statement, not necessary, but still relevant to the point in issue, is, within the intent of the formal language of the court, impetinent? Whether, if a man says more than it is necessary for him to say, but not more than it is useful to himself that he should say, I can order all that goes beyond what was necessary, to be expunged. In the present state of proceedings in this court, where so much expense is occasioned by the great increase of stamp duties, the question is one of extreme importance. But can these stamp duties, which give so much importance to the result in all questions of impertinence, have any influence on the decision of the court? If there is matter, which would not have been impertinent before the stamp duties were imposed, how can I hold that matter to be impertinent now?

Fairlie and Co. having brought actions to recover the value of certain cottons purchased and shipped by them at Calcutta for Parker and Co., the partners of the latter firm file their bill here for a general account of all dealings after a particular date, and praying specifically, that they may not be

charged with the cost of those cottons. The case, which [they make to entitle them to this part of their relief, is, that the cottons bought by Fairlie and Co., were neither of the quality nor of the price which they had been ordered to purchase, and that the partners of that house, resident at Calcutta, did not duly fulfil the instructions of Parker and Co. The defendant Fairlie, to meet this part of the bill, says, that the allegations are ill founded; that the cottons were of the quality and of the price, of which the instructions directed them to be; that they were minutely examined and in spected by the persons the best qualified to form a correct opinion on the subject; that these persons, in the usual course of trade, gave certain certificates and made certain affidavits, which prove that the cottons were of the proper quality and price; that, though the defendant has no personal knowledge of the affair, he is certain, that the allegations of the bill are not true; and that, as evidence thereof, he refers to these affidavits and certificates, and sets them forth in a schedule.

In drawing an answer of this kind, one way which may be adopted is, to refer in the body of the answer to the certificates and affidavits, and to leave them in the hands of the six-elerks, to be produced whenever the other may think right to call for them, or the court may order them to be produced. Here the party, instead of referring to the affidavits and certificates as capable of being produced, has stated them at length in words and figures and the Vice Chancellor is of opinion, that this is not useless-that the credit due to the answer depends on the circumstances stated in the affidavits and certificates, and may depend on the very words in which these circumstances are stated-and that the defendant, therefore, had a right to make these documents a part of his answer, as evidencing the truth of the general statements contained in it.

It is clear, that if the defendant had referred by proper and apt words to the affidavits and certificates, these documents would in effect have been made a part of the answer, without incurring the expense of setting them forth; and if the reference was expressed in proper terms, not only would the plaintiff have been enabled

to call for the production of them, but the defendant would have had a right to have them produced at the hearing. The view, which the Vice Chancellor took of the subject, was probably to this effect-that if these certificates and affidavits were not produced till the hearing, their effect would not be known till that stage of the cause; and, consequently, that to have referred to them by apt words would not have been equivalent to setting them forth in a schedule. It must, however, be recollected, that, if they had been properly referred to, both parties might have had all the benefit, which can possibly be derived from them in this suit. The defendant, of course, could not but know what they were, and what would be their effect; and the plaintiff could at any time have seen and examined them, just as much as if they were a substantive part of the answer.

Then, the question is,-Can you apply the character of impertinence to that which is relevant, but is not necessary? I believe, there are some cases, in which this question has occurred, (though not precisely in the same shape in which it is brought forward here,) and in which the court has held matter to be impertinent, which could scarcely be said to be in itself irrelevant. I allude to cases, where the bill has required accounts of personal estate-of receipts and payments-to be set forth; and the answer has given the accounts with the most extreme minuteness, specifying every particular item included in the most trifling disbursement or receipt. The court has held such extreme minuteness to be impertinent; proceeding on the ground, that the defendant had descended into a degree of particularity, which was not necessary according to the case made by the bill.

If the court had originally taken another course-if it had said-"This matter is not impertinent, for it is not altogether irrelevant; but the setting it forth in this stage of the proceeding is useless, with respect to the substantial objects of the suit; and, therefore, though it shall remain upon the pleadings, you, the party who have inserted it, shall pay all the costs thereby occasioned;"-we should have applied the word impertinent much more pertinently, than we are now in the habit of doing.

There is an order of the court, that,

where matter is reported impertinent, the counsel and the attorneys shall pay the costs of it. The court established this regulation upon the same ground, that it required the signature of counsel to the pleadings ;— namely, to protect the subject. But how can the order be applied, where the impertinence is in the schedule? How can counsel be made responsible for that which they have not signed? It is clear, that the suitor has not the same protection against impertinence in schedules, as he has against impertinence in the body of the answer. This schedule has been sanctioned by one of the highest officers of the court; then if it is in my opinion impertinent, ought I to make the party pay the costs of that which has been so sanctioned?

If I had had to deal with this subject originally, I should have examined, whether the affidavits and certificates contained matter which should have been stated in the body of the answer, and not merely referred to; and if I found that they did contain such matter, I should have said, that the schedule was not impertinent.

This schedule, however, calls for the attention of the court on another ground,that, even though not impertinent, still it is oppressive on the other party, and that he, who thus swells the pleadings, must pay the costs which he so occasions.

Nothing can be more evident, than that it is of the utmost consequence, that it should be clearly understood by practitioners, what construction the court will put on matter not necessary.

On a subsequent day, the Lord Chancellor finally disposed of the question.

After going through the views which he had before suggested and explained, he added, that there was another light in which the question ought to be contemplated; and that was with respect to the use which might be made of the answer and the documents annexed to it, not in this court, but in proceedings elsewhere. That which was the subject of a suit in equity, might also often be, and in the present case actually was, the subject also of an action at law and the plaintiff in equity might avail himself, upon the trial, of the answer which

he had obtained here. The law, however, in permitting the answer of a party to be used against him, deemed it requisite at the same time to grant him for his protection this privilege-that, if any part of his answer was read against him, he might insist on having the whole of it read. One consequence of this is, that it may often be of great importance to a defendant to frame his answer, with a view, not merely to the use to be made of it in the suit here, but to the use which his adversary may make of it at law; and that it may often be proper for him to incorporate with it, or annex to it documents, (to which it would have been sufficient for the purposes of the suit in equity simply to have referred,) in order that the other party may not have it in their power to use this answer against him at law, without also giving him the benefit of these documents before the court and the jury. That end could not be accomplished by inserting in the answer words of reference; for words of reference, though they might entitle the defendant in equity to have the documents referred to taken into the consideration of the court of law, would still leave him exposed to many inconveniences;-the documents might be lost; he might fail in identifying the documents produced with the documents referred to he might be obliged to incur great expense in doing so.

Therefore, having an especial regard to the use which might be made at law of the defendant's answer in equity, the Lord Chancellor decided, that he could not hold the schedule annexed to the answer to be impertinent; and he affirmed the judgment of the Vice Chancellor, allowing the exception.

At the same time, his Lordship added, that though he could not, in a case like the present, deprive the defendant of any protection or benefit, which might result to him from the annexation of such a schedule, yet, if a motion were made, that he might be ordered to pay the costs occasioned by that schedule, the court would be very much inclined to accede to such an application.

Where an injunction is obtained from the Lord Chancellor for want of answer, the Vice Chancellor has jurisdiction, upon the coming in of the answer, to dissolve that injunction upon the merits.

Upon the coming in of the answer, Mr. Lovat moved, before the Vice Chancellor, to dissolve an injunction.

Mr. Treslove, contrà, took a preliminary objection, that the injunction had been obtained from the Lord Chancellor; so that the Vice Chancellor had no jurisdiction to dissolve it; the words of the act being,* "that such Vice Chancellor shall have no power or authority to discharge, reverse, or alter, any decree, order, act, matter, or thing, made or done by any Lord Chancellor," &c.

The injunction had been obtained, as of

course, for want of answer.

Vice Chancellor.-I cannot declare error in any thing done by the Lord Chancellor : I can make no order expressing or implying, that there is error in any order made by the Lord Chancellor. The only consideration, therefore, is, in dissolving the injunction, do I declare error in the order of the Lord Chancellor, by which it was granted?

The determination of the point was suspended; but it was finally decided, that the Vice Chancellor had jurisdiction to dissolve an injunction so obtained from the Lord Chancellor.

the description of the plaintiff was in the following words:" Your orator, William Barrington Harland Rowley, eldest son of Sir William Rowley, baronet, of Tendring Hall, in the county of Suffolk, esquire."

To this bill a demurrer was put in, and the cause of demurrer assigned on the record was, that the complainant was not sufficiently described, and his place of abode was not so set forth, as that the court and the defendants might know where to resort, to compel obedience to any order or process of the court, and particularly for payment of any costs which might be awarded against the plaintiff, or to punish any improper conduct in the course of the suit. *

Mr. Cooper, for the demurrer.
Mr. Wakefield, contrà.

The argument for the demurrer was, that the words, " of Tendring Hall, in the county of Suffolk," must, from their position in the sentence, be applied to Sir William Rowley, baronet; and if so, there would be no specification of the plaintiff's place of abode.

Vice Chancellor.-It is impossible to read this description, without seeing that it must be understood as broken by a parenthesis some where or other. Where that parenthesis is to be placed, is, on the face of the sentence itself, altogether ambiguous. It may include merely the words " eldest son of Sir William Rowley, baronet ;" and then the description "of Tendring Hall, in the county of Suffolk," will apply to the plaintiff, and will make the description of him complete; or it may include also the words "of Tendring Hall, in the county of Suffolk," which, upon that construction, will refer to the father; so that there will be no description of the plaintiff's place of abode. That a part of the sentence must be taken in a parenthesis, is quite evident, for it would be absurd to connect " esquire" with "Sir William Rowley, baronet;" the one addition necessarily excludes the application of the other to the same person. The only doubt is-Whether the parenthesis shall

*The words of the demurrer were taken from the passage in Lord Redesdale's Treatise (p. 41. second edition), which mentions the necessity of stating the plaintiff's place of abode.

In this case, the plaintiff was in fact residing in France.

E

stop at the word "baronet," or shall extend to immediately before " esquire," so as to include the local description.

Now, of the two acceptations, the one is sensible; the other is insensible. If we apply the local description to the plaintiff, we give the words a sensible construction; for the plaintiff must describe the place of his abode. But if we go on, including in the parenthesis-" of Tendring Hall, in the county of Suffolk "-we apply to the father words of description, which are useless with respect to him.

The words, therefore, being in themselves ambiguous, I must give them that construction which makes the whole sensible. Demurrer overruled.

A testatrix gave to two trustees a sum of stock upon trust to dispose of the dividends thereof, as the same should from time to time arise, into the proper hands of M. H., (a married woman,) or otherwise to permit her to receive the same to her own sole and separate use, exempt from the control and debts of her husband; no other trust was declared of the stock:-Held, M. H. was entitled to the stock absolutely, and not merely to a life interest in it.

The bill was filed by Mrs. Haig, against the executors of Mrs. Anne Hirst and her residuary legatees. The question in the cause arose upon the following bequest in the will of Mrs. Ann Hirst:-" I also give and bequeath unto John Swiney and Jacob J. Whittingham, and the survivor of them, the sum of nine thousand pounds stock, in the four per cent. bank annuities standing in my name, upon trust, nevertheless that they, and the survivor of them, shall and do apply, and dispose of the interest and dividends thereof, as the same shall from time to time arise, or be received into the proper hands of Maria Haig, wife of James Haig, esquire, or otherwise to permit and suffer her to receive the same for her own sole and separate use and benefit, to the intent that the same may not be at the disposal of, or subject or liable to the control or engagements of her present, or any aftertaken husband."

In a subsequent part of the will, the following clause occurred :-"I also give and bequeath to Maria Haig, over and above the nine thousand pounds stock before bequeathed unto her in this my will, all my plate, whether real or plated, for her natural life; and, after her decease, my will is, that it shall go to her daughter, Ann Hirst Haig." All the residue of her money, goods, effects, and personal chattels, the testatrix gave to the said James Haig, and the Rev. Francis Edward Say, for their own benefit for ever.

The testatrix afterwards made a codicil, which contained the following bequest :"Item, I give and bequeath to John Swiney, esquire, and Jacob John Whittington, esquire, all my chest of plate, in trust, and for the sole use of Maria Haig, the wife of James Haig, esquire, without the control of the said James Haig, esquire, her present husband, or any after-taken husband, and not to be liable to any debts that he has, or may at any time contract, and over and above what I have before bequeathed."

The question was,-Whether Mrs. Haig took the 9000l. stock absolutely, or had only a life interest in it.

Mr. Heald appeared for Mrs. Haig. Mr. Phillimore for her husband. Mr. Bell, for the co-residuary legatee, Say.

Mr. Heald argued, that this was an absolute gift to Mrs. Haig of the beneficial interest in the 9000l. stock; for it was an absolute gift of the interest and dividends thereof. The stock was given to trustees, upon trust to pay the dividends to Mrs. Haig; such a bequest was prima facie absolute; what, then, was there to cut it down to a life interest?-Was there any gift of the fund over after this lady's death? None. Then, as to the direction, that the property so bequeathed should be to her sole and separate use, that could not abridge the former gift; it had a reference merely to the coverture of the legatee, and was intended not to diminish the benefits given to her, but to render them more distinct and substantial. He relied principally on Elton v. Shepherd; where a testatrix gave 2000l. to trustees, upon trust to pay

1 Brown's Chan. Cases, 532.