CHAN.]

Re RISCA COAL AND IRON COMPANY, ex parte HOOKEY.

[CHAN.

Selwyn, Q. C. and De Gex appeared for the official manager, in support of the objection.-An order must be taken to be "made" at the time when it is pronounced. The order bears date on that day.

so unwittingly and in error, and in which he requests | it, and suggested that the matter should be mentioned his diocesan to point out in what respects he has done so, to the Lord Chancellor. that he may correct whatever error he has fallen into. Another and more formal document has also been brought before their Lordships, in which Mr. Heath has stated that, if it appears to his ordinary and to the official principal of his Grace the Archbishop of Canterbury, that his language does contain or teach a doctrine directly contrary or repugnant to any of the Thirty-nine Articles of Religion, he expresses his regret and revokes his error. Their Lordships desire to know whether Mr. Heath is now ready to act in accordance with these statements. They are unwilling to proceed to the last step in their duty, but unless he expressly and unreservedly revoked the errors of which he has been thus convicted, their Lordships have no course left but to advise her Majesty to confirm the sentence of deprivation under the Act. At all events, Mr. Heath must pay the costs of this appeal.

Mr. Heath having in person stated that he had
nothing to revoke, Sentence affirmed with costs.
App.'s agent, Brooks.
Resp.'s agent, Rothen.

Equity Courts.

COURT OF APPEAL IN CHANCERY.
Reported by C. H. KEENE and THOMAS BROOKSBANK,
Esqrs., Barristers-at-Law.

Saturday, May 31.

(Before the LORD CHANCELLOR (Westbury). Re RISCA COAL AND IRON COMPANY, ex parte

HOOKEY.

Glasse, Q. C. and J. N. Higgins for Mr. Hookey, contra. -The word "made" must be taken to mean completed; and therefore the app. had three weeks from the time when the order was drawn up by the officer. Until passed and entered, an order is inchoate. The general practice of the Court of Ch. governs this appeal. Sect. 33 of the 12 & 13 Vict. c. 108, is not applicable. The order appealed from must be in court on the appeal. The delay in passing and entering the order was the fault of the resp., who had the carriage of the order, and he cannot therefore complain of the delay in the appeal.

Roxburgh, Lindley, Kingdon and Owen, for other parties.

The Consolidated Orders, order 1, rule 20; order 23, rule 25; order 28, rule 29; 11 & 12 Vict. c. 45; 12 & 13 Vict. c. 106, s. 12; 12 & 13 Vict. c. 108; 19 & 20 Vict. c. 47, s. 95; 20 & 21 Vict. c. 14; and 21 & 22 Vict. c. 60; Re The North of England JointStock Banking Company, ex parte Saunderson, 1 Hall & T. 486; 3 De G. & Sm. 66; 1 M. & G. 306; Donerill v. Brown, 3 Bro. C. C. 641; Smith v. Clay, in note to the same case; Ex parte Hislop, 1 De G. M. & G. 477; Anon. 7 Ves. 222; Taylor v. Popham, 15 Ves. 72; Ex parte Mackenna and others (assignees); Ex parte the Bank of England, re Streatfield, Laurence and Co., 7 Jur. N. S. 668.

The LORD CHANCELLOR.-I have very little doubt how this question ought to be determined. It has been urged upon me that I must construe the word

Winding-up Act-12 & 13 Vict. c. 108, s. 33-"made" as it occurs in the particular section of this

Appeal.

The 33rd section of the Act 12 & 13 Vict. c. 108, enacts, that no motion for a rehearing shall be given after the expiration of three weeks after the order complained of shall have been "made: Held, that the word "made" means the day on which the order is pronounced.

Although the order may not have been drawn up, passed, or entered, it is competent for the app. to give notice of appeal without embodying in the notice the very terms of the order. A notice that the app. intends to appeal in the particular matter on a particular day, is sufficient to meet the requirement of the statute.

Act of Parliament as equivalent to orally pronounced. If I accede to that argument I must adopt a construction in conformity with the policy of the Act, and, having regard to the policy of the Act, it would undoubtedly incline me to adopt a construction unfavourable to the party using that argument, because the policy of the Act unquestionably was, that these proceedings should be determined with the greatest expedition. You cannot have a stronger exponent of the strict policy of the Act, and the binding operation of the words it has used, than the decision of Lord Cottenham in Ex parte Saunderson, wherein, although it is the universal principle that words in an Act of Parliament shall be construed prospectively and not retrospecA preliminary objection was taken on this appeal, tively, he finds himself compelled to give those words a which was, whether the app. had given the notice of retrospective operation which limit the capacity of appeal within the time prescribed by the Act of the appeal to the party injured to only twenty-four hours 12 & 13 Vict. c. 108, s. 33. The section enacts, from and after the passing of the Act. But I am willing "That no notice of motion for a rehearing before to take the question which I have to determine without the Lord Chancellor of Great Britain or Ireland res- any special regard to the policy of this particular statute, pectively, of any order of the Master of the Rolls and it is fairer to the app. himself so to take it than to in England or Ireland, or of any of the Vice-pray in aid the general intent of the Act. I regard it Chancellors in England, under the said Act or this as a question of very considerable importance. If I Act, shall be given after the expiration of three weeks after the order complained of shall have been made." The app. Mr. Hookey, the manager of the Risca Coal and Iron Company, sought to appeal from a decision of Romilly, M. R., who made an order, dated the 21st Dec. 1861, giving his sanction to a compromise of a claim made against the company (which was in course of being wound-up). The terms of the compromise were objected to by the app., who was a contributory, and contended that the court had no jurisdiction to sanction the compromise. The notice of appeal was served within three weeks from the time of the drawing up of the order, but not from the time when it was drawn up by the officer of the court. The question had been raised before the Lords Justices, who differed in opinion in reference to

permitted any doubt to be entertained upon it, the extent of that doubt it is scarcely possible to foresee. It might bring the whole of the computation of the periods of time defined by the orders or by the statutes into a great degree of inconvenient uncertainty. It is better therefore to abide by one certain and positive rule, and I have not the least doubt that that rule is to be derived from the uniform principle and practice of the court that has been abided by without any variation, and which has always determined the date of these orders. An order of the Court of Ch., however long a time may elapse in the ministerial duty of drawing up that order, and committing it to paper, is made to bear date on the day when it is pronounced by the court. That date appears in the document in which the order is recorded, and the principle therefore

CHAN.]

BARRY V. STEVENS.

[ROLLA

passed and entered the order, and no one has doubted that the not complying with the statement of the very words of the order does not in the smallest degree prejudice or affect the appeal In whatever way I regard it, I find it a convenient and useful rule; a rule that will be attended with no prejudice consistent with the abiding by the date of the order; and I must, therefore, hold that the word "made" must be construed that the order produced, been made on the day on which it is dated. That is the judicial interpretation and the useful interpresstion of the language, and that is the determination the I make in the present case. All, therefore, I can express is, that, it being contended before me that the notice of motion to discharge an order pronounced by the M. R., on the 21st Dec. 1861, is too late, by reason of the notice not having been given until the time when it was served, I am of that opinion, and declare that the order of the M. R. must be taken, within the meaning of the statute, and within the meaning of the practice of the court, to have been made on the day on which it is dated. There will be no necessity, I suppose, for an order to be drawn up.

ROLLS COURT.

Reported by H. R. YOUNG, Esq., Barrister-at-Law.

June 24 and 25.
BARRY v. STEVENS.

Author and publisher-Bill for discovery, in junction and account-Demurrer-Costs-Amend

ment.

involves of necessity this consequence, that the order must be accepted for all purposes as having been made on the day on which it is dated. The present order is stated on the face of it to having been pronounced and made on the 21st Dec. I must take it to have been made on that day within the meaning of the general orders of the court, and within the true meaning and convenient interpretation of the language of this Act of Parliament. The greatest possible confusion would arise were it other-and having a date, shall be judicially taken to have wise. In fact, all persons dating their rights from the time of the order being pronounced would be thrown into a state of the most inconvenient uncertainty if they could not exhibit to another court, or produce for the purpose of any legal inquiry, the order containing the directions of the court, with the date, in the certainty that that date will be accepted as the time when the order is made. There would be no possible mode by which one could regulate the application of Acts of Parliament and the limitation of time, unless you abide by a general principle of interpretation. The same rule of interpretation would prevail at law, and it is very desirable that there should be uniformity of practice between all the courts on such a subject. But that which I hold to be involved is the principle and rule of the court, which makes the order, whenever drawn up and entered, to bear date at the day when it is pronounced by the court, and I hold that rule to be one which is in perfect conformity with the whole theory of judicial procedure. The theory of judicial procedure is, that undoubtedly the cogent and binding effect of the order begins immediately from the time the order is pronounced by the lips of the judge; and if that could be done physically which legally is supposed to be done, and which one would desire if it were possible to have done, every order should be completed on the spot, written out by the judicial officer, and in curia before the court rises, and delivered to the parties. That is the unquestionable theory of judicial procedure, and in conformity with the theory of the rule defining the date of the order. That is the delivery of the order; that is the time when the order is made, før the two words must be considered as equivalent, and capable of being substituted the one for the other. The mere deficiency of the words of the court by writing and reducing them into a form in which they can be made evidence, is a ministerial operation which, according to the true theory, succeeds instanter the delivery of the order by the judge, and must be, in point of fact, nothing in the world more than the phy-Held, that a demurrer to the bill for want of equity sical embodiment on the spot by the court of the words which the judge had used. I think, therefore, I shall abide by a rule of convenience. Certainty in the matter is convenience, certainty you attain by abiding by the date of the order; uncertainty you introduce when you depart from that date. A variation from the common rule of abiding by the record is introduced by a departure from that date. Great laxity of practice would be introduced and encouraged by a departure from that date. In the present case there is no inconvenience, nor is there any injustice. The Act of Parliament is speaking of the conduct of those who are parties to a proceeding in court, and it places on the dissatisfied party the obligation at once of giving notice of his intention to appeal. That intention may be legitimately carried into effect without embodying in the notice the very terms of the order; a notice that he intends to appeal from the order made by the judge, in such and such a matter on a particular day, is quite sufficient to answer the requisites of the parties. If the form of appeal is by petition, nothing is more common than for the app. petitioner to represent on the face of the petition that he is unable to state the very terms of the order by reason of the opposite party not having yet drawn up,

The plt., an author. filed a bill against the deft, will
whom he had made an agreement for the publication
of a book which he had written. The bill prayed
a discovery of the number of copies sold; an at-
count of the moneys arising from the sale; and as
injunction to restrain an action by the publisher for
the balance of his account as rendered.
The bill stated the account as delivered; but contained
no allegation of fraud or mistake, though it did
state to the effect that the plt. believed the deft, had
sold more copies than was agreed upon betwees
them, and more than appeared from the accounts
furnished to him. The case made by the bill
showed that the whole matter between the parties
was confined within certain limits, and that the
demand was a mere money one:

must be allowed with costs: and as no amendment could be made in the bill without inserting a charge of fraud, to insert which, by way of amendment, this court never gives leave, liberty to amend was refused.

This case now came on upen a demurrer to the plt.'s bill for want of equity. The plt. (who filed the bill himself) was Mr. William Whittaker Barry, barrister at-law, and the author of "A Treatise on the Stats tory Jurisdiction of the Court of Chancery." The defts. were the Messrs. Stevens and Co., the lar publishers of Bell-yard. It appeared from the bill that the plt. had applied to the defts. to print and publish the above-named work for him; and that accordingly an agreement or memorandum of an agreement in writing was entered into and executed, which was of the date and to the purport following: that is to say"Memorandum of agreement made and entered into this 29th day of August 1860, between Wm. Whittaker Barry, of Lincoln's-inn, Esq., barrister-at-law of the one part, and Valentine Stevens and Richard Stevets, of Bell-yard, Lincoln's-inn, in the county of Middlesex, law booksellers and copartners, of the other part. The said W. W. Barry being the author of a certain work, entitled "A Treatise on the Statutory Jurisdiction of

ROLLS.]

BARRY v. STEVENS.

[ROLLS.

the Court of Chancery, with an Appendix of Prece- | the assumption of 500 copies only of the said work dents," the cost of paper and printing of the said work to be defrayed by the said W. W. Barry. It is hereby agreed that the said V. and R. Stevens, their heirs, executors and administrators, shall publish the said work, and shall account to the said W. W. Barry annually (viz. to the 31st day of Dec. in each year) for all copies sold at the wholesale booksellers' price, except for the copies subscribed for by the trade, which are to be accounted for at 51. per cent. less than the wholesale booksellers' price, and twenty-five copies as twenty-four when so subscribed for, and shall deduct a commission of 10l. per cent. for their trouble in managing the same, advertising on the wrappers of their reports and in their sheet lists of the publication, and for any losses they may sustain in giving credit upon the same, and that the balance of the said account shall be paid over to the said W. W. Barry on the 1st day of April in each year. The advertising the said work to be done by and at the expense of the said W. W. Barry. It is hereby further agreed that, in the event of any future edition or editions of the said work being required, the said V. and R. Stevens, their heirs, executors and administrators, shall have the option of publishing the same upon such terms as may hereafter be agreed upon.

"V. and R. STEVENS. "W. W. BARRY." The defts. published the plt.'s work, which was duly advertised, and was favourably reviewed in several quarters, both by the legal and the general press.

The bill then stated a vast amount of correspondence between the plt. and defts., to which, however, for the purposes of this report, it is not material more particularly to refer; and also that, on the 7th March 1862, the defts. furnished to Mr. Barry the following statement of their account with him:BARRY'S STATUTORY JURISDICTION.

Dr. 1861.

:

Dec. 31.-Advertising,,wareroom and in.......... 13 19 Commission on sales, at 10 per cent..... 1 19 0

having been printed, the credit side of the account so rendered as aforesaid was correct. The plt., however, being still under the impression that there must have been a larger sale of the work during the year 1861 than forty-nine copies, requested to have produced to him the bills for the paper and printing, and a voucher for the number of copies printed, and also a detailed list of the forty-nine copies alleged to have been sold, but such vouchers and detailed list were refused in the first instance, at the plt.'s chambers, on Monday, the 10th March 1862, by the deft. Robert Wm. Haynes, who stated that he made such refusal on behalf of himself and his partners; and on the next, viz. Tuesday, the 11th March 1862, by the deft. Richard Stevens, in the counting-house of the defts. During the interview, however, with the deft. Richard Stevens, he said he would look through the books himself, and make out a detailed list of the thirty-nine copies mentioned in the said account, being those other than subscription copies, and the said last-named deft. promised to bring such list to the plt., at his chambers in two or three days. However, about an hour or two after the plt. returned to his chambers, on the said 11th March 1862, he received from the deft. R. Stevens a letter, of that date, of which the following is a copy:

"26, Bell yard, Lincoln's-inn, W.C., "London, March 11, 1862. "Dear Sir,-Upon consultation with my partners respecting your account, we consider that is all we can be called upon to supply. There were 500 copies printed, of which

66 39 presentation copies.

49 sold.

412 on hand at Christmas.

500

"If you will show this statement of account to any friend or publisher, we think you will be satisfied that that is all you can require. In fact, it is the usual account rendered to all authors whose books are published on commission, and who have hitherto been satisfied with such account.-I remain (for self and partners), your obedient servant, “R. STEVENS. "W. W. Barry."

·

In reply to that letter the plt. wrote as follows: "15, Old-square, March 11, 1862. "Dear Sir, I am in receipt of your letter of the 11th inst., just delivered. I regret that the firm should decline my just right of having the particulars of the sale of the forty-nine copies of my work, for without such information I am unable to test the accu

racy of the account. I still, therefore, demand a detailed account of the sale of copies, which, after your promise just now, I am surprised you should refuse. I also demand the production of the printer's bill, and also that of the stationer, and the account or document as to the binding delivered to the firm by Westley and Co. in February last, as vouchers for payment, and also to show the numbers of copies printed. If I entertain any undue suspicions in this matter, I must say they are owing to the course adopted by the firm. Until these requirements are complied with, I shall hold that I have no account rendered which I feel bound to recognise.-Yours obediently,

"W. W. BARRY.

"Messrs. Stevens, Son and Haynes." Several other letters passed between the parties, but it is not necessary to refer to them. On March 18, 1862, the plt. received from the defts. the following letter:

The bill alleged that, as the said account showed a sale of only forty-nine copies of the book, the plt. was at once convinced that there must be some mistake or error in the matter; and he accordingly requested the "26, Bell-yard, Lincoln's-inn, W.C. defts. to allow him to examine the stock of the said "London, 18th March 1862. work which remained unsold, which they consented to Sir, We have already mentioned to you the do, and the result of such investigation was, that on accounts in the usual manner in this matter. Simply

on being satisfied on that head, I shall be prepared to
say what is due to your clients.—I remain, dear Sir,
yours obediently,
"W. W. BARRY."

After some further correspondence, it appeared that on the 10th April 1862 the plt. was served at his chambers with a writ of summons in an action in the Court of Ex. at the suit of the defts. Valentina Stevens and R. Stevens, claiming 125. 38. 9d. for debt, and 251. for costs. The particulars of that claim were these: "Amount of account rendered by the phs. to the deft. from the 28th Jan. 1861, to the 31st of Dec. 1861, 125l. 3s. 9d.”

The declaration was afterwards duly delivered in the action. On the 9th May 1862 the plt. took out a summons requiring the defts. V. Stevens and R. Stevens to attend the judge at chambers on Monday the 19th 1 14 0 May 1862 to show cause why they should not answer an affidavit stating what documents were in their pas session or power relating to the matters in dispute, or what they knew as to the custody in which they or any of them were, and whether they objected (and if so, on what grounds) to the production of such as were their possession or power.

ROLLS.]

BARRY V. STEVENS.

[ROLLS.

was one of mere account only, and therefore he intended | work then remaining unsold might be ordered to be to take out a summons for the plt. to show cause why delivered over to the plt.: the said action should not be referred to one of the masters of the court, and thereupon the learned judge declined to make any further order for the further discovery of documents.

On the said 28th May 1862, the defts. V. and R. Stevens took out another summons, requiring the plt. to attend the judge at chambers on the 29th May 1862, to show cause why the said action should not be referred to the certificate of one of the masters of the said Court of Ex.

On the 29th May 1862 the said last-mentioned summons came on to be heard before Bramwell, B., whereupon the learned judge made an order in the terms of such summons, and at the said time the said summons which had been so taken out by the plt. on the 27th May 1862 came on again by way of adjournment, and the plt. again applied for further discovery of documents sought to be obtained thereby, whereupon the learned baron declined to make any order in that behalf, because the said action was referred.

That in the meantime the defts. V. and R. Stevens might be restrained by the order and injunction of this honourable court from proceeding to carry out the hereinbefore-mentioned order of reference to one of the masters of the Court of Ex., dated the 29th May 1862, and from taking any further step or proceeding in the said action which had been so commenced by them as aforesaid:

That for the several purposes aforesaid all proper inquiries might be made, and accounts taken and directions given, and that the defts. might be decreed to pay the costs of this suit:

That the plt. might have such further or other relief as the nature of the case might require.

Selwyn, Q.C. and Beavan appeared in support of the demurrer, and contended that the bill contained no allegation of fraud or mistake, and as the whole question in dispute was as to the accuracy or otherwise of a mere money demand by the defts. against the plt., involving no difficulty in taking the account, the The bill then alleged that the plt. believed that the sole and proper jurisdiction to determine the matter herein before-mentioned order for reference was obtained was the Court of Ex. There were, in fact, no mutual by the said defts. V. and R. Stevens, with a view of payments or accounts between the parties, and unless preventing the plt. from obtaining any effectual dis-that were so a bill of account would not lie here. They covery of documents under any proceeding in the said action, and with the view also of preventing the plt. from pleading to the said action, and from raising any defence he might have to the same, and also from interrogating the said defts. with reference to the matters in dispute in the said action:

That the plt. also believed that if the said defts. V. and R. Stevens were allowed to proceed with the trial of their said alleged demand in manner aforesaid, the master would decide that he had no jurisdiction to take into consideration any other matters than those of mere account, viz. only the items on the debit side of the account so rendered to the plt. as hereinbefore stated, and that the question as to the number of copies printed being one of fact, could not be properly raised before him under the terms of the said reference, and consequently that, under the circumstances aforesaid, unless the said defts. V. and R. Stevens were restrained by the order and injunction of this court from further proceeding in the said action, the plt., though having a just cause of defence to the same on the merits, would be wholly without remedy.

The bill finally stated that the plt. had frequently applied to and requested the defts. to render a true and proper account of the number of copies which had been sold by them of the before-mentioned work, and also to produce the vouchers for the number of copies printed, and for the cost of paper and printing of the same work; but the defts. had refused, and still refused, to comply with such applications and requests.

The bill then prayed that it might be ascertained by and under the direction of this honourable court, how many copies were printed of the plt.'s work, entitled, "A Treatise on the Statutory Jurisdiction of the Court of Chancery, with an Appendix of Precedents:

That an account might be taken of the number of copies of the pit.'s book which had been sold by the defts., and of the sums of money which had been received in respect of the same, and that an account might also be taken of the sums of money which had been paid or expended by the defts. in and ahout the paper, printing and binding and advertising of the said work or otherwise, and that the balance (if any) which might appear to be due from the defts. on the taking of such account might be directed to be paid to the plt.; the plt. being ready and willing, and thereby offering to pay to the defts. the balance (if any) which might be found due to them on the taking of such account, and that the residue of the stock of the said

also insisted that the plt. was not entitled to the discovery or injunction which he asked.

The plt. appeared in person, and relied upon the statements in the bill, as above set forth and referred to, as in themselves sufficient to show that the defts. were his agents for the sale of his work; and being so, they were bound to render to him full accounts of such sales, and of the printing and publishing, which should be quite satisfactory to him. He said they had not done so; and that, according to the rules and practice of the common law courts, he was, under the circumstances already stated, precluded from obtaining the full discovery he sought. In fact, such discovery could only be obtained through the aid of this court. He admitted that his bill contained no allegation of fraud-but explained that his reason for not charging that was out of regard to the high character of the defts.

The M. R. having intimated that he was of opinion that the plt. was not entitled to the relief which he prayed, so far as related to the injunction and discovery, said he would hear a reply on the question whether the relief by way of account could be granted.

Selwyn, Q.C. was therefore heard in reply on that part of the case.

The following authorities were cited in the arguments:-Dinwiddie v. Bailey, 6 Ves. 136; Frietus v. Dos Santos, 1 Y. & J. 574; King v. Rossett, 2 Y. & J. 33; Fluker v. Taylor, 3 Drew. 183; Phillips v. Phillips, 9 Hare, 472; Padwick v. Stanley, Ib. 627; Darthez v. Clemens, 6 Beav. 168; O'Connor v. Spaight, 1 Sch. & Lef. 309; M'Kenzie v. Johnston, 4 Mad. 373; Foley v. Hill, 2 H. L. Ca. 35.

June 25.-The MASTER of the ROLLS.-Upon perusing the bill in this case I am of opinion that, on the allegations contained in it, it cannot be supported. The case is, in truth, one of a mere money demand, which arose in this way: The defts. entered into a contract with the plt. to publish and sell for him 500 copies of a work which he had written. That contract was made upon certain terms. The defts. having sold some of the 500 copies of the work, rendered to the plt. an account of their expenses and of the sales, and subsequently brought an action at law against the plt. here, for the balance due to them on their account as rendered. It is, I think, a matter of regret that the rules, or what I understand to be the rules, of the courts of common law, under the new Procedure Acts in those courts, for regulating the discovery and production of documents, are not so extensive as our rules