The clerk of records and writs is not compellable to file the answer of a defendant who has refused to take an office-copy of the bill. THE Clerk of Records and Writs, in whose division this cause was, having declined to file the answer of the defendants, because they had refused to take an office-copy of the bill, a motion was made, on behalf of the defendants, that the clerk might be directed to file the answer notwithstanding such refusal. Mr. Bethell and Mr. Rogers, in support of the motion, contended that the Six Clerks, or the Clerks in Court, before their offices were abolished by 5th & 6th Vict., c. 103, had no right to impose on a party to a suit, the necessity of taking an office-copy of a pleading in the suit, nor had the Clerks of Records and Writs (to whom the duties of the Six Clerks and Clerks in Court, as officers of the Court, had been transferred,) any such right. They referred to sections 1, 2, 3, 21, 22, and 31 of the Act above mentioned; and to the 3d, 8th, and 32d of Lord Lyndhurst's Orders of the 26th of October, 1842, and the second schedule thereto. They added that the 14th rule of 11 Geo. 4 & 1 Will. 4, c. 36, s. 15, which provided that, where a defendant was in contempt in not answering, and should be able to put in his answer by borrowing or obtaining a copy of *the bill, without taking an office-copy of it, he should [*438] not be compellable to take any such copy, was not a recognition of the right in question, but was merely a bye-allusion to a practice existing in the Six Clerks' Office. The motion was not opposed. 31st January.-THE VICE-CHANCELLOR:-I believe that no one acquainted with the practice of the Court, doubts that, before the month of October last, it was the settled practice of the 1840.-Aked v. Aked. Court that an office-copy of the plaintiff's bill, should be taken by the defendant, before he could be allowed to file his answer. The order of the 28th of November, 1743, in Mr. Beame's Orders, p. 369, under the head of "Sworn Clerks and Waiting Clerks," p. 395, has this regulation: "Where any person enti tled to privilege of parliament pursuant to the Act of Parlia ment of the 12 & 13th of King William the 3d, has been served with an office-copy of the bill, such person shall not be obliged to take out or pay for any other copy of such bill upon his ap pearance thereto :" which regulation plainly shows that, but for that regulation, the defendant would have been obliged to take an office-copy of the bill upon entering his appearance. In the Cursus Cancellariæ, 2d edition, published in 1727, p. 99, there is this passage: "After the defendant has appeared, he must first take out an office-copy of the plaintiff's bill before he can answer it; which copy costs him about 12d. per [*439] sheet in the Six Clerks' *Office; and, with this copy, he ought to apply to counsel, who will advise him either to answer or to plead or demur to the plaintiff's bill." This passage directly shows what practice was one hundred and sixteen years ago: and, though it does not appear to have been founded upon any express order of Court, yet, from its long continuance, it was as binding as if it had been founded upon a positive order. The 14th rule of the 15th section of 1 Wil. 4, c. 36, clearly recognizes the practice to be binding; and, upon the spirit, though not the letter of that rule, I acted on the 27th of July, 1836, in the case of King v. Bryant, when the defendant was brought up, by habeas, for not putting in a further answer. He said he had put it in. But it was stated that the clerk in Court refused to file it, because the defendant refused to pay for an office-copy of the exceptions. I ordered that the defendant should either make an affidavit that he was unable to pay for the office-copy, or that he should pay for it. for the office-copy, and the answer was filed. The defendant paid that the defendant was not only a solicitor, but one by no means willing to do more than he was obliged to do. 1840.-Aked v. Aked. But it has been said that the Act 5 & 6 Vict. c. 103, which has abolished the office of Six Clerks, has abolished all the customs and incidents relating to it. The Act has abolished the office; but has not abolished the business transacted by means of it, or altered the mode of doing it. On the contrary, by the third section, it is enacted that the business of the Clerks of Records and Writs shall be, besides what is specified in the Act, such as the Lord Chancellor shall, in a given manner, direct: and, by the third order of the 26th of October last, *his Lordship has directed in these words: "That the [*440] Clerks of Records and Writs shall perform all such duties as have heretofore been performed by the Six Clerks, Sworn Clerks or Waiting Clerks, as officers of the Court, in relation to the several matters hereinafter mentioned; that is to say: The filing, custody, copying and amending of all informations, bills, demurrers, pleas, answers, and other pleadings and records: The entering of appearances, rules, consents, notes and memorandums of service: The certifying of appearances and proceedings: The custody of exhibits deposited for inspecting and copying: The attendance with records and exhibits on the Judges of the Courts, on the Masters in Ordinary, and at assizes or elsewhere: The enrollment of decrees and orders; and all other duties heretofore performed by the Six Clerks, Sworn Clerks or Waiting Clerks, as officers of the Court, in relation to suits and matters in equity, and not as attorneys, solicitors or agents of the parties in suits or matters in equity. How are these duties to be performed otherwise than in the way in which they were formerly performed? Can it be supposed that this order, which directs the duties to be performed, has varied the manner of performing them? For instance, must not the Clerk of Records and Writs determine whether a bill or answer *is in a proper form to be filed, by the [*441] same rule as a Six Clerk would have done? If the schedule of fees had omitted the fees upon office-copies of bills, 1840.-Aked v. Aked. there would have been some ground for the application. But the schedule has not omitted them. The Act of Parliament, in the 22d section, has declared that it is expedient that the suitors' fund shall, at all times, be kept up; and, by the 21st section, has directed that all fees should be paid into it; and it has, by the 30th and 33d sections, charged it with new expenses; but it has not said one word as to the abolition of fees formerly taken by the practice of the Court. If the Legislature had intended that those fees should have been abolished, without doubt the Act would have contained a provision to that effect. If the Lord Chancellor had intended so, the orders would have expressed that intention. But, in that respect, the Act and orders are silent. It is said that the magnitude of the fees demandable under the practice, makes this a case of great importance. Without doubt it does. But the noble and learned Lords who concurred in framing and passing the Act, must have been as well aware of that, as the solicitors of the Court, and yet were content to say nothing about abolition. When the orders were sent to me for perusal before they were signed, I never thought, for a moment, that they were intended to have such an effect as is imputed to them; and I know, from very high authority, that it was not intended that the fees authorized to be taken, by the custom of the Court, upon the filing of an answer, should be abolished. Upon the whole, my opinion is, that there is no ground for the application, and no order can be made upon it. 1841.-Stuart v. Bute. 1 1841: 13th January. *STUART v. LORD BUTE. [*442] A defendant who was required to set forth, in his answer to interrogatories, certain entries in the books of a firm, of which he was a member, stated, in his answer, that he and his co-partners had given express directions to their agent, in whose custody the books were, not to produce them to any one, or allow any stranger to inspect them, without the express authority of the defendant and his co-partners: that the books were not in the power of the defendant alone, but of the defendant and his co-partners, and that the defendant had no right or lawful power to produce them or set forth their contents, without the consent of his co-partners. Held, that the answer was insufficient, as the defendant did not state that his copartners had refused to consent to his setting forth the entries. The Master having certified that the examination put in, by the defendant, Lord Wharncliffe, to interrogatories exhibited under the decree, was insufficient, his Lordship excepted to the certificate. The first interrogatory was as follows: "Whether or no are you now engaged in partnership with Lord Ravensworth and John Bowes, Esq., or any and what person or persons, for the purpose of working and carrying on the collieries in the pleadings of this cause mentioned, or any of them, and how long have you been in such partnership?" In answer to that interrogatory, the defendant said that he was then engaged in partnership with the parties, and for the purpose mentioned, and that he had been in such partnership from the year 1809, or thereabouts, to the best of his recollection, information and belief, to the then present time. THE VICE-CHANCELLOR said that there were no limits which, of necessity, must be given to the words, "or thereabouts," and consequently that the answer to the first interrogatory was insuf ficient. The second interrogatory was as follows: *"Whether or no are the accounts and books of ac- [*443] count of the said partnership, which commenced in the |