1841.

RUTTER

v.

CHAPMAN.

But secondly, the rule can only reasonably be applied Exch. of Pleas, to documents which are in the possession or within the control of the party giving the notice, and of which, therefore, he is able to give the other party an inspection. It can only apply to cases in which the form of notice subjoined to the rule, or one to the like effect, can be given. [Alderson, B.-There is nothing in the terms of the rule so to limit its operation: the difficulty of access to the document may, indeed, be an answer to the application when before the Judge. Parke, B.-If the rule were to be so restricted, parties would always evade it by setting up a lien in some third person.] Why should the party be called upon to admit that of which an inspection cannot be afforded him? The rule assumes that he will have an opportunity of admitting it on inspection, without an application to a Judge. The notice in this case would clearly have been absurd and unavailing. [Alderson, B.—When you ask to admit a copy, that equally involves the power of seeing that it is a copy, that is, of seeing the original. The meaning of the rule was, that every person should have an opportunity of making an admission of documentary evidence, and so saving expense. We ought rather to enlarge than restrict it.] Can it be said that the rule applies to every document in every body's hands, whether hostile or otherwise? [Parke, B.-To every document you mean to produce in evidence, and which you must therefore have the means of getting at.] It appears strange to say you shall give notice to inspect a document, when you know the other party cannot inspect it.

Cresswell (Cowling with him) contrà.-This case is clearly within both the words and the spirit of the rule. It is first objected, that this is not such a document as the rule applies to; but that objection is founded upon a fallacy. The petition is the joint and several petition of all who signed it, and therefore, as to each signature, it is a question as

1841.

RUTTER

Exch. of Pleas, to the admission of a written document. In every case it is necessary to prove something beyond the mere document itself. In the case of a bond, for example, it is necessary to prove not only the handwriting, but also the identity of the obligor. [Alderson, B.-It must always be

V.

CHAPMAN.

a compound question. Parke, B.-Both are costs of proving the document-i. e., of proving that it is the petition of the parties whose document it professes to be, that is to say, of the inhabitant householders.]-He was then stopped by the Court.

PARKE, B.-I am of opinion that this rule must be made absolute. We are called upon in this case to construe one of our general rules. It is said that we ought to limit it to cases in which the document is within the power or possession of the party who seeks to adduce it in evidence. That, however, is a qualification of the rule, which, unless we could see clearly that it was within the contemplation of its framers-which we do not-we certainly ought not to annex to it. Nothing of the kind is expressed in the rule itself, or necessarily to be implied from the terms of it. The practice established by this rule, of giving each of the parties to a cause an opportunity, before the trial, of preventing by timely admissions the expense of proving documents proposed to be given in evidence by the adverse party, is one of a most salutary nature. And the fact of the document not being in the possession or power of the party who seeks to adduce it in evidence, works no hardship upon his adversary; because, in order to obviate any mischief or hardship arising from the difficulty of access to it, the Judge has always the power to say that the document is not one which the party ought reasonably to be called upon to admit: and the result would then be, that the costs of proving it would be costs in the cause. such a case as the present, the Judge would take into his consideration whether the document was of such a nature

In

1841.

RUTTER

บ.

CHAPMAN.

that access to it might be obtained—as in the actual case, Exch. of Pleas, whether the Privy Council would have allowed an inspection of it; if there existed a positive restriction against inspecting it at all, of course he would make no order. In a case where the document is in the possession of a hostile party who refuses to produce it, so that the party giving notice to admit cannot have full knowledge of its contents, he may give a special notice; although that is not likely to be a case of frequent occurrence, because a party is not likely to aduce in evidence a document which he has not previously seen, and of the nature of which he is ignorant. It is to be observed, that the rule does not say imperatively that the notice is in all cases to follow the form there given, but that it shall be in that form, "or to the like effect;" shewing the intention of the framers of the rule, that some latitude was to be allowed where circumstances rendered a deviation from the form necessary. But there is no such limitation in the rule itself as has been contended for, and it is most beneficial to construe it generally, in order to the general diminution of expense. The rule to review the taxation must therefore be absolute.

ALDERSON, B.-I am of the same opinion. I think we ought to construe the rule liberally, and not to restrain it. The difficulty suggested in this case is provided for by the discretion given to the Judge, when the summons is heard before him. Here it would have been a reasonable term to impose upon the party requiring the admission, that, as he had obtained an inspection of the document for himself, he should obtain it for the other party.

GURNEY, B., concurred.

ROLFE, B.—I am of the same opinion, although I had at first some doubt on the subject. But for this rule, the defendant would clearly have been entitled to these costs;

1841.

RUTTER

v.

CHAPMAN.

Exch. of Pleas, the question is, does this rule entitle him to them? It is said, that these witnesses are not adduced merely to prove the fact of the signatures to the petition, but also the identity of the parties signing, and that therefore these are not the costs of proving a written document, within the meaning of the rule; but that is a circumstance which enters into the composition of all proof of this nature; and upon consideration, I think the costs to which the rule applies must mean the costs of proving the document so as to identify it in the cause. Then, secondly, is the rule limited by the fact of the document being out of the custody of the party giving the notice? I think not. He may give a notice to admit, and, if necessary, insert a special clause, stating his inability, for such and such reasons, to give an inspection of the document; a course fully authorized by the terms of the rule, that notice is to be given according to the annexed form, or "to the like effect," as far as the nature of the case admits. If the admission be refused, and the matter comes before the Judge on summons, it will then be for him to exercise his discretion upon all the facts of the case, and to make or refuse an order, as he shall deem most reasonable. Upon the whole, therefore, I concur in all respects with the rest of the Court.

Rule absolute.

FOSTER V. POINTER.

Exch. of Pleas, 1841.

May 25. In an action for libel, the Judge certify, under

has power to

the 3 & 4 Vict.

c. 24, s. 2, that the grievance for which the

action was

brought was

THIS was an action for a libel, in which, at the trial before Gurney, B., at the last Berkshire Assizes, the jury found a verdict for the plaintiff, damages one farthing. The learned Judge thereupon certified, under the stat. 3 & 4 Vict. c. 24, that the libel was wilful and malicious; and the Master, on taxation, allowed the plaintiff his full costs. In Easter Term, Ludlow, Serjt., obtained a rule to shew wilful and macause why the Master should not review his taxation, or why the certificate should not be set aside or withdrawn, contending that the learned Judge had no power under the statute to certify in an action for libel. On the 24th of May,

Erle and Gray shewed cause.- -This rule was obtained on the ground, that the stat. 3 & 4 Vict. c. 24, does not apply to cases in which it appears on the record that the act complained of was malicious; and therefore that, as malice is a necessary ingredient in every libellous publication, in order to make it the subject of an action, the certificate is in such case inoperative. If, however, in all cases where it appears by the record that the act is wilful and malicious, the plaintiff is by law entitled to his costs, the consequence would rather follow that the certificate is merely unnecessary, than that it is inoperative:-as where a battery is admitted on the record. But, in truth, the words of the statute are clear and unequivocal, and the intention of it was to take away costs in all actions of trespass or on the case, unless the Judge in his discretion should think fit to certify for costs. The argument for the defendant goes to interpolate words in the act, as if the exception were, "unless the Judge &c. shall certify, in all actions of trespass or upon the case, in which it shall not appear by the record that the act of which the plaintiff complains was

licious.

The words of the statute,

"wilful and malicious," import personal malice and ill

will to the plaintiff, as contradistinguished from the malice in

law which is es

sential to sus

tain an action

for libel.