JiaraljaU lEqmtg (Collgrtton (Sift of IE. 3. liaraljaU. 51.21. 1. 1394 CORNELL UNIVERSITY LIBRARY 924 085 501 587 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924085501587 THE LAW EELATINa TO INTERROGATORIES, PRODUCTION, INSPECTION OF DOCUMENTS AND ■DISCOVERY, AS WELL IN THE SUPEEIOE AS IN THE INFEEIOR COUETS. TOGETHER WITH AN APPENDIX OF THE ACTS, FORMS, AND ORDERS. BY WALTER S. SICHEL, M.A. AND WILLIAM CHANCE, M.A. BAEKISTERS-AT-LAW. " I know of no head of law so vague and difficult to understand and administer as Discovery." — Lord BramwelIi. ' ITfti? TToi) ircu (byi ', — Aristophanes. Aves, LONDON: STEVENS AND SONS, 119, CHANCERY LANE, f afo f wblisbOT mis 'gaoluUm, 1883. LONDON : PBINTKD BY W. I. BICHAEDSON, 4 AND 5, GREAT QUEEN STREET, LINCOLN'S INN FIELDS, W.O. TO SiE JAMES CHMLES MATHEW, Knt. ONE OF THE JUDGES OK' HER MAJESTY'S HIGH COURT OF JUSTICE. a 2 PREFACE. Weke a preface an excuse this would not have been written ; for since the Judicature Acts, the subject, never comprehensively treated, has reraained untouched. Sir James Wigram's book and Mr. Hare's are excellent treatises on principles ; the works of Mr. Pollock and Mr. Petheram relate mainly to the Evidence Amendment and Common Law Procedure Acts ; while that of Mr. Kerr preceded by some years the revolution in the practice. Discovery may be said hitherto to have deserved the reproach of Dr. Lushington, who characterised it "as in a state of darkness and confusion" (a). We are deeply sensible of the defects, as all must be of the difficulties, of our undertaking. In the endeavour to restrict excerpts of judgments to the illustration only of necessary principles, condensation is at times dangerously allied to indis- tinctness, and the bearings of the many cases are so various as to prove some obstacle to arrangement. We have aimed at producing something more than a mere digest and less bulky than a formal treatise, so as to render the book convenient for reference in judges' chambers. In pursuing the historical method we have but followed the exigencies of the theme ; the Common Law Procedure Act is still in many cases operative, as, for instance, in discovery by cor- porations other than interrogatories, and the Chancery principles (a) 27ie McGregor Laird, L. R. 1 Ad. 307. VI PREFACE. now prevail ; nor is it possible to understand what portion of old cases is still pertinent without considering under what phase of the procedure — so slowly and curiously developed — they were decided. The expressionDiscowrj/has been employed at times generally, at times to signify the Affidavit of Documents : references to Chitty's Forms and Daniell's Forms are subjoined throughout, and others, not therein contained, added in the Appendices. With regard to the New Rules of Procedure ia the Superior Courts now imminent, should the published Recommendations of the Committee be pursued, interrogatories at any rate would be allowed only by permission and direction of the Master as, under the Common Law Procedure Acts, by that of the Court ; the cases thereunder decided would thus become doubly rele- vant, though the learning as to "Time" might be swept away, and it is conceived that however the machinery be modified the old principles will still, as during three successive alterations, survive. While we write the sad news arrives that Sir George Jessel is dead. At such a time it will not be considered presumptuous to add a tribute of respectful gratitude to that great judge's elucidation of a subject which he adorned, like the many far weightier matters he handled, by the simplicity that complete strength alone secures. In conclusion, we must record our thanks to Mr. F. T. Piggott, Barrister-at-Law, for the assistance he has rendered us while passing the sheets through the press. W. S. S. W. C. The Temple, March, 1883 TABLE OF CONTENTS. PAGE INTRODUCTION. Sketch of the History of Discovery up to the Judicature Acts 1 — 17 CHAPTEE I. TIME 18—26 CHAPTER II. PARTIES. . . . . . 27—38 CHAPTER III. SUBJECT MATTER 39-140 VFhat Discovery may be resisted, and why .... 40 — 41 as irrelevant . . . • 41 — 51 as depending on the determination of an issue . . 51 — 54 as tending to incriminate 54 — 62 as professionally privileged 62 — 82 as privileged on the ground of joint possession . . 82—85 as privileged on the ground of title .... 85 — :104 as privileged on the ground of relating to one's own case exclusively . 104 — 114 miscellaneous grounds for refusing discovery . . . 114 — 121 WTien the Discovery afforded may be objected to by the party seeking it, and on wliat grownds 121 — 140 Requisites for the answer to interrogatories, sufficiency of the 122—132 Requisites for the sufficiency of the affidavit of docu- ments 133—140 viii TABLE OF CONTENTS. PAGE CHAPTER IV. PRACTICE . 141—175 CHAPTER V. APPEALS AND COSTS . . . . 176—179 CHAPTER VI. ACTION FOR DISCOVERY . . . . . 180—182 CHAPTER VII. INSPECTION OF PUBLIC DOCUMENTS . . . 183—193 APPENDICES. A.— STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. Summons (general form) ....... 195 Order for Delivery of Interrogatories 196 Form of Interrogatories, Interrogatories to support a plea" of contributory- negligence 197 Interrogatories for the examination of a widow in an action for goods sold and delivered . . . 224 Interrogatory as to a written document . . . . 198 Form of Answer to Interrogatories 199 Various Forms of Answers to Interrogatories where they are objectionable for some reason 199 — 201 Order for Affidavit as to Documents 202 Form of Affidavit as to Documents . . . , . 203 Special paragraphs therein 204 Form of Affidavit of Documents where a Company Objects to Produce Documents 205 206 Form of Objection to Produce Counsels' and Solicitors' Opinions, &c 206 TABLE OF CONTENTS. IX PAGE Form of Affidavit of Privilege of Shorthand Notes . . 207 Forms of Paragraphs in Affidavits of Documentswhere there are various grounds of objection to the production . . 208 — 210 211 212 214 215 215 216 217 218—222 Form of Order to Produce Documents for Inspection . Form of Order for Production (Underwriters') . Form of Notice, to Produce Documents .... Form of Notice to Admit Documents . Form of Notice to Produce Documents at Trial Form of Notice to Inspect Document Form of Order under Order XVI. , rule 10 Forms of Interrogatories in Chief on Commission . Form of Interrogatories for Cross-examination on Commis- sion. . . ' . Form of Orders for Particulars ..... Form of Particulars . . . • . 222—223 226 227 B.— STATUTORY FORMS IN THE COUNTY COURTS. Heading and Conclusion of Orders (general form) . 228 Form of Affidavit in support of application for Interrogatories 229 Order for Interrogatories . ... 230 Order for a Oral Examination ... . 231 Form of Affidavit in support of an application for Discovery 232 Order for Discovery . 233 Form of Affidavit of Discovery . . ... 234 Form of Notice of application for further Ord er for Production 235 Order for Production of Documents . . . . 236 Form of Notice to admit and inspect Documents . . 237 C— ACTS, RULES, AND ORDERS. Discovery generally. An Act to Amend the Law of Evidence (14 & 15 Vict. c. 99) sec. 6 238 An Act to Amend the Practice and Course of Proceeding in the High Court of Chancery (15 & 16 Vict. c. 86) sees. 10-20 238-240 The Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76) sees. 55—56 241 The Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125) sees. 46-59 241—245 TABLE OF CONTENTS. PAGE The Judicature Act, 1875 (38 S 39 Vict. c. 77). Order XVI., Eule 10 246 Order XIX., Eule 8 . ... 246 Order XXXI., Rules 1—23 246—251 Order LII., Rules 3— 4 251—252 Order XXXIII 260 Consolidated General Orders of the High Courts of Chancery. Order XV., Rules 5— 6 252 Order XLII., Rules 3— 4 ... . 252 County Court Rules, 1875, Order XIII., Rules 1—8 . . 252—255 Disclosure by Solicitors and Plaintiffs. Common Law Procedure Act, 1852, sec. 7 . . 255 Judicature Act, 1875, Order VII., Rules 1—2 . 255—256 Admission of Documents, Common Law Procedure Act, 1852, sees. 117 — 119 256 Judicature Act, 1875, Order XXXII., Rules 2—4 257 County Cowrt Rules. Order XIII., Rule 9 257—258 Order XIV., Rules 4, 5 258 Form of Notice to inspect and admit Documents in the Mayor's Court 259, 260 TABLE 0¥ CASES. Abu — Ano. PAQB v. Harrison, 4 Madd. 252 47 122 Abud r. Kiches, 2 Ch. D. 528 ; 45 L. J. Ch. 649 ; 34 L. T. (N. S.) 713 ; 24 W. R 637 179 Adams v. Fisher, 7 L. J. (N. S.) Ch. 289 ; 2 Jur. 508 ; 3 M. & Cr. 526 ; 2 Keen, 754 88, 89, 98, 123, 134, 136 V. Lloyd, 27 L. J. Ex. 499 ; 4 Jur. (N. S.) 590 ; 3 H. & N. 351 41, 42, 46, 49, 99, 100, 137 Addington v. Clode, 2 W. BI. 1029 . . ... 186 Addison v. Walter, 4 Y. & C. Eq. 442 102 African Co. v. ParLsh, 2 Vern. 244 119 Ainsworth v. Starkie, W. N. 1876, 8 ; 20 L. J. 162 . . . . 181 Alcock V. cm, 21 L. T. (N. S.) 704 156 Alexandra Docks Co. v. Elliot, 23 L. T. (N. S.) 847 . . . . 42 Palace Co., Re the, 16 Ch. D. 58 ; 50 L. J. Ch. 7 ; 43 L. T. (N. S.) 406 ; 29 W. E. 70 31 Alison V. Alison, 44 L. T. (N. S.) 547 54, 272 Allfrey V. Allfrey, 14 Beav. 235 ; 15 Jur. 831 .... 42 AUhusen v. Labouchere, 3 Q. B. D. 654 ; 47 L. J. Ch. 819 ; 39 L. T. (N. S.) 207 ; 27 W. R. 12 ; 48 L. J. Q. B. 34 . . 44, 57, 144 Ambler v. Bolton, W. N. 1871, 12 129 Amhurst v. King, 2 S. & S. 183 127 Amies v. Kelsey, 22 L. J. Q. B. 84 ; 16 Jur. 1047 ; 1 B. C. C. 123 . 26, 120 Anderson v. Bank of British Columbia, 2 Ch. D. 644 ; 45 L. J. Ch. 449 ; 35 L. T. (N. S.) 76 ; 24 W. R. 724... 40, 63, 72, 74, 77, 81, 130, 132 Andrew v. Pell, L. R 2 C. P. 251 119 Anglo- Austrian Bank, Re the, 10 L. T. (N. S.) 369 . . . . 181 Anon,, 20 S. J. 81 . . - 20, 21, 25 W. N. 1876, 11 . 21, 26, 96 20 S. J. 32 . . . 22 20 S. J. 58 97 W. N. 1876, 55 ; 20 S. J. 282 23 W. N. IST'e, 53 ; 20 S. J. 282 ... 24, 26 W. N. 1876, 73 ; 20 S. J. 298 . . . . . . 2i W. N. 1876, 39 . . . . . 42, 126 2 Chit. 290 184 W. ]Sf. 1876, 22 ; 20 S. J. 242, 243 45, 148 1 M. & Cr. 78 . 50 W. N. 1875, 229 .59 W. N. 1875, 218 147 xi Ano — AtW. TABLE OF CASES. PAGE Anon., W. N. 1876, 24 . . . . .148 W. N. 1875, 231 14« 20 S. J. 80 ■ 119, 150 ■ W. N. 1876, 38 ; 20 8. J. 261 . . • • 150 W. N. 1876, 105 -160 W. N. 1875, 202 ; 20 S. J. 57 . ■ • • 162 W. N. 1875, 204 . 163 20 S. J. 201 . . ... 164 2 Ves. 451 .. . . . . .181 W. N. 1876, 53 . 45 Angustinus v. Nerinok, 16 Cli. D. 16 . . . . .227 Austey w. North aixd South Woolwich Subway Co., 11 Ch. D. 439; 48 L. J. Ch. 776 ; 40 L. T. (N, S.) 393 ; 27 W. B. 575 . . 145 Armitage v. Pitzwilliam, W. N. 1876, 56 ; 20 S. J. 281 . . 19, 58 V. Wadsworth, 1 Madd. 189 . ... 90 Ashley v. Taylor, 38 L. T. (N. S.) 44 . . . ... 44 Aston V. Exeter (Lord), 6 Ves. 288 102 Aston's Case, 28 L. J. Ch. 631; 5 Jur. (N. S.) 615, 779 ; 4 D. & J. 320 • . 61 127 Atherfold v. Beard, 2 T. R. 610 . ' . . . . . ' 183 Atherley v. Harvey, 2 Q. B. D. 524 ; 46 L. J. Q. B. 518 ; 3t L. T. (N. S.) 551 ; 25 W. B. 727 . . 56 Atkinson v. Fosbroke, L. R. 1 Q. B. 628 ; 35 L. J. Q. B. 182 ; 14 L. T. (N. S.) 553 ; 14 W. R. 832 56, 120 V. Hanway, I Cox. 360 .123 Atkynsi;. Wright, 14 Ves. 213 3 Att.-Gen. V. Berkeley, 2 J. & W. 291 . . . . .69 V. Brown, 1 Sw. 265 55, 59 V. Castlefoid Local Board, 27 L. T. (N. S.) 644 ; 21 W. R. 117 139 V. Chesterfield (Earl of), 18 Beav. 596 37 V. Clapham, 10 Hare, App. Ixviii 4, 29 V. Duplessis, 2 Ves. sen. 286 . . . . 37, 96 V. East Dereham Exchange Co., 5 W. B. 486 ... 29 V. East Retford (Bailiff and Burgesses of}, 2 M. & K. 35 . 117, 129 V. Emerson, 31 W. R. 191 ; W. N. 1882, 155 ; 48 L. T. (N. S.) 18 ; 10 Q. B. D. 191 . 91, 100, 103, 104, 134, 139, 185 V. Foster, 2 Hare, 81 42 V. Gaskill, 20 Ch. D. 519 ; 51 L. J. Ch. 660 ; 46 L. T. (N. S.) 180; SOW. B. 558 40, 44, 45, 90, 92, 110, 112, 120, 125, 127, 130 V. Johnstone, W. N. 1872, 12 67, 120 V. Lambe, 3 Y. & C. 162 84 V. London (Corporation of), 18 L. J. Ch. 314 ; 13 Jur. 374; 12 Beav. 8 . .86, 104 2 Mac. & G. 247 . 88, 89, 110 y. Bees, 12 Beav. 50 . . 128- — - V. Eickards, 6 Beav. 444 ; 1 Ph. 383 42 u. Stephens, 6 D. M. & G. HI 98 V. Thompson, 8 Hare, 106 . . . . 52, 89 V. Whitwood Local Board, 40 L. J. Ch. 592 ; 19 W. B. 1107 36, 153, 154 Atwool V. Ferrier, 14 L. T. (N. S.) 728 ; 14 W. B. 1014 . . 42, 50 xii TABLE OF CASES. Bac — Ben. _, „, PAGE B V. W , 8 Jur. (N. S.) 1141 ; 31 Beav. 342 . . . .50 Bacon v. Bacou, 34 L. T. (N. S.) 349 70 V. Turner, W. N. 1876, 292 .147 Bagnall v. Cai-lton, W. N. 1876, 215 ! 48 Baigent v. Baigent, 1 P. D. 421 ; 33 L. T. (N. S.) 462 ; 24 W. R. 43 . 159 Baker v. Lane, 34 L. J. Ex. 57 ; 11 L. T. (IST. S.) 638 ; 13 AV. R. 293: llJur. (N. S.) 117; 3H. &C. 544 . . . .51,61 V. L. & S. W. Ry. Co., L. R. 3 Q. B. 91 ; 37 L. J. Q. B. 53 ; 16 L. T. (N. S.) 126 ; 8 B. & S. 645 82 V. Oakes, 7 Q. B. D. 400 ; 50 L. J. Q. B. 396 ; 44 L. T. (N. S.) 220, 371 ; 25 W. R. 220 142 Balls V. Margrave, 3 Beav. 448 102 Bally V. Kenrick, 13 Pri. 271 129 Bannicotti). Harris, W. N. 1876, 9; 20 S. J. 217 . . . 22,149 Barker v. Ray, 5 Madd. 64 . 101 V. "Wood, "W. N. 1876, 56 .227 Barlowy. Bailey, 22 L. T. (N.S.) 464; 18 W. R. 783 . . . . 165 Barnard v. Hunter, 4 W. R. 34 22 Barned's Banking 'Co., Re, 2 Ch. 350; 36 L. J. Cli. 262; 16 L. T. (N. S.)249; 15 W. R. 524 ... .... 32 Barnes, Ex parte, 7 Jur. 217 ; 2 Dowl. (N. S.) 20 . . . . 185 Barnett v. Hooper, 1 F. & F. 412, 467 31 Barnstaple (Corp. of) v. Lathey, 3 T. R. 303 11 Barry v. Scully, Jr. R. 6 C. L. 449 96, 98 Bartholomew D. Rawlings,W. N. 1876, 56; 20 S. J. 281 ... 45 Bartlett v. Lewis, 31 L. J. C. P. 230 ; 9 Jur. (N. S.) 202 ; 12 C. B. (N. S.) 249 . . . . 55, 56, 58 Bartley v. Bartley, 1 Drew. 233 . . . . 36, 154 Barwick, Re, 3 Dowl. 703 .160 V. Thompson, 7 T. R. 488 96 Bassett v. Nosworthy, R. t. Finch, 102 ; 2 White & Tudor's L. C, 5th ed., p. 1 ... . 88 Bassford v. Blakesley, 6 Beav. 131 104 Bate V. Bate, 7 Beav. 528 24 Bateman v. Philipps, 4 Taunt. 157 28 Bates V. Christ's Coll. Camb., 26 L. J. Ch. 449 ; 3 Jur. (N. S.) 348.. .89, 115 Batley v. Kynock, L. R. 19 Eq. 90 ; 44 L. J. Ch. 89 ; 31 L. T. (N. S.) 573;23W. R. 52 . . 166,281 Bayley v. Griffiths, 10 W. R. 798 ; 1 H. & C. 429 . . . . 98, 109 Real V. Pilling, 38 L. T. (N. S.) 486 19 Beatson v. Skene, 29 L. J. Ex. 430 ; 6 Jur. (N. S.) 780 ; 2 L. T. (N. S.) 378 ; 5 H. & N. 8.38 114 Bechervaise v. G. W. Ry. Co., L. R. 6 C. P. 36 ; 40 L. J. C. P. 8 ; 23 L. T. (N. S.) 808 ; 19 W. R. 229 19, 30, 32 Bellerophon, The, 44 L. J. Ad. 5 ; 31 L. T. (N. S.) 756 ; 23 W. R. 248 114 Bellwood V. Wetherell, 1 T. & C. Ex. 211 ... . 94, 95, 109 Ben bow v. Low, 16 Ch. D. 93 ; 50 L. J. Ch. 35 ; 44 L. T. (N. S.) 113 ; 29 W. R. 265 ; 28 W. R. §91 114, 227 Benjamin v. Saulez, Ir. R. 6 C. L. 16 103 Bennett v. Glossop, 3 Hare, 578 95, 101 V. Griffiths, 30 L. J. Q. B. 98 ; 3 L. T. (N. S.) 735 ; 9 W. R. 332 ; 7 Jur. (N. S.) 284 . 165 V. Harrap, 22 L. T. (N. S.) 647 . • 162 Bennitt v. Whitehouse, 28 Beav. 119 166 xiii Ben — Bre. table of cases. PAGE Benson v. Port, 1 Wils. K. B. 240 183 Bent V. Young, 9 Sim. 180 181 Benyon -y. Nettlefold, 3 Mac. & G. 94 62 Berkeley v. Standard Discount Co., 13 Oh. D. 97 ; 49 L. J. Ch. 1 ; 41 L. T. (N. S.) 338 ; 28 W. R. 125 32, 177 9 Ch. D. 643 ; 26 W. R. 852 . 143 Best, Ex pa/rte, 3 Dowl. 38 .9 Betts V. Menzies, 26 L. J. Ch. 528 ; 5 W. R. 767 76 V. Neilson, "W. N. 1866, 170 48, 120 Bewicke v. Graham, 7 Q. B. D. 400 ; 50 L. J. Q. B. 396 ; 44 L. T. (N. S.) 220, 371 ; 29 W. R. 436 . . . . 135, 136, 138, 204 Bickford v. Darcy, L. R. 1 Ex. 354 ; 35 L. J. Ex. 202 ; 14 L. T. (N. S.) 629 ; 14 W. R. 900 ; 12 Jur. (N. S.) 816 ; 4 H. & C. 534 . . 51 Biola, The, 34 L. T. (N. S.) 185 ; 24 W. E. 524 .... 54 Birch V. Mather, W. N. 1883, 2 22, 120 Bird i;. Malzy, 1 C. B. (N. S.) 308 . 119 Birket v. Holme, 4 Dowl. 556 ; 1 H. & W. 659 160 Birmingham Banking Co., Be the, 36 L. J. Ch. 150; 15 L. T. (N. S.) 203 43, 189 Bristol and Thames June. Ry. Co. v. White, 10 L. J. Q. B. 12 ; 4 P. & D. 649 ; 5 Jur. 800 ; 1 Q. B. 282 ; 2 Ry. Ca. 863 188, 192 Blair v. Massie, Ir. R. 5 Eq. 623 . 154 Blake v. Pilfold, 1 M. & Rob. 198 114 Bleckley v. Rymer, 4 Drew. 248 41, 124 Blenkinsopp v. Blenkinsopp, 2 Ph. 607 84 Bligh V. Benson, 7 Pri. 205 46, 105 Blogg V. Kent, 6 Bmg. 614 ; 4 M. & P. 433 27 Bloxsome (or Bloxam) v. Chichester, 34 L. J. Ch. 79 ; 11 L. T. (N. S.) 722 ; 13 W. R. 285 ; 11 Jur. (N. S.) 48 ; 2 D. J. & S. 444 . . 147 Bluok V. Galsworthy, 3 L. T. (N. S.) 399 ; 7 Jur. (N. S.) 91 ; 2 Gilf. 453 67,68 V. Gompertz, 7 Exch. 67 96 Blunt, Be, W. N. 1880, 193 .' . .227 Blyth v. L'Bstrange, 3 P. & F. 154 96 Bolckow V. Fisher,31 W. R. 236 ; 48 L . T. (N. 8.) 724 ; lOQ. B. D. 161 128, 139 V. Young, 42 L. T. (N. S.) 690 44 Bolton V. Liverpool (Corp. of), 1 M. & K. 88 . . 64, 68, 91, 93, 94, 98 Bonnardeb v. Taylor, 30 L. J. Ch. 523 ; 1 J. & H. 383 . . . 36, 154 Boteler v. Allington, 3 Atk. 453 . . . . : . . 61, 96 Bovill V. Cowan, 5 Ch. 495 ; 39 L. J. Ch. 768 ; 22 L. T. (N. S.) 503 ; 13 W. R. 333 . 45, 83 V. Smith, L. R. 2 Eq. 459 .... . . 104 Bowen v. Price, 2 D. M. & G. 899 . 18 Bowes V. Fernie, 3 M. & C. 632 . 137 155 Boyd V. Petrie, 3 Ch. 818 ; L. R. 5 Eq. 290 ; 37 L. J. Ch. 344 . . 36 20 L. T. (N. S.) 934 ; 17 W. R. 903 . . . 92, 94 Boyle V. Wiseman, 10 Exch. 647 ; 1 Jur. (N. S.) 115 . . 127 Boyse, Be, 20 Ch. D. 761 ; 51 L. J. Ch. 660 ; 46 L. T. (N. S.) 522 ; 30 W. R. 812 .34 Bray u Finch, 1 H. & N. 468 7,118 Brereton v. Gamul, 2 Atk. 240 .... ... 87 Brewers' Co.- v. Benson, Barnes, 236 . 191 xiv TABLE OF CASES. Bri— Car. PACE Bristol (Mayor and Corp. of) v. Visger, 8 D. & R. 434 . . 11, 191 British Empire Shipping Co. v. Somes, 3 Jur. (N. S.) 883 ; 3 K. & J. 433 6, 107, 181 Brookes v. Boucher, 8 Jur. (N. S.) 639 124 Bro-vvn, Re, Tyas v. Brown, 42 L. T. (N. S.) 501 ; 28 AV. R. 575 . . 69 V. Lee, 11 Beav. 162 ... . ... 146 V. Oakshott, 12 Beav. 252 37 V. Rose, 6 Taunt. 283 28 V. Sewell, 16 Ch. D. 517 ; 44 L. T. (N. S.) 41 ; 29 W. R. 295 .. . 178, 179 V. Thames and Mersey Ins. Co., 43 L. J. C. P. 112 . . 31 V. Wales, 15 L. R. Eq. 142 ; 42 L. J. Ch. 45 ; 27 L. T. (N. S.) 410 ; 21 W. R. 157 . 7, 98 Browne v. Davis, 2 L. R. (Ir.) C. L. 434 62 V. Lockhart, 10 Sim. 420 . . 102 Browning v. Aylwin, 7 B. & C. 204 37 V. Sabin, 5 Ch. D. 511 ; 46 L. J. Ch. 728 . . . . 160 Brownsword v. Edwards, 2 Ves. sen. 242 62 Bruff V. Cobbold, 26 L. T. (N. S.) 786 ; 20 W. R. 734 . . . . 45 Buchanan, Ex parte, 15 L. T. (N. S.) 261 ; 15 W. R. 99 . . . 189 v. Taylor, W N. 1876, 73 111,120 Buden v. Dore, 2 Ves. sen. 444 ........ 88 Bugden v. South, 29 L. J. Ch. 425 ; 3 Jur. (N. S.) 783 ... 89 Bullock V. Conie (or Cory), 3 Q. B. D. 366 ; 47 L. J. Q. B. 352 ; 38 L. T. 102 ; 26 W. R. 330 64 V. Richardson, 11 Ves. 373 ... . . . 119 Bulton V. S. E. Ry. Co., W. N. 1868, 20 161 Bunhury v. Bunbury, 2 Beav. 173 67 Bunn V. Bunn, 4 D. J. & S. 316 ; 12 W. R. 561 . ... 61 Burbicke v. Robinson, 2 Mac. & G. 244 84, 101 Burke v. Rooney, 4 C. P. D. 226 ; 48 L. J. C. P. 601 ; 27 W. R. 915 . 177 Burrell v. Nicholson, 1 Myl. & K. 680 ; 3 B. & Ad. 649 . . . 184 Burton and Saddler's Co., Re, 31 L. J. Q. B. 62 ; S. C. 10 W. R. 87 170, 181, 190 ■;;. Bustros, 30 W. R. 374 176 Bustros V. White, 1 Q. B. D. 423 ; 45 L. J. Q. B. 642 ; 34 L. T. (N. S.) 835 ; 24 W. R. 721 . . 63, 67, 73, 77, 79, 81, 118, 151, 152, 155, 176 Byde v. Masterman, 5 Jur. 643 42 Byng V. Clark, 13 Beav. 92 . . . .... 146 Byrne, Ex parte, Re Leighton, 35 L. J. Bank. 43 84 Caldbbck v. Boon, Ir. R. 7 C. L. 32 70 Calley v. Richards, 19 Beav. 401 .65 Cameron's Coalbrook,&c.,Ry. Co., /te the, 25 Beav. 1 ... 70 CampbeUv. Dalhousie, 22L. T.(N.S,)879 46,82 Cardalev.Watkins, 5Madd. 18 180 Carew v. Davies (or Davis), 25 L. J. Q. B. 163 ; 26 L. T. 104; 2 Jur. (N.S.)507; 5E.&B.709 . . . 39,87,88,98,106,112 V. Davis, 21 Beav. 213 193 Carey v. Cuthbert, Ir. R. 6 Eq. 599 69 Carter v. Leeds Daily News Co., W. N. 1876, 11 ; 20 S. J. 218 . 22, 59 „. Stubbs, 6 Q. B. D. 116 ; 50 L. J. Q. B. 161 ; 43 L. T. (N. S.) 746 ; 29 W. R. 132 177 XV Car — Coo. table of cases. PAGE Cartwright, Be the goods of, 1 P. D. 422 ; 34 L. T. (N. S.) 72 ; 24 W. R. 214 159 V. Blaokworth, 1 Dowl. 489 160 V. Green, 8 Ves. 405 38, 55, 59 Carver v. Pinto Leite, 7 Ch. 90 ; 41 L. J. Cli. 92 ; 25 L. T. (N. S.) 722 ; 20 W. E. 134 50,52,60 Oashin v. Cradook, 2 Ch. D. 140 ; 34 L. T. (N. S.) 52 . 19, 23, 151, 152 Catt V. Tourle, 23 L. T. (N. S.) 485 ; 19 W. R. 56 . . . 76, 141 22 L. T. (N. S.) 775 ; 18 W. R. 966 . . . 140, 168 Cawston v. Helwyes, R. t. Pinch, 218 .181 Ghadwiok v. Ohadwick, 18 L. T. (N. S.) 51 119 Chamberlain v. Knapp, 1 Atk. 52 87 Chancey ■;;. Fenhoulet, 2 Ves. 265 ; 2 Atk. 392 62 ' Charlton v. Coombes, 4 GifF. 372 71 Chartered Bank of India, Australia, and China v. Rich, 32 L. J. Q. B. 900 ; 8 L. T. (N. S.) 454; 11 W. R. 830; 4 B. & S. 73 . . 62 Chester v. Wortley, 25 L. J. C. P. 117 ; 2 Jur. (N. S.) 287 ; 17 C. B. 410 . 62, 96 18 C. B. 239 168 Chesterfield and Boythorpe Colliery Co. v. Black, 13 Ch. D. 138 (n.) ; 24 W. R. 783 46, 121, 122, 163 Chetwind v. Mamell, 1 B. & P. 271 59 Chichester v. Donegall (Lord), 5 Ch. 497 ; 39 L. J. Ch. 694 ; 22 L. T. (NT. S.) 458 ; 19 W. R. 531 102 China Trans. Pacific Steamship Co. v. Commercial Union Assurance Co., 8 Q. B. D. 142 ; 51 L. J. Q. B. 132 ; 45 L. T. (N. S.) 647 ; 30 W. R. 224 . . . ... 35, 133 Christian ■«. Taylor, 11 Sim. 401 129 Christie v. Christie, 8 Ch. 499 51 Church V. Perry, 36 L. T. (N. S.) 513 199, 145 Chnrton v. Frewin. 2 D. & S. 390 50 Cleary v. Fitzgerald, 4 L. R. Ir. 1 Ch. 492 24 Clegg V. Edmondson (or Edmonson), .3 Jur. (N. S.) 299 ; 22 Beav.\ 125 47, 51, 122 Clinch V. The Financial Corporation, L. R. 2 Eq. 271; 14 "W. R. 685 ; 12 Jur. 484 . 85, 131 Cobden v. Kendrick, 4 T. R. 431 64 Cocks V. Nash, 3 M. & Scott, 164 ; 9 Bing. 723 27 Coffin V. Cooper, 6 Ves. 514 50 Coleman v. West Hartlepool Harbour and Ry. Co., 5 L. T. (N. S.) 266 152 Collins V. Yates, 27 L. J. Ex. 150 60, 106 Colman v. Trueman, 28 L. J. Ex. 5 ; 3 H. & N. 871 . 63, 71, 106 Colyer ■;;. Colyer, 30 L. J. Ch. 408 ; 4 L. T. (N. S.) 1.34 ; 9 W. R. 452 . . 84, 118 Combe v. London (Corp. of), 1 Y. & C. Ch. 631 ; 6 Jur. 572 ; 10 Jur. 57 65, 69, 90, 91, 92, 99, 134 Commissioners of Sewers of London v. Glasse, L. R. 15 Eq. 302 ; 42 L. J. Ch. 345 ; 28 L. T. (N. S.J 433 ; 21 W. R. 520 . . 86, 93, 111 Contract Corporation, Ee the, Gooch's case, 7 Oh. 207 ; 41 L. J. Ch. 338; 26 L. T. (N. S.) 177 ; 20 W. R. 345 32 Cook V. Ocean Steam Co., The, W. N. 1875, 220 .... 31 Cooke, Ex -parte, 5 D. & L. 413 ; 2 B. C. Rep. 205 . . . . 193 Coorg (Rajah of) v. Easf India Co., 25 L. J. Ch. 345 ; S. C. 2 Jur. (N. S.) 407 ; 8 D. M. & G. 182 49, 114, 137 xvi TABLE OF CASES. CoS — Dic. ^ PAGE Cossey v. London, B. & S. Coa>. 190 ; 45 L. J. Q. B. 136; 24 W. R. 158 ; 34 L; T. (N. S.) 897 159 Dalrymple v. Leslie, 8 Q. B. D. 5 ; 51 L. J. Q. B. 61 ; 45 L. T. (N. S.) 478 ; 30 W. R. 105 116, 129, 200 Daniel f. Bond, 3 L. T. (N. S ) 700 ; 9 W. R. 313 ; 9 C. B. (N. S.) 716 ■ 60, 106 Daniell v. Ford, 47 L. T. (N. S.) 575 ; W. N. 1882, 165 ; ib. 1883, 27 97 DanviUier v. Myers, 17 Ch. D. 346 ; 29 W. R. 535 . . . . 142 Darhy v. Ouaeley, 25 L. J. Ex. 327 ; 2 Jur. (N. S.) 497 ; 1 H. & N. 1 . 116 Davenport v. Jepson, 1 W. R. 307 ....... 166 Davey v. Pemberton, 11 C. B. (N. S.) 628 . . . . 152, 179 Davies c. Humphreys, 3 M. & S. 223 . . , . . . .191 V. Marshall, 9 W. R. 756 ; 7 Jur. (N. S.) 669 ; 1 Dr. & Sm. 564 178 V. Williams, 13 Ch. D. 550 ; 49 L. J. Oh. 352 ; 42 L. T. (N. S.) 469 ; 28 W. R. 223 23 Davis, Rv parte, 16 W. R. 668 189 V. Cripps, 2 Y. & C. C. C. 430 42 v. Gray, 30L. T. (N. S.)418 , , 110 V. Parry, 27 L. J. Ch. 294 ; 31 L. T. 264 ; 6 W, R. 174 ; 4 Jur. (N. S.) 431 . 103 Daw V. Eley, 2 H. & M. 725 92, 104 Dearl v. Henchcliffe, cit. Dan. Ch. Forms, 932, note (p) . . . 155 De la Rue 1). Dickinson, 3 K & J. 388 53,47,124 Dendy v. Cross, 11 Beav. 91 102 Dent V. Dent, L. R. 1 Eq. 186 ; 35 L. J. Ch. 112 28 Derby Commercial Bank v. Lutnsden, L. R. 5 0. P. 107 ; 39 L. J. C. P. 72 ; 21 L. T. (N. S.) 673 ; 18 W. R. 526 . . . 87, 118 Devaynes v. Robinson, 20 Beav. 42 37 Devenage (or Deveruer) v. Bouverie, 18 Bing. 1 ; 1 M. & Scott, 29 % 27 Dickson v. Harrison, 47 L. J. Ch. 686 . . ... 47 xvii b Dis— Eva. TABLE OF CASES. PAGE Disney v. Longbourne, 2 Ch. D. 704 ; 45 L. J. Ch. 532 ; 35 L. T. (N. S.) 301 ; 24 W. R. 633 20, 21 Dixon V. Enoch, L. R. 13 Eq. 394 ; 41 L. J. Ch. 231 ; 26 L. T. (N. S.) 127 ; 20 W. R. 359 7, 180 Dohson V. Richardson, L. R. 3 Q. B. 778 ; 37 L. J. Q. R 261 ; 16 W. R. 101 ; 9 B. & S. 516 45 Doe d. Avery v. Langford, 21 L. J. Q. B. 217 100 d. Child V. Roe, 1 E. & B. 279 96 d. Morris v. Roe, 1 M. & W. 207 ; 1 Gale, 367 . . . 27, 96 u. Slight, 1 Dowl. 163 27 Don Francisco, The, 31 L. J. P. & A. 205 ; 6 L. T. (N. S.) 133 . . 43 Donegal (Lord) v. Stewart, 3 Ves. 446 . . . . 47, 52, 89, 124 Donovan v. Fricker, Jac. 165 124 Dos Santos v. Frietas, cit. Wigram, 165 43 Drake v. Symes, 29 L. J. Ch. 349 ; 1 L. T. (N. S.) 364 ; 8 W. R. 85 ; 6 Jiir. (N. S.) 369 ; Johns. 647 . . . 43, 129 2 D. F. & J. 81 144 V. Whiteley, W. N. 1876, 55 ; 20 S. J. 281 . . . . 19 Draper v. Man. Sheff. and Line. Ry. Co., 30 L. J. Cli. 236 ; 3 D. F. & J. 23 36, 153, 193 Dummer v. Chippenham (Corp. of), 14 Ves. 245 59 Dunn V. Coates, 1 Atk. 288 181 Fade v. Jacobs, 3 Ex. D. 335 ; 47 L. J. Ex. 74 ; 37 L. T. (N. S.) 621 ; 26 W. R. 159 107, 112, 119, 176 Earp V. Lloyd, 3 K. & J. 549 50, 98 East India Co. v. Atkins, 1 Stra. 168 Edmonds v. Foley (Lord), 31 L. J. Ch. 384 ; 5 L. T. (N. S.) 709 ; 10 W. R. 210 ; 8 Jur. (N. S.) 552 ; 30 Beav. 282 83 Edmunds v. Brougham (Lord), 12 Jur. (N. S.) 156 ; W. N. 1866, 67 . 50 V. Greenwood, L. R. 4 0. P. 70 ; 38 L. J. C. P. 115 ; 19 L. T. (N. S.) 425 ; 17 W. R. 142 . , . . 51, 55, 119 Edwards v. Jones, 1 Ph. 501 98, 134 V. Wakefield, 27 L. T. 201 ; 4 W. R. 710 : 2 Jur. (N. S.) 762 ; 6 E. & B. 462 39, 87, 94, 108, 110 Egremont Burial Board v. Egremont Iron Ore Co., 14 Ch. D. 158 ; 49 L. J. Ch. 623 ; 42 L. T. (N. S.) 179 ; 28 W. R. 594 . . . 24 Elkin ■!). Clarke, 21 W. R. 447 53 Ellis V. Ambler, 36 L. T. (N. S^ 410 ; 25 W. R. 557 . . . . 21 Elmer v. Creasy, 9 Ch. 69 ; 43 L. J. Ch. 166 ; 29 L. T. (N. S.) 632 ; 22 W. R. 141 47, 52, 54, 124 Emma, Re the, 34 L. T. (N. S.) 742 ; 24 W. R. 587 ; 3 Mar. L. C. (N. S.) 218 - 23, 34, 147 Emma Silver Mining Co., Be the, 10 Ch. 194 ; 44 L. J. Oh. 456 ; 31 L. T. (N.S.)816; 23W. E. 300 . 32,121 Turner, iJe, 24 W.E. 54 . . . 84 English V. Tottie, 1 Q. B. D. 141 ; 45 L. J. Q. B. 138; 33 L. T. ■(N. S.) 724 ; 24 W. R. 393 77 Enthoven v. Cobb, 16 Jur. 1152 ; 2 D. M. & G. 632 . . . . 69 Ernest v. Partridge, 8 L. T. (N. S.) 655 ; 11 W. E. 715 ; 2 N. R. 232 178 Evans v. Delegal, 4 Dowl. 374 27 s;. Louis, L. R. 1 0. P. 656 .... .118 xviii TAiu.K OF CASES. Eve— Fyn. PAGK Everett v. Prythergch, 12 Sim. 365 50 Ewing r. Osbaldiston, 6 Sim. 609 59 Exeter (Mayor, &c of) r. Culemaii, Barnes, 238 .... U Fairbairn v. Lay, 22 L. T. (N. S.) 785 ; 18 W. R. 915 ... 24 Farquh arson r. Balfour, T. & R. 184 84. 131 Farrow i;. Blomfield, 1 F. & F. 653 lie Felkin v. Herbert (Lord), 30 L. . Ch. 798 ; 9 W. R. 756 . 86, 134 Fenhoulet v. Passavant, 2 Ves. sen. 24 50 Fenner v. London & S. E. Ry. Co., L. R. 7 Q. B. 767 ; 41 L. J. Q. B. 313 ; 26 L. T. (N. S.) 971 ; 20 W. R. 830 . . . . 62,82 Fenwick v. Johnston, W. N. 1876, 54 ; 20 S. J. 240 . . . . 19 Ferrier v. Atwool, 14 L. T. (N. S.) 278 ; 14 "W. R. 597 ; 12 Jur. 365 . 89 Finch V. Ely (Bishop of), 2 M. & R. 127 ; S. C. 8 B. & C. 112 . . 183 V. Fiiich, 2 Ves. sen. 491 62 Financial Corporation v. Bristol & North Somerset Ry. Co., L. R. 3 Eq. 422 125 Finnegan u. James, L. R. 19 Eq. 72 ; 44 L. J. Ch. 185 ; 23 W. R. 373 52, 120 Finney v. Forwood, L. R. ] Ex. 6 ; 35 L. J. Ex. 42 ; 13 L. T. (K. S.) 296 ; 14 W. R. 85 ; 11 Jur. 878 ; 4 H. & C. 3:< . . . 87, 95 Fisher v. Hughes, 25 W. R. 528 163 V. Owen, 8 Ch. D. 645 ; 47 L. J. Cli. 477 ; 38 L. T. (N. S.) 577 ; 26W. R. 581 41,51,55,56 r. Ronalds, 29 L. J. C. R 62 ; 17 Jur. 393 ; 12 C. B. 762 . 127 Fitzgibbon v. Greer, Ir. R. 9 C. L. 294 114 Fleet V. Perrins, 37 L. J. Q. B. 233 159 Flight V. Robinson, 8 Beav. 22 8, 65, 68, 122 Flitcroft (or Flitchcroft) v. Fletcher, 25 L. J. Ex. 94 ; 2 Jur. N. S. 191 ; 11 Exch. 543 96,108,111 Flower v. Lloyd, 20 S. J. 584, 703 ; 21 S. J. 708 158 F.)llett V. Jetferye, 1 Sim. (N. S.) 3 71 Forbes v. Tanner, 11 W. R. 414 ; 9 Jur. (N. S.) 455 ; 1 W. R. 464 . 47, 52 Ford V. De Pontes, 32 L. T. 383 ; 7 W. R. 299 ; 5 Jur. (N. S ) 993 . 65, 70 Ford V. Dolphin, 1 Drew, 222 83 Forshaw u. Lewis, 10 Exch. 712 ; 19 Jur. 263 . . .24,170 Fortescue v. Fortescue, 24 W. R. 945 45, 135 Foster v. Bank of England, 15 L. J. Q. B. 212 ; 10 Jur. 372 ; 8 Q. B. 689 189 V. Edwards, 48 L. J. Q. B. 767 176 Fox V. Jones, 7 B. & C. 732 ; 1 M. & R. 570 . . . . 183 Franco r. Bolton, 3 Ves. 368 119 Eraser K. Burrows, 2 Q. B. D. 624; 46 L. J. Q. B. 501 . . 34,35 Treason v. Lowe, 26 W. R. 138 163 Freeman I). Fairlie, 3 Mer. 24 47,131 French v. Macale, 2 Dr. & War. 269 62 Friend v. London, C. & D. Ry. Co., 2 Ex. D. 437 ; 46 L. J. Ex. 696 ; 36 L. T. (N. S.) 729 ; 25 W. R. 735 80, 208 Frost V. Brook, 23 W. R 260 ; 32 L. T. (N. S.) 312 . . . . 45 Fuller «. Ingram, 5 Jur. (N. S.) 510 12 Furber v. King, 29 W. R. 536 ; 50 L. J. Ch. 406 . . . 121, 145 Fynneyr. Beasley, 20L. J. Q.B. 395 .... .19 xix t* 2 Gab — Har. TABLE OF CASES. PAGE Gabbett «. Cavenclish, 3 Sw. 267 (note) . . . 84,118,138,153 Galsworthy v. Norman, 21 L. J. Q. B. 70 ; 15 Jur. 1061, note . .106 Gandee v. Stansfield, 28 L. J. Ch. 436 ; 33 L. T. 5 ; 7 W. R. 321 ; 4 De G. & J. 1 ; 32 L. T. 330 ; 7 W. E. 297 69 Gardner v. Dangerfield, 5 Beav. 389 V. Irvin, 4 Ex. D. 49 ; ,48 L. J. Ex. 223 ; 27 W. R. 442 Garle v. Robinson, 3 Jur. (N. S.) 633 . Gawnee v. Grandee, Holt, 49 Gay V. Labouohere, 4 Q. B. D. 206 ; 48 L. J. Q. 413 . . " . 40 Gerard v. Penswiek, 1 Sw. 533 . Gethin v. Gale, cit. Amb. 354 ; 11 Ves. 304 . Glegg V. Legh, 4 Madd. 193 .. . Glengall (Lord) v. Frazer, 2 Hare, 99 Glover v. Hall, 2 Ph. 484 . Glynn v. Houston, 1 Keen, 329 Goater v. Nunnely, 2 Stra. 1130 Gompertz v. Best, 1 Y. & C. Ex. 114 . Goodall V. Little, 1 Sim. (N. S.) 155 . GoodliflF V. Fuller, 14 M. & W. 4 . Goodman v. Holroyd, 15 C. B. (N. S.) 839. Gough V. Offley, 5 De G. & S. 6D3 Gourley v. Plimsoll, L. R. 8 C. P. 362 ; 42 L (N . S.) 598 ; 29 L. T. (N. S.) 130 Grane v. Cooper, 4 M. & C. 263 . Gray v. Bateman, 21 W. R. 137 Great Luxembourg Ry. Co. D. Magnay, 23 Beav Western Collit-ry Co. v. Tucker, 9 Ch. 376 ; 43 30 L. T. (N. S.) 731 ... . Green v. Weaver, 1 Sim. 404 .... Greenfield v. Eeay, L. R. 10 Q. B. 217 ; 44 L (N. S.) 756 ; 23 W. R. 732 . Greenlaw v. King, 1 Beav. 137 Greenough v. Gaskell, 1 M. & K. 98 . Greenwood v. Greenwood, 6 W. R. 119 . Gresley v. Mousley, 2 K. & J. 288 Groves v. Groves, Kay, App. xix . Gun *. Prior, 1 Cox, 197 . . 86, 153, 204 L. T. (N. S.)35; , 91, 133, 135, 136 . 96, 110 181 279; P. 244 J. Q. Hadley v. McDougall, 7 Ch. 469 ; 41 L. J. Ch. 567 379; 20 W. R. 393 Haldaue v. Eckford, L. R. 7 Eq. 425 ; 38 L. J. Ch, (N. S.)389; 17 W. R. 570. Hall V. L. & N. W. Ry. Co., 35 L. T. (N. S.) 848 — '- V. Noyes, 3 Bro. C. C. 483 . Halliday v. Temple, "8 D. M. & G. 96 . Hambrook v. Smith, 16 Jur. 144 .... Hamilton v. Nott, L. R. 16 Eq. 112 ; 42 L. J. Ch. 512 Hancock v. Guerin, 4 Ex. D. 3 ; 27 W. R, 112 Harbordi;. Monk, 9 Ch. D. 616 ; 38 L. T. (N. S.) 411 Hardingham v. NiohoUs, 3 Atk. 304 . Hardman v. EUanies, 2 M. & K. 732 , XX L. J. B. 81 26 L, 372 40, 45, 27 W. R. 43,58 49 95 128 98 55 28 42 76 118 92, 110, 118 . . 85 ; 28L.T. 20, 55, 227 85, 153, 204 . 115 . 89, 123 518; 53,58 . 61,119 0. T. 55,60 . 64, 70 . 64 . 46, 137 89, 98 . . 36 . 90 Ch 31 T.(N.S.) . . 84 20 L. T. . 38, 149 51, 58, 110, 127 . . 89 . 24 . . 62 45,69,136,138 . . 24 27 W. R. 164 18, 227 . 87 . . 98 TABLK OF CASES, Har— Hoo. PAGE HdrJwick v. Wriglit, 12 L. T. (NT. S.) 138 ; 13 W. R. 530 ; 11 Jii . (N.S.)297 29,33 Harland r. -Emerson, 8 Bli. 62 95 Harris v. Harris, 4 Harp, 179 91, 134 Hiiirison t. Snutheote, 1 Atk. 528 96, 101 1'. Williams, 4 D. &R 820; 3 B. &G. 162 ... . . 191 Hart V. Miintefiore, 10 W. K 97 ; 30 Beav. 280 .... 33 Hartley v. Owen^ 34 L. T. (N. S.) 752 ; W. N. 1876, 193 . . . 162 Hastings (Corp. of) v. Ivall. 8 Cli. 1017 ; 4i L. J. Ch. 883 ; 21 W. R. 899 31, 49, 139 Hawkins v. Carr, L. R. 1 Q. B. 89 ; 35 L. J. Q. B. 81 ; 13 L. T. (N. S.) 321 ; 14 W. R. 138 ; 12 Jar. (N. S.) 334 ; 6 B. & S. 995 39, ](!-, 123 V. Gatliercole, 1 Sim. (X. S.) 150 98 Hawley r. Reade, W. X. 1876, (14 ; 20 S. J. 298 .... 21 Hayne v. Pratt, L. R. 6 C. P. 105 ; 40 L. J. C. P. 119 ; 23 L. T. (N. S.) 809; 19 W. R. 437 161 Heiilv D. Smith, 4 L. R. Ir. C. L. 72 148 Hemmings i: Williamsnn, 31 W. R. 336 .... 39, 119, 282 Hendrick v. Wood, 9 Jur. (N. S.) 117 181 Henman v. Lester, 31 L. J. C. P. 366 ; 9 Jur. (N. S.) 601 ; 12 C. B. (N. S.)776 116 Hennessy v. Ruhman, Osborne & Co., 36 L. T. (N. S.) 51 ; \V. N. 1877, 14 164 Herbert i: Ashburner, 1 Wils. K. B. 297 183 Herring r. Cloberv, 1 Ph. 91 65 Herschfeld c. Clarke, 25 L. J. Ex. 113 ; 2 Jur. (^J. S.) 239 ; 11 E.xdi. 712 31,116 Hengh v. Garrett, 44 L. J. Ch. 305 ; 32 L. T. (N. S.) 45 . . 53, 60 Hewetson v. Whittington Life Ins. Co., W. N. 1875, 219 ; 20 S. J. 179 21,22 Hewitts. AVebb, 2 Jur. (N. S.) 1189 6,118 Higginson v. Hall, 16 Ch. D. 235 ; 48 L. J. Ch. 250 ; 39 L. T. (N. S.) 603 ; 27 W. R. 469 29 Hildyard v. Smith, 44 L. J. Ch. 305 ; 32 L. T. (N. S.) 45 . . 53, 60 Hill V. Campbell, L. R. 10 C. P. 222 ; 44 L. J. C. P. 97 ; 32 L. T. (N. S.) 59 ; 23 W. R. 336 39, 55, 60 V. Great Western Ry. Co., 10 C. B. (N. S.) 148 . . . . 119 V. Northern Railway of Buenos Ayrt-s, 41 L. J. Ch. 69 . 132, 144 V. Philp, 21 L. J. Ex. 82 : 7 Exch. 232 . . . . 170, 179 Hills V. Wate.s, L. R. 9 C. P. 688 ; 44 L. J. C. P. 380 ; 31 L. T. (N. S.) 40 107 Hoare v. Wilson, L. R. 4 Eq. 1 ; 16 L. T. (N. S.) 112 ; 15 W. R. 548 153, 193 Hobson V. Parker, Barnes, 237 186 Hodges ?;. Atkis, 2 W. Bl. 877 ; 3 Wils. 398 U Hodsoll V. Taylor, L. R. 9 Q. B. 79 ; 43 L. J. Q. B. 14 ; 29 L. T. (N. S.) 534 ; 22 W. R. 89 120 Hoffman v. Postill, 4 Ch. 673 ; 20 L. T. (N. S.) 893 ; 17 W. R. 901 46, 52, 92, 93, 111, 117, 120, 125, 129, 200, 281 Holland v. Fox, 23 L. J. Q. B. 357 ; 1 Jur. (N. S ) 13 ; 2 C. L. R. 1576 ; 3 E. & B. 977 165 Holmes v. Baddtley, 1 Ph. 476 64, 65, 68, 69 Hooper V. Gunn, 2J. & II. 602 72, 86, 153 xxi Hop — Jon. TABLE OF CASES. PAGE Hope V. Hope, L. R. 4 Ch. 264 ; 20 L. T. (N. S.) 5 ; 17 W. R. 363 . 160 Hopkinson v. Buigliley (Lord), 2 Ch. 447 ; 36 L. J. Ch. 504 ; 15 W. R. 543 68 Home V. Houfih, L. R. 9 C. P. 135 ; 43 L. J. C. P. 70; 22 W. R. 412 45 Horton v. Bott (or Bock), 26 L. J. Kx. 267 ; 3 Jur. (N. S.) 568 ; 2 H. & N. 249 xl., 87, 9fi ' Houghton V. London & County Ass. Co., 17 C. B. (N. S.) 80 . . . 116 Howard V. Rohinson, 4 Drew, 522 . . . . ... 99 Howe V. McKeman, 30 Beav. 547 43, 105, 112, 120 Hughes V. Biddulph, 4 Russ. 190 64, 76 Hunt V. Elmes, 27 Beav. 62 87, 98 & Gotbed V. Anderson, 37 L. J. P. & M. 27 . . . 12, 13 V. Hewett, 21 L. J. Ex. 210 ; 16 Jur. 503 ; 7 Exch. 236 6, 10, 22, 92, 105, 107, 170 Hurst V. Hurst, 9 Ch. 762 ; 22 W. R. 939 ; 30 L. T. (N. S.) 698 ; 22 W. E. 790 37 Hutchinson v. Glover, 1 Q. B. D. 138 ; 45 L. J. Q. B. 120 ; 33 L. T. (N. S.) 605, 834 ; 24 W. R. 185 48 Hutt, ^xparfe, 3 Jiir. 1105; 7 Dowl. 690 . . . .185,193 Hylton V. Morgan, 6 Ves. 293 101, 102 Imperial Gas Co. v. Clarke, 4 M. & P. 727 ; 7 Ring. 95 ... 193 Land Co. of Marseilles, Re, 37 L. T. (N. S.) 588 . . 34 V. Masterman, 29 L. T. 559; 22 W. R. 66 34 Mercantile Credit Asaoc. v. Whitham, L. R. 3 Eq. 89 ; 15 L. T. (N. S.) 203 ; 15 W. R. 97 30 Ingilby v. Shafto, 33 Beav. 31 ; 32 L. J. Ch. 807 ; 8 L. T. (N. S.) 785 ; 9 Jur. (N. S.) 1141 95, 105, 108, InglesM V. Spartali, 29 Beav. 564 1 29 Inmay v. Jenkins, L. R. 5 C. P. 738 ; 39 L. J. C. P. 258 ; 22 L. T. (N. S.)' 629 ; 18 W. R. 897 55, 56 Irving V. Thompson, 9 Sim. 17 35 Ivy V. Kekewick, 2 Ves. 679 .60 Jacobs v. Goodman, 2 Cox, 282 ; 3 Bro. C. C. 487 . . 47, 89, 124 James v. Barnes, 25 L. J. C. P. 182 19 Janson v. Solarte, 2 Y. & C. 127 .' 43 2Y. &C. 132 48 Jenkyn ■;;. Bushby, 35 L. J. Ch. 400 ; 14 L. T. (N. S.) 431 ; 14 W. R. 531 ; 12 Jur. 558 86, 98 Jenkyns v. Bushby, L. R. 2 Eq. 547 ; 15 L. T. (N. S.) 310 . 64, 65, 68 Johns 0). James, 13 Ch^ 1)^370 44,47,87,113 Johnson v. Smith, 36 L. T. (N. S.) 741 ; 25 W. R. 639 . 133, 136, 139, 148 Joint Stock Discount Co., He the, 36 L. J. Ch. 150 ; 15 L, " 261 ; 15 W. R. 99 Jones V. Green, 2 Y. & J. 298 V. Hargreaves, 29 L. J. Ex. 368 . V. Jones, 3 Mer. 161 Kay, App. vi 101,' 104 V. Manchester (Countess of), 1 Vent. 197 . . . . 37 87 V. Montevideo Gas C.>., 5 Q. B. D. 556 ; 49 L. J. Q. B. 627 ; 42 ' L. T. (N. S.) 369 ; 28 W. R. 758 . . 49, 136, 137, 139, 140, 149 xxii T. (N. S.) . 36, 189 . 62 . 24, 170 97, 102 TABLE OF CASES. Jon— Ley. PAGE Jones V. Palmer, 4 Dowl. 446 27 V. Pratt, 6 H. & N. 697 20 Jourdain v. Palmer, L. R. 1 Ex. 102 ; 35 L. J. Ex. 69 ; 13 L. T. (N. S.) 600 ; 12 Jur. 214 ; 14 W. B. 283 40,45 Joy V. HacUey, W. N. 1883, 1 23 KAitf V. Earrer, 37 L. T. (K S.) 469 114, 115 Kay V. Hargreaves, 14 L. T. (N. S.) 281 52 Kear.sley ^.Philips, 10 Q. B. D. 36 ; 31 W. R. 92 . . . . 83 Kellijck r. Hnme and Colonial Ins. Co., 12 Jur. (N. S.) 663 . 36, 49, 119 Kelly V. Rogers, 1 Jur. (N. S.) 514 37 V. Wyman, 20 L. T. (N. S.) 300 ; 17 "W. R. 399 . . 105, 120 Kennedy v. Green, 6 Sim. 6 102, 104 V. Lyell, W. N. 1882, 137 145, 162 V. Wakefield, 39 L. J. Ch. 827 ; 22 L. T. (N. S.) 645 ; 18 W. R. 884 4, 33, 101 Kerr v. Gillespie, 7 Beav. 572 63 V. Rew, 5 M. & C. 154 . . . ' 35 Kettlevvell v. Barstow, 7 Ck 686 ; 27 L. T. (N. S.) 258 ; 20 W. R. 917 41, 50, 51, 52, 83, 84, 125, 155 King of Two Sicilies v. Willcox, 1 Sim. (N. S.) 334 .. . 61, 282 Kingsford v. The G. W. By. Co., 10 L. T. (N. S.) 722 . . . 34 Latone v. Falkland Islands Co., 27 L. J. Ch. 25 ; 30 L. T. 129 ; 6 W. B. 4 ; 4 K. & J. 34 74, 76, 77 Lake v. Pooley, W. N. 1876, 54 87 Lamb v. Munster, 10 Q. B. D. 110 ; 47 L. T. (N. S.) 442 ; 31 W. R. 117 57, 127, 134 Lancashire Cotton Spinning Co. ■y.Greatorex, 14 L.T. (N. S.)290...119, 187 Lancaster v. Evors, 1 Ph. 349 47, 123 Lane v. Gray, L. R. 16 Eq. 552 ; 43 L. J. Ch. 187 . . . 38, 148 Latimer v. Neate, 4 CI. & E. 570 ; 11 Bli. (N. S.) 112 ; S. C. 2 Y. & C. Eq. 257 98, 102, 104 Law V. London, &c. Life Policy Co., 10 Hare, App. xx. . . .29 Lawrence v. Campbell, 7 W. R. 336 ; 4 Drew. 485 .. . 34, 65 V. Hooker, 5 Ring. 6 ; 2 M. & P. 9 27 Lazarus v. Mozley, 5 Jur. (N. S.) 1119 .... 45, 83, 136, 150 Lechmere Charlton's case, 6 L. J. Ch. 185 ; 2 My. & Cr. 316 . . 160 Lee V. Ajigas, L. R. 2 Eq. 59 ; 35 L. J. Ch. 370 ; 14 L. T. (N. S.) 324 ; 14 W. B. 667 121 Leigh, Be, BowcUflfe v. Leigh, 6 Ch. D. 256 ; 37 L. T. (N. S.) 557 ; 25 W. R. 783 ... 53, 158 4 Ch. D. 661 ; 46 L. J. Ch. 60 ; 25 W. R. 56 142 V. Birch, 8 L. T. (N. S.) 230 ; 11 W. R. 554 ; 32 Beav. 399 . 115 Leighton, Re, Ex, parte Byrne, 35 L. J. Bank. 43 .... 84 Lethbridge v. Cronk, 44 L. J. C. P. 381 ; 33 L. T. (N. S.) 171 ; 23 W. B. 702 136 Levy V. Buncombe, 3 Dowl. 447 ; 1 C. M. & B. 737 ; 1 Gale, 60 ; 5 Tyr. 490 ' . . .160 Ley V. Barlow, 17 L. J. Ex. 105 ; 1 Exch. 800 ; 6 D. & L. 375 ; 5 Bv.Ca. 1 187 V. Marshall, W. N. 1876, 23 ; 20 S. J. 241 .. . 20, 23 xxiii Lid — Man. table of cases. PAGE Liddell v. Norton, Kay, App. xi S5 Lind V. Isle of Wight Perry Co., 2 L. T. (N. S.) 50 ; 8 W. R. 540 . 94,103 Lindsay v. Gladstone, L; E. 9 £q. 132 36, 154 Lingen v. Simpson, 6 Madd. 290 51 Llewellyn v. Badeley, 1 Hare, 527 101, 106 Lloyd V. Morky, 5 L. B. Ir, dh. 74 145 Lockett V. LoEkett, 4 Ch. 336 ; 38 L. J. Ch. 290 ; 17 W. R. 476 47, 53, 124, 129 Loker v. Rolle, 3 Ves. 4 103 London Gas Light Co. v. Chelsea (Vestry of), 28 L. J. C. P. 275 ; 23 Jur. 469; 6C. B. (N. S.)411 106 and Provincial Ins. Co. v. Davies, 5 Ch. D. 775 ; 37 L. T. (N. S.) 67 ; 25 W. R. 875 21, 177 (Mayor of) v. Levy, 8 Ves. 398, 405 .... 30, 35 Lord V. Colvin, 6 D. M. & G. 47 48 Luvell V. Galloway, 17 Beav. 1 7, 8 Lowe V. Williams, 2 S. & S. 574 42 Lcwndes v. Davies, 6 Sim. 468 92, 95, 111 Lyell V. Kennedy, 20 Ch. D. 484 ; 51 L. J. Ch. 409 ; 46 L. T. (N. S.) 752 ; 30 W. R. 493 (now overruled, see p. xl.) . . 91, 97, 115, 185 Lynch v. Lecesue, 1 Hare, 626 125 Lynn v. Denton, 1 T. E. 689 11 Lyon V. Tweddell, 13 Ch. D. 375 113 McAllister v. Rochester (Bishop of), 5 C. P. D. 194 ; 49 L. J. C. P. 443 ; 42 L. T. (N. S.) 481 ; 28 W. R. 584 28 McCorijuodale v. Bell, W. N. 1876, 39 ; 20 S. J. 260 . . . . 21 1 C. P. D. 471 ; 45 L. J. C. P. 329 ; 35 L. T. (N. S.) 261 ; 24 W. R. .S99 . . . . 67, 68, 75, 80, 208 Macdonnell v. Evans, 21 L. J. C. P. 141 ; 16 Jur. 103 ; 11 C. B. 930 . 116 McFadzen v. Liverpool (Mayor and Corp. of), L. R. 3 Ex. 279 31, 55, 56, 120 Macfarlan v. ilolt, L. R. 14 Eq. 580 ; 41 L. J. Ch. 649 ; 27 L. T. (N. S.) 305 ; 20 W> R. 945 65, 138, 208 Mcintosh V. Great Western Ey> Ca, 4 D. & S. 544, 502 118, 128, 129, 130, 138 McLonghlin v. Dwyer, Ir. Rep. 9 Ia T. 170 59 McVeagh v. CroU, 9 Jur. (N. S.) 240 35 Maden v. Keevers, 7 Beav. 489 67 Madras Ry. Co. v. Coverdale 128, 129 Madrid Bank ik Bavley, L. R. 2 Q. B. 37 ; 36 L. J. Q. B. 15 ; 15 L. T. (N. S.) 292 ; 15 W. R. 159 30,31,161 Mahoney v. National Widows' Life Ass. Fund, 6 L. R. O. P. 263 ; 40 L. J. C. P. 203 ; 24 L. T. (N. S.) 548 ; 19 W. E 722 . . . 71 Majori). Amott, 2 Jur. (N. S.) 387 , 129 Maiden v. Great Northern Ey. Co., L. R. 9 Ex. 300 ... 67, 82 Man by v. Bewicke, 8 D. M. & G. 476 118, 129, 130 Manchester Fire Insurance Co. v. Wykes, 33 L. T. (N. S.) 142 • 23 W. R. 884 . 8 Val de Ti avers Paving Co. n. Slagg, W. K 1882, 127 . 32 Mausell v. Feeney, 4 L. T. (N. S.) 437 ; 9 W. R. 610 ; 2 J. & H. 320 49 52 136 4L. T. (N.S.)436; 9W.R.532; 2 J.&H.SIS . ' 136 xxiv TABLE OF CASES. Man — Mul. PAGE Manser v. Dix, 25 L. T. 113; 1 Jur. (N. S.) 466 ; 3 Eci. 630 ; 1 K. & J. 451 . 65 Mansfield v. Childerhonse, 4 CIi. D. 82 ; 46 L. J. Cli. 30 : 35 L. T. (N. S.)590; 26 W.E. 68 43 Mareh v. Hunter, 3 Madd. 437 125 0. Keith, 1 Dr. & S. 342 2,115 .Miireliall f. Sla.lden, 7 Hare, 428 37 Martin r. Butchaitl, 36 L. T. (N. S.) 732 77 V. Hemming, 10 Exch. 478 39 Mary or Alexandui, The, 2 L. R. Ad. 319 ; 38 L. J. Ad. 29 ; 18 L. T. (N. S.) 891 ; 17 W. R. 551 . . . . . . 51, 55, 61 Jlason V. Cattley, W. N. 1883, 18 . . 37 V. Wakeman, 2 Ph. 516 . 115 Mattdckr. Heath, W.N. 1875, 201 87 Mayr. Hawkins, 25 L.T. 185 ; 19Jur.600; 3AV.R.550; 11 Exch. 210 61,96 V. Gwyune, 4 B. & Ad. 301 . . . . . . . . 184 Mazzarredo r. Maitknd, 3 Madd. 66 123 Header r. Isle of Wight Ferry Gil., 9 W.R. 750 188 Meadows t'. Kirkman, 29L. J. E.\. 205 ; 2L. T. (N.S.)251 . . 166 Meniphis,The,3L. R.Ad. 23; 21 L. T. (.N. S.)727 .... 152 Mercantile Mutual Ins. Co. v. Shoesniilh, W. N. 1876, 64 ; 20 S. J. 24 . 298 Mercier v. Cotton, 1 Q. B. D. 442; 46 L. J. Q. B. 184; 35 L. T. (N. S.) 79; 24 W. B. 566 18 Mertens v. Haigh, 8 L. T. (N. S.) 561 ; 11 W. R. 792 ; 2 W. E. 254 ; 3 D. J. & S. 528 84, 131 Metcalf i: Hervey, 1 Ves. sen. 348 92, 95, 96 Metropolitan Bank, The, Re, Heiron's Case, 15 Ch. 1). 139 ; 49 L. J. Ch. 651 ; 44L. T. 299 . . . . . 17 and Prov. Bank, Re the, Ex parte Davis, 16 W. R. 668 . 189 Saloon Omnibus Co. v. Hawkins, 28 L. J. Ex. 201 ; 4 H. & N. 146 Ill Millington v. Loring, 6 Q. B. D. 190 ; 50 L. J. Q. B. 214 ; 43 L. T. (N. S.) 657 ; 29 W. R 207 42 Minet v. Morgan, L. R. 11 Eq. 284 ; 24 L. T. (N. S.) 120 ; 19 W. R. 374 10, 186 8 Ch. 361 ; 42 L. J. Cli. 627 ; 28 L. T. 573 ; 21 W. R. 467 49,65,66,86,91,92,135,137 Minnehaha, The, L. R. 3 Ad. 148 ; 23 L.T. (K. S.) 747 ; 19 W. R. 304 101, 127, 150 MoUoy V. KUby, 15 Ch. D. 162 ; 29 W. R. 127 . . . . 28, 33 Moodalay u Morton, 1 Bro. C. C. 469 114 Moor V. Roberts, 26 L. J. C. P. 246 ; 3 Jur. (N. S.) 1221 ; 2 C. B. (N. S.)671 51,108, 116 Moore V. Kennard, W. N. 1883, 20 17 More r. May how, 1 Ch. Ca. 34 . . . . ■ 87 Momington v. Momington, 2 J. & H. 697 71 MorreUs.Wootten, 15 Jur. 319 B^ Morrice v. Swabey, 2 Beav. 500 83, 84, 131 Morris, Re, 22 L. J. Q. B. 417; 1 C. L. P. 522 ; 1 B. C. C. 190 . .160 V. Bethell, L. R. 4 C. P. 765 ; 38 L. J. C. P. 379 ; 17 W. R. 736 42 V. Parr, ,34 L. J. Q. B. 95 ; 6 B. & S. 203 20 Mostyn r. West Mostyn Coal & Iron Co., 34 L. T. (N. S.) 631 . 65, 69, 206 r. Western Coal & Iron Co., W. N. 1875, 260 .... 133 Mulcaster, Re, Dalston r. Mansoii, 47 L. J. Ch. 609 . . . . 164 XXV Mur— Par. table of cases. TAGK Murillo, The, 28 L. T. (N. S.) 374 20, 44 Murray v. Walter, Cr. & Ph. 114 82, 84 National Financial Co., Be the, 15 W. R. 499 190 Funds Ass. Co., Re the, 24 W. R. 774 ; W. N. 1876, 192 ; 20 S. J. 561, 584 29, 152 Neale v. Swiiid, 2 Cr. & J. 278 ; 1 Dowl. 314 ; 2 Tyr. 318 . . . 27 Neate v. Latimer, 2 Y. & C. Bq. 257; S. C. 4 CI. & F. 570 ; 11 Bli. (N. S.)112 98,102,104 New British Mutual Investment Co. v. Peed, 3 C. P. D. 196 ; 26 W. R. 354 101, 136, 150 Nnwall ■!). Telegraph Construction Co., L. R. 2 Eq. 756 ; 14 W. R. 914 139, 149 Newcastle (Duchess of) v. Pelham (Lord), 3 Bro. P. C. 464 . . 101 Newell V. Simpkin, 6 Bing. 565 ; 4 M. & P. 395 184 Newland v. Steere, 13 W. R. 1014 ; 1 1 Jur. (N. S.) 596 . . . 35 Newman v. Godfrey, 2 Bro. C. C. 332 89 Newry V. Kilmorey (Lord), L. R. 11 Eq. 425 ; 40 L. J. Ch. 371 ; 24 L. T. (N. S.) 15 ; 19 W. R. 271 54, 125, 144 Newton v. Dimes, 30 L. T. 30 ; 3 Jur. (N. S.) 583 45 Nias V. North Eastern Ry. Co., 3 M. & C. 355 ; 2 Keen, 76 . . 65 NichoU V. Jones, 13 W. E. 451 ; 2 H. & M. 588 . . . . 68, 150 Nicholson, Ex paHe, 14 Ch. D. i43 ; 28 W. R. 936 . . . . 17 Nordon v. Defries, 8 Q. B. D. 508 ; 51 L. J. Q. B. 415 ; 30 W. R. 612 69, 135, 207 Northi;. Huber, 7 Jur. (N. S.)767; 29Beav. 437 . . . . 86 Norway v. Rowe, 1 Mer. 135 . 42 Obiginal Hartlepool Collieries Co. v. Moon, 30 L . T. (N. S.) 193, 585 66, 77, 80, 208 Orr V. Diaper, 4 Ch. D. 92 ; 46 L. J. Ch. 41 ; 35 L. T. (N. S.) 468 ; 25W. R.23 180,182 Osbornj;.LondonDockCo.,24L. J.Ex.140; 3W.R.238; lOExch.698 55, 56, 1 27 Ovey V. Leighton, 2 S. & S. 234 123 Owen V. Nickson, 30 L. J. Q. B. 125 ; 3 L. T. (N. S.) 737 ; 7 Jur. (N. S.) 497 102 V. Pritchard, W. N. 1876, 147 •. 161 ^ — V. Wynn, 9 Ch. D. 29 ; 38 L. T. (N. S.) 445, 623 ; 26 W. R. 644 103, 185 Oxlade v. North Eastern Ry. Co., 12 C. B. (N. S.) 350 ... 168 Paddon v. Winch, L. R. 9 Eq. 666 ; 39 L. J. Ch. 627; 22 L. T. (N S ) 403 : 64 Palmer v. Wright, 10 Beav. 234 . . . ' 85 Tape V. Lister, L. J-'. 6 Q. B. 242 ; 40 L. J. Q. B. 87 ; 24 L. T. (N S ) 70 ; 19 W. R. 445 50 Parker v. Wells, 18 Ch. D. 477; 45 L. T. (N. S.) 517 ; 30 W. R. 392 40, 44, 54, 126 Parkhursti). Lowten, 2 SW..194; 3Madd. 121 . . . . 6162 Parr v. London, Chatham & Dover Ry. Co., 24 L. T. (N. S.) 558 ' 68, 79, 81 xxvi TABLE OF CASKS. Pat -Pye. PAGE 102, 1(»3 119 13 51 65,71 12 W. R. 95, 108 69, 105, 134 . 65 108, 109, 120 . 126 . T. (N. S ) . 126 . 47, 8i> . 23 ^7 159 160 81 71 46, 99 Patch V. Ward, L. R. 1 Eq. 436 ; 13 L. T. (N. S.) 496 ; 14 W. E. 166 : 12 Jur. (N. S.) 2 . . . . . . PHxton V. Douglas, 16 Ves. 239 Peacock v. Lowe, 36 L. J. P. & M. 91 . Pearse v. Pearse, 29 L. T. (N. S.) 453 ^ 22 "W. K. 69 1 De G. & S. 12 ; 11 Jur. 52 Pearson v. Turner, 33 L. J. C. P. 224 ; 10 L. T. (N. S ) 461 801 ; 10 Jur. (N. S.) 731 ; 16 C. B. (N. S.>157 . Piile V. Stoddart, 13 Jur. 373 ; 1 SI. & 6. 192 Penruddock r. Hammond, 11 Beav. 59 Peppiatt V. Smith, 33 L. J. Ex. 239 ; 3 H. & C. 129 Peyton v. Botting, W. N. 1873, 204 .... V. Hartinfj, L. R. 9 C. P. 9 ; 43 L. J. C. P. 10 ; 29 L, 478 ; 22 AY. R. 61 . . . . . Phelips I'. Caney, 4 Ves. 107 Philipps V. Phil'iijps, 40 L. T. (N. S.) 815; 27 W. R. 939 . Phillips V. Barron, W. N. 1876, 54 V. Gill, 1 Q. B. D. 78 ; 45 L. J. Q. B. 136 ; 24 W. E. 158 V. Hutchinson, 3 Dowl. 583 V. Routh, L. R. 7 C. P. 287 Phillipps V. Holiner, W. N. 1867, 101 Pickering v. Noyes, 1 B. & C. 262 Pitfard r. Beeby, 14 W. R 302 ; L. R. 1 Eq. 623 ; 35 L. J. Ch. 258 ; 14 L. T. (N. S.) 8 ; 12 Jur. 117 22, 132 Pike V. Keene, 35 L. T. (N. 8.) 341 ; 24 W. R. 322 ; W. N. 1876, 36 . 159 Pilcher v. Rawlings, 7 Ch. 259 ; 41 L. J. Ch. 485 ; 25 L. T. (N. S.) 921; 20W. R. 281; li. R. 11 Eq. 53 87 Pilgrim v. Southampton Ry. Co., 18 L. J. C. P. 330 . . . . 157 Pirie, Be, cit. Daniell's Ch. Pr., 5th ed., pp. 1065, 1098, 1683 . . 37 Pitten V. Chaitenherg, W. N. 1875, 248 ; 20 S. J. 139 . . . 22, 149 PJum V. Normanton Iron & Steam Co., W. N. 1876, 73 ; 20 S. J. 298 . 24 Pohl V. Young, 25 L. J. Q. B. 23 ; 26 L. T. 108 ; 4 W. R. 84 ; 19 Jur. 1139 ............ 33 Pollard V. Pollard & Hemming, 3 S. & T. 613, 44 . . . . '. 14 Ponsonbyr. Hartley, W.N. 1S83, 13 47,50 Pontet V. Basingstoke Canal Co., 2 Bing. N. C. 370 ; 2 Scott, 543 . 188 Portailington (Earl of) v. Soulby, 7 Sim. 28 123 Portsmouth (Earl of) v. Fellows, 5 Madd. 450 43 Potter r. Metropolitan District Ry. Co., 28 L. T. (N. S.) 231 . . . 112 PoweU V. Heffeman, 4 L. R. Ir. Cf. L. 703 133, 148 Pratt V. GosweU, 3 L. T. (N. S.) 669 ; 9 C. B. (N. S.) 706 . . . 118 V. Pratt, 51 L. J. Ch. 840 ; 47 L. T. (N. S.) 249 ; 30 W. R. 837; W. N. 1882, 117 85,153 Prentice v. Phillips, 2 Hare, 152 15^ Prestney i;. Colchester (Mayor of), W. N. 1883, 41 . . . .188 Preston v. Carr, 1 Y. & J. 175 . . 106 Price V. Harrison, 29 L. J. C. P. 335 ; 6 Jur. (N. S.) 1345 ; 8 C. B. (N. S.) 617 27 V. Piicp, 48 L. J. Ch. 215 161 Princess of Wales v. Liverpool (Earl of), 1 Sw. 114 . . 3, 25, 92, 98 PrL4eau v. U. S. A., L. R. 2 Eq. 659 ; S. C. 14 L. T. (N. S.) 700 ; 14 W. R. 1012 . 29 Pritchett V. Smart, 18 L. J. C. P. 21 1 ; 7 C. B. 625 ; 6 D. & L 702 . 119 Pye V. Butteriield, 34 L J. Q. B. 17; 11 Jur. (N. S.) 220; 5 B. & S. 829 39, 96 xxvii ftua — B. TABLE OF CASES. PAGE QuABRBLL V. Beckford, 1 Madd. 269 124 Queen's case, 2 B. & B. 289 116 Quilter V. Heatley, W. N. 1883, 4 26 Qiiin V. Eatcliff, 3 L. T. (N. S ) 363 ; 9 W. R. 65 ; 6 Jiir. (N. S.) 1327 45, 89, 100 Radoliffe v. FuTsman, 2 Bro. P. C. 514 64 Ramsbotham v. Senior, L. R. 8 Eq. 575 ; 17 W. R. 1057 . . . 70 Ruusden v. Bieailey, 33 L. T. (N. S.) 322 ; W. N. 1875, 199 . 40, 59 Ranger v. Great Western Ry. Co., 7 W. R. 426 ; 4 De G. & J. 74 . . 29 Ratcliffe v. Bleasby, 3 Bing. 148 ; 10 Moo. J. B. 523 . . . 27, 118 Rayner v. AUhnsen, 21 L J. Q. B. 68 ; 15 Jur. 1060 ; 2 L. M. & P. 605 106 V. Ritson, 35 L. J. Q. B. 59 ; 14 W. R. 81 ; 6 B. & S. 888 36, 49, 119, 137 Read (or Reed) v. Barton, 26 L. J. Ch. 264 ; 28 L. T. 263 ; 5 W. R. 240 ; 3 Jur. (N. S.) 263 ; 3 K. . Aylmer d. Hare, Barnes, 236 11,192 Rogers i;! Turner, 21 L. J. Ex. 8 ; 18 L. T. 109 ; 15 Jur, 1064 . 152, 170 xxix Rol— Sla. TABLE OF CASES. PAGE Rolls V. Isaacs, W. N. 18V8, 37 . . 60 Eory, The, 7 P. D. 120 . . 227 Koss V. Gibbs, L. B. 8 Eq. 522 ; 39 L. J..Ch. 61 ; W. N. 1878, 238 . 70, 77, 227 V. Dublin Tramways Co., 8 L. R. Ir. 213 139 Eowcliffe V. Leigh, 4 Cli. D. 661 ; ^6 L. J. Ch. 60 ; 25 W. R. 56 . 142 6 Ch. D. 256 ; 37 L. T. (N. S) 557 ; 25 W. R. 783 53, 158 Rowe i>. Teed, 15 Ves. 372 . . 122 Ruinbold v. Forteath, 3 K. & J. 44, 748 ... . 95, 100, 150 Ryde (Commissioners of) v. Isle of Wight Ferry Co., cit. Seton on Decrees, 135, 150 29 St. John (Lord) v. St. John (Lady), 11 Ves. 526 .... 50 Sampson v. Swettenham, 5 Madd. 16 94 Sankey v. Alexander, L. R. Ir. 8 Eq. 241 69 Saull V. Browne, L. R. 17 Eq. 402 137, 138 9 Ch. 365, 43 L. J. Ch. 568 ; 30 L. T. (N. S.) 697 ; 22 W. R. 427 47, 52, 124 Saunders v. Jones, 7 Ch. D. 435 ; 47 L. J. Ch. 440 ; 37 L. T. (N. S.) 769 ; 26 W. R. 226 . . . 41, 45, 47, 54, 112, 114, 227 V. Saunders, 3 Drew. 387 30, 35 Saxby v. Easterbrook, L. R. 7 Ex. 207 ; 41 L. J. Ex. 113 ; 26 L. T. (N. S.) 439 ; 20 W. R. 751 21 Scarth v. Williams, W. N. 1875, 218 162 Scott V. Miller, 28 L. J. Ch. 584 ; 5 Jur. (N. S.) 858 ; Joh. 220, 328 61, 127 V. Walker, 22 L. J. Q. B. 404; 17 Jur. 916 ; 2 E. & B. 555 100, 106, 112 V. Zygomala, 24 L. J. Q. B. 129 ; 4 E. & B. 483 . . 22, 116, 168 Seafield (Lord) v. Pratt, 5 L. T. (N. S.) 674 160 Shadwell v. Shadwell, 28 L. J. C. P. 315 ; 5 Jur. (N. S.) 1410 ; 6 C. B. (N. S.) 679 107, 108 Shaftesbury (Lady) v. Arrowsmith, 4 Ves. 66 . . . 95, 100, 102 Shaw, Ei; parte, Jac. 270 85 V. Bank of England, 22 L. J. Ex. 26 . . . . 165, 166 V. Ching, 11 Vesi. 304 .. . .... 124 V. Holmes, 3 C. B. 952 188 ■!), Shaw, 31 L. J. Pr. 95 ; 2 S. & T. 642 . . . . 13 141 Sherly v. Fagg, 1 Ch. Ca 68 87 Sheward v. Lonsdale (Lord), 5 C. P. D. 47 ; 42 L. T. (N. S.) 54, 172 ; 28 W. B. 324 42, 53, 87 Short a Mercier, 3 M. & G. 205 ; 2 D. & S. 635 61 Sidebotham v. Adkins, 29 L. T. 310 ; 5 W. R. 743 ; 3 Jur. (N. S.) 631 . 55, 56 Simpson, Jix parte, 15 Ves. 476 50 r. Chapman, 15 Jur. 714 125 Singer Manufacturing Co. v. Wilson, 13 W. R. 560 ; 11 Jur (N S ) 58 ; 11 L. T. (N. S.) 670 ; 12 L. T. (N. S.) 140 . . . 166 Sivier v. Harris, W. N. 1876, 22 43 87 Sketchley?), Conolly, 11 W. R 573 44',95 Skey V. Bennett, 6 Jur. 981 83 153 Skinner v. Great Northern Ry. Co., L. B. 9 Ex. 298 ; 43 L. J. Ex 150 • ' 32 L. T. (N. S.) 233 ; 23 W. R. 7 . . . . ' 'e? 82 Slack 1). Evans, 7 Pri. 278 (a.) .... ... '42 XXX TABLE OF CASES. Sla— Swa. PAGE Slatterie v. Pooley, 10 L. J. Ex. 8 ; 4 Jur. 1038 ; 6 M. & W. 664 • 1 H. &W. 18 .' 116 Small V. Attwood, Yonnge, 407 ........ 43 Smith V. Beaufort (Duke of), 1 Hare, 507 ; 1 Ph. 209 . . ' 93 98 100 V. Berg, 36 L. T.'(N. S.) 471 ; 25 W. R. 606.. .43, 44, 121, 126, 147,' 200 V. Dauiell, L. R. 18 Eq. 649 ; 44 L. J. Ch. 189 ; 30 L. T. (N. S.) 752 67,68 V. Davies, 1 Wils. K. B. 104 - , . 185 V. East India Co., The, 1 Ph. 50 114 r. Great Western Ry. Co., 25 L. J. Q. B. 279 ; 6 E. & B. 405 . 169 V. Lay, 22 L. T. (N. S.) 785 ; 18 W. R. 915 . . . .24 V. Northumberland (Duke of), 1 Cox, Eq. 363 . . .49 185 V. Smith, W. N. 1882, 91 14, 141 V. Winter, 3 M. & ,W. 309 ; 6 Dowl. 386 ; 1 H. & H. 45 . . 27 Sx pane, 45 L. T. (N. S.) 447 17 Smyth, Re, 15 Ch. D. 286 ; 50 L. J. Ch. 34 ; 43 L. T. (N. S.) 234 ; 28 W. R. 925 ; 16 Ch. D. 673 ; 29 W. R. 585 • 152 Sneider v. Mangino, 7 Exch. 229 108 Solicitor, Jte A, 14 Ch. D 152 ; 49 L .J. Ch. 295 ; 42 L. T. (N. S.) 310 . 160 Somerville v. Mackay, 16 Ves. 382 122 Southampton (Mayor of) v. Graves, 8 T. R. 590 . . . . 11, 190 Boat and Pier Co. (Liquidators of the) v. Rawlins, 9 L. T. (N. S.) 633 ; 10 Jur. (N. S.) 118 ; 12 W. R. 288 ; 3 N. R. 34. 144 Southwark and Vauxhall Waterworks Co. v. Quick, 3 Q. B. D. 315 ; 47 L. J. Q. B. 258 ; 38 L. T. (N. S.) 28 ; 26 AV. R. 328, 341 63, 69, 74, 76, 77, 80, 81, 131, 208 Stainton v. Chadwick, 3 Mac. & G. 575 ; 13 Beav. 320 . . . . 52 Steadmanu Aiden, 15 L. J. Ex. 310; 10 Jur. 553 ; 15 M. & W. 587 ; 4D. &L. 16 27,28,187 Steele v. Stewart, 1 Ph. 471 76, 77 SteinuTahor, 3lL. T. (N. S.)444 120,140 Stem V. Sevastopulo, 32 L. J. C. P. 268 ; 8 L. T. (N. S.) 538 ; 10 Jur. (N. S.) 317 ; 11 W. R. 862 ; 14 C. B. (^f. S.) 737 . . 51, 56, 120 Stevens v. Berwick (Mayor of), 4 DowL 277 ] 90 Stewart v. Smith, L. R. 2 C. P. 293 ; 15 L. T. (N. S.) 580 . . . 120 Stigand v. Stigand, 19 Ch. D. 460 ; 51 L. J. Ch. 446 ; 30 W. R. 312 . 34 StilweU V. Ruck, 4 H. & N. 468 170 Stoate V. Rew, 32 L. J. C. P. 160 ; 11 W. R. 595 ; 14 C. B. (N. S.) 209 95 Stocks V. Ellis, L. B. 8 Q. B. 454 ; 42 L. J. Q. B. 241 ; 29 L.T.(N. S.) 267 ; 22 W. R. 17 44 Stone V. Strange, 34 L. J. Ex. 72 ; 11 L. T. (N. S.) 717 ; 13 W. R. 350; llJur. (N. S.)164; 3H. &C. 541 27 Storey v. Lennox, 1 M. & C. 525 46 Strathmore v. Strathmore, 11 L. J. (N. S.) Ch, 400 ; 6 Jur. 1101 . 62 Street v. Rigbv, 6 Ves 820 181 Stroode v. Blackburn, 3 Ves. 222 87 StrongD.Tappin, W.N. 1876,22; 20 s. J. 240 . . . .19 Stroud V. Deacon, 1 Ves. sen. 137 88, 92 Stuart 1;. Bute (Lord), 12 Sim. 460 128 SummerfieM 1;. Pritchard, 17 Beav. 9 .36, l.')4 Swann i;. Vines, cited in Kain u Farrer (which see) . . . .114 Swansea (Mayor of) v. Quirk, 5 C. P. D. 106; 49 L. J. C. P. 157 ; 28 W. R. 371 31 xxxi Swa— Und. taiu.e of cases. PAGE Swansea Vale River Co. v. Budd, L. E. 2 Ei^. 274 ; 12 Jur. 561 ; 14 W. R. 668 36 Swanstoi) v. Li-hman, 45 L. T. (N. S.)360 85, ICl Sweet V. Yimng, Ami). 353 89 Swift 1). Nun, 26 L. J. Ex. 365 146,168 Swiiiborne i>. Nelson, 16 Beav. 416 43,89,91,123 Swire v. Redman, 20 S. J. 584 22 Tagg v. South Devon Ry. Co., 12 Beav. 151 153 Talbot V. Marshfteld, L. R. 1 Ec^. 6 ; 13 W. R. 885 . . 49, 70, 154 2 Dr. & Sm. 549 37 V. Villeboys, 3 T. R. 142 (n.) 185 Talton, Ex parte, 17 Cli. D. 512 17 Taylor v. Batten, 4 Q. B. D. 85 ; 43 L. J. Q. B. 72 ; 39 L. T. (N. S.) 408 ; 27 W. R. 106 133, 138, 149, 204 V. Foster, 2 C. & P. 195 71 V. Oliver, 45 L. J. Ch. 774 ; 31 L. T. (N. S.) 902 . . . 135 V. Osborne, 4 Taunt. 159 28 .V. Rundell, 5 Jur. 1129 ; 1 Ph. 222 ; Cr. & Ph. 104 . 83, 128 Telford v. Ruskin, 1 Dr. & Sm. 48 43, 129 Temperley v. Willdtt, 25 L. J. Q. B. 259 ; 2 Jur. (N. S.) 519 ; 6 E. & B. 380 118 Tench v. Cheese, 1 Bnav. 571 42 Tetley v. Easton, 26 L. J. C. P. 269 ; 2 C. B. (N. S.) 706 . . . 59 Theodor Koruer, The, 3 Ad. D. 162 ; 47 L. J. Ad. 85 ; 38 L. T. (N. S.) 818; 27W. R. 307 63 Thomas v. Palin, W. N. 1882, 7.3, 81 160 Thomas v. The Queen, L. R. 10 Q. B. 44 ; 44 L. J. Q. B. 17 ; 32 L. T. (N. S.) 59 ; 23 W. E. 345 38 V. Rawlinup, 5 Jur. (N. S.) 667 ; 27 Beav. 140 . . . . 68 V. Sec. of State for India, 18 W. R. 312 37 Thompson v. Dunn, 5 Ch. 573 ; 18 W. R. 334, 854 . . 47, 54, 124 V. Talk, 1 Drevc. 21 69 V. Robson, 2 H. & N. 412 . , . . . .7, 118 Thorp V. Sutcliffe, 39 L. J. Ch. 712 7, 140 V. Macauley, 5 Madd. 218 55 Threlfall v. Webster, 1 Ring. 161 .. . ... 118 Tomlin v. Tlie Queen, 4 Ex. D. 251 38 Towne v. Cocks, L. R. 9 Ex. 45 ; 43 L. J. Ex. 41 . . . .94, 107 Trinity House (Corp. of) v. Burge, 9, Sim. 411 62 Tuini). Billingsley,2 C. M. & R. 253 156 Tupling r. Ward, 30 L. J. Ex. 222 ; 6 H. & N. 749 . . . 66, 144 Turner, Re, Emma Silver Mining Co., Be, 24 W. R. 54 . . . 84 V. Burkenshaw (or Bnrkinshaw), 8 L. T. (N. S.) 569 ; 11 W. R. 851 ; 2 N. R. 414 ; 4 Giff. 399 24, ()9 106 , V. Jack, 23 L. T. (N. S.) 800 ; 19 W. R. 433 .. . 125 Turney v. Bayjey, 12 W. R 633 ; 4 D. J. & S. 332 . . 52, 70 158 Turton v. Barber, 17 Eii, 329 ; 43 L. J. Ch. 468 ; 22 W. R. 438 . 65 Twycross v. Grant, W. N. 1875, 201, 229 ; 20 S. J. 97 . . 163 Tyas J!. Brown, 42 L. T. (N. S.) 501 ; 28 W. R. 575 . . . 69 Tyler v. Drayton, 2 S. & S. 309 103 Undebwood v. Sec. of State for India, 35 L. J. Ch. 345 ; 14 L T (N. S.) 385 ; 14 W. R. 551 ; 12 Jur. 321 . . . , ' [ 37 xxxii TABLE OF CASES. Uni — Wei. PAGE Union Bank of London v. Manby, 13 Ch. D. 239 ; 49 L. J. Ch. 127 ; 41 L. T. (N. S.) 393 ; 28 W. R. 23 24 United States of America v. MoRae, 3 Ch. 79 ; 37 L. J. Ch. 129 ; 17 L. T. (N. S.) 428 ; 16 W. R 377 . 62, 282 V. Wagner, 2 Ch. 582 ; 3^ L. J. Ch. 624 ; 16 L. T. (N. S.) 646 ; 15 W. R. 634 33 Unsworth v. Woodcock, 3 Madd. 432 .... . . 124 UxMdge (Lord) v. Staveland, 1 Ves. Sen 56 . . . 61, 62 Vale v. Oppert, 10 Ch. 340 ; 44 L. J. Ch. 258, 579 ; 32 L. T. (N. S.) 86 ; 33 L. T. (N. S.) 41 ; 23 W. R. 780 85 Venables v. Schweitzer, L. R. 16 Eq. 76 ; 42 L. J. Ch. 389 ; 28 L. T. (N. S.) 462 ; 21 W. R. 605 . . 59 Venninck v. Edwards, 29 W. R. 189 61, 158 Vicary v. Great Northern By. Co., 9 Q. B. D. 168 ; 51 L. J. Q. B. 462 . . . 177 Vidi V. Smith, 23 L. J. Q. B. 342 ; 1 Jur. (N. S.) 14 ; 3 E. & B. 969 ; 2 C. L. R. 1573 165 Villeboisnet v. Tobin, L. R. 4 C. P. 184 ; 38 L. J. C. P. 146 ; 19 L. T. (N. S.) 698 ; 17 W. R. 322 55, 56 Von Hoff V. Hoersten, 27 L. J. Ex. 299 160 Voysey v. Cox, W. N. 1876, 12 58 Vyse V. Foster, L. R. 13 Eq. 602 ; 26 L. T. (N. S.) 282 . 85, 113, 136 Wadkeb (Rajah of Coorq) v. East India Co. , 2 Jur. (N. S.) 407 ; 8 D. M. & G. 182 ; S. C. 25 L. J. Ch. 345 . . . . 49, 114, 137 Wagstaflf V. Read, 2 Ch. Ca. 156 . • 87 Wagstaffe v. Anderson, 39 L. T. (N. S.) 332 150 Walburn v. Ingilby, 1 My. & K 61 84 Walker, A> parte, 15 Jur. 853 190 V. Daniell, 30 L. T. (N. S.) 357 ... . .126 1). Poole, 21 Ch. D. 835 140 Wallen v. Forrestt, L. R. 7 Q. B. 239 96 Wallis V. Hepburn, 3 Q. B. D. 84 (note) .... 163, 177 Wallwyn v. Lee, 9 Ves. 24 87 Walsham v. Stainton, 19 L. T. (N. S.) 603 ; 12 W. R. 1 99 ; 2 H. & M. 1 65, 68, 71 Walsingham (Lord) v. Goodricke, 3 Hare, 122 65 Warwick v. Queen's Cull. Oxford, L. R. 4 Eq. 254. ... 48, 50 L. R. 3 Eq. 683 ; 36 L. J. Ch. 505 103, 185, 186 Watson V. Hawkins, 24 W. R. 884 147 Webb V. Adkins, 23 L. J. C. P. 96 ; 14 C. B. 401 . . . . 96 V. Bomford, 46 L. J. Ch. 288 ; 25 W. R. 251 ; W. N. 1877, 5 . 147 V. East, 5 Ex. D. 23, 108 ; 49 L. J. E.x. 250 ; 41 L. T. (N. S.) 715 ; 28 W. R. 229, 336 30, 60 Webster v. Threlfall, 2 S. & S. 190 47 ■ V. Whewall, 15 Ch. D. 120 ; 49 L. J. Ch. 704 ; 46 L. T. (N.S.) 868 ; 28 W. R. 951 . 24, 156 Weise V. Wardle, L. R. 19 Eq. 171 ; 23 W. R. 208 . . . . 8:5 Wells V. Wren, 5 C. P. D. 546 17 xxxiii Wei — Woo. TABLE OF CASES. PAGE Welsh Steam Collieries Co. v. Gaskell, 36 L. T. (N. S.) 352 49, 136, 137, 139, 149 West, Re (Good, Ex pa/rte), 21 Ch. D. 868 ; 51 L. J. Ch. 831 . . 87 of England and South Wales Bank v. Canton Ins. Co., 2 Ex. D. 472 ~ . . . . 35, 133 Westminster and Brymho'ColUery Co. v. Clayton, 9 L. T-. (N. S.) 534 ; 12W. R. 123; 3N. E. Ill . ' 138 Weston V. Cohen, 20 L. T. (N. S.) 299 146 WhaUey, Be, 15 L. J. Ex. 4 ; 9 Jur. 995 ; 14 M. & W. 731 ; 3 D. & L. 291 160 Whateley v. Crowter (or Crawford), 25 L. J. Q. B. 163 ; 26 L. T. 104 ; 2 Jut. (N. S.) 507 ; 5 E. & B. 709 . . . . 39, 87, 88, 106 Wheeler v. Le Marchant, 17 Ch. D. 675 ; 60 L. J. Ch. 793 ; 44 L. T. (N. 8.) 632 64, 66, 75, 78, 80 Whistler v. Hancock, 3 Q. B. D. 83 ; 47 L. J. Q. B. 152 ; 37 L. T. (N. S.) 639 ; 26 W. E. 211 163, 177 White V. Howard, 2 De G. & Sm. 223 125 „. Watts, 31 L.' J. C. P. 381 ; 6 L. T. (N. S.) 387 ; 12 C. B. (N. S.) 267 .■ 28, 87 v. Williams, 8 Ves. 192 43, 122 Whittingham v. Cusack, Ir. Eep. 7 Eq. 162 37 Wier V. Tucker, L. E. 14 Eq. 25 ; 41 L. J. Ch. 471 ; 26 L. T. (N. S.) 719 ; 20 W. E. 586 47 Wilkes V. Hopkins, 1 C. B. 737 ; 3 D. & L. 184 157 Wilkinson v. D'Eaugier, 2 Y. & C. 363 62 Williams v. Prince of Wales Assce. Co., 23 Beav. 338 . . . 36, 153 Wilson V. Church, 9 Ch. D. 652 ; 39 L. T. (N. S.) 413 ; 26 W. E. 235 30, 32 — — V. Forster, 1 Younge, 280 101 V. Northampton and Banbury Ey. Co., L. E. 14 Eq. 477 ; 27 L. T. (N. S.) 507 ; 20 W. E. 938 . . . . 50, 68 V. Eaffalovich, 7 Q. B. D. 553 35, ia7 V. Eastall, 4 T. E. 753 70 V. Thonibury, L. E. 17 Eq. 517 ; 43 L. J. Ch. 356 ; 22 W. E. 5t)9 47, 103 Wilton V. Clifton, 2 Hare, 535 146 Wilks and Berks Canal Navigation Co. v. Swindon Waterworks Co., 20 W. R 353 45 Winchester (Bishop ol)'y. Bo wker, 29 Beav. 479 . . . 37,118 Windle i>. Lane, 29 L. J. Ex. 245 161 Winscom v. Winscom, 33 L. J. Prob. 45 ; 3 S. & T. 383 (n) . . 13 Winters v. Dabbs, W. N. 1876, 21 . . 58 Wolverhampton New Waterworks Co. v. Hawksford, 28 L. J. C. P. 198 ; 5 Jur. (N. S.) 736 ; 5 C. B. (N. S.) 703 . . . .116 Wood V. Anglo-Italian Bank, The, 34 L. T. (N. S.) 255 ; 20 S. J. 332 54, 158 V. Morewood, 9 Dowl. 44 ; 2 Scott, N. E. 204 . . . . 118 9 Dowl. 669 ; 3 Scott, N. E. 19^7 ; 5 Jur. 389 . 183 Woodcock V. Worthington, 2 Y. & J. 4 . , . . .27 Woods V. Woods, 4 Hare, 83 65 WuoUey u North London Ey. Co., L. K 4 C. P. 602 ; 38 L. J. C. P. 317 ; 20 L. T. (N. S.) 613 ; 17 W. E. 650, 797 . . 62, 80 V. Pole, 32 L. J. C. P. 263 ; 14 C. B. (N. S.) 638 . . 7, 67, 71, 110 Woolner v. Devereux, 9 Dowl. 672 ; 2 M. & G. 758 ; 3 Scott, N. E. 224 59 xxxiv ^ TABLE OF CASES. Wri— zyc. Wright V. Goodlake, 34 L. J. Ex. (N. S.) 82 ; 13 W. R. 349 ; 3 H. & C. 540 45 V. Morrey, 24 L. J. Ex. 259 ; 11 Exch. 209 . . . . 107 u Pitt, 3 Ch. 137 ; 16 W. R. 783, 1073 137 Wynne v. Humlierston, 32 L. T. 306 ; 27 Beav. 421 . . 33, 37, 51, 70 Yorkshire Fibre Co., Re The, L. R. 9 Eq. 650 ; 18 W. R. 541 . . 189 Young V. Brassey, 1 Ch. D. 277 ; 45 L. J. Ch. 142 ; 24 W. R. 110 . 34 V. Lynch, 1 W. Bl. 27 190 Zabipi v. Thornton, 26 L. J. Ex. 214 ; 21 Jur. 92 Zychlinski v. Maltby, 10 C. B. (N. S.) 83 108, 144 . . 120 TABLE OF CASES QUOTED ELSEWHERE THAN IN THE BODY OF THE WORK. PASE Compagnie Financifere, &c.,i). The Peruvian Guano Co., 31 W. R. 395 262 Coisellis, Be, Lawton v. Elwes, 31 W. R. 414 279 Crossley v. Tomey, 2 Ch. D. 53 ; 48 L. T. (N. S.) 22 . . . 281 Crowe V. Tyrrell, 2 Madd. 297 xl Drake v. Drake, 3 Hare, 523 xl Edison Tel. Co. v. India R. Co., 17 Ch. D. 137 281 Lefroy w. Bumside, L. R. Ir. 4 C. L. 340 275 Murray D. Clayton, L. R. 15 Eq. 115 290 Newton u Berresford, 17 Ex. 377 270 Pennington v. Beechey, 2 S. & S. 282 xl Peimce v. Williams, W. N. 1883, 4 262 Perry v. Mitchell, 1 Webst. Pat. Ca 269 Renard v. Levinstein, 10 L. T. (N. S.) 94 281 The Radnorshire, 5 P. D. 172 ; 43 L. T. (N. S.) 319 ; 29 W. R. 476 . 276 Wallis V. Jackson, W. N. 1883, 40 274 Westinghousei;. Midland Railway Co., 48 L. T.(N.S.) 98 . . . 283 Wright V. Plumptre, 3 Madd. 481 xl XXXV TABLE OF STATUTES, RULES AND ORDERS. PAGE 12 Geo. II. c. 29, s. 8 . . 184 s. 9 . . . 184 17 Geo. 11. c. 38, s. 1 . . 184 13 Geo. III. c. 63, s. 44 . 16 32 Geo. III. c. 58, s. 4 . .191 46 Geo. III. c. 37 . . . 59 6 Geo. IV. c. 50, s. 23 . . 8 iWm. IV. c. 22 . . . 16 s. 4 . .20 s 5 . 169 5 & 6 Will. IV. c. 76,' s. 2 ' '. 191 6 & 7 Will. IV. c. 76, s. 19 . 7, 59 1 & 2 Vict. c. 110, s. 73. .15 4&5Vict. c. 35 . . . 187 5 Vict. c. 5 . . . . 5 6 & 7 Vict. c. 23 . . . 187 c. 73 . . .61 7 & 8 Vict. c. 55 . . . 187 ' 8 & 9 Vict. c. 16, s. 36 . . 188 12 & 13 Vict. c. 101, s. 12 . 15 c. 106, s. 100 . 84 14 & 15 Vict. c. 99 (Evidence Amendment Act, 1851) 10, 39, 106 s. 6 5, 9, 11, 22, 60, 117, 170, 238 15 & 16 Vict. c. 51, ss. 20 & 21 186, 187 c. 76 (Common Law Procedure Act, 1852) . 34 B. 7 . 255 s. 18 . 34 s. 19 . 34 s. 55 . 5, 241 B. 56 . 5, 241 s. 117 . 171, 256 ss. 118, 119 171, 256 c. 83, s. 42 8, 25, 64, 165 c. 86 (Chancery Improvement Act) . 22, 39, 62 s. 10 . . . . 2, 4, 238 PAGE 15 & 16 Vict. c. 86 (Chancery Improvement Act), s. 12 . 2,4, 143, 239 8. 14 . . . 2, 239 s. 18 . . 3, 4, 29, 30, 239 s. 19 . . 2, 4, 30, 240 s. 20 . . 4, 29, 30, 240 s. 28 . . . .48 8. 31 48 s. 58 .... 7 16 & 17 Vict. c. 83, s. 3 . . 38 17 & 18 Vict. c. 125 (Common Law Procediire Act, 1854) . 39, 96, 106, 141, 166 s. 3 181 s. 7 181 s. 27 .... 48 -s. 46 . . . 169, 241 s. 47 . . . 169,241 s. 48 . . . 169, 242 B. 49 . . . 169, 242 s. 50 6, 8, 15, 22, 31, 60, 62, 117, 168, 171, 242 s. 51 5, 15, 19, 20, 30, 39, 55, 56, 116, 167, 168, 169, 243 s. 52 . . . 15, 167, 243 s. 53 . . 122, 168, 243 s. 54 . . . 169, 244 ss. 55, 56, 57 . . .244 s. 58 . 8, 164, 171, 245 s 59 , 245 19 & 20 Vict. c. 108, s.' 32 .' . 17 c. 113, s. 1 .17 20 & 21 Vict. c. 77, s. 26 . 12, 142 s. 32 . 142 s. 36 . 12, 13 c. 85, s. 47 13, 141 s. 48 . 141 c. clvii. s. 20 . 14 s. 21 14, 170 s. 41. . 166 TABLE OF STATUTES, RULES AND ORDERS. XXXVll PAGE 22 Vict. c. 10, s. 1 . . . 16 24 & 25 Vict c. 10 . , . 142 s. 17 . 12 s. 18 . . 12 25 & 26 Vict. c. 89, s. 117 . 17 s. 156 . . 189 28 & 29 Vict. c. 99, s. 16 . . 171 32 & 33 Vict. c. 24 . . . 7, 59 c. 62 (gen. rule 3) 17 c. 71, a. 97 . . 17 35 & 36 Vict. c. 33, Sched. I. rr. 40, 41 . . . . 17 36 & 37 Vict. c. 66 (Supreme Court of Judicature Act, 1873) 141 s. 49 176 s. 100 . 28 38 & 39 Vict. c. 77 (Supreme Court of Judicature Act, 1875) .... 39 s. 16 . 141 s. 18 . . 141 45 & 46 Vict. c. 75, s. 12 . . 38 s. 17 . . 38 Order I. rule 1 . .29 II. „ 4 . . 34 „ VII. „ 1 . 157, 255 „ 2 157, 256 XL . . 34 „ XIV. „ 4, 5 . 258 „ XVI. „ 10 157,159,246 „ 13 . . 31 XIX. „ 4 . . 42 „ 8 . 180, 246 XXXI. „ 1 16, 18, 21, 28, 142, 246 „ 2 144,177,246 „ 3 144, 246 „ 4 30,143,246 „ 5 . 18,41 43, 56, 57, 58 „ 5a, 18,41,58, 101, 144, 147, 246 „ 6 146, 246 „ 7 . 147,248 „ la . 248 „ 8 . . 41 „ 9 121,145,248 „ 10 121, 145, 177, 248 „ 11 . 22,28,29, 33, 138, 142, 151, 248 PAGE Order XXXI., rule 12 22, 23, 28, 46, 133, 148, 150,151,249 „ 13 . 28, 29, 101, 133,150,249 „ 14 22, 28, 31, 33, 99, 109, 117,151,155, 156, 179, 249 „ 15 155, 249 „ 16 28,155,249 „ 17 23,28,155, 156, 250 „ 18 . 23, 28, 117, 142, 151, 152, 250 „ 19 . 40, 47, 53, 90, 124, 158, 182, 250 „ 20 . 145, 159, 162, 250 „ 21 163,179,251 „ 22 . 163, 251 „ 23 . 158, 251 „ XXXII. „ 23, 4 151, 156, 179, 257 „ XXXIII. . .260 „ XXXVI. „ 32 . . 142 „ XXXVII. „ 4 . .34 XLIV. „ 1 . . 161 „ 2 . . 159 „ LII. „ 3 142, 164, 165, 251 „ 42.5,164,251 „ LIII. „ 1 . . 159 2 159 „ LIV. ,',' 2 . 142, 164, 177, 178 „ 2a . 142, 164 LV „ 1 . . 177 „ LVII. „ 6 . 146, 150 „ LXa. „ 1 . . 153 „ LXII. „ 1 . . 141 Order VI. (Additional Rules of Court— Costs) . 179 rule 15 . . . 179 Begulae Generales. R. H. 2 WiU. IV., rule 47, App., p. 227 1 H. T. 2 Will. IV. . . 9 31 H. T. 16 Vict. . . . 10 M. T. 1867 . . . .166 H. T. 1853 . . . . 171 XXXviii TABLE OF STATUTES, RULES AND ORDERS. Orders in Comicil. 17 Nov. 1863 Consolidated Orders. Order XXV. . Order X. rule 7 . XV. „ 4 „ XLII. „ 3,4 Orders of County Courts. Orders of 1857, rule 63 „ 1867, „ 76, PAGE 166 34 , . 115 146, 252 146, 252 153, 252 82. 15 15 PAGE Orders of 1851, rule 65 . 15 „ 1875, Order XIII., rule 7 15 „ 1875 . 171, 252—255 Order XXII. rule 1 . . 173 »» )> „ 2 . 174 5» )) „ 3 . 174, 175 )) » „ 4 174, 175 i1 » „ 5 . . 175 J7 » „ 6 . 172 )J W „ 7 . . 172 ?» >» „ 8. 172, 173 » J) „ 9 . . 175 xxxix LIST OF WORKS CITED. CMtty's Forms, 9th ed. (C. F.). „ 11th ed. (C. F.). Chitty's Archbold's Practice, 11th and 13th eds. (Ch. Arch.). Copinger on Title Deeds. Daniell's Chancery Practice, 5th ed. „ „ Forms, 3rd ed. (D. F.). Day's Common Law Procedure Acts, 4th ed. Hare on Discovery, 1836 Lush's Practice, 3rd ed. Haddock's Chancery Practice, 3rd ed. Morgan's Chancery Acts and Orders, 5th ed. Preston on Abstracts of Title, 2nd ed. Lord Redesdale's (Mitford's) Pleading in Chancery, 5th ed. Seton's Forms of Decrees, Judgments and Orders. Spence's Equitable Jurisdiction in Chancery. Stephen's Digest of the Law of Evidence, 4th ed. Wigram on the Law of Discovery, 2nd ed. Williams on the Law and Practice in Bankruptcy, 2nd ed. xl NOTE TO THE CASE OF LYELL v. KENNEDY, p. 97. The decision of the House of Lords on this most important case has just appeared in the daily prints, and will doubtless soon be ofiScially reported. Its effect is to reverse the common law practice in ejectment as generally understood, as well as the judgments of the Q)urt of Appeal, and to allow interrogatories in actions for the recovery of land to be put so as to obtain admiissions of the plaintiff's title so long as they do not seek that which relates exchisimely to the defendants title. The doctrine laid down in the Court of Appeal in the Attorney-General v. GasMll (see pp. 90, 91) is therefore applicable now to all actions. It must be remarked that the decision of the House of Lords, as reported in the Times of March the 20th, is based to some extent on cases where a fiduciary relation existed, as to which the reader is referred to page 37. The view shortly submitted on page 94, note (e), seems, therefore, confirmed, and the principles of the equity cases cited on pages 95, 100, 102 and 107, and those enunciated in Drake v. Brake, 3 Hare, 523 ; Crowe v. Tyrrell, 2 Madd. 397 ; Wright v. Plwmpi/re, 3 Madd. 481 ; and Pennington v. Beechey, 2 S. & S. 282, will now govern both tithe and ejectment actions. It should further be observed that the Lord Chancellor expressly approves of Horton v. Bott, and that the now obiter dicta of Brett, L.J., set out on page 97, should not be considered as overuled, though the case of Daniell v. Ford, there cited, ceases to remain a binding authority. THE LAW RELATING TO DISCOVERY. INTRODUCTION. SKETCH OF THE HISTORY OF DISCOVERY UP TO THE JUDICATURE ACTS. The power of compelling Interrogatories, Production, In- spection, and Discovery owes its origin exclusively to the Courts of Chancery, and in those Courts was at an early period (a) at least irregularly recognized. It may, there- fore, be convenient to consider its history in equity and at law separately. We shall first treat of the Chancery "Discovery J &o., in procedure. Chancery. Interrogatories in an equity suit were, on the part of the Inten-oga- plaintiff, in theory a translation of the stating and charging °"^^^' . parts of the bill alone into questions ; and before the tiff- Chancery Amendment Act (6) it was necessary to intro- duce into the bill charges suggesting imagined facts in order to found any interrogatory upon theiti. Every bill for relief was thus also a bill for discovery (c), and except where the defendant admitted or successfully demurred to the bill, an answer was required and must have appeared on the same record as the defence. Unless, moreover, the discovery sought was material to the plaintiff's case, and not exclusively relating to the defendant's evidence, it (a) Spence's Eq. Jurisdiction, pp. 677 — 680. (b) 15 & 16 Vict. c. 86. (c) As to bills of discovery, see Spence's Eq. Jur. I,, 677 — 680 : Daniell's Ch. Pr., 5th ed., 1408-1412. B , 12, •I. 14, 2 THE HISTORY OF DISCOVERT UP TO could be resisted by the latter; and the plaintiff, if he thouglit that the answer was insufficient, or that part of it was scandalous, might file exceptions thereto. The answer was, under the old practice,, obtained through the examination on oath of the defendant upon the plaintiff's bill by the Masters of the Court in London, in the country by commissioners ; later the task was entrusted to counsel, who drew the answer to be sworn, and this continued to TheChan- be SO until the 15 & 16 Vict. c. 86. eery Amend- By section 10 of that Act the interrogating part of the Act, bill was ordered to be omitted, and section 12 enabled the y. *■"'-. plaintiff to file interrogatories in any suit commenced by =• 10. bill for the examination of the defendant or defendants ; section 14 empowered the defendant to answer thereto in his answer to the plaintiff's, bill ; and the Act also rendered it unnecessary to introduce imaginary charges into the bill for the purpose of founding interrogatories upon them as above stated (d). By de- If the defendant required discovery as to facts, he ob- tained it formerly by means of a cross bill (e), which might require discovery as to all matters insisted on in the original bill (/) ; and although section 19 of the above Act did not abrogate such a practice (see the proviso therein), it never- s. 19, theless became of very rare occurrence, as the same section enabled a defendant in any suit, whether commenced by bill or by claim — but in the former case, not until after the defendant should have put in a sufficient answer — to file, without any cross bill for discovery, interrogatories for the examination of the plaintiff, to which had to be Concise affixed a concise statement of the heads of the discovery ■ sought, and the plaintiff was bound to answer them as if the same had been contained in a bill of discovery filed by (d) Marsh v. Keith, I Dr. & S. .342. (e) Daniell, 5th ed., 1406—1408. (/) Madcl. Ch. Pr., ,3rd. ed., p. 565, and the case there quoted. THE JUDICATURE ACTS. 3 the defendant on the day when such interrogatories should have been filed, and as if the defendant had on the same day duly appeared, and the practice of the Court with 15 & 16 reference to excepting (gr) for insufficiency or for scandal s. 19. was to be applicable to such answers; provided that in determining the materiality or relevance of any such answer, or of any exception thereto, the Court should have regard, in suits commenced by bill, to the statements contained therein, and in the answers which might have been put in thereto by the defendant exhibiting such interroga- tories for the examination of the plaintiff, and in suits com- menced by claim to the statements therein, and in any affidavits which might have been filed either in support thereof or in opposition thereto. Production was originally obtainable by the plaintiff Produc- requiring the defendant to set out shortly the contents of documents. certain documents spedfied in his bill, and unless the Court yff ^ was satisfied with the disclosure and classification thus rendered by the answer it would order production {h). This, however, proved so expensive as to be succeeded by the practice of the plaintiff in his bill demanding if the defendant had deeds or documents relating to the matters in question. The Court would then, on his admission in his answer to that effect, and at the plaintiff's application, order production. But section 18 of the 1.5 & 16 Vict. J^ & 16 ^ Viot. c. 86, c. 86 enabled the plaintiff to move the Court directly for s. 18. that purpose. When a defendant required production and inspection of To defen- documents from the plaintiff he effected it by means of a cross bill ; and where he was unable to put in a sufficient answer until he had inspected the documents in the posses- sion of the plaintiff {i) the time for answering was extended. (gr) As to exceptions, see post, p. 121. (h) Atkyns v. Wright, 14 Ves. 213 ; and see per Lord Eldon iu Princess of Wales v. Earl of Liverpool, 1 Sw. 123. (i) Princess of Wales v. Earl of Liverpool, 1 Sw. 114. B 2 4 THE HISTORY OF DISCOVERY UP TO the old rule of equity prior to the Act 15 & 16 Vict. c. 86 being tliat a party could not have an answer to a cross hill till he had himself answered the original -bill. B. 20. Section 20 of the Act gave him the same means of pro- duction as the plaintiff, except that where the defendant was required to answer the plaintiff's bill, an order of the Court was necessary to enable him to obtain production before putting in a full and sufficient answer; but this Produc- section did not extend so as to enable a defendant to obtain tion of documents an order for the production of documents in the possession defendant of ^ CO- defendant, for which purpose a cross bill was still dan^**"" necessary (k). Discovery Discovery of documents by the plaintiff from the defen- ments. " dant was either included in his bill for relief, or obtained To plain- ijy g^ simple bill of discovery. But by section 10 of the 15 & 16 Act 16 & 16 Vict. c. 86, the interrogating part of the bill g *^Q ''■ ' was ordered to be omitted, and he'could obtain such dis- ss. 12. covery either by means of interrogatories under section 12 s. 18. or on motion under section 18, or by the simple bill of discovery. To defen- As in the case of production, discovery by the defendant was formerly also obtainable by means of a cross bill, and the rule as to time there given held good here also, s. 19. Section 19 of the statute subsequently directed him to file interrogatories for the purpose, and cross bills on his part, except as against a co-defendant, became exceedingly rare. Discovery The Corresponding powers of the Common Law Courts Common are of comparatively modern origin and of gradual growth. *^' In treating of them we shall for the sake of convenience pursue the same divisioii of our subject. Interro- Before the Common Law Procedure Act of 1854, the gatones by Cquuj^qjj l^w Courts had no power to allow interroga- P*""*? (k) See Att-Gen. v. €lap]u(,m, 10 Ha. Apx. Ixviii. A defendant might, however, in certain cases obtain an affidavit of documents from a co-defendant : Kennedy v. Wakefield, 39 L. J. Ch. 827 ; 22 L, T. 645 ; 18 W. R. 884 ; and see post, p. 33. THK JUDICATUEE ACTS. «> tones, and for this purpose a bill of discovery in equity (l) I^. * ^^ was necessary, and in the case of corporations their officer 125, s. 51. must have been joined (though as to the equitable practice in analogy to the C. L. P. Act, see post, p. 30). Such a bill, however, could only have been instituted in aid of a civil right. But by section 51 of tliat Act either party could, with declaration or plea, or by leave of the Court or judge at any other time, administer interrogatories to the opposite party, provided such party (if not a body corporate, in which case the officer could be always interrogated) would be liable to be called and examined as a witness upon the matter as to which discovery was sought; and thus, in ordinary cases, the bill for discovery became unnecessary. In the practice under the above section leave was required, even where not therein ex- pressly so specified. Production of documents in the Common Law Courts Produc- before the C. L. P. Acts was obtainable by various means, inspection though to a limited extent. Deeds referred to in pleadings n't™bv on which a claim was based were produced by the process either known as "Frofert and Oyer." This consisted originally profert in the reading of such deeds before the Court, and after '^^^ ^y*"^- pleadings became general, in their production and inspec- tion by the opposite party. Section 55 of the 15 & 16 Vict. 15 & 1&^ c. 76 abolished this practice, and by section 56 of the same s. 56. Act a party pleading in answer to any pleading in which ^' any document was mentioned or referred to was at liberty to set out the whole or such part thereof as might be material, and the matter so set out was to be deemed and taken to be part of the pleading in which it was set out. Section 6 of the Act to Amend the Law of Evidence 14 & 15 Vict. c. 99, (l) Up to 1842 the Court of Exchequer possesseil a concTifreiit e. 6. jurisdiction with the Court of Chancery in all matters which were the subject of discovery therein, lait 5 Vict. c. 5 transferred the equity jurisdiction of the Court except in revenue cases to the Courts of Equity. 6 THE HISTORY OF DISCOVERY UP TO enabled the Court, upon the application of either party to an action, to compel production and inspection of any document in the possession of the T)pposite party in all cases in which such inspection could have been ordered by a Court of Equity. This statute only applied to documents "which were known to the applicant to be in the possession of his opponent (m). Non-Btatu- Again, for some time previous to that Act, the Com- tory rights -r r^ n • i ofproduo- mon Law Courts possessed, mdep'endently of statutory inspe^'tion. enactment, the power of compelling the production of documents for the purpose of being stamped so as to be available in evidence, as also of inspecting documents upon which the action or defence was immediately founded, and of those necessary for the purpose of evidence in which the applicant had a direct interest, and which were held by the opposite party in a fiduciary capacity, and of certain documents of a public character (n), such as the rolls of a manor or corporation books. With these exceptions, the party requiring production was obliged to file a bill in the Courts pf Equity for the required production. Discovery The Common Law Courts had formerly no power to of doou- . ' ^ ments by compel discovery of what documents might be in the party. possession of either party. The person seeking it had to file a bill of discovery in equity. This practice continued 17 & 18 until section 50 of 17 & 18 Vict. c. 125, which rendered V lot. c. 126, s 50. such discovery of all relevant documents with a view to their (m) Hunt V. Hewitt, 7 Exch. 236. In the Brit. Emp., cfcc, Go. v. Somes, 3 K. & J. 433, Wood, V.-C, said : " The Equity Courts have held that the power given to the Common Law Courts by the late C. L. P. Acts do not prevent them from ordering production either because they have concurrent jurisdiction with the former, or because the relief granted in this respect by the former is not commensurate with that which the latter would extend." («).See post, pp. 8—11, Second Report of Commissioners for En- quiring into Common Law Practice, 1853, pp 38. THE JUDICATURE ACTS. 7 production procurable upon affidavit at law, though the document whose discovery was sought must have been specified in such affidavit (o). It was upon the necessity for this affidavit that the practice of interrogating as to documents for the purpose of obtaining materials therefor became general, and such interrogatories were also occa- sionally used for verifying the objections stated in the affidavit of documents. In all cases in which bills of discovery were necessary in Injunc- r • 1 1 p 1 tions pend- aid of an action at law the Courts of Equity had formerly ing disco- power to grant common or special injunctions (p) to stay cbancery proceedings in the other Courts pending the discovery. Courts. Common injunctions were, however, subsequently abo- discovery lished (q). And there still, even after the C. L. P. Acts ^e'^^sary and the Act to Amend the Law of Evideiwie, remained ^■f*^'^ C. L. P. Acts, many instances where bills of discovery were necessary in aid of an action at law, and in which the Courts of Equity would exercise their power of special injunction to stay the proceedings therein until the discovery required was afforded. Thus, under 6 & 7 Will. IV. c. 76, s. 19, and 32 & 33 Vict, in actions . . If ^°' libel. c. 24, where a party intended to bring an action at law tor libel against the proprietors of a paper; the publisher thereof was required to discover who were the proprietors (r). And when the party intending to bring an action at In support „, --.,,..,. of actioHS law wished discovery of documents to establish his title, it at law to was also necessary (s); so, too, where the defendant in an yy*^^'^'' (o) Hewitt V. TFebh, 2 Jur. N. S. 1189 ; Thompson v. Rdbson, 2 H. & N. 412 ; Woolley v. Pole, 14 C. B. N. S. 538, and Bray v. Finch, 1 H. & N. 468; Thorpe v. Sutdiffe, 39 L. J. Cli. 712. (p) As to these, see Lovell v. Galloway, 17 Beav. 1. (q) 15 & 16 Vict. c. 86, s. 58, Cons. Ord. XXV. (r) Dixon v. Enoch, 13 L. R. Eq. 394 ; 41 L. J. Ch. 231 ; 26 L. T. 127; 20 W. E. 359. (s) Brown v. Wales, 15 L. K. Eq. 142 ; 42 L. J. Ch. 45 ; 27 L. T. 410; 21 W. R. 157. 8 THE HISTORY OF DISCOVERY UP TO Fraud. action on a policy of insurance suspected fraud, and wanted discovery (f) ; and, lastly, the word " documents " In cases used in section 50 of 17 & 18 Vict. c. 125, which gave the- C. L. P. power of discovery to the Common Law Courts, heing "^^^^'idml' construed to mean, as has been above stated, "specified allow dis- documents," but the powers of the Chancery Courts in this covery. . ■ , ^ • , respect oemg more extensive (u), recourse was m such cases made for the discovery of unspecified documents to Chancery. Inspection Before the C. L. P. Act, 1854, the Common Law Courts and"^^""^^^ possessed no adequate machinery for the party's, his chattels, -^vitnesses', or the jury's inspection, previous to or during the trial, of premises and chattels in the keeping or under the control of his opponent. 6 Geo. IV. The 23rd section of 6 Geo. IV. c. 50, allowed a rule for ^ . ■ a view by the jury to be obtained, but one confined to view. the place in question. By 15 & 16 Vict. c. 83, section Vict. c. 83. 42, either party might, in actions for infringement of Patents, patents, obtain such an order for an inspection as the judge might think fit. Suitors were consequently in other cases driven to the Courts of Equity for a view, but the jurisdiction of that Court being limited, section 17 & 18 58 of 17 & 18 Vict. c. 125 gave liberty to either party to e. 125,8.58. apply to the CoTlrt or a judge for a rule or order for the inspection by the jury, himself or his witnesses of any real or personal property, the inspection of which might be material to the proper determination of the question in dispute. For interrogatories on commission, and others authorised History of by particular statutes, see post, pp. 16, 17, and for history lating'to'^^" of discovery in the Admiralty, Probate, Divorce, Lord {t) Lovell V. Galloway, sup. cit. 17 Beav. I ; Manchester Fire Assce. Co. V. WyJces, 33 L. T. 142 ; 23 W. E.. 884 ; and for other cases see Daniell's Ch. Prac, 5th eel., p. 1409, note {q). (m) Flir/ht V. Robinson, 8 Beav. 22. THE JUDICATURE ACTS. 9 Mayor's, and County Courts, see post, pp. 12, 13, 14, 15. thedis- The right of inspecting the Court rolls which the tenants public or other persons interested in manors possess, when no ments. action is pending between the lord and the tenant, has Courtrolk always been regulated by the same practice as at present ; see post, pp. 185, 187. If the lord refused inspection the Where action not tenant or other party interested moved for a rule in the pending Court of King's Bench to show cause why a writ of j^^^g^^^ mandamus to enforce such right should not issue. tenant. Where, however, an action was pending, to which the Where . TCI action lord was a party, the proper course at law for the party pending. interested, after the inspection was refused, was to move for a rule to inspect, such rule being in the case of a copy- Copy- holder absolute in the King's Bench in the first instance, and nisi in the Common Pleas ; but in the case of a free- hold tenant cr other party interested invariably nisi, ^''ee- . holder. whether an action were pending or not. An affidavit was always required in support to state the circumstances of the case, the interest of the applicant, and the previous application and refusal. Subsequently, by 1 R. G. H. T. 2 Will. IV. section R.G.H.T. . 'Z Will. IV. 102 (x) applicable to all the Common Law Courts, the g. 102. above practice was altered, and in the case of an applica- tion for limited inspection of Court rolls by a copyholder, the rule, on an affidavit of application and refusal, was to be absolute in the first instance, while the old practice remained untouched as regarded one for unlimited inspection, or one made by a freehold tenant or other party interested. Next, by section 6 of the 14 & 15 Vict. c. 99, tlje Common Law Courts were empowered to compel by order, upon the application of either party to an action, production and inspection of any document in the possession of his antagonist in all cases in which such (j!) This section only applied where tui action was pending. See Ex parte Best, 3 Dowl. 38. 10 THE HISTORY OF DISCOVERY UP TO R. G. H. T 16 Vict. I. 31. inspection could have been ordered by a Court of Equity (y). And the rule of H. T. 2 Will. IV. above quoted was in- corporated with rule 31 of R. G. H. T. 16 Vict, under the C. L. P. Act of 1852. Thus a judge had full power in all cases to make an order for the required inspection ; but such order could never be absolute except in the cases before provided for by the above rule. In equity. When an action was pending the Chancery Courts would always make an order on the lord or steward of a manor, or other person having the^ custody of the Court rolls, to produce the same for the inspection of any one claiming an interest under them (0) ; and although a Court of law on a question between the lords of different manors would not enforce an inspection of the Court rolls, yet a Court of Equity would always do so on a bill of discovery (a). Such a bill of discovery would not, of course, after the passing of 14 & 15 Vict. c. 99, have been necessary. In actions by or against corporations, public companies, or concerning parishes, &e., the change in the practice with regard to enforcing the right to inspection of their books was much the same as above described. Prior to the 14 & 15 Vict. c. 99, the party interested in such public bodies (as a member of a corporation, a shareholder in a public company, or an inhabitant of a parish) obtained the required inspection at law by moving for the rule. This rule was generally nisi in the j&rst instance, though in some cases absolute, as for an inhabitant of the parish applying for inspection of the parish records (b). The motion was required to be supported by an affidavit stating the circumstances under which the inspection was claimed, and that an appli- {y) This section only applied to documents known by the appli» cant to be in his opponent's possession. Jiunt v. Hewitt, 7 Ex. 236. (z) For the Chancery practice in this respect, see 2 Ves. sen. 578, 621. (a) A fortiori in aid of its own jurisdiction : Minet v. Morgan, II L. E. Eq. 284 (6) 2 Chit. 290. '* Other public docu- ments. THE JUDICATURE ACTS. 11 cfxtion had been made in the proper quarter to malce the inspection, which had been refused : Roe v. Aylmer, Barnes, 236. With regard to the right of a stranger to Corpora- inspect corporation books, the old practice of the Common LawCourts was not to allow him inspection,at any rate until after issue joined : Hodges v. Athis, 2 W. Bl. 877 ; 3 Wils. 398 ; Exeter v. Golevian, Barnes, 238. But subsequently a practice crept in of allowing such inspection as of course : Lynn v. Denton, 1 T. E. 689 ; Barnstaple v. Lathey, 3 T. E. 303. But in Southampton v. Graves, 8 T. E. 590, the Court suddenly discovered that they had been exceeding their jurisdiction by considering this Chancery right as one of course, whereas, in fact, in equity the circumstances of the case were always considered before granting the inspection. And see Bristol v. Visger, 8 D. & E. 434. Thus, until the 14 & 15 Vict. c. 99, s. 6, the Common Law Courts had no power to grant inspection of corporation books to a party to an action against a corporation, if a stranger thereto. In equity, the method was to apply in the ordinary way for an inspection order, supported by an affidavit in a form similar to that used at Common Law ; 14 & 15 Vict. c. 99, s. 6, enabled the Courts of Common Law to enforce the inspection by a judge's order. If a rule were made to show cause why an information Quo war- should not be filed in the nature of a " quo ivarranto " (c), '^^" "' the Court of King's Bench would make a rule for the pro- secutor to inspect (which might be absolute in the first instance : R. v. Trevannion, 2 Chitty, 366), as soon as the rule to show cause was granted (d). But if the rule were (c) In early time?, informations quo warranto were considered as crimina], and no inspection could be allowed in aid of the relator ; but it became subsequently in the nature of a civil proceeding. ((Q In B. v.Babb, 3 T. R. 579, Ashhnrst, J., said : "There does not appear to be any reason why a rule for inspection should be granted until the vale iovqiioiuarranto information is made absolute." 12 THE HISTORY OF DISCOVERY UP TO Manda- niado to show cause why a mandamus should not be ™"'^" awarded, the Court would not make a rule for such inspec- tion until the rule was made absolute, and a return made to the mandamus (Tidd. I. 596). Admiralty The Admiralty Court Act, 1861, section 17, provided that 24 & 25 the judge of that Court should have all such powers as were Vict. c. 10, possessed by any of the superior Courts of Common Law, or any judge thereof, to compel either party in any cause or matter to answer interrogatories, and to enforce the production, inspection, and delivery of copies of any docu- B. 18. ment in his possession or power. And section 18 provided that any party in a cause in the High Court of Admiralty should be at liberty to apply to the said Court for an order for the inspection by the Trinity Masters, or others ap- pointed for the trial of the said cause, or by the party himself or his witnesses, of any ship or other personal or real property, the inspection of which might be material to the issue of the cause; and the Court might make such Costs. order in respect of the costs arising thereout as to it shall seem fit. Before this statute the Admiralty Court had no power to give discovery of any kind. ProiiHte The practice of the Court of Probate with regard to production of documents and discovery was regulated by 20 & 21 section 26 of the Court of Probate Act, 1857 (20 & 21 "Vict..;. 77. ,^. „.^ "- Vict. c. 77). Interroga- Until the Judicature Acts (e), this Court had no power to tories. n . n i . . . allow either party to administer interrogatories to the other; but this was doubted in cases falling within section s. 36. 36 of the Act: cf. Hunt & Gotbed v. Aifiderson, infra, and Fuller V. Ingram, 5 Jur. (N. S.) 510; though a bill of discovery in equity would of course lie for that purpose : ibid. Discovery Section 26 enabled the Court, whether a suit were pending ductK™." o'^ ^^o*' *° order persons to bring testamentary papers into the (e) See pust, Practice, p. 142. THE JUDICATURE ACTS. 1:J registry, or, if there were reasonable grounds for believing that a person had knowledge of such a paper, although H were not shown to be in his possession, to direct him to be examined in open Court, or by interrogatories. And the Court had power to order any document sufficiently de- scribed, and shown to be material to the inquiry, to be brought into the registry : Peacock £■ Peake v. Lo^ve and Others, 36 L. J. P. k M. 91. Further, under section 36 (which enacted that this Discovery. Court should, for all purposes of and auxiliary to the trial of questions of fact by a jury before the Court itself, have s. 36. the same jurisdiction, power and authority as the Common Law and Chancery Courts and the judges thereof), it was ^ held that discovery was "auxiliary" to the trial of the ques- tion of fact, and therefore that the Court had power to order a party to the suit to file an affidavit setting out not only testamentary documents or other papers throwing light upon the testamentary intentions of a deceased person, but also as to correspondence of the testator ap- plicable to the issue : Hunt & Gotbecl v. ATiderson, 37 L. J. P. & M. 27, where Peacock v. Lowe, sup. cit, was noticed. Before this decision such discovery could only have been obtained by a bill in equity. The Court for Divorce and Matrimonial Causes was Divorce . 1 . 1 Court. established by 20 & 21 Vict. c. 85, section 47 of which 20 & 21 extends to it the powers of the Common Law Courts as to ^^'''- ''■ ^•'' interrogatories on commission (/), though not as regards other interrogatories or discovery. The following cases serve to show that the powers given to the Common Law Courts with regard to inspection by the Common Law Procedure Acts applied to this Court : Shaw V. Shaw, 2 S. & T. 642 ; 31 L. J. P. 95; Winscom v. Winscom & Plowden, 3 S. & T. 383 (Note) ; 33 L. J. P. (/) As to such interrogatories, see Browne's Divorce Practice, 4th ed., pp. 2S3— 287, and post, p. 16. ]4 THE HISTORY OF DISCOVERY UP TO / 45 ; Pollard v. Pollard & Hemming, 3 S. & T. 613. And the Judicature Act of 1873 now applies to the Divorce Court {g). Lord The Lord Mayor's Court had from the earliest times an Mayors . . . Court. equity side which corresponded to the High Court of Chan- cery, and before 1842 to the Court of Exchequer. Its equitable powers were chiefly employed in allowing a plaintiff in attachment to file a bill of discovery against garnishees where the particulars of the defendant's property in their hands could not otherwise be ascertained Qi). Its powers and practice were subsequently regulated and 20 & 21 extended by the Mayor's Court of London Procedure ^'157, -A-ct, 1857 (20 & 21 Vict. c. clvii.) ; and section .20 of Bs. 20, 21. ^j^^ ^g^ confirmed its ancient equitable jurisdiction, and section 21 entitles this Court in any action or other legal proceedings therein, on application made for such purposes by either party, to compel the one party to give inspection of all documents relating thereto in his custody, power, or control to the other, and allowed the latter to take copies thereof if necessary, or to have them stamped, in all cases in which discovery might have been obtained Appiica- in equity. Later, the Order of the Queen in Council of the theO.L.p. 20th of November, 1863, made the sections of the C. L. P. "'■ ■ Act, 1854, relating to interrogatories, discovery, and in- spection generally, applicable to this Court, and so the practice therein with regard thereto remains governed by its old equitable practice, and the Acts of 1854 and of 1857. County The Courts of Equity would seldom give their assistance Courts. ..,„,. . - . m aid 01 discovery to an inferior Court {%). We can find no instance of their having done so. The powers of the {g) See post, Practice, p. 141, and Smith y. &m,ith, W. N. 1882, 91. And as to the practice under the Common Law Procedure Acts, see swpra, pp. 4 — 8. (/i) Ashley on Attachment, p. 104. (i) Ld Redesdale (5th ed.), p. 65. THE JUDICATUKE ACTS. 1") County Courts with regard to interrogatories and discovery are entirely statutory. Before 18G7, interrogatories, with the exception referred Interroga- tories, to below, were unknown to the County Courts (k). By the Order in Council of the ISth of November in that year, sections 51 and 52 of the 17 & 18 Vict. c. 125 were made applicable to them ; and the rules 80 — 82 of 18()7, in accordance therewith (Z), thenceforth regulated their practice in this particular. Rule 65 of 1851, under the authority of 12 & 13 Vict, other dis- covery. c. 101, section 12, first allowed inspection of documents by inspection. the defendant, enabling him in any action, where he was Defen- desirous of inspecting any deed, bond, or other instrument under seal, or any written contract in which he had an interest, and which should be in the possession, power, or control of the plaintiff, to give notice of liis desire so to do ; and the judge had power to adjourn the cause, in case of refusal by the plaintiff, for the purpose of. such in- spection. The plaintiff, it will be thus seen,, had no such right. Plaintiff. but by rule 63 of 1857 he was given a corresponding right (and see rule 76 of 1867). Rules 77, 78, and 79 of 1867 enabled either party to Produc- obtain production of documents in the manner therein mentioned. Up to the year 1875, these rules therefore alone regu- lated the practice with regard to production and inspec- spection (m,), but by the Order in Council of the 18th of November, 1867, above mentioned, section 50 of the C. L. P. (k) Section 73 of 1 & 2 Vict. c. 110 allowed the examination of an insolvent by interrogatories. (Q By Order XIII., rule 7, of the Rules of 1875 (see post, pp. 101, 150), the addition is made that the interrogated party can include objections and answers in one affidavit. (m) The practice under these rules is identical with the present, see post, pp. 171 — 175. 16 THE HISTORY OF DISCOVERY UP TO Piscovery, Act, 1S54, relating to discovery of documents, was made applicable to them. Interroga- Interrogatories upon commission, as the}' were called, commis- were first instituted by the 1 Will. IV. c. 22 (n), although other" the Act of 13 Geo. III. c. 63, section 42, had provided for statutory ^j^g examination of witnesses in India by the warrant of jiowers to ■' interro- the Lord Chancellor or Speaker of the House of Commons. 1 will. IV. '^his provision was, by the first-named statute, extended "■ ^'■^- to the colonies and to all actions pending at Westminster, and the examination of witnesses within the jurisdiction by officers of the Court, and of witnesses outside the jurisdiction by interrogatories on commission were thereby sanctioned. 22 Vict. And by the 22 Vict. c. 20, section 1, any Court or judge in "■''"■ ■ her Majesty's possessions might order the examination of witnesses and the production of documents when it should appear to the Court or judge that any Court or tribunal of competent jurisdiction had authorised the same by com- mission, order, or other process, in the same manner and with the same powers as such Court or tribunal (o). .Judicature And eventually by the Judicature Act, Order XXXVII., ' ■ r. 1, a Court or a judge, in the absence of any agreement between the parties, and -subject to the rules, may at any time for sufficient reason order that any witness, whose attendance in Court ought for some sufficient caTise to be dispensed with, be examined by interrogatories or other- wise before a commissioner or examiner, provided that such order will not be made if the opposite party object boTid fide and the witness can be produced. (n) For form of the bunimons, the affidavit in support of such ap- plication, and the orders thereon, &c., see C. F., 11th ed., pp. 284 — 297 ; and for forms of interrogatories on commission, see App. pp. 218—223. (o) For the forms under the 13 Geo. III. & 1 Will. IV., now since this statute rarely iised, see C. F., pp. 300—304. These refer merely to commissions in India and the Queen's dominions abroad. THE JUDICATUEE ACTS. 17 It is also lawful by 19 & 20 Vict. c. 113, section 1, for a 19 & 20 „ . Vict. ^. Court or judge to order the eKamination upon oath by H3, ». 1. interrogatories of witnesses to elicit evidence in aid of civil and commercial suits pending before foreign tri- bunals. And by the Bankruptcy Act of 1869 (p), interro- ^. ^ ^^ gatories are allowed to be delivered by the Court to persons 71, ». 97. suspected of possessing property of the bankrupt; and by the Companies Act of 1862, the Court has the power to 25 & 26 examine by written interrogatories, on a winding-up gg ^ ^^^^ petition, any person brought before them, concerning the affairs, dealings, estate, or effects of the company (q). By the Ballot Act, 1872 (see schedule 1, rules 40-41), 35 & 36 an inspection of documents, and more especially of ballot 33, sche- papers, when necessary for an election petition, will be " ^ " ordered on a summons supported by an affidavit ; as to the inspection of vouchers of election expenses disallowed under the Act, cf Moore and Another v. Kennard, W. N. 1883, 20; Wells v. Wren, 5 C. P. D. 546. And lastly, by the Conveyancing and Law of Property 44 & 45 Act, 1881, acknowledgments by the possessor of title deeds 41, a. 9. and documents to the right of another to the production thereof are made equivalent to covenants for production and safe custody. A vivd voce examination of a judgment debtor sworn by Judgment the applicant to have means, and production of his docu- 32 & 33 ments, may be ordered by a judge under rule 3 of the '■ "• General Rules of the Debtors' Act, 1869, q. v. (p) As to the discretionary production of documents relating to the bankrupt, his dealings and property after adjudication, see Tatton, Ex parte, 17 Ch. D. 512; Smith, Ex parte, 45 L. T. (N. S.) 447 ; Nicholson, Ex parte, 14 Ch. D. 243; 28 W. R. 936. (2) As regards further examination of a director by interrogatories under sections 115, 138, which will only be allowed if a strong case be made out, see Metropolitan Bank, Re, 15 Ch. D. 139 ; 49 L. J. Ch. 651 ; 44 L. T. (N. S.) 299. 18 CHAPTER I. TIME. Interroga- UNDER the Judicature Acts, 1875, Order XXXI., r. 1, the plaintiff, at the time of delivering his statement of claim, and the defendant, at the time of delivering his statement of defence, or both at any subsequent time not later than the close of the pleadings, -without an order for that purpose may deliver interrogatories in writing for the examination of the opposite side. Delivery. A copy of interrogatories left at the office of the opposite riaintifiF'3 party's solicitor is held " delivered " : Bowen v. Price, 2 iorie7^*" De G. M. & G. 899. delivered. rjij^^ ^^^ must be Construed in the light of the cases. delivery of If the plaintiff deliver his interrogatories before the the state- (jgfendant has delivered his statement of defence they may ment or j j defence, be Struck out as administered for the purpose of vexation and increasing costs : per James, L. J., in Mercier v. Cotton, 1 Q. B. D. C. A. 442 (a); 46 L. J. Q. B. 184; 35 L. T. 79 ; 24 W. E. 566 ; but this case applies only to causes Their per- in the nature of a common law action : Harbord v. Monk, Tn'Sl 9 Ch. D. 616; 38 L. T. 411 ; 27 W. R. 164, where in a cretion of Chancery action interrogatories were allowed as of right before the statement of defence was delivered; nor does it establish more than that the discretion of the judge in chambers will not be interfered with: per Grove, J., in (a) This case was decided on the wording of the old rule 5 of Order XXXI., when interrogatories could be struck out as not bona fide. Under the new rule 5a, such interrogatories would still be struck out as "vexatious and unreasonable." 'mm. 1 y Bcai V. Pilling, 38 L. T. -iSG. In that case A. brought an action against B. for expenses incurred by an alleged authorisation of C. by B., and on B. defending himself by a denial. thereof, C. was joined as a co-defendant and inter- rogated by A. as to the letter before his statement of defence had been put in. It was held that such interrogatories were not premature. The earlier cases in chambers, however, disallow such interrogatories, on the respective grounds of thejr reviving the bad practice which used to prevail in equity of filing interrogatories on the bill without knowing or caring what the answer will be, and also of their being premature. They are, therefore, usually ordered to be struck out with- out prejudice to any interrogatories after statement of defence delivered : Strong v. Tapiiin, W. N. 1 876, 22 ; 20 S. J. 240 ; Fenwick'v. Johnston, ib. 54; ib. 240; Brake V. Whiteley, ih. 55, ih. 281 ; Gotching v. Hancock, ib., ib. ; Armitage v. Fitzivilliam, 20 S. J. 281 . With regard to interrogatories, as with regard to dis- Before covery generally, the old Chancery practice whereby the statement delivery of the plaintiff's bill must precede his right to "^ "'*™- 1 -1 -. . . .,-, ., , , In Chan- exhibit mterrogatones seems still to prevail, and the eery suits. plaintiff in a Chancery suit cannot therefore now administer them before the delivery of his statement of claim : Cashin v. Craddock, 2 Ch. D. 140; 34 L. T. 52. Under the C. L. P. Act, 1854, section 51 (which was pur- I" com- posely worded so as to give a discretion to the judge as suits. regards time for interrogatories which the Courts of Equity 1^. *■ ^^ did not permit, see per Willes, J., in Bechervaise v. The 12S, s. 51. Great W. Railway Co., L. K. 6 C. P. at p. 37), interrogatories could only be administered by the plaintiff before declara- tion under special circumstances set out in the affidavit, as he was not allowed to fish out a case : James v. Barnes, 25 L. J. C. P. 182 ; Bechervaise v. Great W. Railway Co., L. R. 6 C. P. 36; and Fynney v. Bmsley, 20 L. J. Q. B. 395 (a o2 20 TIME. ^^2"' ^J ^^^^ °^ examining witnesses under 1 Will. IV. c. 22, section ' 4) ; Croomes v. Morrison, 5 E. & B. 984 ; Morris v. Parr, 6 B. & S. 203; 34 L. J. Q. B. 95 (d). Only the like special circumstances, as where such discovery is neces- sary for the statement of claim, will now justify this irregularity: Ley v. Marshall, W. N. 1876, 23; 20 S. J. 241 ; The Murillo, 28 L. T. N. S. 374, where interro- \ gatories were, before petition filed, allowed to be put by the plaintiffs as to who were the real shipowners in an Admiralty action. And even then, if it should appear that the cause of action arose outside the period named in the Statute of Limitations, such interrogatories would be disallowed : Jones v. Pratt, 6 H. & N. 697. Interroga- Interrogatories by the defendant could not, under the tories . . delivered- old practice in Chancery, precede his answer to the bill; dant ' Ijut this rule has not been adopted under the Judicature Acts, and under special circumstances interrogatories will Before at this period be allowed the defendant before his state- of defence, ment of defence : Anon., 20 S. J. 81 . This was the ]7 & 18 practice under the section above mentioned of the C. L. P. 125 s. '51. ■^^^' 1854: Martin v. Hemming, IQ Exch. 478; Gourley V. PlimsoU, L. R. 8 C. P. 362; 42 L. J. C. P. 244; 28 L. T. 598 ; 29 L. T. 130. - Special In Disney v. Longbourne, 2 Ch. D. 704 ; 45 L. J. Ch. stances. 532; 35 L. T. 301 ; 24 W. R. 663, an application was made on the ground that the discovery sought Vould enable the defendant to resist the action. It was, however, refused by Jessel, M.R., who stigmatized it under these circum- stances as "useless." So when in an action for'not accepting- fruit, the statement of claim specified the number of fruit-pots sold, leave was refused the defendant to administer interrogatories as to the weight of the fruit (d) This case decided that such interrogatories can only be ad- ministered if a case of extreme iirgency be made ont, but it has not been acted on. See Chitty's Forms, 9th edit, p. 167. TIME. 21 sold before the delivery of the statemeut of defence, on the ground that the defendant could set up his defence therein; per Archibald, J., in Anon., W. N. 1876, 11. It is usual in such cases to adjourn the summons for leave to deliver interrogatories until after the delivery of the statement of defence on the ground that after plea they may prove un- necessary: Heiuetson v. The Whittington Life Insurance Co., W. N. 1875, 219; 20 S. J. 79. A bond fide wish to discover whether a defence will be needed at all is such a special circumstance as will entitle the defendant to put in such interrogatories: Hawley v. Reade,'W. N. 1876, 64; 20 S. J. 298: where the defen- dant administered them in an action on a bill of exchange to know if the plaintiff was a mere nominee of the drawer (e) ; and generally as to what constitutes special circumstances, see the cases cited suprd, [p. 19] and post [pp. 23 and 24]. Either party may under rule 1 of Order XXXI. afore- -^y either party. said at any time, by leave of the Court or judge, deliver interrogatories in writing for the examination of the opposite party or parties, or any one or more of such parties. This part of the rule appears to have been inserted to After the „ close of the meet the case of interrogatories put in alter the close oi pleadings. the pleadings, though not necessarily confined thereto : per Jessel, M.R, in Disney v. Longbourne„ and after the close of the pleadings there is under this, ride an absolute right to interrogate, but the Court or judge will exercise their discretion so as not to allow the application to be made the ground for unfair delay: Ellis v. Ambler, 25 W. K 557; 36 L. T. 410 ; London and Provincial Insurance Co. V. Davies, 5 Ch. D. 775 ; 37 L. T. 67; 25 W. R. 875; McGorquodale v. Bell, W. N. 1876, 39 ; 20 S. J. 260. (e) The same grounds entitle the plaintiff to inspection even before appearance: Aaun., 20 S. J. 81. See p. 25. ')■->, TIMK. When allowed. Interro- gatories seeking discovery before an order for production of docu- ments struck out. Produc- tion' of do- cuments. Discovery. Inspection. Tliey will»be allowed for the purpose of eliciting anything material to the case : Swire v. Redman, 20 S. J. 584 ; Birch V. Mather, W. N. 1883, 2. [Interrogatories on particulars.] And they have been permitted after verdict and pending an appeal on a matter of accounts : Saxby v. Easterhrooh, L. R 7 Ex. 207 ; 41 L. J. Ex. 113; 26 L. T. 439; 20 W. R 751. In all such cases an affidavit, as under the procedure of the C. L. P. Acts, is necessary: Anon., 20 S. J. 32. And whenever under this portion of the rule leave is required to administer interrogatories, they may be gone into on the application for the order, and no further application to strike them out will then be needed: Carter v.- Leeds Daily News Co., W. N. 1876, 11; 20 S. J. 218; Hewetnon V. The Whittington Life Insurance Co., W. N. 1875, 219. An interrogatoiy (/) seeking a discovery of documents before an order in that behalf has been obtained is now liable to be expunged on the ground that since the Judi- cature Acts interrogatories can be delivered as of right and without leave: Pitten v. Chatterburg, W. N. 1875, 248 ; 20 S. J. 139 ; Bannicot & Frith v. Harris, W. N. 1876, 9 ; 20 S. J. 217 : whereas leave is required for the order. By rule 11 of Order XXXI. production of documents may be ordered "at any time -during the pendency therein of any action or proceeding '' by the Court or a judge. By rule 12 discovery of documents may be ordered by a judge. By rule 14 production of documents referred to in the • pleadings and affidavits of one party may be inspected by (/) Such interrogatories were formerly usual at common law when there was a diffieulty in making the usual affidavits tracing a docu- ment into the defendant's hands, thovigh at equity, after the 15 & 16 Vict. c. 86, it was unnecessary, of. suprcb p. 4; see Piffard v. Beeby, L. R. 1 Eq. 623 ; Barnard v. Hunter, 4 W. R. 34. The proper course V hen the jiossession was admitted hy the answer to" such interro- gatories was either hy an application for discovery, with a view to production (see sttprd, p. 6) under the C. L. P. Act (17 & 18 Vict, c. 125), s. 50, or for inspection tmder the Evidence Amendment Act (14 & 15 Vict. c. 99) section 6: Smtt v. Zycjomala, 4 E. & B: 483 ; 24 L. J. Q. B. 129 ; Hunt v. Hewitt, 7 Exch. 236. TIME. Z6 any other or his solicitor at any time before^or at the hearing of any action or other proceeding ; and this if necessary can be enforced by the order of a judge (see rule 17). And by rule 18 the judge may order inspection The rule, of documents generally. Service of an order on the opposite party's solicitor is Service, sufficient : Joy v. Hadley, W. N. 1883> 1. It may be stated generally with regard to this branch Produc- of our subject, as previously to interrogatories, that the discovery plaintiff cannot obtain production, discovery, or inspection *" pl^ii'i^ before he has delivered his . statement of claim, nor the statement defendant before delivery of his statement of defence, and defen- except under special circumstances. statement^ The plaintiff has been disallowed production before the °f defence, delivery of his statement of claim on the ground that tJ^piaintiff although the documents misht be essential to his ease, as If fp'^<* ° ° ' statement alleged in his affidavit, they must also be shown to- be of claim, essential to his claim : Cashin v. Graddock„ 2 Ch. D. 140 ; 34 L. T. 52 ; discovery on the ground of the fishing Diseovery nature of the application : Anon., W. N. 1876, 55. ; 20 before'" * S. J. 282; Fhilipps v. Philipps, 40 L. T. 815: 27 W. R, fj^*[^™' 939 ; and of. Davies v. Williams, 13 Ch. D. 550 ;. 49 L. J, Ch. 352 ; 28 W. R. 223, which followed the old Chancery rule that the plaintiff was not entitled t» diseovery except under special circumstances until he had made a statement which would stand the test of a demurrer. As to what constitute special circumstances, see Ley v. Special Marshall, W. N. 1876, 23 ; 20 S. J. 241, where discovery ^an"cTs' was allowed the plaintiff before statement of claim in an action for breach of duty in carrying goods by sea, on the grounds that although not necessary for a declaration, it was so for the statement of claim ; The Em.mxi, In re, 24 W. R. 587; 34 L. T. 742, where, the defendants having appeared to defend an Admiralty action in rem, discovery of documents in their possession, upon oath, was ordered under rule 12 ; and per Baggallay, L.J., in Rep. of Costa 24 TIME. Eica V. Strousberg, 11 Ch. D. C. A. 323 ; 40 L. T. 401; 27 W. R 512. Discovery Where the issues were defined the plaintiff was allowed plaintiff discovery before delivery of the defence: Union Bank of Bttement J^ondon Y. Manhy, 13 Ch. D. 239 ; 28 W. R. 23 ; 49 L. J. of defence. 127; 41 L. T. 39.3 ; but where the " matters in question " under the wording of Order XXXI., r. 12, could' not be known until delivery of the statement of defence, it was disallowed: Hancock v. Guerin, 4 Ex. D. 3; 27 "W. R. 112 ; Chary v. Fitzgerald, L. R. Ir. 1 Ch. 492 [Production]. Pioduc- Again, before the delivery of the statement of defence, tion and ^ -\ n ^ (^-it i -i inspection, the defendant was refused discovery upon the ground of dantbefore keeping down the costs : Mercantile Insurance Co. v. statement" Slioesmith, W. N. 1876, 64 ; 20 S. J. 298 ; Anon., ib. 53, or defence. . . ib. 282 ; Anon., ib. 55 ; ih. 282 ; Plum v. Normanton Ifon and Steam Co., ib. 73; il. 298: inspection of documents referred to in the statement of claim: Webster v. Whewall ; 46 L. T. 868 ; 28 W. R. 951 ; 15 Ch. D. 120 ; and cf. Egre- mont Burial Board v. Egremont Iron Ore Co., 14 Ch. D. 158. This follows the old Chancery practice, whereby before answer the defendant was refused production on the ground that the defendant and his witnesses must not see the case they had to meet: Smith v. Lay, Fairbairn V. Lay, 18 W. R. 915 ; 22 L. T. 785 ; Bate v. Bate, 7 Beav. 528 ; discovery, Forshaw Another v. Lewis £ Cox, 10 Exch. 712 ; inspectinn of documents referred to in the bill : Halliday v. Temple, 8 De G. M. & G. 96, and Turner v. Burkinshaw, 4 Giff. 399. To defen- Where a writ had been specially indorsed for interest and dantbefore . , , i r *i j_ p i ■ deeiara- prmcipal, a cietenuant was reiused inspection of the mort- *'°"" g^E^ deed before declaration: Jones v. Hargreaves, 29 L. J. Ex. 368. Sperial If under the old Chancery practice there was a necessity circutn- ^ . stances. for the defendant to have production before answer, special circumstances clearly manifested would have entitled him TIJIE. 25 to it: Princess of ^Vules v. Earl of Liverpool, 1 Sw. 114. (This case was without precedent, 3 ib. 570). In Jones v. Hargreaves, 29 L, J. Ex. 368, Pollock, C.B., in refusing a defendant inspection before the declaration, said : " After declaration any application out of the usual course must be made upon some special grounds. It may be that under special circumstances it might be necessary before declaration to order inspection of the documents on which an action is brought, but then such circumstances must be shown." Thus in Ano7i., 20 S. J. 81, in an action for damages on the policy of a ship, inspection of the ship's papers were allowed before appearance, but only on the ground of the action being one in which the plaintiff could sign judgment by default, and because the defendants "would, if the claim proved to be well founded, not appear to the action. And for what constitutes special circum- stances, see suprd [pp. 19, 23]. With regard to inspection other than that of documents. Inspection rule 4 of Order LII. orders that if the party applying for that of do- inspection be the plaintiff, the application may be made *'"™^"*^- after notice to the defendant at any time after the issue of the writ of summons, and if by any other party, then at any time on notice to the plaintiff after the ap- pearance of such party to the action. But we apprehend that under this rule the Court or judge will, in exercising their or his discretion, be guided by the old practice and by the analogous rules regarding the inspection of docu- ments. Thus, under the 15 & 16 Vict, c 83, section 42 (An Act inspection for Amending the Law for granting Patents), inspection of 15 & le the defendant's machine, in an action for the infringement "''*• ''■ ^^' of a patent, was refused to the plaintiff before the delivery of the declaration, not because it preceded the declaration, but because he did not show that it was mriterial and really wanted for the purpose of the cause. The inspection would 2G TIME. not be granted entirely as a matter of course : Amies v. Kelsei/, 22 L. J. Q. B. 84; 1 B. C. C. 123; 16 Jur. 1047. Inspection In Grofts V. Peach, 2 Hodg. 110 (a cause prior to the bydefen- ■' ' S V ■ e -l daut. above Act), production by the plaintiff of a specimen oi the patent to enable the defendant to prepare his defence was refused on that ground ; and under the Judicature Acts, where the defendant in an action for obstruction of light and air, before delivering his defence made an application to inspect the plaintiff's premises, alleging that until after such inspection he could not deliver his statement of defence, it was refused, and the statement of defence ordered to he delivered first in order to see whether the defence was that plaintiff had no ancient lights, or that there was in fact no obstruction : Anon., W. N. 1876, 53 ; 20 S. J. 282. Discovery Where the circumstances iustified it an affidavit of docu- after pleadings nient& has been ordered, even after decree: Richards v. " °^^ ■ WatJcins, 6 Jur. N. S. 168 ; and after issue joined : Anon., W. ]Sr. 1876, 11. Produc- Production, on notice under r. 14 of Order XXXI., of docuujents documents mentioned in the pleadings is allowed to the SThe"'''^'^ defendant before the statement of defence, since it lies on pleadings the party referring to establish his ohiection to produce : allowed to -^ ° •' -"^ ■defendant Quilter V. HeatUy, W. JN. 1883, 4. statement -A-S regards time for answering interrogatories, see p. 146; of defence, -^^ ^^jj other discovery, see jpost, " Practice," and Appendices. 27 CHAPTER II. PARTIES. The Courts, in the exercise of their equitable jurisdic- EquitaWe tion, have, apart from statute, granted inspection of instru- one party nients, on which the plaintiff sought to charge the defendant strument as a party: Ratvlife v. Bleasby, 3 Bing. 148 ; 10 Moo. *=v^°f J.B., 523 ; when only one part of the instrument has been only one . part exists, executed, and the party holdmg it was consequently a trustee to inspect for both: Blogg v. Kent, G Bing. 61 4; 4 M. & P. 433 ; Beven- t^j^ds rf oge V. Boiiverie, 8 Bing. 1 ; S. C nom. Deverner v. Bou- *'^® °??^' verie, 1 M. & bcott, 29 ; Boe v. Slight, 1 Dowl. 163; Doe both are d. Mon-i^ V. Roe, 1 M. & W. 207 ; 1 Gale, 367 ; and so of the action letters where no copies had been kept, and where the action was based thereon : Pi%ce v. Harrison, 8 C. B. N. S. 617 ; 29 L. J. C. P. 335 ; 6 Jur. N. S. 1345 ; Stone V. Strange, 3 H. & C. 541 ; 34 L. J. Ex. 72 ; 11 Jur. N. S. 164; 13 W. R. 350; 11 L. T. N. S. 7J7 ; see also Wood- cock V. Worthington, 2 Y. & J. 4; Ifeale v. Swind, 2 Cr. & J. 278 ; 1 Dowl. 314 ; 2 Tyr. 318. The holder must have been a party to the action : Doe d. Morris v. Roe, svpra citum, and to the instrument : Smith v. Winter, 3 M. & W. 309 ; 6 DowL 386 ; 1 H. & H. 45 ; Lawrence v. Hooker, 5 Bing. 6 ; 2 M. & P. 9 ; Cocks v. Nash, 3 M. & Scott, 164 ; 9 Bing. 723 ; and he must have been in the position of trustee for the party requiring the inspection, e. g., agent for a prin- cipal : Jones v. Palmer, 4 Dowl 446, or attorney for client Evans v. Delegal, 4 Dowl. 374 ; and a member of a provi- sional committee has been compelled to grant inspection of the subscriber's agreement to an allottee : Steadman v. 28 PAUTIES. Ardeii, 15 M. & W. 587 ; 4 D! & L. 16 ; 10 Jur. 553 ; 15 L. J. Ex. 310; and see Day, C. L. P. Act, 4th ed.,p. 297 (g). Generally Under the Judicature Acts,- 1875, Order XXXI., r. 1, any bep^ttes plaintiff or defendant (A." in any action can interrogate the tointerro- opposite party or parties, and under rules 12 and 13 of gatonea -^ ■*■ i j i and affida- that Order can apply for an order for an affidavit of docu- vits of do- . II- • • c 1 • cuments. ments. An interpleader issue is an action tor this purpose : White V. Watts, 12 C. B. N. S. 267 (decided under the C. L. P. Act) ; 31 L. J. C. P. 381 ; 6 L. T.TST. S. 387 ; and any person consenting to be treated as a party to a suit is a party for the purpose of discovery: Bent v. Devt, L. R. 1 Eq. 186. A third party brought in by notice bj- the defendant is a party to the discovery of documents within the meaning of rule 12: McAllister v. Rochester (Bishop oj), 5 0. P. D. 194; 49 L. J. C. P. 443 ; 42 L. T. 481; 28 W. E. 584.- The words "opposite party or parties" mean such as between whom and the applicant an issue is joined ; Molloy V. Kilby, 15 Ch. D., per Cotton, I.J., at p. 164. Toproduc- An order for the production of documents under rule 11 tion of do- cuments, may be made by the Court in, and the notice to produce documents under rule 14 may be given by any party to, any action or other 'proceeding. The same holds good of the parties compelled to give a notice, and entitled to an order for inspection respectively under rules 16, 17 and 18. An appeal from an order to strike off the name of a contributory (.(/) The interest sufficient to enable a party to get production of a deed was extended to all cases in wliich the person holding it was a trustee, express or implied, for the person requiring it : Bateman v. PhUlips, 4 Taunt. 157 ; Taylor v. Osborne, 4 ib. at p. 159 ; Goater v. ■ Nunneli/, 2 Stra. 1130; Brown v. Rose, 6 Taunt. 283. (h) By the Judicature Act, 1873, section 100, plaintiff "shall include every person asking any relief (otherwise than by way of counterclaim by a defendant) agniust any other person by any form of proceedings, whether the same be taken by action, petition, motion, summons, or otherwise ;" and deftndant, " every person served with any writ of summons, or process, or served with notice of, or entitled to attend any proceedings." PARTIES. 29 from the registry of shareholders under the Companies Act, 1862, is a " proceeding " within the meaning of rule 11 : In re the National Funds Assurance Co., 24 W. R. 774; W. N. 1876, 192 ; 20 S. J. 561, 584 (i). Formerly, under the Chancery Amendment Act, 15 & 16 Affidavit Vict. 0. 86, sections 18 and 20, neither next friends, relators ments"' in a Chancery information, nor corporations (unless an officer ^^ "f * ttiereot were jomed as a party to the bill) could be ordered relators, to make an affidavit of documents, for the production by any rrtion"s'.^''' defendant on oath under that statute was held to apply to the oath of the defendant himself: Attorney-General v. The Bast Dereham Exchange Co., 5 W. E. 486 ; Attorney- General V. Claphavi, 10 Hare, Appx. Ixviii. ; Hardwick y.WHght, 11 Jur. N. S. 297; 13W. R 560; and the practice was to ask for a stay of proceedings until some competent person was made a party for this purpose: Prioleau v. The U. 8. A., L. R. 2 Eq. 659 ; Rep. of Peru v. Weguelin, L. E. 20 Eq 140 ; Rep. of Liberiu v. Roye, 1 Ch. 139 ; 45 L J. Ch. 297 ; 34 L. T. 145; 24 W. R. 967. But the equitable practice soon, by analogy to that of They can the C. L. P. Act (see next page), compelled 7iext friends I'^ties to and officers of corparations to make such an affidavit : ^^^""''^'^y- Crowe V. Bank of Ireland, 19 W. R. 910; Ranger v. G. W. Railway Co., 7 W. R. 426; 4 De G. & J. 74; Ryde Commissioners v. Isle of Wight Ferry Co., Seton on Decrees, vol. 1, 135; Law v. The London, &c., Life Policy Co., 10 Ha. App. XX. And now relators, who are by the Judicature Act, 1875, Order I., r. 1, turned into plaintiffs, and next fiends, or any one acquainted with the facts, must make an affidavit of documents : Higginsonv. Hall, 10 Ch. D. 235 ; 48 L. J. Ch. 250 ; 39 L. T. 603 ; 27 W. R. 469. (i) This case seems to decide no further point directly, although the head-note says the Court held that it had jurisdiction to make an order for an affidavit of documents under rules 11 and 13, although no action ivas in progress between the parties. 30 PARTIES. Secus where production (if dncil- ments is refused on the ground of bein^ incrimina- tory [k). Corpora- tions. 15&16 Vict. c. 86 In Chan- cery. 17&1S Vict. c. 125. At Common Law. Jud. Act, 1875. Interro- gatories. But where discovery is refused on the ground of its in- criminating the person from whom it is sought, he must still take the objection on oath personally, and his solicitor may not do so for him : Webb v. East, 5 Ex. D. 23 ; 28 W. K 229, and see infra, pp. 54 — 57. Corporations, whose officers were not allowed to afford discovery upon oath under sections 18 and 20 of the Chancery Amendment Act, could not under section 19 have been even interrogated : Imp. Merc. Credit Assoc. V. Whitham, L. R. 3 Eq. 89, unless a competent person named were joined as a party to the suit, or a cross bill brought against him, and might have demurred to a bill for such discovery : ib. ; Saunders v. Saunders, 3 Drew. 3S7; but at common law, by the C. L. P. Act, 17 & 18 Vict. c. 125, section 51, an officer of a corporation, though not joined as a party to the action, was compelled to answer interrogatories and to make an affidavit of docu- ments, leave being given by the Court : Madrid Bank v. Bayley, L. R. 2 Q. B. 37 ; BecJiervaise v. G. W. Railway Co., L. R. 6 C. P. 36; 40 L. J. C. P. 8. And the Judicature Act, Older XXXI., r. 4, now empowers the party in any action opposed to a body corporate or a joint stock company to deliver interrogatories to any member or officer of such corporation. Such officer can no longer be joined as a party to an action for the purpose of such discovery : Wilson v. Church, 9 Ch. D. 552 ; 26 W. R. 235 {I), since the officer {h) See pp. 59—61, 119, 134. (Q The reason for joining the officer was to impose the check of a fear of perjury upon the answer of the corporation. Per Jessel, M.E., in Wilson v. Church, suprd. It was an old ground of demurrer at .equity to a hill of discovery that a party had no interest in the suit, and was not a party to the action : London, Mayor of, v. Levy, 8 Ves. 398, 405. But in the ease of an officer of a corporation the demurrer on this ground was not allowed : Saunders v. Saunders, 3 Drew. 387; the words of the rule, "or member," apply only when no officer exists : see the cases cited, post, p. 32, PARTIES. o I or member under the rule is allowed to be interrogated only. If he is joined the proper course will be to strike him out as improperly joined under Order XVI., r. 13. But with regard to other discovery (inclusive probably of The rule production on notice under rule 14, see Seton, vol. 1, p. 150), Judicature the practice in Chancery under the Chancery Amendment ^ regards' Act and otherwise (see p. 29), and that at common law discovery ^ r /> other than under section 50 of the C L. P. Act {suprd) still prevails : interroga- Cook-T. The Ocean Steam Co., W. N. 1875, 220. And in all *°"'''' other cases, but those where corporations and persons under disabilities are parties, the affidavit of documents must be on the oath of the party himself: Herschfeld v. Clarke, 11 Exch. 712 ; 2 Jur. (N. S.) 239 ; 25 L. J. Ex. 113 ; except under very special circumstances : Barnett v. Hooper, 1 F. & F. 412, 467. It is for the corporation now to name the officer for this Who is the officsr purpose : Republic of Costa Rica v. Erlanger, 1 Cli. D. 1 71 ; and leave will be granted, as of course, if the Court be satisfied that a proper officer is named : The Alexandra Palace Co., In re, 16 Ch. D. 58; 50 L. J. Ch. 7; 43 L. T. 406 ; 29 W. R 70. The town clerk may be such an officer, either to answer Town . clerk. interrogatories or produce documents under the Judicature and the C. L. P. Acts respectively : Macfadzen v. Corp. of Liverpool, L. R. 3 Ex. ^79 ; Hastings, Corp. of, v. Ivall, 8 Ch. 1017. And his privilege as solicitor — Bron.vn v. Thames and Mersey Insurance Co., 43 L. J. C. P. 112 — will not, where the corporation elect him to answer for them, protect him : Swansea (Mayor of) v. Quirk, 5 C. P. D 106 ; 49 L. J. 0. P. 157; 28 W. R 371. The director of a company does not cease to be its Director officer for the purposes of discovery on commencement of company, its winding up : Mad,rid Bank v. Bayley, L. R. 2 Q. B. 37. The liquidator of a company in a winding up suit is Liquida- bound to discover where he represents the company as a 32 PARTIES. litigant party or is liable to be called as a witness : Bariied's Banking Co., In re, 2 Ch. 350 ; but secus in questions between contributing creditors and officers of the company, though they must give every opportunity of becoming ac- quainted with material information : Contract Corporation, In re; Gooch's Case, 7 Ch. 207. Secretary. The secretary of a company in a winding-up petition may be called upon to produce his books, for the sole pur- pose, however, of testing his evidence in cross-examination: The Emma Silver Mining Co., In re, 10 Ch. 194 ; 44 L. J. Ch. 456 ; 31 L. T. 816 ; 23 W. K. 300 ; but he is not the proper person to answer an interrogatory as to details of a railway accident at which he was not present: Bechervaise V. G. W. Railway Co., L. R 6 C. P. 36 ; 40 L. J. C. P. 8. Member. If no officer of the company be proved to the satisfac- tion of the judge to be capable of making the discovery, semhle the member of a company may: BerJceley v. The Standard Discount Co., 13 Ch. D. 97; ^9 L. J. Ch. 1 ; 41 L. T. 338; 28 W. E. 125 : at any rate, if interrogated, he cannot refuse to file his affidavit until he has been paid his Solicitor, taxed "costs : ibid. As to a solicitor, cf p. 38. If the person named to answer interrogatories for a company can be reasonably objected to by the company, he cannot be called upon to answer : Manchester, &c., Go. v. Slagg, W. N. 1882, 127. In that case, the M. R. said that to enable the plaintiffs to obtain the " required discovery " the person should be joined as a defendant. He cannot, after Wilson V. Church, 9 Ch. D. 652 ; 26 W. E. 235 ; have thereby meant that such person could answer interroga- tories in his capacity of defendant. Foreign A foreign sovereign suing in this country should, so far as can be done, be put in the same position as a body corpo- rate: per Blackburn, J., in Rep. of Costa Rica v. Erlanger, 1 Ch. 1). 174. And before the Judicature Act a Eepublic, which for this purpose was considered a foreign sovereign states. PARTIES, ;33 state, could sue, without being bound to do so, in the name of any officer of the government, or join as co-plaintiff any officer who might be called upon to give discovery upon a cross-bill : U. S. A. v. Wagner, 2 Ch. 582. When a bill is filed by a Republican Government, the defendant, after putting in a sufficient answer, is entitled to the usual affidavit of documents, to be made by one or more of the Ministers of the Government : Rep. of Liberia v. Imperial Bank, 16 L. R. Eq. 179 ; 42 L J. Gh. 574. A defendant to the suit of a foreign sovereign state has no right to obtain a stay of proceedings until a person selected by him for the purpose of discovery, and made co defendant to a cross suit, appears thereto, though semble he has until a proper person be named ; Rep. of Costa Rica v. Erlanger, 1 Ch. D. 171 ; 45 L. J. Ch. 145 ; 24 W. R. 151. One defendant could not at equity, before decree, ^'^"^"^^'^^l^, Wynne v. Humherston, 27 Beav. 421, but could always discovery , , . , by a c. 435,, wliere in an action of wrongful dismissal an interrogatory by the plaintiff as to the total amount of the gross proceeds of sales during the period for which the plain- tiff claimed remuneration was allowed. (2.) Cases of execu- tors being required to discover: Thompson v. Bunn, 5 Ch. 573; 18 W. R. 334, 854 ; Alison v. Alison, 44 L. T. (N. S.) 547; Gull v. Inglis, 37 L. J. Ch. 385 ; 16 W. R 477; and see suprd, p. 46, "Accounts." Discovery is resisted (3) and the latter part of (6) b. — As tending to incrimi- nate the person from whom the discovery is required, or materially to discredit him, apart from the action in which it is requ ired, or expose him to penalty, ecclesiastical censure, or foifeiture. SUBJECT MATTER. 55 This rule is one of public policy : per V.-C. Stuart, 'Basis of Sidebotham v. Adkins, 3 Jur. (N. S.) 631 ; 5 W. R. 743. *''^ ™'^' At equity, a bill of discovery which might expose the Its equit- person interrogated to criminal proceedings, penal conse- * e origin, quences, or to some forfeiture, was demurrable on that ground : Cartwright v. Green, 8 Ves. 405 ; Ban. Oh. Pi:, 5th ed., vol.iLp. 1409 ; ib. vol. i. pp. 481, 482 ; Story's Eq. Jur., section 951 ; however material to the plaintiff's case : Thorpe v. Macauley, 5 Madd. at p. 229; and in the Chancery Courts a bill of discovery could not have been brought even in aid of an action for a personal tort : Glynn v. Houston, 1 Keen, at p. 337 ; though, when the defendant could object to answering part only, a general demurrer was by its practice overruled : Att.-Gen. v. Broivn, 1 Sw. p. 294. Under section 51 of the C. L. P. Act, 1834, a. wider discre- Itsapplioa- tion was given, and the party interrogated was held to be in the C.L.P. just the same position as a witness in the box,. wW could ^'^^' ^^^*" not object to answer till he was. sworn. He must,, there- fore, take his objection in the answer: Qsborn v. The London Dock Co., 10 Ex. 698; 24 L. J. Ex. 140; The Mary or Alexandra, 2 L. R Ad. 319 ; 1 8 L. T. N. S. 891 . Interroffa- Interroga- tories tending to incriminate were not disallowed if special ™, circumstances existed to warrant them relevant and hand ordered fide : Inmay v. Jenkins, L. R. 5 C. P. 738 ; Edmunds v. struck out. Greenwood, L. R. 4 C. P. 70; Gourley v. PlimsoU, sivpra citum, L. R. 10 Q. B. 217; Greenfield v. Eeay, L. R. 10 Q. B. 217; Villeboisnet v. Td)m, L. R. 4 G P. 184; BaHlett v. Lewis, 12 C. B. (N. S.) 249 ; McFadzen v. The Corporation of Liverpool^ supra citvim, L. R. 3 Ex. 270, 281 ; the special circumstances being in fact such as, in tlie judgment of the Court, made the interrogatories fair and just : Hill V. Campbell, L. R. 10 C. P. 222 (x). It was at one (x) The exhaustive judgment of Brett, L.J., in this case, covers tlje wliole f[uestion of equity and common law jurisdiction in this matter, and it is remaiiable that llie case is not cited in Fisher v. Owen. 56 SUBJECT MATTER. time thought that under section 51 of the C. L. P. Act the Court ought to disallow such interrogatories as tended to incriminate: Tupling v. Ward, suprd citum, 6 H. & N. 749 ; 30 L. J. Ex. 222. But the discretion of the Court in such cases was upheld in Osborn v. The London Bock Co., 10 Ex. 698 ; 24 L. J. Ex. 140, szt/jrd citum ; Bartlett v. Lewis, 31 L. J. (C. P.) 230; 12 C. B. (N. S.) 249, stiprcb citum; Atkinson v. Fosbroke, L. R. 1 Q. B. 628 ; Inman v. Jen- kins, L. R. 5 C. P. 738 ; McFadzen v. Liverpool, L. R. 3 Ex. 279, sup'd citum {y). And the Court in such cases has interfered with the discretion of the judge in chamhers : Stern v. Sevastopulo, 14 C. B. (N. S.) 737 ; 32 L. J. (C. P.) 268 ; McFadzen v. Liverpool, L. R.-3 Ex. 279, supra citwm. The The two leading cases since the Judicature Act on this modern view that point are Atherley v. Harvey, 2 Q. B. D. 524, and Fisher terro»a- V. Owen, 8 Ch. D. 645, suprd citum. tones jjj ^jjg former of these cases (being, like most on this cannot . be struck branch of the subject, an action for libel), the plaintiff must be delivered interrogatories for the examination of the de- to ni"*thl fendant as to whether he had composed or published the answer. alleged libel. The defendant, on application to the judge Haney. ^' ^^ chambers, caused them to be struck out, as tending to incriminate, and on appeal the judge's discretion was up- held, on the ground that in equity a bill of discovery in aid of an action of tort was demurrable, and that by the Judicature Act, 1873, the rules of equity were to prevail. Fitsher v. But in the later case this decision was repealed, and the judgment based on the wording of Order XXXI. r. 5, apart from equitable rules. There, in an action brought to set aside a deed of gift, of which the defendant was the grantee, made by a lady a few days before her death, the plaintiff exhibited interrogatories (among others) (j/) This discretion is upheld by the judgments in Villeboisnet v. Tobin, L. R. 4 C. P. 184, suprd citum; and Stern v. Sevastopulo, 14 C. B. (N. S.) 737 ; 32 L.. J. (C. P.) 268, suprd, citum. SUBJECT MATTER. 57 following out the statements of his claim, so as to show that the defendant had drugged the deceased and stupe- fied her with the view of obtaining execution of the deed. The defendant took out a summons under the old rule 5 of Order XXXI. to strike out the interrogatories as scandalous, irrelevant, and not put bond fide, and as bad in substance, and they were ordered to be expunged by V.-C Bacon, on the ground of their being incriminatory and irrelevant. On appeal the Court held that they were not to be struck out, as they were pertinent, and therefore not scandalous, and also bond fide with a view to establishing the case ; and that, though they were of an incriminatory nature, yet, being relevant and bond fide, they ivere not to be struck out, but the objection was to be taken in answering them, and that not being aU objection- able (in which case the Court has a power to strike out interrogatories, with leave to the interrogator to frame new and unobjectionable interrogatories in their stead) they were to be allowed. It was also held that the judges in Atherley v. Harvey had misapplied the equitable rule that a bill of discovery in aid of an action in tort was demurrable, since that had no bearing " where an action was properly brought in a Court which has power to enforce discovery by means of interro- gatories." Fisher v. Owen has been followed in All- husen v. Labouchere, 3 Q. B. D. 654; 47 L. J. Ch. 819; 39 L. T. (N. S.) 207 ; 27 W. R. 12. And the Court has the discretion to decide if an answer would form a link in incriminatory evidence: Sidebotham Y.Adkins, supra citum, 3 Jur. (N. S.) 631 ; 5 W. R. 743. As to what is a suiBcient answer on this ground, see post, p. 134. It is enough to say that the answer "might tend to criminate": Lamb v. Munster, 31 W. R. 117 ; 10 Q. B. D. 110. Interrogatories will now, therefore, only be struck out When where any particular interrogatory or interrogatories are tories°wili ■58 SUBJECT MATTER. be struck scandalous as a whole, or are vexatious] y or unreasonably out. exhibited under rule oa of Order XXXI. We have already considered what is scandalous, see' p. 50 ; and see Gay v. Lahouchere, 4 Q. B. D. 206. What is Even under the old rule 5, which allowed them to be vexatious r. t i., • t t ■ ■ and uu- struck out lor the reasons which now justiiy an objection to able™ answer, they were not disallowed unless they were objectipn- Under the able and oppressive. 5, 8. Merely being open to criticism was (and is) not suffi- cient : If mfers V. Dabhs, "W. N. 1876, p. 21; and to be struck out they must have been bad in substance : Voysey V. Cox, ib. p. 12. Inquisitorial questions are disallowed, see the cases cited supra, p. 43 ; and generally as to what is vexatious and un- reasonable so as to justify the interrogatories being struck out, see pp. 44 and 45. In Armitage v. Fitzwilliam and Others, W. N. 1876, p. 56, interrogatories were struck out on the ground of the impossibility of answering them, but it is no sufficient answer, when the contents of books ranging over a series of years is sought to be discovered, to refuse on the ground of difficulty : Hall v. London & N. W. Railway Co., suprd citum, 35 L. T. (N. S.) 848. And where interroga- tories are too general, and not addressed to specific facts, they will be disallowed : Robson v. Crawley, 2 H. & N. 767. Interrogatories addressed to discover the private transac- tions of a defendant, whose alleged agency was a question at issue in the cause, have been held to be unreasonable : G. W. Railway Co. v. Tucker, 9 Ch. 376, suprd citum. Under The words "exhibited unreasonably and vexatiously," jnterroga- Under rule 5a,baA'e reference merely to objectionsv/ithrega,rd cannot *° *''® *'^™'' °^ Stage in the cause at which the interrogatories be struck are exhibited : Gay v. Labouchere, 4 Q. B. D. 206. out as im- . _ > -M materialor There is no difference, as regards the objection on the Indireotl P^'^* ^^ *^^ person from whom discovery is sought, as to or directly whether it is directly or indirectly incriminatory : Bartlett natory. V. Lctvls, 9 Jui: (N. S.) 202. And a wife may decline to SUBJKCT MATTEK. 59 give discovery on the ground of subjecting her husband to Wife, an indictment for felony : Cartwright v. Green, 8 Ves. 405. Inspection has been refused when the object was to Inspeo- discover alleged forgeries : Chetwind v. Marnell, IB. & P. 271 ; Hildyard v. Smith, 1 Bing. 4.51 ; but see Woolner v. After Devereux, 9 Dowl. 672, per Tindal, C.J. P*''*^™' There are, however, exceptions. After a pardon for the supposed crime, this objection When the could not be taken in the answer to interrogatories : R. v. cannot be Boyes, 1 B. & S. 311. Nor when the damage apprehended JheTnlwer has been incun-ed : Ewing v. Onhaldiston, 6 Sim. 609. tointerro- gatories. A corporation cannot refuse to answer as to the -corrupt ^fter execution of their trust: Dummer v. The Corporation of^^^'^s^, ^ •> incurred. Chippenham, 14 Ves. 245 ; Att.-Gen. v. Brown, 1 Swa. 265. Corrupt By 46 Geo. III. c. 37, exposure to a civil suit is no bar to ofw!'' discovery ; cf. Tetley v. Easton, 26 L. J. C. P. 269 ; 46 Geo. though a witness has been allowed the privilege : w Venahles v. Schweitzer, 16 L. R. Eq. 76 : and by 32 *» "ivii suit. & 33 Vict. c. 24, re-enacting 6 & 7 Will. IV. c. 76, sec- 32 & 33 tion 19, no bill of discovery in aid of any action for libel or Ji^'^ ?• ?,f •^ "^ & 7 Will. slander as to the printer, publisher or proprietor of any IV. 0. 76. newspaper, or any matter relating to the printing or pub- of'^rinter lishing thereof, can be pleaded or demurred to. And the Publisher, ..... **^ p^*^' plaintiff now in a suit in the High Court has the benefit of prietor of this enactment by any form of proceeding in the division ^Uow^dTn to which the action belongs : Ramsden v. Brearley, 33 L. T. ^^^ ''^^^■ (N. S.) 322. The statute, however, only extends to printer, publisher, or proprietor. A defendant, therefore, may on this ground object to answer an interrogatory asking whether he is an editor : Carter v. Leeds Daily News Co. and Jackson, W. N. 1876, p. 11, and see Anon., W. N. 75, p. 229, and McLouyhlin v. Dwyer, Ir. R. C. L. 170, or the author : Wilton v. Brignell, W. N. 1875, p. 239. The Perjury. objection cannot be taken on the ground that the answer would support an indictment for perjury in the cause: Rice V. Gordon, 18 Sim. 580. 60 SUBJECT MATTER. Produc- Under the conflicting jurisdictions of the Equity and tion of . , , . doou- the Common Law Courts, and under the special wordmg^ '"™*'' of the C. L. P. Act, 1854, section 50, and the Act for the amendment of the Law of Evidence, 14 & 15 Vict. c. 99, section 6, it was held that where inspection of documents was sought under the latter Act, the equitable practice entitled the person from whom inspection was sought to refuse on the ground that it would incriminate him without taking the objection on oath, though secus under the wider juris- diction of the C. L. P. Act : Hill v. Campbell, supra citum, 10 L. E. C. P. 222 ; Greenfield v. Eeay, L. K 10 Q. B. 217 ; Collins V. Yates, 27 L. J. (Ex.) 150 ; Rep. of Peru v. Weguelin, suprd citum, L. E. 7 C. P. 352 ; Daniel v. Bond, 9 C. B. (N. S.) 716. But since the Judicature Act in every case, whether interlocutory or otherwise, the objection must be taken on oath, and by the party himself: Webb V. East,B Ex. D. 23 ; affirmed C. A. ih. 108; 41 L. T. (N. S.) 715 ; 28 W. E. 336. As to how this objection to be sufficient should be taken, see post, p. 134, and App., p. 199. On the Discovery may further be objected to on the groimd ground of . , materially that it Will materially prejudice or discredit the person uig''thr from whom, apart from the action in which, it is sought if party from ^q discovery be not wholly material to the plaintiff's case : whom J J r ^ sought, Ivy V. Kelcewick, 2 Ves. Jun. 679 : Carver v. Pinto Leite, 7 the^ctiiT Ch. 90; 41 L. J. Ch. 92 ; Heugh v. Garrett, 44 L. J. Ch. ^''sought' 20^ ; ^2 ^- ^'- (N- ^-^ ^^- ^^ ^°^^^ ^- ^^'^^^^' ^- ^- 1^^^' Rolls V. p. 37, which was a patent suit, the plaintiff, claiming to be the patentee of a new material whose essential ingredient was green Euphorbia for protecting and preserving wood, metal, stone, and other materials, sought to restrain the defendant from infringing the patent. The infringement and novelty were denied by the defendant, and the patent disputed ; objections to interrogatories administered by the plaintiff, as to whether the defendant ever manufactured SUBJECT MATTER. 61 a substance in which Euphorbia was used for a similar purpose, and also as to the names of the ships to which since the date of the plaintiff's patent the defendant had applied such substance, were allowed, on the ground of damage to the defendant's business. See also suprd, pp. 49 — 52, and Yerminck v. Edwards, 29 W. E. 189 ; M&p. of Costa Rica v. Edanger, L. R. 19 Eq. 33. Interrogatories may also be objected to as tending to Astending impute illegal conduct to the party interrogated : Balcer illegal V. Lane.mp^'d citum, 3 H. & C. 544; 11 Jur. (N. S). 117. ''°"'^"'=*- And lastly, as subjecting a party (not being a corpora- tion : King of Two Sicilies' case, 1 Sim. (N. S.) 334) to penalties, ecclesiastical censure or forfeiture. That discovery, which subjected the party or his Penalties. representatives (Parkhurst v. Loivten, 2 Swa. 214) to the first of these, could be resisted, was an old equitable doctrine : Short v. Mercier, 3 Mac. & G. 205 ; 2 D. & S. 635 ; Astoris Case, 5 Jur. (N. S.) 615, 779; 4 D. & J. 320. Thus it may be resisted under the Solicitors' 6 & 7 Vict. •' c. 73. Act (6 & 7 Vict. c. 73) : Scott v. Miller, Joh. 220, 232 ; ■ and under the Foreign Enlistment Act: The Mary or Alexandra, L. R. 2 Ad. & E. 319 ; cf post, p. 119. The witness must swear that to the best of his belief the penalty would be incurred : Scott v. Miller, Joh. 220 (compare cases, p. 111). And so with regard to a statutory incapacity in the nature of a penalty : Boteler v. A llington, 3 Atk. 457. For husband and wife, cf. suprd, p. 38. But penalties under private Acts are exceptions: Exoep- Robinson v. Kitchin, 8 D. M. & G. 88 ; Green v. Weaver, private 1 Sim. 404; as are penalties recoverable under 13 Eliz. °f' ,„ ' '^ Under 13 c. 15 : Bunn v. Bunn, 4 De G. J. & S. 316. Eiiz. c. 15. Discovery relating to penalties for assigning a lease in leases. without license or for breaches of covenant, or for marriage t^e tenant without consent, can be resisted in the same manner : Lord ^^^^^ ^^ Uccbridqe v. Staveland, 1 Ves. Sen. 56; May v. HavMns, from "^ denying 02 SITBJECT MATTER. bis land- 3 w. R. 550; 19 Jur. 600 ; Chancey v. Fenhoidet, 2 Ves. title.^ 265 ; 2 Atk. 392 ; Brown v. Davis, 2 L. R. Ir. 434 ; cf. p. 96. Excep- But if a plaintiff entitled to the penalty waive it (Lord *"'''^' Uxbridge v. Staveland, swp^a), or if the time limited for the penalty has elapsed, discovery must be given : Trinity House v. Surge, 2 Sim. 411 {y). Censure. Liability to ecclesiastical censure will also protect from discovery: Brownswood v. Edward, 2 Ves. Sen. 243; Finch v. Finch, ib. 491 ; ParJchurst v. Lowten, 2 Swa. 214. Forfeiture. And lastly, forfeiture of estate is an additional reason for refusing discovery : Hamhrook v. Smith, 16 Jur. 144; U. 8. V. Macree, L. R. 3 Ch. 79 ; Parkhurst v. Lowten, 2 Swa. 214; and see Chester v. Wm^tley, 17 C. B. 410, where the subject is fully discussed. Discovery can be resisted Privilege. (4.) A s privileged. At equity. At equity the privilege conferred by a confidential relation between the witness and the party from whom he gets his information was a ground of demurrer to the interrogatory : Strathmore v. Strathmore, 11 L. J. Ch. 400. At com- Under the C. L. P. Act, 1854, section 50, the practice was, under the that the Court had a discretion to refuse production of Act. documents, on the ground of privilege, even if scheduled as relevant ; and thus confidential communications by Discretion, non-professioncd agents with a view to litgation were held to be pi-ivileged : Chartered Bank of India v. Rich, 4 B. & S. 73, and the cases therein quoted ; Woolley v. The R. L. R. Co., L. R. 4 C. P; 602 ; Fenner v. The L. & 8. E. R. Co., L. R. 7 Q. B. 767. 1.5 & 16 But this was not the case under the Chancery Amend- ■ ment Act, from which the wording of the Judicature Act, The rule Order XXXI., r. 11, is taken, and the practice now is that under the (,y) And where the penalty or forfeiture is only collateral : WUkimon v. D'Eaugier, 2 Y. & C. 3661 ; Benym v. Netthfold, 3 M. & G. 103, or tantamount to licLuidated damages : Jones v. Q^-een, 2 Y. & J, 298 ; Fvemh v. MacCide, 2 Dr, & War. 276 ; Redes. 232. SUBJECT JfATTEH. 63 a judge has no discretion as to refusing to allow, at the •T"'''''^'""'® instance of one party to an action, the production of docu- ments in the possession of another party relating to the matters in question which are privileged, or affect the interest of a person not a party to the action in whose possession jointly with the party required to discover they are. And no document (other than a document of title) what . 7 7 . . ., , V 7 • 7 documents, ts, sinctly speaking, privileged, eaxeft confidential com- &c., are munications between the farty's solicitor or his agent, P"" ^^e a nd himself or his agent, or a confidential communication procured at the instance of or to be laid before his solicitor with a view to litigation: per Jessell, M.R, Bustros & Others V. White, 1 Q. B. D. 423, and in Anderson v. Tlie Bank of British Columbia, 2 Ch. D. 644, C. A. ; 45 L. J. Ch. 649; 3.5 L. T. 76 ; 24 W. R 624; and per Cockburn, C.J., in Southwark and Vauxhall Waterworks Co. v. Quick, 38 L. T. (N. S ) 28 ; 3 Q. B. D. 315. See also The Theodor Korner, 27 W. R. 307; and indeed, at equity, letters between a party to a suit and an unprofessional agent, whenever written, were not privileged : Kerr v. Gillespie, 7 Beav. 572 ; Caiman v. Trueman, 3 H. & N. 871, 877, per Pollock, C.B. The question therefore of strict privilege, so far as regards information in the sole possession of the party from whom discovery is sought, since the cases above quoted, resolves itself into three divisions. (a) Professional communications with a view to litiga- Sub- . . .... divisions tion. (h) Quasi-professional with a view to litigation, of the We shall subsequently consider the irregular privilege ™ ^®° " attached to information not in such possession, (c) Docu- ments of title. And first, generally to obtain the benefit of privilege Keqnisitea for privi- the facts protecting the document or communication must lege be stated. A mere affidavit that they are privileged is in- sufficient: Gardner v. Irvin, 4 Ex. D. 49, and see infrd, p. 136, App., pp. 206—210. 6^ SUBJECT MATTER. It must be The documents or communication must further be justified by .... i n t i a state- relevant to the suit in which discovery is sought : Paddon facts. ° ^- Winch, 9 L. R. Eq. 666, and they will be relevant Must be though they may actually have been documents in a to the previous suit (0) : Bulloch v. Corrie, 38 L. T. (N. S.) 102 ; at Sir 3 Q. B. D. 356 ; Jenkyns v. Bushby, L. R. 2 Eq. 547 ; Holmes v. Baddeley and Others, 1 Phil. 476 ; or com- munications made with regard to matters not even then the subject of litigation at all : per Jessel, M.R., Wheeler v. Le Marchant, 44 L. T. N. S. at p. 634 (C. A.) ; 17 Ch. D. 675 (C. A) at p. 682. Must be They must also be with a view to litigation, view to It was at one time supposed that communications or litigation, documents to be privileged must have been in direct anticipation of the litigation : Radcliffe v. Fursman, 2 Bro. P. C. 514 ; Hughes v. Biddulph, 4 Russ. 190 ; Bolton Meaning V. The Corp. of Liverpool, 1 My. & K. 88; and the viewTo * analogous rule, by which evidence of solicitors, as regards litigation. ' communications made to them, is privileged, was originally limited to communications made in the conduct of a cause : Gobden v. Kendrick, 4 T. R. 431. But the principle laid down by the Lord Chancellor Brougham, as early as the leading case of Greenough v. Gaslcell, 1 My. & K. 98, 103, that "If the privilege were confined to suits begun or intended, or expected or appre- hended, no one could safely adopt such pi'ecautions as might eventually render any proceedings successful or all In the case superfluous'' has for a long time been recognized in a fesafonal succession of cases, and immediate communications between thr^need ^01^*'^*'*^ ^^*^ client Or their respective agents in the cause to not have be now " with a view to litigation" need not have owed their been made . j t i i • i either existence to a direct contemplation thereof, but may be eveTm*"^ > ante litem motam, and if relating to matter which may (z) Such documents were formerly held not to be privileged: Greenlaw v. King, 1 Beav. 137. SUBJECT MATTER. 65 become the subject of litigation, will be privileged, and antieipa- may be described in the schedule or affidavit (a) as refer- gation. ring to matters " now a question in the cause " : Macfarlan V. RoU, L. R. 14 Eq. 580 ; Mas v. N. E. R Co., 3 My. & C. per Lord Cottenham, at pp. 355, 357 ; Herring v. Clobery, 1 Ph. 91 ; Pearse v. Pearse, 1 De G. & Sm. 12 ; Loi-d Walsingliam v. Goodneke, 3 Ha. 122 ; Manser v. Dix, 1 K. & J. 451 ; Lawrence v. Campbell, 4 Drew 485, where V.-C. Kindersley, at p. 90, says : " It is not now necessary, as it formerly was, for the purpose of obtaining production, that the communications should be made during or relating to, an actual or even an expected litigation": WalshamY.Stainton,2 H. & M. 1 ; Wilsony.K. & B. J. Rail- way Co., L. R 14 Eq. 477; 27 L. T. (N. S.) 507; 20 W. R 938, where it was held that all communications between solicitor and cKent on the subject of a contract which may lead to litigation are privileged ; Holmes v. Baddeley, suprd citum, 1 Ph. 476 ; Jenkyn v. Bushby, suprd citum, L. R. 2 Eq. 547 ; Combe v. Corpm'ation of London, 1 Y. & C. Ch. 631 ; Pearse v. Pearse, 1 De G. & S. 12 ; Ford v. De Pontes, 5 Jut. (N. S.) 998 ; 7 W. R. 299, where, at p. 994, Sir J. Romilly, M.R., says : " If a person has communications with his solicitor they are confidential, and if a contest or a suit subsequently arises between the client and a stranger, the correspondence is privileged ; though the cause of dis- pute had not actually arisen at the time such correspon- dence passed, yet it is so connected with the matter in dispute that the other party is not entitled to see it." Flight v. Robinson, sv/prd citum, 8 Beav. 22 ; Penruddock V. Hammond, 11 Beav. 59 ; Woods v. Woods, 4 Ha. 83 ; Calley v. Richards, 19 Beav. 401 ; Minet v. Morgan, 8 Ch. 361, where the cases are ably reviewed by Selborne, L.C., and Mostyn v. The W. M. Coal & Iron Co., 34 L. T. (N. S.) 532, C. P. D., where, the action being brought for (a) See App., p. 209. Cf. also Turton v. Barher, L. R. 17 Eq. 329 ; 43 L. J. Ch. 468. 66 SUBJECT MATTER. rent alleged to be due under a lease of coal mines, instruc- tions submitted to solicitors or counsel, for tbe purpose of obtaining legal advice, and correspondence between a party to an action or his predecessors in title, or persons acting in their behalf, and their legal advisers, were privileged from inspection whenever written (6). Exception Byt this principle has never been extended to communica- in the case . . i • i of quasi- tions made between third persons and either party before sional litigation, see per Jessell, M.R., in the recent case of Wheeler ^roteoln ^- ^^ ^archant, supra citum, 44 L. T. (N. S.), at p. 461 (c); documents and to confer the privilege on communications between the munioa- client and his agent or the solicitor and his agents, such which communications must have been made with a view of being though laid before the solicitor for advice or in direct apprehen- they need .... . . not have sion of litigation, although not necessarily after its com- naiiymade mencement, see post, pp. 71-82. *at1o^*'^ ifwe^ V. Morgan, suprd citum, 8 Ch. 361, has been com- further qualified by The Original Hartlepool Colliery Go. must have V. Moon, 30 L. T. (N. S.) 585, C. A. (determined on ^7heot different grounds in the Court below by V.-C. Bacon, iK contempia- 193) which at first sight seems to narrow the rule above tion ' ... thereof, stated, that litigation need not be directly anticipated, but really only bears out this exception in the case of quasi- professional privilege, deciding that communications between the defendant's solicitor and the defendant's agent must, to be " with a view to litigation," be made after the cause of action, whether the action be anticipated by the party or not, has arisen. Apparent An appfirent conflict between the Court of Common owing to" Pleas, in Gossey v. The Brighton 4' S. G. R. Go., L. R. 6 C. (b) See App., p. 210. (c) He there says, "The cases no doubt protect such documents (viz., those communicated by third parties to solicitors, but not aa agents for the clients seeking advice) where they have come into existence after litigation commenced, threatened or in contemplation, and where they have been made with a view to such litigation. SUBJECT MATTER. 07 P. 146, followed in Skinner v. The G.N. R. Co., L. R. 9 Ex. Queen'a 298, deciding that a report, sent by the company's medical cases officer after a claim made, was privileged, and the Court of c" l'p Queen's Bench, in Fenner v. The L. & S. E. R. Co., 7 Q. B. ^«* "'': ' ^ plained. 767, foUowed in MaUen v. The 0. N. R. Co., L, R. 9 Ex. 100, which disallowed the privilege in such cases, except the communication were " in the nature of instructions for the brief" (d), is to be explained by the fact that the Court was in the latter cases exercising the discretion vested in it by the practice already referred to under the 0. L. P. Act, now abolished by the equitable practice of the Judi- cature Act. In McCorquodale v. Bell, suprd citum, 1 C. P. D. 471 (de- cided before Bustros v. White, suprd citvmi, 1 Q. B. D. 423), both Brett, J., and Denman, J. find no discrepancy in these cases. The latter says : " I see no difficulty in reconciling • them. The utmost extent to which the case in the Q. B. goes is that, though in certain cases there may be power in the Court or judge to order inspection of communications which have in a certain sense passed between the plaintiff's sohcitors and others in contemplation of anticipated litiga- tion, yet that case does not touch the doctrine laid down in Cossey v. The L., B. & S. C. Railvjay Co., that as a rule the Court will not allow inspection of this sort to be made, unless a very strong affirmative case is made out for the exercise of their discretion; upon that ground, Fenner v. L. & S. E. Railway Co. may be supported. The communication, or document, to be privileged, must They must also be confidential: Maden v. ^eewrs, 7 Beav.489. It is not dential." enough to describe it merely as "in anticipation of or relation to litigation " : Bunbury v. Bunhury, 2 Beav. 173; Smith v. Baniell, 18 L. R. Eq. 649 ; Bluck v. Galsworthy, 2 Giff. 453 ; though neither is a merely confidential communica- tion on that account privileged : Att.-Gen. v. Johnstone, (d) For thia test, cf. Woolley v. Pole, 14 C. B. N. S. 538. ' f2 68 SQBJECT MATTER. W. N. 1872, p. 12 ; McCorquodale v. Bell, 1 C. P. D. 471 (e). And, on account of not being thus described in the affidavit, opinions of counsel and the friendly opinion of Lord Westbury, then an ex-chancellor, on points which after- wards became part of the subject-matter of the suit, were held not privileged, though had they been so described they would have been : Smith v. Daniell, suprd citum, L. R. 18 Eq. 649; Bluch v. Galsworthy, 2 Giff. 453, swprd, citum; even if they were given with reference to a separate litigation about the same subject matter as the question at issue, and after it had arisen: Jenkyns v. Bushby, suprd citxvm, L. K 2 Eq. 547; Holmes v. Baddeley & Others, suprd citum, 1 Phil. 476 ; and generally on this point see Wilson v. N., &c.. Railway Co., L. R. 14 Eq. 477; Hopkinson v. Burghley, 2 Ch. 447. Statements made by the servants and officers of a railway company in the usual course of business, as the report of a railway guard after an accident, have, on the ground of not being described as confidential, been held not to be privileged : Pai^ v. L., a & D. Railway Co., 24 L. T. (N. S.) 558. Counsel's Indorsements on briefs are publici juris, but a privilege marks on protects instructions therein, and observations^ notes, or briefs. marks made by counsel thereon : Nicholl v. Jones, 2 H. & M. 588 ; Walsham v. Stainton, suprd, citum,, 2 H. & M. 1 ; Bolton V. The Corp. of Liverpool, suprd citum,, 1 M. & K. at p. 94, and their opinions: Richards v. Jackson, 18 Ves. 472 ; Flight v. Robinson, suprd citum, 8 Beav. 22 ; and such privileged portions of such documents will be sealed up on inspection : NicKoll v. Jones, and the other cases just cited above. This privilege only applies to information ac- quired by the solicitor in the affairs of the client from whom it is sought : Thomcos v. Rawlings, 27 Beav. 140 ; CaseB and and extends to cases and opinions as well by solicitors opinions (c) On ordering production of letters marked "Private and con- fidential," an undertaking to use them for no collateral object is inferred : Hopkinson v. Burghley, 2 Cli. 447. STTBJEOT MATTER. 69 as by counsel: Mostyn v. The W. M. Iron Co., 34 L. T. Prepared ■' "^ ' for prior (N. S.) 531, prepared and obtained with reference to suits on .,,,., the same prior suits between the same parties, and between the matter. defendant and other parties than the plaintiff on the same matter : Combe v. Corporation of London, swpra citum, 1 Y. & C. Ch. 631; Reece v. T)-ye, 9 Beav. 316; Thompson V. Falk, 1 Drew, 21 ; Holmes v. Baddeley and Others, supra citum, 1 Phil. 476 ; Mostyn v. The W. M. Iron Co., 34 L. T. (N. S.) 532, and to a copy of a case and opinion Copy of a lent to a defendant by a person litigating the same point with the plaintiff: Enthoven v. Cobb, 2 D. M. & G. 632. Nor is it lost by giving a copy or extract of the opinion to the solicitor on the other side : Carey v. Cuthbert, Ir. R. 6 Eq. 599. And it also applies to documents relating to the ^°™- ^ ^^ ° ments re- conduct of the case of one of the parties : Hamilton v. lating to N'ott, 16 L. R. Eq. 112 (letters of defendant, agent for the case of co-defendant's solicitor) ; Richards v. Gellatly, L. R. ^o^reof the 7 C. P. 127 ; Sankey v. Alexander, 8 L. R. Ir. Eq. 241 ; parties. Gandee v. Stansfeld, 4 De G. & J. 1 (office copies of an examination of the plaintiff in bankruptcy by the de- fendants); Peile V. Stoddart, 1 M. & G. 192; Turnery. Burkenshaw, 11 W. R. 851. It embraces shorthand notes Shorthand notes. taken of the proceedings in a trial by one of the parties for the purpose, " amongst others," of his case in a second action against the same party : Nordon v. Defries, 8 Q. B. D. 508 ; though it has been held that shorthand writers' notes of proceedings in lunacy and indorsements on briefs are not privileged when it is sought to bind the committee's estate after the lunatic's decease on an alleged agreement : Re Brown, Tyas v. Brown, 28 W. R. 575. And as to short- Exceptions . .to the pri- hand notes of evidence obtained by a client from third viiege at- parties, with a view to being, though not actually laid casea^opi" before, his solicitors, and the privilege which attaches to '"°"^' *"• them, see Sowthwark, &c., Co. v. Quick, 3 Q. B. D. 315. Cases in which plaintiff and defendant have a joint Exception, interest must, however, be produced : A tt.-Gen. v. Berkeley, 70 SUBJECT MATTER. 2 J. & W. 291 ; Reynell v. Sjprye, 10 Beav. 51 ; Ford v. De Pontes, swprcb citum, 5 Jur. (N. S.) 993, where the corre- spondence between a divorced woman and her solicitor relating to her divorce, obtained by collusion with the husband, was held not privileged. As to cases relating to trust property, see suprd, under " Parties," p. 37 ; and the same holds good of executors. Client's A direction by a client to his attorney as to an arrest is ffto*an" iiot privileged by the latter's employment: Galdhech v. a^est. Soon, 7 It. R C. L. 32. We shall now proceed to treat of the three subdivisions of our subject, (a) Profes- Professional documents or communications — viz., those ^ passing between the solicitor and client, or their re- spective agents, or written by the former for the latter — require, after the above remarks, no further comment, except that from an early date they have been held to be Where none the less privileged as " professional " where the soli- declines citor has afterwards declined the employment: Cromack ploy^nt. V. Heaihcote, 2 Bro. & Bing. 4. The privilege is that of Privilege the client and not of the attorney, and is therefore re- client, stricted to communications made to him in his professional capacity: Wilson v. Rastall, 4 T. E. 753; Greenlaw v. King, suprd citum, 1 Beav. 137 ; Ross v. Gibbs, L. R. 8 Eq. at p. 524. Nor for the same reason can the solicitor claim it unless his client does : Re Cameron's, Coalbrook R. Co., 25 Beav. 1. Thus, where a ward of Court was keeping out of the way, the solicitor had to disclose all information : Ramsbotham v. Senior, L. R. 8 Eq. 575. As to cases between trustee and cestuis que trustent, see Bacon v. Bacon, 34 L. T. (N. S.) Ch. 349. Professional opinions given partly also for the benefit of those requiring the dis- covery are not privileged : Reynolds v. Godlee, 4 K. & Jj 88 ; Talbot v. Marshfield, 13 W. R 885 ; Wynne v. Hum- berston, 27 Beav. 421 ; on app. 32 L. T. 306. This privilege SUBJECT MATTER. 71 extends to the solicitor's clerk: Taylor v. Foster, 2 C. & P. 195 ; or to an accountant employed by him : Walsha/m, v. Stainton, suprd, dtum, 2 H. & M. 1. The privilege of documents and papers passing between Cases of the party and his solicitor, or their agent, is in cases of fraud destroyed: GolTnan v. Trueman, supra citum, 3 H. & N. 871 ; Woolley v. Pole, 14 C. B. (N. S.) 538 ; 32 L. J. C. P. 263; Mahony v. National Widows' Life Assurance Fund, 6 L. K C. P. 252; Follett v. Jefferye, 1 Sim. N. S. 3; Feaser v. Williams, 11 Jur. (N. S.) 902 ; but see Mornington v. Mornington, 2 J. & H. 697. And there is generally no privilege as to documents relating to the alleged fraud : Phillipps v. Holmer, W. N. 1867, p. 101. But communications between a fraudulent person and his solicitor, when the solicitor is no party to the fraud, are privileged : Charl- ton V. Goombes, 4 Giff. 372 ; Mornington v. Mornington, cf. pp. 37, 102, 118 ; Ford v. Be Pontes, 5 Jur. (N. S.) 993. Where a client, apprehending possible litigation, con- Cases of suits his solicitor as to a supposed flaw in his title title, to an estate (not being himself in a fiduciary posi- tion), the opinion he receives on the subject will be none the less privileged should litigation in respect of such title arise; see per V.-C. Bruce, in Pearse V. Pearse, suprd, citum, 1 De G. & Sm. 27, 28 ; and see pp. 37, 92. The professional privilege, then, protects all confidential communications relevant to the matter litigated upon between the party and his solicitor, or their respective agents, whenever originally made, and whether with a direct view to litigation or not. Quasi-professional communications or documents are (5) Quasi- such as are procured confidentially by some third person sional. employed either (1) by the solicitor in the action as his The three substitute, or (2) by the client at the solicitor's (being the 72 SUBJECT MATTER. Procured by third person em- ployed \)y solicitor or by the client at his instance. Anderson V. The Bank of BrUish Columbia. solicitor in the action) instance, or (3) by the client (/) at his own instance, for the purpose of being laid before the solicitor, in each several case with a direct view to the litigation, or at least in apprehension thereof, whether before or after the commencement of litigation. • The extension of the principle of professional privilege to the first two of these classes is elucidated by Jessel, M.R, in his masterly judgment in Anderson v. The Bank of British Columbia, 2 Ch. D. 644, where telegrams sent, before the bill was filed against the defendant for impro- perly transferring money from one account to another at their branch bank in Oregon,from the London to the Oregon manager, and seeking information about the transaction likely to be required by the solicitor in the case, were held not to be privileged. After repeating the reason for the privilege already adverted to, viz., that litigation being restricted to the conduct of professional men, "the client should be able to make a clean breast of it to the gentle- man whom he consults," the Master of the Rolls con- tinues : — " As to the extent of the rule it goes not merely to a communication made to the professional agent himself by the client directly. It goes to all communications made by the client to the solicitor through intermediate agents. He is not bound to write letters through the post, or go himself personally to see the solicitor. He may employ a third person to write the letter, or he may send the letters through a messenger, or he may give a verbal message to a messenger and ask him to deliver it to the solicitor with a view to his prosecuting his claim or substantiating his defence. Again, the solicitor's acts must be protected for (/) As late as 1862, V.-C. Wood, in Hooper v. Gumm, 2 J. & H. 602, held that communications obtained from a third person at the client's instance, apart from the solicitor, with a view to the litiga- tion, were not protected. SUBJECT MATTER. 73 the use of his client. The solicitor requires further informa- tion, and says, I will obtain it from a third person ; that is confidential. It is obtained by him as solicitor. . . . Then the rule goes a step further. The solicitor is not bound any more than the client to do this work himself He is not bound either to collect information or to collect testimony. He may employ his clerks or other agents to do it for him, and upon the same principle as the infor- mation acquired by himself directly is protected, so the information acquired by a clerk or agent employed by him is equally protected. But then the cases go still a step further. Suppose the information required is in a foreign country, where neither solicitor nor his clerk, nor an ordinary agent can obtain it, he may request the client to obtain it for himself, and then the infoi^mation so ob- tained by the client at the request or under the advice of tlie solicitor is in a sense obtained by the agent of the solicitor, although it is a very odd way of expressing it." And in Bustros.v. White, 1 Q. B. D. 423; 45 L. J. (App.) Q. B. D. 642 ; 34 L. T. K S. 836 ; 24 W. R. 721, an action by consignees against shipowners for damage to cargo, where a correspondence, or documents described as a correspondence between the plaintiffs' Liverpool firm and their firm abroad, relating to the condition of the cargo, and to the plaintiffs' claim against the defendants and to the proceedings in the action, and relating only to the plaintifis' case, and not to the defen- dants' case, were held not to be privileged. Jessel, M.R, understands quasi-professional privilege to exist " where the advice or communication does not proceed from the solicitor directly, but is information sent at his instance by an agent employed by him, or even by the client on his recommendation, or in some way or other procured by a solicitor acting in the case for the plaintiff or defendant." He thus does not recognize the third of our classes of Informa. 74 SUBJECT MATTEE. tion ob- tained from a third person by the cUent on his own behalf. Comment of Jessel, M.E., on Lafone v. The Falk- land Is- lands Co. Semble bears a wider con struction. Keason given for the deci- sion of V. The Bank of British Columiia. Final deci- sion in Southwark, tfcc, Water- works Co. V. Quide. quasi-professional privilege, viz., information obtained by the client at his own iti^tarice from a third person for the purpose of being laid before the solicitor, with a direct view to the litigation, and that in spite of the judgment in Lafone v. The FalklaTid Islands Co., 4 K. & J. 34 (see infra), where the test of the privilege was held by V.-C. Page- Wood to be "whether the person transmitting the information was discharging a duty which properly devolved upon the solicitor," and on which the Master of the Rolls thus comments: "In other words, if a solicitor asJcs the client to send somebody to collect information, it is the same thing as if the solicitor himself had written to a person in foreign parts asking for information." But the decision in Lafone v. The Falkland Islands Co. seems here to have been narrowed in its application by the Master of the RoUs. Th-e j udgment in that case would really appear to infer an implied request by the solicitor to col- lect the information where the third person transmitting it is discharging a duty that under other circumstances must have been performed by the solicitor, and the decision in Anderson v. The Bank of British Columbia, suprd citum, was on appeal, 2 Ch. D. 654, affirmed on very different grounds, viz., that the information desired in that case was really the principal's, such as he was bound to know in the ordinary course of his business, and to disclose, if called upon to do so, with reference to the litigation. Indeed, Mellish, L.J., in the course of the argument actually said, "A letter written by an agent who was getting up evidence to be used at the trial would be privileged." And so this point came to be considered de novo in Southwark' and Vauxhall Waterworks Co. v. Quick, 3 Q. B. D. 315 ; 47 L. J. Q. B. 258 ; 26 W. R. 341 ; (C. A.), ib. 328, Q. B.; 38 L. T. (N. S.) 28, syprd dtum, where both the Queen's Bench Division and the Court of SUBJECT MATTER. 75 Appeal held that where a party to an action was in pos- session of documents containing information which he had obtained at his own instance and without any suggestion from, his solicitor, but with a view to future possible liti- gation, and for the purpose of being submitted to his solicitor, such documents were privileged, whether actually so submitted or not. Cotton, L. J., in the Court of Appeal, loc. cit, p. 322, says, " The defendant's contention is that there was no previous request for the information made by the solicitor, but this I hold to be an unsubstantial dis- tinction. If the document came into existence for the pui-pose merely of communication between client and solicitor it is privileged " (g). And this is the true ground of the decision in McCorquo- daU V. Bell, 1 C. P. D. 4711; 45 L. J. C. P. 329; 35 L. T. (N. S.) 261; 24 W. R. 399 (decided before Anderson v. The Bank of British Columbia, suprok citum), where, under circumstances peculiar to our first group of quasi-pro- fessional privilege, communications between one of the plaintifi"s solicitors and a third person for the purpose of ascertaining facts, with a view to a litigation anticipated though not yet begun, and in order to guide his conduct thereof, were held privileged. It must be here again noticed that this class of quasi-professional privilege only applies where litigation is actually apprehended, though not necessarily begun. See per Jessel, M.R., in Wheeler v. Le Marchant, supra citum, 44 L. T. (N. S.) 632; 17 Ch. 1). 675. The applications of these principles are various. In Reid v. Langlois, 1 Mac. & Gr. 627; 19 L. J. (N. S.) Ch. Rdd v. 337, letters by the defendant to his mercantile agents to be L^tos b communicated to his solicitors were held to be privileged, defendant to agents (g) As to the distinction between production of documents m such purpose of cases and answers to interrogatories, which must be to the best of being laid knowledge, information and belief, see post, p. 131. aoiidtor ^' 76 SUBJECT MATTER. HugJies v. BidduVph. Communi- cations between defendant's country and town solicitors. Steele v. Stewart. Communi- cations by a person necessarily sent out by defend- ant to collect evi- dence for the cause. Ooodall V. Little. Communi- cations from de- fendant's solicitors to defend- ant, and from his solicitor in a previous pertinent suit to bis then soUcitor. Lafone v. The Pcdk- land Is- lands Co. Curling v. Perring. and in Hughes v. Biddulph, 4 Russ. 190, communications between the defendant and her country solicitor or her town solicitor, and communications between the country and the town solicitors respectively, made in their relation of client and solicitor with a view to litigation ; and see for letters between country and town solicitors after litigation commenced, Catt v. Tourle, 23 L. T. 485; 19 W. R. 56. In Steele v. Stewart, 1 Phil. 471, communications by a "person necessarily sent out by the defendant at the m- stance of his solicitors to collect evidence in support of the action; and in Goodall v. Little, 1 Sim. (N. S.) 155, letters from the solicitor of one of the defendants to the defendant, and letters written by the attorney of one of the defendants in another action relevant to the one in question to the same defendant's solicitors in the latter, were held to be privileged. Communications from one co-defendant to the other, with a view to being submitted to the latter's solicitors, were held not privileged from pro- duction, on the ground that the person who wrote them was not an agent of the solicitor, ib. ; but this test was, as we have seen, disregarded in Lafone v. The Falkland Islavds Co., swprcb citum, 4 K. & J. 34, where answers to in- quiries addressed by the defendants to their agents abroad by direction of their solicitors {h) for the purpose of pro- curing evidence for their case were held privileged, and the true test to be, not whether the person transmitting the invitation at a distance is the agent of the solicitor, but whether in so doing he is performing a duty proper to the solicitor, and one which would have been performed by him had circumstances allowed; and this test was applied in SouthwarJc, <&c., WaterworJcs Co. v. Quick, suprd citutn. In Curling v. Perring, 2 My. & K. 380, it was held that {h) This case is quoted for the judgment. The facts are those of an ordinary case of quasi- privilege. Goodall v. Little was followed by Betts v. Memies, 26 L. J. Ch. 528. SUBJECT MATTER. 77 the privilege extended to communications between the Privilege . . _ .. extends to sohcitor and the client's witness. communi- The case of Ross v. Gibbs, L. B,. 8 Eq. 522, where a between bundle of letters from the defendant's agents sent by them andtiTent's to Spain to consult with their legal advisers there, and to witness. report thereon and to obtain evidence for them in the (^jjj. ' suit, was held privileged, resembles Reid v. Langlois, Letters , . . from de- and lorms no exception to the rule as enunciated fendant's in the judgment above quoted of Andejson v. The sfnt'out Bank of British Columbia, for "The Vice-Chancellor f^™*py •' _ them to considered that Gibbs was sent out to consult their legal consult advisers, to act under their direction in collecting evidence, and pro- and if so the point was the same as that decided in Steele ^^06^^ V. Stewart and Lafone v. The FaUdand Islands Company." In Martin v. Butchard, 36 L. T. 732, where the action Martin v. , , Butchard. was for the improper construction of a steam-tug, two surveyor's reports, one made before and the other after the Surveyor's action brought, with a view to the claim, were held not privileged, on the authority oiBustros v. White,suprcb citum. It is to be noticed that no other cases were quoted, that this was an instance of our third class of quasi-privilege, and we submit that both the report made in anticipation of possible litigation and that made after the litigation had commenced by the third party for the purpose of the action would, on the authority of Southwarlc, j the solicitor, which is the ground of such privilege being attached to the communications of such third parties, could only exist in the face of appre- hended litigation ; and see suprd, pp. 72 — 75. In Woolley v. The North London Railway Co., L. R. WonUey v. 4 C. p. 602, supra citum, which was one of the cases of By. Co. discretion under the C. L. P. Act above referred to, and now, since Bustros v. White, suprcb citum, 1 Q. B. D. 423, no longer binding, so far as the discretion of the judge influenced the decision (fc), it was held that any report or Keports of communication by a servant or agent to his principal con- officers ceming the circumstances which are the cause of litigation, ™^<=., of the whenever made, were only privileged if made with a view to the particular litigation, but that reports of scientific Reports of witnesses consulted with reference to the cause of the witnesses. accident for the purpose of the action were privileged. Brett, J., said in the course of his judgment, " The ques- tion for us is what is to be the rule of regulated discretion as to inspection of this class of documents. The material point is whether the report be made in the ordinary course or with a view to a particular litigation." We submit that such reports (viz., those not made with a direct view to litigation) of the company's servants or officers to them as distinguished from their solicitors would remain since the Judicature Act unprivileged on the ground of their not being confidential communications: Parr v. The London, Chatham, & Dover Railway Co., suprcb citum, 24 L. T. (N. S.) 558, or anyhow as lacking the (A) It was at first questioned whether some discretion did not still exist in the Common Law Courts to refuse inspection where the Equity Courts had granted discovery. As to the effect of Bustros v. White, see post, pp. 67, 79. '80 SUBJECT MATTER. needed view of litigation, and that the reports of such scientific witnesses being also those of third persons would only be privileged if made at the instance of or to be laid before the solicitor, in which latter case they must have been in apprehension of the particular litigation: See Soutkwarh and Vauxhall Waterworks Co. v. Quick, suprd, citum, 26 W. K. 34 ; Wheeler v. Le Marchunt, suprd, citwm, 44 L. T. 632 ; Original Hartlepool Colliery Go. v. Moon, suprd, citum, 30 L. T. (N. S.) 585 (C. A.); McCorquodale v. Bell, suprd citum, 1 C. P. D. 471 ; 45 L. J. C. P. 329. > Friend v. The latter point has been partly decided in Friend v. a J gugjj gases held : Taylor v. Rumdell, 1 Ph. 222 ; unless they are held privileged by agents, as agents for non-parties also : Edmonds v. Lord duotion, (e) For form of affidavit, see App., p. 209. The decision (10 Q. B. D. 37) rests on the principle that " the Court will not compel a man to disclose another marHs deed." In answers to interrogatories, however, an application for or a refusal of production must be stated to gain the privilege. G 2 84 SUBJECT MATTER. Foley, 10 W. R. 210 ; Gridland v. Be Mauley, suprci [but secus in cases of fraud, see suprd, p. 69, and Walburn v. Ingilhy, 1 M. & K. 61], or unless the documents are their own property : Colyer v. Golyer, 9 W. R. 452 ; 30 L. J. Ch. 408 ; and unless the communications of such agents or Agents servants to the p'rincipal or master are privileged. And - documents must be produced though in the hands of agents abroad : Oabbett v. Cavendish, 3 Sw. 267 ; Morrice v. Swabey, suprd citum, 2 Beav. 500 ; Farquharson v. Bal- four, T. & R. 205 ; Mertens v. Haigh, 3 De G. J. & S. 528. Clerk of But in bankruptcy (/) a clerk of the debtors, who were principals . abroad. abroad, could not be made to produce their documents, as it was held that he was not authorised to deal with them ; therefore not entitled to their custody, possession, or power ; Byrne, ex parte, re Leighton, 35 L. J. (N. S.) Bankruptcy, 43> Plaintiff Common possession of the plaintiff and the defend- defendant. ant is no ground for the privilege: Att.-Gen. v. interest of Lambe, 3 Y. & C. 162 ; nor that others are interested others no j^ ^j^g documents: Kettlewell v. Barstow, 7 Ch. ground oi privilege. 686, swprd ; Turner, re, 24 W. R. 54; Blenkinsopp ro'^defer' ^- BlenJdnsopp, 2 Ph. 607; but if a co-defendant be dant in entrusted with a document its production will be refused absence of . other de- in the absence of the other defendants : Burbidge v. p , ■ .Robinson, 2 M. & G. 244. In an action against the tion of partner of a firm, he was held privileged from production ship books, of the accounts in the partnership books, on the ground that his partner did not consent, and he was not a party to the action : Hadley v. Macdougall, L. R. 7 Ch. 312 ; 26 L. T. (K S.) 379 ; 20 W. R. 393 ; Murray v. Walter, C. R. & Secus Ph. 114. This does not, however, and did not at equity affidavit ^ j of docu- apply to discovery of documents ; and in an action against executors, two of whom, together with non-parties to the suit, were members of the firm to which the testator belonged, for administration and for an account of profits made by the use of the testator's property, it was held (f ) Under section 100 of the Bankruptcy Act, 1849. menta. SX^JECT MATTER. 85 that they were bound to include the books of the firm in their schedule of documents : Vyse v. Foster, 13 L. K Eq. 602 ; 26 L. T. (N. S.) 282. Directors, on whose orders Directors access to documents depended, were held not to be able to pany. set up the privilege on the ground of joint possession with the rest of the company : Clinch v. The Financial Cor- poration, L. R. 2 Eq. 271. In an action, therefore. Firms, against a firm, a party must, whether partner or not, discover all relevant books, and he cannot protect himself on the ground that they are kept by his firm, and that the action is against him individually : Swanston v. Lish- man, 45 L. T. (N". S.) 360. Possible injury to others' interests is no ground for Possible the privilege : Gough v. Offiey, 5 De G. & S. 653. A iSr7 '° solicitor's lien on the documents will not confer the ^^*'^ , no ground privilege, and he must be paid off : Shaw, ex farte, Jac. °^ pn^i- 270 ; Rodick v. Gandell, 10 Beav. 270 ; Pratt v. Pratt, solicitor's W. N. 1882, p. 117. This only refers to the party's ^«°- own solicitor : Palmer v. Wright, 10 Beav. 234. But an application for production of a bankrupt's documents may be resisted on this ground, but only if it be clearly shown that the bankrupt cannot get production ; and a solicitor cannot set up a lien acquired in a cause as against the right of other parties in the cause to production : Vale V. Oppert, 10 Ch. 340. The privilege extends to documents deposited, as a security for money lent, by the party, if too poor to redeem them : North v. Huher, 7 Jur. (N. S.) 767 ; 29 Beav. 437 ; Liddell v. Norton, Kay, xi. It may here be mentioned Business that business or other documents whose actual removal f„ Xuy"*^ would cause great inconvenience are privileged from pro- "^^• duction. The afiSdavit must state that they are in daily use, and that they cannot be removed or taken out of the part/s possession without causing great inconvenience: Grane v. Cooper, 4 M. & C. 263; 30 L. T. 193; Reidv. 8G SUBJECT MATTER. Lanqlois, 1 Mac. & G. 627; 19 L. J. (N. S.) Ch. 337; Hooper v. Gfumm, suprd citwm, 2 J. & H. at p. 608. See App., p. 204 ; but cf. Gardner v. Dangerfield, 5 Beav. 389. Title. (4 c.) The next ground of privilege is that of Title. This is really a branch of the fifth head, for itis on the ground of relating exclusively to his own case without tending to support his opponent's that this privilege can be claimed. Distinc- Since, however, there is a distinction between the dis- tion here n ■ i / i ^ t n\ / \ in taken covery ot title (whether to property or reiiei ) {a) and oi pri^ege ^^^ ^^^^ which the opposite party has to meet, and since ™ *H this portion of our subject is exceedingly complicated, it wiU title and be convenient to separate these two sub-divisions, consider- ground of ing under the first, more especially, those instances which ''^^' concern title to property. The The broad principle to be extracted from a careful principle, review of the collective cases below mentioned, is that a party to an action or proceeding is entitled to oltain his own evidence from his opponent, but not his opponent's. This is subject to the qualification hereinafter examined of a distinction between the rights of the party when plaintiff and his rights when defendant, and it must be here noticed that, although for the purposes of simplification and to preserve some order among the vast variety of the cases treated in this and its companion sub-division, they have been kept asunder, yet both must be regarded as one continuous answer to the question whether the particular discovery sought is really the applicant's evidence, or whether it is solely his opponent's ; see more especially Minet v. Mor- gan, 8 Ch. 361 ; Commissioners of Sewers v. Glasse, L. R. 15 Eq. 302 ; Att.-Gen. v. The Corporation of London, 12 Beav. 8 ; 18 L. J. Ch. 314 ; Edwards v. Wakejield, 6 E. (a) "Title " has been held to be tantamount to "case," in the sense of including title to. relief and title to property : Felhin v. Lord Her- bert & others, 9 W. E. 756 ; Jenkyn v. Bushhy, siiprA citum, 14 W. R. 531. SUBJECT MATTER. 87 & B. 462 ; Johns v. James, 13 Ch. D. 370; and the cases quoted post, pp. 90, 91, Careiu v. Davis, 5 E. & B. 709. The doctrine applies to parties in possession of property, Parties in whether real or personal (subject to the exceptions under of property rule 14 of Order XXXI., and those where a defendant, *° ^''''=.'' ' ' they raise whose case is purely negative, seeks some defect in the »» inde- 1 . . . . pendent plaintiff's title), on the ground that the onus of disproof conflicting rests on the claimant thereto, and that a party in posses- j^tg^'. ''^ '" sion is not bound to show how he came by the property, or pleader (a), what he paid for it (6) : Sheivard v. Lord Lonsdale, suprd p- 92. citiun, p. 54 ; 5 C. P. D. 47 ; Horton v. Bott, 2 H. & N. 249 ; and the ejectment and tithe cases quoted below, pp. 94, 98 ; Mattock v. Heath, W. N. 1875, p. 201 ; Lake v. Pooley, W. N. 1876, p. 54 ; Phillips v. Barron, W. N. 1876, p. 54 ; Sivier v. Harris, ib., p. 22 ; Finney v. Forwood, L. E. 1 Ex. 6 ; though secws on prima facie fraud: cf p. 118. Thus, too, the equitable defence of being a purchaser Purchase for value without notice of the plaintiff's title protects a without defendant from production of documents detrimental to ^^^^ himself: Hunt v. Elmes, 27 Beav. 62 ; Pilcher v. Rawlins, ^^-'^ * eround for L. R 7 Ch. 259 ; Sherly v. Fagg, 1 Ch. Ca. 68. non-pro- it must, however, to render this objection sufficient, deeds or appear by the statement that the purchase was from some ^.™^'^ °^' one apparently entitled : Jones v. Countess of Manchester, answer 1 Vent. 197 ; Chamberlain v. Knapp, 1 Atk. 52 ; and the tones, consideration must be set out : Brereton v. Gamul, 2 Atk. 240 ; Hardingham v. Nicholls, 3 Atk. 304 ; Maitland v. Wilson, ib., 814. As to what is a valuable consideration, see ifoj-e v. Mayhow, 1 Ch. Ca. 34 ; Wagstaff v. Read, 2 ih. 156; Wallwyn v. Lee, 9 Ves. 24. This defence has been employed in bankruptcy since the Judicature Act : In re West, ex parte Good, 21 Ch. D. 868, where a bond Jide purchaser for value of the books and (a) Interrogatories were allowed in interpleader cases under the C. L. P. Acts : White v. Watts, 12 C. B. (N. S.) 267. (b) Hare, p. 218, xxxix. 88 SUBJECT MATTER. interest of the partnership of his partner prior to a dissolution was held not to be liable to produce the same to the trustee in bankruptcy of the partner, and it is submitted that all equitable defences being now admissible, this defence will still be a ground at law for refusing to produce or answer; but see the remarks in White and Tudor's Leading Ca&es— Basset v. Nosworthy — 5th edition, vol. ii., at p. 29. When the Whenever the defendant set up a conflicting title, the set up a privilege attaching to matters relating exclusively thereto title '"^''^^ and not tending to support the plaintiff's was an old equitable principle (c). Stroud V. In Stroud v. Deacon, 1 Ves. sen. 37, where the bill was for the discovery of the defendant's title, by produc- tion of a settlement whereby he claimed to be the repre- sentative of his late wife, who, he alleged, had settled the property to her separate use at their marriage, the defendant demurred because the plaintiff did not himself claim under the settlement, and Lord Hardwicke said: " As the plaintiff has made a title in contradiction to yours, he hath no right, generally speaking, to look into your titles ; but the bill charging that by producing this deed it will appear .that the title was only for life, you must give some answer to it, not barely demur " ; cf. Buden V. Dore, 2 ih. 444, and the cases quoted in the note thereto ; Att.-Gen. v. Corp. of London, 2 Mac. & G. 247 ; Carew v. Davis, 26 L. T. 104. And in the important case of Adams v. Fisher, suprcb citum, 3 My. & Cr. 526, the title of the plaintiff being denied, Lord Cottenham held that he was not entitled to the production of documents admittedly in the defendant's possession, which the answer This the stated could not tend to make out such title. So, too, throld" where the title was denied, a defendant was never bound privilege ^Q ggt forth the consequential accounts : see Oethin v. Gale, (c) Wigram, 2ncl ed., p. 251. SUBJECT MATTER. ^9 cited 1 Amb. 354; Sweet v. Young, ib. 353: Jacobs v attaching _ J' ; . (.Q conse- Goodman, suprd, citum, 3 Bro. C. C. 487 ; Hall v. Noyes, quentiai ib. 483 ; Donegal, Marq. of, v. Stewart, 3 Ves. 446 ; *''°™" ^' Phslips V. Ganey, 4 Ves. 107 ; Newman v. Godfrey, 2 Bro. C. C. 332 ; and see p. 47 for the old technical distinc- tion taken between plea and answer, which really involves the principle that a mere denial is insufficient. But in Swinborne v. Nelson, 16 Beav. 416, the Master of the Swinbome Rolls, dissenting from Adams v. Fisher, suprd citum, sup- ^sents posed Lord Cottenham had conferred the privilege upon J^^j y such documents alone as could not assist the plaintiff in ^'sAer. proving his case; cf Gi^eat Luxembourg Railway Go. v. Magnay, 23 Beav. 646 ; Reade v. Woodrooffe, 24 Beav. 421. A series of cases further decided that where the title Contin- gent non- was denied the defendant could not refuse production even relevance of title deeds in his possession and control on the mere plaintiff's statement in the answer of a contingent non-relevance to '=^^- the plaintiff's case : Att.-Gen. v. Thompson, 8 Ha. 106 ; Gresley v. Mousley, 2 K. & J. 288 ; Ferrier v. Atwool, 14 W. R. 597 ; Bugden v. South, 26 L. J. Ch. 425 ; Bates V. Ghrist's College, Cambridge, ib. 449 ; Quin v. Ratcliff, 9 W. R. 65. And so with regard to interrogatories. As well in where a plaintiff, seeking to set aside a lease and to ty^j^te^o- obtain the mesne profits, and the defendant, its assignee, ptoses aa insisted on its validity, and that he was a purchaser for discovery, value without notice, it was held that the defendant was boimd to answer as to the amount of rents and profits, the particulars of his under-letting, his receipts, and what charges he had created : Robson v. Flight, 33 Beav. 268 ; and the plaintiff was always entitled to the discovery of Denial of evidence needed to prove his title at law : Att.-Gen. v. Thompson, 8 Ha. 106, and the cases there quoted. And the onus lay on the party refusing production to show by his plea that the documents related to his title alone, and not to the plaintiff's : Att.-Gen. v. Corp. of London, suprd; 90 SUBJECT MATTEE. Gun V. Prior, 1 Cox, 197; Armitage v. Wadsworth, 1 Madd. 189. But now all privilege dependent on a question at issue in the cause are regulated by the Judicature Act, 1875. Order Except under the rule 19 of Order XXXI. thereof (a), a IQ '' ''' defendant cannot by a mere denial of his adversary's title, without pleading something more, claim the privilege : Combe v. The Corporation of London, 1 Y. & C Ch. 631 ; on appeal, 10 Jur. 87 ; and in the recent case of the Att- ■ Att.-Gen. Gen. V. Gaskill, 20 Ch. D. 619, this rule has received a striking illustration. There, the action being brought to restrain the defendant from building across a public foot- path, interrogatories, among other things, were addressed to the existence of a right of way, though such existence was denied by the statement of defence : it was held by the Court of Appeal, reversing the decision of Bacon, V.-C, that one of the objects of interrogatories is to obtain ad- missions from the other party, and so to relieve himself from the necessity of adducing evidence, and that these interrogatories must be answered. Jessel, M.R., in the course of his judgment there, remarked : — "The objection taken to the interrogatories as to the Admis- right of way is this : it is said that they seek an admission sions of a matter at or denial on oath by the defendant on matters in issue issue. between him and the plaintiffs as to which the onus of proof is on the plaintiffs. That is no reason at all. It is because there is the obligation of proof on the plaintiffs that they ask the question. . . . EecoUect what that olDligation involves in a case like the present. It involves the calling of a great number of old people to prove the use of this footpath as a public footpath for many years patst: it causes great expense and trouble." Such admissions are, however, not allowed to be extracted (a) See sv^rA, pp. 51—54. SUBJECT MATTER. 91 hy interrogatories in actions for the recovery of land as against the defendant in occupation : Lyell v. Kennedy, W. N. 1882, p. 20; 20 Ch. D. 484. The phraseology whereby privilege can be secured is the What is same in answers to interrogatories as in the affidavit of to confer documents : Swinborne v. Nelson, 16 Beav. 416 ; the mere we^"^the use of the word " title" will in neither confer it if the affidavit, obvious nature of the discovery sought conflict, in the "title." discretion of the Court, with the conclusion to be drawn therefrom : Harris v. Harris, 4 Ha. 179 ; Att.-Gen. on behalf of Her Majesty v. Emerson & Sutton, W. N. 1882, p. 155. In the affidavit supporting this privilege, as in those supporting every other, sufficient facts must be set out to enable the Court to see that it is rightly claimed : Gardner V. Irvin, 4 Ex. D. 49 ; 48 L. J. Ex. 223. It was held in Bolton v. The Corporation of Liverpool, The oath 1 M. & K. 88, that a bare denial that the documents related ness to'ttie to the title of the party seeking the discovery was suffi- P^'^'y'.^ cient to confer the privilege ; but, as we have seen, this is so must be no longer: Combe v. The Corporation of London, suprob meuted by ™V„,»v, tlie oath C^^W™- that the In Minet v. Morgan, 8 Ch. 361 ; 42 L. J. Ch. 627 ; 28 f^^"^^''^ L. T. (N. S.) 573, which is now the leading case on the does not subject, the claim was by a commoner, on behalf of himself prove'the and others, to establish their rights of common against the "PP"'^ lord of the manor. The defendant's application was even- Minet v. tually followed by an affidavit in the form set out in the '^^'"'■ Appendix (p. 209). The present Lord Chancellor thus adverted to Bolton v. The Corporation of Liverpool, supra citum: " However, I should be very sorry to be understood to mean that it would be safe for any one to content himself with saying what was said there. . . . There can be no doubt that according to the present practice of the court a party is expected to go further, and at least to say 92 SUBJECT MATTER. When the affidavit must con' tain a Btatement that the discovery required does not impugn the title of the person from whom it is required. Defen- dant. Plaintiff, where no indepen- dent con- flicting title is raised : cf. p. 87. Boyd V. Petrie. negatively that the documents do not prove, or tend to prove, the title of his adversary.'' The affidavit in Minet v. Morgan, supra dtum, con- tained a clause that the documents whose production was sought did not contain any matter impugning the plaintiff's case; the need for such a clause will depend on the question of when either party is entitled to a discovery of matters which do not affirmatively strengthen his title, but only negatively by impeaching his- opponent's. A defendant need never disclose a possible flaw in his title, for it is the plaintiff's case affirmatively to support his own : Hunt v. Hewitt, 7 Ex. 236 ; Baw v. Eley (patent suit), 2 H. & M. 725 ; and see Selwyn, L. J., in Hoffmann v. Postal, L. R. 4 Ch. at p. 679 ; but secus Combe v. The Corp. of London, 1 Y. & C. Ch., p. 651, and Stroud v. Deacon; Goodman v. Holroyd, 15 C. B. (N. S.) 839 (fraud). These cases must of course be distinguished from those where the plaintiff seeks an admission from the defendant affirmative of his own title: see Att.-Gen. v. Oaslcill, suprd citu'tn, 20 Ch. D. 519 ; cf. pp. 51 n, 90. Where, however, the defendant seekg such discovery from the plaintiff, the rule is different, and though the authorities occasionally conflict, there would seem to be little doubt that, his case being pwrely to destroy his opponent's, he may do so even by the discovery of matters invalidating the plaintiffs title : Metcalfe v. Harvey, 1 Ves. sen. 348 (interpleader) ; Lowndes v. Davies, 6 Sim. 468 (Bill for recovery of an estate by a writ of right) ; Princess of Wales V. Earl of Liverpool, 1 Swa. 114 (where a plaintiff suing on a promissory note was compelled by Lord Eldon to give discovery thereof at equity to the defendant ; but for this case see post, p. 98); and see the cases quoted under " Ejectment," post, pp. 94 — 96. In Boyd v. Petrie, 17 W. R. 903, which was a foreclosure suit brought by trans- ferors of the mortgage, the transfer being denied, the defen- SUBJECT MATTER. 03 dants were allowed inspection of the documents of transfer by the Court of Appeal. Selwyn,L.J.,there said : "The ques- tion depends, not so much upon the title of the person called upon to produce the documents, as upon the nature of the case, and the essence of a defendant's case is, that the plaintiff's have no title ;" and Giffard, L.J., remarked that " In a case of this kind the defendant is entitled to see all the documents which tend to disprove the title of the plaintiffs, and is entitled to have the oath of the plaintiffs on this point." And cf. Riccard v. The Incl. Commis- sioners, 4 E. & B. 329 ; Smith v. D. of Beaufort, 1 Ha. 507. In Hoffmann v. Postill, suprd citum, L. E. 4 Ch. 673, Soffman v. it is expressly laid down that the latitude of a plaintiff's privilege is less than that of defendant in this respect, and interrogatories were allowed to be addressed to disprove the novelty of a patent for whose infringement the plaintiff was suing ; thus, also, in the CoTnmissioners of Sewers v. Commis- _ . . sioners of Glasse, suprd citum, L. R. 15 Eq. 302, where, in a suit to Sewers v. establish rights of common on behalf of occupants, interro- gatories by the defendant as to whether lords of the manor only possessed this right were disallowed (d), on the ground of attempting to procure the plaintiff's evidence, it was intimated in the judgment that had the interrogatories demanded discovery merely weakening the plaintiffs case, such as whether he had not failed in some previous action, they would have been allowed. To this current of autho- rities there are, however, two contrary decisions. In Bolton v; The Corporation of Liverpool, suprd, Bolton v. 1 M. & K. 81, a bill of discovery having been brought by ration of, merchants, who were defendants in an action at law '"^^P"''- brought by a corporation for the recovery of dues. Lord Brougham said, in the course of his judgment : " The plaintiff here {i.e., the defendant in the action) does not {d) It will be observed that the circumstances of this case are just the converse of those in Att.-Gen. v. QasTcill, supi-A citum, 20 Ch. D. 519. 9-1 SUBJECT MATTER. claim anything positively or afiirmatively under the docu- ments in question. He only defends himself against the claims of the corporation, and suggests that the documents evincing their title may aid his defence. How ? By proving his title, he says. But how can those documents prove his title ? Only by disclosing some defect in that of the corpo- ration's. . . . They are the corporation's title, and not his. . . . He says, ' Prove me liable if you can.' The corporation have certain documents which they say prove his liability. He cannot call for these documents merely because they may upon inspection be found not to prove his liability." Lind V. In Lind v. The Isle of Wight Co., 8 W. E. 540, the Wight Co. defendants, a company entitled by Act of Parliament to acquire certain lands, served notice on the plaintiff calling on him to set out particulars of land which he claimed as owner; the defendants alleged a title Id the Crown to lands (among others) alleged by the plaintiff to have been misrepresented to him as having been included in such notice. The Vice-Chancellor there said : " The defendants are not entitled to pry into the flaws or defects in the plaintiff's title. The Court always refuse the production of title deeds unnecessarily." Result of It must be noticed that Bolton v. The Corporation of that a de- Liverpool was before, and disregarded by, the Court of ^rMi^*'^ Appeal in Boyd v. Petrie ; and it is submitted that, in view is wider of the authorities quoted, a defendant need not now swear than a . plaintiff's, that the discovery required does not impugn his own title, while a plaintiff must. Actions Ejectment and tithe cases have always been specially recovery dealt with as regards discovery therein (e). See the judg- of land, jjjg^^g Qf Loj.(j Abinger in Bellwood v. Wetherell, 1 Y. & C. Ex. 211 ; of Lord Campbell in Edwards v. Wakefield, 6 E. & B. 462; 2 Jur. (N. S.) 762; and of Pollock, J., in (e) They would really seem only to foUow the rule as to parties in possession (p. 87, supra), whether of the land or of the title deeds, which are treated as private pro- perty : Strode v. Jilackbum, 3 Ves. 226. Por tithe oases, of. Toiene v. Cocks, 9 L. R. Ex. 45 (Interrogatories) ; Snwpnon v. StcettmJiam, 5 Madd. 16 (Production). SUBJECT MATTER. 95 Finney v. Forwood, L. R. 1 Ex. p. 8 ; but contrcb, per Lord Blackburn, SJcetchley v. Gonolly, 11 W. R. 573. A plaintiif claiming by an equitable title might inter- At equity rogate so as to elicit any evidence in support of his own defendant, title : Harland v. Emerson, 8 Bli. 02. And a defendant might obtain discovery even of a fault in the plaintiff's title : Lowndes v. Bavles, 6 Sim. 468 ; Metcalfe v. Hervey (interpleader), 1 Ves. sen. S-iS. And where the plaintiff in equity was heir-at-law he might have obtained only such an affidavit of documents as would have removed incumbrances in the way of his legal right, and the pro- duction of documents assisting his pedigree alone : Lady Shaftesbury v. Arrowsmith, 4 Ves. 66 ; Rumbold v. Forteath, 3 K. & J. 44; Bennett v. Glossop, 3 Ha. 578. Although the rule as regards heirs-in-tail is different, a de- Plaintiff fendant who brought a bill of discovery against the claimant defendant at law was held entitled to an answer, though even in such ^^ '*^" cases only to such discovery as would enable him to make out his own case at law, and not to a discovery of the grounds of the plaintiffs claim, as, for example, of his pedi- gree : In^ilby V. Shafto, 33 Beav. 31 ; though he has been allowed to enquire by what right the plaintiff claimed : Garle v. Robinson, 3 Jur. (N. S.) 633, or if he had con- veyed the estate away : Glegg v. Legh, 4 Madd. 193. Under exceptional circumstances, however, such as where Bxcep. the defendant at law had been taken by surprise, or, having been long in possession, was completely ignorant of the case he might have to meet, it was held that he was to be per- mitted a discovery of the nature, but not oi the proof, of the plaintiff's title: Bellwood v. Wetherell, 1 Y. & C. Ex. at p. 218, and cf Stoate v. Rew, 14 C. B. (N. S.) 209 (/). The courts of law have a right apart from statute to At law. order production of deeds and writings, if it be shown that ^""^^^j, the applicant has an interest therein, but no copy thereof : right both (/) And see Pearson v. Turner, 16 C. B. (N. S.) 157, whioli la wrongly stated in the head-note to overrule Hm-ton v. Bolt, dted p. 96. It really shows under what special circumstances to be disclosed by affidavit a defendant in ejectment was allowed to inten-ogate. 96 SUBJECT MATTER. of plaintiff Bluclc V. GompeHz, 7 Ex. 67 ; Doe d. Child v. Roe, 1 E. & anddefen- ' . , , , dant to B. 281 ; Webb v, Atkins, 14 C. B. 401. And so both in which plaintiff and defendant may obtain inspection, if he have they have jjq^ ^^ original lease, of its counterpart : Doe d. Morris v. an inte- o ' r rest, but Roe, 1 M. & W. 207 ; Barry v. Scully, Ir. R 6 C. L. 449 ; they^'hlve Anon., W. N. 1876, p. 11 ; Chester v. WoHlei/, 17 C. B. 410. no copy. Under the Common Law Procedvire Act a defendant Under Common was allowed to interrogate as to pedigree: Flitcroft v. ceXre"^" Fletcher, 25 L. J. (N. S.) Ex. 94 ; as he always might have d^fend nt "^^^^ • Metcolfe V. Hervey, supra citum (interpleader), might ob- 1 Ves. Sen. 348. L.-C. Hardwicke there said : " The ques- tain dis- . i • i i ■ • e covery of tion comes to this, whether any person m possession oi an pe igree. gg^g^^g^ g^g tenant or otherwise, may not bring a bill to discover whether that title be not in some other. I am of opinion he may to enable him to make a defence in eject- ment, even considering him as a wrong-doer against every- Plaintiff body.'' But the plaintiff under that Act bringing ejectment interro- o^ a forfeiture was not allowed to interrogate in support gate as to gf ^j^g forfeiture: May v. Hawkins (g), 25 L. T. 185, 186; 11 Ex. 210 ; nor, when heir-at-law, as to the title of a defen- dant in possession : Horton v. Bott, 2 H. & N. 249. And there is no instance of a plaintiff in ejectment being em- SecMsinex- powered thus to interrogate defendant ; but cf. p. 107. A cases™* plaintiff has, however, been allowed inspection of the defen- inspection. (Jant's title under very special circumstances : Att.-Gen. v. Duplessis, 2 Ves. sen. 286 ; Coster v. Baring, 2 C. L. E.. 811 [tenant-in-tail] ; though no discovery was given in cases of strict forfeiture or incapacity : Pye v. Butterfleld, 34 L. J. Q. B. 817 ; Harrison v. Southoote, 1 Atk. 539 ; Boteler v. Allington, 3 ib., 453 ; Blythe v. L'Estrange, 3 F. & F. 154. The pre- But the latest case on the subject, following Lyell v. ru e. j<[Qn'jiig^y^ pQgf^ decides that the plaintiff in an action for the recovery of land claiming by a purely legal (g) In cases of Landlord and Tenant, the lessee beins ehtopped from denying Ms lessor's title could never interrogate : Wallen v. Forresst, L. R. 7 Q. B. 239; Banidck v. Thompson, 7 T. R. 448 ; except where he is a sub-lessee holding over, cf. Hare, p. 219. SUBJECT MATTEK. 97 title is not entitled, except under special circumstances, even to an affidavit of documents from the defendant, nor to any discovery at all which may tend to disclose the de- fendant's title: JDaniell v. Ford, W. N. 1882, p. 165 (h). In Lyell v. Kennedy, 20 Ch. D. 484, which is stUl^V^^"- pending in the House of Lords, it has been eventually decided that a plaintiff claiming by a legal title in an action for the recovery of land, and for mesne profits, cannot, on grounds of public policy, administer interroga- Interroga- tories to the defendant to procure admissions of his own title, and not as regards the defendant's title ; nor obtain Produo- production, except as regards production of title deeds of cuments." documents not denied by the defendant to support his title ; and in such cases it will be enough for the de- When the fendant to swear that they solely relate to his own fg taken" title.- See per Brett, L.J, ih. 20 Ch. D. at p. 492. "I^^^^^y' do not say that in no case can a plaintiff in an action of ejectment ask for a discovery of documents, If he alleged that the defendant had possession of his title deeds or of documents which supported his title, and it was not denied (i) by the defendant that they supported the plaintiff's title, the defendant ought to be compelled to produce them. If, however, the defendant answers on oath that the documents which are mentioned are docu^ ments which solely relate to his own title, I think that in ejectment, at all events, that is a sufficient answer. We have decided that it is part of the policy of the law that a plaintiff in ejectment cannot administer interrogatories to the defendant, and unless we were to watch somewhat strictly applications by a plaintiff in ejectment for the (h) But affidavits were allowed in JVew British, •! & derenoe. upon which the defen&jnt relies to establish his case" and not upon the ground that the plaintiffs were adminis- trators, although he added that it may sometimes happen that an executor or administrator " may properly inter- rogate as to circumstances which lay within the knowledge of the deceased person whom he represents." 108 SUBJECT MATTER. Plaintiff The plaintiff must not seek discovery to see wliether must not 1 J X • fish out and by what means a defence can be made out agamst ZTh^"^ him: Shadwell v. Shadwell, 6 C. B. (N. S.) 679. In that the de- g^gg yfY^ic']^ ^as an action brought against executors, the fence is to . . be made. Court refused to grant the plaintiff a rule to inspect a supposed letter upon which the plea was founded, on an affidavit merely stating that the plaintiff had written some letter to the testator relative to the matter at issue, the words of "which he could not remember, and also his belief that the defendants intended to rely on that letter as the agreement alleged in the plea, but denying that any such agreement -was ever made. Neither Nor may either party ask the other how he intends to diHrtfis™" shape his case: Pearson v. Turner, 16 C, B. (N. S.) 157; out^the Edwards v. Waleejield, supra citum, 6 E. & B. 463 ; 2 Jur. opponent's (N. S.) 762, which was a case of interrogatories, in an action of trover by assignees of a bankrupt, to discover what case they intended to set up at the trial and on what acts of bankruptcy they intended to rely. Lord Campbell there distinguished that case from Flitcroft V. Fletcher, 11 Ex. 543, supra citum, as lacking the grounds for disclosing a pedigree peculiar to an action of ejectment. See also Moor v. Roberts, 2 C. B: (N-. S.) 671 ; 3 Jur. (N. S.) 12^1 ; 26 L. J. C. P. 246 ; Zarifi v. Thornton, 26 L. J. Exch. 214; and cf. pp. 94—97,' and Sneider v. Mangino, 7 Ex. 229 ; Ingilhy v. Shccfto, 33 Beav. 31, and cf p. 51. Interroga- Interrogatories by either party as to what the other's toriesasto . « ,i • i ■, ^^ , . adver- version 01 the case is nave been aliowed m some cases ^^^^y . and disallowed in others. In Peppiatt v. Sviith, 3 H. & version of t ± ) the case. C. 129, an action for negligence (the plaintiff having been &Sr** ^' injured by falling through the trap of the defendant's cellar), the defendant applied for an order to administer a number of interrogatories as to the truth of the plaintiff's allegations with regard to the accident and the damages, among which was one asking hoiu the accident happened, SUBJECT MATTKR, 109 others as to who the doctor was, what he prescribed, and what injuries were sustained. The Court (Martin, Bram- well and Pigott, B.B.) unanimously hehl that the interro- gatories should not be allowed, on the grounds that they might elicit the phxintiff's version of the transaction. The defendant pleaded " not guilty," under which contributory negligence might be proved ; and the decision would seem somewhat in conflict with that given two years before by the same Court, in Bayley v. Griffiths, 1 H. & C. 429 Bayley v. 1 ■ 1 1 " 1 mi Griffiths. which, however, was not there quoted. That was an argument ou a rule nisi for attachment for not answering interrogatories, in an action on a promissory note, adminis- tered by the plaintiff to show that a deed of composition pleaded by the defendant was fraudulent. Bramwell, B., in the course of the argument, said: " I doubt whether you may not search a man's conscience as to his own case ; " and Pollock, C.B., said : " The plaintiff has a right to know what facts the defendant intends to prove, in order to meet them. In Bell wood v. Wetherell, 1 Y. & C. 211, 216, Beilwood v. Lord Abinger said of this case : ' Now the obvious line citing ' to be drawn is this, that though in general the defendant q&j ^' has no right to the discovery of the plaintiff's title, yet in certain cases he will be entitled to a discovery of the nature, though not of the evidence, of their title.' This case appears to me to fall within that rule : when a defendant pleads a release the plaintiff has a right to inspect it (a). So here a defendant pleads a set-off, the plaintiff has a right to know of what items it consists, and their dates." It will be remarked, however, that there is Bayley v. prima facie fraud to elicit, and that the interrogatories distin-'* are addressed as much to the plaintiff's case as to the de- g"ished '■ from Fep- fendant's, and that it is therefore no ground for disallowing piatt v. them that the answers thereto may disprove the plaintiff's case ; whereas none exists in Peppiatt v. Smith, and the (a) For this right, hoth in the old equity practice and nnder Order XXXI., r. 14, of the .Judicature Act, see suprd. no SUBJECT MATTER. interrogatories were addressed, not so much to disprove the negligence, which was the plaintiff's case, as to discover his version of the story. In the former case the interroga- tories are as to facts, in the latter rather as to the com- plexion to be put on facts pleaded. But the most recent case seems to allow interrogatories as to the adversary's Att.-Gm. version of his case : Att.-Gen. v. Gashill, 30 W. R. 5-59 ; V. GaslcUi. 2Q ^j^^ D. 519, where the defendant, being intei'rogated as to conversations on which the plaintiff relied, Jessell, M.R., said : " The plainti6Fs have a right to get the defendant's version :" and a refusal to do so until the solicitors had been examined and cross-examined was held bad. The cases on this point are thus conflicting and without principle, as may be expected when the border line between ^ an opponent's facts and his evidence is dim and impalpable. Discovery The plaintiff has, however, a right to obtain discovery case^anti^ fo^' the purpose of repelliug a case which he anticipates the cipated. defendant will make against him : see per Erie, C.J., in Woolley V. Pole, supra, 14 C. B. (N. S.) p. 554, "You are entitled to a discovery of anything which goes to prove your case, and probably also to meet any case to be made by your adversary;" and so a fortiori (see p. 94) may the defendant: CrarZev.i^o&msoTO.S Jur.(N.S.) 633 [ejectment]; Goodman v. Holroyd, 15 C. B. (N. S.) 839 [fraud] ; though not where the discovery is not needed to win the action : Davis V. Gray, 30 L. T. 418 [libel] ; and cf. Att.-Gen. v. Interroga- The Corporation of London, 2 Mac. & G. 247. And the echoing plaintiff may still, for the purpose of obtaining mateiial of'^cM™ admissions of the statements in his statement of claim, turn it into interrogatories : Hall v. L. & N. W. Railway ■ Co., 35 L. T. (N. S.) 848, suprd, citum; cf. The Radnor- shire, 5 P. D. 172 ; though in general such interrogatories Edwards V. will be disallowed : Att.-Gen. v. Gashill, 20 Ch. D. 529. In illustrates Edwards v. Wa]cefield, 6 E. & B. 462, being an action of trover riile™hat ^^ assignees of an illegal bankruptcy, the defendant having SUBJECT MATTER. HI obtained a rule to administer interrogatories to the plaintiff "'^^'^ '"?'' ° ^ _ not evi- to discover what case they intended to set up at the trial, dence may and on what acts of bankruptcy they intended to rely, they covered, were held inadmissible, as fishing and asking for a disclo- sure of the evidence in support of the plaintiff's case. Lord Campbell drew, in the course of the argument, a broad distinction between interrogatories addressed to dis- cover the case in the sense of the opponent's evidence, and those addressed to discover the case intended to be set up at the trial ; and in his judgment he emphasised the fact that Flitcroft v. Fletcher, supra citinn, 11 Ex. 543, turned on the nature of real actions, where it was said the pedigree must be specially stated. Cf Hoffman v. Postill,' supra citum, L. R. 4 Ch. 673 ; Lowndes v. Davies, suprcb citum, 6 Sim. 468; Commissioners of Seiners v. Glasse, supra citum, L. R 15 Eq. 302 (b), where Sir S. Romilly said : "The party interrogating, whether plaintiff or defendant, was always entitled to discovery of everything which made out his own case, or which showed he was in the right, but not to discovery which supported his opponent's case or showed he was in the right. . . . The interrogatories simply required the plaintiffs to disclose evidence in support of their case." A party is disentitled to discovery seeking to discover Inspection how the other intends to shap>e his case, and this applies ments equally to the defendant as to the plaintiff: Buchanan v. show how Taylor, W. N. 1876, p. 73. That was an action for libel, f-^ ^^^^j'^' and interrogatories, which were practically attempts to shape his supplement a plea of justification, were on this ground dis- allowed. The same rule applies to inspection: Metropoli- tan Saloon Omnibus Co. v. Hawkins, 4 H. & N. 146 ; see (J) The last three are ca.ses proving that a defendant, whose whole ca.se i.s the destruction of the plaintiff's, may obtain discovery of a flaw therein when the plaintiif cannot in his — a distinction which must be throughout borne in mind, see suprct, p. 92. 112 SUBJECT MATTER. also Careiu v. Davies, supra, 5 E. & B. 712, and Scott v. Walker, 2 E. & B., at p. 503. The rules The more recent cases fully bear out the broad rule exempli- fied by the variously but uniformly illustrated by all, that each party modern ^^ entitled to the discovery of the other's case, no as to cases. ascertain what they are respectively to meet, but not to the evidence whereby that case is to be established, or how it will be set up at the trial. EmU V. Jn Jjjade v. Jacobs, 3 Ex. D. 335, the plaintiffs sued as ad- t/ it COOS I ministrators to recover possession for breach of a covenant contained in the lease. The defendant alleged a verbal consent thereto by the intestator. It was held that the plain- tiffs were entitled to interrogate the defendant as to when Conversa- the consent was given, and as to the conversation (c) which took place, but not as to the person in whose presence the consent was given. Cotton, L. J., there said : " Looking at the practice formerly existing in the Court of Chancery, I think the plaintiff is entitled to a discovery of the facts upon which the defendant relies to establish his case, but not of the evidence which it is proposed to adduce." And in Att.- Gen. V. Gaskill, 20 Ch. D., he thiis explains his judgment at p. 560 : " What I held there was that the interrogatories should be limited to ascertain from the defendant the sub- stance only of the conversations on which he relied, and that as a rule the party interrogated should not be bound to set Witnesses' forth the witnesses' names, or details of the evidence which he intended to prove." But as regards cases when witnesses' names must be divulged, see Howe v. M'KerTian, suprd,, p. 105; and Potter v. District Ry. Co., 28 L. T. (N. S.) 221. Saunders In Saunders v. Jones, 7 Ch. D. 435, the action was for V. ones. ^j-Qj^gfyi dismissal, and the questions at issue, the con- struction of an agreement and a justification of the dis- missal by the defendant on the ground of the plaintiff's (c) Of. Hodsoll v. Taylor, L. R. 9 Q. B. 79 ; such conversations, to be acted on, must be corroborated: Rogers v. Powell, 18 W. R. 282: 32 L. J. Ch. 548. SUBJECT MATTER. llJj improper conduct Interrogatories were addressed by the plaintiff to discover what the specific acts of misconduct generally pleaded by the defendant were, and one of them to what the total amount of the gross proceeds of sale during the period for which the plaintiff claimed remune- ration were. The defendant refused to answer the first four on the ground that they related to the case of the defendant and not of the plaintiff; and the fifth, that as the right to such account was disputed, the defendant was not bound to give it at that stage of the action. It was held that this was not "prying into the adversary's brief;'' that as particulars of the acts of misconduct were obtainable at law, the first four interrogatories must be answered, and the fifth also, since it only demanded a basis on which to assess the commission. In Johns v. James, supra citum, 13 Ch. D. 370, where Johns v. the action was brought by a creditor of a late partner of one of the defendants, claiming under a deed, by which he alleged the deceased had conveyed his property for the payment of his debts, and claimed to have seen an account showing that the defendants had not properly discharged the deceased's debts, interrogatories were allowed to be put by the defendants as to how the firm became collec- tively liable to the plaintiff, when communication of the fact of the execution of the deed was made, on the ground that the defendants were entitled to know the case they had to meet, and an interrogatory as to what the accounts were the plaintiff alleged he had seen, on the ground that the charge thereby made should he distinct to enable the defendant to repel it ; but interrogatories as to the persons in whose presence the conversations passed and as to the truth of the plaintiff's statements were disallowed ; cf p. 44. But in Luon v. Tweddell, 13 Ch. Div. 375, which was an ^on''- " • 1 • i. Tweddeu. action to dissolve a partnership for misconduct, mterroga- tories as to the occasions thereof being allowed, one asking I 114 SUBJECT MATTER. an account for the purpose of adjusting the method of repayment of premiums, should misconduct be proved, was, contrary to the decision in Saunders v. Jones, Benlow v. suprob citum, disallowed ; and in Benhow v. Low, 16 Ch. Lcnv. D. 93; 28 W. R. 891; 50 L. J. Ch. 35; 29 W. R. 265, which was an action by persons selling soap with a mark similar to that of the defendants, asking to "be quieted in their rights, counterclaimed against by the defendants for an injunction to restrain, an interrogatory for an account of the sales was disallowed on the like grounds. For interrogatories disallowed as prying into private matters and as inquisitorial, see suprdi, pp. 35, 86. (6.) There are, finally, several miscellaneous grounds for refusing discovery. A. Public policy. Public Documents are privileged from production if their pro- duction would be detrimental to the public service, and if they relate to transaction of public affairs: Beatson v. Skene, 5 H. & N. 838 ; Wadeer v. East India Go., 8 De G. M. & G. 182 ; but semhle that documents will not be protected by their mere association with such documents : Fitzgihhon v. Greer, Ir. R. 9 C. L. 294, where, however, privilege for a document which the Lord ChanceDor might have declined to produce was in a libel case allowed: Smith v. East India Co., 1 Phil. 50 ; Moodalay v. Morton, 1 Bro. C. C. 469 ; Rajah of Coorg v. East India Co., 25 L. J. Ch. 345 ; Blake v. Pilfold, 1 M. & R. 198. But the objection must be taken by the head of the Public Depart- ment of State : Beatson v. Skene, supra citum, 5 H. & N, 838.; Kain v. Farrer, 37 L. T.(N. S.), p. 469 ; Swann v. Vines, ib. cit. ; and a motion for the inspection of documents has been refused on an affidavit of the Secretary of the Admiralty stating that it would prejudice the public interests : The Bellerophon, 44 L. J. Ad. 5 ; nor does SUBJECT MATTER, 115 the privilege extend to the discovery afforded by an affidavit of documents : Kain v. Farrer, suprd. In Zyell v. Kennedy, 20 Ch. D. 488, suprcb, Jessel, M.R, gives public policy as a reason why interrogatories as to title are not allowed in ejectment actions. By Consolidated Order XV., r. 4, a defendant might B. decline answering any interrogatory, or part of one, from dated"' answering which he might have protected himself by xy'^ 4 demurrer. Demurrer under the old equity practice might have been either to the whole bill (instead of answer or plea) or to a particular interrogatory, in which case there could be no partial answer : Gray v. Bateman, 21 W. R 137 ; and see Wig. 195, et seq. It is to this latter demurrer that the rule applies : see its mean- Leigh v. Birch, 32 Beav. 399 ; Mason v. Wakeman, 2 Ph. '"8- 516 ; Bates v. Christ Coll. Gam., 3 Jur. (N. S.) 348 ; and not to the general demurrer or one to a portion of the relief : Marsh v. Keith, 1 Dr. & Sm. 342. And now by Order XXXL, r. 5, the objection may be taken to any interro- gatory on the ground stated in the affidavit in answer thereto, and the answer must be full. See post, p. 1 22, et seq. The old equity practice was that, assuming the de- 0. fendant to have in his possession or power documents of tories™sto which the plaintiff had a right to require production, and ^"*'®" that the answer contained a sufficient admission of that ments. fact, the plaintiff had a right to require the defendant to -p. ,T" ^' set out the contents of such documents ; but the expense discovery of this mode of proceeding led to the cheaper one of ments .and eliciting by interrogatories answers, which corresponded to production the present affidavit of documents, and of a summons for identical. their actual production. The right to discovery and to pro- duction was therefore, in chancery, identical. See Daniell, vol. ii., p. 1674; Wigram, p. 199, et seq. The rule of common law was different. It has been At com- frequently held that, except where it is proved that the ™''" '"^' I 2 116 SUBJECT MATTER. document does not exist, secondary evidence of it even in cross-examination is inadmissible : Queen's Case, 2 B. & B. 289 ; Darby v. Ousely, 1 H. & N. 1 ; Macdownell v. Evans, 11 0. B. 930 ; Henmam, v. Lester, 12 C. B. (K S.) 776 : though a parol admission made by a party out of court is proof even against documentary evidence : Slatterie v. Pooley, 6 M. & W. 664 ; and though, from the plaintiff or a witness who heard him 'admit that a document was written by him, its contents may be elicited : Farrow v. Blomfield, 1 F. & F. 653. Nor were interrogatories as to Under 17 the contents of a written document allowed under the & 18 Vict. c. 125, C. L. P. Act, 1854, s. 51 : Scott v. Zygomata, 4 E. & B. 483 ; ^- ^^- Herschfeld v. Olarke, 11 Ex. 712 ; Moor v. Roberts, 26 L. J. C. P. 246 ; Rew v. Hutchins, 10 C. B. (N. S.) 829. But under that Act an interrogatory as to the contents of a written document supposed to have been executed by the party interrogated was, upon a primd facie case of loss being made out by aflSdavit, allowed subject to the condition that the answers were not to be used as evidence at the trial unless such evidence of its loss were given as to make secondary evidence of its loss admissible. The Wolverhampton New Waterworks Co. v. Hawhsford, 5 C. B. (N. S.) 703 (a). Dalrynvple In the recent case of Dalrymple v. Leslie, 8 Q. B. D. 5 ; 30 W. R. 105 (an action of libel) it has been decided, not that an interrogatory as to the contents of a written document may not be put, but that where such a docu- ment is not in the possession of the person asked, but in (a) A similar interrogatory was allowed by Field, J., in chambers, after two bearings, 4th April, 1879, in the case of a lost mate's receipt. The order was made " for further and better answer, the plaintiff undertaking not to use the answer quoad the contents of written documents, unless they put themselves in the position by proof of loss, or otherwise, to use secondary evidence." We are indebted for the report of this case to Mr. Walter B. Paton, of the Inner Temple. SUBJECT MATTER. 117 the possession of some third person not compellable by him to produce, it is a sufficient answer to swear that he cannot recoUect what its statements exactly were, on the ground that " the defendant is not bound to write another ibel from memory which may or may not differ from that complained of," and that, " the Chancery practice does not go to that extent." We submit that, bearing in mind the cases as they Eesult of stand, and the equity practice now binding, such an in- terrogatory is sufficiently answered by a reference to the written document when it is discovered, or produced, or intended to be so, but that it must be fully answered, when the document is proved on affidavit not to exist, and that where the document is in the possession of a third person not compellable by the party interrogated to produce, an inability to remember its exact contents will affiard suffi- cient answer. Where reference is made to the document itself, in which case it is now liable under rule 14 of Order XXXI. to be produced before or at the hearing, on notice given by the party to the action requiring its production as a document mentioned in the pleadings, or an order to inspect it can be obtained, it would seem, subject to what is said below concerning - knowledge, information, and belief (see post, p. 27, et seq., " What is a sufficient answer to interrogatories"), that the contents of the docu- ment need not be set out : Hoffmann v. Postill, 4 Ch. 673 (a patent case decided before the Judicature Act) ; Att.-Gen. v. Burgesses of Retford, 2 M. «& K. 35 ; and of. Wig. p. 199, et seq. Under Order XXXI., rule 18 (h), of the Judicature Act, D- Various grounds (6) TMs is founded on section 50 of the C. L. P. Act, 1854 ; 14 & 15 of objec- Vict. c. 99, s. 6, gave larger powers by conferring the right to ■ " ^°.. inspect any documents relevant to the action or proceeding in the custody or under the control of the opposite party. 118 SUBJECT MATTER. the affidavit (c), which must accompany the application for inspection, besides showing of what documents inspec- tion is sought, must also show that the applicant is entitled to inspect them, and that they are in the possession or power of the other party. As to what interest entitles, see supra, p. 28. An affidavit, therefore, that the party has in his possession some documents material to the case can be objected to : Hewitt v. Webb, 2 Jur. (N. S.) 1189 ; and see Bra^ v. Finch, 1 H. & N. 468 ; Thompson v. Rohson, 2 H. & N. 412 : Houghton v. London and County Assu- rance Co., 17 C. B. (N. S.) 80 ; Uvans v. Louis, L. B. 1 Traud. Q_ p_ 656. An allegation that the plaintiff procured bills by fraud (d), can be objected to as a ground for inspection : With a Threlfall v. Webster, 1 Bing. 161 ; or that it is sought with view to a view to discussion of a rule for new trial : Wood v. If ore- new trial ; wood, 9 Dowl. 44 ; Pratt v. Goswell, 9 C. B. (N. S.) 706 ; To obtain or for the purpose of obtaining evidence in another action ; evidence . in another Temperley V. WiUett, 6 E. & B. 380 ; or m cases, relative to trustees, where the two common law requisites, the being parties to the action or instrument and the trustee- ship of the person from whom inspection is required, do not exist : Ratcliffe v. Bleasby, 3 Bing. 148 ; Goodliff v. Fuller, 14 M. & W. 4. The objection of irrelevancy cannot be taken unless the party has himself inspected : Gabbett v. Cavendish, 3 Sw. 267 (n) ; Manby v. Bewiche, 8 D. M. & G. 476; and it is no ground for refusal that the document will not be evidence : Bustros v. White, 1 Q. B. D. 425. Private That memoranda are private, and made in the course of memo- . „ . , . . . . randa. employment, is no sufficient objection to inspection : Wvn- Agent's Chester v. Bowker [cf p. 37], 29 Beav. 479. But books books. clearly an agents property, can be denied: -Colyer v. Com- Colyer, 30 L. J. Ch. 408 ; though a company, suing a paniea. (c) See C. F., p. 254. (d) A prifnd facie case of fraud will always entitle a party to inspection : Derby, Bank of, v. Lumsden, L. R. 5 C. P. 107 ; Goodmcm V. Holroyd, 15 C. B. (N. S.) 839 ; and cf. pp. 102, App. 200. SUBJECT MATTEK. 119 shareholder for calls, has been compelled to offer registry of shares, allotment, and agenda books for inspection : Lancashire, y '"^pcena ... 1 duces the secretary of a company, on a petition to wind up : tecum. Emma Mine, Re, 10 Ch. 194. It now only remains, as regards the subject-matter of When and discovery, to consider when the discovery afforded may be covery objected to by the person seeking it, and on what grounds, ^ectedto This divides itself into (1) What is a sufficient answer to ''y P^^y . seeking it. interrogatories. (2) What is a sufficient affidavit of docu- ments. By Order XXXI., rule 9, no exceptions shall be taken to (l.) Inter- any affidavit in answer, but the sufficiency or otherwise of j\^icatoe any such affidavit, objected to as insufficient, shall be ■^''* determined by the Court or judge on motion or summons. By rule 10 of the same order, if any person interrogated omits to answer or answers insufficiently, the party interro- gating may apply to the Court or judge (a) for an order requiring him to answer, or to answer further, as the case may be ; and an order may be made requiring him to answer, or answer further, either by affidavit or by vivd voce examination, as the judge may direct. The practice in Chancery was, by exceptions stating Old such parts of the interrogatories an were conceived not to be practice, answered and praying for a full answer (Daniell, 5th ed., 662), but the insufficiency must always have been sub- stantial, and not merely formal : Eeade v. Wood/rooffe, 24 Beav. 421. (a) The application is by summons at chambers : Gheaterjidd Col- liery Co. V. Black, 24 W. B. 783; Furber v. King, 29 W. R. 536. 122 SUBJECT MATTER. Under c. Under the C. L. P. Act, 1854, s. 53, in case of omission without just cause to answer the interrogatories sufficiently, the Court had a discretion to examine on an application in chambers viwd voce ; see Day, 4th ed., p. 310. Requisites The answer to interrogatories, as well as the discovery of for answer ^ /• ^^ ^ t • to interro- documents,must he full, and for this purpose the old practice ga ones, jg ^j^^ same as the new : Chesterfield Col. Co. v. Black, supra citum, W. N. 1876, p. 204. This was always the case at equity. In White v. Williains, 8 Ves. 192, Lord Eldon says : " It is not enough that the answer gives a ground for an account in the Master's office, and that the plaintiff is enabled to go there. I am clearly of opinion that is not enough, but they are bound to give the best account they can by their answer, referring to books, &c., sufficiently to make them part of their answer." And in Flight V. Robinson, suprd citum-, 8 Beav., at p. 33, Lord Langdale, M.R., says: "According to the general rule, which has always prevailed in this Court, every defendant is bound to discover all the facts within his knowledge, and to produce all documents in his possession, which are material to the case of the plaintiff. However disagree- able it maybe to make the disclosure, however contrary to the personal interests, however fatal to the claim upon which he may have insisted, he is required and compelled under the most solemn sanction to set forth all he knows, believes, or thinks in relation to the matters in question." And where the defendant neither pleaded nor demurred, but answered, he must have done so fully, except when he set up a complete and independent title in himself, which, if established, would destroy the plaintiff's title : Glegg v. Edmonson, suprd citum, 22 Beav. 125 ; see also Rowe v. Teed, 15 Ves. 372; Somerville v. Mackay, 16 ih. 382; Practice y_ Harrison, 4 Madd. 252. When an original as to ° amended bill had been answered, and was afterwards amended, the Chancery, defendant might not put in a demurrer, nor was he bound SUBJECT MATTER. 123 to answer (though he might plead an objection) unless by amendments a perfectly new case was made, : Atkinson V. Hanway, 1 Cox, 360 ; Mazarredo v. Maitland, 3 Mad. 66. And, if he answered at all, the answer must have been full, and not partial, ih. ; and so strictly was this rule of the Chancery Courts observed that even where the defence was one of purchase for valuable consideration without notice, yet if it were taken by answer and not, by plea, the answer must have been full : Ovey v. Leighton^ 2 S. & S. 234; Earl of Portarlington v. Soulhy, 7 Sim. 28; Lancaster v. JEvors, 1 Phill. 349 ; and see for answers now to new interrogatories on the same matter, post, p. 11 : Adams v. Fisher, supra, citum, 3 My. & C. 526. In that -idams v. case an executor sued the defendant as solicitor to the estate, and prayed an account : The defendant by his answer denied that he was such solicitor, and Lord Cottenham refused to allow production of documents admitted to be in his possession relative to the estate; laying down as a broad principle that the right of the plaintiff to see the documents, though they were in the defendant's possession, and material and not otherwise pro- tected, must depend upon the plaintiiFs having established his right to relief in the suit or the circumstance that that right was not disputed by the defendant (6) ; but cf Reade V. Woodrooj^e, supra citum, 24 Beav. 421; G. Luxembourg Railway Go. v. Magnay, suprcb citum, 23 Beav. 646 : Hawkins V. Cctrr, supra, citum, L. R. 1 Q. B. 89 ; Rohson v. Flight, supra citum, 33 Beav. 268 ; Lancaster v. Evors, supra citum, 1 Phill. 349, which was distinguished from Adams V. Fisher, on the ground of the latter relating only to pro- duction; but finally, Swinborne v. Ndson, 16 Beav. 416, Swinhmme established that in all cases, but those of title-deeds and ^' ^ *""■ confidential communications for the purpose of litigation, a full answer is required ; and Adams v. Fisher was there (b) See for the further bearings of this case, suprd, p. 88. 124 SUBJECT MATTEB. Etmei- V. Creasy. Admis- Bions. Executor. dissented from by Sir J. Eomilly, M.R, and De la Rue v. Dickinson, 3 K. & J. 388, is to the same effect, though the exceptions were then allowed to go over tiU the hearing. In Elmer v. Greasy (b), 9 Ch. 69, where it was held that the defendant in a redemption suit, who admits that the plaintiff is entitled to a decree, cannot refuse to set out in his answer his accounts as mortgagee, Selborne, L.C., states thecesult of the cases (referring to Wig. ss. 159-185, and Hare, pt. 4, ch. 1, and quoting the exceptional cases of Jacobs \. Goodman, 3 Bro. C. C. 487, and Donegal v. Stewart, 3 Ves. 446) thus: " The true rule as finally settled by Lord Eldon and his successors was, that a defendant submitting to answer, even when he altogether denied the plaintiff's title, was obliged .to answer fully not only as to other matters but also as to consequential." This was, of course, subject to the rule against oppressive and vexatious discovery and must now be taken as qualified by rule 19 of Order XXXI, see suprcb, pp. 51 — 54, and the cases there quoted. The same principle was applied in a suit to establish the plaintiff's right to a business as part of the deceased's estate, to interrogatories as to the defendant's accounts : Saull v. Browne, 9 Ch. 365,; see also Shaw v. Ghing, 11 Ves. 304 ; ITnsworth v. Woodcock, 3 Madd. 432 ; Bleckley v. Rymer, 4 Drew. 248. Where the plaintiff's right, however, to a particular account was denied, but the defendants made admissions sufficient for all purposes up to and including the decree, the defendant did not need to give any further details respecting the account : Lockett v. Lockett, supra citum, 4 Ch. 336 ; De La Rue v. Dickvnson, suprd citum, 8 K. & J. 388 ; except an executor, though even he need not then set out the accounts in detail : Thompson v. Dv/nn, 5 Ch. 573 ; (b) This differed from Brookes v. Boucher, 8 Jur. (N. S.) 639 ; Donovan v. Fricker, Jac. 165 ; QuoA'rell v. Beekford, 1 Madd. 269. SUBJECT MATTER. 125 18 W. K 854 ; Gull v. Inglis, 37 L. J. Ch. 385 ; 16 W. R. 477. And as to the old rule concerning answer with regard to consequential relief, see Kettleivell v. Barstow, 7 Ch. 686, su-prcb dtwm. But a defendant, in a suit for waste, was bound to give Defendant particulars of the trees cut down, though he claimed the waste. right to cut them down : Newry v. Lord Kilmorey, supra Know- -rr . ledge of citum, 19 W. E. 271 ; and see Att.-Gen. v. Gaskill, supra interroga- citum, 30 W. R. 558 ; 20 Ch. D. 519, where it waS held that J^terroga-^ a defendant cannot refuse to answer interrogatories on the ^'{ "P°" ° not pnvi- ground that the plaintiff already knows the facts to which lege for ^i T , n the person they are directed. interro- Where documents exist and can be inspected, or state- ^f',® " ■^ _ where ments have been made in the pleadings and questions are documents asked respecting them, it is a sufficient answer to refer statements thereto. In Hoffmann v. Postill, suprd, citum, 4 Ch. 673 ; f™ J^*^® 17 W. R. 901 ; 20 L. T. 893, the plaintiff in a patent suit ings on was required by interrogatories to set out a correspondence interro- between himself and a third party, a.T\f l also to state parti- fre""^^ culars of the infringement of the patent on which he relied, framed. He refused to answer these questions, on the ground that the defendant might obtain an order in chambers to inspect the correspondence, and that he had sufficiently set out the particulars in his brief It was held that these answers were sufficient. But such a reference to be a suf- ficient answer must not be evasive (a) or impertinent, e.g., one referring to previous affidavits and depositions to save expense : Turner v. Jack, 19 W. R. 433 (a subsequent case, in which, however, the previous one was not quoted). The answer need not be full if the question is immate- rial : Simpson v. Chapman, 1 5 Jur. 714 ; Wood v. Hutchins, (a) As to what is evasive, see Marsh v. Hunter, 3 Madd. 437 ; Lynch y. Leceme, 1 Ha. 626 ; White v. Howard, 2 De G. & Sm. 223 ; Read v. BaHon, 5 W. R. 240 ; 3 K. & J. 166 ; Financial Corporation V. Bristol & N. Somerset Railway Co., L. R. 3 Eq. 422. 126 SUBJECT MATTER. Answer must be distinct. Must be specific. New facts must be stated where involved by objec- tion. Smith V. Irrelevant answers. 3 Beav. 504; nor if partially unreasonable: Parker v. Wells, 18 Ch. D. 485. The answer to be sufficient must also be distinct, and such that, if an assignment of perjury were based thereon, the jury would have no great difficulty in ascertaining what had or had not been sworn to : Walker V. Daniell, 22 W. R. 595 Ch. The answer must also be distinct enough for an objection to be specific ; but where portion of a question is vexatious, a party need not answer that portion, and is not bound to give a reason for not answering ; nor is it a suffi- cient answer to say that the same interrogatories have been previously answered by the party interrogated in another suit: Smith v. Berg, supra, W. N. 1877, p. 16; Hudson V. Grenfell, 3 Giff. 388 ; 5 L. T. (N. S.) 417: Where the objection to an answer is one involving new facts they must be stated, but where one of law they need not, ib. In Smith v. Berg, 36 L. T. (N. S.) 471, 25 W. R. 606, the action being against the defendants, sued as husband and wife, and an interrogatory asking if they were married having been ordered to be struck out, several interroga- tories were administered with a view to discovering whether the alleged wife had a separate estate, or, if not, what property she had; and it was held by Lindley, J., and Coleridge, C.J. (Grove, J., dissenting), that answers deny- ing in substance that she possessed separate estate, and giving no reason for leaving the remainder unanswered, were sufficient, on the ground that the unanswered part of. the interrogatories was clearly fishing and irrelevant, and that the only objection was one of law and not of fact. Answers are insufficient which, though answering the interrogatory, contain irrelevant or impertinent matter besides : Peyton v. Harting, L. R. 9 C. P. 9 ; Peyton v. Botting, W. N., 1873,' p. 204. But if a defendant's answer contains part of the defence, this has been held to be no ground for splitting the answer : Anon. W. N. 1876, p. 39. SUBJECT MATTER. 127 Where the objectioii taken is that the answer tends to Objection that the incriminate, semble the mere statement of such a helief is answers not enough, hut the Court must see that the circumstances incrimi- of the case and the nature of the evidence are such as "**"• warrant the assertion : Reynolds, In re, W. N. 1882, p. 42 (the case of a witness, in which position the person taking the objection is : Osborn v. TJie London Dock Co., 24 L. J. Ex. 140 ; 10 Ex. 698 ; and the cases suprd, p. 56) ; and compare Fishery. Ronalds, 12 C. B. 762 ; 17 Jur. 393; 29 L. J. C. P. 62 ; Aston's Case, 4 De G. & J. 320 ; .5 Jur. (N. S.) 779 ; 28 L. J. Ch. 631 ; Boyle v. Wiseman, 10 Ex. 647. ; 1 Jur. (N. S.) 115. And it is not enough to swear that the answer would or might incriminate or subject to penalties ; the belief of the deposer that such answer will must be distinctly stated : Scott v. Miller, Johns. 328 ; 5 Jur. (N. S.) 858 ; 28 L. J. Ch. 584 ; though it has re- cently been decided that in a libel case the words " might tend to incriminate " are sufficient : Lamb v. Munster, 10 Q. B. D. 110; see supra, p. 57. The answer, to be sufficient, must also be to the To the best of the answerer's recollection and belief: Per Jessel, answerer's M.R, in Att.-Gen. v. Gaskill, 30 W. R. 538, and of his ^f=°i|^^"j knowledge and information ; The Minnehaha, L. R. 3 A. & beHef, and E. 148, supra, Daniell, 5th ed., p. 627 ; Hall v. L. Setting out bundles thereof for identification, has full. been punisjied by a disallowance of costs: Wallcer v. Poole, 21 Ch. D. 835. (a) In this case the interrogatories as to the contents of an alleged libelloxis letter were disallowed. 141 CHAPTER IV. PRACTICE. The rules under the first schedule of the Judicature Act, 38 & 39 Vict. c. 77 1875, apply to aU the divisions of the Supreme Court of s. i6. Judicature, except to the Court for Divorce and Matri- ^^''^ monial Causes. And section 18 of that Act provides that 1. 1. aU rules and orders of court in force at the time of the ^' ^^' commencement of the Act in the Court of Divorce and Matrimonial Causes, as well as in those of Probate and Admiralty, or in relation to appeals from the chief judge in bankruptcy matters are to remain in force, except so far as expressly varied by the rules thereunder. Interrogatories, therefore (except those on commission) Divorce are still unrecognised by the Divorce Court, and the admission, production, and inspection of documents therein remain regulated by analogy to the rules of the C. L. P. Act, 1854 (a), but the Judicature Act of 1873 still governs the practice as regards costs (&). The Probate Court (not being, like the Divorce Court, Probate expressly excepted by the rules) is controlled as regards °'^^' (a) See supra, ' History,' p. 5 ; and Shaw v. Shaw, 31 L. J. P. M. & A. 95. And as regards admissions, see the Mat. C. Act, 1857, section 48 (20 & 21 Vict. c. 85) ; and as regards interrogatories on commission, see 20 & 21 Vict. c. 85, section 47 ; and as regards what must be shown on an application for such interrogatories, see Crofton v. Crofton, W. N. 82, p. 88 ; Raymond v. Tapson, ibid. p. 144. (6) Smith V. Smith, W. N. 82, p. 91, mprd citwm, at p. 14, ' History.' 142 PRACTICE. interrogatories by Order XXXI., r. 1 ; and the practice as regards production, inspection, and discovery of documents therein is still regulated by section 26 of the Court of Probate Act, 1857 (20 & 21 Vict. c. 77) : and the power to issue interrogatories on commission was by section 32 of that Act extended to this Court. Admiralty And the Admiralty Court still retains its powers of ordering inspection, and all such other powers under the ' Admiralty Court Act, 1861 (24 & 25 Vict. c. 10) as are not varied by the rules of the Judicature Act (z). Who has In Baker v. OaJees, 2 Q. B. D. 173, it was laid down jurisdic- tion to generally by Brett, L.J. (at p. 175), that, where the expres- oovery? " ^i°^ "Court or Judge" is used in the rules, a judge has Judge. jurisdiction ; whereas, where " Court " stands alone, he has not. Master. Masters of the Queen's Bench Division have now (by rule 2a of Order LIV. (a)) jurisdiction to order discovery of every kind, except inspection under Order LIL, r. 3, when they have it only where there is consent to the Registrar discovery under Order LIV., r. 2. The Registrar of the A. Divi- Probate, Divorce, and Admiralty Division has, under Order LIV., r. 2, jurisdiction only to order discovery where the party concerned consents thereto. Official An official referee has been held to have no power to refers 6 make an order for the production of documents : seeBauvil- liers V. Myers, 17 Ch. D. 346, inasmuch as under Order XXXVI., r. 32, the only jurisdiction he has is to make such an order as a judge of- the High Court can make at the trial, which does not, under Order XXXL, r. 11, include one for production, while under r. 18 such application must be to a judge; and cf. Roiucliffe v. Leigh, 4 Ch. D. 661. tories™^*' ^ P^^*'^ requires leave to deliver interrogatories in the following cases alone : (z) See supra, ' History,' p. 12. (a) See rules of Supreme Court, November, 1878. PRACTICK 143 (1) Where they are delivered later than the close of the When •' leave for pleadings : cf. p. 21 ; delivery (2) Where he desires to deliver them to anj"^ officer or member of a corporation, company, or other hody under rule 4 of Order XXXI ; (3) Where he desires to deliver them out of the regular course ; (4) Where he desires to deliver a second set of interro- gatories to the same person in the same action, And (5) When they are to be served out of the jurisdic- tion. When leave is required, the proper procedure is as Summons ^ r c r whenleave follows : The application must be by summons (b). The isrequired. summons, at any rate in a common law action, may be supported by an affidavit (c), setting forth the grounds of the application. On the hearing of the summons (c?) for delivery of interrogatories to an officer or member of a corporation under rule 4, the only question to be discussed will be the fitness of the member or officer named in the summons to give discovery (see supra, pp. 31,32); the inter- rogatories proposed to be delivered will not be considered : Berkeley v. The Standard Discount Company, supra citum, 9 Ch. D. 643 ; 26 W. R. 852 (e). Under 15 & 16 Vict. c. 86, s. 12, a delivery of interro- What is gatories was held to be sufficient, when a copy thereof was delivery, left at the office of his opponent's solicitor: Bowen Y.Price 2 Be G. M. & G. 899. They must always be delivered at the proper stage of the action ; cf. supra, pp. 18 — 22. The interrogatories must be proper, as where the ^.U inter- (b) For form, see C. F. 269, D. F. 908. (c) For form, see C. F. 270, 271, and the order will be in the form in Appendix, p. 196 ; as to the necessity, cf. mprd, p. 22. (d) For form of summons, see D. F. 909. (e) For form of the order, see 0. F. 271. matter. 144 PRACTICE. rogatories majority appear to be bad tbe whole are liable to be struck should be •> J fi . proper. out; and the party exhibiting them must be prepared to show, that if there be one or two of them which ought not to be exhibited, they are exceptional only; for a judge need not go through them to see which are bad and which are good if the effect of them en bloc is bad, unless the applicant have specified or enumerated (/) which are objectionable: AUhusen v. Lahouchere, 3 Q. B. D. 654; 48 L. J. Q. B. 34; 39 L. T. 207; 27 W. R. 12. Care should also be taken that they be not exhibited vexa- tiously, unreasonably, scandalously, or at improper length, as the costs of them may in such a case fall on the party so exhibiting them (see rule 2), and they may be struck out under rule 5 ; cf. p. 41. A party could Interroga- never by amending his bill, after a sufficient answer, tories on . . . the same interrogate again on the same matter : Hill v. iv. Railway of Buenos Ayres, 41 L. J. Ch. 69 ; Southamipton Steam Boat Co. V. Rawlins, 12 W. R 285 ; 110 Jur. (N. S.) 118 ; Drake v. Symes, 2 D. F. & J. 81 ; 29 L. J. Ch. 349 ; but where the answer was imperfect, and therefore insuffi- cient, a new copy of interrogatories embracing much contained in the original inteiTOgatories was allowed to be filed : Newi-y v. Kilmorey, L. E. 11 Eq. 425 ; and cf. suprd, pp. 123, 132. Interrogatories may be in the subjoined form (g), with such variations as circumstances may require, and at the foot thereof must be a note stating which of the interro- gatories each of the persons interrogating is to answer. Where they are delivered pursuant to order, the form of them may be varied otherwise (h). (/) This followed the old practice : see Rdbson v. Cooke, 2 H. & N. 766, and Tupling v. Ward, supra citum, L. J. 30 Exch. 222 ; but also contra, per curiam in Zarifi v. Thornton, supra citum, 26 L. J. Ex. 214. For form of summons to strike o\it, see C. F. 271 (jg) See App., pp. 197, 224 ; 0. XXXI., r. 3. Qi) See C. F. 271. PRACTICE. !'*■) Supposing the party exhibiting to be dissatisfied with I;isuffi- the answer on account of its insufficiency or otherwise answer. (see mprd, pp. 121—132; Anon., 20 S. J. 261), the question will be decided by the Court or judge on motion or summons (i) ; and if the person interrogated omits to answer or answers insufficiently, the interro- gator should apply by summons to the Court or judge, who can order the other party to answer or answer further, as the case may be, either by affidavit or by vivd voce examination, as shall be directed (fc). An application under rule 20 to dismiss an action for want of prosecution, where the plaintiff has neglected to comply with an order for a further and better answer, does not preclude the defendant from again applying imder rule 10 : Kennedy v. Lyell, W. N. 1882, 137. The particular answer objected to must be stated in the summons : Chesterfield, (fee. Colliery Co. v. Blach, swprcb citum, W. K 1876, 204 ; 24 W. R. 783 ; 20 S. J. 642; 13 Ch.D. 138, n.; Anstey v. K & 8. Woohoich Subway Co., 11 Ch. D. 439 ; Church v. Perry, suprd citum, 36 L. T. (N. S.) 513. Under the old practice this applica- tion must have been made within six weeks, and in an Irish case decided under the Judicature Acts it was con- sidered that that was a reasonable time within which the party must apply : Lloyd v. Morley, 5 L. R. Ir. Ch. 74. The application for an order for a vivd voce examination Summons is by summons (Q. At the hearing the interrogatories ^^ce exa- and answer (if any) should be brought before the judge or ""i"*^''™- master, and also all facts tending to show that the answer is insufficient. The order (m) should be drawn up, and an (i) Rule 9. (k) Rule 10. For forms, see D. F. 915—917. The summons must specify the interrogatories to which further answers are needed, except where a proper objection has been taken : Furher v. Kiiig, 29 W. R. 536. (0 For form, see D. F. 916. \m) For form, see C. F, 274. L 146 PRACTICE. appointment made for the examination by the judge or master indorsed on the back thereof, and a copy of it served in the usual course. Under the old practice, where a motion was made to have the party orally examined, it ■must have been supported by affidavit : Swift v. Nu/n, 26 L. J. Ex. 365. Answer The party interrogated must answer by affidavit, to be affidavit, filed within ten days from the delivery of the interroga- tories, or within such other time as the judge may allow (rule 6). If he require further time for answering, he must issue a summons {d), and when the time for answer- ing has elapsed he may get further time by summons (e) ; and see Order LVII., r. 6. For the form of the order to extend time, see Weston v. Cohen, 20 L. T. (N. S.) 299. Under the old Chancery practice this application was not of course, and must have been supported by an affidavit : Brown v. Lee, 11 Beav. 162 ; but, practically, counsel's bare statement as to the time required by him was usually accepted : Byng v. Clark, 13 Beav. 92. At Chan- By the Consolidated Order XV., r. 5, of the Court of eery. "^ Chancery, "All answers shall be signed by the parties swearing the same, and such signature shall be affixed or acknowledged in the presence of the persons before whom the same is sworn." For form of jurat by an illiterate person, see Wilton v. Clifton, 2 Hare, 535. Again, by rule 6, "Unless the Court shall otherwise direct, the answers of all persons (except persons entitled to the privilege of peerage or corporations aggregate) shall be put in upon the oath of the parties putting in the same, where they are not exempted from taking an oath by any statute in that behalf. Persons entitled to the privi- lege of peerage may answer upon protestation of honour, and corporations aggregate shall put in their answer under (d) For form, see D. F, 912. (e) For form, see ib. 913. PRACTICE. 147 the common seal." But for corporations, see suprd, pp. 30—32. In Bacon v. Turner, W. N. 1876, 292, answers to inter- Answers not sworn rogatories made abroad and not under oath were by allowed to consent allowed to be filed ; a foreigner will always be consent. ^ allowed a reasonable time for answering : The Emma, Parties 24 W. R. 587; 34 L. T. 742, supra citum; of. suprd, Junsdio- pp. 33—35, 131. *i™- The interrogated party must also answer as fully as Generally, possible (see suprd, pp. 122 — 124), but he may object to answer, as stated in rule 5, (1) by his affidavit (/) in answer, and (2) by an application to set, them aside or to strike them out ; but he must take care that the objection be the right one in the case, and the application must be made at chambers, within four days after the service of the interrogatories, by summons (g). If the interroga- tories are plainly such as ought to be put, the party questioned may leave them unanswered without assigning a reason : Smith v. Berg, 25 W. R. 606 ; 36 L. T. 471 ; no interrogatories will be allowed pending demurrer as to its subject matter : Watson v. Hawkins, 24 W. R. 884 ; and generally, cf suprd, pp. 122 — 131. The affidavit in answer to interrogatories must unless, otherwise ordered by a judge, if exceeding ten folios, be printed (rule 7) (h). A judge has no discretion to allow part of the affidavit to be written and part printed, but he can dispense with the whole affidavit being printed : Webb v. Bomford, 46 L. J. Ch. 288 ; W. K 1877, p. 5 ; 25 W. R. 251. Under the old practice a party could not waive the filing of a printed answer : BloxsoTne v. Chichester, 2 De Gex, J. & S. 444. (/) For form of affidavit when objections are taken, see App,, pp. 200, 201. (g) For form, see C. F. 271, D. F. 910 ; and see note (k), p. 145. Qi) For forms, see App., p. 199 ; there may be such variations as circumstances require. As to the old rule, cf. Anon., W. N. 75, 218. L 2 148 PRACTICE. Discovery of docu- ments. When affidavit is required for the applica- tion for discovery. The party requiring discovery from any other party to the acti§n must apply to a judge for an order (a), under rule 12. And it seems that in some cases an affidavit may be necessary, for it has been held that the applicant is not entitled to the order for discovery as of right, and that if there be nothing to suggest that the documents are in the possession or power of the other party an affidavit is neces- sary : Healy v. Smith, 4 L. R. Ir. C. L. 72 ; Lane v. Oray, 16 L. R. Eq. 552 (6) ; Johnson v. Smith, 36 L. T. (N. S.) 741 ; 25 W. R. 539 ; that was an action for seduction, and from the nature of the action there was no presumption that there were documents in existence relative to the matters at issue ; but in Powell v. Heffernan, 4 L. R. Ir. C. L. 703 (an action to try the right to a fishery),, discovery was allowed in the absence of such an affidavit, Fitzgerald, B., dubit- ante. Palles, C.B., said : "If there be p7'im(J/acie evidence of the existence of documents, I think one party is entitled to appeal to the oath of the other as to which documents were in his possession or power." In this case the nature of the claim raised such a presumption. So in ATion., W. N. 1876, 24, swprd citum, Lindley, J., remarked that the onus lay on the party opposing the application, the applicant being entitled as a matter of course; and in Anon., W. N. 1875, 231, Quain, J., said that the order was granted as of course. The nature of the action, therefore, decides the necessity for an affidavit in support (c). The document whose discovery is sought need not be specified : Anon., W. N. 1876, 22 ; 20 S. J. 242, 243. Under the (a) For form, see App., p. 202. Although the underwriter's order for production (Form H. 17) is drawn up as though an affidavit had been read, still underwriters in an action on a policy are entitled as of right to a discovery of the ship's papers. See suprd, p. 35. (6) That was a case by an alleged next of kin to an intestate in a Crown administration against the solicitor to the Treasury. It was held that the plaintiff must make out a primdfacie case. (c) For form, see C. F. 246. PRACTICE. 149 old practice, after decree, a summons requiring an affidavit of documents must have specified the matters as (fb which discovery was sought : Haldane v. Eckford, L. R 7 Eq. 425. Notice by summons (d) must be given of the applicant's intention to the other party : Anon., 20 S. J. 32. There is no objection against including in one summons applica- tions against several parties, though they may be repre- sented by different solicitors (e). Should the affidavit be considered insufficient, a further affidavit of documents may be applied for ( /) ; but the applicant must prove the insufficiency from the affidavit itself, or from the docu- ments therein referred to, or from an admission in the pleadings of the party from whom discovery is sought (see supra, p. 137 ; and for the old Chancery practice, cf. Morgan, p. 522). And in all other cases no right to a further affidavit exists in his favour : Jones v. Montevideo Gas Co., suprcb citum, 5 Q. B. D. 556 (C. A.) ; Taylor v. Batten, suprd, p. 138 ; Welsh, &c.. Collieries v. Gaskell, 36 L. T. (N. S.) 352. Under the old practice, if the party seeking discovery suspected that any documents had been withheld, his only course, in the absence of the circum- stances above enumerated, was to interrogate thereon: Newall V. Telegraph Co., L. E. 2 Eq. 756 ; and semUe he may still do so, though never before obtaining the affidavit: Pitten V. Ghattenberg, 20 S. J. 139; W. N. 1875, 218, supra citwm; Bannicot & Frith v. Harris, W. N. 1876, 9 (as was necessary under 15 & 16 Vict. c. 86, and 14 & 15 Vict. c. 99, cf supra, pp. 3, 9, 22). The affidavit should comprise all documents relevant to the issue, whether existing at the time or not, and the omission of the words, " and never have had," therefrom is in itself a siifficient (ff) For form, see C. F. 245, D. F. 919. (e) For form in such, a case, see Set. 134, 135. (/) For form of summons, see D. F. 924, 925 ; and of orders thereon, see Set. 137, n. 12, 13. 150 PRACTICE. reason for ordering a further and better affidavit : Wa^- staffe vm^nderson, 39 L. T. (N. S.) 332 ; it should state ■what the deponent has done with non-extant documents : Anon., 20 S. J. 80. The party from whom the discovery is sought, when the order has once been served upon him, must make the discovery on oath (a) (rule 12), whatever his rights to object to produce may be, and even though there be nothing to prove the existence of documents at all: see auprcb, p. 101, and The Minnehaha,!,. R. 3 A. & E. 148, and New British, &c., Co. v. Peed, 3 C. P. D. 196, there quoted ; the principle being that the question of liability to production is distinct from the question of the sufficiency of the affidavit : see Rwmhold v. Forteath, 3 K. & J. 44 ; Lazarus v. Moz- ley, 5 Jur. (N. S.) 1119; Nicholl v. Jones; 13 W. R. 451. The affidavit must be complete ; must be to the best of the answerer's information, knowledge, and belief; must state clearly the objections to discovery ; and must verify the facts on which such objections depend. It must also specify which documents, if any, the answerer objects to produce (see suprd, pp. 132 — 140) (b). Should the party wish to get an extension of time for filing the affidavit, he Bankrupt, must do SO by summons (c). Where the party is a bank- rupt, his affidavit must state what documents have passed from him to his trustee, and the fact that they have so passed : Anon., W. N. 1876, 38 ; 20 S. J. 261. Form of For the form of the affidavit where a company objects when to produce, see Appendix, p. 205. ob^cts"to Documents resolve themselves for this purpose into two produce, classes, (1) those known by means of the record to be in (a) For form of his affidavit, see App., p. 203, with such variations as circumstances demand. - (b) For the form where party denies possession of any documents, see D. F. 924. (f) See D. F. 921, and. Order LVII., r. 6. PRACTICE. 151 the opponent's possession or power ; (2) those not known Practice .. . .. . respecting SO to be, inclusive of such as inconsistencies therejp, or an produc- interrogatory on an insufficient affidavit, may disclose, inspection Inspection of (1) is obtained under rules 14 and 18 ; of (2) generally. by virtue of the affidavit of documents obtained under rule 12, and of the notice under rule 14. [The application must here be supported by affidavit, cf. post, p. 155]. Eule 11 applies to both, and defines the discretion of the Court or judge : since Bustros v. White, 1 Q. B. D. 423, the old equity practice prevails, and he has no discretion to prevent production of documents insufficiently protected by affidavit, but he has to decide if the facts justifying the privilege or objection as there stated preclude the documents from production, cf pp. 67, 79. Material documents freshly obtained after affidavit filed will almost certainly be privileged ; but if also in possession of the other party may be required to be admitted by notice under Order XXXII., r. 2, cf. post, p. 156. As to when notice to produce is unnecessary at the trial owing to secondary evidence with- out it being allowed, cf. Stephen, Evidence, pp. 76, 77. Rule 11 gives the Court or judge power to order the Produo- production of documents generally, but the judge, when doou- called upon to exercise this discretion, must have regard to ""^ ^' every other rule of Order XXXI. : per Bacon, V.-C, in Cashin v. Craddock, 2 Ch. D. at p. 146 ; 34 L. T. at p. 54. An application for production must, as by the old practice, generally be supported by an affidavit (d), but in actions on marine policies such an affidavit is not needed (see p. 148, supra). Corporations must give production and inspection through their proper officer (see suprd, p. 31) (e). The Court can by this rule order production (d) It can be met by objections not before raised: Richards v. Gellatly, L. R 7 C. P. at p. 131 . For form, see C. F. -254. As to the interest which makes a party "entitled" to inspection under that rule, see sujyrA, p. 28 (" Parties"). (e) For form of order in this case, see Set., p. 135, and cases mentioned in D. F. 921, n. i. 152 PRACTICK. of documents on an appeal being heard : Re National Funds Assurance Co., supra citumi, 24 W. R. 774 ; W. N. 1876, 192 ; 20 S. J. 584, which, however, was a case under the Companies' Act of 1862 : Bustros v. White, 20 S. J. 585 ; and of. pp. 21, 26. Orders for production are not to be made on the solicitor of the parties : Gashin v. Grad- dock, 2 Ch. D. 140 ; nor can they be made at the trial : Dauvilliers v. Myers, swprob. As to the grounds for resisting production, cf. pp. 41 — 121; and as to who may obtain or afford production, cf. supra, pp. 21 — 38. Inspection fpjjg party desiring inspection must apply to a judge or ments. master, and such application must be founded upon an affidavit showing of what documents inspection is sought, that the applicant is entitled to inspect them, and that they are in the possession or power of the other party (c) (rule 18). The application must be by summons (cJ), or, if a defendant in an action on marine insurance, by a sum- mons differently worded (e). Under the old practice, in a salvage action, where a motion was made for leave to inspect documents in the possession of a party who had not been previously requested to allow inspection, the applicant had to pay the costs : The Memphis, L. R. 3 A. & E. 23. The order (/) generally directs the time and place of inspec- tion : Rogers v. Turner, 21 L. J. Ex. 8 ; but need not men- tion names of inspectors expect in cases of High Treason : Bavey v. Pemberton, 11 C. B. (N. S.) 628. Under it a party may take notes and make copies of any portion not sealed up : Coleman v. West Hartlepool Railway, 5 L. T. (N. S.) 266. The ground for allowing copies to be made (c) See C. F. 254, D. F. 932. Where the application is to aid a claim for property, the affidavit must show a prvmd facie title to it : In re Smyth, 15 Oh. D. 286; 16 Ch. D. 673 (Lunacy). (d) See C. F. 251, D. F. 931. (e) See C. F. 255. (/) See App., p. 211, and C. F. 254 ; and for form of Order for production (underwriters), see App., p. 212 ; cf. also p. 160, n. (k). PRACTICE. 153 is that the party who inspects can also remember : Pratt V. Pratt, suprd citiim, W. N. 1882, p. 117; 30 W. R. 837. And where a fee is usually payable on production of docu- ments it will not be so under the order : Hoare v. Wilson, L. R. 4 Eq. 1. The place usually named is the ofHce of the ^^^^ »/ . . . inspection. solicitor or agent of the party ordered to produce ; but in Chancery there is a special office for the deposit of docu- ments for inspection, styled the Record and Writ Clerk's Oifice (g), (see Consol. Order XL VII., r. 3). Where docu- ments were in constant use an order was made to inspect where they were in use : Gardner v. Dangerfield, 5 Beav. 389 ; Grane v. Go(yper, 4 M. & C. 263 ; Skey v. Bennett, 6 Jur. 981 ; but it seems only where a trade is being carried on. Thus a local board was compelled to send documents to London : Att.-Gen. v. Whitwood Local Board, 19 W. R. 1107 ; 40 L. J. Ch. .592 ; and it must be shown that they cannot be removed without inconvenience : Hooper v. Gumm, 2 J. & H. 602. Where voluminous documents were of consequence to a business in Dublin, the defendant was to deliver a list thereof, and the plaintiff to have copies of such as he pleased : Gahhett v. Cavendish, 3 Swa. 267, n. ; but failing an agreement to make the copies, the documents must be deposited : Prentice v. Phillips, 2 Ha. 152. As to the restrictions of the order, see Tagg V. S. Devon Railway Co., 12 Beav. 151 ; Richardson v. Hastings, 7 Beav. 354 [joint possession]. The inspection Who is should occur at the time and place in the order men- foj. §iapeo- tioned ; a.nd the undertaking to produce to a party includes *'™' his agents or solicitors, although they be not expressly named : Williams v. P. of W. Insurance Co., 23 Beav. 338. Solicitor means solicitor in the particular cause : Draper v. The Manchester, <&c., Radhvay Co., 3 D. F. & J., at p. 27 : 30 L. J. Ch. 236. When a plaintiff had obtained an order for ((/) Now transferred to the Central Office, see Jud. Act, Order LX., A., 1. 1 (B. S. C. Dec. 1879, 87). 154 PRACTICE. himself, his solicitor, and agent to inspect the defendant's documents, a co-defendant was not considered such agent : , Bartley v. Bartley, 1 Drew. 233; nor is a professional accountant appointed pro re natd an agent for the purpose : Bonnardet v. Taylor, 1 J. & H. 383 ; 30 L. J. Ch. 523 ; nor a relative, though he be the only person conversant with the accounts : Siommerfield v. Pritchard, 17 Beav. 9. Special orders have been made allowing a professional accountant to inspect: Bonnardet v. Taylor, swprd; it is an objection that the party can himself inspect: Cole- man v. W. H. Harbour, &c., Co., 44 L. T. (N. S.) 467; but not that the inspector is a witness: Att.-Gen. v. Whit- wopd Local Board, supra. And on the application of an assignee in bankruptcy, where the accounts were extensive and in Indian currency, the bankrupt himself was allowed, as an accountant, to inspect documents in the presence of any duly authorised clerk of the assignee's solicitors : Lindsay v.' Gladstone, L. K. 9 Eq. 132. So in a com- plicated case, any number of persons, not exceeding twelve, were allowed inspection: Rep. of Peru v. Weguelin,su'prdii, 41 L. J. Ch. 165. The plaintiff's counsel has been allowed inspection : Blair v. Massey, Ir. R. 5 Eq. 623 ; and see suprd, {Parties), p. 36. The party from whom the inspection is required should, if he objects to give it, or wishes to seal up irrelevant or privileged matter, apply for leave to do so (c), and file an affidavit in support, stating such objec- tion, and what portion of the documents he wishes sealed (d) ; and when he has omitted in his affidavit to claim his privilege' of sealing up, he should apply by a separate summons for leave to do so : Talbot v. Marsh- fsld, L. R. 1 Eq. 6; whereupon an order (e)'maybe made. When the party claiming inspection shows that the parts (c) For form of summons, see D. F. 929. {d) For form of affidavit, see D. F. 929. (e) See Set. 134, No. 3. PRACTICE. 155 of the documents covered up are not privileged, they may be ordered to be uncovered : Kettleiuell v. Barstow, suprA citiim, L. R 7 Ch. 686 ; Bowes v. Fernie, 3 My. & Cr. 632. When further time is required by the party re- quired to produce, he must apply to that effect by summons (/). The party requiring the inspection of documents Inspection referred to in the pleadings must give notice in writing to ments re- " any other party" to produce the documents for his inspec- ;^"^g *° tion, or that of his solicitor, and to permit him or them to pleadings tinder take copies thereof. Such notice must be given at the rules 14— proper stage of the action (g). If the party served with such notice omits to give notice to the other for a time for inspection under rule 16, or objects in his notice to give inspection, the party must apply to a judge for an order (A.) for such inspection (rule 17) ; but he must give the other party notice by summons (i) of his application. The judge may by consent of the parties examine the documents and decide if they should be produced himself; his decision cannot then be appealed against : Bustros v. White, supra. Where it does not appear by the affidavits or pleadings of the party against whom the application is made that the documents of which inspection is sought are in his possession or power, there should be an affidavit in support {k). Where the production for inspection is required against two or more parties, there will be another form of summons (?) ; and where, after an order has been obtained for inspection, there has been a transfer of interest or liability from the (/) See D. F. 928. (^) For form, see App., p. 214. (A) For form of order or objection by notice or by the affidavit, see Set. 136, No. 8 ; of. Dearl v. Henchcliffe and other chamber cases, quoted D. F., p. 932, n. {p). (i) For form, see D. F. 931. (4) For form, see D. F. 933. (I) See D. F. 934. 156 PKACTICE. Notice to admit. The ad- mission. original party to some other, another form may be used (m). He must be careful to use his remedy under rule 17, as otherwise he cannot prevent the other party who shows sufficient cause under rule 14 from putting the documents refused in evidence at the trial : Webster v. Whewall, swprd citum, 15 Ch. D. 120. " - The party receiving the notice to give inspection must, within four days from the receipt thereof, if any of the documents therein referred to have not been included in the affidavit, deliver a notice (n) to the other party, stating the time, within three days from the delivery thereof, at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, and which, if any, thereof he objects to produce, and on what ground. Should he omit to comply with the notice thus received, he will not afterwards be at liberty to put in evidence in the action or proceeding any document on his behalf, unless he can satisfy the Court that he had sufficient cause for his non-compliance with the order. Documents referred to in an examination of the secretary of a company not a party to the action who ha.d made the affidavit will not be documents within rule 14 : Alcock V. GUI, 2 L. T. (N. S.) 704. Notice to admit documentary evidence is regulated by Order XXXII., r. 2. It may be given by " either party " to " the other party," and therefore includes a co-defendant. If in the opiiiion of the taxing master unreasonably omitted it will, according to the rule, subject the party to the cost thereby occasioned in proving such evidence : The Cromwell, L. E. 3 A. & E. 316 ; it should be served after issue joined, and a reasonable time before the trial : Tinn v. Billingsley, 2 C. M. & K. 253. The admission, (in) See D. F. 934. {n) For form, see App., p. 216, which will be with such changes as circumstauces req^uire; if the documents are included the time is two days. PRACTICE. 157 according to the usual form (o), should be made within forty-eight hours. It should be carefully framed lest an unusual form of notice should entrap the admitting party into an estoppel at the trial : Wilkes v. Hopkins, I C B. 737 ; but of. Pilgrim v. The Southampton Railway Co., 18 L. J. C. P. 330. It is, by the rule and the form of notice, subject to " all just exceptions to the admissibility of all such documents as evidence in the cause." If inad- vertent it may be withdrawn by a master's order under special circumstances : Wilkes v. Hopkins, suprcb. An omission to admit, if in the opinion of the Court unreason- able, is punished by the rule with costs ; time for the admission to be made will of course be extended on summons, cf C. F., pp. 257, 258. By Order XVI., r. 10, any party to an action may. Discovery where any two or more persons claiming or being liable ners. as .co-partners are suing or being sued in the name of their respective firms, apply by summons to a judge for a statement of the names of the co-partners in such firm, to be furnished in such manner, and verified on oath or otherwise, as the judge shall direct (p). And by Order VII., r. 2, when a writ is issued by partners in the name of their firm, the plaintiffs or their solicitors shall, on demand in writing {q), and subject to a stay of all proceedings on the defendants' Application for non-compli- ance, declare (g) the residence and name of such partners. By rule 1 of the same order every solicitor whose name is pf autho- indorsed on any writ of summons must, on the demand in solicitors, writing by or on behalf of any defendant served therewith, or appearing thereto, and subject to a stay of all proceedings till leave given by Court or judge, if the same be not (o) For forms both of notice and arlmissions, see C. F. 257, et seq. ; D. F. 325, 327. (j>) For form of order, see App., p. 217 ; and of summons, C. F. 182. (2) Cf. D. F. 86. 158 PRACTICE. issued with his authority or privity, disclose whether it was so issued (b). Postpone- Under rule 19, which gives the judge discretion ,to ment of , ,. i • , • j.*i ■ discovery postpone the discovery and inspection until an issue or tSnunder" question be determined whereon the right to discovery rule 19. depends, or for some other reason (see suprd,, pp. 51 — 54) the party requiring discovery must appear to the sum- mons (c) as when an objection is taken, and the judge will then exercise his discretion. The party resisting the discovery may also apply by notice of motion (d). Thus, in Wood v. Tfie Anglo-Italian Bank, 34 L. T. (N. S.) 255 ; 20 S. J. 332, suprdi citum, where the plaintiff's interrogatories were refused to be adminis- tered, as irrelevant, and he subsequently added a count to his declaration, so as to found similar interroga- tories thereon, the Court, in allowing the count, ordered postponement until the issue raised by the count was decided; and in Flower v. Lloyd, 20 S. J. 584, 703, where the plaintiff brought an action for infringement of his patent, the Court of Appeal stayed an order to inspect the process of defendant's manufacture pending an appeal, which would otherwise have been rendered nugatory. The order (d) may be made on a summons for a further affidavit adjourned into Court: Leigh, Re, 6 Ch. D. 256, C. A.; 25 W.R 783 ; 37 L. T. 557, suprd citvmi; and in Verminck v. Edwards, suprd citum, 29 W. R. 189, the Court on motion also refused the discovery. See also Twrney v. Bayley, 4 De Gex, J. & S. 332, where the que.s- tion arose on summons. Answers Under rule 23, an examined copy of answers to inter- GvidciicG in a subse- rogatories sworn and filed in the usual way may be read action. ^^ evidence against tlie person who made them in a subse- (6) For forms, cf. D. F. 165, 166. (c) For forms, see D. F. 911, 928. (d) For form, see Set. 371. PRACTICE. 159 quent action to which he is a party, without proof of his handwriting or the production of the interrogatories them- selves: Fleet Y. Perrins, 37 L. J. Q. B. 233. If any party fail to comply with any order to answer Penalties. interrogatories, or for discovery or inspection of documents, he is liable to attachment (Order XXXI., r. 20). This rule does not authorise an attachment for not giving names of partners under Order XVI., r. 10 : Pike v. Keene, 24 W. R. 322 ; 35 L. T. (N. S.) 341 ; W. N. 1876, 36. By Order XLIV., r. 2, no writ of attachment can be issued without leave of the Court or judge, to be applied for on notice (e) to the party against whom it is to be issued. The judge's Attach- 1 /• • • 1 • 1 ™6nt. order (/) for leave to issue an attachment is obtained upon summons (g), and the application should be supported by affidavit (h) exhibiting the facts which constitute the contempt, and referring to the order disobeyed, which should be annexed to the affidavit. Under the old practice an attachment might have issued without notice as a rule nisi, and semble where the appli- cation is not " iij an action " such a practice may still be resorted to, for rules 1 and 2 of Order LIII. only refer to proceedings " in an action " : Gartturight, In the goods of, 1 P. D. 422; 34 L. T. (N. S.) 72 ; 24 W. E. 214; but cf. Baigent v. Baigent, 1 P. D. 421 ; 33 L. T. (N. S.) 462 ; 24 W. R. 43 ; and as to these rules only applying to " actions," Phillips & Gill, re, 1 Q. B. D. 78 ; 45 L. J. Q. B. 136 ; 24 W. R. 1 58. In all other cases notice will be required : Dallas v. Glyn, 3 Ch. D. 190 ; 46 L. J. Ch. 51 ; 34 L. T. (S. S.) 897; 24 W. R. 881. An affidavit (i) of the service of the notice of the (e) For form, see C. F. 447, 448. (/) For form, see 0. F. 450. \g) For form, see C. F. 448. {h) For form, see C. F. 448, 449. (i) For form, see C. F. 449. IGO PRACTICE. application or of the rule is also necessary on the hearing thereof, or of the motion, to make the rule absolute. This notice should be personally served : Hpection right : — Books of the Sessions of the Peace : Herbert v. Ashburner, 1 Wils. K. B. 297 ; and Records of the Courts of Law (a). The party desirous of inspecting must prove some Theremnst interest. Thus the plaintiff in an action for escape was terest. allowed inspection of the writ of habeas corpus, and of the coTnmittitur indorsed thereon : Fox v. Jones, 7 B. & C. 732 ; 1 M. & R. 570. So a party, claiming a right to present to a vacant living, the bishop clainaing a right to coUate to it, may inspect the bishop's registry of pre- sentation : Finch V. My (Bishop of), 2 M. & R. 127, S. C. nom. Rex v. My, 8 B. & C. 112. E'either the books of the Post Office : Crew v. Blackburn, 1 Wils. K. B. 240 ; nor those of the Custom House : Benson v. Port, ib., can be inspected unless the question at issue concern the respective departments : Cf. Atherfold v. Beard, 2 T. R. 61(), per BuUer, J. Where the document whose inspection is sought is set out in another which is public, and, as such, open to the inspection of either party to the action, the Court will not order the production of the original : Wood V. Morewood, 3 Scott, N. R. 197 ; 9 Dowl. 669 ; 5 Jur. 389. (a) But see per Abbott, C.J., in JR. v. Maidstone, 6 D. & E. at p. 336, where he says that some good reason for the inspection of the Records of the Court must be assigned. 184 INSPECTION OF PUBLIC DOCUMENTS. Parish The inhabitants of a parish have a general right to inspect the parish books: Newell v. Simpkin, 6 Bing. 565 ; 4 M. & P. 395 ; Anon., 2 Chit. 290 ; Burrell v. Nicholson (b), 1 Myl. & K. 680 ; but for parochial purposes only. Thus in R. v. Smallpeice, 2 Chit. 288, where a parishioner claimed an estate in a parish, he was dis- allowed inspection of these books, as his interests were purely private. Nor will a parishioner be permitted such inspection where he claims an interest distinct from that of the parish : Cox v. Copping, 1 Ld. Eay. 337 ; 5 Mod. 396. In May v. Gwynne, 4 B. & Aid. 301, which was an action for libel against Gwynne, an agent of the parish vestry to make a report on the plaintiff's conduct, founded on the inspection of parish books then in his, hut afterwards the plaintiff's, possession as vestry clerk, the Court refused him inspection of them, on the ground that they were not wanted to advance any parochial right, and also that it could not order a plaintiff to furnish evidence against himself The rule of a right to inspect parish or public docu- ments does not apply to criminal cases : R. v. Pwrnell, 1 Wils. (K. B.) 239 ; R. v. Bucks, 2 M. & H. 412 ; 8 B. & C. 375 ; R. v. Worsenham, 1 Ld. Eay. 705 ; R. v. Lee, 1 Wils. (K. B.) 240 ; R. v. Gt. Farringdon, 9 B. & C. 541. 12' Geo. 11. Under sections 8 and 9 of 12 Geo. II., c. 29, county rate- u. 29, ss. 8 , . , . , •' ^ and 9. payers have no right to inspect the county accounts, that right being confined solely to the justices : R. v. Stafford- 17 Geo. II. shire, 1 N. & P. 260 ; 6 A. & E. 84. Under section 1 of '"■ ■ 17 Geo. II., c. 38, allowing inspection of poor rates to (6) This was an action for wrongful distress, in wMcli the plaintiff denied he was a parishioner ; and the Conrt of King's Bench refused the inspection on that ground : see 3 B. & Ad. 649 ; but a bill of discovery being afterwards brought in Chancery, it was allowed— " The question being one of boundary, and the documents containing the evidence common to both parties." INSPECTION OF PUBLIC DOCUMENTS. 185 parishioners, the applicant must state some ground for his desire : R. v. Clear, 4 B. & C. 899 ; 7 D. & R. 393. It is the right of a tenant of a manor to see the court Court roUs: per Romilly, M.R., in Warrich v. Queen's Coll., sufva ^"^' ^^^ citum, L. E. 3 Eq. G83 ; and see R. v. Shelley, 3«T. E. 141, inspect. and the cases there quoted. But other persons have not that right : Talbot v. Villeboys, 3 T. R. 142 ; unless they he interested in the copyhold: Hiitt, ex parte, 3 Jur. 1105; 7 Dowl. 690; cf Smith v. D. of Northumberland, and supra, p. 103 ; Att.-Gen. v. Emerson and Another, W. N. 1882, p. 155, a recent case, where the defendants having claimed a title to certain parts of the foreshore of Essex, of which the Crown claimed to be seised in fee, it was held that the oath in the defendants' affidavit of documents that the court rolls related exclusively to their right and none of them to the Crown, would not privilege them from inspection by the Crown, since they would obviously assist the Crown in making out the boundaries of the manor. So in Barnes, ex farte, 7 Jur. 217 ; 2 D. (N. S.) 20, a devisee of a rent-charge on a copyhold was allowed inspection of the rolls to deduce his title. In Smith V. Davies, 1 Wils. (K. B.) 104, where the lord of the manor brought an ejectment action, the defendant claiming the land as freehold, the defendant was refused inspection of the rolls on the ground of the plaintiff not being obliged to assist the defendant to make out his title : cf Lyell V. Kennedy, 20 Ch. D. 484, swpra citiom. Where the plaintiffs claimed not as tenants — the lord contending that they were — they were held not entitled to inspect the court rolls, as the very foundation of their claim was that they were not tenants : Oicen v. Wynn, 9 Ch. D. 29 ; Bramwell, L.J., remarking: — "The plaintiffs say, if our claim is right we are not entitled to see the documents, but we may be in the wrong, in which case we should be entitled; therefore, as we may be in the wrong, show them to us." 186 INSPECTION OF PUBLIC DOCUMENTS. Where no The right exists although do suit he pending at the ' ing! ^™ ' time : R. v. Lucas, 10 East, 235 ; R. v. Tower, 4 M. & S. 162; the reason being, per Littledale, J., in R. v. Mer- chant Tailors' Co., 2 B. & Ad., at p. 128, that " the lord has the custody, as a trustee, of the title-deeds and docu- ments which show the right of each particular tenant. . . . . It is convenient that the evidences of title and customs should be kept in one place, but it would be unreasonable if the tenants had not recourse to them. But even in the case of court rolls, the tenant has not a right to inspect all the titles; it would be extremely inconvenient if he could do so.'' A freeholder within the manor has the right : Adding- ton V. Glode, 2 W. Bl. .1029 ; Warrich v. Queen's Coll., supra citum, 3 L. R. Eq. 683; but semble only when there is a suit pending at the time involving his interest : R. V. Allgood, 7 T. R. 746 ; Hobson v. Parker, Barnes, 237. Common In both cases the claimant is entitled to a full discovery; antandap- Ijut where a plaintiff claims as the owner of a right of pendant, common appurtenant, production of documents relating solely to the title of the defendant as lord of the manor will not be ordered, unless the plaintiff can show that the right he claims has been actually long exercised or that the document would tend to establish it. A plaintiff claiming to be the owner of a right of common appendant is entitled to inspect them as of right : Minet v. Morgan, supra 'citum, 11 L. R. Eq. 284. That was an action to establish a common of vicinage over a common within a manor whose lord was the defendant, the plaintiff's manor adjoining. The plaintiff, while allowed a full discovery, was, it being an action as to common appurtenant, refused inspection of documents of the defendant's manor sworn to relate to his title only and not to advance the plaintiff's or to impeach his own. Inspection Under the Copyhold Act, 18-52, in any enfranchisement INSPECTION OF PUBLIC DOCUMENTS. 187 under 4 & 5 Vict. c. 35, 6 & 7 Vict. c. 23, and 7 & 8 Vict. c. 55, by enfran- . chised as well as under that Act, any person seised of or interested copy- in the enfranchised lands is entitled to inspect the court ^'^ J*^ ' rolls of the manor of which the land was held, and to Vict. u. 51. 1 -IP r 1 , , S3. 20, 21. have copies thereof on payment of a reasonable sum, and so also, where the lord or other person who had custody thereof has given them up or handed them over to the commissioners, on payment of the fit and proper fees. This right may be enforced in the same way as described infra, pp. 192, et seq. What has been said above applies to no criminal pro- 1" orimi- , . T T . ^^^ pro- ceeding against the lord who is not bound to furnish ceedings. evidence against himself: R. v. Cadogan (Lord), 1 D. &R. 550; 5 B. & A. 902; and cf. cases cited p. 184. An order to inspect the records of a court leet will not Docu- . ments of be made unless the applicant assigns a sufficient reason courts leet. for the inspection : Mex v, Maidstone (Mayor, &c), 6 D. & R. 334. As a general rule all shareholders, creditors, or other Doou- ments of interested persons, have a right to inspect the documents public of public companies. Thus an allottee of shares, in an ^™o^^^" action against a director, was held entitled to inspect the inspect, subscriber's agreement and the Parliamentary contract ; the defendant not showing that they were out of his power and control, and the plaintiff's affidavit stating that the documents were signed by both him and the defendant, and that they were in the hands of the solicitors to the company, and that the inspection was necessary : Steadman V. Arden, 15 M. & W. 587 ; 4 D. & L. 16 ; 10 Jur. 553 ; L. J. 15 Ex. 310 ; followed in Ley v. Barlow, 5 Ry. Ca. 1 ; 5 D. & L. 375 ; 1 Ex. 800 ; 17 L. J. Ex. 105. So in an action for calls against an alleged shareholder, he, denying that he was so to the amount claimed, was allowed inspection of the registry of shares and the allotment and agenda books : Lancashire Cotton, &c.. Go. v. Greatorex, 188 INSPECTION OF PUBLIC DOCUMENTS. 14 L. T. (N. S.) 290. But where, in a similar action, the defence was that the defendant was not a shareholder at all, the Court disallowed such inspection, on the ground that if he was a shareholder he had neglected his powers under the Companies Act, and if he was not, he was not to be allowed to fish for a defence : Birmingham, &c., Junc- tion Railway v. White, 4 P. & D. 649 ; 1 Q.B. 282 ; 2 Ry. Ca. 863 ; 5 Jur. 800 ; 10 L. J. Q. B. 1 2. In R. v. Wilts and Berks Canal Navigation Co., 29 L. T. (N. S.) 922, the prosecutor, a shareholder in the defendant company, and also solicitor to another company who had obtained a decree in Chancery against the defendants, was allowed to inspect the register of shareholders, although the defendants in their affidavit stated, and he did not deny, that he made the application in the interest of his clients, in order to persuade the shareholders to oppose the appeal from the decree; cf. Shaw v. Holmes, 3 C. B. 952, where the defendant, a provisional committee of a projected company, was allowed to inspect the resolution book in possession of the plaintiff, a secretary, who sued them for salary. In Fontet v. The Basingstoke Canal Co., 2 Bing. N. C. 370 ; 2 Scott, 543, a creditor by bond was held to be interested within the company's Act, giving a right to inspect their books to "proprietors, landowners, and others interested in the navigation." 8&9Vict. By the Companies' Clauses Act, 1845, an execution ■ creditor against a company may, where his judgment has not been satisfied, at all reasonable times, without fee, inspect the register of shareholders, for the purpose of ascertaining their names and the amount of capital to be paid on their respective shares (c). Directors' Books containing the proceedings of the directors are liooks. . (c) This right is enforcecable by an order of the Court in which judgment has been recovered : Header v. Isle of Wiylit Ferry Co., 9 W. R. 750. An application for a mandamus is unnecessary. INSPECTION OF PUBLIC DOCUMENTS. 189 only liable to inspection by shareholders and parties inte- rested, on special occasions and for special purposes, on the ground of the necessities of business : Reg. v. Maviqulta and Nevj Granada Mining Co., 1 El. & El. 289; 5 Jur. (N. S.) 725 ; 28 L. J. Q. B. 67 (per Campbell, C.J.). A Bank holder of stock in the Bank of England may inspect the bank ledger to take a copy of his amount ; and a plaintiff in an action for refusal to pay dividends upon stock alleged to be standing in his name, though the defendants denied this, alleging it to be transferred, was held entitled to inspect the transfer book, hitt only as regarded the parti- cidar entry : Foster v. Tlie Bank of Etigland, 10 Jur. 372 ; 15 L. J. Q. B. 212 ; 8 Q. B. 689. Inspection has been refused, to objectors to rating ar- rangements, of books recording proceedings of the commis- sioners in other places to which the prosecutors had not been parties, and with a view of ascertaining the reasons for previous rating alterations of the defendants. It was held that they could only inspect such books as to the entries of the rates therein and other matters relative to their parish : Reg. v. Oo'inmissioners of Sewers for the Tower Hamlets, 6 Jur. 1059 ; 3 Q. B. 670; 3 G. & D. 92. By section 156 of the Companies Act, 1862, the Court Inspection may, after the winding up order, make such order for winding up inspection by the creditors and contributories of its books "^^^"^^ and papers as it thinks just. Such documents may only 25 & 26 be inspected in conformity with the order of the Court. ^.Tsk'^ ' As to where inspection was allowed under the Act to shareholders, see Ex parte Buchanan, 15 W. R. 99 ; 15 L. T. 261 ; Birmingham Banking Co., In re, and Joint Stock Discount Co., In re, 36 L. J. Ch. 150. And as to inspection in voluntary windings up, see Yorkshire Fibre Co., In re, 9 L. E. Eq. 650 ; Ex parte Davis, 16 W. R. 668. A liquidator of a company being wound up was allowed 190 INSPECTION OF PUBLIC DOCUMENTS. inspection of its books after transference to another: National Financial Co., Re the, 15 W. R. 499. Under a winding up order creditors have a right to inspect, in the same way as if the company existed and they had brought an action against it, and the company had not sworn that the documents did not relate to their claim: Walker, Ex parte, 15 Jur. 853. Books, &o., The books of a corporation are in the nature of public tious'^'"^^ documents, and every member of a corporation having an interest therein has a right to inspect and take copies thereof for any matter concerning him, though it be in dispute with others : R. v. Newcastle-upon-Tyne, 2 Str. 1223; Richards v. Pattinson, Barnes, 235. But there must be some controversy between the parties for a mandamus to lie : R. v. Saddlers' Co., 31 L. J. Q. B. 62 ; 10 W. R. 87. In that case the prosecutor claimed the office of one ,of the assistants, having been wrongfully, as he alleged, passed over, and an order was made allowing him to inspect certain minutes and other books alleged by him to contain entries relating to the office, which would show the course of former elections, in order to substantiate Corpora- his case. In actions by corporators against corporations, the action must concern the affairs of the corporation in order that inspection may be obtained, and the books, where inspection is sought, must relate to the question at issue : Stevens v. Berwick, 4 Dowl. 277 ; R. v. Bridgman, 2 Str. 1203; R. v. Bahb, 3 T. R. 579; Young v. Lynch, 1 W. Bl. 27. Strangers. Strangers to a corporation have a right only to inspect the books in particular circumstances, following the old Chancery practice : for that Court would always exercise its discretion in allowing a stranger to inspect the corporation books, and would grant or refuse the inspection, according to the circumstances of the particular case. See Southamp- ton V. Graves, 8 T. R 590. INSPECTION OF PUBLIC DOCUMENTS. 191 Where a person becomes a corporator after action brought, he is in the position of a stranger for the purposes of that action : Bristol v. Visger, 8 D. & R. 434. Where a doctor was prosecuted for practising, not being a member of the College of Physicians, he was refused inspection of the college books : R. v. West, 1 Wils. (K. B.) 240. But where a corporation bring an action against an inhabitant of the borough for breach of the bye-law, the defendant cannot be considered as standing altogether in the condition of a stranger, and therefore he will be allowed inspection for the purpose of copying the bye-law alleged to be broken : Hariison v. Williams, 4 D. & R 820 ; 3 B. & C. 162, fol- lowing Brewers' Co. v. Benson, Barnes, 236. The second 5&6Wiil. section of the Municipal Corporation Reform Act, 1835, g 2. ' reserves the rights which the old burgesses and their suc- cessors had before the Act, and therefore, although not members of the corporation, they were held not to be strangers thereto, at any rate for the purposes of inspec- tion : R. V. Beverley, 8 D. P. C. 140 ; W. W. & H. 343. Under section 4 of 32 Geo. III. c. 58, which enacts that 32 Geo. the mayor, sheriff, town clerk, or other officer of any cor- g, 4' ^' ' poration having the custody or power over records of the When dis- same, shall, upon the demand of any person being an officer or member of such corporation, on the payment of one shilling, permit such person at certain days and certain times to inspect the books and papers wherein the admis- sion or swearing in of the freemen, burgesses, or other members or officers of such corporation shall be entered, and to take copies of the same upon a certain payment, under a penalty if they refuse, it was held that the Act, being penal, must be construed strictly, and the plaintiff was not entitled to inspect the order for such admission, &c. : Davies v. Humphreys, 3 M. & S. 223. In criminal In crimi- prosecutions, even by the Crown, in the case of corpora- tions as of other public bodies, no inspection of the corpo- 192 INSPECTION OF PUBLIC DOCUMENTS. ration books is allowed: R. v. Purnell, 1 W. Bl, 36; 1 Wils. (K. B.) 239 ; B. v. Heydon, 1 W. Bl. 351 ; E. v. Cornelius, 2 Str. 1210. Practice. Where no action is pending, and a party has a right to no'alrtion'^ inspect, and has been refused the inspection, he must is pending, move in the Queen's Bench Division for a rule to show cause why a writ for a mandamus for such inspection should not issue; which motion should be supported by an affidavit showing the interest of the applicant, and mentioning the previous application and its refusal : Roe V. Aylmer d. Hare, Barnes, 236. On a motion for the wiit against a public company, the rule was discharged, because the application for inspection had not been made to competent parties, and there had, therefore, been no refusal : R. v. Wiltshire and Berkshire Navigation Co., 5 N. & M. 344; 3 A. & E. 477 ; but this objection must be raised at the first hearing of the motion. It will be too. late on appeal, unless the judge have referred it : Bir- mingham, &e., Railiuay Co. v. White, supra citum, 4 P. & D. 649 ;'l Q. B. 282; 2 Ry. Ca. 863; 5 Jur. 800 8 Vict. c. Under section 119 of the Companies' Clauses Act (8 Vict, c. 15), which permits shareholders to inspect books in which the company's accounts are entered at fixed times, the party moving for the writ must, although a share- holder, state what is his object and the scope of his demand, that the Court may see it is reasonable : R. v. London and St. Katherine's Docks Co., 44 L. J. Q. B. 4. (2) Where Where an action is pending, the usual summons (see pending" P- l^^) for inspection should be taken out, and at the hearing thereof there should be a like affidavit in sup- port ; but where the applicant is a copyholder, by analogy to Rule 31, R. G., H. T., 16 Vict., he can make such appli- cation as of right, without the usual summons, upon an affidavit that he is a copyholder, and has applied for and been refused inspection. INSPECTION OF PUBLIC DOCUMENTS. lO-*^ It seems that the demand for inspection should be(?'^" "• either case. made by the applicant himself, and not by an agent : Hutt, Ex parte, 3 Jur. 1105 ; 7 Dowl. 690. Where he is a copyholder it is not enough in the affidavit to swear a mere belief in his title ; it must be stated positively that he is so entitled : Cooke, Ex parte, 5 D. & L. 413 ; 2 B. C. Rep. 205. In actions by or against public companies the affidavit must state that the inspection is material and necessary to the prosecution or defence of the action : Impenal Gas Go. V. aarke, 4 M. & P. 727 ; 7 Bing. 95. As to inspection in quo warranto infonnations which Qm were not affected by the C. L. r. Act, 1852, see it. v. beaCe, informa- 5 E. & B. 1. Semble the practice remains the same, see *'°"^' suprd, p. 11. Where an order has been made for inspection by the Stewards, . , , &c., fee Court, the steward of the manor is not entitled to charge on inspec- the ordinary fee: Hoare v. Wilson, 4 L. R. Eq. 1; and the same principle would apply in all other cases where a fee is ordinarily charged. Under the usual order in Chancery for the deposit by the defendant, or steward of a manor, of all documents in his possession, an order was made that the Court Eolls, which formed portion thereof, might be produced at his offixie : Carew v. Davis, 21 Beav. 213 (see supra, p. 85). Where an order was made by the Court of Chancery to aUow the plaintiff, his solicitors and agents, to inspect, an accountant of the company, who was also an auditor to a neighbouring railway company, was held not to be an agent (see s^iprd, p. 36) : Draper v. Manchester, Sheffield and Lincoln Railway Co., 3 De G. F. & J. 23. APPENDICES. APPENDIX OF FOEMS, OEDEES, AND SECTIONS OF ACTS OF PAELIAMENT. APPENDIX A. STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. Summons (Gbnebal Form). In the High Court of Justice, 18 . No. . RS-C Division. fgPgoJ' Schedule. Between , plaintiff, ^"■"■ ' '^ ' monaes and and orders. , defendant. fPP'=' ^• -Let all parties concerned attend the Judge (or Master) in Chambers on day, the day of , 18 , at o'clock in the noon, on the hearing of an application on the part of Dated the day of , 18 . This summons was taken out by , of , solicitor for To 02 19G APPENDIX A. Order fob Delivery op Interrogatories. R.S.C April, 1880. Schedule. Sum- monses and orders. Appx. H. 14. In the High Court of Justice, Division. Master in Chambers. 18 No. Between and plaintiff, defendant. Upon hearing , filed the , and upon reading the affidavit of day of 18 , and It is ordered that the be at liberty to deliver to the interrogatories in writing, and that the said do, within days from the date of this order, answer the in- terrogatories in writing by affidavit, and that the costs of this application be Dated the day of 18 STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 197 Form of Interrogatories (and see p. 124). In the High Court of Justice, 18 No. . Judio. Division. ^''}' 1875. Scheaule of Forms. Between A. B., plaintiff, Appx. B., , Fonn 7. and C. D., K F., and G. H., defendants. Interrogatories on tehalf of the above-named [plaintiff, or defendant C. D.], for the examination of the above-named [defsTidants 'E. F. and G. H., or plaintiff]. 1. Did not, etc. 2. Has not, etc. Etc., etc., etc. [TJie defendant E. F. is required to answer the interrogatories numbered .] \The defendant G. H., is required to answer the interrogatories numbered .j Interrogatories to Support a Plea of Contributory Negligence. The facts were that the plaintiff, being a lighterman, had come on to the barge when rails were being discharged from his ship. Being dissatisfied with their position in the barge, he undertook to assist the defendants' servants therein, and taking hold of one set of raUs being by them lowered, instructed them. He slipped, and the rails fell on his legs. 1. State precisely at what hour you arrived at the barge in your statement of claim mentioned on the 16th of February, 1880. Was there any and what quantity of rails, or sets of rails, on board the said barge when you arrived ? 2. Did you take any- and what part in the lowering or receiving on board the said barge the set of rails in the statement 198 APPENDIX A. of claim mentioned 1 If yea, state why and for what purpose you did so. 3. Did you take, hold up, or touch at any and what time the said set of rails? And if yea, state why and for what purpose you did so, and where you were standing at the time, and how the set of rails was situated with regard to you. 4. State who was engaged in lowering, discharging, and receiving the said set of rails into the said barge, giving their names or suificient descriptions. 5. Did you at any and what time give any and what direc- tions or orders, or make any and what request to any and which of the persons engaged in discharging, lowering, or receiving said set of rails into said barge ? If yea, state precisely what you said. 6. "Where were you standing when you allege you were injured t How was the set of rails situated with regard to you ] Which of the defendants' servants do you allege negligently and unskilfully conducted himself or themselves in the discharge of the rails 1 State precisely in what you allege the negligence con- sisted, and how you say the accident was caused, 8. Do you believe the brake of the crane used in the dis- charge was in any and what improper condition ? 9. Were you not aware that the said set of rails was being disctarged ? Could you not see it being discharged ? 10. What were your duties at the said barge? 11. What were your average wages per week, and how much did you earn during the six months preceding the 16th of February, 1880? 12. What were the injuries you allege you sustained, and the expenses you say you incurred ? How long were you in hospital and away from work 1 Have you since the accident been at any and what times and are you now in any and what employment at any and what wages ? Interrogatory as to a Written Document. Look at the copy letter of the 24th July, 1873, annexed hereto marked " A," and the original of which shall be produced to you if required, and state whether or not the said letter was written by you, or one and which of you to the plaintiff. STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 199 Form of Answer to Interrogatories. In the High Court of Justice, 18 . B. No. ■ ^"f ""gyg Division. Schedule of Forms. Between A. B., plaintiff, Fo^'s^'' and C. D., E. F., and G. H., defendants. The answer of the above-named defendant E. E. to the interrogatories for his examination by the above-named plaintiff. In answer to the said interrogatories, I, the above-named E. F., make oath and say as follows : — Forms of Ansioei's to hiterrogatories where they are ohjedionable for some reason. 1. I object to answer the interrogatory, on the (1) Objec- ground that I believe such answer might (1) incriminate me, or j'°^^:. (2) will subject me to penalties (or forfeiture), or (3) will nating, &c. materially injure me, apart from the action, in my business. 2. I object to answer the interrogatory, on the (2) Objec- ground that it is irrelevant and not put bond fide for the purpose i^rej *vant. of the action (a). 3. I object to answer the interrogatory, on the (3) As ground that it seeks discovery of the evidence I intend to adduce oppj^^fa at the trial, and of my witnesses' names, and of the manner in evidence, which I intend to prove my case, or that it is a fishing interro- g^j^g gatory. 4. I object to answer the inten-ogatory, on the (^) As pri- ^oimd that the discovery demanded is privileged as relating to relating to my case only, and not tending to prove the plaintiff's {or de- opponent's fendant's) case, and as not impugning my own case. [This last clause need not be used by a defendant.] 5. I object to answer the interrogatory, on the (5) As (a) If the interrogatory be clearly irrelevant, it may be passed over : Church V. Pernj, 36 L. T. (JNT. S.) 513. 2(iO APPENDIX A. seeking ground that tte information demanded is not within my own informa- . i . t i i ^ tion not possession and control, or knowledge. within ^ 6. I object to answer the interrogatory, on the posB°e'ssion ground that I have a right to the possession of the subject or know- matter of this action, and I submit that the plaintiff (or defen- /fii^T dant) is not entitled to ascertain how I acquired the same, that actions being evidence relating exclusively to my own case, and not where in- ^;gjj,jiug to support his casB (a). conflicting 7. I object to answer the interrpgatory, on the titles are ground that it seeks evidence of fraud which the circumstances of set up. ° (7); Fraud. *^^ '^^^^ ^° ^°^ presume, or, which the pleadings do not allege. (8) As 8. In answer to the interrogatory, I say that I seeking ^^ write a letter to A. B. in , but on what exact contents ■ of a date I cannot say. I kept no copy and have no copy of the document g^^^ letter, and I am unable to recollect with exactness what the out of the .,,. AiTji opponent's statements contained therein were. And I further object to control. answer this interrogatory, on the ground that it is irrelevant, inadmissible, and otherwise objectionable, and I submit that I should not be required to set out what the statements in the letter were, unless I could do so with exactness (6). (9) As 9. In answer to the interrogatory, I say that I the"'""^ object to set forth the correspondence between me and A. B. contents respecting , on the ground that the discovery ments to sought for may more conveniently be obtained by means of an be set out application at chambers upon the affidavit of the plaintiffs (or inspection defendants), and, therefore, to avoid expense, I decline to could be answer this interrogatory (c). had. _ Ch; In answer to the interrogatory, I say that I object to state the contents of a written document, on the ground that it is not proved that it does not exist (or on the ground that it is open to the plaintiffs (or defendant's) inspection (d). {a) Of. the cases on p. 87. This is no answer to a defendant's in eject- ment : cf . p. 96 ; nor does the rule apply to a defendant where his case is merely to destroy the plaintiff's without setting up a separate right : cf, p. 92, Finney v. Foricood, L. K. 1 Ex. ; Commissioners of Sewers v. Olasse, L. E. 15 Bq. 202, and p. 92. (J) Dalrymrple v. Leslie, 8 Q. B, D. 5. (c) Hoffman v. PostiU, i Ch. 673. (d) But this being an objection at law it, is not necessary to state it, and the interrogatory may be left unanswered: Smith v. Berg, 25 W. K. 606; 36 L. T. (N. S.) 471. STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 201 10. In answer to the of the said interrogatories, (10) As I say that I am not able to answer it of my own knowledge, and discovery I have no means of information to enable me to do so. beyond the 11. I object to answer the interrogatory, on the knowledge ground that the discovery demanded is privileged as relating to and infor- confidential commimications passing (1) between me and my ., _. ' professional advisers, or (2) between me and A. B., or (3) be- privileged tween my solicitor and A. B., with a view to this litigation, ™ t^^^ and for the purpose of being laid before my said professional sional or , ■ quasi-pro- ativisers. tession^l 12. I object to answer the interrogatory, on the communi- ground that it seeks discovery, which depends on the question ™*'°^^" whether or not , one of the issues to be tried. depending on the ft determi- ' nation of a . question in In answer to the of the said interrogatories, 1 the action submit that the right to the discovery sought thereby depends ™ ^^^ ^^ upon the determination of a question in dispute in this action ; r. 19. that is to say, whether, &c. 13. I object to answer the interrogatory as relating (13) As to information in my possession or power jointly only with A. B., ^e derived not a party to this action, who is [heiv describe the nature of ^romdocTi- A. B.'s ji/int possession], and to whom I have applied for the jo;„t ^^, said information, but who declines (or is unable) to afford me session withanon- the same. party to the action, cf. p. 209, note (o). Objection to Certain Ansivers being used in Evidence. The plaintiffs will object to the defendant using in Objection '■ . , . iT, to certain evidence at the trial of this action the answers to tne answers interrogatories, on the gi-ound that the said interrogatories and being used the matters referred to therein are wholly irrelevant to the ^ence. questions in issue in this action, and relate to matters which are not within the scope of the employment or authority of any officer or servant of the plaintiffs, and to matters which are not within the proper knowledge or information of such officer or servant, and in no way binding on the plaintiffs. 202 APPENDIX A. Order fob Affidavit as to Documents. K.S.C. April, 1880. Schedule. Sum- monses and Orders. Appx, H. 15. In the High Court of Justice, Division. Master in Chamhers. 18 No. Between and plaintiff, defendant. Upon hearing It is ordered that the do, -within days from the date of this order, answer on affidavit stating what documents are or have been in possession or power relating to the matters in question in this action, and that the costs of this application be Dated the day of 18 STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 203 Form of Affidavit as to Documents. In the High Court of Justice, Division. 18 B. No. Between A. B., plaintiff, and C. D., defendant. I, the above-named defendant C. D. make oath and say as follows : — 1. I have in my possession or.power the documents relating to the matters in question ia this suit set forth in the first and second parts of the first schedule hereto. 2. I object to produce the said documents set forth in the second part of the said first schedule hereto. 3. That [here state upon loJiat grounds the ohjection is made, and verify the facts as far as may 6e]. 4. I have had, but have not now, in my possession or power the documents relating to the matter in question in this suit set forth in the second schedule hereto. 5. The last-mentioned documents were last in my possession or power on [state when\. 6. That [here state what has become of the last-mentioned docu- ments, and in wJwse possession they now are]. 7. According to the best of my knowledge, information, and behef, I have not now, and never had, iii my possession, custody, or power, or in the possession, custody, or power of my solicitors or agents, solicitor or agent, or in the possession, custody, or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy or extract from any such docu- ment, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other , Judic. Act, 1875. Schedule of JForms. Appx. B., Form 9. 204 APPENDIX A. than and except the documents set forth in the said first and second schedules hereto. [Here follow schedules.] (e). Sworn, &c. Paragraph I am willing to produce the documents set forth in the "J part of the schedule hereto, hut I say that the said docu- affidavit ments are in constant use in my business and necessary for that thiTth purpose, and I claim, therefore, that they may be ordered to be documenta produced at my place of business (/). may be inspected where they are in daily use. ^fo?* to identify Documents sufficiently in the above Affidavit. When I iiave in my possession or power certain documents marked ments are to inclusive, which are tied up ia a bundle sufficiently marked with the letter , and initialed by me, or [if there be more than one deponent] by the deponent A. B. ; the said documents, &c. [here follotos grounds of objection to prodiic- tion] (g). (e) In spite of this form, with schedules of the documents attached, if the documents are sufficiently described in the affidavit itself, it will stand. See Taylor v. Batten, 4 Q. B. D. 85; Beimcke v. Graham, 7 Q. B. D. 400. See next form. (/) See Orane v. Cooper, 4 M. & C. 263. If the claim be not contained in the affidavit discovering the documents, but be advanced on the hearing of the application for inspection, the party claiming the favour njay have to pay the costs of the further affidavit thereby rendered necessary: cf. Gardner v. Dangerfidd, 5 Beav. 389. (j) Beieicke v. Graham, 7 Q. B. D. 400 STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 205 Form op Affidavit as to Documents, where a Company Objects to Produce Documents. [Heading as in last preceding form.^ I, E. F., on behalf of the above-named plaintiffs (or defen- dants), make oath, and say as follows : — 1. The plaintiEEs {or defendants) have in their possession or power, in addition to the papers in the action, the documents set forth in the first, second, and third schedules hereto. 2. I object", on behalf of the plaiatiffs (or defendants), to Privilege produce the documents set forth in the second schedule hereto, °* ^°°^' ments on the ground that such documents are privileged from produc- passing tion, beiag documents written by, or in answer to, or at the I'etween mstance of, certam of the plaintiffs' (or defendants') officials and solicitors, agents after the alleged loss of the goods, the subiect matter of ^^^ agents ". . . ° o J J previous this action, m anticipation and expectation of the claim for to writ. which this action is brought, and solely for the purpose thereof, and were all and each of them so written, and sent out, and prepared, with the intention of obtaining information for the plaintiffs' {or defendants') board of directors, and with the object that the same might be communicated and submitted by them to the plaintiffs' {or defendants') solicitor, for the purpose of instruct- ing him, and in order to enable him to advise the plaintiffs' {or defendants') board of directors in relation to such claim, and now form part of his instructions in this action. 3. I object, on behalf of the plaintiffs {or defendants), to Privilege produce the documents set forth in the third schedule hereto, on ^g^tg"' the ground that such documents are privileged from production, passing being documents written and sent by, or at the instance of, or in gUentT" answer to communications made by the plaintiffs' {or defendants') solicitors, 20G APPENDIX A. and agents solicitor for his information for the purposes of the claim {or to wrw"™ defence) of this action after writs issued. 4. According to the best of my belief, &c., &c. [see paragraph 7 of last preceding form.] First schedule. Second schedule. Third schedule. Sworn, &c. Another form of objecting paragraph in the affi- davit where the docu- ments required were counsel's and soli- tor's opi- nions, &c., with refer- ence to the subject matter of the action, though written before writ issued. I object, on behalf of the said company, to produce the docu- ments set forth in the part of the schedule, upon the. ground that as to some of such documents they are privileged from production by the said company, as being the legal advice and opinion of the solicitors acting for and on behalf of the said company and of A. B. (as and being the person who contracted on behalf of the same company) (h). {h) Mostyn v. West Mostyn Coal and Iron Co., 34 L. T. (N. S.) 531. STATUTORY AND OTHEK FORMS IN THE SUPERIOR COURTS. 207 Form of Affidavit of Privilege of Shorthand Notes taken IN A Trial by one of the Parties to Serve his Case IN A Second Action (i). [Usual Heading.] 1. I have in the possession of my solicitor a transcript and several prints of shorthand writer's notes of the evidence, speeches, and summing up on the trial of the issue of fact, di- rected by the [judge] to be used in the action A. B. v. C. D., 1881 (in which action I am the plaintiff or defendant), relating to the queston of the question, &c., &c. 2. The said shorthand notes were taken, transcribed, and printed (at my sole expense) after the commencement of this action, for the purpose, amongst others, ol my case in this action. 3. I claim that the said shorthand notes are privileged from inspection, in the same manner as notes taken by an advocate or a suitor are. M^oreover, the said notes are not documents relating to the matters in question in this action. Sworn, &c. (i) Nordon v. Defnes, 8 Q. B. D. 508. 208 APPENDIX A. Forms of Paragraphs in Affidavits op Documents where there abe various grounds of objection to the pro- DUCTION FOB Inspection. Quasi- profes- sional privilege. (1) Objec- tion on ground of communi- cations being between client, at his soli- citor's instance, and third party, with a view to litigation. (2) Objec- tion on ground of communi- cations being between solicitor and third party with a view to litigation. (3) Objec- tion on ground of communi- cations being be- tween client and a third party at the dienfs own in- stance, for the purpose of being laid before hie solicitor with a view to litiga- tion. 1. I object to produce the documents set forth in the schedule (or in the part of the schedide), on the ground that they are communications written at the instance and for the use of the solicitor of the plaintiff (or defendant), for the purpose of the legal proceedings in this action, and of giving advice to the plaintiff {or defendant) with reference to the same («'). 2. I object to produce the docviments, &c. [as above] on the ground that such letters, which are there stated to have been written and sent by A. B., the (third party), to my said solicitor, were written and sent by the said A. B. for the confidential and private informa- tion of my said solicitor, and were accordingly so marked by the said A. B. (as I am informed and believe) previously to their having been received by my said solicitor, and with a view to the institution of proceedings against the plaintiff {or defendant) (k). 3. I object to produce the documents, &c. [as above], on the ground that they are letters passing between {or communications made by) the said A. B., the {third party), and myself {or a transcript of shorthand writer's notes of conversations or interviews passing between the said A. B., , and myself, and prepared), for the purpose of being laid before my solicitor for obtaining his advice, and with a view to this litigation {I). (i) Friend v. L. 0. & D. Ry. Co., 2 Ex. D. 4.37 ; 46 L. J. Ex. 696 ; 36 L. T. 729; 25W. E. 735. (*) M'Corquodale v.BeU, 1 C. P. D. 471 ; 45 L. J. C. P. 329 ; 36 L. T. (N. S.) 261 ; 24 W. K. 309 ; Maqfarlcme v. Rolt, 14 Eq. 580. And where third party was the defendant's agent, see The Original Hartlepool Collieries Co. V. Moon, 30 L. T. (N. S.) 193, 585. (Z) See Beid v. Langlois, 1 Mac. & G. 627 ; and wheru a company is resisting the inspection, see Southwark and Vaitxhall Water Co. v. Quick, 3 Q. B. D. 315. STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 209 4. I object to produce the documents in, &c. [as above], on (f) Profes the ground that the same were communications passing between vilege. me (or A. B. acting on my behalf) and my solicitor with Objection reference to matters which are now a question in this cause ; communi- and that the same are all confidential communications as cations between solicitor and client (m). solicitor and client witli refer- ence to the action. 5. I object to produce the documents, &c. [as above], on (5) Objec- the ground that they arc the muniment of my title to the documents , and do not, to the best of my knowledge, informa- relate to tion, and belief, contain anything [tending to impeach my case (n)] or material to that of the defendant and tending to support it (o). 6. I object to produce the documents, &c. [as above], on the (6) Objec- ground of their being in my possession or power jointly with jv^gyg jg the said A. B., as above stated [the clause in this affidavit i"i"t po»- admitting the possession of documents states the nature of the y^^^y^ ^ joint possession with A. B.], such documents being (p). third party not a party to the action. I say that there are in the joint possession of myself and Common A. B. the documents relating to the {or some of the) matters in gtg,y„„ question in the action which are set forth in the schedule privilege of hereto. The nature of such joint possession and the interest of g°™ion™' the said A. B. in the said documents is as follows : — [Here state nature of joint possession.] Under the above circumstances, I object to produce the same. (m) Macfarlane v. Rolt, 14 Eq. 580. (n) This clause only applies where discovery is sought from a plaintifE whose title is merely denied by the defendant ; the defendant need never swear that the privileged documents do not weaken his case ; cf. pp. 92 — 94. (o) MiriM V. Morgan, 8 Ch. 361. (p) Kearsley v. PKaip and Another, W. N. 1882, 149 ; 10 Q. B. D. 36, following Murray v. Walter, Or. & Ph. 114, and Reid v. Lamgloia, 1 Mac. & Gr. 627. In answers to Interrogatories the old rule applies : Bm-ill v. Cowan, 5 L. R. Ch. 495, where it was held that the nature of the joint possession, the inability to produce, and the refusal of the consent of the third party, must be stated in the affidavit ; cf. Bewicl-e v. Graham, 7 Q. B. D. 40C. P 210 APPENDIX A. Objection J gay that the documents, &c., specified in the schedule ments are hereto, relating to the {or some of the) matters in question in this in the pos- action are in the possession or power of A. B. as \liere state an agent, whether as agent or otherwise\ on behalf of myself and , &c., on be- jjot a party {or parties) to this action, and I deny that the same plaintiff (or are in the possession, custody, or power of myself, and A. B. as defendant) gugh as aforesaid refuses to produce the same, and I not parties therefore object, and am in fact unable, to produce the same (a), to the ac- tion. Objection I say that there are in my possession or power, 'but also in documents *^® power of A. B., under the circumstances below stated, the though the documents relating to the {or some of the) matters in question in a'cUil^fi this action which are mentioned in the schedule hereto, (or defend- [Here state the fact of the deponent and A. B. being formerly in still re™' pc-i'^i^i''^^W ; of A. B. retiring from it ; and of the documents maininthe s^t'ZZ remaining in his power, though the property of the firm.'] fate part- ^ Under the above circumstances, I deny that the said docu- ner. ments are solely in my possession or power, but I therefore object, and am in fact unable, to produce the same (6). (7) Objec- 7. I object to produce the documents, &c. [as above], do^ments °^ *^® ground that they relate solely to the case of the relate to plaintiff {nr defendant), and not to the case of the defendant only'of'the ('"' plaiitifl)> "^^'^ ^° they tend to support it [and they do not to party for the best of my knowledge, information and belief, contain any- jurU^ic- ^ tli™g impeaching my own case (c)], and are therefore privileged tion is from production. required. (8) Objec- 8. I object to produce the documents, &c. \as above], on the *n"p^rt^® ground that they relate to the evidence of my right to the isin posses- possession of the subject matter of this action to which the perty and" Plaintiff {or defendant) claims an independent title. the other raises an („) gee Murray v. Walter, C. & P. 114. ^nt^ad- ^*^ *-'*• ^^ ^' ^""S'^ 1 M. & G. 627, and more especially Kearsky v. verse title; Philips, 10 Q. B. D. 36. cf. sxipra, (c) See note (»), p. 209. p. 87. STATtrrORY AND OTHER FORMS IN THE SUPERIOR COURTS. 211 Order to Produce Documents for Inspection. In the High Court of Justice, Division. No Master in Chambers. Between and , plaintiff, , defendant. R. S. C. April 1880, Schedule. Sum- monses and Orders. Appx. H. 16. Upon hearing and npon reading the affidavit of , filed the day of , 18 , and It is ordered that the do, at all seasonable times, on reasonable notice, produce at the office of , solicitor, situate at , the following documents, namely, , and that the be at liberty to inspect and peruse the documents so produced, and to take copies* and abstracts thereof, and extracts therefrom, at expense, and that in the meantime all further proceedings be stayed, and that the costs of this application be As to Dated the day of 18 copies on whlcb soli- citor has a lien, see PraM V. Pratt, W. N. 1882, p. 117. p 2 212 APPENDIX A. Order for Production (Undkrwriter). E. S. 0. In the High Court of Justice, fcfflf Division. Sum- monses and Master in Chambers. Orders. Appx. H. Between , plaintiff, and , defendant. 17. Upon hearing , filed the , and upon reading the affidavit of day of , 18 , and It is ordered that the do produce and show to the upon oath all insurance slips, policies, letters of instruction, or ofeer orders for eflfecting such slips or policies, 6r relating to the insurance or' the subject matter of the in- surance on the ship , or the cargo on board thereof, or the freight thereby, and also all documents relating to the sailing or alleged loss of the said ship , the cargo on board thereof, and the freight thereby, and all letters and correspondence with any person or persons in any manner relat- ing to the effecting the insurance on the said ship, the cargo on board thereof, or the freight thereby, or any other insurance whatsoever effected cai the said ship, or the cargo on hoard thereof, or the freight thereby on the voyage insured by, or relating to the policy sued upon in this action, or any other policy whatsoever effected on the said ship, or the cargo on board thereof, or the freight thereby on the same voyage. Also all correspondence between the captain or agent of the vessel and any other person, with the owner or any person or persons previous to the commencement of or during the voyage upon which the alleged loss happened. Also all protests, surveys, log books, charter-parties, tradesmen's bills for repairs, average statements, letters, invoices, bills of parcels, bills of lading, manifests, accounts, accounts-current accounts-sales, bills of exchange, receipts, vouchers, books, documents, corre- STATUTOBY AND OTHER FORMS IN THE SUPERIOR COURTS. 213 spondence papers, and writings (whether originals, duplicates, or copies, respectively), which are now in the custody, possession, or power, of the , his brokers, solicitors, or agents, in any way relating or referring to the matters in question in this action, with liberty for the to inspect and take copies of or extracts from the same or any of them, and that in the meantime all further proceedings be stayed, and the costs of this application be Dated the day of , 18 . 214 APPENDIX A. FoBM OF Notice to Peoduci! Documents. Jud. Act, In the High Court of Justice, Icheduleof Q- ^- I»ivi«i0"- Forms. APP''- ^M . A. B. V, C. D. Form 10. Take notice that the [plainfiff or defendant'] requires you to produce for his inspection the following documents referred to in your statement of claim {or defence, or affidavit), dated the day of , A.D. {Describe documents required."] X. Y., Solicitor to the ToZ., Solicitor for STATUTORY AND OTHEK FORMS IN THE SUPERIOR COURTS. 215 Form of Notice to Admit Documents. Supreme Court. This form is similar to that set out infra, under the C. L. P. Form of Act, 1852, with the necessary alteration in the heading, and of admit " attorney " to "solicitor." docu- For other forms relating to admission of documents, see C. F., llthed., pp. 257—262. Form of Notice to Produce Documents at the Trial. In the High Court of Justice, Form o£ Division. ''°*««' "> produce Between , plaintiff, documents and ''""'*I- , defendant. Take notice, that you are hereby required to produce and show to the Court on the trial of this action all books, papers, letters, copies of letters, and other writings and documents in your custody, possession, or power, containing any entry, memorandum, or minute relating to the matters in question in this action, and particularly Dated the day of , 18 . (Signed) , of , agent for , Solicitor for the above-named. To the above-named , solicitor {or agent). For form of affidavit of the service of the notice to produce documents, see C. F. 264. 216 APPENDIX A. EoRM OF Notice to Inspect Documents. Jud. Act, In the High Court of Justice, Schekufe Q- E- Division, of i^orms. ^PV^- £•■. A. B. V. C. D. Form H. Take notice that you can inspect the documents mentioned in your notice of the day of , a.d.- [except the deed nnmh&i-ed in that notice^ at my office on Thursday next, the instant, between the hours of 12 and 4 o'clock. Or, that the [plaintiff or defendant] objects to giving you inspection of the documents mentioned in your notice of the day of , A.D , on the ground that [state the ground]. STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 217 Form of Order under Order XVI., rule 10. lu tlie High Court of Justice, R. s. C. Division. AP-jl. -. r • ,-.1 1 Appx. H., Master in Lnambers. No. 9. Between A. B., plaintiff, and C. D., defendant. Upon hearing > and upon reading the affidavit of , filed the day of , 18 , and It is ordered that the furnish the with a statement in writing, verified by affidavit, setting forth the names of the persons constituting the members or co- partners of their firm, pursuant to the rules of the Supreme Court, Order XVI., rule 10, and that the costs of this appli- iation be Dated the day of , 18 . 218 . APPENDIX A. FoEM OP Intbrrogatoeibs in Chief on Commission in an Action against Shipowners by Cargo Ownbrs. Interrogatories to be administered to witnesses to be produced and sworn and examined at , on behalf of the plaintiffs in an action pending in Her Majesty's High Court of Justice, Division, at the suit of , against the said defendants, before , commissioner, named by and on behalf of the above-mentioned plaintiffs and defendants respectively, pursuant to an order issued out of the said Court, dated the day of 1. What is your name and address, your trade, business, pro-, fession and occupation, and when and for how long have you been engaged in or carried on the same 1 2. Do you remember the ship or vessel called the being at ai any time, and when in the yearf State what you know of the circumstances under which she put into 3. Had you any opportunity of examining the said vessel and ascertainiiig her condition 1 If yea, state at what time or times you examined her, and what was her condition at the time of such examination. 4. Did you see and examine the cargo of rice which the vessel had on board? What was its condition and cause of such condition 2 5. Did you, either alone or in company with any and what other person or persons, make any and what examination or surveys of the said vessel after she had put back into , or her cargo, and when and where and on whose behalf 1 [Hei-e follow special itdeirogaiories,] Tlie last three Interrogatories. In case you have spoken in your evidence of any documents relating to the matter on which you have been interrogated, pro- duce the originals of all original documents in your possession, and true copies of all of which you have only copies, stating in STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 219 whose power or possession the originals, to the best of your knowledge or belief, were or are, and let such originals or copies be identified by the commissioner and annexed to your deposi- tions, and returned as part thereof; and in case you do not produce such documents or copies, state why you do not produce the same, and state the contents thereof fully and at large, to the best of your knowledge, recollection and belief. In case you have referred to any book of accounts, or other books kept in your business, in answer to any of the matters as to which you have been interrogated, produce the originals of such books and let extracts be made of such portions as you may have referred to, and let the same be verified by the com- missioner and annexed to your depositions. Lastly. Do you know of any other matter or thing touching the question in the cause that may tend to the benefit or advan- fa^ of the plaintifEs besides those about which you have been interrogated? Declare the same fully and at large, and all particulars relating thereto, to the best of your knowledge, as if you had been particularly interrogated with respect thereto. 220^ APPENDIX A. Interrogatories for Examination in Chief on Commission OF Witnesses for Plaintiffs, who allege Fraudulent Obtaining of Bills of Lading owing to Mistaken Transmission of them by their Shippers to parties Trading under a False Name. 1. What is your name, AcJ 2. Were or were not the plaintiffs, in the months of May, June and July, or at any and what time, the owners of 63 bales of wool marked C. H. 1/63? If yea, state when and under what circumstances they became such owners, and what was the value of the said wool. 3. Did or did not the plaintiffs have any and what correspon- dence on any and what dates in 1878 with respect to the said goods with any person or persons under the name of ? If yea, produce the originals of all letters or telegrams that passed, and if you cannot, state why you cannot and produce copies thereof, and let such originals or copies be verified by the commissioners and retained with the depositions. 4. State fully and in detail under what circumstances the said correspondence was entered into, and whether or not the plaintiffs had at the time of the said correspondence any and what belief as to the person or firm with whom they were corre- sponding, and as to his or their position and existence, and whether or not the plaintiffs wrote and sent their letters and telegrams under such belief, and whether or not their belief was based on any and what grounds, and whether or not they were led to correspond with such person or firm by any and what means. 5. State whether or not the plaintiffs were misled in any and what respects with regard to their said correspondents on the said wooL 6. Was or was not the said parcel of wool shipped from Lisbon to London on any and what terms and on any and what date by any and what person or persons t State fully and in detail how the same came to be shipped, and what instructions were given by and to whom with respect to their shipment. STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 221 7. Were any and what bills of lading made out by any and what person or persons in respect of the said wool? If yea, produce the originals, &c. 8. Was or was not any and which of the said bills of lading sent by Messrs. or any and what other person or persons to England 1 If yea, state when and how the same was sent, and to whom the same was addressed, and how and under what circumstances the same came to be addressed. 9. Had or had not Messrs. or any other and what person or persons any and what authority from the plain- tiffs to forward the said bill of lading 1 What was done with any other and what copies of the biU or bUls of lading. 10. Have the plaintiffs received any and what deposit or payment from any and what person or persons in respect of the said wool ? [Hwe follow the last three Biten'ogcdories, as above]. ?22 APPENDIX A. Intbrbogatobies fob Cross-examination on Commission. Cross Interrogatories to be administered to witnesses to be produced and sworn and examined at , in , on behalf of W. M., the defendant in an action pending in , at the suit of N. 0., against the said W. M., pur- suant to a commission, &e. [See heading of Interrogatories for Examination in Chief on Gommission, p. 218]. 1. In reference to any statement of fact you may have made in your answer to your interrogatories in chief or to the rfivd voce questions put to you, go through your said answers and state in respect of such in what way you have become acquainted with such matters of fact, and whether you have made any and which of your answers from information given you by any and what person or persons, and if so when and where and under what circumstances you obtained such information. 2. In reference to any answer you may have given founded on your judgment or knowledge of the subject matter referred to in the question, state what has been your acquaintance with the subject and from whom you have acquired your knowledge, and how you have obtained your experience thereon. 3. In reference to any answer you may have given founded on any memoranda or entry or document, state by whom the same was made and when and how the same has come into your possession, and whether or not the same was an original or a copy, and if a copy what has become of the original, and when last, if at all, you saw the original, and by whom and when the copy was made. 4. In reference to any answer you may have given with respect to the subject matter of which you may have made any note or memorandum at the time, produce the same and let them be annexed to your depositions. [Here follow special interrogatories.] Lastly. Do you know of any other matter or thing touching the matters in question that may tend to the benefit and advant- age of the plaintiffs besides what you have spoken of in cross- STATUTORY AND OTHER FORMS IN THE SUPERIOR COURTS. 223 examination'! Declare the same fully and at large and all eircnmstances and particulars relating thereto as if you had been particularly interrogated thereon, and if you have notices, protests, advertisements, letters, and other documents, and any evidence relating to the said matters, annex the same to your depositions and refer to the same, and make such explanations as may he necessary to make them intelligible. 224 APPENDIX A. Inteerogatoribs for the Examination op a Widow with REGARD to Goods Sold and Delivered to her when it is uncertain IP she was Married or Single (r) at the Date op the Sale, and whether or not at such DATE she had Property Settled to her Separate Use. 1. Were you a single woman between the months of and , hoth inclusive, or during any and what portion of that time? If you were married before or during that period or since, state upon what date, and to whom you were ■married. 2. Where did you live during the said period ? And state whether or not you resided during any and what portion of that period with your husband. State also whether or not you resided separately from your husband at any and what place during any and what portion of the said period. 3. [Interrogatory on the itejns of the claim.] 4. Did not the plaintiff, or his said firm, inform you that you were to be charged interest on some and what sums. 5. Had you in or during that period or any and what portion thereof, and whether or not, at the commencement of this action, and whether or not now, any and what property settled to your separate use ? If yea, state precisely of what the same consisted and now consists, and in whom the same is vested, and how and by what instrument, will, or deed, the same was settled, or how otherwise you became entitled thereto ? 6. Was any and what settlement made on your marriage, or afterwards, by any and what deed or other documenf! Identify the same by a sufficient description, and state where and in whose custody the same now is, and whether you have a copy thereof in your possession, power, and control. 7. Had you any means of paying for the goods the subject (r) The New Married Women's Property Act will not dispense with the necessity on the part of the creditor of ascertaining whether a married woman has separate estate whereby to pledge her credit. STATLTTOIIY A>^D OTHKR FOHMS IN' THE SUPERIOR COURTS. 225 of this action except from j-our sepiiratu property, or some and what portion thereof. 8. How anil from what source did you intend that the plaintiff or his iirm should be paid for the goods supplied by them. 9. Had your husband any and what means to pay for the goods supplied by the plaintiffs'! Had you any and what allowance from your husband at any and what time 1 Had you any authority from him to order any and which of the goods supplied by the plaintiff. 226 APPENDIX A. Forms op Orders fob Particulars. (!•) E. S. C. In the High Court of Justice, April 1880. Appx. H., No. 10. (1) General form of order. 18 No. Division. Master in Chambers. Between , plaintiff and , defendant. Upon hearing and upon reading the affidavit of , filed the day of , 18 , and It is ordered that the plaintiff deliver to the defendant an account in writing of the particulars of the plaintiff's claim in this action, and that unless such particulars be delivered within days from the date of this order, all further proceedings be stayed until the delivery thereof, and that the costs of this application be Dated the day of , 18 . (11.) \^Heading as in last preceding fonn.] Appx. H. Upon hearing and upon reading the affidavit of jj g (-. , filed the day of , 18 , and April 1880. It is ordered that the plaintiff deliver to the defendant an accide™ "* account in writing of the particulars of the injuries and expenses o^B. mentioned in the statement of claim, together with the time and place of the accident, number of the , and the particular acts of negligence complained of, and that unless such particulars be delivered within days from the date of this order, all further proceedings in this action be stayed until the delivery thereof, and that the costs of this application be Dated the day of ,18. STATUTORY AND OTHKK FORMS I\ THE SUPERIOR COURTS. 227 Form op Pautrulars (/). Tlie following are the particulars of tlic vopudiiition and of the exoneration referred to in the paragi-aph of tha plaintiff's {<»■ the defendant's) statement of claim (or statement of defence), and the particulars, with dates and items of the loss of the profits and of the goods (other than those alleged to have been of an inferior kind and description) alleged to have been pur- chased by the plaintiffs, the price per yard, and the date of purchase, with the expense incurred, delivered pursuant to the order herein, dated the , of the repudiation and exoneration [set out details]. ITie plaintiffs (or defendants) will also rely on the letters written by the defendants (or the plaintiffs) to the plaintiffs (oi- the defendants), dated the [set out dates], of the loss of profits, &c., &c. (t) It has been thought convenient to include these forms as, though Particulars are not discovery on oath or supplementary thereto, and exist to limit the generality of the pleadings [of which in the Mayor's and County Courts they still always form part], yet they are often resorted to to enable a party to know what case he has to meet : Saunders v. Jones, 7 Ch. D. 435. They are only allowed in Chancery when the action partakes of a common law character : Augustinus v. Nerinck, 16 Ch. D,, at p. 16 ; Harlord v. Monk, 38 L. T. (N. S.) 411. Interrogatories will, however, be allowed to afford the same discovery : Blunt, in re, Burrett v. Burreit, W. N. 1880, 193; Beribow v. Low, 16 Ch. D., at p. 98; but they will not be permitted to fish for matter necessary for particulars ordered : Gourley v. PlimsoU, L. R. 8 C. P. 362. [Libel particulars of justification]. The application for them is by summons (C. F., 209, 211) ; and they will not, it would appear, except under special circumstances, be allowed after statement of defence : cf. Ch. Pr. III., p. 612 ; and they may be ordered to a defendant before delivery of the statement of claim : Barker v. Wood, W. N. 1876, 56, in the discretion of the judge : Jioss v. Gibbs, W. N. 1878, 238, and before appearance [R. H. 2 Will. IV., r. 47]. An aifidavit in support is discretionary, but will generally be required in actions of tort, or where their necessity is not self-evident. They are now used in the Admiralty Court : The Rory, 7 P. D. 120. Q 2 228 APPENDIX B. APPENDIX B. STATUTORY FORMS IN THE COUNTY COURTS. General Foem of Heading and Conclusion op Orders. Consoli- No. of plaint. dated jjj^ ^.j^g County Court of , holden at C'ounty ■' Orders and ^ \ •/ ^^g"^l^^' Between A. B., plaintiff, Schedule and "^ *"''"™«' a D., defendant. The day of , 18 . By the Court. , Registrar of the Court. STATLTTOKV FORJVIS IN THE COUNTY COUKTS. 229 IXTEIJROGAXOUIES AfI'IDAVIT. No. of plaint. Consoli (»•) In the County Coiu-t of , lioklen at . i^^^\ County- Bet ween A. B., plaintiff, ST' i '^ ' Orders and and Rules, C. D., defendant. 1875. Schedule We, A. B., of , the above-named "^ -Forms, plaintiff (o;- defendant) and L. M.,of , solicitor in this cause for the said plaintiff (or defendant), make oath, and say, liret. And 1, the said A. B., for myself, say — 1. That, I believe that I shall derive material benefit in this cause from the discovery -which I seek by the interrogatories which I require to be delivered herein. 2. That, I believe that I have a good cause of (ur defence to tliis) action on the merits. And I, the said A. B.,* say, — ♦ ,si<;. 3. That the plaintiff (or defendant) will derive material benefit ^'"^^ .^ by the discovery which he seeks by inten-ogatories. meant. 4. That, I believe that the plaintiff (or defendant) has a good cause of (w defence to this) action on the merits. (*•) >Sworn at , in the ^ County of , this day of , One thousand eight hundred and I , before me j (») For general form of heading and conclusion of affidavits, see Schedule to Orders, &c., 1875, form 3. 230 APPENDIX B. Order for Interrogatories. Consoli- dated County Court Orders and Kules, 1875.. Schedule of Forms, 285. [The heading is in the general foi'm.] Upon reading the affidavit of , I do order tliat the be at liberty to deliver to the or his solicitor, on or before the day of ,18, interro- gatories in writing upon the matters as to which discovery is sought in this action, and that the do, on or before the day of , 18 , answer the questions in writing by affidavit, and return such answers to me for tiling. Dated this day of , Eegistrar or Judge. STATUTORY FOUMS IN THE COUNTY COURTS. 231 Order for an Oral Exajiination. \TlLe heading and conclusion are in the general form.'\ Consoli- dated Upon hearing the parties, then- attorneys or agents (w counsel) p"""*^ on both sides, I do order that the plaintiff {or defendant) do Orders and attend before the Eegistrar of this Court at on ^^}T' the day of , 18 , at o'clock in the . Schedule noon, to be by him orally examined as to the- points mentioned of Fonnsi, in the paper writing hereunto annexed, the plaintiff's {or die'- fendant's) answers to the interrogatories delivered to him in this action being insufficient in such points. [Add where any docu- ments are to he produced : And I do further order that the plaintiff {or defendant) do produce to the said Eegistrar- at the same time and place the following documents- [here- describe them shortly].^ I further order that the costs of the examination, and of the proceedings herein, as may be taxed by the Eegistrar, shalii be paid by , [or shall abide the event, w as othenaise ordered]. 232 APPENDIX B. Affidavit for Discovery. Consoli- dated County Court Orders and Rules, 1875. Schedule of Forms, 54. [The headiwj and coiidiisiun to this form are similar to fli'd of the form of Inten-of/nforiet! Apidavif. See ante, p. 229]. I, A, B., the above-named plaintiff (or defendant) make oath and say as follows: [Here set otd In x>aragraphs the documents, and that the deponent is advised and believes that it is "naterud and necessary for him, in order to support his claim upon the trial, to have such documents produced to him, and t/ud he will derire material advantage and support from their in-odaction, and that he is advised and believes that he is entithid to their jn'oduction, and that he believes that the said documents are in the 2Mssession or poioer of the defendant^ STATUTOKY FOKMS IN THE COUNTY COURTS. 2:i:i Order for Discovery. [The heading and conclimon to this order iire in tlia (jtntcnd form. Consoli- See ante, p. 229.1 ' ' ^'^^\ ' ^ -■ County Upon reading an affidavit by tlie plaintiff {or defendant), a Orders anl copy of which is annexed marked A., I do order that the plaintiff Ruj^s. {or defendant) do within days answer an affidavit, Schedule stating what documents he has in his possession or power re- "^ ^o""^' lating to the matters in dispute in this canse, and what he knows as to the custody they or any or either of them are in, and whether he objects, and if so, on what grounds, to the pro- duction of such as are in his possession or power. And I further order, that the costs of this application and of the discovery shall be costs in the cause. 234 APPENDIX B. Affidavit in Obedience to Obder for Discovery, [The heading and conclusion will he the same as in preceding forms of affidavits.] ,of (or defendant), make oath and say : — the above-named plaintiflf 56, Consoli- dated County Court Orders and h Kules, Schedule 1- That the documents hereinafter set forth are, to the of Forms, -[jgg^ pf my knowledge and belief, the only documents, in my possession or power relating to the matters in dispute in this action, and the same are in my possession, viz.: — A letter from to , dated An agreement purporting to be between E. F. and G. H., dated 2. I do not object to the production of the said documents. Or any, or either of them. (Or, I object to the production of the said documents [or if not to all, hut to some of them, state w]iich\ on the following grounds; that is to say [here state the grounds of ohjection].) STATUTORY FOKMS IN THE' COUNTY COUKTS. 235 XoTicE OF Application for further Ordee for Production. Xo. of Plaint. Ccnsoli- («) Li the County Court of , hoklen at . ^**^^j [Where sent or issued by Court. Seed.] 0Tdlls3.nd Between A. B., plaintiif, f^^^^' and Schedule C. D., defendant. 287!""™'' Let all parties concerned attend at on , the day of , at o'clock in the forenoor, on the hearing of an application on the part of , to consider the objection made by the affidavit of the , filed the day of , pursuant to the order dated the day of , to produce the document set forth in the second part of the first schedule hereto [or an the case may bp\ Dated this day of , Eegistrar. To the Plaintiff and Defendant. (u) For form of heading to notices, see Rules, 1875, Schedule of Forms, Form I. 236 APPENDIX B. Order for Production op Documents. Consoli- \The heading and coiidtmion of this form are in the general form. ctnty ^ee ante, p. 229.] Orders and Wliereas , of , was duly sunimoiied Rules, under a summons of this Court dated the day of • Schedule to produce at the trial of this action upon this day of 9«r''"^'"^' ^^^ following papers and documents : — [Here set out documents contained in summons.] And whereas the said summons was duly served upon the said upon the day of : And whereas the said has failed to produce the said documents above set out, or any or either of them (or has failed to produce the following document , being of the documents above set out) : And whereas it has been proved to the satisfaction of this Court that the documents above set out {or the following docu- ments , being of the documents above set out) are in the possession, power, or control of the said , and that they relate to the matters in dispute in this action : It is ordered that the said do on or before the day of i^roduce and leave with the Registrar of this Court, at his office situate at , the said following documents ; namely, STATUTORY FORMS IN THE COUXTY COURTS. 237 XoTicE TO Admit and Ixspect Docdments. Tiike notice, tliat the plaintiff (oj' defendant) in this cause pro- Form of poses to adduce in evidence the se\-eral documents hereunder "^'''^f *", * _ ^ autuit and specified, and that the same may be inspected by the defendant inspect {or plaintiff), his solicitor or agent, at on , *_ the day of 187 , between the hours of and , and the defendant {or plaintiff) is hereby required within forty-eight hours from the last-mentioned hour to admit, saving all just exceptions to the admissibility of all such docu- ment as evidence in this cause, that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been, that such as are specified as copies are true copies, and that such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered, respectively. Dated this day of To E. F., solicitor for defen- G. H. of , solicitor dant {or plaintiff). for plaintiff {or defendant). Originals. Description of Documents. Deed of Covenant between A. B. of the first part, and C. D. of the second part ... Letter — Defendant to Plaintiff Date. 1 Jan. 1848. 1 March, 1848. Copies. Description of Documents. Kegister of Baptism of A. B. in the parish of X 1 Jan. 1848. I^ctter— Plaintiff to Defendant.;! Feb. 1848. Original or Duplicate served, sent, or deli- vered, when, how, and by whom. ( Sent by General . Post, Feb. 2, ( 1848. 238 APPENDIX C. APPENDIX C. Sec. 6. Common law courts may order inspection &c., of documents whenever a court of equity W»>uld grant discovery. ACTS, RULES, AND ORDERS. An Act to amend the Law op Evidence. 14 & 15 Vict. c. 99. 6. Whenever any action or other legal proceeding shall hence- forth be pending in any of the superior courts of common law at Westminster or Dublin, or the Court of Common Pleas for the county palatine of Lancaster, or the Court of Pleas for the county of Durham, such Court and each of the judges tliereof may respectively, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding, and, if necessary, to take ex- amined copies of the same, or to procure the same to be duly stamped, in all cases in which, previous to the passing of this Act, a discovery might have been obtained by filing a bill, or by any other proceeding in a Coui^t of Equity at the instance of the party so making application as aforesaid to the said Court or judge. Sec. 10. Bills of complaint shall con- tain con- cise narra- tives of material facts, &c., An Act to amend the Practice and Course of Proceeding IN THE High Court of Chancery. 15 & 16 Vict. c. 86. 10. Every biU of complaint to be filed in the said Court, after the time hereinafter appointed for the commencement of this Act, shall contain as concisely as may be a narrative of the material facts, matters, and circumstances on which the plaintiff relies, such narrative being divided into paragraphs, numbered consecutively, and each paragraph containing, as nearly as may ACTS, RULES, AND ORDERS. 239 be, a separate and distinct statement or allegation, and shall pray divided specifically for the relief which the plaintiff may conceive b'fredpSa- himself entitled to, and also for general relief ; but such bill of g™phs, but complaint shall not contain any interrogatories for the examina- contain in- tion of the defendant. terroga- tories. 12. Within a time to be limited by a general order of the See. 12. Lord Chancellor in that behalf, the plaintiff, in any suit in the Jorie^tf be said Court commenced by bill, may, if he requires an answer filed in from any defendant thereto, file in the Eecord Office of the said office by Court interrogatories for the examination of the defendant or plaintiff defendants, or such of them from whom he shall require an H^e'prr- answer, and deliver to the defendant or defendants so required scribed, to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall be applicable to the particular defen- dant or defendants ; and no defendant shall be called upon or required to put in any answer to a bill unless interrogatories shall have been so filed, and a copy thereof deKvered to him or his solicitor, within the time so to be limited, or within such further time as the Court shall think fit to direct. 14. The answer of the defendant to any bill of complaint in Sec. 14. the said Court may contain not only the answer of the defendant ant's to the interrogatories so filed as aforesaid, but such statements answer material to the case as the defendant may think it necessary or tain not advisable to set forth therein, and such answer shall also be °°ly ,..,,. , ,, ., 1 , answer to divided into paragraphs, numbered consecutively, each paragraph interroga- coutaining as nearly as may be a separate and distinct statement tones, but ? ■' ^ ^ statements or allegation. material to his case, 18. It shall be lawful for the Court, upon the application of g^^ jg the plaintiff in any suit in the said Court, whether commenced Court may by bill or by claim, and as to a suit commenced by bill, whether fg„^ant^to the defendant may or may not have been required to answer the produce bill, or may or may not have been interrogated as- to the posses- q"""^^." * sion of documents, to make an order for the production by any defendant, upon oath, of such of the documents in his possession or power relating to matters in question in the suit as the Court shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear just. 240 APPENDIX C. Sec. 19. 19, It shall te lawful for any defendant in any suit, whether ant may commenced by bill or by claim, but in suits commenced by bill file concise which the defendant is required to answer, not until after he and inter- shall have put in a sufficient answer to the bill, and without rogatories filing any cross-bill of discovery, to file in the Eeoord Office of the nation of Said Court interrogatories for the examination of the plaintiff, to plaintiff, which shall be prefixed a concise statement of the subjects on which a discovery is sought, and to deliver a copy of such inter- rogatories to the plaintiff or his solicitor ; and such plaintiff shall be bound to answer such interrogatories in like manner as if the same had been contained in a bill of discovery filed by the de- fendant against him on the day when such inten-ogatories shall have been filed, and as if the defendant to such bill of discovery had on the same day duly appeared ; and the practice of the Court with reference to excepting to answers for insufficiency, or for scandal, shall extend and be applicable to answers put in to such interrogatories : Provided that in determining the mate- riality or relevancy of any such answer, or of any exception thereto, the Court is to have regard, in suits commenced by bill, to the statements contained in the original bill, and in the answer which may have been put in thereto by the defendant exhibiting such interrogatories for the examination of the plain- tiff, and, in suit commenced by claim, to the statements therein, and in any affidavit which may have been filed either in support thereof or in opposition thereto : Pruvided also, that a defendant, if he shall think fit so to do, may exhibit a cross-bill of discovery against tlie plaintiff, instead of filing interrogatories for liis examination. Sec. 20. 20. It shall be lawful for the Court, upon the application of oiSer ™*^ ^"y defendant in any suit, whether commenced by bill or by plaintiff to claim, but as to suits commenced by bill where the defendant is documents ''^quired to answer the plaintiff's bill, not until after he has put in on oath, a full and sufficient answer to the bill, unless the Court shall make any order to the contrary, to make an order for the production. by the plaintiff in such suit, on oath, of such of the documents in his possession or power relating to the matters in question in the suit as the Court shall think right ; and the Court may deal with such documents, when produced, in such manner as shall appear just. acts, rules, axd okders. 241 The Common Law Peocedure Act, 1852. 15 & 16 Vict. c. 76. 55. It shall not be necessary to make profevt of any deed or Sec. 55. other document mentioned or relied on in any pleading ; and if ^^'^ ^ profert shall be made, it shall not entitle the opposite party to abolished, crave oyer of or set out upon oyer such deed or other document. 56. A party pleading in answer to any pleading in which any Sec. 56. document is mentioned or referred to, shall be at liberty to set ^^y be out the whole or such part thereof as may be material, and the ^«* forth, Sill n rtp matter so set out shall be deemed aud taken to be part of the considered pleading in which it is set out. j part of ^ ° the plead- ing in The Common Law Proceduhe Act, 1854, which it is set forth. (17 & 18 Vict. e. 125.) 46. Upon the hearing of any motion or summons it shall be Sec. 46. lawful for the Court or judge, at their or his discretion, and CourTor" upon such terms as they or he shall think reasonable, from time jiidge to to time to order such documents as they or he shall think fit ex^mina* to be produced, and such witnesses as they or he may think tions. necessary to appear and be examined viva voce, either before such Court or judge, or before the master, and upon hearing such evidence, or reading the report of such master, to make such i-ule or order as may be just, 47. The Court or judge may by sueh rale or order, or any Sec. 47. subsequent rule or order, command the attendance of the wit- f^g^l^^^^^ nesses named therein for the purpose of being examined, or the and upon production of any writings or other documents to be mentioned ^^atlon! in such rule or order, and such rule or order shall be proceeded upon in the same manner, and shall have the same force and effect, as a rule of the Court under an Act passed in the first year of the reign of his late Majesty King William the Fourth, intituled " An Act to enable Courts of Law to Order the Exami- nation of Witnesses upon Interrogatories or otherwise;" and it shaU be lawful for the Court, or judge, or master to adjourn the examination from time to time as occasion may require; and tlie proceedings upon such examination shall be condiwited, and B 242 APPENDIX C. the depositions taken down, as nearly as may be, in the mode now in use with respect to the viva voce examination of witnesses under the last mentioned Act. Sec. 48. Examina- tion of person ■who re- , fuses to make an affidavit. Sec. 49. Proceed- ings upon order for examina- tion. 48. Any party to any civil action or other civil proceeding in any of the Superior Courts requiring the affidavit of a person who refuses to make an affidavit may apply by summons for an order to such person to appear and be examined upon oath before a judge or master, to whom it may be most convenient to refer such examination, as to the matters concerning which he has refused to make an affidavit; and a judge may, if he think fit, make such order for the attendance of such person before the person therein appointed to take such examination, for the purpose of being examined as aforesaid, and for the pro- duction of any writings or documents to be mentioned in such order, and may therein impose such terms as to such examina- tion, and the costs of the application and proceedings thereon, as he shall think just. 49. Such order shall be proceeded upon in like manner as an order made under the hereinbefore mentioned Act passed in the first year of the reign of his late Majesty King William the Fourth ; and the examination thereon shall be amducted, and the depositions taken down and returned, as nearly as may be, in the mode now used on viva voce examinations under the said Act of Parliament. Sec. .'iO. Discovery of docu- ments. 50. Upon the application of either party to any cause or other civil proceeding in any of the Superior Courts, upon an affidavit by such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be 'lawful for the Court or judge to order that the party against whom such application is made, or if such party is a body cor- porate, that some officer to be named of such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so, on what grounds) to the production of such as are in his or their possession or power ; and upon such affidavit being made, the ACTS, RULES, AXD ORDERS. 243 Cuurt or jvitlgo maj' make sucli further order tliorcon as sliall be just. 51. In all causes in any of the Superior Courts, by order of Sec. .51. the Court or a judge, the plaintiff may, with the declaration, and ^"^7^^' *" the defendant may, with the plea, or either of them, by leave of written the Court or a judge, may at any other time deliver to the ["'^^"ga- , uoriGS to opposite party or his attorney (provided such party, if not a opposite body corporate, would be hable to be called and examined as a P"''''^' witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such l^arty, or, in the case of a body corporate, any of the oificers of such body corporate, within ten days to answer the questions in ■\rating by affidavit, to be sworn and filed in the ordinary way ; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the Court or a judge shall allow, shall be deemed to have committed a contempt of the Court, and shall be liable to be proceeded against ac- cordingly. 52. The application for such order shall be made u[)on an Sec. 52. affidavit of the party proposing to interrogate and his attorney ^ cartv or agent, or, in the case of a body corporate, of their attornej' or proposing agent, stating that the deponents or deponent believes or believes "^^ ^^™" that the party prpposing to interrogate, whether plaintiff or de- his attor- fendant, will derive material benefit in the cause from the dis- "'*^" covery which he seeks, that there is a good cause of action or defence upon the merits, and, if the application be made on the part of the defendant, that the discovery is not sought for the purpose of delay : provided that, where it shall happen, from unavoidable circumstances, that the plaintiff or defendant cannot join in such affidavit, the Court or judge may, if they or he think fit, upon affidavits of such circumstances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit. 53. In case of omission, without just cause, to answer suffi- Sec. 53. Oral exa- ciently such written interrogatories, it shall be lawiul for tlie mination Court or a judge, at their or his discretion, to direct an oral of parties, 1 • i i 1 when to be examination of the interrogated party as to such points as they allowed. R 9! 244 APPENDIX O. or he may direct before a- judge or master, and the Court or judge may by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination, for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, and may impose therein such terms as to such examina- tion, and the costs of the application, and of the proceedings thereon, and otherwise, as to such Court or judge shall seem just. Sec. 54. 54. Such rule or order shall have the same force and effect Proceed- ^^j^ ^^^ 1^^ proceeded upon in like manner as an order made such rule under the said hereinbefore mentioned Act passed in the first year of the reign of his late Majesty King William the Fourth. or order. Sec. 55. Deposi- tions upon such exa- minations to be re- turned to master's office. 55. Whenever, by virtue of this Act, an examination of any witness or witnesses has been taken before a judge of one of the said Superior Courts, or before a master, the depositions taken down by such examiner shall be returned to and kept in the master's office of the Court in which the proceedings are pending ; and office copies of such depositions may be given out, and the depositions may be otherwise used, in the same manner as in the case of depositions taken under the hereinbefore mentioned Act passed in the first year of the leign of his late Majesty King William the Fourth. 56. It shall be lawful for every judge or master named in any such rule or order as aforesaid for taking examinations under Sec. 56. Kxaminer may make special this Act, and he is hereby required to make, if need be, a special the°Court. ^'''Port *o t^^ Court in which such proceedings are pending, touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto ; and the Court is hereby authorised to institute such proceedings and make such order and orders upon such report as justice may require, and as may be instituted and made in any case of contempt of the Court. Sec. 57. Costs of rule and examina- tion to be in the dis- cretion of the Court. 57. The costs of every application for any rule or order to be made for the examination of witnesses by virtue of this Act, and of the rule or order and proceedings thereon, shall be in the discretion of the Court or judge by whom such rule or order is made. ACTS, RULES, AND ORDERS. 245 58. Either party shall be at liberty to apply to the Court or a ^^'^- ^^■ judge for a rule or order for the inspection by the jury, or by by jury of himself, or by his witnesses, of any real or personal property, Parties \it the party against whom the application for an attachment is solicitor, made may show, in answer to the application, that he has had no notice or knowledge of the ortler. 22. A solicitor upon whom an order against any party for dis- Kiile 22. covery or inspection is served under the last ride, who neglects j)„t gi°^o. without reasonable excuse to give notice thereof to his client, notice of shall be liable to attachment. liable to '' attach- ment. 2.3. Any party may, at the trial of an action or issue, use in Rule 23. evidence any one or more of the answers of the opposite party to ^''■•■'5' ""^y ■' t-i 1 J ^ge any interrogatories without putting in the others : Provided always, one or that in such case, the iudge may look at the whole of the answers, """^ ' ■> o J ' answers in and if he shall be of opinion that any other of them are so evidence, connected with those put in that the last-mentioned answers ought *"■ not to be used without them, he may direct them to be put in. Oedbb lit. 3. It shall be lawful for the Court or a judge, upon the appli- Rule 3. cation of any party to an action, and upon such terms as may qj^^^s for seem just, to make any order for the detention, preservation, or detention, inspection of any property being the subject of such action, and tira^OTiu- for aU or any of the purposes aforesaid, to authorise any person spection of or persons to enter upon or into any land or building inthe^J^^^" possession of any party to such action, and, for all or any of the and autho- , purposes aforesaid, to authorise any samples to be taken, or any "r takii^ observation to be made or experiment to be tried, which may of samples, seem necessary or expedient for the purpose of obtaining full ^f experi? information or evidence. ments. 4. An application for an order under section 25, sub-section 8, Rule 4. of the Act, or under rules 2 or 3 of this Order, may be made to tj^^ for' the Court or a judge by any party. If the application be by an order the plaintiff for an order under the said sub-section8, it may be ""i873 " made either ex paHe or -with notice; and if for an order under a. 25, &c., the said rules 2 or 3 of this Order, it may be made after notice ™^^g ^ to the defendant, at any time after the issue of the writ oi parte- or on. summons; and if it be by any other party, then on notice to the notice. 252 APPENDIX C. plaintiff, and at any time after appearance by the party making the application. Rule 5. Signature. Rule 6. Oath. Rule 3. Deposit of docu- ments. Rule 4. Consolidated Gbneeal Orders of the High Courts op Chancery Eelatikg to Discovery. Order XV. 5. All answers shall be signed by the parties swearing the same, and such signature shall be affixed or acknowledged in the presence of the persons before whom the same are sworn. 6. Unless the Court shall otherwise direct, the answers of al persons (except persons entitled to the privilege of peerage, or corporations aggregate) shall be put in upon the oath of the parties putting in the same, where they are not exempted from taking an oath by any statute in that behalf. Persons entitled to the privilege of peerage may answer upon protestation of honour, and corporations aggregate shall put in their answer under the common seal. Order XLII. 3. "Where any deeds or other documents are ordered to be left and deposited, whether for safe custody, or for the purpose of any inquiry in chambers or otherwise, the same shall be left or deposited in the Eecord and Writ Clerk's office, and shall be subject to such directions as may be given for the production thereof. 4. The course of procedure in use as^ to the production of documents ordered to be produced before the hearing of a cause, shall extend and be applied to the production of documents ordered to be produced after the hearing of any cause or matter. Rule 1. Produc- tion of docu- ments. County Court Kulbs, 1875. Order XIII. 1. Where in any action any party desires the production of any document or documents relating to the matter in question in such action, he shall make an affidavit that he has reason to believe that such document or documents is or are in the pos- session or powei; of one of the partiea, and the registrar shall, ACTS, RULES, AND OTinEES. 253 upon the delivery to him of the affidavit and a copy thereof, tile the affidavit and make an order (annexing thereto the copy of the affidavit), that the party against whom such application ■is made shall answer on affidavit stating what documents he has in his possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he objects, and if so, on what grounds, to the pro- duction of such of the documents as are in his possession or power J and the time within which the opposite party shall return such affidavit to the Court shall be stated in the order, which order shall be served by the bailiff of the Court, or a solicitor, or by post. 2. The party against whom such order is made shall answer Rule 2. on affidavit according to the terms of the order, and send the ■'^"^w®'^ *" o ) order to affidavit and a copy thereof to the registrar, by post or other- produce, wise, within the time stated in the order ; and the registrar shall, immediately upon receiving such affidavit, file the same, and transmit by post, or otherwise, to the party making the application the copy of the affidavit. 3. Where after such last-mentioned affidavit is filed the party Rule 3. making the application requires a further order thereon, he shall "^^ ^j^. apply to the registrar for such further order ; and if there be no answer matter of fact or law in dispute between the parties, the '^^°^^^™- registrar shall make an order in writing, in accordance with the facts ; but if there shall be any matter of fact or law in dispute between the parties, the registrar shall transmit both affidavits to the judge, who shall direct the registrar to give notice, by post or otherwise, to both parties of a time and place when and where he wUl hear the application, and make such order thereon as sliall be just. 4. An order for the production of any deed or document shall Rule 4 state the time when and the person to whom the same shall be ^j^j^ y^j^g produced, and it may further order that the same may be de- cfec, of pro- posited with the registrar, to be produced at any trial or hearing, or that the registrar may make a copy thereof for any party. 5. "Where in any action any party is desirous of inspecting Rule 5._ any written or printed document or instniment which he is ^j ],ocv.- entitled to inspect relating to the matter in question in such ments. 254 APPENDIX C. action, and wliicli shall be in tlie possession or power or under the control of the other party, such first-mentioned party niaj', five clear days before the day of hearing, give notice to the other party, by post or otherwise, that he, or his solicitor, desires to inspect any such document or instrument, describing the same, at any place to be appointed by the other party ; and if such other party shall neglect or refuse to appoint such place, or to allow such plaintiff or defendant, or his solicitor, to inspect such document or instrument within three clear days after receiving such notice, the judge may in his discretion, on the day of trial, adjourn the action and make such order as to costs as he shall tjiink fit. Eule 6. 6. Where a party desires to interrogate any party, he shall Interroga- apply to the registrar for leave to deliver interrogatories, and upon making such application he shall file an affidavit, made by himself only, or by himself and his solicitor or agent, if any, or, by leave of the registrar, by his solicitor or agent only, stating that the deponent believes that the party proposing to interro- gate will derive material benefit in the action from the discovery which he seeks, and that there is a good cause of action or defence upon the merits. And upon such application, the regis- trar shall make an order, according to the form in the schedule, that the applicant may, within a time to be named in such order, deliver to the party to be interrogated interrogatories in writing upon any matter as to which the applicant seeks discovery, and shall in such order require the party interrogated to answer the questions in writing by affidavit, and file such answers within such time, to be appointed by the registrar, as shall enable the party making the application to use the answers so returned as evidence at the trial. Rule 7. Objection to interro- gatories. Kule 8. Successful objection. 7. Where a party served with the order shall object to answer the interrogatories, he shall -file an affidavit stating his gi-ounds for objecting, and that he will be prepared to show cause to the Court at the return day against his being required to answer them ; but where it is only some of the interrogatories he objects to answer, he may include in his affidavit both his replies and his objections. 8. Where the party required to answer interrogatories shall successfully show cause against an order requiring him to answer ACTS, RULES, AND ORDERS. 255 them, the judge may direct the action to proceed, or to lie .adjourned if lie thinks fit, and upon terms as to costs ; but if the party objecting shall not show sufficient cause for his objec- tion, the judge may order the interrogatories to be then and there answered vh-d voce in Court, or may adjourn the, action, and make an order for the answering of the interrogatories by such time, and for the payment of such costs as may have been incurred through the delay, as he may think fit. Disclosure by Solicitors and Plaintiffs. common law procedure act, 1852. 7. Every attorney whose name shall be indorsed on any writ Sec. 7. issued by authority of this Act shall, on demand in writing made by or on behalf of any defendant, declare forthwith whether such writ has been issued by him or with his authority or privity ; and if he shall answer in the affirmative, then he shall also, in case the Court or judge shall so order and direct, declare in writing, within a time to he alluioed hy such Court ur jiLilge, the possesbion, occupation, or quality, and place of abode of the plaintiff, on pain of being guilty of a contempt of the Court from which such writ shall appear to have been issued ; and if such attorney shall declare that the writ was not issued, by him, or with his authority or privity, all proceedings upon the same shall be stayed, and no further proceedings shall be taken thereupon without leave of the Court or a judge. JUDICATURE ACT, 1875. Order VII. 1. Every solicitor whose name shall be indorsed on any writ Rule 1. of summons shall, on demand in writing, made by or on behalf Solicitor of any defendant who has been served therewith, or has appeared name in- thereto, declare forthwith whether such writ has been issued by ^S'^^^°- *'' ' '' declare on him, or with his authority or privity ; and if such solicitor shall demand declare that the writ was not issued by hiin, or with his autho- '^'^fy^'^'' •> ' writ issued rity and privity, all proceedings upon the same shall be stayed, by him, and no further proceedings shall be taken thereupon without leave ^^ J"?. of the Court or judge (a). all pro- ceedings (a) Cf. s. 117 of the C. L. P. Act, 1852, mprd. therein stayed. 256 APPENDIX C. Kule 2. When writ bypartnera in name of firm, plain- tiffs or soli- citor to declare on demand names and of mem- bersoffirm. On failure action may be stayed. When declared action to be as if they were named in writ. 2. When a writ is issued out by partners in the name of their firm, the plaintiffs or their solicitor shall, on demand, in writing by or on behalf of any defendant, declare forthwith the names and places of residence of all the persons constituting the firm. And if the plaintiffs or their solicitor shall fail to comply with such demand, all proceedings in the action may, upon an appli- cation for that purpose, be stayed upon such terms as the Court or a judge may direct. And when the names of the partners are so declared, the action shall proceed in the same manner, and the same consequences in all respects shall follow as if they had been named as the plaintiffs in the writ. But all proceedings shall nevertheless continue in the name of the firm (b). Admission of Documents, common law peoceduee act, 1852. Sec. 117. 117. Either party may call on the other party by notice to A(hmssion admit any document, saving all just exceptions ; and in case of ments. refusal or neglect to admit, the costs of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless at the trial the judge shall certify that the refusal to admit was reasonable, and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the master, a saving of expense. Sec. 118. 118. An affidavit by the attorney in the cause, or his clerk, of Proof of the due signature of any admissions made in pursuance of such ^ons. notice, and annexed to the affidavit, shall be in aU cases sufficient evidence of such admissions. Sec. 119. Proof of notice to produce. 119. An affidavit of the attorney in the cause, or his clerk, of the service of any notice to produce, in respect of which notice to admit shall have been given, and of the time when it was Berved, with a copy of such notice to produce annexed to such affidavit, shall be sufficient evidence of the service of the original of such notice, and of the time when it was served. (6) Cf, Order XVI., r. 10, 8, suprA p. 246. ACTS, RULES, AND ORDERS. 257 JUDICATURE ACT, 1875. Order XXXII. 2. Either party may call upon the other party to admit any Rule 2. document, saving all just exceptions : and in case of refusal or ^'"^J"^"^ 11. party may neglect to admit, after such notice, the costs of proving any such call on tiie document shall be paid by the party so neglecting or refusing, admit *° whatever the result of the action may be, unless at the hearing docu- of the trial the Court certify that the refusal to admit was f^j*'' " , , . Jie do not, reasonable ; and no costs of pro\'uig any document shall be opsts of allowed unless such notice be given, except where the omission P""^ ™^^. to give the notice is, in the opinion of the taxing officer, a against saving of expense. '^'"^ > °°^'^ of proving not al-" lowed where no notice is given. 3. A notice to admit documents may be in the Form No. 12 ^"'® 3. in Appendix (B) hereto. „otV"e." 4. An affidavit of the sohcitor, or his clerk, of the due signa- Rule 4. ture of any admissions made in pursuance of any notice to admit J^^^^™5^ documents, and annexed to the affidavit, shall be sufficient sicns, evidence of such admissions. [For Notice to •produce Documents inentioiied in the Pleadings under the Judicature Act, cf. p. 249.] CouxTY Court Eules. Order XIII. 9. Where a party desires to give in evidence any document, lie Rule 9. may, not less than five clear days before the trial, give notice to -^'^'""sion any other party in the action who is competent to make admis- ments. sons, requiring him to inspect and admit such document ; and if such other party shall not within three days after receiving such notice make such admission, any expense of proving the same at the trial shall be paid by him, whatever be the result" of the action, unless the Court shall otherwise order ; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense. S 258 APPENDIX C. Order XIV. Kule 4. 4. Where a witness served with a summons shall not at the trial Where the produce the documents required, the Court may, upon admission are not > 01 proof of the service of such summons within a reasonable produced, time, and that such documents are in the possession or power or ornfii* Tor productionl under the control of the party so served, and that they relate to may be the matter then pending before the Court, make an order for their production by him, and the Court may deal with them, when so produced, and with all costs occasioned by their non- production, as Tnay appear just : provided that nothing herein shall prevent the Court from receiving secondary evidence where admissible of any document the production of which has been required as above. Rule 5. 5, Where any documents are produced to the Court from ments pro- prop^r custody, they shall be read without further proof, if they duced appear genuine, and if no objection be taken thereto ; and if the prmer admission of any document so produced be objected to, the custody to judge may adjourn the hearing for the proof of the documents, wHhOTit ^^^ *^® P^'ity objecting shall pay the costs caused by such objec- proof tion in case the documents shall afterwards be proved, unless iected to. *'^® judge shall otherwise order. ACTS, KULES, AND ORDERS. 259 Foi-m of notice to inspect and admit document in the Mayor's Court. In the Mayor's Court, London. Between A. B., plaintiff, and CD., defendant. Take notice that the plaintiff (or defendant) in this cause pro- Mayor's poses to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the defendant (or plaintiff), his attorney or agent, at on between the hours of ; and the defendant (or plaintiff) is hereby required, within forty-eight hours from the last- mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed, as they purport respectively to have been, that such as are specified as copies are true copies, and such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered, respectively ; saving aU just exceptions to the admissibility of all such documents as evidence in this cause. Dated To E. F., attorney (or agent) G. H., attorney (w agent) for defendant (or plaintiff). for plaintiff (or defendant). [Here describe the documents, the manner of doing which may he as follows: — Originals. Description of Documents. Deed of Covenant between A. B. and C. D. first part, and E. F. second part ... ... 1 Jan. 1848. Indenture of Lease from A. E. to C. D. ... 1 Feb. 1848. Indenture of Release from A. B., C. D., first part, &c 2 Feb. 1848. Letter— Defendant to Plaintiff 1 March, 1848. Policy of Insurance on goods by ship Isabella, on voyage from Oporto to Lisbon ... ... 3 Dec. 1847. Memorandum of Agreement between C. D., captain of said ship, and E. F. ... ... 1 Jan. 1848. Bill of Exchange for £100, at three months, drawn by A. B. on and accepted by C. D., indorsed by E. F. and G. H 1 May, 1849. Date. S 2 260 appendix c. Copies. Deeoription of Documents. Eegister of Baptism of A. B. in the parish of X. Letter — Plaintiff to Defendant. Notice to produce paper Record of a Judgment of the Court of Queen's Bench, in an action of J. S. v. J. N. Letters Patent of King Charles IL in the Eolls Chapel Date. 1 Jan. 1848. 1 Feb. 1848. •1 Mar. 1848. Trinity Term, 10th Vict. 1 Jan. 1680. Original or Duplicate served, sent, or deli- vered, when, how, and by whom. Sent by General Post, Feb. 2, 1848. Served March 2, 1848, on defen- dant's attorney byE.F.,of , Inquiries and Accounts, judioatuee act. Order XXXIIL Court or The Court or judge may, at any stage of the proceedings in a at MTir"*^' ''^^s® o^ matter, direct any necessary (c) inquiries or accounts to be stage, made or taken, notwithstanding that it may appear that there is oounts^and ®°™® special or further relief sought, or some special issue to be inquiries, tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner. (c) This must be an element in the discretion of the Court, exercised under Order XXXI., r. 19 : of. p. 54. INDEX. ACCOUNTS. See Consequential Discovery. old equity practice as to, 46 of executors, 47, 54, 123, 129 interrogatories as to, in suits by legatees against executors ; see Executors. of mortgagees, 54, 124 of tenant for life in a suit for waste, 54 when relevant documents, 47 when interrogated on sufficient, to refer thereto, 129 county ratepayers have no right to inspect the county, 184 ACTION, what is, under Order XXXI., r. 1,...28 ACTION FOB DISCOVERY. See Bill of Discovery. ACTION ON POLICIES OF MARINE INSURANCE. See Under- writers. what documents must be produced in, 49, 106 when non-parties compelled to produce in, 35, 48, 133 application for discovery in, 148 application for further and better affidavit in, 136 application for production, 151 costs under old practice in, 152 insufficient answers to interrogatories in, 128 ACTIONS:— FOR THE RECOVERY OF LAND— TITHES- LIBEL AND SLANDER — FALSE REPRESENTATION — • TROVER- MALICIOUS PROSECUTION — NEGLIGENCE — WRONGFUL DISMISSAL— WRONGFUL DISTRESS— FOR BIGHTS OF COM- MON—COPYRIGHT. See Ejectment, and the other titles as here cited. ADMIRALTY COURT, inspection by Trinity masters in, 12 applicability of Order XXXI., r. 19, to actions in, 34 fishing interrogatories in, 51 ; superfluous, 276, n. (6) interrogatories echoing preliminary act in ; see Interrogatories. privilege of public policy in, 1 14 practice as to discovery in, 142 history of discovery in, 12 particulars in, App., p. 227 262 INDEX. ADMISSIONS, object of interrogatories to obtain, 40 as to pecuniary resources, 45 of title in favour of the party on whom is the burden of proof, 90 such now allowed in ejectment actions ; see note to LyeU v. Kennedy, p. xl. what of relevancy, 46 interrogatories echoing the statement of claim allowed to obtain material, 110 in chancery, when they excused from full answer, 124 on notice, not binding at trial as to documents which are not evidence, 157 inadvertent, may be withdrawn, 157 AFFIDAVIT OF DOCUMENTS. And see Discovery, Application for Further and Better Ajtidavit. when must be on the oath of the party himself, 30, 31 what must comprise, under the Judicature Act, 46, 149 ' what documents relate to any matter in question luder Order XXXI., r. 12 ; see Pern-ice v. Williams, W. N. 1883, 4 ; Compagtm Fvnan- cUre V. Peruvian Co., 31 W. R. 395 must be made even where no documents exist, IDl, 133, 136, 150 conclusiveness of, 49, 139 by the old chancery practice, 137 statement of obiections to produce in, generally, 134—136 of irrelevance, 49, 136 of tendency to incriminate, 57 must be taken by party himself, 30 of professional privilege, 53, 65, 135, 136, 283 of joint possession, differently made in, to that in answers to interrogatories, 83 of relativeness to answerer's title exclusively, 91 et seq, 98, 100 where conflicting title is raised by a party in possession of property, 87 by a defendant whose cas^ is purely destructive of plaintiff's, u2 of relativeness to answerer's case exclusively, 106 of documents being against public policy, 115 that certain documents should be sealed up, 154 in ejectment cases, 97 heir-at-law entitled to in, 101 customary heir of what can obtain, 101 heir-in-tail can obtain where heir-at-law cannot, 101 requisites for its sufficiency, 132, 149, 150 so as to protect documents from production, 133 grounds of objection taken in must be sufficiently verified, 133 so as to prevent an order for a further and better affidavit, 136 must be full and comprehensive, 136 but not prolix, 140 application for the order for, 148 when an affidavit in support necessary, 133, 148 applicant not entitled to as of right, 148 one summons may include against several parties, 149 against parties out of the jurisdiction, 33, 34 INDEX. 263 APFIDAVIT OF DOCUMENTS— eore«i«w(«. time for, 23,24, 25 interrogatories as to documents before disallowed, 22 but allowed to get a further and better, 139 parties to, 28 objection not taken in, may be raised on an application for produc- tion of documents, 154 practice as to, in the Lord Mayor's Court, 170 practice as to, in the County Courts, 173 forms of, App., pp. 203—210, 234 AGENTS, their knowledge that of their principals, 81, 128 even when the employment has ceased, 128 abroad ; documents in possession of agent abroad not excused from pro- duction, 84 their possession that of their principal's, 83, 130 though not where also agents for non-parties, 83 who, under an order for inspection, 37, 153 of trustees need not discover accounts, 37 interrogatories seeking to get what interrogator could from his, dis- allowed, 119 can refuse production of books clearly their property when their principals are sued, 118 conununications of, in the ordinary course of business not privileged, 74, 79, 81, 118 for inspection, who, 37, 38, 153, 193 ANSWEES TO INTERROGATORIES, what can be altogether declined, 115, 121 requisites for sufficiency of, must be full, 122 the old chancery rule, even if bill had been amended, 123 or if the title were denied, 124 need not be full if question is immaterial, 125 where document can be inspected, sufficient to refer thereto, 117, 125, 128 but the description must identify them, 129 and search be averred if the affidavit of documents has been made, 129 and this must not be evasively done, 129 must be distinct, 126 where portion of a question is vexatious that need not be answered, 126 must state new facts where an objection taken involves them, 126 but need not where law only is involved, 126 bupei-fluous irrelevance in an otherwise sufficient answer makes it in- sufficient, 126 part of the defence being included in, no ground for splitting, 126 j.arty taking objection of tendency to incriminate in position of witness, 127 must be to the btst of the answerer's recollection and belief, knowledge and information, 127 et seq. ignorance not sufficient without an averment of attempt to obtain the information, 128 264 INDEX. ANSWERS TO INTERROGATORIES— co»«mM«d. what suflBcient when contents of documents admittedly out of the possession of the party interrogated are interrogated on, 129 answer once sufficient remains so, 132 old and present practice as to, 146 et seq. not under oath allowed by consent, 147 when must be printed, 147 when evidence against the answerer in a subsequent trial, 158 when not so insufficient as to show want of bona fides, remedy not to dismiss under Order XXXI., r. 20,. ..163 in the County Courts, 172 APPEALS. See Chap. V. in discovery, to Court of Appeal, discouraged, 176 where documents inconvenient to be produced are ordered to be in- spected at a certain place, no appeal as to the place (a), 176 APPLICATION FOR INTERROGATORIES WHERE LEAVE IS REQUIRED, 143 APPLICATIOlJ FOR FURTHER AND BETTER INTERROGATORIES, substituted for old practice of Exceptions, 121 is by summons, which must specify the interrogatories objected to, 123 but need not if proper objections have been taken thereto, 121, 145 time for, and practice in generally, 145 APPLICATION FOR FURTHER AND BETTER ANSWER TO IN- TERROGATORIES, practice as to, 145 APPLICATION TO STRIKE OUT INTERROGATORIES. See Scan- dalous, Vexatious and Unreasonable. on what grounds, 41, 42, 50, 58 previous objection taken now no bar to objectionable interrogatories, the interrogatories should be specified in the summons on, 144 practice in, 144, 147 APPLICATION FOR A FURTHER AND BETTER AFFIDAVIT, oath of solicitor resisting in absence of clients insufficient to prevent 137 ^ ' what justifies, 137, 139, 140, 159 interrogatory as to documents may still be put instead of, 139 practice and okl equitable procedure, 149 interrogatories to assist, 139, 149 (a) Bustroa v. £uatros, 30 W. K. 374. INDEX. 265 APPLICATION FOR A FUETHER AND BETTER AFFIDAVIT— continued. action for discovery withheld to assist in cases of vendor and purchaser, 181 production on, 15 APPLICATION FOR INSPECTION, 152 how to be made on affidavit by a corporation, 38 ol public documents, 193 APPLICATION FOR PRODUCTION, 150, 152 APPLICATION BY PARTY, INSPECTION OF WHOSE DOCU- MENTS IS BEING SOUGHT, for leave to seal up, &c., on affidavit, 154 for further time by summons, 155 APPLICATION TO DISMISS ACTION OR STRIKE OUT DEFENCE UNDER ORDER XXXL, r. 20,...163 APPLICATION FOR POSTPONEMENT OF DISCOVERY UNDER ORDER XXXL. r. 19,... 158 ARBITRATION. See Compulsory Arbitration, Reference. ARREST, direction to attorney to, beyond scope of his employment not pro- fessionally privileged, 70 ATTACHMENT, practice in forfeiture to obey Orders XXXL, r. 20, XLIV., r. 2,. ..159 et seq. old practice still applies where the application is not in an action, 159 when refused, 160 xvrit of, practice as to, 161 will issue even on an imperfect indorsement on the order for the service of the affidavit of documents, 160 in Mayor's Court, 14, 168 BALLOT ACT discovery under, 17 BANKRUPTCY, unauthorised clerk of principals abroad caimot be compelled to produce in, 84 solicitor's lien, when a valid objection to discovery of bankrupt's docu- ments, 85 defence of purchase for value in, 88 bankrupt's affidavit of documents, 150 bankrupt where himself allowed to inspect, 154 discovery under the Bankruptcy Act, 17 production under, 17 26G INDEX. BANKING BOOKS, when inspected as of right, 189 BELIEF. See Knowledge. BILL OF DISCOVERY. JLrad sec Jurisdiction. before C. L. P. Act necessary for discovery at common law, 5 where necessary after C. L. P. and Evidence Amendment Acts, 7, 8, 180 as to printer, publisher or proprietor in aid of actions for libel, 59 under Judicature Act called action for discovery, 180 what statement of claim must show in, 180 grounds for objection to, 182 BONA FIDE, interrogatories not'; see Interrogatories; BOOKS, of Sessions of the Peace, 183 post office, 183 custom house, 183 corporation ; see Corporation. CENSURE, objection to answer on the ground of incurring, 60 CIVIL SUIT, exposure to, no ground for not answering, 58 CO-DEFENDANTS, not entitled to interrogate each other, 33 not agents under the common order for inspection, 154 may get and give production of documents, 4, 33 and give notice to producedoctimentsmentionedin the pleadings, 155 and notice to admit, 156 letters of a co-defendant when agent for another defendant's solicitor, privileged, 69 entrusted with a document can refuse production in the absence of other defendants, 84 COMMON. See Flaw in Title, Defendant. actions as to rights of, 186 ; and cf. the cases cited, 86 COMPANIES. See Corporations, Prwilege, Reports. discovery under Companies Act, 17 ; inspection, 189 what must discover when suing shareholders for calls, 119 what railway companies must produce in action for wrongful dismissal, 119 privilege of joint possession raised by, 131 director of, must get information from servants, 132 form of affidavit where company objects to produce, App., p. 205 attachment in cases of, 161 what documents are inspected as of right in cases of, 187, 188, 189 practice in inspection of documents, 192 what the affidavit in support of the application for inspection must state, 193 INDEX. 2C7 COMPOSITION DEED, what trustees of, must produce to compromise documents relating to creditor, 119 COMPULSORY ARBITRATION, 48 action for discovery to aid, 181 CONSEQUENTIAL DISCOVERY, old equitable doctrine as to, 88, 89, 90 must always have been afforded where answer was made, 124 regulated now by Order XXXI., r. 19,. ..51, 53, 90 not allowed where the discovery sought is itself an issue, 54 practice on application for postponement of, 158 of accounts when necessary will be ordered, 260 j CONVERSATIONS, interrogatories as to, 112, 119 with a person deceased, 107, 110 CONTEMPT. See Attachment. party in, may get discovery, 38 CONVEYANCING ACT, discovery under, 17 COPYHOLDER. See Court Rolls, Inspection of Public Documents. practice on application by, for inspection of, 187, 192, 193 COPYRIGHT SUITS, interrogatories as to damages in, 45 plaintiff may enquire as to the source of the defendant's work, the names and number of his " canvassers," 132 COPIES OF DOCUMENTS, &c. allowed to be taken on inspection, 152 of a case privileged, 69 CORPORATIONS, discovery in cases of, at equity before the C. L. P. Act, 5, 30 afterwards by analogy to the procedure thereunder, 29 still followed in Mayor's Court, 167 discovery from officer of, if liable to be a witness, 5, 29 under C. L. P. Act, officer of or member under Judieatv/re Act may be interrogated, 30 who is the officer to answer, 31, 32, 34 cannot refuse to answer as to corrupt execution of trust, or on the ground of incurring penalties, 57 leave required to deliver interrogatories to, and practice, 143 in chancery, 146 affidavit in support of an application for production under Order XXXI., r. 18, by, 38 268 INDEX. CORPORATIONS- contimied. order for production by, 151 coi-poration books, inspection o:^ 190 strangers only have right of inspection under special circumstances. 190 r , who are and are not strangers, 191 when the inspection is disallowed, 192 discovery in cases of, in Mayor's Court, 167, 169 COSTS, where interrogatories are oppressive, 144 of appeals, 176 of applications relating to interrogatories, 177 to be borne by the party in default, 177, 178 of production and inspection, 178, 179 of order of, usually costs in the cause, 179 of notice and inspection thereon, 179 of refusal on notice to admit, 179 in discretion of Court, 177 in Mayor's Court, 169, 170 COUNSEL'S NOTES, OPINIONS, &c.,' when privileged, 68 never in trust suits, 37, 70 COUNTY COURTS, history of discovery in, 14, 15, 16 practice in, 171 et seq. interrogatories on affidavit, 172 affidavit of documents, 173 Common Law. Procedure Act still followed by practice in discovery of, 173 ■' COURT ROLLS. See Copyholder, Inspection of Public Dgcumbnis. when not allowed to be sealed up, 50 when not privileged, 103 mspeciion of, tenant of manor and persons interested in the copyhold alone titled to as of right, 185 freeholder within the manor has the right if a suit be pending 186 allowed where they manifestly must make out the applicant's title whatever the affidavit of documents may state, 185 ' disallowed to persons claiming not to be tenants, 185 rights exist though no suit be pending, 186 by enfranchised copyholders, 187 on order, for steward may not charge the fee, 193 CREDITORS OF A COMPANY, when allowed production of books, &c., as of right 187 188 189 under a winding-up order, 190 ' ' CROSS-EXAMINATION, interrogatories in nature of, not allowed, 44 that documents may be relevant to, does not make them relevant 49 index; 2G'J CROWN cannot be required to give, but can compel discovery, 38 CUSTOMARY HEIR. See Ejectment. DAMAGES, interrogatories as to, with a view to their reduction, relevant, 45, 113 interrogatories as to, with a view to payment into Court, 46 DECEASED PERSON, interrogatories as to transactions with, allowed, 107, 110, 120 DEFENDANT. And see Time, Flaw in Title. who is, under the Judicature Act, 28 cohere his case is merely destnictive of the plaintiff's, may get discovery of defects in his title, 92 but seciis if as tenant estopped, 96 where he sets up an independent title, however, may not, 87, 99, 185, 186, App., p. 200 interrogatories as to truth of his plea allowed, 107 but not where they are really as to credit, 44 may not ask how plaintiff intends to shape his case, 108 — 11 allowed discovery to repel a case anticipated, 110 including part of defence by interrogatories, 126 should not be converted by interrogatories into plaintiff's witness at the trial, 130; but c/. 140 attachment against abroad, reftised, 160 when Hable to have defence struck out, 162 DEMURRER, interrogatories pending, disallowed, 147 costs of interrogatories administered before, 178 several grounds of, to an action for discovery, 182 DIRECTOR OF A COMPANY. See Corporations, Companies. interrogatories under Companies Act for further examination of, 17 DISCOVER V^. And see Affidavit of Documents, Bill of Discovery, Jurisdiction. under the Chancery and the Evidence Amendment Acts, 1, 2, 63 under the Common Law Procedure Act, 6, 55, 62, 79 interrogatories to obtain or verify the aflftdavit of, 7, 22, 139, 149 under the Judicature Act, 22 time for, 23, 24, 25 who are parties to, 28, 38 province and object of, 39 right to, 40 equity rules as to now now prevail, but not equity ^rocerfiwe, 40 Judicature Acts have added no new rights of, 40 depending on the determination of any issue under Order XXXI., r. 19,.. .51, 260 partnership books, though privileged from production, never from, 85 270 IXDEX. DISCOVERY— coniinusd. in actions for recovery of land; see Ejectment. application for order of, 148 when an affidavit in support of, necessary, 133, 148 not granted as of right, 148 but will be allowed, even if no document exists, 150 one summons may include against several parties, 149 of partners, 157 of names of partners sued, 180 of who are the solicitors indorsed on the writ, 157 DISMISSAL OF ACTION, practice under Order XXXI., r. 20,. ..162 in the discretion of the Court, 1 62 cases when the application for, has succeeded, 163 DIVORCE COURT, history of discovery in, 13 governed by the C. L. P. Act in all points touching production and inspection, except costs ; interrogatories not usual in, except on com- mission, 141 no privilege protects correspondence in, where the suit is collusive, 70 DOCUMENTS, deposited as security, when subject to the privilege of joint possession, 85 in daily use, 83, 85, 153 of which one party only has a copy, and in which the other has an interest, 27, 96 common to the title of both parties, 98 (a) non -genuine and invalid, 103 relating to the conduct of the case, 69. See Privilege, Production. DOCUMENTS REFERRED TO IN THE PLEADINGS. And see Peofeet and Oyer. old practice -at equity and at common law (as to production c/. the Evidence Amendment and Common Law Procedure Acts), 5, 6 indorsements on writs, not the pleadings for this purpose, Ind., p. 274 production of, now allowed to the defendant before statement of defence, 26 though this used not to be so, 24 where corporations are concerned, the practice under the C. L. P. Act obtains, 31 privilege on the ground of title in cases of, 98, 99 interrogatories as to contents of, 117, 125, 128 inspection of, how obtained, and where an affidavit in support is necessary, 155 importance of an application under r. 17 for an order for, 156 notice of, practice in giving, and time for, 155, 156 ECCLESIASTICAL COURTS, action for discovery to aid, refused, 181 what documents inspected as of right in, 183 (a) To the cases which decide that the privilege is taken away in such casus, add Neiaton v. Serresford, 17 Ex. 377. INDEX. 271 EJECTMENT. And see Defendant, Plaintiff, Flaw in Title. admissious of title caunot be obtained in actions of, 91 discovery generally in, at equity, 95 at common law, 96 interrogatories by the plaintiff as to title iu all actions of, formerly disallowed, and why, 87, 96, -97 special exceptions, 96 ; now allowed, see p. xl. defendant mijlit interrogate as to pedigree at equity, and under special circumstances {Pearson v. Turner), 9.5, 97 migbt interrogate as to title under the C. L. P. Act, 95, 96 but the estoppel prevents the defendant in cases of landlord and tenant from interrogating the plaintiff, except where a sub-lessee holding over, 96 plaintiff, the defendant being iu possession and setting up an indepen- dent title, could and can only get inspection under very special cir cumstances, 87, 96, 97 may generally get an affidavit of documents, 97 EJECTMENT, to what discovery heir-at-law is entitled, 100 customary heir and heir-in-tail, 101 defendant in action of, by lord of the manor, not allowed inspection of Court rolls, 185 ESCAPE, ACTION FOR, what documents inspected as of right in, 183 EVASIVE, what is, in answers to interrogatories, 125 EVIDENCE, all attempts to get at what is solely opponent's, disallowed, 104, 107 distinguLshed from case, 107 allegation that discovery is sought for in another action no ground for it, 118 or as with a view to a rule for a new trial, 118 that a document will not be, no ground for non-production, 118 interrogatories which do not admit of answers to go to a jury irrele- vant, 32 secondary, when unnecessary, of a document, which therefore needs no notice to produce, 151 when documents objected to be produced on notice are, 156 rules of control, admission on notice, 157 answers to interrogatories when, in a subsequent action, 158 EXCEPTIONS, old practice as to, and their present substitute, 121 EXECUTORS, must in general disclose accounts, 47, 54, 123, 129 when their accounts relevant in suits against, 47 272 INDEX. EXECUTORS— co)i«mued. cannot refuse accounts on ground of their depending on an issue in tlie trial (a), 54 how far their admissions protect them ivom detailed accounts, 124 EXTENSION OF TIME, for answers to interrogatories, 146 for affidavit of documents, 150 for inspection, 155 in the Mayor's Court, 167, 169 ; in the County Courts, 173 FIDUCIARY CAPACITY, PERSONS IN. See Trustees. peculiarly liable to discovery, 27, 43 ; Ashwin v. Taylor, 37 ; Sivier v. Harris, 71, 96, 102 FISHING INTERROGATORIES. And see Lm^L, Patents. what are, 51 the equity rule concerning, 104, 105. as to how a defence will be made, 108 in company cases, 188 a defendant may, as to pedigree, aslc, in ejectment, 108, 111 to obtain matters in support of particulars ordered disallowed, App. p. 227 FLAW IN TITLE. See Defendant. professional advice sought with regard to, privileged, 71 where an independent title is raised by a party in possession of property, cannot be interrogated upon, 87, 185, 199 plaintiff can never interrogate as to, 92 except where claiming by an equitable title in ejectment, 95 defendant may, where he does not raise an independent title, 92 and even where he does in ejectment, 95, 96 this rule as to, illustrated by actions as to rights f>f common, 186 FOREIGN STATES, discovery by, 32 Courts of Actions for discovery to aid, 181 FOREIGN SHIP, discovery by owners of, 34 FORFEITURE, objection on ground of incurring, 60 FORGERY, inspection refused when sought to discover alleged, 57 forged documents, 103 (a.) Executors have been held since the Judicature Arts to be obliged to set out aooounts in answers to interrogatories respecting the same in a suit bv legatees ■ Alison V. Alison, 44 L. T. (N. S.) 647. INDEX. 273 FORMS. See Table of Forms, viii. FRAUD, presumptive case of, entitles questions as to dealings with property, even where the party in possession sets up an independent title, 87, 109 f i- , and questions as to the version of the case, 109 but interrogatories as to evidence of, when pleaded, not allowed, 105 though permitted to show that a case must be fraudulent {Good- man V. Holroyd), 110 and that facts pleaded bear a fraudulent construction, 109 professional privilege destroyed by, 70, 71 and that of joint possession, 84 and that protecting mortgagee's title deeds, 102 aUegation of, can be objected to as a ground for discovery, 10.3, 1 18, 200 FRAUDULENT REPRESENTATION, interrogatories in actions of, 44 GARNISHEES, equitable power of enforcing discovery from, in Mayor's Court, 14 HANDWRITING, documents to prove, 48 HEIR-AT-LAW, of what may obtain production in ejectment, xl, 100 in all cases entitled to an affidavit of documents, 101 HEIR-IN-TAIL, distinction as to discovery allowed, that affiirded to heir-at-law, 101 HUSBAND AND WIFE, discovery by, 38 wife may object on the ground of exposing husband to indictment, 59 dismissal of action against, for want of prosecution, 162 IGNORANCE, no objection to answer without averring attempt to obtain informa- tion, 128 IMMATERIALITY. See Inteebogatories, Production and Inspec- tion, Affidavit of Documents, Objections. an objection to discovery, 19, 41, 43, 125 renders an otherwise sufficient answer to interrogatories insufficient, 126 INCRIMINATORY MATTER. See Interrogatories, Production and Inspection, Affidavit of Documents, Objections, Forfeiture, Cen- sure, Penalties, Husband and Wife. 274 INDEX. INDORSEMENTS, on briefs, -when privileged, 68, 69 on order for service of affidavit of documents under Cons. Ord. XV., r. 10,... 160 on writ not part of pleadings (Wallis v. Jackscm, W. N. 1883, 40) INDIAN COURTS, action for discovery to aid, 181 INFORMATION, how far a party from whom discovery is sought must search for, 82, 127—130 INFORMATION AND BELIEF, what is to the best of, 127, 132 the latter includes the former, 127 INJUNCTIONS at equity pending discovery, 7 INQUISITORIAL AND OPPRESSIVE DISCOVERY can be refused, 43, 44, 121 INSOLVENT, statutory provision for examination of, 15 INSPECTION OF PREMISES AND CHATTELS, history of provisions for, 8 time of application for, 25, 26 under Order LIL, rr. 3 and 4. and the patent laws, should be on affidavit, 164 in Mayor's Court, 171 INSPECTION OF PUBLIC DOCUMENTS. See Public Documents. history of, 9, 10 practice in, 183 INSPECTION. (See Production and Inspection of Documents. INTEREST, what entitles to production, 28 in company cases, 188 INTERROGATORIES, ^e Coeporations, the various Heads of Applica- tion, and Answers to Interrogatories. before the Chancery Amendment Act, 1 under the Chancery Amendment Act, 2, 3 under the C. L. P. and Evidence Amendment Acts, 5 to elicit matters pending before a foreign tribunal, 17 INDEX. 'll.) IN TERROGATORIES— COT(((n ued. deliver!/ of, what is, under the Judicature Act, 18, 143 so as to found an attachment on, 163 to plaintdfF before statejnent of claim, 19, 20 to plaintiff hefore statemeut of defence, 20, 21 to defendant before statement of defence, 20, 21 only under special circumstances, 20, 23, 24 to both parties after the close of the pleadings, 21, 22 leave in this case required, 143 costs as to, 177 forms of, App., pp. 197— 199, 224—225 as to docuviente, the use thereof under the old practice, 7 since Judicature Act not allowed before affidavit of documents, 22 may still be put to obtain a further and better affidavit of docu- ments, 139, 149 and ususil in the Mayoi-'s Court, 168 as to the conUnts of documents, 115, 125, 129. And see Executoks, Accounts. as to printer and publisher in libel suite («), 59 who may be parties to, under tlie Judiccdiire Acts, 28 a co-detendant may not be, 33 province and object of, 39 the Judicature Act confers no new rights to, 39 what the right to is, 40 when formerly struck out, 4 now only where scandalous, vexatious or unreasonable, and what is, 41, 42, 60, 58 objection to answer, no bar to application to strike out, 41 practice as to striking out, 144, 147 where majority are objected to a.s bad the whole may be struck out, 144 objections to, as irrelevant, and what is relevant, 41 et seq. immateriality at a particular stage of the action, 19, 43 prying and not bondjide,_ 43, 51, 104, 105, 108, 111, 188 inquisitorial and oppressive, 43, 44 ; as too wide, 44 in the nature of cross-examination as to credit, 44 seeking to go behind the pleadings, 44 as involving discovery dependent upon an issue, 61, 52, 53 exceptions, 54 " on any other ground," 51 as tending to incriminate, 54, 127, 134 must be taken in the answer, 55 et seq. and by the party himself, 30 as tending to impute illegal conduct, 61 as exposing to penalties, censure and forfeiture, 61, 62 as professionally privileged, 63 et seq. as addressed to matters depending on documents in the possession of persons not parties who refuse the same, 83, 181 as relating solely to his title from whom the discovery is sought, 86 et seq. (a) This discovery, prescribed by the statutes to be by action, can now be obtained by interrogatories : Lefroy v. Burnside, L. R. Ir. i C. L. 340. T 2 27G INDEX. INTERROGATORIES— C07iVITH A VIEW TO LITIGATION, meaning of; «ee Privilege. WASTE, SUITS FOR. And see Accounts. discovery in, 125, 151 WITNESSES' NAMES, interrogatories as to, when not for the purpose of getting at evidence but only for discovery material to interrogator's °case, allowed' 104, 112 (a) o . , WITNESS, party objecting that his answer to interrogatories might incriminate him, in position, 27 interrogatories should not convert the position interrogated into a, 130 (a) Add to the cases Murray v. Clayton, L. R. 15 Eq. 115. LNDEX. 291 WKITTKN DOCUMENTS, intetrogatones as to contents of, 115, 117 when executors' accounts, 47, 54, 125, 129. And see Executors. WKOXGFUL DISMISSAL, in actions for, interrogatories as- to specified acts of misconduct allowed, 113 documents relating to reasons for dismissal not to be produced where justification allowed, 104, 112 WRONGFUL DISTRESS, ACTIONS FOR, discovery in, 184 ■e THE END iV. I. RICHAKD.'lON, PKINTEB, 4 ANT) 5, OREAT QI.KKN STKEF.T, LONDON, \v.C. ^-^L.iT-^Vn':.-