Bolton v The Corporation of Liverpool
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 1134
HIGH COURT OF CHANCERY
Bolton v. The Corporation of Liverpool, 3 Sim., 467. The same as the preceding case. /:*ò/òò 'f
English Reports Citation: 39 E.R. 614
HIGH COURT OF CHANCERY
S. C. Coop. t. Brougham, 19; 1 L. J. Ch. (N. S.), 166; see Jenkins v. Bushby, 1866, 35 L. J. Ch., 401 Considered, Minet v. Morgan, 1873, L. R. 8 Ch., 361; see Mayor, &c., of Bristol v. Cox, 1884, 26 Ch. D., 684.
[88] bolton v. corporation of liverpool. Jan, 23, 24, Feb. 13, 1833. [S. C. Coop. t. Brougham, 19 ; 1 L. J. Ch. (N. S.), 166 ; see Jenkins v. Bushty, 1866, 35 L. J. Ch., 401. Considered, Minet v. Morgan, 1873, L. H. 8 Ch., 361; see Mayor, &c., of Bristol v. Cox, 1884, 26 Ch. D., 684.] On a bill of discovery in aid of the defence to an action brought by a corporation for the recovery of town dues, the Defendants by their answer admitted that they had 1MY. &K.89. BOLTON V. CORPORATION OF LIVERPOOL 615 in their custody and relating to the matters mentioned in the bill, divers cases which had been prepared and laid before counsel in contemplation of the then pending litigation, as also certain grants and deeds, which were the title deeds and documents evidencing their title to the dues in question. Held, that the Plaintiffs iu equity were not entitled to an inspection of such cases or deeds. The Plaintiffs, who were merchants and Co-partners in Liverpool, were Defendants in an action, brought by the corporation, for the recovery of certain dues levied \ y the corporation upon the traders of that town. The bill was filed for the purpose of obtaining a discovery from the corporation in aid of the Plaintift's' defence to the action at law. The bill, among other things, charged that clivers cases had been lately submitted to counsel for their opinion, touching the right of the corporation to receive the tolls and duties, and from which, if produced, it would appear that the corporation had no such right, and that all such cases were then in the possession or power of the Defendants; and it further charged that the Defendants had in their possession or power divers charters, grants, deeds, books, accounts, letters, copies of and extracts from letters, cases, written statements, tables or lists of town clues, tolls, or duties, bills, informations, pleas, answers, memorandums, papers, and writings, relating to the matters contained in the bill; and by which, if produced, the truth of those matters would appear. The Defendants, by their further answer, among other things, admitted that divers cases or statements had lately been submitted to counsel by the corporation, for their opinion on the subject of, or relating to the right of, the corporation to levy and receive the dues or customs aforesaid; and that all such cases or statements were then in the possession or power of the Defendants ; [89] that they had in the second schedule to their further answer annexed, and which they prayed might be taken as part thereof, set forth a list of such last mentioned cases or statements; but that such cases or statements so scheduled as aforesaid were prepared in contemplation of, and with reference to, the action in the bill mentioned, and with reference to this suit; and the Defendants submitted that they ought not to be compelled, to produce the same. However, the Defendants denied that if such cases and statements were produced, it would appear that the corporation were well aware, or had reason to believe or suppose, or that the fact was that they had no right to levy or receive such town dues, tolls, or duties, or customs, or otherwise than as aforesaid; but that, on the contrary, it would appear that the corporation had the right as then contended for by them. The Defendants further admitted that they had then in their possession certain grants, deeds, documents, and papers, relating to the matters aforesaid, and that they had in the third schedule to their said answer, and which they prayed might be taken as part thereof, set forth a list of such grants, deeds, documents, and papers. But the Defendants said that many of such grants, deeds, and documents were the title deeds and documents evidencing and. shewing the title of the corporation to the town and lordship of Liverpool, and to the town dues and customs aforesaid ; and that many of such documents and papers were copies of accounts from public offices, and that they had. in the said schedule particularised and distinguished which of the said grants, deeds, and documents were the title deeds and documents evidencing the title of the corporation to the town and lordship of Liverpool, and town dues and customs aforesaid, and which of the said documents and papers were copies of ac-[90]-counte from public offices ; and the Defendants submitted that they ought not to be compelled to produce such grants, deeds, documents, and papers. A motion was made before the Vice-Chancellor that the Plaintiff's and. their agents might be at liberty to inspect and take copies of the cases or statements and documents mentioned in the Defendants' further answer, and in the second and third schedules thereto. The Vice-Chancellor refused the application, except in so far as it related to certain cases submitted to counsel on the Defendants' behalf many years ago, and long before the present legal proceedings were in contemplation. (1) And the motion was now renewed. Mr. Pepys and Mr. Kindersley, for the motion ; and the Solicitor-General [Sir W. Home], Sir C. Wetherell, Sir E. Sugden, and Mr. Duckworth, against it, followed 616 . BOLTON V. COEPOEATION OF LIVERPOOL I MY. ft K. 91. respectively the same general line of argument as they had taken in the Court below. In addition to the cases cited for the Plaintiff upon the original motion, reference was made to Preston v. Carr (2) as an authority to shew that upon the rule which enforces the production of cases for counsels' opinion, no distinction has ever been taken for the purpose of confining the order to such cases as had not been prepared with reference to existing proceedings. The different topics urged by counsel in support of the application are so fully stated and discussed in the [911 Lord Chancellor's judgment that it has been considered unnecessary to report tem in detail. Feb. 13, 1833. the lord chancellor [Brougham]. In this case, an action for tolls having been brought by the corporation against the Plaintiffs in equity, the question was touching the right of the Plaintiffs, who were the Defendants at law, to have certain documents referred to in the schedules to their answer, produced in aid of the defence at law; and those documents being of two descriptions, raised two separate questions; the one relating to papers of various kinds, evidencing the title of the corporation to the town and lordship of Liverpool, and to the dues and customs in question; the other relating to cases and statements submitted to counsel in contemplation of and pending the present proceedings at law and in equity. First, as to the documents evidencing title. I entertain the same view of this question which His Honour did when he refused the application. I take the principle to be this :-A. party has a right to the production of deeds sustaining his own title affirmatively, but not of those which are not immediately connected with the support of his own title and which form part of his adversary's. He cannot call for those which, instead of supporting his title, defeat it by entitling his adversary. Those under which both claim he may have, or those under which he alone claims. Thus an heir at law cannot, in that character, call for the general inspection of deeds in the possession of a devisee. [92] In Lady Shaflesbury v. Arrowsmith (4 Ves., 66), Lord Loughborough said " he could not find any spark of equity for such an application as that;" admitting that the heir in tail (and so he decided) had a right to inspect settlements creating estates in tail general; the party stating himself to be the heir of the body. The Plaintiff here does not claim anything positively or affirmatively under the documents in question. He only defends himself against the claims of the corporation, and suggests that the documents evidencing their title may aid his defence. How ? By proving his title, he says. But how can those documents prove his title ? Only by disclosing some defect in that of the corporation. The description of the documents is, that they rebut or negative the Plaintiff's title: they are the corporation's title and not his, and they are only his negatively, by failing to prove that of the corporation. He rests on the right which he has, in common with all mankind, to be exempt from dues and customs and he says, " Prove me liable, if you can." The corporation have certain documents which, they say, prove this liability. He cannot call for these documents, merely because they may, upon inspection, be found not to prove his liability, and so to help him and hurt his adversary, whose title they are. The case of TJie Princess of Walts v. Lord Liverpool (1 Swan., 114, 580) was cited; and it is, perhaps, a strong case. But it is a peculiar one. Lord Eldon at first refused the application, and then granted it in the special circumstances. The instruments were two promissory notes, upon which the suit was brought against executors. Lord Eldon, in delivering judgment upon that case, [93] threw out many observations as to what might appear on an inspection. The notes, he said, might be duplicates ; they might have important variations ; some question might arise on the stamps, and they might, at any rate, said his lordship, be given up at the hearing; for an indemnity will not do ; at leaat that is questionable. Yet he held all this matter of surmise not to be enough ; for he required the Defendant to state in what respect the inspection of the notes...
To continue reading
Request your trial
-
JP Morgan Multi-Strategy Fund LP v Macro Fund Ltd
...[1991] 1 W.L.R. 753; [1991] 3 All E.R. 158, dicta of Hoffmann J. distinguished. (7) Bolton v. Liverpool Corp.ENR(1833), 1 My. & K. 88; 39 E.R. 614, referred to. (8) Briamore Manufacturing Ltd., Re, WLR[1986] 1 W.L.R. 1429; [1986] 3 All E.R. 132, referred to. (9) Calcraft v. Guest, [1898] 1 ......
-
B v Auckland District Law Society
...which underpins the doctrine and its consequences, Lord Taylor CJ drew on a long and consistent line of English authority. In Bolton v Liverpool Corporation (1833) 1 M & K 88 the defendant sought inspection of the plaintiff's instructions to counsel, though not of the advice which counsel g......
-
R (Prudential Plc) v Special Commissioner of Income Tax
...was also made by leading counsel for Prudential to the graphic reference by Lord Brougham in another case reported in 1833, Bolton v Corporation of Liverpool (1833) 1 My & K 98, 39 ER 618 (HL), to: “the original of a party's brief being in his own counsel's bag and a copy of it being in t......
-
In the matter of an application for Judicial Review by C, A, W, M and McE
...cited by Lord Taylor - e.g. ‘with a view to his defence or to the enforcement of his rights’ (Bolton v. Liverpool Corp (1833) 1 My & K 88, 39 ER 614). [47] Such surveillance, to be effective, has to be secret, Mr Simpson argued. If the police or the Prison Service were required to give assu......