Reynell v Sprye. Sprye v Reynell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1852 |
| Date | 01 January 1852 |
| Court | High Court of Chancery |
English Reports Citation: 42 E.R. 708
BEFORE THE LORDS JUSTICES.
[656} reynell v. sprye. sprye v. reynell. Before the Lords Justices. Nov. 20, 1851. Upon a motion for production of documents in the Defendant's custody, the Court will not receive evidence extraneous to the answer, to shew that a particular document had been fraudulently omitted from the schedule, although the Defendant does not object to the admission of the extrinsic evidence, and has. adduced evidence to contradict it. These were an original and supplemental suit and corresponding cross-suits, oir which an appeal was pending from a decree of Vice-Chancellor Wigram. The circumstances out of which the suits arose may be collected from the report of the case upon the appeal which immediately follows this report. A motion was now made on behalf of the Plaintiff in the cross-suits, that the-Defendants in those suits might produce the several deeds, papers, and writing* admitted by their answers and the schedules thereto, to be in the Defendants^ possession, custody, or power, including therein certain copies of letters specified in the notice of motion, and also the instructions to the counsel of the Defendants to-amend the original bill, together with all other instructions laid by the Defendants'' solicitors before their counsel, for the preparation of the original bill in the first above-mentioned cause, and for the preparation of his answers to the cross-bills, and all other instructions laid by them before their said counsel. The motion also-sought leave to file a supplemental bill. The motion was supported by affidavits, including one made by a clerk of a law stationer employed by the Defendants' solicitors, which (if true) shewed that there had been omitted from the schedule to the answer in the cross-suit certain instructions to the Defendants' counsel, and that from these instruments it would appear that an opinion of counsel had been communicated to the [657] Plaintiff in the original suit before July 1843, a fact on the supposed absence of which the judgment in the Court below mainly turned. UDEQ.M. ft a 618. REYNELL V. SPRYE 709 In opposition to the motion, affidavits were also filed. The allegations in the òaffidavits on the two sides were in direct conflict. the solicitor-general, Mr. Bethell, and Mr. T. H. Terrell, in support of the motion, were desired by the Court to assume, for the purpose of the argument, the truth of the affidavits on which they relied, and upon the hypothesis to shew that .according to the practice of the Court it could make an order for production. They òthen contended, that where a Defendant has been allowed to seal up parts of documents upon affidavit, it is competent to the Plaintiff to shew that the affidavit ia untrue, and to have the seal removed; and they argued that this was the same case in principle. They cited Bowes v. Fernie (3 Myl. & Cr. 632). Sir. F. Kelly, Mr. Lloyd, and Mr. Shapter for the Defendants, said that it was the earnest desire of their clients that the whole of the matter should be before the òCourt. the lord justice knight bruce. In this cause, which is a suit by bill and òcross bill between Sir Thomas Reynell, now deceased, and Lady Elizabeth Reynell on one side, and on the other a gentleman named Sprye and his wife, to say nothing of òany formal or immaterial party-a decree has been obtained by Sir Thomas, or Lady Elizabeth, Eeynell, against [658] which Captain and Mrs. Sprye have by way of petition of rehearing appealed, and the present motion proceeds on grounds which, for the purpose of the argument, have been assumed to be true, and of course for that purpose only. It is said that a discovery of documents having been required by the bill òof Captain and Mrs. Sprye, that discovery was so given by Sir Thomas Reynell as not to include a case and opinion or a copy of a case and opinion, it being clear that the .òschedule ought to have included that document if it was in the possession or power of Sir Thomas Reynell or his solicitors. The case alleged and assumed for the purpose òof the argument is, that the answer was in that respect untrue ; that the document was, in truthj at the time, in the possession of Sir Thomas Reynell or his solicitor, "hut that it was unfairly and dishonestly concealed by Sir Thomas Reynell, and that he was knowingly assisted in that unfair and dishonest conduct by his solicitors; and upon this ground it is sought to obtain an order in the present stage of the cause to compel the production. We are of opinion that it is not competent to the Court to make an order of this description without laying down, and in fact creating, a new system of practice and procedure. If the alleged facts are true, and there is any òcourse open to Captain and Mrs. Sprye on the subject-as to which we give no opinion-the course to be taken must, we suppose, be either a criminal proceeding or a proceeding in the nature of a criminal proceeding, which this is not, or a new bill either supplemental or of some other kind, as to which our leave is not, we apprehend, necessary. This motion, therefore, must so far be refused. With regard to certain other documents, seven letters or copies of letters, there is a total absence of admission that any one of them is, or, at the time of putting in the answer, was in the possession or power of Sir Thomas [659] Reynell or of his solicitors. When I say that there is no admission, I do not forget the inchoate and incomplete admission as to some of those seven documents which was made or intended to be made, but which is said to have been made or intended by mistake, and which we cannot now, at least, decide not to have been so. As to the rest of the documents, the production of them being consented to, there is no occasion to say more. the lord justice lord cranworth concurred. The order was, that Captain Sprye should pay to Lady Elizabeth Reynell and Messrs. Walker and Grant all the costs of the motion ; that certain documents agreed upon should be produced; and by the consent of Lady Elizabeth Reynell, it was ordered that Captain and Mrs. Sprye should be at liberty within two months to file such supplemental bill, in the nature of a bill of review, as they might be advised, upon depositing £50 with the registrar.
English Reports Citation: 42 E.R. 710
BEFORE THE LORDS JUSTICES.
S. C. 8 Hare, 222; 21 L. J. Ch. 633. Also, 10 Beav. 51; 11 Beav. 618. See Hilton v. Woods, 1867, L. R. 4 Eq. 439; Arkwright v. Newbold, 1881, 17 Ch. D. 310; Bradlaugh v. Newdegate, 1883, 11 Q. B. D. 6.
71'0 REYNELL V. SPRYE 1DEO. M. *O. I [680] eeynell v. sprye. sprye v. reynell. Before the Lords Justices. Jan. 17, 19, 20, 26, 27, 28, 31, Feb. 2, March 15, 1852. [S. C. 8 Hare, 222 ; 21 L. J. Ch. 633. Also, 10 Beav. 51 ; 11 Bcav. 618. See Hilton v. Woods, 1867, L. R. 4 Eq. 439; Arkwright v. Newbold, 1881, 17 Ch. D. 310; Bradlaugh v. Newdegate, 1883, 11 Q. B. D. 6.] 1. Where A., having a right which was supposed to be of uncertain extent, likely to be resisted or questioned, and not ausceptible immediately or easily of proof, and B. undertook the ascertainment and establishment of this right, on the terms of the- expenditure for the purpose being his, and of his having half the benefit of what should be so obtained : Held, that such an agreement (whether it amounted strictly in point of law to champerty or maintenance so as to constitute a punishable offence or not) must be considered against the policy of the law mischievous, and such a& a Court of Equity ought to discourage and relieve against. 2. Where one contracting party has intentionally misled the other, by describing his. rights as being different from what he knew them really to be, it is no answer to- the charge of fraud to say, that the party alleged to be guilty of it recommended the other to take advice, or even put into his hands the means of discovering the: truth. However negligent the party may have been to whom the incorrect statement has been made, yet that is a matter affording no ground of defence to the other. 3. Where one of the parties to a negotiation induces the other to contract on the faith of representations, any one of which has been untrue, the whole contract is to be considered as having been obtained fraudulently; nor is the case varied by the circumstance that the untrue representation was in the first instance the result of innocent error, if, after the discovery of the error, the party who made the repre sentation suffer the other to continue in that error. 4. Where the parties to a contract against public policy, or illegal, are not in pan delicto, and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the transaction, relief is given to him. 5. Where relief in equity is sought against a person alleged to have obtained an instrument by fraud, or otherwise improperly from the Plaintiff for the benefit of the Defendant, and the facts alleged as constituting or shewing the fraud or im propriety are proved against him, and do constitute or shew the fraud or impro priety, the suit will not fail, because the bill may have incorrectly and untruly alleged a third person to have been a participator and joint-actor in the facts,. although such an incorrect mode of stating the case may affect the costs. 6. Where the Court below has by decree given substantial relief against a Defendant, with costs against him personally, it is competent to the Court of Appeal affirming the decree as to the relief to vary it as to the costs; but to render this course correct there ought to be a judicial dissent as to the costs, strong, clear and un- doubting. 7. At the hearing an injunction may be granted although not prayed for by the bill. This was an appeal from the decision of Sir James Wigram, reported in the 8th Volume of Mr...
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