Drake v Drake
| Jurisdiction | England & Wales |
| Judgment Date | 08 November 1843 |
| Date | 08 November 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 267
HIGH COURT OF CHANCERY
[647] deaee v. drake. Nov. 8, 1843. The Defendant may, by answer, decline answering, under the 38th Order of August 1841, although the objection to answer is not applicable to any interrogatory in particular, but is founded on the bill, being demurrable. The bill in substance sought only discovery from the Defendant, for the purposes of evidence in ejectment; but by the addition, in the prayer of process, of the word "decree," which is inapplicable to a bill of discovery merely (James v. Herriott (6 Sim. 428)), it was rendered in form a bill for relief, and, as a bill for relief, it was admitted to be demurrable. The Defendant put in an answer, but left most of the interrogatories unanswered. The Plaintiff excepted, and the Master reported the answer to be insufficient. The Defendant excepted to the report. Mr. Cooper and Mr. Selwyn, in support of the exceptions to the report^ relied on the Order XXXVIII. of the 26th of August 1841, and cited Tipping^ v. Clarke, (ante, p. 383). The Defendant might have protected himself from answering the bill by a f eneral demurrer, and as he might have so protected himself, the 38th Order enables im, by answer, to decline answering. Mr. Barrett, for the Plaintiff. If the order is to .receive the construction which is suggested, the restric-[648]-tions as to the time and form in which a party may demur will be nugatory. Instead of being limited to twelve days for putting in a general demurrer, and being required to observe a strict form for that purpose, admitting the truth of the bill, the Defendant may gain at once the time which he would have for answering, the benefit of a general demurrer, and the advantage, at the same time, of traversing the facts alleged by the bill. So extensive an alteration of the practice of the Court could not have been contemplated as the effect of the 38th Order. If the objection to answer is to have the effect of a demurrer, the objection ought at least to be taken on a form not less definite; and so that the parts of the bill, to which it is intended to apply, should be distinctly specified. the vice-chancellor [Sir James Wigram], referring to a similar point in the case of Tipping v. Clarke,(l) said it was admitted in this case that the bill was demurrable. So far as discovery sought from a Defendant would expose him to penalties, or be a violation of professional confidence, or fell within the other...
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Woods v Woods
...without prejudice to exceptions to the answer which had been overruled. The circumstances of this case resembled those in Drake v. Drake. (2 Hare, 647). In the prayer of process on a cross-bill, for discovery only, the words " and decree " had been introduced by mistake, and the Defendant h......
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Dundas and Wife v Stephen Blake, Jane Blake and Others
...appeal; 1 M. & K. 38. Coombe and others v. City of LondonENR 4 y. & Coll. 139. Russell v. BeakyUNK 8 Ir. Eq. Rep. 569. Drake v. DrakeENR 2 Hare, 647. Ford v. Peering 1 Ves. jun. 72. Smith v. Duke of BeaufortENRENR 1 Hare, 519, S. C. on appeal; 1 Phil. 209. Hunter v. CapronENR 5 Beav. 93. Mu......
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Baddeley v Curwen
...exceptions then contended that the 38th Order of August 1841 applied to a ease where the bill was demurrable generally: Drake v. Drake (2 Hare, 647), Tipping v. Clarice (2 Hare, 383), Fairthorne v. Westm (3 Hare, 387), Kaye v. Wall (4 Hare, 127 ; and see the sajrie vol. p. 283, decided sinc......
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Woodall v White
...without prejudice to exceptions to the answer which had been overruled. The circumstances of this case resembled those in Drake v. Drake. (2 Hare, 647). In the prayer of process on a cross-bill, for discovery only, the words " and decree " had been introduced by mistake, and the Defendant h......