Tipping v Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 1843 |
| Date | 16 February 1843 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 157
HIGH COURT OF CHANCERY
See Ashworth v. Roberts, 1890, 45 Ch. D. 627; Merryweather v. Moore [1892], 2 Ch. 522; Robb v. Green [1895], 2 Q. B. 15; 315.
[383] tipping v. clarke. Feb. 13, 16, 1843, [See Ashwarih-\.:Rob&rts, 1890, 45 Ch. D. 627; Merryweather.v. Moore [1892], 2 Ch. 522; Eoll .v. Green [1895], 2 Q. B. 15; 315.] The 38th Order of August 1841, enabling a Defendant by answer to decline answering any interrogatory, from answering which he might have protected himself by demurrer, applies as well where the demurrer constituting the protection must have been a demurrer to the relief, as .where it would have been a demurrer to the discovery only. Under the 74th Order of April 1828 the Master does not, on the ground of immateriality,, overrule exceptions for insufficiency, unless it is clear that the question cannot be material. If the materiality be doubtful, the case is not within the order. Construction of an answer, containing a general denial of the facts charged in the terms of the charge, with a saving so far as the other statements in the answer admits or explains them. The Plaintiff, a factor, had dealings with the Defendant, a merchant, and disputes arising between them, the Defendant, in a letter to the Plaintiff, stated in effect that (1) The same objection applied as to others of the legatees under the will in a like. situation. 158 TIPPING V. CLARKE ,2 HAKE, 384. he had, with much time and trouble, acquired a knowledge of the contents of the Plaintiffs books, not only relating to his (the Defendant's) account, but also to the accounts of all the Plaintiff's other Irish friends, and that he (the Defendant) intended to call a meeting of the latter, his object being to make a public exhibition of the Plaintiffs books. The Plaintiff thereupon filed his bill, charging that the Defendant had by surreptitious and fraudulent means obtained access to the Plaintiff's accounts, books and other documents relating to the Plaintiff's business, and had by the like means made or obtained copies thereof, not only in reference to his own transactions with the Plaintiff, but [384] also in reference to the Plaintiff's dealings with other persons, and in particular with various connexions and friends of the Plaintiff in Ireland and elsewhere, in which the Defendant had no concern. The bill charged that the Defendant ought to set forth a list and description of all copies of, and extracts or entries from, and of all other particulars respecting the said accounts, books and documents relating to such transactions, at any time or in any manner obtained by him, or which were in any way then in his possession or power, or under his control, or to which he had any means of access, and ought also to set forth how and when, and from whom, he obtained the same, and what means of access he then had thereto, and when he parted with the custody of any of the said several particulars which were not then, but formerly were, in his possession or power, or under his control, and where the same then were, and what had become thereof. , The bill inquired-1st, Whether it was not true that the Defendant had by surreptitious and fraudulent means, or by some and what means obtained access to the Plaintiff's accounts, books and other documents relating to his business, or to some and which of them. 2dly, Whether he bad not in some and what manner made or obtained copies, or a copy, or extracts, or an extract, therefrom, or of some and what part or parts thereof. 3dly, Whether he had not made or obtained such copies or extracts, not only in reference to his own transactions with the Plaintiff, but also in reference to the Plaintiffs dealings with other persons, and in particular with various, or some and what friends of the Plaintiff in Ireland and elsewhere, with which he had no concern. 4thly, The bill called upon the Defendant to set forth a list and short description of all copies of, and extracts or entries from, and of all other the particulars aforesaid in [385] his possession or power. 5thly, How and when, and from whom, he obtained the same, and what means of access he then had thereto; and 6thly, When he parted with the custody of any of the said several particulars which were not then, but formerly were, in his possession or power, and where the same then were, and what had become-thereof. The bill prayed that the Defendant might be restrained by injunction from printing or otherwise copying, and from publicly exhibiting or making known, and from distributing or parting with any copies, or otherwise in any way publishing the said accounts, books and documents, and any copies of, or extracts from, the same, and might be decreed to deliver up to the Plaintiff, or to destroy, all such copies and extracts; and might also be decreed to pay the costs of the suit. The Defendant, by his answer, said that, suspecting the Plaintiff had rendered him false statements of the sales of the goods consigned to him by the Defendant, and appropriated to his own use part of the proceeds which he ought to have accounted for to the Defendant, he (the Defendant) made inquiries, and exerted himself to obtain information respecting the matters aforesaid, and to ascertain the true state of .the case with respect thereto, and by the means aforesaid he obtained information respecting it, relating to the Defendant's own affairs and property, and the dealings of the Plaintiff, as his factor, in respect thereof, and the accounts relating to the same, and the Defendant had some private memorandums relating to the same matters, and of the information so obtained, which memorandums were written on several separate papers, and were in the Defendant's possession; and the Defendant had a few other memorandums of a similar nature, which he was then unable to find, al-[386]-though he had searched for the same, and, in consequence, believed that the same had been lost or destroyed, and was unable to set forth any other description or account thereof, or when the Defendant parted with the same, or "where the same then were, and what had become thereof. And the Defendant insisted that he was entitled-to retain all .such memorandums, and that he ought not to be compelled to produce or make any 2 HARE, 387. TIPPING V. CLARKE 159 discovery respecting the same, or any of them, for they related exclusively to the Defendant's property and goods, and the sales thereof, with the exception only that two of the memorandums contained notes made by the Defendant of information obtained by him, of difference between the accounts of the proceeds realized and received by the Plaintiff from merchandize of the Defendant and also of some other persons therein mentioned, being also connections in trade of the Plaintiff, he having, as the Defendant believed, improperly, unfairly and fraudulently retained and appro priated to his own use the sums constituting such differences; but the Defendant denied that he had, by surreptitious and fraudulent means, or by any means except as aforesaid, and by an order in a suit in which he was Plaintiff, obtained access to the Plaintiffs accounts and books, or other documents, or any of them, or, save as therein mentioned, had, in any manner, made or obtained copies or a copy thereof, or extracts or an extract therefrom, or of any part thereof: and the Defendant said that he had in his possession or power the memorandums or papers thereinbefore mentioned and described, which he insisted he was not bound to produce or discover in any manner to the Plaintiff, and that the Plaintiff had ,not by his bill shewn any ground, or made any case, entitling him to the production or discovery thereof, and, except as aforesaid, the Defendant denied the possession of any documents, following the 'terms of the interrogatory. '.-.. [387] The Plaintiff took six exceptions for insufficiency, in respect of the interrogatories which are above distinguished. The Master overruled the exceptions. Upon exceptions to his report, Mr. Koupell and Mr. Eolt submitted that the answer was evasive, and that, even supposing the bill were demurrable, the 38th Order of August 1841 was not intended to alter the rules of pleading to the extent of giving to an answer the effect of a demurrer to the relief. It was intended only to give to an answer the effect of a demurrer to the discovery. On the title to relief they cited Gee v. Pritchard (2 Swans. 402). Mr. Bazalgette, for the Defendant, argued that the interrogatories were in terms answered, and that the specific answers, referred to in the general denial, applied to all the facts which were material to any relief that could be given; for the Plaintiff was not entitled to any part of the relief prayed with respect to the accounts of his dealings with the Defendant himself, whatever might be his title to relief with respect to the accounts of the Plaintiff's dealings with third persons. Under the 38th Order of August 1841 the Master had, therefore, correctly overruled the exceptions, as to inquiries leading to that part of the relief which might have been demurred to ; and the inquiries not covered by that principle were properly held to be immaterial, under the power given to the Master by the 74th Order of April 1828. the vice-chancellor [Sir James Wigram], after stating the subject of the bill, and of the exceptions :- , I have, in this case, to consider three points: first, [388] whether the Defendant has sufficiently answered the matter of the exceptions, admitting that he has verbally answered the interrogatories : secondly, whether (if he has not sufficiently answered) it is material to the relief prayed that he should answer the matters in question, with reference to the 74th Order of April 1828: and, thirdly, whether the Defendant is relieved from the necessity of answering by the effect of the 38th Order of August 1841. With regard to the first point, whether the...
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