tion made to the learned judge was of a very peculiar character. Mr. Charles Russell, as counsel for the petitioners at the pending trial of the Taunton Election Petition, asked the interference of the judge for the purpose of obtaining from the Post Office not any specific telegraphic message, but the telegrams en masse, which passed through the office at Taunton during a stated period of time. Mr. Justice Grove, though not doubting in his own mind what answer he ought to make to this request, consulted his brother election judges, and, having been fortified by their opinion, refused either to interfere to compel the production of these telegrams, or even to say anything to the officials at the Post Office to procure their production. Upon this application and the judgment thus given we must first observe that, apart altogether from the question of public policy involved, no judge and no Court of Law or Equity, could, in the face of the recent case of Crowther v. Appelby, 43 Law J. Rep. N. S. C. P. 7, on which we commented last week, venture to compel by threat of fine or imprisonment any servant of the Crown to produce any document contrary to the orders of the Crown as expressed through the proper officer. If the secretary of a railway company can refuse with impunity to produce a document because his masters have prohibited him from doing so, a fortiori would a servant of the Crown be protected. Probably, also, it would be held that copy telegrams in the custody of the State stand upon the same footing as secrets of State, State papers, and communications between Government and its officers. But it might be that the Post Office authorities would declare themselves ready to act exactly as the judge might in the exercise of his discretion direct, thus throwing the responsibility of production or non-production on the judge. Evidently this probability was in the mind of Mr. Justice Grove, when he expressed his opinion that he ought not even to say anything to the Post Office officials to procure the production of the copy telegrams. Assuming this to be the position taken up by the Post Office officials, we come to the question whether it is expedient or proper that copy telegrams en masse should be produced from the custody of the Post Office in a Court of Jus

tice. We are not speaking of messages identified by the names of the parties by and to whom they have been sent, but of the whole lot of messages transmitted through a particular office in a given space of time. Telegraphy has opened up many new questions of law and policy, but such a question as this can be resolved on principles trite and familiar. Where the Government provides public means of communication open to all persons, and prohibits private enterprise directed to a similar object, the Government by implication pledges itself to the duty of keeping secret that which is entrusted to it for the purpose of communication. We need not recall the debates which arose on the conduct of Sir James Graham as Home Secretary in disregarding this rule, and disclosing the contents of the Mazzini letters seized during transmission through the Post Office. But between the interception and disclosure of a letter and the revelation of a telegram there is no sort of distinction. The Legislature also has expressed its opinion very clearly on the subject. By 26 & 27 Vict. c. 112, s. 45, a penalty not exceeding 201. was imposed on any person in the employ of a telegraphic company improperly divulging the purport of a message; and by 31 & 32 Vict. c. 110, s. 20, any person in the Post Office disclosing the contents of a telegraphic message, contrary to his duty, is declared to be guilty of a misdemeanour punishable with twelve months' imprison

ment.

In reliance on the general principle already stated, and on the recognition of it by the Legislature, thousands of persons send telegraphic messages which could not be revealed to the public without damage to the feelings, the reputation, and the property of the senders, the receivers, or third parties; and it is manifestly better that election petitions should break down, actions at law fail, and honest defences collapse, than that such public mischiefs as these should be encountered. The proposition made at Taunton that the mass of telegraphic messages should be examined by one counsel on either side, betrays a very clear appreciation of the objectionable nature of the proposal made to the Court.

It is further to be observed that the application for the production of telegrams en masse is really an application not for evidence, but for discovery of evi

dence; and discovery from utter strangers to the matter sub judice is altogether unknown to the law. A subpoena duces tecum presupposes knowledge of the existence of a particular document, and ability to specify and define the document. Here it was not known or proved that there were any telegrams which could or would ultimately be made evidence in the cause. There was no more than an expectation that something might turn up. But in a suit between A and B no Court has jurisdiction to call upon C, a mere stranger to the parties, to discover all papers in his possession, for the purpose of seeing whether by chance he has some document relating to the matter in issue.

Clear as we take the case to be against applications of this sort, and much as we welcome the decision of the judge refusing this particular one, we believe that in the trial of at least one election petition that at Coventry-some use of telegrams not altogether unlike to that desired by counsel for the petitioners at Taunton was allowed. We have not the material for an exact account of what was done on that occasion, but probably the cases are distinguishable. At any rate we may take it that for the future the judges will follow the precedent established by Mr. Justice Grove.-Law Jour

nal.

CANADA REPORTS.

ONTARIO.

COMMON LAW CHAMBERS.

(Reported by Mr. H. J. Scott, B.A., Student-at-Law.)

MCMASTER V. BEATTIE..

Defence for time-Striking out false plea-34 Vict. cap. 12, sec. 8.

Held, that a plea pleaded merely for time, and admitted in a proceeding in the cause to be false in fact, will be struck out under 34 Vict. cap. 12, sec. 8, and leave given to sign final judgment.

This was an action on a promissory note, plea-payment. After issue joined, plaintiff examined defendant, under sec. 29 of Administration of Justice Act, 1873, when defendant admitted that he had not paid the note, and that the defence was put in only to gain time. An application to strike out the plea and all subsequent proceedings, under sec. 8 of 34 Vict. cap. 12, and enter final judgment, was granted.

[March 7, 1874.-MR. DALTON.] This suit was on a promissory note, and the plea payment. The plaintiff joined issue on this plea, and then, under the Administration of Justice

[C. L. Cham.

Act, obtained an order to examine one of the defendants. At the examination this defendant swore that the note had not been paidthat the defence was merely put in for timeand that he had given instructions to his attorney to put in this same defence for the other two defendants.

Under these circumstances the plaintiff obtained a summons to strike out the plea, and set aside all subsequent proceedings, with costs plea was for the purpose of delay., against the defendants, on the ground that the

The

D. B. Read, Q. C., showed cause. The Courts had no jurisdiction before the Administration of Justice Act to entertain an application of this sort, and that Act does not give them jurisdiction. There is no rule of law requiring pleadings to be verified by affidavit, except in cases of abatement, and allowing this application would be equivalent to introducing such a rule. Courts have continually held that they will not try the truth of pleadings by affidavits on chamber applications: Smith v Blackwell, 4 Bing., 512; Nutt v Rush, 4 Exch., 490; Levy v Railton, 14 Q. B. N. S., 418; Rawstorm v Gandell, 15 M. & W., 304; Phillips v Clagett, 11 M. & W., 84; also Archbold's Q. B, Practice, pp. 292-297, and Gibson v Winter, 2 N. & M., 737. Section 8 of 34 Vict. cap. 12, under which this application is made, was intended only for the case provided for in the former part of the section; that, namely, of several pleas being pleaded; and the whole section should be read and construed together. Even if meant to apply to the case of a single plea, in this case the plaintiff having joined issue, and thus having admitted the plea to be a good one, cannot now come in and try to set it aside. As to the intention of the Administration of Justice Act in giving power to examine, the 24th, 25th, and 29th sections must be read together, and from them it is very evident that the examination is to have reference only to matters to come into question at the tral of the cause. If the Legislature did not mean this, why did it give the power to examine only after issue joined ? It will be a fraud on the statute, if it is turned to this use. The effect will be to do away with defences for time; and although it may be a question whether this would not be a good thing, still the Court ought not to do so without the express direction of the Legislature, as it will create a very great change in the practice of the Court.

J. K. Kerr, contra.-The plea is a fraud upon the Court, and ought not to be allowed to stand. Under the Common Law Procedure Act, sec

119, there might perhaps be some doubt as to the propriety of striking out the plea, as that only gave power to strike ont pleas "so framed" as to embarrass or delay. But the Common Law Procedure Amendment Act, 34 Vict. cap. 12, goes further, and gives power to strike out any plea upon the ground of embarrassment or delay, and thus extends to the whole plea, and not merely to its form. As to the rule before the Administration of Justice Act, that the Court would not decide as to the truth of pleadings regular in form previous to the trial, the reason was, that it might not be put to the trouble of deciding between conflicting affidavits, and also that there might be no temptation to a defendant to put in affidavits on which he would have no cross-examination. This does not now apply, as there are no conflicting affidavits, and the evidence is taken in the same way as at a trial. There always was at Common Law, irrespective of statutory enactments, a rule that the Court would strike out sham pleas, the only difficulty being the proving them to be sham: Ch. Arch. Prac., pp. 292-297, and the cases there cited; Gordon v. Hassard, 9 Ir. C. L. Rep., appendix, 21; Stokes v Hartnett, 10 Ir. C. L. Rep., appendix, 20 Bank v. Jordan, 7 Ir. Jur. N. S., 28; Leathly v. Carey, 8 Ir. C. L. Rep., appendix, 1; Nutt v. Rush, 4 Exchequer, 490. As to their having pleaded over this is a case of the discovery of new facts, and we have availed ourselves at the very earliest possible moment of the power of obtaining the information. The Legislature has not given this power until issue is joined, in order to prevent its being used as a means of discovering some defence, and also that it might not come to be used as a matter of course, and thus greatly exhance the expenses of a suit.

Mr. DALTON.-This is an application to strike out the plea of the defendants, on the ground that it is false and merely for delay.

The action is against the maker and two endorsers of a promissory note. The plea by all the defendants is payment before action. Issue was joined by the plaintiff on the plea. Since then the plaintiff has caused the defendant, Beattie, the maker of the note, to be examined under the Administration of Justice Act of 1873, and this is his examination.-"I am one of the Defendants. I made the promissory note sued on in this action for $420. I made it in favor of Mr. Robbs, I think. I know that he and O'Dwyer are endorsers on the note. I know that the plaintiffs are the holders of his note. I did not pay this note, nor did

[C. L. Cham.

the other defendants. I gave instructions to defend this suit for all three defendants. The object of the defence is to gain time to pay the amount. The whole amount, $420, and interest, is still due from the Defendants to the plaintiffs."

Upon this the plaintiff has moved to strike out the defendants' plea as false and pleaded for delay, upon the admission of the defendant himself made in the suit.

I think I ought to make the summons absolute.

At one time, undoubtedly, it was considered that the Court had a jurisdiction to strike out the plea of a defendant, and allow the plaintiff to sign judgment where it manifestly appeared that the plea was false. Rickly v Proone, 1 B. & C, 286, was a case of this kind. There, to a declaration for use and occupation, the defendant pleaded that he had delivered certain named goods to the plaintiff, as "satisfaction." The plea was struck out, upon an affidavit that it was false-the defendant not filing any counter affidavit. I believe that this is not the law now, and that the Court at this day does not feel that it has jurisdiction to force the defendant to verify his plea by affidavit, or to try on affidavits the truth of the plea-the law having assigned a different tribunal for such trial. This was settled by Mornington v. Becket, 2 B. & C. 81, and Smith v. Backwell 4 Bing., 512. These cases have been followed ever since, and no doubt the result from the cases of the present law is correctly stated in Arch. Prac. 11 ed, 291, that "the Judge will not interfere and strike out a plea upon the mere ground of its being false, although the plaintiff swear that it is in every respect so." Thus in La Forest v. Langa, 4 D. P. C. 642, a defendant pleaded that the bill sued on was outstanding in the hands of a third per son, and upon affidavit that the plea was wholly false, and a production of a letter of the defendant in proof of it, in which the defendant requested from the plaintiff time for payment, it was said by Tindal, C. J., on a motion to strike out the plea,—“It is a plea upon which issue may be taken, and if we were to allow this rule, we should in effect be trying the case upon affidavit."

All this relates to pleas on which a single is. sue may be taken, and the reason which runs through the cases is this alone, that to strike out such a plea is an assumption by the Court of the power to try on affidavit that which, by the law, is to be tried by jury.

But there is another class of cases, viz., those where, from the form or substance of the plea,

C. L. Cham.]

a distinct and single issue cannot be taken, and in such cases it has always been the prac. tice to strike out pleas manifestly false. 4 Ex. 490, and 14 Q. B. 418 are cases of this kind. The cases are numerous. A single instance will now how far the Courts have gone, and how much the falsity of the plea has influenced the mnd of the Court beyond all other consideraations. In Smith v. Hardy, 8 Bing. 435, to debt on a judgment, the defendant pleaded a release under seal, which had been destroyed by accident. The Court allowed the plaintiff to sign julginent on an affidavit that the plea was false; but it will be observed that here the plea was good in form and substance.

The present case, as it seems to me, stands clear from all these. I am not asked to try the truth of the plea upon affidavit, and it is not necessary to say that I could act upon the most conclusive and indisputable evidence, out of the cause itself, of its falsity. As to two of the defendants, they are not active in the defence. The defendant, Beattie, alone instructed the defence; and in his examination in this suit he says, in effect, the defendants owe the plaintiff all he claims, that the plea is false, to his knowledge, and was pleaded for delay. Then, if I can look at this examination (and why should I not), what is there to try? And when we read of sham pleas, false in fact, what are such if this be not? All the difficulties which occur in such cases as I have cited seem to be removed by the fact that there is nothing left to try; and to allow the defendant to force the plaintiff to the expense and delay of proving at a trial that which the defendant himself asserts, in this cause, to be the truth, is to be passive where action is required, to allow the forms of law to be abused in the face of the court, and that which was meant solely for a defendant's protection to be perverted to inflict the merest injustice upon the plaintiff.

The Irish cases I have been referred to show that the Courts there are much more ready to act in striking out a false plea than the Courts in England; indeed, they treat a plea that is plainly false as necessarily a sham plea.

I therefore make the summons absolute, to set aside the plea, and for leave to the plaintiff to sign final judgment.

Order accordingly.

[C. L. Cham.

NOTES OF RECENT DECISIONS.

ABERNETHY V. BEDDOME. Satisfaction piece-Signing before Attorney in the United States.

[February 25, 1874-MR. DALTON.]

In this case a satisfaction piece was executed before a practising attorney in the United States, and the attorney's affidavit made before a notary public. Order applied for to enter same on roll. Held, that signing before a practising attor ney in the United States is a sufficient compliance with Rule 64, and order accordingly.

ELMSLEY V. COSGRAVE.

Examination under A. J. Act Sec. 24-Clerk's affidavit for order.

[March 10, 1874-MR. DALTON.]

In this case, the affidavit for order to examine under A. J. Act was made by managing clerk of attorney, and stated, "I am familiar with all the proceedings in this suit."

Held, that although a managing clerk's affidavit is sufficient under the statute, still it must state that he has some particular charge of the suit.

MCCRUM V. FOLEY.

Amendment under A. J. Act-Penal action.
[March 11, 1874 MR. DALTON.]

This was a penal action against a magistrate. The notice required by section 10, Con. Stat. U. C. cap. 126, stated that the plaintiff intended bringing his action in one of the Superior Courts, while the writ was issued in the other. On an application to amend under the A. J. Act:

Held, that under the statute these forms could not be departed from, and that it could not be amended as if merely formal.

QUEEN EX REL. O'REILLY V. CHARLTON. Amendment under the A. J. Act-Quo Warranto proceeding.

[February 24, 1874-MR. DALTON.]

In this case, the fact of the relator being a candidate or a voter, who had voted or tendered his vote as required by sec. 131, 36 Vict. cap. 48, was omitted in the relation, but was contained in one of the affidavits filed.

Held, that the fact being already before the court, the relation could be amended under the A. J. Act.

CHANCERY CHAMBERS.

(Reported by T. Langton, Esq. M.A., Barrister-at-law.)

WILSON V. BLACK.

Computation of time-Con. Order 273, 406. [The REFEREE, Dec. 6.-The CHANCELLOR, Dec. 17.] Replication was filed on the 9th of October. The sittings of the court were on the 30th. Held, that replication was filed three weeks before the sittings.

If the time when the p'aintiff should join issue is not three weeks before the next hearing term at the place where the venue was laid, the dedefendant cannot succeed on a motion to dismiss.

PAXTON V. JONES.

Cross-examination-Affidavit on production-Con. Or

der 268.

[Jan. 28, 1874.-The REFEREE.]

An affidavit on production is not within the provisions of Order 268, and therefore the party making it does not thereby become liable to cross-examination upon it, except so far as this can be had by examination for discovery under Order 138.

Only one examination of a party under Order 138 can be had.

LONG V. LONG.

Sequestration- Con. Order.

[Jan. 30, 1874.-The REFEREE.]

To entitle a party to the issue of a writ of sequestration for non-payment of money, it is not now necessary to show that the order for payment and a demand thereunder have been personally served on the party ordered to pay.

MURCHESON V. DONOHOE. Contempt-Married woman-Liability to attachment35 Vict. c. 16, Ont.

[February 17, 1874.-The REFEREE.]

A married woman, a defendant, living with her husband, was ordered, as administratrix of a former husband, to bring certain accounts into the Master's office, in a suit in which her husband was joined as a co-defendant. On an application to commit her for disobedience of the order, it was contended that the rule laid down in Maughan v. Wilkes, 1 Chy. Ch. 91, that the husband must answer for his wife's de

[Chan. Cham.

fault unless he showed some ground of exemption, was in effect abrogated by 35 Vict. c. 16 (Ont.), which renders married women liable for their separate engagements in certain cases.

Held, that sec. 8 of this Act was not appli cable in the present case, where the marriage took place before the passing of the Act, and that the other sections did not affect the rale.

It was also contended that the reason for the rule in this instance was wanting, as it was shown that the married woman was a woman of great force of character, and not, in fact, under the control of her husband.

Held, that the husband must satisfy the court that he has used his best endeavours to get his wife to obey the order before he will be discharged from his liability to attachment.

BENNETTO V. BENNETTO.
Partition Act-32 Vict. c. 33 (Ont.)

[March 16, 1874.—BLAKE, V. C.] The Partition Act of 1869 only applies to cases in which some common title in the petitioner and respondents to the land in question is admitted.

Where it appeared, from the statements in the petition, that two of several respondents claimed to be entitled absolutely to part of the lands sought to be partitioned, and that the petitioners contested such claim,

Held, the proper mode of proceeding as against these respondents was by bill in the ordinary way.

HAMELYN V. White.

Production - Communications between solicitor and client-Documents in use in business.

[March 9, 1874.-STRONG, V. C.] Communications between solicitor and client are privileged, no matter at what time made, so long as they are professional and made in a professional character. (McDonald v. Putnam, 11 Gr. 258 not followed.)

The following clause in an affidavit on production was held a sufficient statement of the nature of the document produced:-" I object to produce the documents set forth in the second part of the first schedule, on the ground that, being communications between solicitor and client, they are privileged.

A defendant was ordered to permit the inspection by the plaintiff of books in daily use in the defendant's business, which he objected to produce on that account, but which he was willing to produce at the hearing.