The Princess of Wales v The Earl of Liverpool and Count Munster
| Jurisdiction | England & Wales |
| Judgment Date | 27 July 1819 |
| Date | 27 July 1819 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 320
HIGH COURT OF CHANCERY
S. C. 1 Swans. 580; 3 Swans. 567; 1 Wils. Ch. 113. Prioleau v. United States, 1866, L. R. 2 Eq. 665; Kennedy v. Wakefield, 1870, 39 L. J. Ch. 829.
The Princess of wales v. The Earl of liverpool and Count monster. March 7, 10, 17, [1818]. S. C. 1 Swans. 580 ; 3 Swans. 567 ; 1 Wils. Gh. 113. Prioleau v. United States, 18GG, L. R. 2 Eq. (565 ; Kennedy v. Wakefield, 1870, 39 L. J. Ch. 829.] In a bill against executors, the Plaintiff having stated two promisory notes of the same date, one for 15,000 sterling, the other for 15,000 French lotiis, given by the testator for securing a sum of 15,000, on an affidavit by one of the executory, that he had inspected the first note, and observed on the face of it circumstances tending to impeach its authenticity ; that he was informed, and believed, that the second note had been produced by the Plaintiff for payment in a foreign country ; and that he was advised and believed that it was necessary in order that his answer might fully meet the case, that he should, before answer, have inspection of the second note, it was ordered, that the Defendants should not be compelled to answer, till a fortnight after production of the second note. The bill filed by Her Royal Highness Caroline Augusta, Princess of Wales, by Antony Buller St. Leger, Esq. her next friend, stated, that in or about the month of August 1814, William Duke of Brunswick Oelx deceased, for the purpose of secur-ng the sum of 15,000 sterling to the separate use of Her Royal Highness, signed and delivered to her a certain promisory note, or instrument in writing, bearing date the 24th day of August 1814, whereby he assured to her the repayment in the year 1810, of the sum of 15,000 sterling, with interest in the mean time ; and also, for the same purpose, signed and delivered to her another promisory note, or instrument in writing, bearing date the same 24th clay of August 1814, whereby he assured to her payment in the month of August 1816, of the sum of 15,000 French louis, at the rate of 24 French livres each, together with interest for the same in the mean time. [115] The bill then stated, that the Duke died in June 1815, having made a will, and appointed the Defendants executors, who proved the will, and possessed themselves of his personal estate to an amount more than sufficient to satisfy his debts ; and that the principal sums secured by the two notes, together with interest from the 24th of August 1814, was due to the Plaintiff for her separate use. The bill contained the following interrogatories : " Whether, in or about the month of August 1814, or when, the said William late Duke of Brunswick Gels, for the purpose of securing the sum of 15,000 sterling to the separate use of Her said Royal Highness, did not sign and deliver to her two promisory notes of such 1 SWANS. 116. WALES (PRINCESS 0?) V. LIVERPOOL (KARL of) date respectively, and of such tenor and effect, as hereinbefore in that behalf mentioned, or of any and what other date respectively, or of any and what other tenor and efiect respectively 1 and Whether the said principal sum secured by the said notes or instruments, together with interest on the said sum from the 24th of August 1814, is not now wholly due and owing to Her said Royal Highness '! " The bill prayed, that the Defendants might either admit assets of the Duke, sufficient to pay the principal sum of 15,000 and interest, or that an account might be taken of his personal estate, in the usual manner, and that the same might he applied in a due course of administration, and that, if necessary, an account might be taken of what was due upon the said notes, and that the amount thereof might be paid to the Plaintiff for her separate use. A motion was made by the Defendants, " that the riaintifl! might produce, and leave with her clerk in Court for the usual purposes, a certain promisory note, or instrument in writing, in the bill mentioned to bear date the 24th day of August 1814, whereby it is in the bill alleged, that William Duke of Brunswick deceased assured to the [116] Plaintiff payment in the month of August 1810, of the sum of 15,000 French Louis at the rate of 24 French limes each, together with interest for the same in the mean time; and that the Defendants might have a fortnight's time to answer the bill, after such instrument should have been so produced." In support of the motion an affidavit was made by Count Minister, that he was advised and believed that an inspection of the note described in the notice of motion might afford to him and the other Defendant, the Earl of Liverpool, material information for their defence ; and that the note had never been shewn to him, nor, as he was informed and believed, to the Earl of Liverpool. The Solicitor General [Clifford| and Sir Arthur Piyyott in support of the motion. In an action at law, the Plaintiff could not compel the Defendant to plead, until a copy had been delivered of the written instrument on which the action is founded. When the instrument is under seal, the Plaintiff must make profert, and the Defendant may crave oyer ; and by analogy to those cases, the modern practice, in actions on written instruments, though not under seal, as bills of exchange and policies of insurance, entitles the Defendant to a copy for the purposes of his defence. It cannot be supposed that a court of equity rejects that equitable, principle which is thus adopted by the courts of law. By a cross bill, it is admitted, the Defendants might compel production of the instrument, and compel it for the purpose of defence to the original suit; admitting that, can we consistently deny to the Court a power to order the production, in that suit in which alone the production is required '( Inspection of the instruments is in this case necessary to enable the Defendants to make that answer which the Plaintiff seeks. The bill contains interrogatories whether the promisory [117] notes were not signed by the Duke, of Brunswick.. and whether the sum secured by them is not still due. Supposing a doubt of the, authenticity of the instrument (which I put only hypotlietically, hut on which so put E am entitled to argue), of the signature of the Duke for example, is it not obvious, that inspection is necessary to enable the Defendants to answer with correctness and safety t Where the Duke now living, and a Defendant, it might be contended that he could answer from his own knowledge these questions relative to his own acts ; but by what means can the Defendants, his executors, no parties to the transaction, without a view of the instrument, answer to its authenticity 'i The statement in the bill is, that two securities were given for the same sum, payable in different currencies, and at different dates. What assurance has the Court, that while one of these instruments is put in suit here, the other niay not he enforced against the Duke's assets in a foreign state '! Sir tfamuel Eomilly, Mr. Martin, Mr. Bell, and Mr. tihatiwell against the motion. If the Defendants are entitled to succeed, the motion must be quite of course ; the case of a creditor filing a bill for payment of ji sum, due on a security, is one of daily occurrence ; yet no precedent has been produced of such an order. The analogy suggested between the practice at law and in this Court is unfounded. Tt is true, that in an action on a bond the Plaintiff must make profert ; but it is equally true, that the practice here is different. In a case in which a Plaintiff had stated the substance of a deed in his bill, and referred to it for greater certainty, Your Lordship decided that the Defendant could not compel production on motion, but must proceed by a cross bill. What is there in this case to entitle the Defendants 0. xvi,-U 322 wales (princess of) v. liverpool (earl of) i swans, us. to a course of practice quite new 1 The difficulty in the way oi their answering is altogether imaginary. What difficulty can [118] they find, if such is the fact, in stating1 that they have no knowledge of the transaction, and leaving the Plaintiff to make proof of every part of her case 1 The statement in the bill, that two securities were given for the same sum, is to the disadvantage of the Plaintiff; before a decree can be obtained, both must be proved and delivered up. The motion is opposed by two decisive objections : according to the uniform practice of the Court, a Defendant cannot obtain discovery except by a cross-bill ; and even by a crossbill discovery can be obtained of those matters only which are material to the defence. In this instance, the Defendants seek by motion, production of an instrument constituting not their defence, but the Plaintiff's title. It is a ground of demurrer to a bill of discovery, that it requires a disclosure of a part of the opponent's case. The evidence of one party may certainly be material to support the case of the other ; in a deed for instance, which is the foundation of the title of the Plaintiff at law, the recitals may serve to establish the pedigree of the Defendant, and lie may, for that reason, be entitled to the production of that deed ; but entitled to it still on the same principle, as constituting a part of his own case. A reference to this principle evinces the necessity of adhering to the rule, that a discovery can be obtained only by filing a bill, which imposes on the party the duty of stating his case, and affords to his antagonist the opportunity of controverting it. Suppose to a bill for a discovery of a deed as containing matter important to the Plaintiff's case, an answer were put in denying that the deed contained such matter, would the Court, in opposition to that answer, on a mere allegation in the bill enforce discovery 1 If such an attempt can succeed, what will become of pleas of purchase for valuable consideration, to...
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