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THE 
 
 LAW AND PEACTICE 
 
 DISCOVEKY. 
 
THE 
 
 LAW AND PRACTICE 
 
 DI SCOVERY 
 
 ^ 
 
 xiprtmt Coutt of Justict 
 
 APPENDIX OF FORMS, ORDERS, ETC. 
 
 CLARENCE JOHN PEILE, 
 
 OF THE INNER TEMPLE, BARRISTER- AT- LAW. 
 
 Charge us here upon inter' gat' ries, 
 And we will answer all things faithfully. 
 
 Merchant of Votice. 
 
 LONDON: 
 
 STEVENS AND HAYNES, 
 
 BELL YAED, TEMPLE BAR. 
 1883. 
 
l&(o^L^O 
 
 LONDON : 
 BRADBURY, AGNJBWj & CO., PRlNTEBSj WUITEFRIARR. 
 
PREFACE. 
 
 Had it not been for the very recent appearance 
 of another work iipon the same subject, the author 
 would not have considered any apology necessary for 
 the appearance of a work upon a subject, the doctrines 
 of which have recently been so much elucidated, and 
 the practice in which has been so greatly altered, as 
 that of Discovery. In his opinion, of the justice of 
 which the public must judge, there is nothing in that 
 previous work to render his own unnecessary. It 
 was originally intended, and was so announced, to 
 postpone the publication of the present work until 
 the issue of the expected new rules of practice, which 
 would, it was understood, deal at any rate with the 
 costs of discovery, and otherwise place some check 
 upon the free flow of interrogatories with all their 
 train of innumerable applications and costs. This 
 intention was of necessity abandoned iu consequence 
 of the apparently indefinite postponement of the 
 further consideration of the Kules. One word as to 
 the special object of the book. The author has 
 attempted to deal with the subject somewhat more 
 systematically than has hitherto been done, and to 
 
vi PREFACE. 
 
 present a short statement of the law under the various 
 heads, rather than to give a string of eases, which 
 proceed in great measure upon their individual facts. 
 In this respect he trusts that he has not incurred 
 the fault of obscurity, while aiming at conciseness. 
 Care has been taken to collect as many authorities as 
 possible, and with that object, the decisions of the 
 Irish Courts, which are now in pari materia^ so far as 
 the practice is concerned, have been largely cited. 
 Lastly, it is hoped that the table of multiple refer- 
 ences to the reports will be found useful, especially 
 by those whose libraries are limited in this respect. 
 
 C. J. PEILE. 
 
 Lamb Building, June, 1883. 
 
 P.S. — Acknowledgment is due to the editors of 
 Chitty's Porms and Daniell's Chancery Forms, for 
 valuable assistance derived therefrom in compiling 
 the forms given in the Appendix. 
 
TABLE OF CONTENTS. 
 
 PEEFACE "'"v 
 
 TABLE OP CASES ix 
 
 ADDENDA xxxiii 
 
 CHAPTER I. 
 Introductory 1 
 
 CHAPTER II. 
 Peoceedings in ■which, and Parties between whom, Dis- 
 covery IS Obtainable .... 7 
 
 CHAPTER III. 
 
 Or THE Stage at -which Discovery is Obtainable . . 12 
 
 Sect. 1. — Time at -whicli discoverj' is obtainable . . 12 
 
 Sect. 2. — Discovery after judgment . . . . 18 
 
 CHAPTER IV. 
 
 Objections to Discovery 
 
 Sect. 1. — General Immateriality .... 
 Sect. 2. — Want of immediate materiality. — Postponin 
 
 discovory 
 
 Sect. 3. — Opponent's case or title .... 
 Sect. 4. — Injurious personal consequences . 
 Sect. 5. — Professional confidence .... 
 Sect. 6. — Not sought bond fide .... 
 Sect. 7. — Contrary to public policy 
 Sect. 8. — Bona fide purchaser for value 
 
 22 
 22 
 
 26 
 33 
 46 
 51 
 63 
 65 
 66 
 
 CHAPTER V. 
 
 Discovery by Interrogatories 69 
 
 Sect. 1. — Form of interrogatories .... 69 
 
 Sect. 2. — Mode of objecting to interrogatories . . 72 
 
 Sect. 3. — Further interrogatories .... 75 
 
COXTENTfl. 
 
 CHAPTER VI. 
 
 Answers to Interrogatories 
 
 Sect. 1. — Form of answer 
 
 Amending answer .... 
 Sect. 2. — Particular grounds for objecting to answer 
 Sect. 3. — Sufficif-ncy of answer .... 
 Sect. 4. — Enforcing answer or further answer 
 Sect. 5. — Using answer in evidence 
 
 CHAPTER VII. 
 
 Discovert oe Documents 
 
 Sect. 1. — Application for affidavit of documents . 
 Sect. 2. — Affidavit of documents. — Further affidavit 
 Sect. 3. — Inspection of documents referred to in plead- 
 ings or affidavits 
 
 Sect. 4. — Production of documents generally 
 Sect. 5. — Practice as to inspection of documents 
 
 77 
 77 
 81 
 82 
 86 
 95 
 101 
 
 106 
 106 
 111 
 
 122 
 127 
 139 
 
 CHAPTER VIII. 
 
 Inspection of Property 146 
 
 CHAPTER IX. 
 
 Consequences of Failitre to give Discovery. , . 151 
 
 CHAPTER X. 
 
 Discovert in Particular Actions 159 
 
 Sect. 1 .—Discovery from corporations, companies, &c. 159 
 
 Sect. 2. — Actions for the recovery of land . . . 164 
 
 Sect. 3. — Actions on marine pohcies . . . . 168 
 
 Sect. 4.— Actions for infringement of patents . . 170 
 
 CHAPTER XI. 
 
 Miscellaneous 177 
 
 CHAPTER XII. 
 Costs 
 
 182 
 
 APPENDIX OF FORMS AND OEDEES . . . . 189 
 INDEX 207 
 
TABLE OF CASES. 
 
 Ab-At 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Reporter. 
 
 Miscellaneous. 
 
 A. 
 Abttd v. Eiclies., 
 
 Aoheson v. Henry 
 
 Acomb V. Landed Estates Co. 
 
 Adams 1). Fisher 
 
 Agar V. Regent's Canal Co. ... 
 
 Ainsworth v. Starkie 
 
 Airey v. Hall 
 
 Alcock «;. Gill 
 
 Alexandra Palace Co., He 
 Alexandra Dock Co. v. Elliott 
 
 Alhusen v. Laboucliere 
 
 Alison V. A. See Sutcliffe, Re. 
 
 AUfrey v. A 
 
 Alton V. Harrison 
 
 Ambler r. Bolton 
 
 Amhm-st i;. King 
 
 Amies i>. Kelsey 
 
 45 Cb. 649 
 
 7 Cb. 289 
 
 39 Cb. 712 
 50 Cb. 7 
 
 47 Cb. 819 
 
 Anderson v. Bank of Columbia 
 
 Angl.-Austr. Bank, He 
 
 Anstey v. N. Woolw. Gas Co. 
 Armitage v. Fitzwilliam . . , 
 
 Ascbcroft i;. Foulkes 
 
 Asbley v. Taylor, C. A. . . 
 
 Aston, Ex^arU 
 
 Atberley ». Harvey 
 
 Atkyns v. Wrigbt 
 
 Att.-Gen. t;. Brooksbank 
 — V. Brougham 
 
 V. Castleford \ 
 i-d .../ 
 
 Local Board 
 V. Clapham 
 
 45 Ch. 449 
 
 48 Ch. 776 
 
 46Q.B.518 
 
 34, 713 
 
 21, 
 43, 
 
 704 
 406 
 
 39, 207 
 
 35, 76 
 
 40, 393 
 
 36, 551 
 
 27, 644 
 
 24, 627 
 
 W. N. 1866, 87 
 2 Jur. 508 
 
 XX. L.'j. 162 
 12 Jur. 1043 
 
 29, 70 
 27, 12 
 
 24, 624 
 27i'575 
 
 :;:{ 
 
 25, 727 
 21, 117 
 
 15 Jur. 831 
 
 16 Jur. 1047;! 
 1 B. C. C.123J 
 
 XX. S. J. 281 
 
 5 Jur. N. S. 
 615, 779 
 
 101, 140, 
 151, 154, 
 155, 156, 
 182 
 14, 15 
 161 
 27 
 23 
 3 
 133, 137 
 120 
 8, 161 
 64 
 46,65,73, 
 74, 8 
 
 87,94,99, 
 100, 154 
 9 
 93 
 90 
 
 147, 175, 
 176 
 , 51, 58, 
 59,60,61, 
 92, 160 
 177 
 96 
 71 
 10 
 36,95,96 
 
 47 
 
 4,6 
 
 130 
 
 4 
 
 138 
 
 120 
 
 4 
 
TABLE OF CASES. 
 
 At-Be 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Law Times 
 
 (New Series). 
 
 Weekly 
 Repobtbr. 
 
 Miscellaneous. 
 
 Page. 
 
 Att.-Gen. v. Edmunds . 
 — r. Emerson , 
 
 — V. Gaskill , 
 
 V. London Cor- 
 poration 
 
 — V. Lucas 
 
 — V. Mercers' Co. 
 
 — V. Shrewsbury \ 
 
 Bridge Co / 
 
 — V. Thompson 
 
 — V. Whitwnod 1 
 
 Local Board ... J 
 
 Augustinus 7). Nerinckx 
 
 Ayres v. Levy 
 
 52 Q. B. 65 
 51 Ch. 870 
 
 18 Ch. ) 
 314,339 ;} 
 
 19 ib.Sli \ 
 
 12 Ch. 506 
 
 40 Ch. 592 
 
 B. 
 
 Bacon v. B 
 
 — V. Turner .. 
 Bagott V. Easton .. 
 
 Bainbridge v. Blair 
 
 Baines v. Bromley 
 
 Baker v. Lane 
 
 34 Ex. 57 
 
 V. Newton 
 
 Balguy V. Broadhurst 
 
 Ballard v. Tomlinson 
 
 Bally V. Kenrick 
 
 Banbury v. B 
 
 Bannatyne v. Leader 
 
 Barlow v. Bailey 
 
 Barnard v. Hunter 
 
 Barned's Bank. Co., Re 
 
 Barnicot u Harris 
 
 Bartley v. B 
 
 Bassett v. Nosworthy 
 
 Bassford v. Blakesley 
 
 Batley v. Kynook (No. 1) .. 
 — — (No. 2) .. 
 
 Bay ley v. GriiRths 
 
 Beal ti. Pilling 
 
 Beatson ti. Skene 
 
 Bechervaise D. G. W. R 
 
 Belleropkon, The 
 
 Belsham v. Harrison , 
 
 Bellwood V. Wetherall 
 
 36 Ch. 262 
 22 Ch.' 47 
 
 44 Ch. 89 
 lb. 219 
 31 Ex. 477 
 
 29 Ex. 430 
 40 C. P. 8 
 44 Ad. 5 
 15 Ch. 438 
 4Ex.Eq.23 
 
 48, 18 
 46, 180 
 
 3, 438 
 
 43, 458 
 
 34, 849 
 
 11, 638 
 
 16, 249 
 
 31, 673 
 
 2,878 
 23, 808 
 31, 756 
 
 15, 138 
 31, 191 
 
 30, 558 
 
 9, 83 
 
 19, 1107 
 29, 225 
 
 12 Beav. 8, 
 
 171;2H. &T. 
 
 l;13Jur. 374; 
 
 14 ib. 205 
 
 W. N. 1880, 23 
 
 29, 245 
 13, 293 
 
 31, 563 
 
 18, 783 
 
 15,' 524 
 
 1,"48 
 
 23, 62 
 Ib. 209 
 10, 798 
 
 8, 544 
 19, 229 
 23, 248 
 
 3 H. & C. 
 
 544; 11 Jur. 
 
 N. S. 117 
 XX. S. J. 177; i 
 LX. L. T. 157/ 
 
 W. N. '1883, 90 
 
 W. N. 1870,136 
 19 Jur. 1065 
 
 16Jur.O.S.1062 
 
 6 Jur. N. S. 780 
 10 Jur. 772 
 
 78 
 
 3, 35, 39, 
 42, 46 
 S2,4,5,37, 
 69,82,83, 
 84 
 
 38,39,40 
 
 48 
 
 162, 163 
 
 90, 91 
 
 27, 35 
 140, 141, 
 
 143 
 16, 36 
 
 137 
 
 63,55,61 
 77 
 8 
 134, 135, 
 
 154 
 182, 183 
 
 64 
 
 25 
 
 62 
 97, 154 
 25 
 51 
 43 
 148 
 107 
 8 
 85 
 142, 144 
 67 
 35 
 148, 176 
 174 
 40 
 14 
 65, 66 
 64, 161 
 66 
 123 
 165 
 
TABLE OF CASES. 
 
 Be— Br 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series V 
 
 Beubow V. Low 
 
 Benjamin I'. Saulez 
 
 Bennett r. Glossop 
 
 — r. Griffiths 
 
 — r. Whitehouse 
 
 Benyon v. Goddeu 
 
 Berkeley!'. Stand. Co. (No. 1) 
 
 — — 0. A. (No. 2) 
 
 Berry v. Keen 
 
 Bermck, Mayor of, r. Murray 
 
 Bethell v. Caason 
 
 Betts ?;. Eimell 
 
 Bewicks v. Graham (C. A.)... 
 
 Biola, The 
 
 Birch V. Mather 
 
 Birmingham Bank. Co., Be... 
 
 Black V. Holmes 
 
 Blair v. Massey 
 
 Blakesley ;■. Pegg ' 
 
 Bleazby v. B 
 
 Blenkinsopp v. B 
 
 Bloxsome v. Chichester 
 
 Bolckow 17. Fisher 
 
 Boldero v. Saundei-s 
 
 Bolton V. Liverpool Corpo- ] 
 
 ration J 
 
 Bonnardet v. Taylor 
 
 Bonner r. Jackson 
 
 Bovill u Cowan 
 
 — V. Smith 
 
 Bowdler t). Allen 
 
 Bowen v. Pearson 
 
 — I. Price .• 
 
 Bowes V. Femie 
 
 Boyd t). Petrie 
 
 _ — (No. 2) 
 
 — v.B 
 
 Boyse i;. Cokell 
 
 Brancker v. Came 
 
 Bridgwater D. B 
 
 British Empire Co. v. Soames 
 
 Brooks «. Bouchar 
 
 Brougham v. Cauvin 
 
 Law Times 
 (New Series), 
 
 50 Ch. 35 
 
 30 Q, 
 
 B. 98 
 
 49 Ch. 1 
 
 50Q. B. 396 
 
 52 Ch. 292 
 6 Oh. 150 
 
 17 Ch. 343 
 34 Ch. 79 
 
 1 Ch. 166 
 30 Ch. 523 
 
 39 Ch. 768 
 
 22 Ch. 179 
 37 Ch.' 334 
 
 26 Ch. 759 
 
 44, 119 
 
 3, 735 
 
 41, 374 
 
 9, 321 
 
 lb. 371 
 
 15, 203 
 
 11, 722 
 
 47, 724 
 
 3, 884 
 
 22, 503 
 
 22, 342 
 8, 495 
 
 Weekly 
 Reporter. 
 
 29, 265 
 9, 332 
 
 26, 852 
 
 28, 125 
 
 12, 200 
 
 29, 436 
 
 24, 524 
 31, 362 
 
 13, 285 
 31, 235 
 
 9, 452 
 
 18, 633 
 
 18,695 
 11, 819 
 
 17, 903 
 
 5, 813 
 10, 708 
 
 Miscellaneous. 
 
 7 Jm-. N. S. 284 
 
 13 Jiir. 1063 ; 
 1 H. &T. 452 
 
 3 N. R. 29 - 
 
 "W. N. 1866, 340 
 
 11 Jm-. 721 
 
 / 5 N. K. 212 ; 
 
 1 njur.N.S.48 
 
 3 Sim. 467 
 7 Jur. 328 
 
 Jur. N. S. 789 
 
 3 Jur. N. S. 883 
 8 Jur. N. S. 639 
 W. N. 1868, 12 
 
 31,33,36, 
 175 
 130 
 166, 167 
 148, 149 
 147 
 8, 177 
 70, 160, 
 161, 162 
 104, 15P, 
 160, 162, 
 183, 184 
 11 
 
 141 
 
 35, 116, 
 136, 138 
 
 184 
 
 4, 33, 
 
 100, 117, 
 
 119, 120, 
 
 129 
 
 64 
 
 37, 170, 
 
 172 
 
 136 
 
 132 
 
 143 
 
 141 
 
 164 
 
 52, 128 
 
 [ 78 
 
 91 
 
 78,87,88 
 
 38, 41 
 
 143 
 53 
 114, 116, 
 133 
 36, 40 
 3, 50 
 107 
 71 
 116, 119 
 
 144 
 
 33,39,53, 
 
 115 
 
 118 
 
 96 
 
 17 
 
 96 
 
 177 
 
 32 
 
 136 
 
Xll 
 
 Br-Ch 
 
 TABLE OF CASES. 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Brown v. Foster 
 
 — V. Lee 
 
 — V. Oakshott 
 
 — V. Sewell 
 
 — V. Thames Co 
 
 — i;. Wales 
 
 Browning i: Sabin 
 
 Buccleugli V. Metropolitan"! 
 
 Board / 
 
 Buchanan v. Taylo 
 
 Bull V. Lond. School 
 
 Biiard 
 
 Bullock V. Corry 
 
 Bunn V. B 
 
 Biirbidge 4). Robinson 
 
 Burrell V. Nicholson 
 
 Burton Co., Se 
 
 Bustros t). B 
 
 Law Times 
 (New Series). 
 
 V. White 
 
 Bute, Lord, v. Lewis , 
 Button V. S. E. K. ., 
 
 Caldeeok v. Boon 
 Caldecott, Sx parte 
 Galley «. Eichards... 
 Callow V. Howie . . . 
 Cameron's Co., Re... 
 Campbell, Ex parte 
 
 — He 
 
 Carew v. Davies 
 
 — V, White 
 
 Carpraael v. Powis 
 
 Carter v. Leeds Co. 
 
 — V. Stubbs 
 
 Carver v. Pinto Leite 
 
 Carwell ( 
 
 Caiy oj. Cuthbert 
 
 Cashin v. Craddock (No. 1) . 
 
 - — (No. 2) . 
 
 Catt V, Tourle 
 
 Chadwick «. C 
 
 Chant 1). Brown 
 
 Charlton v. Coomhes 
 
 Chester v. Wortley 
 
 26 Ex. 249 
 
 42 Ch. 45 
 
 41 Ex. 137 
 
 47Q.B. 352 
 
 45Q.B. 642 
 
 25Q.B. 165 
 15 Cii.' 275 
 
 50Q.B. 161 
 41 Ch. 92 
 
 32 Ch. 284 
 25 C. P.117 
 
 27, 410 
 
 38, 
 10, 
 
 102 
 211 
 
 34, 835 
 16, 82 
 
 23, 289 
 
 43, 746 
 26, 722 
 16, 217 
 
 34, 52 
 
 8, 81 
 
 Weekly 
 Reporter. 
 
 21, 157 
 
 26, 330 
 12, 561 
 
 10," 87 
 
 24, 721 
 15, 479 
 
 Miscellaneous. 
 
 3 Jur. N. S. 246 
 12 Jur. 687 
 
 XX. S. J. 298; "1 
 LX. L. T. 266 I 
 
 3 N. E. 679 
 
 18, 1066 
 
 28, 480 
 
 4, 121 
 
 29, 132 
 20, 134 
 
 18, 966 
 1, 29 
 
 11,"504 
 4, 325 
 
 20 Jur. 207 
 
 XX. S. J. 218 
 
 16 Jur. 1060 
 16 Jur. 606 
 1 N. R. 547 
 20 Jur. 191 
 
 54 
 80 
 55 
 139, 185, 
 
 186 
 
 161 
 35 
 
 152 
 
 41 
 
 182, 184 
 
 61, 62 
 
 111 
 
 135 
 
 35 
 
 12 
 
 139, 140, 
 
 141 
 
 4,6,51,61 
 
 129, 132, 
 
 138 
 
 38, 40 
 
 162 
 
 55 
 
 68 
 
 51 
 
 104 
 
 115 
 
 54 
 
 179 
 
 38 
 
 137 
 
 53 
 
 71,74,85, 
 160 
 79 
 
 23, 28, 
 
 132, 171, 
 
 173 
 
 102 
 
 50, 52 
 
 12, 13, 
 
 130 
 
 86 
 
 85, 120 
 
 25, 74 
 
 52, 61, 89 
 
 55 
 
TABLE OF CASES. 
 
 Ch-Cu 
 
 XIU 
 
 NAMES OF CASES. 
 
 Law 
 
 JOUKNAL 
 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 Chesterdeld Coll. Co. v. Blackl 
 Chichester v. Lord Donegal ..{39 Ch. 694 
 China Co. v. Commercisd Co. 51 Q. B.832 
 
 Christians. Taylor IIO Ch. 145 
 
 Christie i'. C '42 i*. 544 
 
 Church u Perry 
 
 Churton v. Frewen 35 Ch. 97 
 
 Clark s. Dyson 
 
 Cleary v. Fitzgerald 
 
 Clegg V. Edmunson 
 
 Clements, Be 
 
 Clinch V. Financial Corpo- 1 
 
 I'ation J 
 
 Clive 1). Carew 
 
 Cocks D. Stanley 
 
 Coleman v. West Hart. Ry. Co. 
 
 Collins Co. V. Brown 
 
 Commissioners of Sewers v. \ 
 
 Glasse f 
 
 Compagnie Finaucifere v. \ 
 
 Peniv. Guano Co / 
 
 Constantinople Co. , Jte 
 
 Cooke V. Oceanic Steam Co. 
 
 V. Turner 
 
 Coomhe v. London Corporation 
 
 Cooper V. Castle 
 
 — V. Ince HaU Co 
 
 Corporation of Hastings v. \ 
 
 IvaU J 
 
 Corporation of Liverpool v. l 
 
 Chippendale J 
 
 Corsellis, Re 
 
 Cottingham,Lord,t).Shrews- \ 
 
 bury J 
 
 Cox V. Alhngham 
 
 — ». Bockett 
 
 Coyle ». Allen 
 
 — V. Cuming 
 
 Credit Co.', Me 
 
 Crisp ». Platel 
 
 Crofts V. Peach 
 
 Croome v. Morrison 
 
 Crosskey ■». Europ. Co 
 
 Crossley r. Dixon 
 
 — i!. Stewart 
 
 _ — (No. 2)... 
 
 — V. Tomey 
 
 Crowe V. Bank of Ireland ... 
 
 Cull 17. Ingles 
 
 Curd v. C 
 
 Curling «>. Perring 
 
 Curran v. Elphinstone 
 
 42 Ch. 345 
 
 15 Ch. 80 
 
 42 Ch. 883 
 19 Ch. 328 
 
 15 Ch. 441 
 
 22 Ch. 937 
 48 Ch. 221 
 
 37 Ch. 629 
 
 i Ch. 80 
 
 40, 393 
 20, 344 
 45, 647 
 
 28, 433 
 
 48, 425 
 
 18, 
 
 552 
 
 34, 476 
 19, 183 
 
 Weekly 
 Reporter. 
 
 24, 783 
 17, 544 
 30, 224 
 
 14,685 
 
 21, 520 
 
 3 Jur. N". S. 
 299 
 
 12 Jur.' W. S. 
 484 
 
 ... I 
 
 W. K 1866, 103 
 XX. S. J. 80 ; 1 
 LX. L. T. 68 J" 
 
 21, 899 
 
 218 
 380 
 
 282 
 
 11, 636 
 
 19, 910 
 16, 477 
 
 M1SCELLANE0U.S. 
 
 6 Jur. 571 ; 1 
 10 ib. 57 J 
 
 XX. S. J. 241 
 
 W. N. 1883, 60 
 
 20 Jur. 
 
 IN. R. 
 2 N. R 
 
 6 Jut. 307 
 
 163 
 
 426 
 57 
 
 33, 107 
 168, 169 
 94, 117 
 86, 184 
 89, 96 
 61,81,82 
 
 156 
 13,14,109 
 30,33,94, 
 
 130 
 
 140, 144 
 
 114, 115, 
 
 163 
 
 104 
 
 22, 183 
 
 143 
 
 159 
 
 33,34,38 
 
 112, 119, 
 120 
 
 163 
 
 50 
 40,42,43, 
 113, 139 
 
 157 
 
 147 
 42, 44, 
 
 131 
 
 97, 98 
 
 9, 110 
 
 19, 21 
 
 104 
 
 64 
 
 155 
 
 86 
 
 10, 124 
 
 35 
 
 176 
 
 15 
 
 98 
 
 75 
 
 171, 172 
 
 100 
 90, 170, 
 
 171 
 
 77, 110 
 
 32 
 
 137 
 
 67 
 
 153 
 
XIV 
 
 Da— Ea 
 
 TABLE OF CASES. 
 
 NAMES OF CASES. 
 
 D. 
 
 Dakins v. Garrett 
 
 Dallas V. Glyn 
 
 Dally V. Worham . . . 
 Dalrymple v. Leslie 
 Dalston v, Naiison 
 
 Danell v. Page 
 
 Dauiell v. Bond ... 
 
 — V. Ford . 
 
 Danvillier t). Myers 
 
 — — (No. 2) , 
 
 Dare Valley Ry., Be 
 
 Davey v. Pembertoii 
 
 Davies 1). Marsh all 
 
 — V. Williams 
 
 Davy®. Gan-ett 
 
 Daw V. Eley 
 
 I^awkins u Mortan 
 
 Deare v. Att. -Gen 
 
 De la Eue v. Dickinson 
 
 Dennis v. Eochussen 
 
 Dent V. D 
 
 Derby Bank v. Lumsden 
 Desborough V. Eawlins... 
 Devaynes f. Eobinson ... 
 
 Dickson v. Harrison 
 
 Disney v. Longbourne 
 
 Dixon V. Enoch 
 
 Dobson V. Eichardson 
 
 Doolin 4). Dixon 
 
 Drake v. D 
 
 — V. Symes. 
 
 Draper v. Manchester Ry. 
 Dublin Ey. v. Navan Ey. 
 
 Duncombe v. Davis 
 
 Dunn V. D 
 
 — V. Ferrior.... 
 Dwyer v. Collins . 
 
 E. 
 
 Eade v. Jacobs .... 
 Eadie v. Anderson. 
 
 Law 
 
 Journal 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 45Q. B. 136 
 
 51 Q. B. 61 
 47 Ch. 609 
 .■?7 Ch. 631 
 
 37 Ch. 719 
 
 47 Ch. 218 
 
 27 Ch. 368 
 35 Ch. 112 
 39 C. P. 72 
 
 45 Ch. 532 
 
 41 Ch. 231 
 37Q.B.261 
 
 29 Ch. 349 
 
 30 .Ch. 236 
 
 n (:iV. 18 
 
 21 Ex. 225 
 47 Ex. 75 
 
 34, 897 
 
 45, 479 
 
 18, 735 
 3, 700 
 
 , 469 
 ,77 
 
 21, 673 
 
 38, 794 
 
 35, 301 
 26, 127 
 
 1, 186 
 3, 685 
 
 37, 621 
 
 Weekly 
 Reporter. 
 
 24, 881 
 
 30,"i05 
 
 26, 434 
 
 16, 1080 
 
 9, 313 
 
 29, 535 
 
 Miscellaneous. 
 
 Page. 
 
 9, 756 
 28, 223 
 26, 225 
 
 6, 265 
 18, 526 
 
 26, 730 
 
 24, 663 
 
 20, 359 
 16, 101 
 16, 796 
 
 8, 85 
 9, 215 
 
 W. N. 1882, 
 165 ; XXVn. 
 S. J. 332 
 
 8 Jur. KS. 891 
 7 Jur. N. S. 669 
 
 4 Jur. N. S. 29f 
 36 Beav. 126 
 
 26, 159 
 31, 320 
 
 9 B. & S. 516 
 
 6 Jur. N. S. 
 318 j 
 
 7.Tur.N.S.S6 
 
 5 Jur. i()81 
 
 W. N.' 1869, 
 
 238; ib. 1870, 
 
 106 
 
 16 Jur. 569 
 
 70, 183 
 154 
 101 
 
 33, 84, 93 
 152 
 
 98, 100 
 168 
 
 111, 166 
 
 3,17,126, 
 
 177 
 
 167 
 
 66 
 
 145 
 
 183 
 
 13 
 
 86 
 
 i5,37,39, 
 
 41 
 
 102 
 
 4 
 
 !6, 29, 
 ;71, 172 
 17, 76 
 8, 9 
 34 
 53, 54 
 55 
 (2, 95, 
 108, 111 
 15,16,17, 
 71 
 3, 50 
 38 
 112 
 139 
 23,24,52, 
 75,93,94, 
 101, 1.S8 
 142 
 102 
 24 
 141, 142 
 
 166 
 
 53 
 
 37,82,84, 
 186 
 53 
 
TABLE OF CASES. 
 
 Ea— Eo 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Reporter. 
 
 Eiirp I'. Lloyd , 
 
 — r. — (No. 2) 
 
 East India Co. v. Kynaston.. 
 
 East India Dock r. Littledale 
 
 Edmunds v. Lord Foley . . . 
 
 — v. Greenwood ... 
 
 Edwards r. Wakefield 
 
 Eglington v. Lamb 
 
 Elkin V. Clarke 
 
 Ellis f. Ambler 
 
 Ellwand u. M'Donnell 
 
 Elmer v. Creasy 
 
 Emma, The 
 
 EngUsi. t). Tottie 
 
 Ennor I!. Barwell 
 
 Enthoven v. Cobb 
 
 Evans v. Louis 
 
 Evelyn v. E 
 
 Ewing r. Osbaldistou 
 
 Eynde v. Gould 
 
 F. 
 
 Farquhakson ■«. Balfour 
 
 Farrier or Ferrier v. Atwool.. 
 
 Felkin v. Herbert 
 
 Ferrior, Ee 
 
 Few V. Guppy _. 
 
 Financial Corp. v. Bristol Ry 
 
 Finnegan r. James 
 
 Finney tJ. Forwood 
 
 Fiott V. Mullins 
 
 Fislierti.Hugh.es 
 
 — V. Owen 
 
 Fitzgerald v. Simpson 
 Fitzgibbon v. Greer ... 
 
 Fleet V. PeiTins 
 
 Flockton V. Peake 
 
 Flower v. Lloyd. 
 
 — i>. — (No. 2) 
 
 Follett V. Jetferyes 
 
 Ford V. Bryant 
 
 — V. De Pontes 
 
 — v. Dolphin 
 
 — V. Tennant 
 
 Fortescue w. F 
 
 Foxwell V. Webster — 
 
 31 Ch. 384 
 38 0. P.116 
 
 43 Ch. 166 
 45Q.B.138 
 
 47 cii.' 18 
 
 30 Ch. 798 
 
 44 Ch. 18.5 
 •35 Ex. 42 
 22 Ch. 72 
 
 47 Ch. 681 
 
 37 Q.B.233 
 
 20 Ch. 65 
 15 Ch. 261 
 
 32 Ch. 465 
 
 5, 709 
 19, 425 
 
 13, 198 
 
 29, 632 
 33, 724 
 
 42, 248 
 
 13, 296 
 20, 50 
 
 38, 577 
 
 19, 147 
 
 35, 454 
 
 7, 732 
 34, 847 
 
 210 
 142 
 710 
 176 
 
 557 
 
 22, 141 
 
 687 
 393 
 300 
 
 28, 531 
 
 8 Jur. N. S. 652 
 
 2 Jur. N. S. 762 
 12 Jur. N. S. 45 
 
 3 Mar. Cas. 218 
 16 Jur.' 1152 
 
 14, 582 \ 
 697 j 
 9, 756 
 
 23, 373 
 14, 85 
 
 26, 581 
 
 12, 1023 
 
 25, 17 
 
 11, 324 
 24, 945 
 
 Miscellaneous. 
 
 35 
 
 87,88,100 
 127, 147 
 79 
 133 
 64 
 34 
 119, 134 
 28, 32 
 17, 109 
 135, 161 
 24,28,30, 
 32 
 79 
 60 
 149 
 135 
 131 
 158, 165 
 49 
 151 
 
 1 S. & 
 12Jiu-. 
 
 S. 72 
 jSr. S. 365 
 
 N. S.878 
 946 
 
 11 Jur. 
 16 Jur. 
 
 9 B. & S. 575 
 
 4 N. R. 456 
 
 I XX. S.J. 684, 
 703 ; XXl.ib. 
 ( 708 
 
 13 Jur."972 
 
 10 Jur. 484 
 
 5 Jur. N. S. 99; 
 
 9 Jur. JS'. S. 292 
 
 3 N. R. 180 
 
 94,97,99, 
 100, 138 
 
 45 
 
 33 
 
 178, 179 
 
 75 
 80, 90 
 
 170, 172 
 34 
 
 130 
 157, 158 
 46.50,69, 
 73,74,8 
 
 89 
 
 123, 125 
 
 66,83,93 
 
 103 
 
 186 
 
 ) 30, 139, 
 [150,175 
 
 171, 172 
 55 
 20 
 
 52,55,62 
 
 134 
 54 
 111, 116, 
 
 117 
 171, 173 
 
XVI 
 
 Fr-Ha 
 
 TABLE OF CASES. 
 
 NAMES OP CASES. 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Fraser v. Burrows 
 
 Freasou f . Loe 
 
 Freeman V. Fairlie 
 
 — V. Tatham 
 
 French v. Macabe 
 
 Friend v. L. C. & D. Ey. 
 Frost r. Brooke 
 
 Furber v. King 
 
 G. 
 
 Gabbett D. Cavendish... 
 Gardiner v. Dangerfield 
 
 Gardner v. Irvin 
 
 Garle v. Robinson 
 
 Gartside J). Outrani 
 
 Gay V. Labouchere 
 
 Gibbons v. Waterloo Bridge 
 
 Co 
 
 Girdlestone v. N. Brit. Ins. 
 
 Co 
 
 Glengall, Lord, o. Fraser.... 
 
 Glover v. Hall 
 
 Glynn v. Caulfleld 
 
 — V. Houston 
 
 Gomm V. Parrott 
 
 Gooch's Case 
 
 Goodall V. Little 
 
 Goodchap v. Wearing 
 
 Goodman v. Holroyd 
 
 Gore 2>. Bowser „. 
 
 Goughi!. Offley 
 
 Gourley ». Plimsoll 
 
 Grane «, Cooper , 
 
 Gray «. Bateman ., 
 
 Great Luxemburg Ey. 
 
 Magnay 
 
 Great Western CoU. v. 1 
 
 Tucker f 
 
 Green v. Weaver 
 
 Greenwood v. G 
 
 Gresley v. Mousley 
 
 Groves w. G. 
 
 46 Q.B.501 
 
 15 Ch.' 32.3 
 46 Ex. 696 
 
 50 Ch. 496 
 
 H. 
 
 Hadley v. McDougall 
 Haldane v. Eckford .... 
 Hall V. Connell 
 
 48 Ex. 223 
 
 26 Ch. 113 
 48Q.B. 279 
 
 40 Ch. 230 
 
 12 Ch. 128 
 17 Ch. 249 
 
 6 Ch. 129 
 26 C. P. 279 
 
 41 Ch. 338 
 
 42C. P. 244 
 
 Law Times 
 (New Series), 
 
 6, 729 
 
 40, 357 
 
 23, 392 
 
 26, 177 
 
 29, 130 
 
 43 Ch. 518 
 
 23 Ch. 199 
 
 41 Ch. 504 
 38 Ch. 372 
 9Ex. Eq.25 
 
 30, 731 
 
 26, 379 
 20, 389 
 
 Weekly 
 Reporter. 
 
 25, 735 
 23, 260 
 
 ftllSCELLANEOUS. 
 
 Paoe. 
 
 27, 442 
 
 5, 35 
 27, 412 
 
 3 Jur. n'. S. 39 
 
 5, 8f2 
 20, 345 
 
 21, 683 
 21,' 137 
 
 6, 119 
 2, 86 
 
 20, 393 
 17, 570 
 
 6 Jur. 1081 
 
 3Jur. N. S.1150 
 
 3 ST. R. 512 
 16 Jur. 1168 
 
 2 Jur. N. S. 156 
 
 170 
 
 6, 158 
 
 137 
 
 102 
 
 48 
 
 68 
 
 38 
 
 86,90,91, 
 
 96 
 
 43 
 
 131 
 
 62, 115, 
 
 116, 118, 
 
 119 
 
 165 
 
 55 
 
 37,73,74 
 
 103 
 
 26 
 
 91, 92 
 
 125 
 
 133, 163 
 
 47 
 
 67 
 
 8 
 
 61 
 
 134 
 
 40 
 
 54 
 
 134 
 
 16, 41 
 
 140 
 
 30 
 
 23,24,28, 
 
 29, 30 
 
 50 
 
 118 
 
 25, 45 
 
 9, 144 
 
 114, 133, 
 
 134 
 
 20, 106 
 
 136, 160, 
 
 161 
 
TABLE OF CASES. 
 
 Ha— Ho 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series), 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Reporter. 
 
 Miscellaneous. 
 
 Hall V. L. & N. "W. R. 
 Halliday v. TemiJe ... 
 Ham brook v. Smith . . . . 
 
 Hamilton i'. Nott 
 
 Hampsou v. 13. 
 
 Hancock i\ Guerin ... 
 
 — V. Lablache . 
 
 Hanslip v. Kitten 
 
 Harbord v. Monk 
 
 Hard v. Partington . . . , 
 
 Hardwick v. Wright... 
 
 Harford u. Lloyd 
 
 Harris v. H 
 
 Hart w. Montefiore 
 
 Hartlepool CoU. v. Moon.. 
 
 Hartley 1). Owen 
 
 Harvey v. Bradley 
 
 Haverfield v. Py man 
 
 Hawley i;. Reade 
 
 Hayne v. Pratt 
 
 21 Ch. 320 
 42 Oh. 512 
 
 47 C. P. 514 
 32 Ch. 662 
 
 31 Ch. 333 
 
 Hayward 11. H 
 
 Head v. WUley 
 
 Healy w. Smith 
 
 Heath v. Crealock 
 
 Heatley «. Newton 
 
 Hemery u. Worssam 
 
 Hemmings or Hunnings v. 
 WOliamson 
 
 Henessy D. Rohmann 
 
 Heriz 21. Kiera 
 
 Herring v. Clobery 
 
 Herritt t'. Reynolds 
 
 Herschfield v. Clarke 
 
 Heugh B. Garrett 
 
 Hewetson v. Whittington Co. 
 
 Hicks V. Alvanley 
 
 Higginson u. Blockley 
 
 — r. HaU 
 
 Hillji. Campbell 
 
 — V. Buenos Ry 
 
 — V. Phelps 
 
 Hills r. Watts 
 
 Hoare r. Wilson 
 
 Hodsoll f. Taylor 
 
 Hoffmann i;. Postill 
 
 Holland ■«. Fox 
 
 40 C. P. 119 
 23 Ch. 549 
 
 42 Ch. 455 
 
 52Q.B.273, 
 400 
 
 25 Ex. 113 
 
 48 Ch. 250 
 44 C. P. 97 
 41 Ch. 69 
 
 44 0. P. 380 
 
 43Q. B. 14 
 
 23Q.B.357 
 
 38, 753 
 8, 376 
 
 38, 411 
 12, 138 
 
 5, 441 
 
 23, 809 
 
 28, 
 
 101 
 
 48, 392, ■ 
 581 
 
 36, 51 
 
 32, 45 
 
 39, 603 
 32, 59 
 
 31, 40 
 16, 112 
 29, 534 
 
 20, 893 
 
 27, 112 
 
 26, 402 
 11, 762 
 
 27, 164 
 
 13, 560 
 
 2, 537 
 
 10,"97 
 10, 705 
 
 19, 437 
 2, 332 
 
 21,' 380 
 31, 336 
 
 8,' 405 
 
 27, 469 
 23, 336 
 
 15, 548 
 22, 89 
 
 17, 901 
 
 16 Jur. 144 
 
 9 Jur. N. S. 482 
 
 11 Jur. N". S. 
 297 
 
 Jur. 80, 987 
 Jur. N.S. 350 
 
 W.N.'l876, 1 
 193 J 
 
 / XX. S.J. 298 ; 
 \LX. L.T. 268 
 
 2 Eq. Rep. 436 | 
 LXXI. L.T. 415 
 
 70, 92 
 16, 124 
 48, 107 
 61,97 
 51 
 13, 17 
 15 
 19 
 13,14,15, 
 16 
 153 
 
 I 110 
 
 154 
 
 79 
 
 27 
 
 21 
 
 53,56,120 
 
 112, 157, 
 
 158 
 
 78 
 
 128 
 
 } 
 
 16 
 
 6 Jur. N. S. 880 
 2 Jur. N. S. 239 
 
 XX. S. J. 179 
 
 20, 96, 
 ( 156 
 98, 100, 
 154 
 143 
 108, 109 
 54 
 102 
 28,30,31 
 4, 5, 7, 
 48,69,74, 
 
 111 
 147, 149 
 48 
 53 
 96 
 83, 130 
 27,28,30, 
 173 
 70 
 153 
 71 
 110 
 49 
 75, 76 
 144 
 37 
 144 
 24, 65 
 33,38,39, 
 83, 174 
 18, 176 
 
xvni 
 Ho— Jo 
 
 TABLE OF CASES. 
 
 NAMES OF CASES. 
 
 Holmes v. Baddeley . , 
 
 Hooper v. Gumm 
 
 Hoover Gold Co., He.. 
 Hope i;. Carnegie 
 
 — V. LiddeTl 
 
 Hopkinson v. Bagster 
 
 — V. Lord Bm-ghley 
 
 Home 1). Hough 
 
 Horton v. Bott 
 
 Hoskins V. Lloyd 
 
 Howard v. Eobinsou 
 
 Howe u. McKeraan 
 
 Hunnings v. Williamson. See 
 Hemmings v. Williamson. 
 
 Hunt r. Anderson 
 
 — v. Elmes 
 
 Hewitt . 
 
 Hunter v. Capron 
 
 Hurst V. H 
 
 — V. Peirse 
 
 Hustler v. Freeland ... 
 
 Hutchinson v. Glover 
 
 I. 
 
 Co. 
 
 Imperial Land 
 
 Masterman 
 
 Imp. Merc. Ass. Co. 
 
 Huntingdon 
 
 Ingilby i). Shafto 
 
 Inglessi v. Spartali 
 
 J. 
 
 Jackson-!!. Ivimey ... 
 — V. Mawby ... 
 
 Janson v. Solarte 
 
 Jenkins v. Bushby 
 
 — V. — (No. 
 Jerrard i). Saunders ... 
 
 Johns «, James 
 
 Johnson v. M'Auley ... 
 
 Johnson v. Smith 
 
 Jones V, Green 
 
 — ■». J 
 
 — V. Montevideo Gas Co. 
 
 — V. Powell 
 
 — V. Pratt or Piatt 
 
 — V. Thomas 
 
 — V. Turner 
 
 — V. Wiggins 
 
 Joy V. Hadley 
 
 Law 
 
 Journal 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 14 Ch. 113 
 
 1 Ch. 410 
 
 Ch. 504 
 C. P. 70 
 Ex. 267 
 
 28 Ch. 670 
 
 Ch. 680 
 Ex. 210 
 Ch. 142 
 
 45Q.B. 120 
 
 32 Ch. 807 
 
 35 Ch. 843 
 46 Ch. 53 
 6Ex. Eq.75 
 35 Ch. 400 
 a. 820 
 
 49Q.B. 627 
 
 30 Ex. 365 
 6Ex. Eq.81 
 
 52 Ch.' 471 
 
 Weekly 
 Reporter. 
 
 6, 891 
 
 33, 605, 834 
 
 10, 644 
 
 3, 581 
 
 15, 543 
 22, 412 
 
 7, 223 
 
 7,471 
 
 24, 185 
 
 22, 66 
 
 8, 785 
 
 14, 431 
 
 15, 310 
 
 42, 639 
 4, 411 
 
 24, 92 
 14,"531 
 
 25, 539 
 
 28, 758 
 9,B96 
 
 3i;619 
 
 Miscellaneous. 
 
 9 Jur. 289 
 
 19 Jur. 665 
 5 Jur. 1033 
 
 3 Jur. N. S. i 
 5 Jur. N. S. 136 
 
 5 Jur. N. S. 645 
 16 Jur. 503 
 
 9Jur. N".S. 1141 
 
 12Jur. N.S. 558 
 
 7 Jur. N. S. 978 
 
 Page. 
 
 61 
 51, 56, 
 134, 140 
 9, 15 
 78 
 134 
 20 
 137 
 38 
 164 
 156 
 125 
 132, 171, 
 172 
 
 106 
 67, 68 
 129, 130, 
 131 
 96 
 48 
 97 
 71 
 112, 116, 
 132, 133 
 
 44, 120 
 
 87 
 
 34, 165 
 94 
 
 157 
 
 156 
 
 24 
 
 33,35,112 
 
 61, 62 
 
 67 
 
 25, 36 
 
 152 
 
 108, 109 
 
 48 
 
 80 
 
 85, 119, 
 
 120, 121 
 
 153 
 
 15, 176 
 
 141 
 
 15 
 
 90 
 
 162 
 
TABLE OF CASES. 
 
 Ka— Le 
 
 XIX 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 (New Series). 
 
 K. 
 
 Kain ■!). Farrer 
 
 Kay V. Hargreaves 
 
 Kearsley v. Philipps 
 
 — V. — (c. A.; 
 
 Kelly V. Hatton 
 
 — V. Wyman 
 
 Kennedy?;. Green 
 
 — ^.. LyeH(L. T.)... 
 
 — V. — (W. N.) 
 
 — V. Wakefield 
 
 Kettlewell v. Barstow 
 
 — V. ^ (No. 2) 
 
 — V. Dyson 
 
 King of Two Sicilies v. 'Wilcox 
 
 Kingsfordi). G. W. R 
 
 KiihUger v. Bailey 
 
 Kynaston v. East India Co 
 
 L. 
 
 Lachakme 1'. Quartz, etc., \ 
 
 Co. (No. 1) J 
 
 Lacharme v. Quartz, etc., 1 
 
 Co. (No. 2) J 
 
 Lafone v. Falkland Islands \ 
 
 Co. (2K. & J.) / 
 
 Lafone v. Falkland Islands 1 
 
 Co. (3*.) / 
 
 Lafone v. Falkland Islands \ 
 
 Co. (iib., No. 1) J 
 
 Lafone v. Falkland Islands \ 
 
 Co. (No. 2) / 
 
 Lamb D. Munster 
 
 — ■ V. Orton 
 
 Landors -0. Allen 
 
 Lane v. Gray 
 
 — V. Paul 
 
 Langton V. Waite 
 
 Larkin v. Dennis 
 
 Latimer «. Neate 
 
 Lawrence v. Campbell 
 
 Lazarus 1). Mozley 
 
 Lea V. Saxby 
 
 Leahy D. Milton 
 
 Leather Cloth Co. v. \ 
 Herschiield / 
 
 Law Times 
 (New Series) 
 
 52 Q. B. 8 
 75. 269 
 
 39 Ch. 827 
 
 40 Ch. 375 
 
 41 Ch. 718 
 
 33 C. P. 307 
 
 31 Ex. 335 
 
 lb. 508 
 
 26 Ch. 414 
 
 27 lb. 25 
 
 52 Q. B. 46 
 22 Ch. 713 
 
 43 Ch. 187 
 9 Jb. 400 
 
 28 Ch. 780 
 
 48, 469 
 
 22, 645 
 27, 258 
 
 10, 722 
 
 6, 502 
 
 47, 
 
 442 
 
 Weekly 
 Reporter. 
 
 31, 92 
 lb. 467 
 
 17, 399 
 
 18, 884 
 20, 917 
 
 10, 565 
 lb. 789 
 
 5, 413 
 
 6, 4 
 
 31, 117 
 
 7, 336 
 
 11, 933 
 
 W.N. 1883,71 
 
 9 B. & S. 300 
 
 Miscellaneous. 
 
 W. N. 1877,266 
 
 3 Jur. N. S. 236 
 
 1 W. R. 207 
 
 llBligh,N.S.112 
 5Jur. N.'S. 1119 
 
 I, 116 
 27 
 128, 133, 
 
 134 
 114, 133, 
 134 
 139 
 171 
 36, 68 
 51,54,57, 
 60, 90 
 157 
 20, 21 
 133, 134, 
 
 137 
 115, 135 
 
 165 
 
 48, 49, 
 
 134 
 
 130 
 
 37 
 
 146, 149 
 
 160, 161, 
 162 
 
 115 
 96, 158 
 79 
 58, 59 
 
 141 
 
 46, 47 
 
 106, 128 
 
 156 
 
 108 
 
 96 
 
 96, 100 
 
 101 
 
 136 
 
 51 
 
 113 
 
 28, 173 
 
 92 
 
 174 
 
 b 2 
 
XX 
 
 TABLE OF CASES. 
 
 Le— Ua 
 
 NAMES OP CASES. 
 
 Ledwidge I). Mayne 
 
 Lee ij. Read 
 
 Lefroy v. Burnside 
 
 Lethbridge v. Cronk 
 
 Lett D. Morris 
 
 — V. Parry 
 
 Lewis D. Marsh 
 
 — V. Pennington 
 
 Ley ». Barlow 
 
 Liddell v. Norton 
 
 Lind V. Isle of Wight Co. 
 
 Lindsay v. Gladstone 
 
 Lingen ». Simpson 
 
 Little V. Kirkwood 
 
 — V. Koberts 
 
 Llewellyn v. Badeley 
 
 Lloyd'!). Adams 
 
 — V. Morley 
 
 — V. Purves 
 
 Lockett w. Gary 
 
 — 1). L 
 
 London Ins. Co. v. Davies ., 
 
 Lonsdale, Lord v. Curwen . , 
 
 Lopez «. Deacon 
 
 Luscombe ■!). Steer 
 
 LyeU V. Kennedy (C. A.) 
 
 — V. — (H. L.).. 
 
 Lyon V. Tweddell 
 
 M. 
 
 MaoAllistee v. Bishop of l 
 
 Rochester / 
 
 Macoallum v. Turton 
 
 M'Corquodale 1;. Bell 
 
 — -0. — (No. 2) 
 
 MaoFadzeu v. Livei-pool \ 
 
 Corporation / 
 
 Macfarlan «, Rolt 
 
 M'Garel 1;. -Moon 
 
 MacGowan i>. Smith 
 
 M'Intoshv. G. W. R 
 
 — V. — (No. 2) 
 
 M'Kewan 1). Rolt 
 
 M'Mahon u. Ellis 
 
 Law 
 
 jotjbnal 
 
 (New Series). 
 
 12 Ch. 26 
 44 C.P. 381 
 
 17 Ex. 105 
 23 Ch. 169 
 
 11 Ch. 310 
 
 1 Ch. 290 
 
 12 Ch. 311 
 37 Ch. 119 
 61 Ch. 409 
 
 52 ib., 385 
 
 49 C.P. 443 
 
 45 C.P. 329 
 
 37 Ex. 193 
 
 41 Ch. 649 
 39 Ch. 367 
 
 18 Ch. 169 
 
 a2 ib. 72 
 28 Ex. 380 
 
 Law Times 
 (New Series.) 
 
 171 
 
 2, 344 
 
 37, 67 
 
 17, 370 
 46, 762 
 
 48, 585 
 
 42, 481 
 35, 261 
 
 18, 611 
 
 27, 305 
 22, 355 
 
 Weekly 
 Reporter. 
 
 23, 703 
 
 8," 465 
 8, 640 
 
 17, 
 25, 
 
 30,' 
 31, 
 
 476 
 876 
 
 493 
 618 
 
 28, 584 
 
 24, 399 
 
 16, 1212 
 
 20, 945 
 
 18, 668 
 
 4, 690 
 
 7, 601 
 
 Miscellaneous. 
 
 6 Jur. 1026 
 
 14 Cox C. C. 260 
 
 6 Jur. N. S. 478 
 2 Eq. R.' 668 
 
 6 Jur. 705 
 
 'IH. &T. 41 
 13 Jur. 179 
 
 5 Jur. N.S. 714 
 
 115 
 64 
 
 3, 50, 69 
 
 85 
 
 104 
 
 26, 28 
 
 148, 150 
 
 54, 116 
 
 134 
 
 135 
 
 35 
 
 138, 143, 
 
 144 
 63, 107 
 140 
 71 
 131 
 64, 98 
 96 
 132 
 116, 136 
 27,30,87, 
 93, 94 
 17, 70, 
 109, 183 
 149 
 133 
 137 
 5,69,165 
 43,69,84, 
 116, 164, 
 165, 166 
 
 8, » 
 
 47 
 56, 57, 
 132 
 48 
 
 64 
 
 120 
 
 26 
 
 104 
 
 i 52 
 
 91, 93, 
 103, 113 
 
 160 
 38,46,153 
 
TABLE OF CASES. 
 
 Ma— Mo 
 
 XXI 
 
 NAMES OF CASES. 
 
 M'VeagVs Estate, iJe 
 
 Mackley v. Cliillingworth 
 
 Madeu v. Veevers 
 
 Madiid Bank v. Bayley ... 
 Mahoney v. Nat. Widows' 
 
 Fund 
 
 Manby v. Bewicke (No. 2) 
 
 — V. — (No. 3) 
 Manchester Co. v. Slagg ... 
 
 — Fire Co. v. Wykes 
 Mann 1). Perry 
 
 Mansel v. Feeney (No. 2) .. 
 
 Manser D. Dix 
 
 Marsli i>. Keith 
 
 Martin u Braxner 
 
 — V. Butchard 
 
 — V. Hemming 
 
 Mary, The 
 
 Mason v. Cattley 
 
 Massey v. Allen 
 
 Maund ■!!. Allies 
 
 Meadows j>. Kirkman ... 
 M 'Elveney v. ConnoUan 
 Megaw ?;. M'Diarmid ... 
 
 Mercier v. Cotton 
 
 Meitens u. Haigh 
 
 — V. — (No. 3)... 
 
 Metropolitan Bank, Be 
 
 Meux ■«. Watkins 
 
 Mexican Co., iJc 
 
 Mickelthwaite v. Fletcher 
 
 Minett). Morgan (M. R.) ... 
 
 — V. — (LL. JJ.) 
 
 Minnehaha, The 
 
 Mitchell D. Koecker 
 
 ■0. Darley Coll. Co. 
 
 Moline v. Tasm. Ey. Co. 
 
 MoUoy V. Kilby 
 
 Monsel iJ. Lindsay 
 
 Moore v. Craven 
 
 — V. Kennard 
 
 — V. Roberts ... . 
 
 Morgan v. Alexander 
 
 — V. Fviller 
 
 Mornington v. Keene 
 — V. M. ... 
 
 Morrice v. Swaby 
 
 Monis V. Parr 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Ch. 521 
 C.P. 484 
 
 q! B. 15 
 C.P. 203 
 
 50 Ch. 251 
 
 30 Ch. 127 
 
 Ex. 3 
 
 Ad. 29 
 Ch. 478 
 
 45 Q.B.185 
 
 49 Ch. 661 
 
 42 Ch. «27 
 
 52 Q. B. 394 
 
 52 Q. B. 285 
 26 C. P. 246 
 
 44 C.P. 167 
 
 34 Q. B. 95 
 
 Law Times 
 (New Series). 
 
 8, 100 
 36, 514 
 
 15, 292 
 
 24, 548 
 
 44, 248 
 
 3, 490 
 
 18, 891 
 48, 631 
 
 2, 251 
 
 35, 79 
 
 8, 561 
 44, 299 
 
 24, 120 
 28, 573 
 23, 747 
 
 48, 236 
 32, 34 
 
 11, 706 
 
 Weekly 
 Repobtek, 
 
 11, 457 
 25, 650 
 
 15,' 159 
 19, 722 
 
 4,' 757 
 23,"884 
 
 3, 313 
 9, 115 
 
 3, 29 
 
 17, 551 
 
 24, 566 
 
 9, 12 
 n, 792 
 
 9,"779 
 
 19, 374 
 21, 467 
 19, 304 
 
 31, 549 
 29,127 
 
 31, 610 
 23, 321 
 
 13, 337 
 
 Miscellaneous. 
 
 r9Jur.N.S.250 
 1 1 N. R. 531 
 
 8 B. & S. 29 
 
 20 Jur. 671 
 
 Page. 
 
 /6 Jur. N.S. \ 
 \ 1182 J 
 
 18 Jur. 1002 
 
 3 Jur. 309 
 
 2 N. R. 254 
 7 Jur. N. S. 704 
 
 3 Jur. N.S. 1221 
 
 llJur. N.S. 388 
 
 1 18, 20, 
 J 21 
 186 
 57 ■ 
 151, 161 
 
 137 
 
 116 
 
 43, 113 
 
 161 
 
 168 
 
 152 
 
 28, 112, 
 
 113 
 
 57, 61 
 
 22, 54 
 
 78, 95 
 
 61 
 
 16 
 
 48 
 
 55 
 
 7 
 
 140 
 
 175 
 
 65 
 
 16, 38 
 
 13,14,32, 
 
 71 
 140, 141 
 93, 114 
 75 
 79 
 46 
 156 
 35 
 42, 45, 53 
 90 
 49, 50 
 101, 148, 
 155, 182, 
 186 
 
 99 
 
 7, 8, 10 
 
 135 
 
 23, 28, 
 
 132 
 
 179 
 
 34, 83 
 
 10, 99, 
 
 155 
 
 172 
 
 152 
 
 52, 55. 
 
 131 
 
 15 
 
XXll 
 
 Mo— Pa 
 
 TABLE OP CASES. 
 
 NAMES OP CASES. 
 
 Law 
 
 Journal 
 (New Series). 
 
 Law Temes 
 (New Series). 
 
 Weekly 
 Eeporter. 
 
 Miscellaneous. 
 
 Mostyn v. "West M. Co. ... 
 
 Mulcaster's Estate, Be 
 
 Murillo, The 
 
 Murray v. Clayton 
 
 — V. Walter 
 
 Mutual Society, Re (C. A.) 
 
 National Funds Ass. Co., Be 
 
 Neate v. Duke of Marlboro' 
 
 Neesom v. Clarkson 
 
 Neil son v. Underwood 
 
 Nelme «. Newton 
 
 42 Ch. 191 
 
 Newall V. Telegraph Co. .. 
 
 Newland t). Steer 
 
 Newry, Lord v. Kilmorey 
 
 Newton D. Dimes 
 
 Nicholls V. Jones 
 
 Noel V. N. 
 
 Nordon v. Defries . 
 North ■;;. Huber,... 
 
 Nugent V. N 
 
 Nurse v. Bunn .... 
 
 0. 
 
 OcKSLET V. Eedfern . 
 
 O'Connell ii. Barry . 
 
 — V. Denny. 
 
 Oldrieve v. Knowles . 
 
 Ord V. Fawcett 
 
 Orr V. Diaper 
 
 Owen V. Nickson .... 
 
 — V. Pritchard ... 
 
 — V. "Wynne 
 
 Owens V. Emmens. . . 
 
 Facet v. Lond. Tram. Co. . 
 Padley v. Lincoln "Water- } 
 
 works J 
 
 Padwick «. Scott 
 
 Palmer D. Wright 
 
 Pape I). Lister 
 
 Parker v. Wells . 
 
 12 Ch. 99 
 
 35 Ch. 827 
 40 Ch.' 371 
 
 32 Ch. 676 
 
 51Q.B. 415 
 30 Ch. 606 
 
 19 Ch. 487 
 46 Ch. 41 
 30Q.B. 125 
 
 46 Ex. 698 
 19 Ch. 436 
 45 Ch. 350 
 
 40 Q. B. 87 
 
 27, 644 
 
 24, 87 
 
 8, 555 
 
 468 
 737 
 
 38, 623 
 
 24, 70 
 45, 517 
 
 21, 118 
 
 14, 914 
 
 13, 1014 
 19, 469 
 
 13,"451 
 
 11, 688 
 
 30, 612 
 
 25, 23 
 26,"644 
 
 24, 723 
 19, "446 
 30, 392 
 
 3 Jur. 719 
 
 W. N. 1876,192 
 2 Jur. 43 
 
 5 N. R. 361 
 9 Jur. N. S. 
 589 ; 2 N. E, 
 294 
 
 7 Jur. N. S. 767 
 
 14 Jur. 456 
 7 Jur. if. S. 497 
 
 /2H.&T.295; 
 1 14 Jur. 299 
 
 2C. L. E.. 811 
 
 S3 
 151, 154 
 
 15 
 
 48, 139, 
 
 173, 174 
 
 133, 134 
 
 8, 9 
 
 / 8,9,12, 
 I 177 
 91 
 67 
 145 
 48, 49 
 64, 108, 
 120 
 19 
 76 
 90, 100 
 57,61,118 
 
 120 
 
 61,62,116 
 
 135 
 
 153 
 
 102 
 
 14, 15 
 
 15 
 
 128 
 
 144 
 
 27 
 
 3, 171 
 
 122 
 
 154 
 
 33 
 
 36, 118 
 
 58 
 
 I 66 
 
 10 
 133, 135 
 
 112 
 26,28,29, 
 30,31,87, 
 89,97,173 
 
Pa— Pr 
 
 TABLE OF CASES. 
 
 XXIU 
 
 NAMES OP CASES. 
 
 Law 
 
 Journal 
 
 (New Series), 
 
 Parkhurst v. Lovrten 
 
 Parsons v. Robertson ., 
 
 Patch t). Ward 
 
 Patent Type Co. v. Walter ... 
 Pavitt V. 'S. M. Tramways Co. 
 Pearse s). Dobinson 
 
 — V. P 
 
 Pearson ■». Turner 
 
 Peile 11. Stoddart 
 
 Penkethman v. White .... 
 
 Penu V. Bibby 
 
 Pennell D. Meyer 
 
 Penny 1!. Goode.... 
 
 Penrice v. Williams 
 
 Percival v. Caney 
 
 Pern, Republic of v. Ruzo 
 
 Peto V. A.-G. 
 
 Petrie v. P 
 
 Peyton v. Harting 
 
 — V. Lambert 
 
 Phelps v. Olive 
 
 — V. Protheroe 
 
 Phillips V. Barron 
 
 — v. Emmens 
 
 — </. Holmer 
 
 — V. Penuefather 
 
 — V. P. (No. 1) 
 
 — u. —(No. 2) 
 
 Piffard J). Beeby 
 
 Pike V. Keene 
 
 Pilcher v. Rawlings 
 
 Pilkiugton v. Hirmsworth 
 
 Pitten V. Chattenburg 
 
 Plant V. Kendrick 
 
 PI impton V. Spiller 
 
 Plumbe i;. P 
 
 Plumley v. HorreU 
 
 Pohl V. Young 
 
 Ponsford v. Swaine 
 
 Ponsonby v. Hartley 
 
 Potter V. Metr. Ry. Co. 
 Powell V. Heffernan 
 
 Pratt tJ. Goswell 
 
 — V. P 
 
 Prestney v. Mayor of Col- 
 chester 
 
 Price «. P 
 
 Prioleau v. U. S 
 
 7Ch. 1 
 
 22 Ch. 371 
 
 23 ciiV 169 
 
 43 C. P. 10 
 
 4 Ch'.'i67 
 17 Ch. 404 
 
 48Q.B. 125 
 
 Law Times 
 (New Series). 
 
 35 Ch. 258 
 
 41 Ch.' 485 
 5Ex. Eq.47 
 
 6 Ex. Eq. 9 
 25Q. B. 23 
 
 51 Ch. 840 
 
 36 Ch. 36 
 
 13, 496 
 
 29, 478 
 
 39, 556 
 
 14, 8 
 
 35, 341 
 25, 921 
 
 4, 15 
 
 3, 669 
 
 Weekly 
 Reporter. 
 
 Miscellaneous. 
 
 8, 353 
 
 1, 120 
 22, 358 
 22,"61 
 
 15, 578 
 
 27, 436 
 27, 939 
 
 14, 302 
 
 24, 332 
 20, 281 
 
 Page. 
 
 11 Jur. 52 
 
 13 Jur. 225, 373 
 
 17 Jnr. 82 
 
 W. N. 1883, 40 
 
 fXX. S. J. 280, 
 t LX. L. T. 249 
 
 49 
 117 
 35 
 149, 175 
 60 
 78, 95 
 19 
 165 
 45 
 135 
 172 
 103 
 133 
 12, 178 
 103, 104 
 79 
 4 
 68 
 90,91,98 
 9,122,123 
 117 
 82 
 
 4, 84 
 
 W.N".1879,96 j 
 
 /l2Jur.N.S.1 
 1117 I 
 W. N. 1876, 36 
 
 rXX. S.J. 139, 
 t LX. L. T. 122 
 
 3 Jur. 1144 
 19 Jur. 1139 
 
 30, 837 
 
 74 L. T. 208 
 
 W.N. 1883, 41 
 
 83 
 
 74 
 
 133 
 
 16, 125 
 
 14,41,166 
 
 13,15,17, 
 
 35, 167 
 
 85 
 
 152 
 67 
 77 
 
 85 
 
 113, 118 
 
 172 
 
 106 
 61, 118 
 72 
 
 35,42,44, 
 45, 138, 
 168 
 37 
 108, 109, 
 111 
 20 
 136 
 139, 140, 
 
 141 
 117, 155, 
 
 156 
 
 77, 160, 
 
 164 
 
XXIV 
 
 Pr— Re 
 
 TABLE OF CASES. 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Repobter. 
 
 Miscellaneous. 
 
 Provident Ass 
 
 M'Inerheny 
 
 Purcell V. Langston 
 Pyei). Butterfield.., 
 
 Co. 
 
 1,} 
 
 34 Q. B. 17 
 
 14, 700 
 11, 448 
 
 Q, 
 
 Queen of Portugal v, 
 Glynn 
 
 Quilter i>. Heatley 
 
 Quin v. Uatcliff , 
 
 S. 
 
 Eabbbth v. Squire 
 
 Radnorshire, The 
 
 Ramsbotham v. Senlpr 
 
 Ramsden v. Brearley ., 
 
 Rangers, fi. W. R 
 
 Rayner v. Eitson 
 
 Read v. Barton 
 
 Reade f. Woodroofe 
 
 Reg. V. Ambergate Ry. Co. 
 
 — V. Boyes 
 
 — v. G?trbett 
 
 — u. Kinglal5£ 
 
 — 0. Leatham 
 
 — V. Levison 
 
 — v. Seott 
 
 — V. York Ry. Co 
 
 Reid V. Langlois 
 
 Reiner v. Lord Salisbury . 
 Kenard 2). Levinstein .... 
 
 Republic of Costa Rica 
 
 Erlanger (No. 1) 
 
 Republic of Costa Rica 
 
 Erlanger (No. 2) 
 
 Republic of Costa Rica 
 
 Erlanger (No. 8) 
 
 Rep.ubljp of Costa Rica v. ' 
 
 Stronsb«rg 
 
 Repjibli,c of Liberia v. Im- ' 
 
 perial Bank 
 
 Republic of Liberia v. Roye . 
 
 22 Ch. 639 
 / 49 P. D. 
 
 t & A. 48 
 
 28 Ch, 741 
 35 Q. B. 59 
 26 Ch. 264 
 
 .S0Q.B.301 
 
 8, 373 
 3, 363 
 
 -43, 319 
 
 5, 147 
 
 19 Ch, 337 
 
 44 Ch. 281 
 
 44 Ch. 402 
 
 45 Ch. 145 
 
 42 Ch. 674 
 45 Ch. 207 
 
 31, 365 
 
 33, 632 
 40, 401 
 25, 866 
 
 34, 145 
 
 13, 178 
 
 31, 330 
 9, 65 
 
 29, 476 
 
 7, 426 
 14, 81 
 5, 240 
 
 9, 690 
 
 24, 843 
 
 23, 108 
 lb. 462 
 
 24, 161 
 27, 512 
 
 24, 967 
 
 12Jur. N. S. 724 
 11 Jur. N. S. 220 
 
 West. 258 
 
 6Jur. N.S. 1327 
 
 17 Jur. 70 
 
 W. N. 1875, 199 
 6Jur. N.S. 1191 
 
 3 Jur. N. S, 263 
 
 16 Jur. "777 
 7 Jur. N. S. 
 1168;9Cox, 
 C.C. 32 
 
 7 Cox, C. 
 '14 Jur] 
 
 C. 164 
 467; ) 
 
 l2H.&T.59| 
 3 N. R. 665 { 
 
 165 
 
 128 
 48 
 
 7, 168, 
 
 170 
 13, 122, 
 123, 126 
 
 166 
 
 79 
 73 
 
 65 
 ) 2,3,50, 
 ( 69 
 110, 163 
 
 168 
 95, 184 
 
 87 
 7 
 
 47, 49 
 
 60 
 
 61 
 
 49 
 
 54 
 
 50 
 
 7 
 
 58, 61, 
 
 133, 140 
 
 3 
 
 132, 171, 
 172, 174 
 
 28, 33, 35 
 
 142, 143 
 
 160, 163, 
 164 
 
 107 
 
 163, 164 
 
 167, 163, 
 164 
 
TABLE OF CASES. 
 
 Re— Sa 
 
 XXV 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 "Weekly 
 Reporter. 
 
 Miscellaneous. 
 
 Page. 
 
 Republic of Peru v. Weguelin 
 
 (c. p.) 
 
 Republic of Peru v. Weguelin 
 
 (V. C. H.) 
 
 Keynell v. Sprye 
 
 Reynolds, Ex parle 
 
 — V. Bloomfield ... 
 
 — V. Godlee 
 
 Riccard v. Inclosure Comm. 
 
 Rice D. Gordon 
 
 Richards v. Gellatly 
 
 — u. Kitchin 
 
 — v. Morgan 
 
 — V. "Watkins 
 
 Richardson v. Hastings . . . 
 
 Rickard v. Moore 
 
 Ridley D. Sutton 
 
 Ripping V. Dolman 
 
 41 C. P. 144 
 
 44 Ch. 583 
 21 Ch. 13 
 51 Oh. 756 
 
 24 Q. B. 49 
 13 Ch. 104 
 
 33Q.B. 114 
 13 Ch. 416 
 
 27, 123 
 32, 426 
 
 / 46," 143, 
 1 508 
 
 26, 
 
 435 
 662 
 
 693 
 
 Rishton I'. Grissel 
 
 — V. — (No. 2) .. 
 
 Rivers?). M'Donald 
 
 Roberts v. Albert Bridge Co. 
 
 — V. Lloyd 
 
 Robinson v. Anderson 
 
 — V. Kitchen 
 
 Rohson t). Crawley 
 
 — V. Flight 
 
 Rochdale Canal Co. v. King., 
 
 Roe I'. N. York Press 
 
 Rosa V. Dublin Tram. Co. ., 
 
 — V. Gibbs 
 
 RowcBife t). Leigh 
 
 — V. — (C. A.) 
 
 Rumbold v. Forteath 
 
 Runnall v. Yarroll . . 
 Russell V. Cowley .. .. 
 
 — 'u. Dight 
 
 — V. Jackson 
 
 S. 
 
 Sankey v. Alexander ... 
 
 Saull ?>. Browne 
 
 — V. Metrop. Ry. Co. 
 
 Saunders ». Jones 
 
 42 Ch. 767 
 7 Ch. 115 
 
 25 Ch! 441 
 
 354 
 27 Ex. 151 
 
 39 Ch. 61 
 46 Ch. 60 
 
 48 *. 215 
 
 3 Ch. 152 
 
 ■ { 
 
 20, 745 
 23, 776 
 
 ■ 30, 651 
 
 25, 602 
 12, 162 
 
 2, 432 
 
 14, 578. 
 789 
 
 37, 557 
 
 2 
 
 216, 
 344 
 
 56 
 783 
 
 43 Ch. 568 
 47 Ch; 440 
 
 30, 697 
 37, 769 
 
 22, 427 
 26, 226 
 
 1 Jur. N. S. 495 
 7 Jur. 1076 
 
 "W. N. 1877,128 
 lOJur. KS. 554 
 
 9 Jur. N, 
 
 S. 358 
 
 2 Jur. N. S. 1 
 
 57, 294 J 
 4 Jur. N. S. 75 
 
 3 N. R. 183 
 
 / 3 Jur. N. S. 1l 
 
 I 657 ; 
 
 164 
 
 120 
 
 47 
 
 90, 153 
 135, 138 
 
 25 
 
 152 
 102, 103 
 18,19,20, 
 120, 134 
 
 133 
 
 102 
 
 183 
 64, 77, 
 
 110 
 
 97, 98 
 
 116 
 
 80 
 
 156 
 
 139 
 
 87, 99 
 
 49, 50 
 
 26 
 30 
 17, 108, 
 112, 127 
 46, 49 
 119, 120 
 58 
 177 
 9, 18, 20, 
 
 28, 29 
 111, 166, 
 167 
 142 
 175 
 98 
 52, 56, 63 
 
 72 
 28, 120 
 
 148 
 30,32,36, 
 37, 94 
 
XXVI 
 
 Sa— St 
 
 TABLE OF CASES. 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series), 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Beporteb. 
 
 Miscellaneous. 
 
 Face. 
 
 Sawyer v. Birchmore 
 
 Saxby «. Easterbrook 
 
 Scarth t). Williams 
 
 Schofield, Sx parte 
 
 Scott D. Miller 
 
 — V. Wheeler 
 
 — V. Zygomala 
 
 Shaftsbury v. Arrowsmith . . . 
 Shaw, Eaoparte 
 
 — V. Bank of England ... 
 
 — V. S 
 
 Shewardu. Lord Lonsdale ... 
 
 — V. — (C. A.) 
 
 Short V. Mercier 
 
 Sidden v. Forster 
 
 Sidebotham v. Adkins 
 
 Siderfield i^. Thatcher 
 
 Simpsons. Charlesworth 
 
 -— a. Brown 
 
 Singer Co. u. Wilson 
 
 — V. Long 
 
 Sivier v. Harris 
 
 Slade i). Tucker 
 
 Sloman D. Kelly 
 
 Small V. Attwood 
 
 Small u Lay 
 
 Smith «. Berg 
 
 — V. Daniell 
 
 — 0. Duke of Beaufort . . . 
 
 — V. East India Co 
 
 — V. Massie 
 
 — V. Peters 
 
 Smyth, Be (No. 1) 
 
 — — (No. 2) 
 
 Snowball t). Dixon 
 
 Solicitor, Re a 
 
 Sooby z). Mercer 
 
 Southampton Boat Co. v. \ 
 Eawlins J 
 
 Southwaite D. Daly 
 
 Southwark Water Co. v. \ 
 
 Quick J 
 
 Stace t>. Griffith 
 
 Stanton v. Perceval (H. L. ) 
 
 Stainton v. Chadwick 
 
 Steele v. Stewart 
 
 41 Ex. 113 
 
 28 Ch. 584 
 19 Ch. 402 
 / 24 Q. B. 
 1 129 
 
 49 Ch. 644 
 / 9 Ex. Eq. 
 1 17 
 J 6 Ex. Eq. 
 1 30 
 
 44 Ch. 189 
 13 Ch. 33 
 11 Ch. 71 
 
 50 Ch. 34 
 
 J 10Ex.Eq. 
 \ 56 
 49 Ch. 296 
 
 47Q.B. 258 
 24 Ch. 369 
 
 14 Ch. 34 
 
 26, 439 
 
 42, 
 
 64 
 
 43, 
 
 30, 
 
 42, 
 
 42, 
 
 49 
 
 752 
 
 234 
 
 310 
 
 9, 633 
 
 28, 38 
 
 20, 751 
 
 3, 163 
 
 5 Jur. N. 
 
 S. 858 
 
 19 Jur. 63 
 
 28, 
 
 5, 
 
 324 
 
 743 
 
 3 Jur. N 
 
 S. 631 
 
 14, 857 
 13, 660 1 
 
 28,807 
 
 18, 915 
 25, 606 
 22, 856 
 
 28, 925 
 
 29, 585 
 
 12, 285 
 
 fW. N.i866, 1 
 \ 265 J 
 
 05 ;\ 
 .68/ 
 
 5N. E. 
 11 Jur. 
 
 XX. S, 
 
 605 ;1 
 UJur.N.S.r 
 
 . 240 
 
 / W. N. 1877, "I 
 I 116 j" 
 
 7 Jur. 1095 
 
 6 Jur. 1 
 5 Jur. 1063 
 
 /26,; 
 
 t 3 
 
 ,328, 
 341 
 
 3, 391 
 
 3 N. K. 349 ; 
 10 Jur. N. S. 
 118 
 
 } ' { 
 
 15 Jur. 1139 ; ] 
 13 Beav. 320 J 
 9 Jur. 121 
 
 83, 54 
 
 18,20,174 
 
 9 
 
 50 
 
 47, 48 
 
 128 
 
 167 
 134 
 176 
 
 64 
 24, 34 
 
 23 
 
 47 
 
 20 
 
 47 
 153 
 26, 101, 
 172 
 
 57 
 146, 149, 
 176 
 159 
 
 34 
 
 51 
 
 48 
 
 19, 20 
 
 15 
 
 24, 26, 89 
 
 51 
 
 38,39,40, 
 42 
 65, 66 
 131 
 146 
 178, 179 
 178 
 
 154 
 
 152 
 125 
 
 I 76 
 
 128 
 
 51,57,58, 
 
 59, 60 
 
 66 
 103, 104 
 
 27, 139 : 
 
 58 
 
TABLE OP CASES. 
 
 St— Ti 
 
 XXVll 
 
 NAMES OF CASES. 
 
 Law- 
 Journal 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Reporter. 
 
 Miscellaneous. 
 
 Page. 
 
 Steia r. Tabor 
 
 Stocks i». Ellis 
 
 Storey r. Lord Lennox 
 
 Stowe V. Jolliffe 
 
 Strong V. Tappin 
 
 Stuart V. Lord Bute -j 
 
 Suckermore r. Dimes 
 
 SntclifFe, Se 
 
 Summerfield i>. Pritchard 
 
 Swansea Railway II. Budd ... 
 
 — Mayor of, v. Quirk 
 
 Swanston D. Lishman 
 
 Swift •». M'lernan 
 
 Swinburne v. Nelson 
 
 Swire «. Redman 
 
 42 Q. B. 24 
 6 Ch. 99 
 
 lOCh. 169; 
 12 *. 140 
 
 50 Ch. 574 
 
 22 Ch. 528 
 35 Ch. 631 
 
 49C. P.157 
 
 22 Ch. 33 
 
 29, 267 
 
 Talbot v. Marshfield 
 
 Taylors. Batten 
 
 — V. K-elly 
 
 — i;. Oliver 
 
 — X,. RundeU(No. 1)... 
 
 — „. — (No. 2)... 
 
 — «. — (L. C.) ... 
 
 — V. Sheppard 
 
 Telford v. Euskin 
 
 Temperley v. Willett 
 
 Tetleyi). Easton 
 
 TTieodor Korner, The 
 
 Thomas f. Palin 
 
 — V. Queen 
 
 — V. Rawlings 
 
 — V. — (No. 2) 
 
 — V. Tillie 
 
 Thompson v. Dunn 
 
 — II. Falk 
 
 — V. Kobson 
 
 — V. Wynne 
 
 Tilney r. Stansfleld 
 
 Tipping D. Clarke 
 
 48 Q. B. 72 
 
 13 Ch. 20 
 
 29 Ch.' 867 
 25 Q.B. 259 
 25 C. P. 293 
 47 Prob. 85 
 
 44 Q. B. 17 
 
 26 Ex. 367 
 
 13, 424 
 39, 408 
 34, 902 
 
 9, '807 
 38, 818 
 32, 59 
 
 22, 17 
 
 1 Keen, 341 
 
 XX. S.' J. 240 
 / 7 Jur. 291 ; 
 I 5 ib. 333 
 
 ■•) 
 
 29, 730 
 
 1, 270 
 14, 668 
 
 28, 371 
 
 1, 155 
 
 17 Jur. 361 
 12Jur. N.S. 561 
 
 27, 106 
 
 575 
 546 
 
 '307 
 
 716 
 
 345 
 
 854 
 '728 
 
 15 
 65 
 37 
 180, 181 
 15 
 
 90, 93 
 
 20 
 32, 94, 
 
 101 
 
 142 
 
 143 
 52, 161, 
 
 162 
 113, 114, 
 
 120 
 35 
 26, 130, 
 
 172 
 75 
 
 11 Jur. N. S. 
 901 ; 6 N. R. 
 
 288 
 
 5 Jur. 324;^ 
 11 Sim. 391 J 
 5 Jur. 1129 
 7 Jur. 1073 
 
 2 Jur. N, 
 
 S. 519 
 
 55, 137 
 
 117 
 118 
 118 
 
 114 
 
 115 
 
 93, 133 
 138 
 
 94, 132 
 64 
 
 48, 173 
 58 
 97, 107, 
 153, 154, 
 186 
 4 
 54, 62, 
 116 
 184 
 176 
 32 
 61 
 131 
 76 
 156 
 23,87,88, 
 89 
 
XXVlll 
 
 Ti-Wa 
 
 TABLE OF CASES. 
 
 NAMES OF CASES. 
 
 Tipping ii. Coates 
 
 Toddi). Gamble 
 
 Toleman, Jie 
 
 Tomline v. Queen 
 
 Tomlinson v. Swinnerton 
 
 Trench I!. Semple 
 
 TurnbuU v. Jansou 
 
 Turner D. Goulden 
 
 Turner ^). Jack 
 
 ■ — V. Burkinshaw ... 
 
 Turney v. Bayley 
 
 Turton v. Barber 
 
 Tyas «. Brown 
 
 Tyrone Election Petition 
 Twenty man v. Barnes ... 
 Twyoroas v. Grant 
 
 U. 
 
 Underwood t). Secretary for \ 
 India / 
 
 Union Bank v. Manby 
 
 U. S. V. MacRae 
 
 — V. Wagner 
 
 V. 
 
 Vale v. Oppert 
 
 Verminck v. Edwards 
 
 Vicaiy v. G. N. R. . 
 
 Vidi V, Smith 
 
 Vivian v. Little 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 48 Ex. 453 
 
 47 C. P. 374 
 43 C. P. 60 
 
 33 Ch. 499 
 43 Ch. 468 
 
 Law Times 
 (New Series). 
 
 40, 542 
 
 23, 800 
 
 8, 569 
 10, 115 
 
 W. 
 
 "Wadebr u E. I. Co 
 
 Wagstaffe v. Anderson 
 
 — V. Bryan 
 
 Walker v. Cooke 
 
 — V. Daniell 
 
 — V. Fletcher 
 
 — - V. Kennedy 
 
 — V. Poole 
 
 Walsham u Stainton 
 
 Walwyn u Lee 
 
 Warden v. Pedington 
 
 Warde v. W 
 
 Warwick v. Queen's Coll 
 
 Waterford, Lord,'!). Knight.. 
 Waters v. Lord Shaftesbury . . 
 
 35 Ch. 545 
 
 49 Ch. 106 
 37 Ch. 129 
 
 36 Ch. 624 
 
 44 Ch. 579 
 
 51Q.B. 462 
 23Q.B. 342 
 
 25 Ch. 345 
 8Ex.'Eq.56 
 
 36 Ch. 505 
 
 14, 385 
 
 41, 393 
 17, 428 
 16, 646 
 
 33, 41 
 
 9, 603 
 
 13, 558 
 
 Weekly 
 Reporter. 
 
 Miscellaneous. 
 
 27, 651 
 
 11, 851 
 
 12, 633 
 22, 438 
 28, 575 
 2], 627 
 
 14, 551 
 
 28, 23 
 16, 377 
 
 15, 1026 
 
 23, 780 
 
 2N. R. 
 3K R. 
 
 414 
 695 
 
 12 Jur. 
 XX. S. 
 
 743 
 J. 97 
 
 Page. 
 
 12 Jur. N. S. 
 321 ; W. N. 
 1866, 95 
 
 4, 421 
 
 22, 595 
 
 12, 199 
 
 14, 259 
 
 1 Jur. N. S. 14 
 
 2 Jur. N. S. 407 
 
 3 N. E. 246 
 
 9B)igh,N.S.307 
 12 Jur. N. S. 3 
 
 132 
 102 
 134 
 i 
 22 
 78 
 186 
 38 
 95 
 16, 124 
 28, 136 
 52, 53 
 61, 178 
 180, 181 
 141, 144 
 157 
 
 ' 52,121, 
 I 136 
 
 13, 14 
 48, 49 
 3, 164 
 
 134, 135 
 
 29 
 101, 182, 
 
 184 
 
 175 
 115, 135, 
 138, 178 
 
 65, 102 
 
 116 
 
 87 
 
 142 
 
 88, 95 
 
 149, 160 
 
 112 
 118, 184 
 51,56,61 
 67, 68 
 75, 121 
 55 
 35 
 75 
 64 
 
TABLE OF CASES. 
 
 Wa-Wo 
 
 XXIX 
 
 NAMES OF CASES. 
 
 Law 
 
 Journal 
 
 (New Series). 
 
 Law Times 
 (New Series). 
 
 Weekly 
 Repobter. 
 
 Miscellaneous. 
 
 Waynes' Co. u. Powell's Co. 
 
 Webb ». BomfoRl 
 
 — i>. East 
 
 Webster v. Whewall.... 
 
 Weise i'. Wardle 
 
 Wells !'. Wren 
 
 Welsh Coll. V. Gaskell. 
 
 46 Ch. 288 
 49 Ex. 250 
 
 49 Ch. 704 
 49 C. P. 681 
 
 Wentworth ■». Lloyd 
 
 West of England Bank v. \ 
 Canton Ins. Co I 
 
 West of England Bank i'. \ 
 NiehoUs / 
 
 Westinghonse v. Midi. Ry. \ 
 Co. (C. A.) J 
 
 Westminster Co. v. Clayton.. 
 
 Whale V. Griffiths 
 
 Whaley I'. Brancker 
 
 Whaiteley I'. Crowter , 
 
 Wheeler v. Le Marchant ... 
 
 Whelan'B. Shaw 
 
 Whitaker ■». Izod 
 
 White D. Barker 
 
 — V. Storey 
 
 — 5j. Watts 
 
 Whitmore v. Thornton 
 
 Wich «. Parker 
 
 Wier 41. Tucker 
 
 Wilkin V. Nainby 
 
 Williams, Se 
 
 — V. Donglas 
 
 — V. Hodge 
 
 — V. Pnnce of\ 
 Wales Co J 
 
 Wilson V. Bates 
 
 V. Church. 
 
 — V. Raffalovich 
 
 — V. Thombury 
 
 WUts. Canal Co. v. Swindon \ 
 
 Co J 
 
 Winchester, Bishop of, «. \ 
 
 Bowker J 
 
 Windle «. Lane 
 
 Winter v. W 
 
 Wltham V. Vane 
 
 Wolverhampton Co. v. \ 
 
 Hawksford / 
 
 Wood, .Be 
 
 — V. Anglo- Ital. Bank .. 
 
 25Q.B. 163 
 50 Ch. 793 
 
 31 C. P. 381 
 
 41 Ch.' 471 
 30 Cii. 610 
 19 cii. 196 
 
 7 Ch. 131 
 
 43 Ch 356 
 
 49 Ch. 242 
 28 C. P. 198 
 
 33 Ch. 334 
 
 715 
 868 
 
 44, 632 
 
 6, 387 
 
 719 
 103 
 
 39, 413 
 
 41, 729 
 
 9, 698 
 
 25, 251 
 28, 336 
 
 28, 951 
 
 23, 208 
 
 12, 123 
 10, 571 
 12, 570, 
 593 
 4,121 
 30, 235 
 
 4, 452 
 20, 586 
 
 9, 398 
 
 26, 735 
 
 22, 509 
 
 9, 401 
 
 28, 276 
 7, 244 
 
 12, 293 
 
 XXIV. S. J. 780 
 W. N. 1877, 5 
 
 10 Jm-. N. S. 
 961 
 
 3 N. R. Ill 
 
 llOJur.N.S. f 
 J 635 \ 
 
 lOJur.N.S. 
 
 635 
 
 2 Jur. N. S. 207 
 
 2 Jur. N. S. 582 
 
 10 Jur. 735 
 
 7 Jm-. N. S. 323 
 
 3Jm-. N. S.55^ 
 2 Jur. 107,319- 
 
 35 
 
 78 
 
 46,49,132 
 15, 123, 
 126 
 11 
 179, 180 
 120, 161 
 
 I 62 
 168, 169 
 33 
 
 58,59,60 
 
 120 
 78 
 145, 147, 
 148 
 38, 83 
 51,56,59 
 17 
 137 
 87,93,94 
 143 
 9 
 20 
 75 
 27, 94 
 155 
 135 
 19 
 77, 110 
 136, 142, 
 
 144 
 96, 106, 
 
 152 
 6, 11, 70, 
 159, 160 
 108, 110, 
 112, 158 
 104 
 
 37 
 
 107 
 
 153 
 
 20 
 
 5 Jur. N. S. 736 
 
 10 Jur. N. 
 S. 60; 3N. 
 R. 272 
 XX. S. J. 232 
 
 83 
 
 178, 179 
 
 30 
 
XXX 
 
 Wo-Zu 
 
 TABLE OF CASES. 
 
 NAMES OP CASES. 
 
 (New Series). (*^«" S^™^>- 
 
 Weekly- 
 Reporter. 
 
 Miscellaneous. 
 
 Woodhatoh v. Freeland 
 
 Woods D. W 14 Ch. 9 
 
 Woodward t). Conebeer 13 Ch. 27 
 
 ■WooUey «. Pole 32C.P. 263 
 
 Wrentmore v. Hagley 
 
 Wright V. Goodlake 34 Ex. 82 
 
 Pitt 
 
 f. Vemon 22 Ch. 447 
 
 V. Wilkin 
 
 Wroiighton v. Barclay 
 
 Wynne v. Humberston 28 Ch. 281 
 
 Y. 
 
 ^p^ort^a^"".':."-..:.-..^.'!:} ^^ q-^- 527 
 
 Young!;. Brassey 45 Ch. 142 
 
 v.Y 
 
 Z. 
 
 Zambaoo v. Cassavetti 38 Ch. 503 
 
 Zarifi V. Thornton . 
 
 Zulueta V. Vincent 21 Ch. 414 
 
 46, 741 
 19, 79 
 
 42, 637 
 
 13, 349 
 / 16,783 
 t 1073 
 1, 138 
 11, 253 
 
 28, 505 
 24, 110 
 
 9 Jul-. 102, 605 
 
 9 Jur. N, 
 5 Jur. n' 
 
 S. 195 
 S. 5 
 
 21 Jur. 92 
 16 Jur. 68 
 
 90, 115 
 
 55 
 
 153 
 
 129 
 
 111, 166 
 
 38 
 
 120 
 
 35,61,167 
 78 
 134 
 55 
 
 72, 79 
 152 
 
 71 
 
 17 
 
 155, 157 
 
WORKS REFERRED TO. 
 
 Dan. 
 Day 
 Hare 
 
 Kerr . 
 
 Lusli 
 
 Mitf. . 
 
 Seton 
 
 Steph. 
 
 Tayl. 
 
 Daniell's Chancery Practice (cd. 5). 
 Day's C. L. P. Acts (ed. 4). 
 Hare on Discovery (ed. 2). 
 Kerr on Discovery. 
 Lush's Practice (ed. 3). 
 Mitford's Pleadings in Chancery (ed. 5). 
 Seton on Decrees (ed. 4). 
 Stephen's Digest of the Law of Evidence. 
 Taylor on Evidence (ed. 7). 
 
ADDENDA. 
 
 The following cases upon discovery, which have been Addenda, 
 decided since this work first went to press, and are, conse- 
 quently, only briefly referred to therein, are inserted here at 
 greater length on account of their importance. 
 
 Lyell V. Kennedy (a) was in substance an action for the recovery LT/ell v. 
 of land by the assignee of alleged co heiresses-at-law against a Kennedy. 
 person in possession of the estates sought to be recovered, and, 1- Discovery by 
 with the object of avoiding the effect of the Statute of Limitations, pl*;"t'ff"i 
 it was alleged that the defendant's possession was that of a trustee recovery of 
 of the property for the alleged co-heiresses and their assigns. The land. 
 plaintiff dehvered inteiTogatories, which to a great extent were 2. Rii^iit of 
 directed to obtaining information in support of the pedigree of the discovery not 
 alleged co-heiresses, some of which the defendant declined to affected by 
 answer upon various grounds (aa). Bacon, V.-C, refused to order J"^''"'''*"™ 
 him to make any further answer, and the Court of Appeal, upon 
 grounds of "public policy," and the supposed authority of the 
 case of Horton v. Bott (6), decided by the Court of Exchequer in 
 1857, no cases being cited to them in which bills of discovery had 
 been allowed in aid of actions of ejectment, not only affirmed 
 his decision, but laid it down that (1) a plaintiff in such an action 
 must recover solely by the strength of his own title, and con- 
 sequently, was not entitled to interrogate the defendant at all, 
 and (2) the right to discovery was unaffected by the Judicature 
 Acts ; at the same time, also affirming the decision of Bacon, 
 V.-C, they refused an application by the plaintiff for inspec- 
 tion of documents disclosed by the defendant's affidavit, which 
 were described as relating solely to the defence of his title to 
 the property in question in the action, and as being communica- 
 tions between himself and his solicitors, their London agents, and 
 his counsel in reference to the defence of his title, and prepared or 
 procured for the purposes of and in contemplation of such 
 defence (c). 
 
 (a) 20 Ch. D. 484 ; 8 App. Cas, 217 (H, L.). 
 
 {aa) See the report in the H. L. (52 L. J. Ch. 385). 
 
 (b) 2 H. & N. 249. The iuterrogatories disallowed in this case were as to the 
 defendant's pedigree, 
 
 (c) lb. 491. 
 
XXXIV 
 Addenda; 
 
 ForA V. 
 DanieUf 
 decided by 
 C. A. accord- 
 ingly. 
 
 Williamson. 
 Common in- 
 former not 
 entitled to 
 disooTery. 
 
 ADDENDA. 
 
 The House of Lords {d), upon the authority of the numerous 
 cases cited before them, in which bills of discovery had been 
 allowed in support of actions of ejectment (e), none of which, 
 as above remarked, had been cited before the Court below, 
 reversed this decision, holding that there was no distinction 
 as regards the right to discovery between actions of ejectment and 
 other actions, and ordered the interrogatories to be answered in 
 substance, subject to any privilege against particular discovery 
 which the defendant might be entitled to claim. Leave was also 
 given him to file a further affidavit in support of the privilege 
 claimed by him for the documents, his previous affidavit being held 
 insufficient, apparently on the ground that the description of the 
 documents as appearing in the schedule was inconsistent with the 
 claim of privilege (/). 
 
 Upon the second point, the Lord Chancellor expressed his assent 
 with the doctrine of the Court of Appeal, that the right to 
 discovery had not been enlarged by the Judicature Act {g), but, 
 with the exception of Lord Fitzgerald, who expressed con- 
 siderable doubt upon the subject {h), the point was not noticed 
 in any of the other judgments. Lords Bramwell and Fitzgerald 
 also forcibly pointed out that the rule that the plaintiff must 
 recover on the strength of his own title applied to all actions, 
 or at least to all actions to recover property in the possession of 
 the defendant, and that there was nothing in public policy to 
 deprive the plaintiff of his ordinary right of proving his own title 
 by the lips of the defendant (i). In the meanwhile, in accordance 
 with the decisions of the Court of Appeal, Chitty, J., in Ford v. 
 Daniell (A), refused to order an affidavit of documents from the 
 defendant in a similar action, expressly dissenting from the 
 decision of the Common Pleas Division in New British Co. v. 
 Peed (I), and his decision was affirmed by the Court of 
 Appeal (m). Before the order in the latter case, however, was 
 drawn up, the House of Lords had reversed the decision in 
 Lyell V. Kennedy, and the Court of Appeal, accordingly, reversed 
 their previous decision and allowed the appeal («). 
 
 The doctrine that the right to discovery is unaffected by the 
 Judicature Acts has also been recognised in the recent case of 
 Munnings (or Hemmings) v. Williamson (o), where it was held that 
 the plaintiff in an action for penalties alone is not entitled to an 
 affidavit of documents from, or to inteiTogate, the defendant, on 
 the ground that a Court of Equity would not have given discovery 
 
 (d) 52 L. J. Ch. 385 ; 8 App. Cas. 217. 
 
 (e) r. ib. 387, 391. 
 
 (/) See per Lord Selbome, L. C, ib. 392. 
 
 ig) Ib. 390. 
 
 (h) Ib. 395. 
 
 (i) Ib. 393-5. 
 
 (k) 47 L. T. 675. 
 
 (I) 3 C. P. D. 196. 
 
 (to) L. J. (N. C.)22. 
 
 (») W. N. 1883, 27, 52. 
 
 (o) 10 Q. B. D. 459, 462. 
 
ADDENDA. XXXV 
 
 in a suit, where the whole object was to convict the defendant in a Addenda. 
 
 penalty ( p). The effect of these decisions is, as pointed out by 
 
 Stephen, J., in the case last cited, to add to the word "interroga- 
 tories " in Order XXXI., r. 1, the words " such as would have been 
 allowed in the Court of Chancery " (q), and that when the whole 
 object of the action is to obtain a penalty, no interrogatories are 
 allowed ; but in other cases, where there is some other object 
 allowing of interrogatories being administered (as in Fisher v. 
 Owfn (r)), the person inteiTOgated cannot refuse to answer (s). 
 
 In Kennedy v. Lyell {t), which was a cross action between the same Kennedy v. 
 parties as the ejectment action of Lyell v. Kennedy, in which the l/yell. 
 former defendant sought to recover penalties from the former Information 
 plaintiff, under the Statute 32 Hen. 8, c. 9, for buying a pretended proomed for 
 title, the defendant in support of his defence, administered to the P"5P°!^^° ^ 
 plaintin very lengthy and minute mterrogatones, characterised by _. . 
 Baggallay, L. J., as oppressive (it), with the object of proving the pedi- between 
 gree of the persons from whom his title was derived ; asking not confidential 
 mere simple facts, such as the fact or date of the death of parti- communioa- 
 cular persons, but questions involving a considerable amount of^'™^^"*^ 
 almost legal inference as regarded the degrees of relationship of the ^^^^ 
 several parties referred to {x), such as whether particular persons 
 were not the last of their race, and if not, who else was then 
 living, whether So-and-so were co-heiresses, &c. 
 
 To some of these interrogatories, the plaintiff by his further 
 answer, as to the sufficiency of which the question arose, de- 
 cUned to answer on the ground that he had no personal knowledge 
 of the matters inquired into, and that such information as he had 
 received in respect of the said matters had been derived by him 
 from information procured by his solicitors, or their agents, in and 
 for the purpose of defending his title to the hereditaments claimed 
 in the original action. The question was first argued before Jessel, M. 
 K., and Lindley, L. J., who, without deciding it, expressed opinions in 
 favour of the privilege {y), and finally came before a fresh Court com- 
 posed of Baggallay and Cotton, LL. J J., who also held the answer suffi- 
 cient. Upon the second argument, it was not disputed that if writ- 
 ten or verbal reports had been made to the solicitor, or by the 
 solicitor to the plaintiff, of the results of those inquiries, those re- 
 ports themselves would have been privileged (z), but it was con- 
 tended that the privilege did not extend to facts included in or 
 learned from such reports, and a number of cases were cited, the 
 
 (p) See Cliadiinck v. C, 22 L. J. Ch. 329. 
 
 (q) 52 L. J. Q. B. 276. In Lyell v. Kennedy, H. L. (52 L. J. Ch. 38.5), Lord 
 Fitzgerald expressed an opinion, that since the Judicature Acts, discovery could 
 be enlorced in such a case (ib. 395). 
 
 (r) 8 Ch. D. 645. This distinction can hardly be considered satisfactory. 
 
 (s) /*. 
 
 it) 48 L. T. 455. 
 
 (u) V. ib. 458, 
 
 (x) Vesper Baggallay, L. J., ib. 458 ; per Cotton, L. J., ib. 462. 
 
 (y) Ib. 456 (a). 
 
 (z) See Churloii v. Prewen, 2 Dr. & Sm. 390 ; Walsham v. Stainimi, 2 H. 
 & M. 1. 
 
XXXVl 
 
 ADDENDA. 
 
 Addenda, most material of which will be found in the judgment of Cotton, 
 
 L. J., cited below. Baggallay, L. J., after intimating his inclination to 
 
 agree with the distinction contended for by the defendant if the 
 interrogatories had been confined to simple matters of fact, dwelt 
 upon the complex and oppressive nature of the interrogatories put, 
 and finally treated the case as coming within the privilege attaching 
 to evidence obtained by the solicitor after litigation, citing and 
 approving of that portion of the judgment of Jessel, M. B,., in 
 Wheeler v. Le Marchmit (a), which deals with that class of privilege. 
 Cotton, L. J., after distinguishing the cases principally relied on 
 by the appellaat (6), as either proceeding upon the principle that 
 no communication made to a solicitor by his opponent can be 
 confidential, such as Spencely v. Schulenhurgh (7 East, 357), 
 Desborough v. Rawlins (3 Myl. & Cr. 515), Gore v. Bowser, (5 De 
 G. & Sm. 30), Baker v. L. & S. W. R. (L. R. 3 Q. B. 91), and Ford 
 V. Tennant (32 Beav. 162) (c), or as being cases where the informa- 
 tion sought was as to facts patent to the senses, as in Brown v. 
 Foster (1 H. & N. 736), and Sawyer v. Birchmore (3 Myl. & K. 
 572), including things heard with the ears, said {d) : "Of course, the 
 information received by the solicitor is in one sense a fact heard by 
 the ears at the time, but the question is whether he (i.e., the client) 
 is bound to communicate the result of the inquiries made by the 
 solicitor if communicated to him in that way. The privilege' is in 
 consequence of the employment of the solicitor in this confidential 
 way in order to obtain materials for the defence. If the client is 
 told of that, it is protected and privileged, if it is not merely the 
 statement of a fact known and patent to the senses, but is that 
 which is the result of the solicitor's mind working upon and acting 
 as professional adviser with reference to facts which he has seen." 
 Then, after pointing out that the questions in the present case 
 were questions, " not of facts patent to the senses, but of the probable 
 results of and inferences from other facts which would be patent to 
 the senses, seen by the eyes or heard by the ears " (dd), he con- 
 cluded by saying : " Having regard to the necessarily privileged 
 way in which the solicitor was employed on behalf of his oUent for 
 the purpose of protecting his interest and obtaining evidence, either 
 for his attack or for his defence against the attack upon him, in my 
 opinion the plaintiff is not bound to disclose any information given 
 him by his solicitor as to inferences which he draws, or as to the 
 effect on his mind of what he has seen or heard, any more than he 
 would be to produce, as a whole, necessarily confidential reports 
 made to him, either in writing or verbally, as to the result as a 
 whole of the inqnines which he has made." (e) The case therefore 
 m no way trenches upon the privilege attached to confidential 
 
 [a) 17 Ch. D. 675, 682. 
 (5) lb. 461-2. 
 
 (c) See also Perry v. Smith, 9 M, 
 ib. 817. 
 
 {d) Ib. 462. 
 {dd) lb. 
 (e) Ib. 
 
 & W. 681 ; Weeks v. Argent, 16 
 
ADDENDA. xxxvii 
 
 comnumieatums between solicitor and client, or to "materials Addenda, 
 for the brief," but recognises, and apparently approves, the distino- 
 tion between matters of confidence and matters of fact, com- 
 municated between solicitor and client, provided the disclosure 
 sought is confined to such matters of fact alone, and not extended 
 to the construction which may have been put upon or the inference 
 drawn by the solicitor from such facts. 
 
 In Kearsley v. Philips (ee), it was decided, by the Court of Ap- Kearsley v. 
 peal, affirming the decision of the Queen's Bench Division (/), in PI'-'^^P^- 
 accordance with the old case of Murray v. Walter {g), decided by Possession 
 Lord Cottenham in 1839, that the possession necessarv for the ^""^ P"^i™ff 
 
 , , . » J i. 1. • 7 ■ , 1 01 production. 
 
 production ot documents being a sole possession, a party who 
 objects to give production upon that ground is not bound to apply 
 to the co-owner for liberty to produce, or to state in his affidavit 
 that he has done so and been refused (A). 
 
 In Roe V. Xeio Yorh Association Press and BelcTcer (i), the import- Production of 
 ant question arose, upon which strong opinions had been expressed documents 
 by the Court of Appeal in ^Yehh v. East (k), viz., whether produc- ''^™^^'^g™ 
 tion of documents can be refused on the ground that they would tendency to 
 tend to criminate the party producing. The action was for libel, criminate. 
 and in his affidavit of documents the defendant objected to pro- porm of 
 duce certain documents (admitted to be relevant), which were objection. 
 described by letters and bundles in the mode common since the 
 cases of Taylor \. Batten (I) and BemcTce v. Grahame {m), on the 
 ground that the production might, to the best of his information and 
 belief, tend to criminate him. 
 
 For the plaintiffs it was contended (1) that the objection came 
 too late after the existence of the documents and their mate- 
 riality had been admitted, (2) on the authority of the dicta in 
 Webb V. East, that no such privilege existed, and (3) that it was 
 not sufficiently claimed. The defendant relied upon Hill v. Camp- 
 bell {n), decided before the Judicature Acts, and upon the latter 
 point, on the recent case of Lamb v. Munster (o). None of the 
 equity cases ivere cited. 
 
 The Court (Grove and Smith, JJ.) held, (1) that it was not 
 too late to claim the privilege if it existed ; (2) that Hill v. 
 Campbell, by which they were bound, established the existence 
 of the privilege, notwithstanding the doubts expressed by the 
 Court of Appeal in Webb v. East ; but (3) that the affidavit was 
 insufficient, as not distinctly stating that the production woidd 
 tend to criminate ; and they distinguished Lamb v. Munster, as 
 
 (e«) 10 Q. B. D. 465. 
 (/ lb. 36. 
 {g) Cr. & Ph. 114. 
 
 (h) Tlie Court below laid considerable stress on the fact that the documents 
 were the party's muniinenls of title [ib. 36). 
 (i) LXXV. Law Times, 31. 
 (k) 5 Ex. D. 108. 
 {!) 4 Q. B. D. 85. 
 (m) 7 lb. 400. 
 (re) L. a. 10 C. r. 222. 
 (o) 10 Q. B. D. 110. 
 
xxxvni 
 
 ADDENDA. 
 
 Addenda. 
 
 Information 
 procured in 
 contemplation 
 of litigation. 
 
 Official 
 liquidator 
 cannot be 
 
 being a case where the libel was set forth, and the defendant was 
 " asked whether he had published it, which must obviously tend to 
 criminate, whereas, in the present case, the defendant alone could 
 know the contents of the documents which were in his possession, 
 and whether or not their production would tend to criminate 
 him. Accordingly, leave was given him to file a further affidavit 
 in support of the claim of privilege. 
 
 The case of Westinghouse v. Tlie Midland Railway Co. (p) fur- 
 nished a fresh illustration of the limitations put upon the second 
 branch of professional privilege, i.e., information procured by the 
 party in contemplation of litigation, and in its facts considerably 
 resembled Anderson v. The Banh of British Columbia (q). The 
 defendants had objected to produce certain documents, on the 
 ground that they consisted of letters and reports written and 
 made by their officials and advisers trith a view to possible litiga- 
 tion, and, in the event tliereof, to be submitted to their solicitors, 
 and that such letters and reports had, in fact, been so submitted. 
 Upon a summons being taken out for their production notwith- 
 standing the objection, the defendants made a further affidavit 
 claiming in substance for the documents that they had been pre- 
 pared after a threat of litigation on the part of the plaintiff, and 
 not in the ordinary course of business, but not showing that they 
 had been prepared under the advice of the solicitors, or with a 
 view to the particular litigation, which did not commence until a 
 year after what the defendants professed to regard as a threat of 
 litigation. Bacon, V.-C, ordered production, on the ground that 
 there had been no threat of litigation, and the Court of Appeal 
 (Baggallay and Lindley, LL. JJ.) affirmed his decision, holding the 
 claim of privilege to be insufficient, even assuming that there had 
 been such a threat, and Baggallay, L. J., said : — " The first affidavit 
 does not specify what future Htigation was expected, or that the 
 documents were submitted to the defendants' solicitors in conse- 
 quence of the advice given to the defendants (r). It was only in 
 case there should be some future litigation that the docume^its loere to 
 be so submitted. That is not a sufficient ground of privilege." It 
 will be observed that it was not shown that the documents, though 
 ultimately laid before the solicitor, were prepared with the bond 
 fide intention of being laid before him (s), and that more than a 
 year had elapsed between their coming into existence and the 
 commencement of the litigation against the party who procured 
 them, which raised a strong inference to the contrary. 
 
 The practice with regard to obtaining discovery of documents 
 by an adverse litigant from an official liquidator, when litigating 
 
 caUed upon for '^^ ^^^^^^ ^^ ^ company in winding-up, has been laid down by the 
 
 (p) 48 L. T. P8, 462 (C. A.). 
 
 (2) 2 Ch. D. 644. 
 
 (r) This is unnecessary if bond jide. prepared for the purpose of being laid be- 
 fore the solicitor {v. jmst, p. ."ig). 
 
 (s) See Southwark Water Co. v. Qioick, C. A. 3 Q. B. D. 3 1 5. In that case 
 the documents were prepared by the plaintiff; in the present case by the 
 defendant. ' 
 
ADDENDA. xxxix 
 
 Court of Appeal in a recent case (<), where it was decided that an Addenda, 
 official liquidator is not in the position of an ordinary litigant, ] ' 
 
 and cannot, on account of the expense and delay which would be ^ affidavit of 
 occasioned, be called upon for an affidavit of documents under g^cept under 
 ordinary circumstances, but that it is his duty to offer his opponent special 
 inspection of any document on which he (the liquidator) relies, or oircumstancea. 
 which his opponent desires to see, a duty which the Court will 
 enforce from him, as being its officer. Application should be 
 made to him, therefore, before invoking the aid of the Court, and 
 an order for discovery will not be made unless there is some good 
 reason for mistrusting him or for supposing that he is trying to 
 keep back documents («). 
 
 In Ponsonhy v. Hartley (x), which was an action by the lord Ponsonly v. 
 against the tenant of a manor to enforce a right to the minerals Hartley. 
 under the tenant's land, the question was whether the plaintiff was Reasonable 
 entitled to the production of documents fuUy alleged by the defeu- grounds for 
 dant to relate solely to his title to the land in question. For the mist™stmg 
 defendant it was contended that the rule in ejectment that the priyiiecre. 
 plaintiff cannot obtain discovery of the defendant's title-deeds 
 applied, but Pearson, J., ordered production on the ground that 
 the rule had no application to such a case as that before him, 
 where the defendant's title to the surface was admitted, and 
 the only dispute was as to the mines. The Court of Appeal, 
 after inspection of one of the documents in question, came 
 to the conclusion that it did not tend to support the title of the 
 plaintiff, and that the affidavit of documents claiming privilege 
 for all the documents on this ground was to that extent inaccurate, 
 and, consequently, could not be relied on as to the other docu- 
 ments {y). They, therefore, affirmed the order of the Court below, 
 though on a different ground {yy). 
 
 Several important points of practice have also been decided. Prestney v. 
 In Prestney v. Mayor, &€., of Colcliester (2), the indulgence shown Mayor of 
 in the case of trade-books in constant use in permitting inspection Oolchester. 
 of them to be given at the place where they are kept, instead of Practice as to 
 at the office of the producing party's solicitor, was extended to P'"*"® ". 
 the case of the chartera and muniments of the defendants, on 
 account of their great age and value, their bulk, and their liability 
 to destruction, leave being reserved to the inspecting party to apply 
 for any additional costs occasioned him thereby. 
 
 In Mitchell v. The Barley Main Colliery Go. (a) it was held, in Costs of inspec- 
 accordance with a previous decision (6), that there is jurisdiction *">" may be 
 to order prospectively the costs of an inspection of property to be p^speTtively 
 paid by the party inspecting, and that such an order is a discre- and are 
 
 discretionary. 
 
 {t) Re Mutual Society, 22 Ch. D. 714, affirming the decision of Chitty, J. 
 (ii\ lb. The application was by a director charged with misfeasance under 
 s. 16.5 of the Companies Act, 1862. 
 (x) W. N. 1883, 1.3. 
 
 (V) See A.-G. v. Emerson, C. A., 10 Q. B. D. 191. 
 (yy) W. N. 1883, 44. 
 
 (?) 52 L. J. Ch. 346 ; W. N. 1883, 41 ; affirmed in C. A, (XXVII. S. J. 552). 
 (ffi) 10 Q. B. D. 457. 
 (*) Vicary v. O. N. B.,9 ib, 168. 
 
xl 
 
 ADDENDA. 
 
 Addenda, 
 
 Orders must 
 be entered in 
 order to be 
 enforced by 
 attacbment. 
 
 Order for 
 delivery up of 
 documents is 
 within Ord. 
 XXXI. r. 21. 
 
 Service of 
 notice of 
 motion for 
 attachment 
 upon solicitor. 
 
 tionary one, and cannot, therefore, be appealed from, without 
 leave. Lastly, in Ballard v. Tomlinson (c), it was decided that 
 orders made in Chambers must be duly entered (d) in order to 
 their being enforced by attachment. It may be remarked that, 
 by a recent rule (e), simple orders for further time for giving dis- 
 covery need not be drawn up unless otherwise directed. 
 
 In Joy V. Hadley (/) Fry, J., held (1) that an order, under a 
 judgment for specific performance of an agreement of sale, for the 
 production of the documents relating to the property in question, 
 was within r. 21 of Order XXXI., so that service of it upon the 
 solicitor of the party was sufficient to found an application for an 
 attachment for disobeying it, and (2), in accordance with several 
 previous decisions, that in an action service of notice of motion for 
 an attachment upon the solicitors of the party sought to be attached 
 was sufficient. 
 
 The distinction recognised in Kennedy v. Lyell [g) is further 
 illustrated by the recent case of Favitt v. North Metropolitan 
 Tramways Go. (A), where it was decided that discovery of the facts 
 of a case cannot be withheld on the ground that the party inter- 
 rogated first learned them through his solicitor in getting up his 
 defence. 
 
 (c) 31 W. R. 563. 
 
 (d) See Consol. Ord. XXXV., r. 32. 
 («) Es. S. C, May, 1883, r. 10. 
 (/) 22 Ch. D. 571. 
 
 (g) 48 L. T. 455. 
 (h) W. N. 1883, 100. 
 
EULES 
 
 OF THE 
 
 SUPKEME COUKT, 1883. 
 
 The pi-incipal changes in the practice of discovery effected 
 by the new Order XXXI., -which is given below, are as 
 follows : — 
 
 Discovery Generally. — Security for the costs of discovery 
 must, unless otherwise ordered, be given in the first instance 
 by the party seeking it by the deposit in Court of a sum to 
 cover such costs, as a condition precedent to obtaining it, and 
 such costs will not be allowed to him as part of his costs 
 in the cause, unless the discovery appears to have been 
 reasonably asked for. 
 
 Interrogatories. — 1. These are now deliverable not only 
 in actions or causes, but in matters (which include all pro- 
 ceedings in the Courts, Jud. Act, 1873, s. 100). 2. Except in 
 actions for fraud or breach of trust, leave must in all cases 
 be obtained (either upon the summons for directions, or by 
 special application, on peril of having to pay the costs thereof) 
 to deliver inten-ogatories. 3. They may be strvAik out as 
 prolix, oppressive, or unnecessary, as well as for scandal. 
 
 Discovery of Documents. — 1. An affidavit of documents 
 will no longer be ordered as a matter of course, there being 
 a discretion as to refusing one. 2. Semble, there is a discre- 
 tion as to ordering production ; at any rate, a discretion is 
 expressly given as to the place and manner of production. 
 
 The following miscellaneous points may also be noted : — 
 
 1. Official referees have, unless otherwise ordered, the 
 same authority with respect to discovery and production of 
 documents as a judge, except that they cannot order an at- 
 tachment (Ord. XXXVI., rs. 60—1). 2. Discovery by oral 
 
xlii RULES OF THE SUPREME COURT, 1883. 
 
 exaiiiination may be had from a judgment debtor in aid of 
 execution (Ord. XLII., r. 32.) 3. In the Chancery Division, 
 applications for discovery and production of documents, and 
 all applications relating to the conduct of any cause or matter, 
 are to be disposed of in Chambers (Ord. LV., r. 2, sub-s. 17). 
 4. Chief clerks have power, for the purposes of proceedings 
 taken before them, to require the production of documents,, 
 and, when so directed by the judge, to examine parties upon 
 interrogatories or viva voce (ib., r. 16). 5. Order XXXI., 
 with the necessary modifications, applies to interpleader 
 issues (Ord. LVII., r. 13). 6. It is unnecessary to take an 
 office copy of an affidavit of documents, the copy delivered 
 by the party filing it being admissible as against such party 
 (Ord. LXV., r. 54). 
 
 Order XXXI. (a). 
 
 R. 1 (0. s.). 1. In any action where relief hy toay of damages or 
 otherwise is sought on the ground of fraud or breach of 
 trust, the plaintiff may at any time after delivering his 
 statement of claim,, and a, defendant may at or after the 
 time of delivering his defence, without any order for that 
 purpose, and in every other cause or matter the plaintiff 
 or defendant may, by leave of the Court or a Judge, deliver 
 interrogatories in luriting for the examination of the 
 opposite parties, or any one or more of such parties, and 
 such interrogatories, when delivered, shall have a note at the 
 foot thereof stating which of such interrogatories each of 
 such persons is required to answer ; provided that no party 
 shall deliver more than one set of inteiTogatories to the same 
 party without an order for that purpose ; provided also, that 
 interrogatories which do not relate to any Tnatters in ques- 
 tion in the cause or matter shall be deemed irrelevant, 
 notwithstanding that they might he admissible on the oral 
 cross-examination of a witness. 
 
 2. In deciding upon any application for leave to ex- 
 hibit interrogatories, the Court or Judge shall take into 
 account any offer which may be made by the party sought 
 to be interrogated, to deliver particulars, or to make ad- 
 
 m) Thu new matter is printed in italics. 
 
DISCOVERT. xliij 
 
 viissions, or to produce documents relating to the matter 
 in question, w any of them. 
 
 3. In adjusting the costs of the cause or matter inquiry K. 2 (0. S.). 
 shall at the instance of any party be made into the pro- 
 priety of exhibiting such interrogatories, and if it is the 
 opinion of the taxing officer or of the Court or Judge, either 
 
 with or without an application for inquiry, that such in- 
 terrogatories have been exhibited unreasonably, vexatiously 
 or at improper length, the costs occasioned by the said inter- 
 rogatories and the answers thereto shall be paid in any event 
 by the party in fault (b). 
 
 4. Interrogatories shall be in the Form No. 6 in Ap- R- 3 (0. s. ). 
 pendix B., with such variations as circumstances may 
 require (c). 
 
 5. If any party to a cause or maiter be a body corporate R. 4 (0. S.). 
 or a joint stock company, whether incorporated or not, or any 
 
 other body of persons, empowered by law to sue or to be 
 sued, whether in its own name or in the name of any officer 
 or other person, any opposite party may apply for an order 
 allowing him to deliver interrogatories to any member or 
 officer of such corporation, company, or body, and an order 
 may be made accordingly. 
 
 6. Any objection to answering any one or more of several R. 5 (0. S.). 
 interrogatories on the ground that it or they is or are 
 scandalous or irrelevant, or not bond fide for the purpose of 
 
 the cau^e or matter, or that the matters inquired into are 
 not sufficiently material at that stage, or on any other 
 ground, may be taken in the affidavit in answer. 
 
 7. Any interrogatories may be set aside on the ground that K. 5 (0. S.)- 
 they have been exhibited unreasonably or vexatiously, or 
 
 struck out on the ground that they are prolix, oppressive, 
 unnecessary, or scandalous; and any application for this 
 pui-pose may be made within seven days after service of the 
 inteiTOgatories. 
 
 8. InteiTOgatories shall be answered by affidavit to be u. 6 (0. s. ). 
 filed within ten days, or within such other time as a Judge 
 
 may allow. 
 
 9. An affidavit in answer to interrogatories shall, unless r. 7 (0. s.). 
 otherwise ordered by a Judge, if exceeding ten folios, be 
 
 (i) See also Old. LXT. r. 2f>. 
 
 (e) The forms are the sa,me as those hitherto used. 
 
jliy RULES OF THE SUPREME COURT, 1883. 
 
 printed and shall be in the Form No. 7 in Appendix B., with 
 such variations as circumstances may require. 
 
 E. 9 (6. S.). 10. No exceptions shall be taken to any affidavit in answer, 
 but the sufficiency or otherwise of any such affidavit objected 
 to as insufficient shall be determined by the Court or a Judge 
 on motion or summons. 
 
 R. 10 (0. S.). 11. If any person interrogated omits to answer, or answers 
 insufficiently, the party interrogating may apply to the Court 
 or a Judge for an order requiring hiin to answer or to answer 
 further as the case may be. And an order may be made re- 
 quiring him to answer or answer further, either by. affidavit 
 or by vivd voce examination, as the Judge may direct. 
 
 R. 12 (0. S.). 12. Any party may, without filing any affidavit, apply to 
 the Court or a Judge for an order directing any other party 
 to any cause or inatter to make discovery on oath of the 
 documents which are or have been in his possession or power, 
 relating to any matter in question therein. On the hearing 
 of such application the Court or Judge may either refuse or 
 adjourn the same, if satisfied that such discovery is not 
 necessary, or not necessary at that stage of the cause or 
 matter, or make such order, either generally or limited to 
 certain classes of documents, as may, in their or his discre- 
 tion he thought fit. 
 
 R. 13(0. S.). 13. The affidavit to be made by a party against whom 
 such order as is mentioned in the last preceding Rule has 
 been made, shall specify which, if any, of the documents 
 therein mentioned he objects to produce, and it shall be in 
 the Form No. 8 in Appendix B., with such variations as cir- 
 cumstances may require. 
 
 R. 11 (0. S.). 14. It shall be lawful for the Court or a Judge at any time 
 during the pendency of any cause or m,atter, to order the 
 production by any party thereto, upon oath, of such of the 
 documents in his possession or power, relating to any matter 
 in question in such cau^e or matter, as the Court or Judge 
 shall think right ; and the Court may deal with such docu- 
 ments, when produced, in such manner as shall appear just. 
 
 R. 14 (0. s.). 15. Every party to a cause or matter shall be entitled, at 
 any time, by notice in writing, to give notice to any other 
 party, in whose pleadings or affidavits reference is made to 
 any document, to produce such document for the inspection 
 of the party giving such notice, or of his solicitor, and to per- 
 mit him or them to take copies thereof ; and any party not 
 
DISCOVEEY. xlv 
 
 complying with such notice shall not afterwards be at liberty 
 to put any such document in evidence on his behalf in such 
 cav^e or matter, unless he shall satisfy the Court or a Judge 
 that such document relates only to his own title, he being a 
 defendant to the cause or matter, or that he had some other 
 cause or excuse which the Court or Judge shall deem suffi- 
 cient for not complying with such notice : in which case 
 the Court or Judge viay allow the same to be put in 
 evidence on such terms a^ to costs and otherwise as the 
 Court or Judge shall think fit. 
 
 16. Notice to any party to produce any documents referred R. 15 (0. S.). 
 to in his pleading or affidavits shall be in the Form No. 9 in 
 Appendix B., with such variations as circumstances may 
 require. 
 
 17. The party to whom such notice is given shall, within K- 16 (0. S.). 
 two days from the receipt of such notice, if all the documents 
 
 therein referred to have been set forth by him in such 
 affidavit as is mentioned in Rule 13, or if any of the docu- 
 ments referred to in such notice have not been set forth by 
 him in any such affidavit, then within four days from the 
 receipt of such notice, deliver to the party giving the same a 
 notice stating a 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, or in the case of banker's books or other books of 
 account, or books in constant use for the purposes of any 
 trade or business, at their usual place of custody, and 
 stating which (if any) of the documents he objects to produce, 
 and on what ground. Such notice shall be in the Form No. 
 10 in Appendix B., with such variations as circumstances 
 may require. 
 
 18. If the party served with notice under Rule 17 omits to Rs. 17—18 
 give such notice of a time for inspection, or objects to give ( ■ ■)■ 
 inspection or offers inspection elsewhere than at the office of 
 
 his solicitor, the Judge may, on the application of the party 
 desiring it, make an order for inspection in such place and in 
 such manner as he may think fit ; and, except in the case of 
 documents referred to in the pleadings or affidavits of the 
 party against whom the application is made, or disclosed in 
 his affidavit of documents, such application shall be founded 
 upon an affidavit showing of what documents inspection is 
 ■sought, that the party applying is entitled to inspect them, 
 
xlyi RULES OF THE SUPREME COURT, 1883. 
 
 and that they are in the possession or power of the other- 
 party. 
 
 19. An order upon the lord of a manor to allow limited 
 inspection of the Court rolls may he made on the applica- 
 tion of a copyhold tenant supported by an affidavit that he 
 has applied for inspection, and that the same has been 
 refused (d). 
 
 K. 19 (0. S.). 20. If the party from whom discovery of any kind or in- 
 spection is sought objects to the same, or any part thereof, 
 the Court or a Judge may, if satisfied that the right to the 
 discovery or inspection sought depends on the determination 
 of any issue or question in dispute in the cause or matter, or 
 that for any other reason it is desirable that any issue or 
 question in dispute in the cause or matter should be de- 
 termined before deciding upon the right to the discovery 
 or inspection, order that such issue or question be deter- 
 mined first, and reserve the question as to the discovery 
 or inspection. 
 
 R. 20 (0. S.). 21. If any party fails to comply with any order to answer 
 interrogatories, or for discovery or inspection of docu ments, . 
 he shall be liable to attachment. He shall also, if a plaintiff, 
 be liable to have his action dismissed for want of prosecution, 
 and, if a defendant, to have his defence, if any, struck out, 
 and to be placed in the same position as if he had not 
 defended, and the party interrogating may apply to the Court 
 or a Judge for an order to that effect, and an order may be 
 made accordingly. 
 
 R. 21 (0. S.). 22. Service of an order for interrogatories or discovery or 
 inspection made against any party on his solicitor shall be 
 sufficient service to found an application for an attachment 
 for disobedience to the order. But the party against whom 
 the application for an attachment is made may show in 
 answer to the application that he has had no notice or know- 
 ledge of the order. 
 
 R. 22 (0. S.). 23. A solicitor upon whom an order against any party for 
 interrogatories m' discovery or inspection is served under 
 the last preceding Eule, who neglects without reasonable 
 excuse to give notice thereof to his client, shall be liable to 
 attachment. 
 
 R. 23(0. S.). 24. Any party may at the trial of a cause, matter, or" 
 
 [d] This is taken from Reg. Gen. Hil. 1853, v. 31, 
 
DISCOTEET. 
 
 xlvu 
 
 issue, use in evidence any one or more of the answers or any 
 part of an answer of the opposite party to interrogatories 
 without putting in the others or the rvhole of stwh answer : 
 provided always, that in such case the Judge may look at the 
 whole of the answers, and if he shall be of opinion that any 
 others of them are so 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. 
 
 25. In every cause or matter, the costs of discovery, by 
 interrogatories or othenuise, shall, unless otherwise ordered 
 by the Court or a Judge, be secured in the first instance as 
 provided by Rule 26 of this Order, by the party seeking such 
 discovery, and shcdl be alloived as part of the costs where, 
 and only v:here, such discovery shall appear to the Judge at 
 the trial, or, if tliere i^ no tried, to the Court or a Judge, 
 or shcdl appear to the taxing officer, to have been reason- 
 ably asked for. 
 
 26. Any party seeking discovery by interrogatories 
 shcdl, before delivery of interrogatories, fay into Court to a 
 separate account in the action, to be called " Security for 
 Costs Account," to abide further order, the sum of 51., and if 
 the number of folios exceeds five, the further sum of 10s. for 
 every additional folio. Any party seeking discovery other- 
 ivise than by inter7'ogatories shall, before making applica- 
 tion for discovery, pay into Court to a like account, to 
 abide further order, the sum of 51., and may be diddered 
 further to pay into Court as aforesaid such additional sum 
 as the CouH or a Judge shall direct. The party seeking 
 discovery shcdl, with his interrogatories or order fen- dis- 
 covery, serve a copy of the receipt for the said payment into 
 Court, and the time for answering or making discovery 
 shall in all cases commence from the date of such service. 
 The party from whom discovery is sought shall not be re- 
 quired to answer or maJce discovery unless and until the 
 said payment has been made. 
 
 27. Unless the Court or a Judge shall at or before the trial 
 otherwise order, the amount standing to the credit of the 
 " Security for Costs Account" in any cause or matter, shall 
 after the cause or matter has been finally disposed of be 
 paid out to the party by whom, the same tvas paid in on his 
 request, or to his solicitor on such party's written authority, 
 in the event of the costs of the cause or matter being 
 
xlviii RULES OF T^E SUPEEMK COURT, 1883. 
 
 adjudged to him, but, in the event of the Court or Judge 
 ordering him to pay the costs of the cause or vmtter, the 
 amount in Court shall he subject to a lien for the costs 
 ordered to be paid to any other party. 
 
 28. In any action against or by a sheriff in respect of any 
 matters connected with the execution of his office, the Court 
 or a Judge may, on the application of either party, order 
 that the affidavit to be made in answer either to interroga- 
 tories or to an order for discovery shall be made by the 
 officer actually concerned. 
 
 Order L. 
 
 Ord. Lil. r. 3 3. It shall be lawful for the Court or a Judge, upon the 
 '^' ^'^' application of any party to a cause or matter, and upon such 
 terms as may be just, to make any order for the deten- 
 tion, preservation, or inspection of any property or thing, 
 being the subject of such cause or matter, or as to which 
 any question may arise therein, and for all or any of the 
 purposes aforesaid to authorise any persons to enter upon 
 or into any land or building in the possession of any party to 
 such cause or matter, and for all or any of the pui'poses afore- 
 said to authorise any samples to be taken, or any observation 
 to be made or experiment to be tried, which may be neces- 
 sary or expedient for the purpose of obtaining full informa- 
 tion or evidence. 
 li; r. 4 6. An application for an order under * * * Rules 2 or 3 
 ^ ■ of this Order may be made to the Court or a Judge by any 
 
 party. If the application be by the plaintiff for * * * an 
 order under Rules 2 or 3 of this Order it may be made after 
 notice to the defendant at any time after the issue of the 
 writ of summons, and if it be by any other party, then OQ 
 notice to tbe plaintiff, and at any time after appearance by 
 the party making the application. 
 
EKRATA. 
 
 Page xxxiv., line 15 from bottom. For "Fovi v. X)a.nie\\," read " Daniel «, 
 Ford." 
 xxxix., line 26, dele "not." 
 12, line 13. For "pending" read "pendency." 
 24, n. {t) line 6 from bottom. Read "given in evidence." 
 35, n. (c). For 13 Eq. 33 read 1 Eq. 436. 
 50, n. (y). For C. & R. rearf C. & K. 
 60, line 6. For "British Bank of Columbia'' read "Bank of British 
 
 Columbia." 
 84, n. (z). Head "Biett, 3." 
 89, n. (i). For "p. 193 " read "p. 190." 
 
 99, n. (m). For "Ord. XXXVII. r. 15 " read "Ovd. XXXAai. r. 3d." 
 Ill, n. (g). " Daniel v. Eord, C. A." is reported " W. N. 1883, 52." 
 117, 11. (s). For " 1873 " read " 187." 
 134, u. (?i). iJead "1 ib. 138." 
 159, n. (c). For " 2 Eq." rrati " 3 Eq." 
 165, n. (h). For " Ford v. Daniel " read " Daniel v. Ford. " 
 
 Discovery — to face p. 1.] 
 
THE 
 
 LAW AND PEACTICE 
 
 or 
 
 DISCOVEEY. 
 
 CHAPTER I. 
 
 INTRODUCTORY. 
 
 The origin of the jurisdiction of the Court of Chancery to chap, i. 
 grant discovery, i.e., the discovery of evidence, is thus de- Origin of bills 
 sci;ibed by Lord Langdale, M. E. (a) : " From the mode of pro- °^ disooTery. 
 ceeding at common law, a man with the full knowledge of 
 facts which would show the truth and justice of the case, may, 
 by concealing those facts within his own breast, and merely 
 for want of disclosure or evidence, succeed in recovering a 
 demand which he knows to be satisfied, or in resisting a de- 
 mand which he knows to be just. This conduct is by 
 Courts of Equity considered to be against conscience ,- and 
 they accordingly enable the party in danger of being 
 oppressed by it to obtain from his adversary a discovery 
 of the facts within his knowledge or belief, by filing a 
 proper bill for the purpose ; and by the general rule a 
 defendant to a proper bill of discovery is bound to make 
 a complete disclosure of everything he knows or believes in 
 relation to the matter in question. According to the general 
 rule, he is not to withhold anything. Almost every bill of 
 discovery contains * * * a charge that the defendant has in 
 his possession or power papers relating to the matter in 
 question, and calls upon the defendant to set forth, as 
 part of the discovery he is required to make, either the 
 contents of the papers, or a list of the papers, in order to 
 
 (a) 1 Keen, 349 seq. 
 
LAW AND PRACTICE OF DISCOYEEY. 
 
 OHAP. I. 
 
 Eunotions of 
 discovery. 
 
 their production ; and by the general rule the defendant is 
 ■ bound to produce (as part of the discovery he is required 
 to make, and to complete his answer, which would otherwise 
 be imperfect) all the papers which he admits to be in his 
 posssession, and to relate to the matters in question." 
 "However disagreeable it may be to make the disclosure, 
 however fatal to the claim upon which he may have insisted, 
 he is required and compelled, under the most solemn sanc- 
 tion, to set forth all he knows, believes, or thinks in relation 
 to the matters in question " (b). Following its own rules as 
 applied to actions at law, the Court gave a similar remedy 
 where there was a suit in equity, so that every bill for relief 
 was a bill for discovery also incidental thereto (c), and in 
 process ©f time the Legislature thought fit to get rid of the 
 necessity of resorting to Courts of Equity for discovery by 
 empowering the Common Law Courts to give discovery in 
 common law actions (d). 
 
 The functions of discovery (in the wider sense of the 
 word) are threefold, viz., (1) to obtain discovery properly so 
 called, i.e., information as to matters known to the party 
 interrogated and not known to the party interrogating, 
 which are material for him to know ; (2) to obtain admis- 
 sions obviating the necessity of proof aliunde and saving 
 trouble and expense ; and (3) to ascertain the nature 
 of the case set up by the opposite party (e). 
 .Turisdiction of Since the passing of the Judicature Acts, 1873 and 1875, 
 Supreme Court discovery is obtainable, either by means of an action 
 
 to errant dia- -^ i / r\ t 
 
 for discovery only (/) (corresponding to the former bill of 
 discovery), or the interlocutory processes of interrogatories 
 and discovery of documents (according to the nature of the 
 discovery sought) (g), in every division of the High Court of 
 Justice to the same extent as it would formerly have been 
 obtainable in the Court of Chancery, by bill of discovery 
 or otherwise, the jurisdiction of that Court being now 
 transferred to the High Court of Justice {h). Thus, discovery 
 
 {b) Per Lord Langdale, M. R., 8 Beav. 34. 
 
 (c) Seeder- Jessel, M. R., 9 Ch. D. 555 ; W. pi. 11. 
 
 {d) See 14 & 15 Vic. c. 99 s. 6, and C. L. P. Act, 1854, ss. 50 sea. ; per 
 Jessel, M. E. , uH supra. ^ 
 
 (c) See A. G. t. easkill, C. A., 20 Ch. D. 519. 
 
 (;') Ord. XIX. r. 8, v. post, p. 3. 
 
 (g) Ord. XXXI. 
 
 (A) S. C. J. Act, 1873, s. 16; Bamsden v. Brearlev. W. N 187»i iqq- 
 see Bustros v. White, C. A., 1 Q. B. D. 423, 426. ^>-, lo/o, xjy , 
 
 to grant dia 
 covery. 
 
INTRODUCTOEY. 3 
 
 of the name of the printer or publisher of a newspaper, chap. i. 
 which, under the 6 & 7 Wm. IV. c. 76, s. 19, before the passing 
 of the Judicature Acts, could only have been obtained in 
 equity by filing a bill of discovery (i), can now be obtained by 
 administering interrogatories in any action for libel in the 
 High Court (k). 
 
 In Revenue 'matters, the old jurisdiction is expressly 
 retained {l). And, therefore, in informations in such matters, 
 discovery must be obtained by the old process of bill and 
 answer (m). 
 
 Actions for discovery, therefore, are no longer neces- Actions for 
 sary in aid of proceedings actually pending in the High '^°°^®'^ °° ^• 
 Court, where the same result can be obtained in each 
 division of that Court by means of the above-mentioned 
 interlocutory proceedings (?i), taken in the course of the 
 general proceedings for relief and ancillary thereto ; but 
 they may stiU be resorted to in aid of contemplated proceed- 
 ings in the High Court (o), or proceedings before other Courts, 
 foreign or colonial {p), or tribunals which cannot of them- 
 selves enforce the discovery sought, such as arbitrations (g). 
 
 Every suitor in the Supreme Court of Justice, whether ffeneral right 
 individual, corporate body, or foreign sovereign or state, is *° discovery. 
 entitled to get, and with the exception (for reasons of state) 
 of the sovereign of this country, and the Attorney-General as 
 representing the sovereign, liable to give discovery (r), but a 
 party is not disabled from suing because you cannot get dis- 
 covery from him at all or effectively (s). From an infant, a 
 lunatic, trustee, or executor, wholly ignorant of the occur- 
 rences which are the subject of the suit, no practical dis- 
 covery can be obtained, and yet they can maintain a suit. 
 The Court will, however, do its best to secure to the opponent 
 
 (/) See Dixon v. Enoch, L. E. 12 Eq. 394 ; Bawdier v. Allen, 39 L. J. 
 C. P.317. 
 
 (i) PM-msden v. Brearley ; Lefroy v. Burnside, i L. R. Ir. 340. 
 
 (l) Rs. AprO, 1880, r. 64. 
 
 (m) See i. G. v. Ewcrson, C. A., 52 L. J. Q. B. 67 ; 10 Q, B. D. 191. 
 
 in) See Bamsden t. Brearley, supra (compare with BoviHer y. Allen, 
 39 L. J. C. P. 317, as showing the effect of the Jud. Acts) ; Lefroy v. Burn- 
 side, 4 L. R. ir. 340. , , , 
 
 (o) See Orr v. Diaper, 4 Ch. T). 92 (action hy o-VTnevs of trademarks against 
 shippers of counterfeited goods to discover names of consignors). 
 
 (») See BMner v. Lord Salisbury, 2 ib. 378. 
 
 (a) See Ain^orth v. StarUe, W. N. 1876, 8, andpo««, p. 177. 
 
 (r) See »er Wood, V.-C, L. R. 2 Eq. 664 ; post, pp. 163 stq. 
 
 (s) See U. S. v. Wagner, L. B. 2Ch. App. 582. 
 
 B 2 
 
LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. I. 
 
 No discovery 
 from CroTVU or 
 Attorney- 
 General, 
 
 Law of dis- 
 covery same 
 as before 
 Judicature 
 Acts. 
 
 such defensive discovery and relief as he may be entitled 
 to {t). 
 
 Again, the right of discovery is not always mutual; thus, 
 the suppliant in a Petition of right is liable to give discovery 
 at the instance of the Crown though not entitled to obtain it 
 himself (u), (apparently because of the technical difficulties 
 which stand in the way of obtaining an answer from the 
 Sovereign (x)), and it has been held that the defendant in an 
 information is not entitled to production of documents from 
 the relators or the Attorney-General, on the ground that the 
 former were merely parties as security for the costs of the 
 information, and that the position of the latter, as represent- 
 ing the Sovereign, rendered it improper to require him to 
 produce them (y). In such a case the proper course is to 
 apply to the Attorney-General himself for the information 
 not upon oath, and in one case the information was stayed 
 until certain documents had been produced (not upon oath) 
 from one of the public offices (z), while in another, a bill 
 against the Attorney-General was ordered to be taken pro 
 confesso for default of an answer (a). 
 
 The Judicature Acts make an alteration of procedure 
 merely, and not an alteration of the law, and if there was no 
 right to file a bill of discovery, or to administer interrogatories 
 before the passing of those Acts, there is no such right 
 now (b). Similarly, they do not enable a party to decline 
 answering an interrogatory or giving discovery on any ground 
 on which he could not have declined doing so before. The 
 right of discovery remains the same (c). Where there is any 
 conflict or variance between the rules (i.e., doctrines) of 
 equity, and the rules of the common law with reference to 
 the same matter, the rules of equity are to prevail unless 
 otherwise provided {d) ; consequently, the law and doctrines of 
 discovery are now the same as they formerly were in the 
 
 (0 Seeder Lord Cairns, L. J. ib. 594-5 ; per Wood, V.-C. ib. 2 Eq. 665. 
 
 4Ex!d 2^!' ^- ^■' ^- ^- ^^ '^^ ^- *^' ^™^""' ^- ^'^ ««^». 
 
 (a) lb. 
 
 {y) A e. V Clapham, 10 Hare, App. Ixviii. ; Dan. 1682. Relators seem 
 now to bo in the position of ordinary plaintiffs (Ord. I. r. 1) 
 
 (2) A. O. V. Brooksbank, 1 Y. & J. 439 ' 
 
 (a) Fetoy. A. (?., ib. 609 ; Deare v. A. G.,1Y & C 197 
 
 g i::»v'^-«s?'fe.^t^^2bth"rf i^- ^^«^— .10 Q- B. D. 459. 
 
 1 0' B D l2Ai^l^' "■ E?' '"''■'■ " ' ">• -»«*«'•«* ^- ^^i<«. C. A. 
 C. A., 7 ib: 480 ^ "• ""''• ^ '^- ^' "• ^24 ; Ji^^cJ^ V. dmhum, 
 
INTEOBUCTORT. E 
 
 Court of Chancery (e), and the decisions of that Court should ohap. i. 
 be looked to in order to ascertain the principle on which the 
 Court is now to act (/). 
 
 The practice as to discovery is no longer regulated by Practice as to 
 the ordei-s of the Court of Chancery, or the Common Law 
 Procedure Acts, or the custom or practice of the former 
 Common Law Courts, but is a new intermediate practice 
 depending upon the Orders and Rules framed under the 
 Judicature Acts, (which follow the extended principles of the 
 Court of Chancery, rather than the narrower practice of the 
 Courts of Common Law ((/■)), supplemented, where no special 
 provision is found therein, by all such forms and methods of 
 procedure existing formerly in those Courts as are not incon- 
 sistent with the Acts or Rules (h) ; and in all cases within the 
 Acts where no special steps in proceedings are prescribed, the 
 proceedings are to be as nearly like as they can to analogous 
 proceedings before those Acts (k). If there is provision made, 
 there is an end of the old practice, and that provision only ap- 
 plies {I), but, subject to the rules, the old practice remains, 
 a very large body of which was left unprovided for by the 
 rules (m). 
 
 Where, owing to the silence of the new orders on a point 
 of practice, it becomes necessary to fall back upon the old 
 practice, and there is a variance in that particular case 
 between the practice of the former Chancery and Common 
 Law Courts, that practice is to prevail which is considered by 
 the Court of Appeal the more convenient (n). 
 
 The rules do not confer any new, or take away any old, 
 right to discovery, being mere rules of procedure and not 
 intended to alter the law of discovery or the rights of 
 practice (o), but only regulate the period vnthin which, the 
 
 («) V. supra, and per Field, J., 10 Q. B. D. 41. 
 
 <f) SseperBTett,L. J.,ib. i66. -r, ,^~ t , 
 
 {g) See per Brett, L. J., 5 Q. B. D. 558 seq.; 20 Ch. D. 405 ; per Jessel, 
 
 M. R., 9 ib. 553. ^ ^ , c ,, , ■, t i ivj u 
 
 (A) Jud. Act, 1873, s. 23 ; ib. 1875, ». 21, and Sched. 1 ; per Jessel, M. R., 
 
 9 Ch. T>. 554. 
 
 (k) See per Brett, L. J., 8 Q. B. D. 477. 
 
 (?) Per Jessel, M. R., 9 Ch. D. 554 (see per eund., 20 ib. 526); per 
 Lindley, L. J., ib. 530. „ , ,, 
 
 hn) See wer Jessel, M. R., 8 Q. B. D. 145. 
 
 L See /«r Jessel, M. R., 20 Ch. D. 243; Newbigcjm GasCo.y.Arvistrong, 
 13 ib. 310 ; Nurse v. Durnford, ib. 764 ; Smith v. Vai/, 44 L. T. 217. 
 
 (0) Seel G. v. GasHll, C. A., 20 Cli. D. 519; Lyell v. JCcnnedy, C. A 
 ib 46i;s. c. 52 L. J. Ch. 385 (H. L.) ; Hunnvags v. WilUani.son, 10 
 Q. B. D. 458. 
 
LAW AND PEACTICE OF DISCOVEET. 
 
 CHAP. I. 
 
 Construction 
 of rules and 
 orders. 
 
 Common law 
 decisions. 
 
 mode in which, and the time at which discovery which could 
 have been obtained before is to be obtained now (p). 
 
 The rules dealing with discovery being mainly founded 
 upon the practice of the former Court of Chancery, and in 
 many instances almost verbally identical with the rules laid 
 down for that Court, must necessarily receive the same inter- 
 pretation (g), even though the wording of them may in some 
 instances differ very little from that of the previous Common 
 Law enactments (r). 
 
 The decisions in the Common Law Courts, so far as they 
 proceeded, not upon the rules of equity, which appear to have 
 been not unfrequently misunderstood in those Courts, but upon 
 the powers conferred upon the judges by the C. L. P. Acts, 
 1854, and the discretion assumed by them thereunder in 
 granting discovery, are no longer authorities as to granting 
 discovery under the new procedure (s). 
 Applications in Applications in matters relating to discovery, should, as a 
 discoTerj. rule, be made by Summons in Chambers {t), and to a Master 
 in the Queen's Bench Division (u), the Chief Clerk of the 
 Judge to whom the action is attached, in the Chancery 
 Division (uu), a judge or (by consent) a registrar, in the 
 Probate etc. Division (x), and the Registrar, where the action 
 is proceeding in a district Registry {xx). 
 
 (p) See per Brett, L. J., 20 Cli. D. 491. 
 
 (j) See Bmtros v. White, C. A., 1 Q. B. D. 423 ; Anderson v. BanTi of 
 Brit. Columbia, 0. A., 2 Ch. D. 644 ; per Pollock, B., 7 Q. B. D. 406. The 
 rules as to discovery from corporations, &c., are borrowed from the C. L. P. 
 Act, 1854, s. 51 (see Wilson v. Church, 9 Ch. D. 552). 
 
 (r) See per Jessel, M. E., 2 Ch. D. 654 ; per Hellish, L. J., ib. 658 ; 
 Bustros V. White ; Atherley v. Harvey, supra. 
 
 {s) deeper Jessel, M. R., 2 Ch. D. 654. 
 
 («) See Wilson v. Church, 9 Ch. D. 562 ; Freason v. Loe, 26 W. E. 138. 
 The exceptional eases are noticed in their places as they occur. 
 
 (u) Ord. LIV. 1. 2, as amended by r. 4 of Es. S. C, Nov. 1878. 
 
 (uu) Dauvillier v. Myers, 17 Ch. D. 346. 
 
 (x) Ord. LIV. r. 2. 
 
 (ars) Ord. XXXV. r. 4. 
 
CHAPTER II. 
 
 OF THE PROCEEDINGS IN 'WHICH AND THE PARTIES 
 BETWEEN WHOM DISCOVERT IS OBTAINABLE. 
 
 Discovert can only be obtained in civil proceedings {a),i.e., chap. ii. 
 
 proceedings for enforcing a civil right or claim, including a Discovery only 
 mandamus for the purpose of enforcing the pavment of a ottfimabie in 
 
 f 1 • -1 • 1 /7 s 1 -in Civil proceed- 
 
 sum 01 money or other civii right (o), but not to aid the ings. 
 prosecution of an indictment or criminal information, or 
 the defence to it (c). 
 
 Discovery by interrogatories is obtainable only in actions, Interrogatories 
 i.e., civil proceedings between a plaintiff and a defendant only m actions 
 
 ' ^ /^ ^ ^ ^ ^ _ ^ and between 
 
 commenced by writ (d), which include informations (other opposite 
 than in Revenue matters) (e), and was formerly only obtain- P*"^''^^- 
 able as between parties to the record (/), i.e., plaintiff's 
 and defendants, but is now, owing to the introduction into 
 actions of counter claims and a new class of litigants styled 
 " third parties," obtainable as between the following litigants, 
 as being opposite parties (g), i.e.., parties between whom 
 
 {a) "W. pi. 10 ; cf. Hunnings v. Williamson, 10 Q. B. D. 459. 
 
 (6) See Queen v. Ambergate Ry. Co., 17 Q. B. 957, 963 ; Reg. v. York, <lic. 
 Ry., 19 L. T. 108. 
 
 (c) W. pi. 10. 
 
 (<V' Jud. Act, 1873, s. 100. See, as to what proceedings are now to be taken 
 by actions, Ord. I. r. 1. In the Court of Chancery, interrogatories could not 
 have been delivered in a suit by claim (see Wing v. Barvey, 1 Sm. & Giff. 
 
 App. X. ). 
 
 (e) A. G. v.. Shrewshury Bridge Co., 42 L. T. 79 ; v. ante, p. 3. 
 
 (/) See Queen of Portugal v. Glyn, 7 CI. & F. 466. The case of actions on 
 policies of marine insurance is an exception (v. post, p. 168). That interroga- 
 tories cannot be administered to a non-party even though the real plaintiff, see 
 Massey v Allen, W. N. 1878, 240. Persons made parties to a suit by sup- 
 plemental orders under 15 & 16 Vict. c. 86, s. 52, were parties for the purpose 
 of discovery (Anon. 25 L. T. 0. S. 61). A next friend is not a party for 
 
 XTsZ trX^l' rs. 1, 4, and 23; MoUoy v. JCilby, C. A., 15 Ch. D. 
 162. 
 
8 LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. II. an issue is joined, and not merely parties having adverse 
 interests (h) ; 
 
 1. Plaintiffs and Third parties brought into the action 
 to litigate a question or issue with them (gg). 
 
 2. Defendants counter-claiming and persons made 
 Defendants to such counter-claims, whether original de- 
 fendants on the record or not (M). 
 
 3. Co-Defendants permitted to raise cross-claims, 
 inter se (under Jud. Act, 1873, s. 24, sub-s. 3 (i), and 
 Ord. XVI. r. 17). 
 
 Proceedings Discovery is also obtainable to the same extent as in 
 
 equivalent actions in proceedings which are in substance though not in 
 form actions, as between the parties who are substantially 
 in the position of plaintiffs and defendants therein, for the 
 policy of the Court is to give the most ample means to 
 every person who is before it to obtain discovery upon oath 
 of every document or writing which may be evidence of 
 title, or which enables him to establish a claim which he 
 prefers before the Court {k) ; thus, it is obtainable in : 
 
 1. Proceedings between an official liquidator litigating on 
 behalf of a company in process of winding up, and alleged 
 shareholders, contributories, or creditors (Z). 
 
 2. Claims by creditors against estates in the course of 
 
 (A) See^«r Cotton, L. J., ib. 164. 
 
 (gg) Under Ord. XVI. rr. 17—21. Benyon v. Godden, C. A., "W. N., 1877, 
 257 ; MacAllister v. Bishop of Rochester, 5 C. P. D. 194, 207 ; Molloy v. 
 Kilby, supra; cf. Bevt v. D., L. E. 1 Eq. 186 (under old practice). Such 
 persons after being brought in are to be deemed parties (S. C. J. Act 1873, 
 s. 24, sub-s. 3; Hornby v. Oardwell, C. A., 8 Q. B. D. 329), and the defi- 
 nition of "defendant" in s. 100 is wide enough to include them. By a 
 logical extension of the above rule discovery should be obtainable as 
 between a plaintiff or a fourth or subsequent party similarly brought in by 
 the third party, if filling the position of a litigant as regards the plaintiff (see 
 Fowler V. Knoop, 36 L. T. 218 ; TVitham v. Vane, 49 L. J. Ch. 242 : York 
 Wagon Go. v. Newport Coal Co., 5 Q. B. D. 268). 
 
 (hh) This follows from the position of a counterclaiming defendant who ia 
 plaintiff in all but the name, and whose counterclaim is in substance a cross 
 action (Winterfield v. Bradnimi, C. A., 3 Q. B. D. 324). 
 
 (i) See, as to when such cross-claims may be set up, Bagot v. Boston 11 
 Ch. D. 392 ; Mamer v. Bright, ib. 394, n. ; Butler v. B., 14 ib. 329. This 
 is in accordance with the former Chancery practice (see Dan 16821 
 
 (k) Per Stuart, V.-C, 9 Jur. N. S. 789. ' '' 
 
 {I) Be Barned^s Bank Co., L. R. 2 Ch. App. 350 : Gooch's case, 7 ib 212 ■ 
 Re Nat. Funds Ass.^ Co C. A., 24 W. R. 774 ; Be Alex. Palace Co., 16 Ch.' 
 D. 68 ; & Consiantmople, &e. Co 35 Beav. 349. See, however, Re Mutual 
 Society, C A., 22 Ch. D. 714. The reason for gi-anting discovery in such 
 cases IS that after the commencement of the proceedings no action can be 
 brought, and, consequently, the suitor would otherwise be deprived of his 
 right to discovery. *^ 
 
PROCEEDINGS AND PARTIES. S 
 
 administration by the Court, and other claims under judg- OHAP. ii. 
 ment (m), such claimants being in very much the same ~ 
 position as plaintiffs in an action (-Ji.). 
 
 3. Interpleader issues (o), or feigned issues (j)). 
 
 Discovery of documents can be obtained, not only in Discovery of 
 actions and proceedings equivalent to actions such as above '^"r'J'^fiQgj 
 referred to, but in all civil proceedings (which include suits, to aotiona. 
 petitions, motions, and summonses) (q), and, consequently, 
 is not only obtainable as between plaintiffs and defendants, 
 and other opposite parties, but, in the language of the rules 
 by " any party " from " any other party " (r), which would 
 apparently include "side by side parties." An official 
 liquidator is not in the position of an ordinary litigant, and 
 cannot be called upon for an affidavit of documents, except 
 under special circumstances (rr), and a next friend is 
 not a party for the purpose of discovery (s). Prior to the 
 Judicature Acts, it was held to be obtainable by a person 
 who had consented to be treated as a party to an action, 
 and to be bound by the decision given in it, from a party 
 to the action between whom and himself questions had 
 arisen (as), and from the claimant of property seized under a 
 sequestration, an inquiry pro interesse suo having been 
 directed {t). From the very nature of the case, however, 
 it is only obtainable (before judgment) as between parties 
 between whom issues or questions are to be litigated (u) 
 (the only object of discovery being to assist the decision of 
 some disputed question), or, at the least, having adverse 
 interests, and seeking in some form or other relief against 
 
 (m) See JRowdiffe v. Leigh, C. A., 6 Ch. D. 256 ; Groves v. G., Kay, 
 App. xix. ; Dan. 1683 ; v. post, p. 18, Discovery after judgment. 
 
 (m) Per Lord EomiUy, M. R., L. E. 5 Eq. 292. See also per Stuart, V.-C, 
 11 W. R. 820. 
 
 (o) See Ord. XXXI. rr. 19 and 23 (action or issite) ; White v. Watts, 12 
 C. B. N. S. 267. 
 
 (y) Scarih v. M'illiams, W. N. 1875, 218 ; Miccard v. Inclos. Comm. 4 
 E. & B. 329. 
 
 (q) See Jud. Act, 1873, s. 100 ; discovery of documents could be obtained in 
 a suit by claim { Wing v. Harvey, 1 Sm. & Giff. X.), or a cause petition (Peyton 
 V. Lambert, 6 Ir. Oh. Rep. 9), Bee Re Nat. Funds Ass. Co., 24 "W. R. 774 ; Be 
 Hoover Gold Co., XXVII. S. J. 434 (winding-up petitions). 
 
 (r) See Ord. XXXI. rs. 11, 12, li ; MacAllister v. Bishop of Rochester, 5 
 C P. D. 194, 207. See, as to what "party" includes, Jud. Act. 1873, s. 100. 
 ' (rr) Re Mutual Society, C. A., 22 Ch. D. 714. 
 
 (s) Re Corsellis, 52 L. J. Ch. 399. 
 
 (st) See Lent v. JD., L. R. 1 Eq. 126. 
 
 U) Alton V. Harrison, W. K. 1869, 81. „„,..„ , „ . . 
 
 («) See Jud. Act, 1873, s. 100 (definitions of Plaintiff and Petitioner). 
 
10 
 
 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. II. each other, and not as between mere " side to side " par- 
 ties (x). It is not obtainable therefore between : 
 
 Inspection of 
 documents 
 referred to in 
 proceedings. 
 
 1. A defendant and a co-defendant (unless permitted to 
 raise cross-claims inter se) to an action or counter-claim {y). 
 
 2. Defendants and third parties tarouglit in by them [z), 
 unless an issue is raised between them (a). If, therefore, a 
 person who is made co-defendant with a plaintiff to a counter- 
 claim desires discovery from the plaintiff in the original 
 action, for the purposes of his defence, his proper course is to 
 get himself made an opposite party by becoming a defendant 
 to the original action, and so put himself in a position to 
 obtain it (&). 
 
 In petitions, motions, summonses, and other similar 
 proceedings pending before the Court, production and in- 
 spection of any documents referred to therein, or in the 
 affidavits used in support thereof, can be obtained at the 
 instance of the opposite party, or the Court or Judge may 
 order it suo motu (c) ; and by section 46 of the C. L. P. Act, 
 1854, (which appears to be still in force) upon the hearing 
 of any motion or summons (which includes in the former 
 case an ex parte application for a rule nisi, as well as the 
 hearing of an argument or showing cause) (d), the Court or 
 Judge may, upon such terms as shall appear reasonable, order 
 such documents as they shall think fit to be produced, the 
 intention being that whenever during the progress of any 
 proceeding or motion or summons at chambers, justice may 
 be aided by the production of documents, or the examina- 
 tion of witnesses, an order may be made for that purpose (e). 
 
 (x) See ■per Jessel, M. K., 15 Oh. D. 164. 
 
 (J/) V. ante, p. 8 ; Molloy v. Kilby, ii. 162 ; Dan. 1682. After judgment 
 it is otherwise {v. post, p. 20). 
 
 (2) Under Ord. XVI. r. 18. This would seem to follow from the fact that 
 no relief is oUaiiiahle as between a defendant and a party from, whom, he claivis 
 contribution, indemnity or relief over (see per Mellish, L. J. 45 L. J. Ch. 113 ; 
 Padwick v. Scott, 2 Ch. D. 736). Such a party is, in fact, a side to side party 
 ■with the defendant as against the plaintiff, whose claim they are equally 
 interested in defeating. 
 
 {a) See The Cartsburn, C. A., 5 P. D. 59 ; Hornby v. Cardwell, 30 W R 
 263. 
 
 (6) Per Jessel, M. R., 15 Ch. D. 163. 
 
 (c) Ord. XXXI. rr. 11 and 14 ; Re. Credit Co., 11 Ch.D. 256. "Pleading" 
 includes petition or summons (S. C. J. Act, 1873, s. 100) ; v. post, p. 122, 
 " Inspection of documents referred to in pleadings or affidavits." 
 
 (d) Morgan v. Alexander, L. R. 10 C. P. 184. 
 
 («) See Ashcroft v. Foulkes, 18 C. B. 261 ; per Lord Coleridge, C. J L R 
 10 C. P. 186. ' ' ' 
 
PEOCEEDIXGS AND PARTIES. 11 
 
 Upon an application by a plaintiff to sign judgment under chap, ii. 
 Order XIV., the defendant may be ordered to produce books 
 or documents or copies of or extracts from them (/). 
 
 It seems that, as a general rule, parties cannot be kept be- Parties for 
 fore the Court merely' for the purpose of obtaining discovery ^^1°"^^^ 
 from them {(/). The rule that a person implicated in a 
 fraudulent transaction may be made a party to a suit im- 
 peaching the transaction, for purposes of discovery and costs, 
 is confined to cases in which the defendant fills the position 
 of agent (including that of solicitor) or arbitrator (h). 
 
 (/) lb. r. 3. Tliis provision is, as far as the writer is aware, a dead 
 letter. 
 
 (jr) Serry v. Keen, C. A., 26 Sol. Journ. 312 ; see per Baggallay, L. J., 
 19 Ch. D. 336 ; pt-rLush, L. J., ib. 337; Wilion v. Church, 9 ib. 552. 
 
 {h) JVcise V. Wardlc, L. E. 19 Eq. 171. 
 
CHAPTEE III. 
 
 OF THE TIME AT WHICH DISCOVERT IS OBTAINABLE. 
 
 CHAP. III. In order to confer a right to discovery, there must either be 
 
 ^^*" an action for that purpose or an action or other proceeding 
 
 Stage at which for rehef pending before the Court in which the discovery is 
 obtainable. sought (a). Thus, after an action has been referred by con- 
 sent to a referee for decision, the Court has no longer juris- 
 diction to order discovery {aa). It is sufficient, however, that 
 there is an appeal pending at the time (b). 
 
 The Rules empower a plaintiff to deliver interrogatories, 
 as of right, together with his statement of claim, and 
 a defendant with his statem,ent of defence, and either party 
 to do so at any tim,e by leave {c}, and authorise applica- 
 tions for production of documents by any party at any 
 time during the pending of the action or proceeding (d). It 
 is well established, however, in practice that,-(l.) the generality 
 in this respect of the language used in Eules 11 and 12 of 
 Order XXXI. must be restricted by reference to the pro- 
 visions of Eule 1 (e) ; (2.) in the case of that rule itself, the 
 object of permitting delivery of interrogatories as of right was 
 to alter, to that extent, the previous Common Law Practice 
 under the C. L. P. Act, 1854 (/), and especially to preserve 
 the right which a plaintiff possessed in the Court of Chancery 
 of filing interrogatories with his bill, not to make their 
 delivery at the earliest possible stages a matter of course in 
 
 {a) Re Burton, &c. Co., 31 L. J. Q. B. 62. Ord. XXXI. rs. 1, 11, 12, 14. 
 &ee post, p. 18 (Discovery after Judgment), 
 (aa) Penrice v. Williams, 31 W. E. 496. 
 
 (b) Re Nat. Funds Asa. Co., 24 "W. R. 774. : v. vosL r> 177 
 
 (c) Ord. XXXI. r. 1. . /- i 1 "• 
 
 (d) lb. rs. 11—12 ; see also r. 14. 
 
 (e) Cashin v. Craddock (No. 1), 2 Cli. D. 140 ; see per Chatterton V -C 
 1 L. R. (Ir.) 494. ■ ■' 
 
 (/) Beeper Mellish, L. J., 1 Q. B. D. 444. 
 
TIME FOE OBTAINING DISCOVEET. 13 
 
 all actions ; and (3.) the period indicated by the rules as the chap. hi. 
 proper one, in the gi-eat majority of cases, for obtaining dis- ^^°^- ^- 
 covery, is that intervening between the delivery of the 
 defence and the close of the pleadings, or a reasonable time 
 thereafter (g). 
 
 The following propositions ai-e submitted as the result 
 of the rules and the decisions thereon, with regard to 
 the earliest stage at which discovery is obtainable in 
 actions : — 
 
 1. As a general rule, in all actions, other than " Chancery Plaintiff not 
 actions" {h), a plaintiff is not entitled to discovery j^^^^^rybe- 
 until a statement of defence has been delivered, or fore iiefence. 
 the time for doing so has expired, because until then 
 it is, in ordinary cases, impossible to see what the 
 matters in question are (i), or whether the discovery sought 
 should not be postponed, on the ground that the right to it 
 depends on the determination of some issue or question 
 intended to be disputed, or that some issue or question 
 should be determined before deciding upon the right (h), 
 unless there are either pleadings showing the questions in 
 dispute, or an affidavit disclosing a special case for discovery 
 and production (Z). Until defence, as a rule, you cannot tell 
 that an application for discovery may not be either a mere 
 fishing application, or an application which may be made 
 merely for the purpose of swelling costs which it may be 
 quite unnecessary to incur, or an application which may be 
 futile on the ground that it may be acquiring information 
 as to matter which, when the pleadings are more advanced, 
 and when the parties know each what the allegation of the 
 
 (a) Cashin v. CraddocJe, mpra ; Harbord v. Monk, 9 Ch. D. 616 ; Union 
 Bk V Manby, C. A., 13 ib. 239 ; Mercier v. Cotton, C. A., 1 Q. B. D. ii2 ; 
 Quilter V. Heatley, C. A., 31 W. R. 330. 
 
 Oi) By " Chancery actions" are meant, not merely actions brought in the 
 Chancery Division (see Dairies v. Williams, 49 L. J. Ch. 352), but such as 
 would formerly have been only maintainable by bill in Chanceiy (see Dan. 
 471 sea.), and are now specially assigned to the Chancery Division (see Jud. 
 Act 1873 ». Si, sub-ss. 2 & 3), as distinguished from Common Law actions, 
 I e ' actions for damages or pecuniary compensation and for the recovery of 
 land (see Rogers t. Janes, 7 Ch. D. 345), which are assigned to the Queen's 
 Bench Division (s. 34, supra). 
 
 li\ Afereier v Cotton, C. A., 1 Q. B. D. 442 ; Hancock v. Ghoerin, 4 Ex. D. 
 1 ■ Da^s V. milian^, 49 L. J. Ch. 352 ; Milipps v. P., (No. 2) 40 L. T. 
 815 • Quilter r. Heatley, 31 W. R. 830 ; Cleary v. Fitzgerald, 1 L. R. (Ir.) 
 492 ' This proposition must, so far as interrogatories are concerned, he read as 
 
 ^^^irSee JerSttertoii, V.-C, in Cleary v. Mugerald, at p. 495; post, p. 29. 
 (Q Ib. ; per Denman, J., 40 L. T. 820. 
 
14 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. III. 
 Sect. 1. 
 
 Except in 
 
 "Cliancery 
 
 actions." 
 
 Statutory 
 right to 
 deliver in- 
 terrogatories 
 "with claim. 
 
 Earlier dis- 
 covery ob- 
 tainable under 
 special cir- 
 cumstances. 
 
 other is, may become perfectly clear and out of the way of 
 litigation {m). A defendant in an action who has dispensed 
 with a statement of claim and put in his defence will not be 
 permitted to oppose an application for discovery or inspection, 
 on the ground that no statement of claim has been delivered, 
 as the indorsement on the writ of summons and the state- 
 ment of defence will be taken as disclosing the questions at 
 issue {n). 
 
 2. In actions which are of the nature of Chancery actions 
 par excellence (o), a plaintiff is entitled to discovery as soon 
 as Jue has delivered his statement of claim (p), because in 
 such actions there can be little or no doubt what the matters 
 in question are, and even if his whole case should be admitted, 
 he may want discovery to know if any other parties are 
 interested (pp). 
 
 3. In all actions, Chancery or Common Law, a plaintiff has 
 under Order XXXI. Rule 1, a statutory right to deliver 
 interrogatories together with his statement of claim, subject 
 to the liability to have them struck out or postponed as 
 premature or unnecessary under Rule 5 of that Order, unless 
 some reasonable grounds for wanting the discovery at that 
 stage are shown, it not having been intended to make the 
 delivery of them a mere matter of course in all cases (g). 
 
 4. Under very special circumstances (of which some proof 
 must be given by affidavit or otherwise), and by leave of the 
 Court, a plaintiff may obtain discovery at earlier stages than 
 those above indicated (r). Thus, he may be allowed dis- 
 covery before delivery of a statement of claim, where 
 absolutely necessary in order to enable him to present his 
 case to the Court properly (s), or where the time for the trial 
 
 (m) Per Denman, J., 40 L. T. 818. 
 
 (») See Chary y. Fitzgerald, L. R. (Ir.) 1 Ch. D. 492. 
 
 (o) V. ante, (h). 
 
 (p) Barbord v. Monk, 9 Ch. D. 616 ; Union Bank v. Manly, C. A., 13 ih. 
 239 (redemption action). This is agreeable to the practice of the foi-mer Court 
 of Chancery (see 15 & 16 Vict. c. 86, ss. 12 and 18, and Consol. Ord 1860 
 Ord. XL). 
 
 (pp) See per James, L. J. 13 ib. 241. 
 
 (j) Mereier t. Cotton, C. A., 1 Q. B. D. 442 ; Ocksley v. Eed/em, 61 L. T. 
 123 ; Seal v. Pilling, 38 L. T. 486 (the latter cases show what will be con- 
 sidered reasonable grounds for so delivering them). In such a case the inter- 
 rogatories will be struck out without prejudice to any fresh ones which the 
 party may be advised to deliver {Anon. W. N. 1876, 39). 
 
 (r) See Ord XXXI r. 1 ; Cleary v. Fitzgerald, 1 L. R. (Ir.) 492 ; Acheson 
 v., ffenry, Ir. E. 5 C. L. 496. 
 
 (s) See per Mellish, L. J., in Mereier r. Cotton, supra, p. 445- PMlirmi 
 V. P. (No. 1), 4 Q. B. D. 127, liO ; Beal y. Piiuig, 'Jpra;HarZly. 
 
TIME FOR OBTAINIXG DISCOVEET. 15 
 
 is drawing near (t). Similarly, discovery has been allowed chap. hi. 
 him at this stage where he is desirous of amending his state- ^^°*- ^- 
 vient of claim by adding parties or otherwise (u), or (which 
 is the same thing) is ordered to give particulars of his claim, 
 and cannot do so without discovery, because the necessary 
 materials are in the possession of the opposite party (x) (but 
 not merely on the ground that it would be troublesome to 
 draw his statement of claim without getting discovery), or 
 where he alleges fraud (y). In one case discovery was 
 allowed (on affidavit) at this stage to ascertain whether it 
 was worth the plaintiff's while to proceed with his action (z). 
 A strong case, hou-ever, must he made out for such an indul- 
 gence, as the power might conceivably be used for very 
 oppressive purposes (a), and the plaintiff may be required to 
 show by affidavit what his cause of action is (6) ; the Court 
 should be satisfied that it is assisting not a mere fishing or 
 speculative case, but a case apparently resting upon some- 
 thing like a fair and reasonable foundation for the com- 
 mencement of an action on the part of the plaintiff (c). 
 
 5. As a general rule, a defendant will not, in either a Defendant not 
 Chancery or Common Law action, be allowed discovery covery*before ' 
 until he has put in a statement of defence (d), but, as in the defence, ex- 
 case of a plaintiff, the existence oi exceptional circumstctnces gpeoiarciT- 
 may entitle him to do so. Thus, he will be allowed to inter- camstances. 
 
 Monk, 9 Ch. D. 616 ; The Murillo, 28 L. T. 374. Such eases occur move 
 frequently in the Chancery than in the other Divisions {see per Mellish, L. J., 
 uhi supra). According to the practice of the former Common Law Courts in 
 such cases, a plaintiff was usually left to frame the best pleading he could 
 with his present materials and amend afterwards when he had got discovery 
 (see Morris v. Parr, 6 B. & S. 203 ; Jorm v. Pratt, 6 H. & N. 697). 
 
 (t) Per Blackburn, J., 6 B, & S. 207. 
 
 \u) Jones V. Turner, "W. X. 1875, 239 ; Ocksleyv. Bedfern, LXI. Law Times, 
 123 ; Hancock v. Lablache, 3 C. P. D. 202 ; The Mtirillo, 28 L. T. 374 
 (interrogatories allowed before delivery of amended claim to ascertain necessary 
 parties). 
 
 {x Per Bramwell, L. J., 4 Q. B. D. 131 ; per Denman, J., 40 L. T. 819. 
 
 (y) Per Lindley, J., in Strong v. Tappin, "W. N. 1876, 22 ; cf. Hariord v. 
 Monk, 9 Ch. U. 616. 
 
 (z) Acheson v. Henry, Ir. Rep. 5 C. L. 496 ; O'Connell v. Barry, 2 ib. 648. 
 
 (a) Per Archibald, J., Anon. W. N. 1876, 53 ; and see ;>Br Lindley, J., in 
 Strong V. Tappin, ib. 22 ; Philippsv. P. (No. 2), 40 L. T. 815 ; Morris v. Parr, 
 supra ; re Hoover Gold Co., XXVIL S. J. 434. 
 
 (b) Ib. ■ Croomes v. Morrison, 5 E. & B. 985. 
 
 (c) See per Denman, J., 40 L. T. 818 ; Atter v. Willison, 7 W. R. 265 ; 
 Stein V. Tabor, 31 L. T. 444. 
 
 (i) Disney v. Longbourne, 2 Ch. D. 704 ; Webster v. Whewall, 15 ib. 120 ; 
 see Auqustinusv. Nerinckx, C. A., 16 ih. 14. This is in accordance with the 
 former practice of the Court of Chancery (see 15 & 16 Vict. c. 86, s. 19-20, 
 Small V. Lay, 22 L. T. 785, and cases cited posi!, p. 16) 
 
16 LAAV AND PEACTICE OF DISCOVERY. 
 
 CHAP. III. rogate a plaintiff before putting in his defence, and to have 
 Sect. 1. ^Yie time for doing so extended until after an answer has 
 
 been given, or even before appearance, where such a course 
 is calculated to save expense and further litigation by 
 putting an end to the action (e), or where he is desirous of 
 paying money into Court (/). To entitle himself to discovery 
 at such a stage, the defendant must make out a case of neces- 
 sity founded on special circwmstances clearly manifested, and 
 the affidavit in support of such an application must in some 
 measure state the grounds on which the necessity arises, a 
 mere statement that the discovery sought Tnay afford the 
 defendant material information for his defence not being suffi- 
 cient (g). In accordance with the later practice of the Court of 
 Chancery (A), a defendant will not now be allowed discovery 
 merely because he alleges that he is personally ignorant of 
 the matters in respect of which relief is claimed, and is 
 unable to put in a defence without further information, his 
 proper course being, in such a case, to put in the best defence 
 he can, and then amend, if necessary, after he has obtained 
 discovery {i), or to get particulars. In a case of alleged 
 fraud, if the Court were to compel the plaintiff to produce 
 the evidence on which he founds his charge, before the 
 defendant puts in his answer, the defendant' would be 
 enabled to shape his defence according to the evidence which ' 
 he knew to be in the plaintiff's possession [h). The rule has 
 no application, however, in the case of a defendant desiring 
 to see documents referred to by the plaintiff in his state- 
 ment of claim, as to which, the fact that the defendant 
 requires to see them before pleading, is a very good reason 
 for ordering them to be produced (f). 
 Discoveiy as 6. In all actions, interrogatories may be delivered as of 
 "u"r between "S^* (™)' ^"^^ ^"^ Order for discovery of documents obtained 
 
 defence and 
 dos6 Ol 
 
 pleadings. ., W ;^"'ff,A' '^■J''^' ^- N- 1876, 64 [cf. Parlcer v. Wood, ib. 56) ; Anon, 
 
 lb. 1875, 220 ; ffarbord v. Monk, 9 Ch. D. 616 ; Gourley v. Plimsoll, L. E. 8 
 O. Jr. 362, 
 
 (/) Megaw v. M'Diarmid, 10 L. R. Ir. 376 
 
 (g) See ^ar Lord Eldon L. C, 1 Swank 124, 126; cf. GourUy v. 
 Plirmoll ; MarHn v. Eemmmg, 10 Ex. 487. 
 
 (h) See per Turner, L. J., in Halliday v. Temple, 8 De G. M & G 96 • 
 Philips V. Pennefaiher, L. E. (Ir.) 3 Eq. 12. ". «" , 
 
 (i) Disney v. Longhoume, 2 Ch. D. 704 
 
 Giff^sfr ^"™''' ^' ^" * °' ^' ^- ^^•^^' ««« ^«'-»"- V- SurUnshMW, 4 
 \l) V. post, p. 123. 
 (m) Ord. XXXI. r. 1. 
 
TIME FOR OBTAINING DISCOVERY. 17 
 
 as a matter of course, so far as the time of the application ohap. hi. 
 is concerned, by either party, between the delivery of the ^°°'^- ^- 
 defence and the close of the jjlea dings (n). 
 
 7. After the close of the pleadings, discovery can be obtained, After close 
 hy leave, at any time before the trial of the action (o), even b* ^gavt'"^^ 
 where there has been great delay on the part of the party 
 seeking it (p), provided that the trial of the action will not 
 be delayed thereby (q). Thus, in the Court of Chancery, it 
 has been granted even after publication of evidence had 
 passed. There is a discretion, however, as to granting it, 
 and some explanation of the delay, by affidavit or otherwise, 
 may be required ()■). It seems that an order for production 
 cannot be made at the tnal (s). 
 
 In the case of parties other than plaintiffs or defendants, Discovery by 
 such as third parties (t), it is conceived that in the absence ^ parties. 
 of any special direction upon the subject, they would be very 
 much in the position of ordinary defendants in this respect, 
 and therefore would not, as a rule, be allowed discovery 
 until they had put in a statement. 
 
 In actions and other proceedings in the course of which no Where no 
 pleadings are, according to the practice of the Court, deli- P'eadmgs. 
 vered, and consequently the time for obtaining discovery 
 cannot be regulated by reference thereto, the only rule that 
 can be laid down is, that discovery will be allowed as soon as 
 it appears (from affidavits or otherwise) what the matters in 
 question are (u), e.g., in feigned issues, or interpleader issues, 
 as soon as the issues have been delivered between the 
 parties (x), and in actions where no pleadings are delivered, 
 as soon as the issues have been settled (xx). 
 
 (m) See^^er Archibald, J., Amm., "W. N. 1876, 53 ; ib. 54. 
 
 (o) Ord. XXXI. r. 1 ; see per jessel, M. R., in Disney v. Longlourne, 2 
 Ch. D. 704, 705. 
 
 (p) Bra-ncker v. Came, L. R. 2 Eq. 611 ; Land. etc. Ins. Co. v. Davies, 5 
 Ch. D. 775 ; Rochdale Canal Co., v. King, 15 Beav. 11 ; see Dan. 1678 n. (n), 
 wheie it is stated that an applicant for discovery was not, as a rule, prejudiced 
 by delay in making the application ; see, however, Dennis v. Eochussen, 4 
 
 Jur. N. S. 298. , -, . r ^ 
 
 (o) See the form of order made m Lond. etc. Ins. Co. v. Davies, supra ; 
 Anon., "W. N. 1875, 238 ; Zarifi v. Thornton, 3 Jur. N. S. 92. The applicant 
 is as a rule ordered to pay the costs of the application (v. post, p. 183). 
 
 V) Ellis T. Ambler, 36 L. T. 410 ; Whelan v. Shaw, 12 Ir. L. T. 50. 
 
 (s) Dauvillier v. Myers, 17 Ch. D. 346. 
 
 (f\ V. ante, pp. 8, 10. _ 
 
 (u) See Haruxck v. Guerin, i Ex. D. 3 ; Phillips v. P., 40 L. T. 815. 
 
 (x) This is the common practice in mtei-pleader issues. 
 
 (xx) See Ord. XXVI. 
 
 r 
 
jg LAW AND PRACTICE OF DISCOVERY. 
 
 Sect, 2. — Discovery after Judgment Qi). 
 
 CHAP. III. Discovery may be obtained, not only for the purposes of 
 Sect, a. ^i^g ^j,ia;i Qy. hearing of an action or proceeding, but at any 
 Discovery after time during the pendency of an action or proceeding, and 
 judgment. ^^^^ Consequently, be obtained after judgment (i) (and 
 semble, after final judgment, so long as the judgment re- 
 mains unsatisfied or any proceeding can be taken upon it (]c)), 
 and the same rules and procedure apply mutatis mutandis 
 as in the case of discovery before judgment (a). 
 In administra- Discovcry after judgment may be requisite in proceedings 
 tion actions • (-hambers under judgments in administration actions, 
 
 or actions , - . 7 7 . j. 
 
 for account. or other actions mvolving inquiries or the talcing of accounts 
 in working out the judgment, also under judgments direct- 
 ing an account where the discovery has been refused or post- 
 poned before trial as not being sufficiently material at that 
 stage of the action (b) ; and it is no longer necessary to insert 
 a direction for the production of documents in chambers in 
 the judgment, as the Judge in chambers or his chief clerk 
 has jurisdiction to order the production without anything 
 Between being said about it in the judgment (c). Thus, a creditor who 
 
 exeeutors^OT ^^® come in under a decree for administration, and alleges 
 administrator.5. that the executors have documents which would prove his 
 debt, on making out a primd facie case of its existence, is 
 entitled to an affidavit by the executors of documents 
 relating to his claim (d), if there are grounds for sup- 
 posing that there is a bond fide one although not esta- 
 blished (e), and is liable in turn to give discovery at their 
 requisition (/). There may be cases, it is said, in which it 
 
 (h) See Hare, Part III., Chap. V., § l—S ; Kerr, pp. 11—12. 
 
 {i) Ord. XXXI. r. 11. Discovery after judgment is part of that "very 
 large body of practice unprovided for by "tlie rules" naentioued by Jessel, M. E. 
 (8 Q. B. D. 145). 
 
 {Jc) See Salt v. Cooper, 16 Ch. D. 544. The corresponding section of the 
 Chancei-y Procedure Act, 1852 (15 & 16 Vic. c. 86, s . 18), was held to apply to 
 applications for production after as well as before decree [Richards v. Watkins, 
 6 Jur. N. S. 168). See also Saxby v. Easterlrook, L. R. 7 Ex. 207, and 
 Holland v. Fox, 3 E. & B. 977 (at common law). 
 
 (a) See Bowcl\feY. Leigh, C. A., 6 Ch. D. 256 (Ord. XXXI. r. 19 applied). 
 
 (b) Post, pp. 26 sec[. 
 
 (c) Seton, 64. Seeder Stuart, V.-C, 39 L. J.' Cli. 828. 
 
 (d) Re M'Veagh's estate, 1 De G. J. & S. 399. 
 
 (e) Seeder Kiudersley, V.-C, 13 W. R. 1014. 
 
 (/) See Rowcliffe v. Leiyh, ubi supra (where the production was postponed 
 for want of immediate materiality). 
 
DISCOVERY AFTER JUDGMEiS^T. 19 
 
 would be right to refuse an order for production by the executor, chap. hi. 
 liut it would be a very strong case indeed which would induce ^^*'- ^ 
 the Court to do so, as it would be without the full materials 
 ■necessary for deciding the case (g), and it is just that an 
 executor or administrator should assist a claimant who seems 
 to have a reasonable case (h). A person claiming to be one of 
 the next of kin of an intestate who requires discovery of do- 
 cuments from the administrator should not serve him with a 
 subpcena duces tecum to produce them, but should apply 
 for an aflSdavit of documents relating to his claim (i). An 
 affidavit of documents may be ordered after judgment, al- 
 though the party from whom it is sought has been inter- 
 rogated as to documents, or made an affidavit of docu- 
 ments previously, without any objection being taken thereto; ' 
 but, in such case, it should be confined to documents <j>ther 
 than those previoxisly disclosed {k). A claimant is only Extent of rigkt 
 entitled to see such documents as would tend to establish *" ^^^°''^y- 
 his title.Siud where there are several claimants, none of them 
 has a right to see the evidence adduced by another, and the 
 principle is the same where the conflict is between a single 
 claimant and the legal personal representative (0- The Limited by 
 discovery sought must be such as is required by the exigencies Jr^S"^"* ""^ 
 of the judgment or order, and useful for carrying it into 
 effect ; no party can of right examine another party, except 
 for the purposes of the judgment or order ; he cannot do so 
 for merely collateral purposes, e.g., for the purposes of some 
 ulterior suit(m). If it is sought to administer interrogatories, 
 they must be approved of, or, if need be, settled, by the 
 Chief Clerk or Master (mm), and leave must be obtained to 
 administer them (n). They must be relevant to the accounts 
 or other inquiries directed to be taken by the judgment or 
 decree (o), and be such as fairly arise out of it (p). Thus, 
 under an ordinary decree for an account in an administration 
 suit a residuary legatee was not allowed to interrogate an 
 
 (a^ See per Turner, L. J., 32 L. J. Ch. 525. 
 A) See per Kindersley, V.-C, 11 Jm-. N. S. 596. 
 (i) Newland v. Steer, 11 Jur. N. S. 696. 
 (fc) Hanslip v. KUton, 1 De G. J. & S. 4i0 ; Richards v. Watkins, 6 Jur. 
 
 '^\f\'s,L NewUnd^. Steer, 11 Jur. N. S, 596, per Kiudersley, V.-C. 
 (m) See Cottingham v. Ecvrl of Shrewsbury, 3 Ha 627, 638. 
 (mm) Dan 1061 ; v. ib., as to the practice generally in such oases. 
 «) See Ord. XXXI. x.l. 
 (n\ Williams V. Dmglas, 6 Jur. 1010. 
 
 S SmauTIttwoJ, 2 Y. & C. 101 ; See Fearse y. P., 1 De G. & Sm. 12. 
 
 r 2 
 
20 
 
 LAW AND PEACTICE OF DISCOVEEY. 
 
 CHAP. III. 
 Sect. 2. 
 
 Procedure by 
 suTumons at 
 chambers. 
 
 ObtainaJble 
 between co- 
 defendants. 
 
 executor and co-defendant as to alleged breaches of trust (q). 
 The party desiring to interrogate may be required, as a 
 preliminary condition, to bring in a statement of facts sup- 
 ported by evidence, or make an affidavit verifying the facts 
 to which the interrogatories are directed (r). If necessary, 
 further interrogatories may be administered, but where a full 
 answer has been obtained the party cannot exhibit fresh 
 interrogatories, not for the purpose of carrying out the judg- 
 ment, but of contradicting the answer already sworn (s)- 
 The mere circumstance that a rule nisi for a new trial is 
 pending is not a sufficient ground for granting discovery 
 after verdict (fj, unless there has been fraudulent or inequit- 
 able conduct on the part of the litigant from whom it is 
 sought (u) ; d fortiori, therefore, it will not be granted to 
 enable an unsuccessful suitor to see if he has grounds for 
 moving for a new trial (x). Discovery has been granted in 
 Chancery in aid of executions to ascertain where the judg- 
 ment debtor's property was situated (y). 
 
 The procedure is the same as before judgment, viz. by 
 summons at chambers (z); but the summons for discovery 
 of documents should not require a disclosure of documents 
 generally, but should specify particularly the matters as 
 to which discovery is required (a). The discovery will 
 be given notwithstanding the fact that an appeal against the 
 judgment is pending (aa). 
 
 After judgment for an account, the ordinary rules as 
 to the parties as between whom discovery is obtainable 
 do not apply, because all the parties are then co-actors in 
 the action, i.e. legally interested in the taking of the account 
 
 (?) Ford V. Bryant, 9 Beav. 410 ; HopUnson v. Bagster, 1 Y. & Coll. Ch. 
 lo. 
 
 (»•) Sidden v. ForsUr, 1 S. & S. 335 ; Winter v. W., 1 Jur. 754 ; Small v. 
 Attwood, 2 Y. & C. 101. 
 
 (s) See Suckermore v. Dimes, 9 Beav. 518. 
 
 (t) WhiPmore v. Thornton, 3 Price, 241, 248 ; Hare, 81 sea. 
 
 [u) Hare, ib. ; Mitf. [131.] 
 
 (x) Pratt V. Goswell, 9 C. B. N. S. 706. See as to discovery in the Court 
 of Appeal, post, p. 177. 
 
 (y) Hare, 84, and cases there cited. In the Common Law Courts such 
 discovery was refused as not being authoiised by the C. L. P Act 1854 si 
 50-1 {Eayne v. Pratt, L. R. 6 C P. 104). ^ " ^ ^- ^- '^- -a.ct, XB04, ss. 
 
 W See Ch Cons. Ord. XLII r. 4 ; Dan. 1064-5 ; Richards v. WatUr,s, 
 e^J?"^- ^- °- IBS. Kule 19 (postponing discovery) may be appUed (see Eow- 
 chffe V. Leigh, C. A., 6 Ch. D. 256). 
 
 '{a) Dan. 1682-3 ; Halda^ie v. Bckford, L. E. 7 Eq. 425 ; Se M'Vea^li's 
 estate, 1 De G. J. & S. 399 ; but see Kennedy v. IVakefield, 39 L, S. Ch 827 
 
 (aa) Saxby v. Easterlrrook, L, E. 7 Ex. 207. 
 
DISCOVERY AFTER JUDGMENT. 21 
 
 or inquiries by which they will be charged or bound (5), chap., ill, 
 and the Court proceeds upon an ascertained view as to their ^°°^" ^' 
 rights (c), so that discovery is obtainable as between co-de- 
 fendants, where any questions are raised as between them (d). 
 Thus, a residuary legatee after a decree for the administra- 
 tion of an estate may get discovery from the executor in 
 order to test the accuraicy of the latter's accounts, though a 
 co-defendant (e). 
 
 lb) See per "Wigram, V.-C.^ 15 L. J. Ch. 445. 
 
 (c) Per Stnart, V.-C, i Giff. 405 ; Hart v. Montefiore, SO Beav. 280. 
 
 (d) Kennedy v. Walrfidd, 39 L. J. Ch. 827. Re M'Veagh's estate, 1 De,- 
 G. J. & S. 399. See Cottingham v. Lard Shrewsbury, 3 Ha. 627/. 
 
 (e) Re M'Teagh's estate,, supra.. 
 
CHAPTER IV. 
 
 OBJECTIONS TO DISCOYEEY. 
 
 S!ect. 1.-0/ the objection that the discovery is immaterial{a). 
 
 CHAP. IV. There are three senses ia which discovery may be said to 
 ^^"^^ ^- be immaterial. It may be (1) immaterial as. regards the action 
 Immaterialitj. or proceedings generally (which is the ordinary sense of the 
 word), or (2) as regards the persons from whom the discovery 
 is sought, or it may be (3) immaterial at the time when it is 
 sought (6). This third species of immateiiality will be dis- 
 cussed hereafter under a separate head, and of the second, 
 it is sufficient ta say that, in general, a party is only obliged 
 to answer such of the interrogatories as are necessary to 
 enable the party seeking discovery to obtain a complete 
 judgment against him, individually (c), one set of de- 
 fendants not being bound to. answer questions upon the cases 
 of other defendants (d), and if a party should unnecessarily and 
 vexatiously require another party to answer interrogatories, 
 he may be ordered to pay the costs occasioned thereby (e). 
 It only remains therefore to consider the objection in the 
 ordinary sense in which the term immateriality is used, i.e., 
 as synonymous with irrelevancy {f). 
 
 IrrsIevMio^.. The late Sir James Wigram, in his work on discovery {g), 
 
 lays it down as his second proposition that " It is the right, as 
 a general rule, of a plaintiff in equity to exact from the 
 defendant a discovery of all Tnatters of fact which, being 
 
 (a) See Hare, Part III., Ch. 2, §§ 2—4 ; Kerr, Part IL, Ch. 6, § 3. 
 
 {b) Hare, 138 ; Dan. 625 ; v. post, p. 28 {Postponing discovery). 
 
 (e) W. pi. 235 ; Hare, 141 ; see Marsh v. Keith, 1 Dr. & Sm. 342. By Ord. 
 XXXI. r. 1, a note must be appended to the foot of interrogatories stating 
 ■which of them each of the persons interrogated is required to answer to Icf. 
 Ch. Ord. Aug. 1841, No 17). 
 
 (d) Tomlinson v. Swinnerton, 2 Jur. 393. 
 
 (e) See Oocks v. Stanley^ 6 "W. li. 45. 
 (/) See Hare, 137. 
 
 ia) PI- 26. 
 
tjniATERIALITY OR IREELEVAXCY. 23 
 
 vx'U pleaded in the bill, are material to the pladntijffi's case chap. iv. 
 about to come on for trial, and tvhich the defendant does- ^°^- ^- 
 not by his form of pleading admit." In ordinary cases SHgM degree 
 where the giving of the discovery is comparatively a matter sufficienr*^ 
 of indifference to the party called upon to do so, the objec- 
 tion will not be allowed except in a case of clear imma- 
 terudity and not merely of doubtful muteriality [h], for it 
 is enough if the discovery is or may be material towards 
 proving the party's case or even the smallest tittle of it (i). 
 There should be a full discovery of anything which is- reason- 
 ably material to the case of the party seeking it,, and whichs 
 may be produced without any overwhelming amount of 
 injury to the party giving it (]c). " The Court does not," it 
 has been said, " when discovery is a matter of indifference to. 
 the defendant, weigh in golden scales the question o£ 
 materiality or immateriality " (l), and a certain latitude must 
 always be allowed in seeking it, as it is almost impossible for 
 the Court, at that stage, to determine what propositions will 
 be material to the case of one or other of the parties (m). 
 
 Where, however, the nature of the discovery required is Except where 
 such that the party obtaining it may, though failing at the pressireor'^ 
 hearing, afterwards use it in a way prejudicial to the party injmiDus. 
 giving it, the Court will take into consideration the special 
 circumstances of the case, and, whilst, on the one hand, it 
 takes care that the party seeking it obtains all the dis- 
 covery which can be of use to him, on the other it is bound, 
 to protect the other party against undue inquisition into his 
 affairs {n). If production is likely to be injuiious to the party 
 producing, and not beneficial to the party to whom the pro- 
 duction is made, those are very good reasons why it should. 
 not be ordered (o). The Court will also exercise a proper 
 
 (h) See Tipping v. Olarke, 2 Ha. 383, 390, per Wigram,. V.-C. ; Agar v.. 
 Regent's Canal Co., Coop. Ch. C. 212. 
 
 (i) See per Kindersley, V.-C, 35 L. J. Ch. 401, 4 Drew, 252, 17 Sim. 214 ;, 
 Mitf. [193]. See Sheward v. Lord Lonsdale, C. A., 42 L. T. 172, whrre 
 Brett L. J. said, ' ' unless we can say that the answers can/not he relevant, we- 
 cannot disallow these interrogatories." 
 
 (le) See per James, L. J., in Carver v. Pinto Leite, L. R. 7 Ch. App. 90,. 97.. 
 
 (l) Per Lord Hatherley, L. C, in Moore v. Craven, ib. 94, 96 ; see per 
 ■Wigram, V.-C, 2 Ha. 390 ; Carver v. Pinto Leite, supra. 
 
 (m) deeper Sehvyn, L. J., L. R. 4 Ch. App. 678 ; 2<er Lord Romilly, M. R., 
 
 in) See per Lord Hatherley, L. C, ubi supra ; Q. W. Coll. Co. v. Tucker, 
 T R q Ch Am). 376 ; Drake v. Synies, Job. 647. 
 
 {0) See per aalins, V.-C, L. R. 19 Eq. 45; Moore v. Craven, ib. 7 Ch. 
 App. 94 n. ; Carver v. Pinto Leite, ib. 90. 
 
24 
 
 LAW AND PEACTICE OF DISCOVEET. 
 
 CHAP. IV. 
 Sect. 1. 
 
 Vexatious and 
 remote dis- 
 covery. 
 
 Relevancy 
 tested by 
 pleadings and 
 evidence. 
 
 Right to relief 
 assumed. 
 
 control over any attempt to press for any such minuteness of 
 discovery as would be either vexatious or unreasonable, as 
 indeed it can do in every case in which it is satisfied that 
 any kind of discovery is required vexatiously or oppres- 
 sively (p). " In determining," says Sir James Wigram, 
 " whether particular discovery is material or not, the Court 
 will exercise a discretion in refusing to enforce it;, where it is 
 remote in its hearings upon the real point in issue, and 
 would be an oppressive inquisition" (g). Thus, in an action 
 by a fii-m of horse dealers for the price of horses sold by 
 them, the Court refused to enforce an answer to inter- 
 rogatories asking whether they were the real owners of the 
 horses, the circumstances under which they were in pos- 
 session of them, and the dates at which they received pos- 
 session of them, as being unreasonable and too remote (r). 
 
 The relevancy or otherwise of the particular discovery 
 sought must be tested by reference to the pleadings (if any), 
 and the issues or questions raised thereby, the relief claimed, 
 and a consideration of the evidence which could be given at 
 the trial in support of the case of the party seeking it (s). Thus, 
 in an action for breach of promise of marriage, an inquiry as 
 to the means and position of the defendant is relevant, as 
 evidence thereof could be given at the trial, though in an 
 ordinary action, it would be wholly beside the question {t) ; 
 and where the defendants were siied as man and wife, an 
 interrogatory asking whether they were in fact married was 
 disallowed as being inconsistent with the plaintiff's own 
 case (u). For the purpose of determining the right to the 
 
 {p) See Elmer v. Creasy, L. R. 9 Ch. App. 69, 73 s&i.; Drake v. Syines ; 
 O. W. Gall. Co. V. Tucker, ib., -376 ; Sheward v. Lord Lonsdale, 5 C. P. D. 
 47 ; Janson v. Solarte, 2 Y. & C. 127. 
 
 (q) PI. 238. 
 
 (r) Sheward v. Lord Lonsdale, 5 C. P. D. 49 ; S. C, 42 L. T. 172, C. A. 
 
 (s) Anon., W. N". 1876, 39; per Lord Hatherley, L. C, L. R. 7 Ch. App. 
 97 ; Duncoinbe v. Davis, 1 Ha. 184 ; W. PI. 224—6. 
 
 (t) HodsoU V. Taylor, L. R., 9 Q. B., 79. See Millington v. Loring, C. A., 
 6 Q. B. D. 190. Evidence may be given at the trial of (1) facts in issue, 
 and (2) facts relevant thereto (see Steph. Ev. p. 4), and where there are no 
 pleadings, any facts from the establishment of which the existence, non- 
 existence, nature, or extent of any right, liability, disability asserted oi- 
 denied in such case would follow are "facts in issue" (ii.) According to the 
 recent case of Millington v. Loring (supra) any facts which can be given in at 
 the trial, e.g., matters which go to aggravate or diminish the damages recover- 
 able, are material, but, in general, evidence of collateral facts incapable of 
 affording any reasonable presumption as to the existence or non-existence of 
 the facts in issue or dispute is inadmissible (Tayl, Ev. § 290) 
 
 (a) Smith v. Berg, 36 L. T. 371. 
 
IMJIATERIALITY OE IRRELEVANCY. 25 
 
 discovery it will be assumed that the party will ultimately be chap. iv. 
 found to be entitled to the relief which he seeks (x), since ^^°*- ^- 
 otherwise it would come too late to be of any use to him, 
 and that the relief is properly asked (y). In the case of Test is service 
 interrogatories, the test of the materiality of a particular ^^^j^ ^^'^'^ 
 question, is the service which it would be to the party inter- party iaterro- 
 rogating if admitted or answered in the affirmative (z), and ^^ '°^" 
 the probahility or otherwise of getting the particular answer 
 sought is not the question (a) ; the point is, whether the 
 interrogatory, if answered in a particular way, would not 
 have the desired effect (6). 
 
 It is not necessary that interrogatories should be such that Facts dis- 
 the answers would be admissible in evidence for the party ^^j ^.g 
 interrogating, if there is a reasonable probability of his evidence. 
 deriving material benefit from them in the action (c). In like 
 manner it is no ground for objecting to produce documents 
 that they would not be evidence for the party calling for the 
 production (d). 
 
 Interrogatories put by way of cross-examination with a Discovery not 
 view of discrediting the party interrogated are considered *"°*^,e ^°i 
 irrelevant, although such questions might be put to the party oross-examin- 
 at the trial, the right of interrogating not being identical 'jisg°eji;(,i„g 
 with that of cross-examination (e) ; thus, a party will not be 
 requii-ed to go through his books for a number of years for 
 the purpose of giving an answer which could only be used 
 to discredit him if he made an erroneous statement (/), and an 
 interrogatory asking a party whether statements in his 
 pleadings are true or false is improper (g). Similarly, it is 
 no ground for ordering inspection of documents that they 
 might afford useful materials for cross-examination, or might 
 be used for the purpose of creating a prejudice (A). 
 
 It is not necessary that interrogatories should be based interrogatories 
 
 need not bo 
 
 (x) Gresley v. Mcnisley, 2 K. & J., 288 ; see per Kiudersley, V.-C, 1 Drew 
 506, 5 W. R. 877 ; 1 ft. 39 ; per Wigram, V.-C, 1 Ha. 189. 
 
 (y) See per Knight Brace, V.-C, 26 L. J. Ch. 454 ; 8 De G. M. & G. 730. 
 It seems that this assumption should be made A fortiori, now that defences 
 are no longer made on oath. 
 
 (z) Chadwick v. C, 22 L. J. Ch. 329 ; Bally v. Kenrick, 13 Price, 291. 
 
 (a) deeper Sehvyn, L. J., L. R. 4 Ch. App. 678. 
 
 (h) Per Lord Cottenham, L. C, 2 H. & T. 22. 
 
 (c) Seeder Blackburn, J., 11. W. R. 573. 
 
 {d) r. post, p. 312. 
 
 te) See per James, L. J., 3 Q. B. D. 661 ; Baker v. Newton, W. N. 1876, 8. 
 
 (/) SeeV)- Jesscl, M. R., 18 Ch. D. 484. 
 
 Iq) Johm V. James, 13 Ch. D. 370. 
 
 (A) Ricliards v, Gellatly, L. R, 7 C. P. 127. 
 
26 LAW AND PRACTICE OF DISCOVERY 
 
 CHAP. IV. upon some specific charge or statement made in the plead- 
 
 ^^'^*- ^- ings of the party interrogating, provided they relate 
 
 based ou to matter which is pertinent, and may be material to the 
 
 charges *'*^® made by the pleadings, and are founded on the general 
 
 allegations thereof (i). A single allegation of a fact in a 
 
 pleading is suflScient to found upon it all questions which go 
 
 to prove the truth of the fact (k) ; thus, under an allegation 
 
 of the payment of money, the time, place, mode, and other 
 
 circumstances of the payment may be asked, and under an 
 
 allegation of the existence of a partnership, an answer may 
 
 be obtained to every collateral circumstance charged as 
 
 evidence of the general fact (l). 
 
 Interrogatories It frequently happens that interrogatories are objectiou- 
 
 unreasonably able, as being too wide in their scope, and opening up too 
 
 sweeping. remote a field of inquiry (m), or too onerous {n), rather than 
 
 that they are wholly irrevelant. When such is the case, if 
 
 the party interrogated would have been liable to answer the 
 
 question if its generality had been properly limited, he should 
 
 treat it as so limited, and answer it accordingly, leaving the 
 
 interrogating party to enforce a full answer if he can (o). 
 
 Sect. 2. — That the discovery sought is not immediately 
 m,aterial. 
 
 Sect. 2. An action often comprises several distinct issues or questions 
 
 Action com- °^ i&c^, of which One is & principal or fundamental, and the 
 prising sub- other or others subordinate or consequential issues or qaes- 
 
 ordinate issues , ■ • i i i? .cf _l' • j.i i j_ • x* r 
 
 or questions. tioDS, mcapaole 01 attecting m any way the determination ot 
 the main issue, and such issues or questions will ordinarily 
 come on for trial simultaneously, though they may be adju- 
 dicated on successively, thus conferring upon the parties a 
 primd facie right to the immediate discovery of all matters 
 material to the determination of each and every of them, 
 subordinate as well as principal (p). Such are those actions 
 
 (i) See M'Oarel v. Moon, L. E. 10 Eq. 22 ; GirdUstone v. North British 
 Merc. Ins. Co., 11 ib. 197. 
 
 (fc) Hare, 244 ; seeder Lord Eldon, L. C, 11 Ves. 376. 
 
 (I) See per Leach, V.-C, 6 Madd. 63 ; Hobson v. Orawley, 2 H. & N. 766. 
 
 (m) See Robson v. Orawley, supra. 
 
 (n) See Simpson v, Qharlesworth, 14 L. T. 699. 
 
 (o) See Parker v. Wells, C. A., 18 Ch. D. 477 ; Smith v. Berg, 36 L. T. 
 471 ; V. post, p. 89. 
 
 (p) "W. PI. 148. Such are suits for infringement of patents (see Swinborne 
 V. Nelson, 16 Beav. 416 ; De la Rue v. Dickiiison, 3 K. & J. 388 ; Lett v. 
 
POSTPONING DISCOVEEY. 27 
 
 (most commonly occumng in the Chancery Division) in chap. iv. 
 which some right, title, or character is asserted by one of the ^°°^' ^^ 
 parties, (and denied by the other,) and an account or other 
 consequential relief, or right of inspection {pp) claimed as inci- 
 dental thereto, the right to such relief wholly depending upon 
 the determination of the issue as to the existence of the right 
 or title, or where a claim for an account is met by a defence 
 of an account stated or a release (g). In such cases, the ques- 
 tion frequently arises, whether the party asserting a disputed 
 right or title, is entitled to discovery before the hearing of 
 the action of matters which are material only to the proof 
 of the amount or extent of the consequential relief to which 
 he will be entitled if he establishes his principal contention, 
 and therefore wholly incapable of assisting the Court in the- 
 determination of the main question (for if they be in any 
 degree so capable, e.g., in determining the right to an 
 account, there is no doubt that they must be discovered 
 immediately (?•), unless asked for in an oppressive form), or 
 whether the Court will protect the party from whom the 
 discovery is sought from disclosing, before the hearing, what 
 may eventually prove to be his own private affairs (s). 
 
 The Courts of Equity were very strict in enforcing full dis- Rule in 
 covery fi-om a defendant in such eases (t) ; the rule, founded Chancei^ that 
 
 1 1-1 n c 1 1 • ^ ^ i defendant who 
 
 partly on technical grounds oi pleadmg, and partly on substan- answered must. 
 tial grounds, being, that a defendant who submitted to answer ^^^^^i' ^""y- 
 (even when he denied the plaintiff's title), must answer fully, 
 not only as to other matters, but also as to consequential 
 matters of account, unless he could make out an exceptional 
 case for not doing so, viz., that the discovery was sought vex- 
 
 Parry, 1 H. & M. 517 ; Carver v. Pinto LeUs, L. R. 7 Ch. App. 90), for ad- 
 ministration (see Adams t. Fisher, 3 Myl. & Cr. 526), redemption (see ElTmr 
 Y. Creasy, L. E. 9 Ch. App. 69), suggesting a partnership (see C'legg v. Edmun- 
 sm, 22 Beav. 125, 142 ; Mansell v. Fecney (No. 2), 2 J. & H. 320 ; Turncy 
 V. Bayley, i De G. J. & S. 332), or agency (see Moore v. Craven, L. R 7 Ch 
 App. 94 n. ; G. W. Coll v. Tucker, 9 ih. 376). 
 
 (pp) See, as to the rule in the case of title-deeds, ^er Kindersley, V -C 17 
 Sim. 215—6. ' '' 
 
 (g) See "W. pi. 51 ; Wier v. TucHr, L. R. 14 Eq. 25 ; Kay v. Earqreaves 
 "\V. N. 1866, 122. 
 
 (r) See Lockett v.. L., L. R. 4 Ch. App. 336 ; Harris v. H., 4 Ha. 179 • 
 A. G. V. Thompson, 8 ib. 115 ; Ord v. Fawcett, 19 L. J. Ch. 487 ; siainton 
 Y. Chadwwk, 3 Macn. & G. 675. The distinction is well iUustrated hy a 
 comparison oi Harris v. H, Yiith. Adanw T. Fisher, 3 Myl. & Cr. 526 (see per 
 Wigram, V.-C, 8 Ha. 114). 
 
 (s) See per Wood, V.-C, 2 J. & H. 323 ; per James, L. J., 43 L. J. Ch 
 520 ; Heugh v. Garrett, 44 ih. 305. 
 
 (t) Sec per Lord Selborne, L. C, L. R. 9 Ch. App. 69 ; per Wood., V.-C, 
 1 H. & M. 516. 
 
28 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. i\r. atiously or oppressively, or was discovery whieb it would be 
 s^oi- ^- burdeBsome or injurious to give, and wbich probably might 
 Dkcretion as never be used at all (u). The Court, however, in its discre- 
 to. granting tion, was in the habit of drawing a line between accounts 
 accounts before which were nccessary for the decision of questions which 
 trial. might occur at the hearing, and those which could in no 
 
 event be required until the judgment came to be worked out, 
 and could have no bearing on the issue in the action (x), as 
 in cases of alleged partnership or agencies, or actions for 
 infringement of patents, where the partnership or infringe- 
 ment was denied, and the discovery could not affect the 
 question whether the plaintiff was an agent or partner or 
 not, or whether or not there had been an infringement (y) ; 
 again, where the questions of liability generally and of 
 damages were severable, discovery which was material to 
 the latter question only, would not be given before the 
 hearing (z). 
 Jud. Acts give The Judicatui'e Acts have not only done away with the 
 d^s^cretion t technical rule above-mentioned (a), but have expressly recog- 
 postpone nised the absence of immediate materiality as a reason for 
 
 discovery. objecting to answer interrogatories (&), and further they 
 expressly vest in the Court a discretion as to postponirig 
 discovery in such cases until the determination of the prior 
 -issues or questions (c), a discretion which will be exercised 
 by refusing the discovery before the trial, where it would 
 be unfair and oppressive to compel the opposite party to 
 give it (d). 
 
 {u) Elmer v. Creasy, L. R. 9 Ch. App. 69 (seeder James, L. J., 7 ib. 97) ; 
 Saiill V. Browne, ib. 364, 367—8 ; G. W. Coll. Co. v. Tucker, ib. 376 ; 
 Carver v. Pinto Leite, 7 ib. 90 ; Moore v. Craven, ib. 94 n. ; Reugh v. Garrett, 
 44 L. J. Ch. 305 ; Republic of Costa Rica v. Erlanger, ib. 281 : Lea v. Sa/dni, 
 32 L. T. 731. 
 
 {x) See per Lord Hatherley (when Wood, V.-C.) 2 J. & H. 316—7, 323 ; 1 
 H. & M. 516 ; L. R. 5 Ch. App. 576 ; Moore v. Craven ; Heugh v. Garrett : 
 Mansel v. Feeney (No. 2), 2 J. & H. 320 ; post, p. 30. 
 
 {y) Ib. In any case where the discovery was postponed or refused under the 
 former practice before the hearing it would, & fortim-i, be postponed under 
 the present practice. 
 
 (z) Elkin Y. Clarke, 21 W. R. 447 ; Turjiey v. Bayley, 4 De G J. & S 
 332 ; see also Lett v. Parry, 1 H. & M. 517, 
 
 («) See per Lindley, J., W. N. 1876, 12.' 
 
 (b) See Ord. XXXI. r. 5. 
 
 (c) Ord. XXXI. r. 19 {post, p. 204). This rule applies to the case of 
 discoveiy «/ter judgtiKnt {Roiocliffe v. Leigh, C. A, 6 Ch. D. 256). See 
 Ord XXXVI r 6, as to trying issues out of their turn. The objection can 
 be taken aM the question raised equally weU in the answer or affidavit 
 {Parker v. Wells, C. A., 18 %b. 476). 
 
 id) Parker v. Wells, supra ; Eemery v. lVorsi:am, C. A., 26 Sol 
 Journ. 296. • 
 
POSTPONING DISCOVERY. 29 
 
 The rule in question, which was styled by James, L.J., chap. iv. 
 ■" one of the most wholesome rules introduced by the Judica- ^^°*- ^" — 
 ture Act " (e), provides, that " If the party from whom dis- Ord. XXXI. 
 covery of any kind or inspection is sought objects to the same '• 
 or any part thereof (/), the Court or Judge may, if satisfied 
 that the right to the discovery or inspection sought depends on 
 the determination of any issue or question in dispute in the 
 action, or that for any other reason it is desirable that any 
 such issue or question should be determined before deciding 
 upon the right to the discovery or inspection (g), order that 
 such issue or question be determined first, and reserve the 
 question as to the discovery or inspection " (A). Accordingly, Rulo since 
 the modern rule is, that wliere the title is absolutely denied, "' • ^ "^ ""■ 
 discovery, u'hich could only he of itse if the title is established, 
 luill not be ordered at once ivhere it would be oppressive to 
 the defendant to order it (i). " In deciding whether dis- 
 covery ought to be given," said the Master of the Rolls in a 
 recent case, " we must first consider whether it will help the 
 plaintiff at the trial. If it will not, but will only be of use if 
 the plaintiff obtains a decree, then, having regard to the dis- 
 cretion given to the Court by Order XXXI., r. 19, we must 
 consider whether it is fair that the defendant should be 
 obliged to give it at this stage of the proceedings, or whether 
 to compel him to give it would be oppressive " (k). 
 
 Thus, in a claim under a decree for the administration of No discovery 
 an estate, where the main question in dispute was whether fj^^ relevant 
 the claimant had sold for the testator as his agent on com- to issue first 
 mission or on his own account, discovery of the amounts ° ® "® ■ 
 received by him in respect of such sales was postponed, as 
 being immaterial to the issue as to what was the agreement 
 or course of dealing between the parties (l). Lord Justice 
 James remarking that no discovery should be taken from a 
 defendant unless it was really relevant to the issue first to 
 
 (c) 6 Ch. D. 263. 
 
 (/) This refers to an objection in the answer or otherwise that the discovery 
 sono-ht is not sufficiently material at the then stage of the action {v. Ord. 
 XXXI. r. 5). ^^ „ ^ 
 
 (a) See Be La Sus v. Dickinson, 3 K. & J. 388 (infringement of patent). 
 
 (h) Ord XXXI. r. 19. Mixed questions of law and fact are within this 
 rule (see mr Lindley, J. in Tasm. Ry. v. Chirk, 27 W. E, 677). 
 
 (i) See per Jessel, M. Pv., in Parker v. Wells, C. A., 18 Ch. D. 476, 482. 
 
 (k) Per Jessel M. E., 18 Ch. D. 483 ; see per Cotton, L. J. ib. 486-7. 
 
 11) EoiocUffe V. Leigh, C. A., 6 Ch. D. 256 ; cf. 0. W. Coll. Co. v. Tucker, 
 L R 9 Ch. App. 376 ; ycrminck v, EdwarAs, 29 W. R. 189. 
 
30 LA-\V AND PRACTICE OF DISCOVERY. 
 
 CHAP. IV. be tried (m) ; and where a contract to pay commission was 
 Sg°^- ^- set up, and denied by the defendant, the issue as to the 
 existence of the alleged contract was ordered to be tried first, 
 and discovery dependent upon the decision of that issue 
 refused, as not being material until the contract had been 
 proved {n). The Court will not compel a defendant to give 
 discovery of his own private means and transactions on the 
 speculation that the plaintiff may afterwards want it, if at 
 the hearing he succeeds in the preliminary proposition that 
 the defendant was or is an agent. It would be monstrous 
 that a man, by merely alleging that he had a share in a 
 concern, which allegation was denied and had not been esta- 
 blished, and whilst it was doubtful whether it would be 
 established, could get the accounts of a defendant's private 
 business, and of his dealings with other people (o). 
 Eule as to In actions where an account forms part of the relief prayed, 
 
 discovery of ^^le Court has a discretion as to requiring a party to answer 
 as to the result of the account before the trial (p). " There 
 are cases in which the account would be complicated, and in 
 which the plaintiff's title is denied, in which it would be 
 refused (pp). There are cases in which the plaintiff's title to 
 it may be denied as a title which is fairly open to trial, and 
 which has to be affirmed at the trial, and in which the giving 
 of the accounts would occasion little trouble to the defendant 
 and would be of immense advantage to the plaintiff, by enabling 
 him to adopt the account as rendered by the defendant (q), 
 and get an immediate decree or order at the trial without the 
 trouble and expense of a reference for that purpose, where the 
 Judge in the exercise of his discretion may allow it " (qq). In 
 many cases an admission that profits have been made generally 
 during the period in question is sufficient before the trial. 
 Accordingly, in an action to enforce an alleged trust in respect 
 
 (m) lb. 263. 
 
 («) Wood V. Angl. Italian Bk., 34 L. T. 255 ; Flower v. Llmid, 20 S. J. 
 584, 703. 
 
 (o) See G. W. Coll. Co. v. Tucker, L. R. 9 Ch. App. 375, 378, per James, 
 L. J. ; Beugh v. Garrett, U L. J. Ch. 305. 
 
 (p) See Parker y. Wells, C. A., 18 Ch. D. 476 ; Memery v. Worssam. 0. A . 
 XXVI. S. J. 296. ' n . . 
 
 (pp) Kg., an account of fhe profits made by the employment of a particular 
 sum in a business {see per Jessel, M. E., 18 Ch. D. 484; Heimry v. Worssam 
 supra ; see also Lochett v. L., L. E. 4 Ch. App. 336). ' 
 
 (j) See Saunders v. Jones, C. A., 7 Ch. D. 435 ; Clegg v. Edwunson, 22 
 Beav. 125 ; Robson v. Flight, 33 ib. 268 ; Elmer v. Creasy, L. R. 9 Ch. App 
 69 ; Great Luxemhurgh By. v. Magnay, 23 Beav. 646. 
 
 {gq) Per Jessel, M. R., 16 Ch. D. 98. 
 
POSTPONING DISCOVERY. 31 
 
 of monies deposited with the defendant, the defence being a chap. iv. 
 denial of the trust and that the monies had been paid out by ^^ct. s. 
 the depositor's directions, discovery as to (1) the dates and 
 particulars of such payments, and (2) the profits arising from 
 the employment of the trust monies, was refused before the 
 trial on the ground that it would be useless at that stage 
 and oppressive (r), and the il aster of the Rolls disposed of 
 the stock argument that the discovery might enable the 
 plaintiff, if successful, to take an immediate order for pay- 
 ment of the sum admitted by the defendant, by saying that a 
 defendant never makes such an admission of profits as the 
 plaintiff could use for that purpose (s). Again, in an action 
 to set aside the sale of a share in a business, on the ground 
 of gross undervalue, which was denied, discovery of the profits 
 made therein since the date of the sale was refused on the 
 ground that it would not help the plaintiff in obtaining a 
 decree, as it would not be evidence of the profits at the time 
 of sale, and would be oppressive to the defendant {t), and the 
 Master of the Rolls said that the question must be decided, 
 not with reference to the old practice of the Court of Chan- 
 cery, which in this respect greatly needed alteration, but 
 with reference to Rule 19, and that he adhered to what he 
 said in Parker v. Wells (u), that the mere fact that the 
 discovery sought might enable a plaintiff to obtain an imme- 
 diate decree would not be a sufficient reason for requiring 
 the defendant to set out long and intricate accounts, or the 
 result of long and intricate accounts. 
 
 In addition to that above noticed, there may be another Exceptions to 
 reason for granting the discovery, viz., that if it were post- f^^^^^^ 
 poned, the party seeking it would run a risk of losing it danger of 
 altogether by the death of the other party or other supervening ^°^^^e^l^^_ 
 accident {x), a reason which is less applicable to the case of the 
 discovery of documents than to discovery by answer (y). Again, 
 by obtaining the discovery at an early stage of the action, the 
 party may satisfy himself that it is not worth prosecuting (2), 
 
 (r) ParJcerv. mils, C. A., 18 Ch. D. 477. 
 
 (3 Se^y- rrorssam, C. A., XXTI. S. J. 296. 
 
 fe] See?r Lord Selbome, L. 0., L. E. 9 Ch. App. 72 ; per Turner, V.-C, 
 22 L. J. Ci 331 ; W. pi. 163 
 
 g l,'T^JifTepJrtds!'l: J. in Benio.: r. Z^, C. A., 50 L.J. Ch. 
 
32 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. IV. or that he has been labouring under a mistake as to his 
 ^^°t- ^- rights. 
 
 2. In admin- In the case of administration actions against trustees, ex- 
 actkn™ ecutors, or administrators, the right to a full account by- 
 answer of the personal estate of the testator or intestate still 
 exists (a), unless asked for vexatiously (aa). In such cases 
 discovery at that stage is important in order that the plaintiff 
 may have the opportunity of (1) requiring the balance of the 
 estate to be brought into Court for protection, and (2) of being 
 satisfied by the oath of the executor as to the true state of 
 the s,ccounts (b), and of discontinuing the action safely, if 
 after discovery he thinks it desirable (c). 
 
 3. Other cases. Where the title of the party seeking the discovery to the 
 
 relief claimed is admitted, his opponent cannot refuse to give 
 it (d), and if the Court could give complete relief at the trial 
 without directing an account, there is no reason for postponing 
 it (e). In common law actions, as the party is bound to prove 
 his whole case at the trial, and it is not usual to direct a 
 subsequent account, he should be allowed any discovery 
 necessary to enable him to prove what is due to him (/). 
 Where the objection is raised as a reason for not producing 
 documents, the affidavit should deny that they show or tend 
 to show how the main issue or question is to be decided (g). 
 
 This objection might also be raised in cases where discovery 
 is prematurely sought (^), but, in the case of interroga- 
 tories, the better course is to apply to set them aside as 
 having been exhibited " unreasonably or vexatiously " (i). 
 
 36, 39 ; per Bacon, V.-C, 7 Ch. D. 446 ; iJe SutcUffe, 44 L. T. 547 ; Brookes 
 V. Boucher, 31 L. J. Oh. 821 ; per "Wood, V.-C, 1 H. & M. 616. 
 
 (a) See Re SutcUffe, 44 L. T. 647 ; W. pi. 170. 
 
 {aa) See per Lord Hatherley, L. C, in Thompson v. Sunn, L. R. 5 Ch. 
 App. 573. 
 
 (6) See per Lord Hatherley, L. C. , ubi supra. 
 
 (c) Seeder Fry, J., in He Sutcliff, uU supra; per Malins, V.-C, in Cull v. 
 Ingles, 37 L. J. Ch. 385, 388 ; per Wood, V.-C, 2 K. & J. 391 j Brooks v. 
 Boucher, 31 L. J. Ch. 821. 
 
 (d) Elmer v. Creasy, L. R. 9 Ch. App. 69. 
 
 (e) See Saunders v. Jones, C. A., 7 Ch. D. 435, 446. 
 
 (/) See per Thesiger, L. J., ib. 462; W. pi. 169; FAkin v. Clarke, 21 
 W. R. 447. 
 
 (g) See Dickson v. Harrison, W. N. 1878, 145. 
 
 (h) Mercier v. Cotton, 1 Q. B. D. 442 ; u ante, Chap. III. 
 
 (i) Ord, XXXI. r. 5 ; see per PoUoGk, B., 4 Q. B. D. 207. 
 
OPPONENT'S OWN CASE OR TITLE. 33 
 
 Sect. 3. — Of the objection that the discovery relates only to 
 the opponent's case or title (Jc). 
 
 The right of a plaintiff in equity to the benefit of the de- chap. iv. 
 fendant's oath, is limited to the discovery of such material ^^"^^ ^- 
 facts as relate to the " plaintijf's case," and does not extend to ^'^''ty i"* 
 a discovery of the manner in which the "defendant's case " diLcoTCTy of 
 is to be exclusively established, or to evidence which relates opponent's 
 exclusively to his case (1), for the rule of the court (which is 
 most important and should be strictly adhered to) (II) is that 
 each party is to stand upon the strength of his own case, and 
 is not entitled before the hearing to pry into that of his 
 opponent {m). Owing to the terms in which the rule was Meaning of 
 originally stated, viz., that a party had no right to see docu- ^"'^ "title." 
 ments relating exclusively to his opponent's title, and the fact 
 that the contest has usually been raised with regard to the 
 production of title-deeds and other muniments of title, it has 
 sometimes been supposed to apply peculiarly to such docu- 
 ments (n), but the use of the word "title" in this connection 
 is ambiguous ; the proposition ought to be that a party is not 
 entitled to see any document that does not tend to make out 
 his case or his title to the relief sought (0). There is no Rule applies 
 difference in this respect between the case of a plaintiff and ''^".^''^ *° 
 a defendant {p) ; " There might, perhaps," said Lord Selborne defendants. 
 
 Qc) See Hare, partiii., ck iv. ; Kerr, parti., ch. vi., s. 4. 
 
 [I) See W. Prop, iii., pi. 23, 27, 242 seq., Mitf. [190]. The right to sxich 
 discovery, though not originally existing, may be conferred upon a party by 
 his opponent (see W. pi. 346). 
 
 (II) Per Jessel, M. R. 16 Ch. D. 98. 
 
 (m) See W. pi. 378 ; Benhow v. Low, C. A. 16 Ch. D. 93 ; Owen v. Wynn, 
 C A 9 ib 29. 
 
 (ni'Seeper Wigram, V.-C, 8 Ha. 114 ; pi. 324. 
 
 (0) See per Kindersley, V.-C, in Jenkins v. Bushby, 35 L. J. Ch. 400, and 
 in Felkin v. Lord Herbert, 30 ih. 750 ; Clegg v. Edmunson, 22 Beav. 125 ; 
 Bewieke v. Graham, C. A., 7 Q. B. D. 400. The case of a mortgagor, which 
 is supposed to stand on its own special circumstances, is, in fact, only one of 
 the cases within the general rule. (See per Kindersley, V.-C, 4 Drew. 526). 
 See, as to production of title-deeds by mortgagees, Coote (ed. 4) pp. 730 seq.; 
 Fisher (ed. 3), pp. 309 seq.; Chichester v. Lord Donegal, L. R. 5, Ch. 
 App. 497 ; West of England Bank v. Nicholls, 6 Ch. 1). 613 ; RepuUic of 
 Costa Miea v. Erlanger, L. R. 19 Eq. 33. 
 
 (») See Per Lord Romilly, M. R., in Convnrissioners of Sewers y. Olasse, 
 L. R. 15 Eq. 302, 304, 42 L. J. Ch. 346 ; W. pi. 378. The remarks of the 
 Lords .Justices in Hoffman v. Postill, L. R. 4 Ch. App. 673, 681, and Boyd 
 V. Pet-tie, 20 L. T. 934, cited post, p. 39, must be taken with reference to 
 the particiJar cases before them. (See Commissioners of Sewers v. Glasse, ubi 
 supra). 
 
casSc 
 
 34 LAW ANT) PRACTICE OF DISCOVERY. 
 
 CHAP. IV. in Minet v. Morgan (q), " be gi-eat reason for holding that if 
 ^^°*- ^- a man comes into court as a plaintiff, attacking somebody 
 else, he ought to be^bound to disclose everything on which he 
 relies for the purpose of his attack. But that undoubtedly is 
 Party cannot not the present rule of the court." No party to an action is 
 he is gotng°to entitled to call upon his opponent to say how he intends to 
 prove his frame his case, or how he intends to argue it, upon the facts 
 which are known to all (r), and the province of discovery 
 is not to compel a party to set out in what manner he 
 means to make out his case, or to deal with a certain set of 
 materials, or whether he intends to dispute one proposition or 
 another (s). [The plaintiff in discovery] has no right to say 
 to the defendant, " Tell me what your title is — tell me what 
 your case is — tell me the evidence you have to support it — 
 disclose the documents you mean to make use of in support 
 of it — tell me all these things, that I may find a flaw in your 
 title " (t). Thus, in an action of trover by the assignees of a 
 bankrupt to recover property alleged to form part of the 
 bankrupt's estate, interrogatories asking the plaintiffs upon 
 what acts of bankruptcy they intended to rely in support 
 of their title as assignees were disallowed {u), and in such an 
 action or an action for goods sold, the defendant is not 
 entitled to interrogate the plaintiff as to how, when, and from 
 whom he first became possessed of the goods in question (x), 
 unless he admits a primd facie title in the plaintiff and seeks 
 to invalidate it by matter subsequent (xx). Where the 
 plaintiff set up a particular right, which would in part be 
 established by evidence that it had actually been enjoyed, the 
 defendant was not allowed to interrogate him as to the par- 
 ticular instances in which that right had been exercised or 
 enjoyed (the acts themselves not being in issue but being 
 only evidence bearing on the issue raised), although, as was 
 said, he would have been entitled to discovery of instances in 
 which the right had been claimed and successfully resisted (y)^ 
 
 (?) L. R. 8 Ch. App. 361, 364. 
 
 [r) See, per RomUly, M. R., in Itigilby v. Shafto, 33 Beav. 83, 39. 
 
 (s) lb. 41. 
 
 (t) Per Lord Abinger, C. B. 4 Y. & C. 15.5. 
 
 (m) Edwards v. Wakefield, 6 E. & B. 462 ; see Moor v. SobeHs, 2 C. B. 
 
 (x) Finnsy v. Forwood, L. R. 1 Ex. 6 ; Sivier v. Harris. "W. N 1870 22 • 
 Sheward v. Lord Lonsdale, 6 C. P. D. 47. < ", -s^ , 
 
 (xx) See Verby Bank v. Lumsden, L. E. 5 C. P. 107 
 {y) Commissioners of Sewers v. Glasse, L. R. 15 Eq'. 302 (.see per Theaiger, 
 
OPPONENT'S OWN CASE OR TITLE. 35 
 
 Where, however, there is a pHvity between the parties, as ohap. iv. 
 where a document forms the common title, or is the subject Seot. 3. 
 of the mutual and common right of both, as in the case of Except where 
 disputes between lords of manors and copyholders as to (,°™^™or 
 their mutual rights (s), or the applicant has otherwise an interest in tha 
 interest (a) in the evidence in the possession of his opponent, 
 to prove his own case or defeat his adversary's, the rule 
 does not apply, for what is evidence of the one's case, must 
 be evidence of the other's ; thus, even title-deeds may be 
 ordered to be produced where it is credibly, and not merely 
 generally or speculatively alleged that they contain some- 
 thing suppo^'ting the case of the applicant, or impeaching 
 that of his opponent (b), or where they are bond fide 
 sought to be impeached for fraud (c), or where the dispute 
 is as to the amA)unts or particulars of parcels, or as to 
 boundaries (d) ; e.g., where the applicant asserts that he is 
 not within a certain boundary, as the deeds will show (e), 
 or admits his opponent's title, and merely contends that 
 it does not extend to the particular property in dispute (/). 
 A party is not, however, upon a mere allegation of fraud. Rule wliere 
 which is denied, entitled to the production of the im- ^"^ ^ ^^^ ' 
 peached documents before the hearing (g) ; though, on the 
 other hand, it is not necessary, in order to entitle him 
 to the production, that his opponent should admit that 
 
 L. J., 7 Ch.. D. 451—2) ; Sovill v. Smith, 2 ib. 469 ; Daw v. EUy, 2 H. & M. 
 725. 
 
 (z) See Warrick v. Queen's College, L. K. 3 Eq. 683 ; Mimt v. Morgan, 11 
 ib. 284, 286. 
 
 (a) See, as to what is meant by " interest, " ^osi!, p. 130. A mere general 
 allegation of such an interest, loitkotU shovnng how it arises, is not sufficient 
 (Philipi>s V. P., 40 L. T. 815 ; seejper Wigram, V.-C, 1 Ha. 522—3, 584), 
 and if the allegation be credibly denied, the case must be carried further {ib). 
 
 (6) See^«r Lord Cottenham, L. C, 2 Macn. & G. 260 ; per Wigram, V.-C. 
 8 Ha. 113 seq. 
 
 (c) See Patch v. Ward, L. R. 13 Eq. 33. 
 
 (d) See Jenkins v. BvsKby, 36 L. J. Ch. 400 ; Lind v, Isle of Wight Co., 8 
 W R. 540 ; A. G. v. Thompson, 8 Ha. 108 ; Wrightv. Fernowl, 1 Drew. 344 ; 
 Brovmv. Wales, L. R. 15 Eq. 142; Ponsonhyv. Sartletj, W. N. 1883, 13. 
 The order for production may be limited to the parcels (see 8 Ha. 120 ; 
 Wayne's, &c. Co. v. PowelU, &c. Co., W. N. 1880, 141, 159). 
 
 (e) Burrell v. N-icholson, 1 Myl. & K. 680 ; A. G. v. Emerson, C. A. 10 
 Q. B. D. 191. 
 
 (/) See Earp v. Lloyd, 3 K. & J. 549 ; Bethell T. Casson, 1 H. & M. 806. 
 In such cases the discovery is not of title-deeds as such, but of the facts 
 contained in m^ps or plam {v. ib.), or shewn by the recitals [see per Jessel, 
 M. R., xxiv. S. J. 781). ^ , ^ , , „ „ 
 
 (o) See Bassford v. Blakesley, 6 Beav. 131, 133, per Lord langdalo, M. R,, 
 (cited with approval by Malins, V.-C, in Republic of Costa Rica v. Erlanger, 
 L E 19 Eq. 33, 45) ; Crisp v. Flatel, 8 ib. 62 ; Patch v. Ward, ubi siipra ; 
 W. pi. 311 seq.; Swift v. M'lernan, 13 Ir. Eq. Rep.;il9. 
 
36 
 
 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. IV. 
 Sect. 3. 
 
 Party entitled 
 to know "what 
 his opponent's 
 case is 
 generally. 
 
 Information 
 equivalent to 
 particulars. 
 
 there has been fraud Qi). The Court must look to the 
 circumstances of the case, and consider whether it is 
 reasonable that the documents should be produced. There 
 must be circumstances which show that the applicant is 
 fairly entitled to have the matter inquired into {i). Such 
 a case must be made as raises a doubt whether the 
 plaintiff has not a right to impeach the deed (fc). If the 
 bill impeaches the deed, and alleges that there is anything 
 on the face of it which will support the charge, the court 
 will order it to be produced {I). 
 
 A party is, however, entitled to know generally what his 
 opponent's case is, its nature and character, and on what 
 facts he relies (m), that is, the substantial particulars of the 
 acts on which he is going to rely, the allegata probanda (n), 
 but not of the facts which are only evidence thereof (o), and 
 may obtain by interrogatories such information with respect 
 thereto as would be afforded by particulars, especially where 
 the statement of the case in the pleadings is vague and 
 general (p). He has a right to know what it is that the 
 defendant relies upon, in order that he may meet and 
 prepare himself to encounter such defence, but he has no 
 right to say, " How do you make out your case ? How do 
 you prove it ? What is your evidence ? " (q). The question 
 in such cases is. Is it in substance asking for better partic- 
 ulars, or an attempt lo get at the evidence of the other 
 side 1 {qq). It is a misapprehension to speak of such discovery 
 as tending to destroy the case of the opposite party ; it is 
 directed to show what are the material issues — what are the 
 
 (h) See per Lord Langdale, M. R. 6 Beav. 133. 
 
 (i) lb. 
 
 {/c) See per Malins, V.-C, L. R. 19 Eq. 44—5. 
 
 (i) Kennedy v. Green, 6 Sim. 6. 
 
 (m) "W. pi. 372 ; Kerr, 33. See Saunders v. Jones, C. A., 7 Ch. D. 435, as 
 explained in .Be«Soi« V. iow, C. A., 16 ib. 93; Ashley v. Taylor, C. A., 38 
 L. T. 44. This has been pointed out as one of the functions of discovery 
 (v. ante, p. 2). 
 
 (n) See per Brett, L. J., 4 Q. B. D. 133. 
 
 (o) See Benbow v. Low, C. A. 16 Gh. D. 93 ; per Cotton, L. J. 3 Ex. D. 
 337. 
 
 (p) Johns V. James, 13 Ch. D. 370 ; Lyon v. Tioeddell, ib. 375. It seems, 
 however, from the explanation given by Jessei, M. R., in Benbow v. Low (p. 
 97), of the decision in Saunders v. Jones, that such an interrogatory should 
 only be allowed (1) in actions in the Chancery Division, and (2) where the 
 party is interrogated for other purposes, and that iu all other cases the infor- 
 mation should be obtained, as before, hy partieiilars not on oath (see Angus- 
 tinus V. Nerinckx, C. A., 16 Ch. D. 18). 
 
 (?) Per Lord Cottenham, L. C. 2 H. & T. 13. 
 
 (qq) Per James, L. J., 50 L. J. Ch. 36. 
 
OPPONENT'S OWN CASE OR TITLE. 37 
 
 material facts upon which, what may be called the sub- chap. iv. 
 siduary issues in the case, will be raised (r). Thus, in an ^^°*- ^- 
 action by a servant against his master for wrongful dismissal, 
 there being a general charge of misconduct in justification, 
 interrogatories were allowed as to the specific acts of mis- 
 conduct relied on (s), and, in an action for libel, as to the facts 
 intended to be relied on in support of a general defence of 
 justification (t). By this means information may be ob- Substance of 
 
 tained of the dates, particulars, and circumstances of the conTersations 
 
 • 1 • 1 1- 7 relied on. 
 
 matters alleged by a party m his pleadmgs, and the substance 
 
 of conversations, but not the details, (by which is rneant, not 
 that a man is not bound to stat^ what took, place at a 
 particular interview, or the substantial details of a conversa- 
 tion which took place, but that he is not to be compelled 
 under cover of interrogatories to disclose the evidence which 
 he intends to a,dduce at the trial) (u), nor the names and But not 
 addresses of those present at such conversations or inter- names and 
 views, and who will presumably be called by him as his witnesses, 
 witnesses (x), though it seems to be no objection per se that 
 the discovery sought would incidentally disclose the names of 
 the other party'si witnesses (y). In actions for infringement 
 of patents, discovery may be obtained by interrogatories of the 
 particulars of alleged prior user relied on by the defendant, 
 notwithstanding that there is a statutory provision for the 
 delivery of such particulars (z)y It is upon this principle. Amount of loss 
 apparently, that interrogatories are now allowed as to the °^ '^^^• 
 nature and extent of loss or dan;age sustained by th^ com,- 
 plainant (a), which were disallowed in the Common Law 
 Courts except where the question was simply as to the amount 
 of damages suffered^ and the defeiida,nt was desirous of paying 
 
 (r) See per Tliesiger, L. J., 38 L. T. 45. 
 
 Is) Saunders \. f(mes, C. A.,. TCh. D. 435, 446-. 
 
 {t) Gay V. Labo^chere, 4 Q. B, D. 206. Particulars of fraud, breaches of 
 covenant, and infringement have al\(;ays been obtainable in Common Law 
 a,ctions, and similar information may be obtained by means of interrogatories 
 in the Chancery Division, (see per James, L. J., 7 Ch. D. 449). 
 
 (u) Bade v. Jacobs, C. A., 3 Ex. t). 335, as explained by Cotton apd 
 Lindley, LL. JJ., in A. G. v. Qaskill, 20 Cb. t). 519, 529, 631; Hilla v. 
 WaXU, L. R. 9 C. p. 688. 
 
 (a;) Eaie v. Jacobs x Potter v. Metrop. By., 20 L, T. 231 ; Daw v. EUy, 2 
 H. & M. 725. See, however, per Bacon, V.-C, 13 Ch. D. 374. 
 
 (y) See Kuhliger v. Bailey, W. N., 1881, 165 ; Storey v. Lord Lennox, 1 Keen, 
 341, 1 Myl. & Cr. 625. 
 
 (z) Birch v. Mather, 22 Ch. D. 629 ; see 15 & 16 Vic. c. 83, s. 41 ; post, 
 p. 170. 
 
 (a) See Saunders v. Jmies, C. A. , 7 Ch. D. 4,35 ; Wilts Canc!,l Co. v., 
 Swindon Waterworks Co., 20 W. R. 353. 
 
38 
 
 LAW AND PEACTICE OF DISCOVEET. 
 
 CHAP. IV. money into court for the purpose of satisfying the plaintiff's 
 
 Sect. 3. claim and staying the action (6). 
 Discovery of It is no objection, if the discovery sought be material to 
 
 to'^^e o-Etot™ *^^ ^^^® °^ *^® P^'^^y seeking it, that the disclosure may at the 
 parties. same time incidentally reveal matters upon which the other 
 
 party relies in support of his case, as that which is common 
 to the case of both may be inquired into by either (c). " To 
 protect a defendant from the discovery or production of a 
 document, relating to the subject of dispute, it is not suffi- 
 cient that it should be evidence of his title, or contain 
 evidence that he intends and is entitled to use in support of 
 his case. It imay also he. of a similar character with regard 
 to the plaintiff's case, either in a directly affirmative 
 manner, or by exhibiting matter at variance with the 
 defence, or tending to impeach it " {d). Thus, in an action 
 for negligence against a surveyor or a solicitor, he may be 
 asked vjhat steps he took to discharge his duties, it being part 
 of the plaintiff's case to make out that he did not do his duty, 
 and of the defendant's that he did (e) ; and where the plaintiff 
 sued as the holder of a particular office, and the defence was 
 that he had not duly qualified himself by taking the necessary 
 oaths, interrogatories as to whether he had done so and under 
 what circumstances, were allowed (/). 
 
 Discovery may be obtained of matters tending to impeach 
 or destroy cm opponent's case, although the case set up by 
 the party Mmseff may be merely a negative one (g), provided 
 that case be definitely alleged in the pleadings (or by affi- 
 davit) and be one which, if established, would defeat his oppo- 
 nent's case (A). Thus, where the question was, as between the 
 Crown and the lord of a manor, whether a certain foreshore 
 
 Destroying 
 opponent's 
 case. 
 
 (6) fforne v. Sough, L. R. 9 C. f. 135 ; Dolson v. Richardson, ib. S Q B 
 778 ; Wright v. Goodlake, 34 L. J. Ex. 82 ; £'rost v. Brooke 32 L T 312 '• 
 Megaw v, M'Diarmid, 10 L, R. Ir. 376. • • . 
 
 (c) W. pi. 325, 344 ; see per Lor4 Campbell in WhateUy v. Growler 
 25 L. J. Q. B, 163, 167 {S. C. 5 E. & B. 709) ; Carew v. Davics, ib 165 • 
 Bolton V. Corp. of Liverpool, 1 Myl. & K. 91. ' 
 
 (d) Per Knight Bruce, V.-C, 1 Y. & Coll". Ch. 651 
 
 (e)Wh<ai.Uy -^ Grower, Carew y, Davies, mpra ; see also Turner v. 
 
 Qoulden, L. R. 9 C. P, 57 ; Marquw of Bute v. Lewis. "W W 1867 fi"; 
 
 (/) M'Mahon v. Ellis, 10 Ir. C. L. Rep. 120 ' ' 
 
 (sr) See Hoffmami r., Postill, L R. 4 Ch. App. 673; Commissioners of 
 
 Sewers v. Glasse, ib. 15 Eq, 302 ; W. pi. 342-3 ; A. O v Corr, nf 
 
 London, 2 Maon. & G. 247, 256 seq. , ^. u-. v. i^mp. of 
 
 (h) See per Lord Lyndhurst, L. C, 15 L. J. Ch. 84, 1 PhUl. 220 • Smith 
 V. Duke of Beaufort, 1 Ha. 507 ; 1 Phill. 209 ; per Pruce, v"c., 1 Y. & C 
 
OPPONENT'S OWN CASE OE TITLE. 39 
 
 was within the manor, production was, upon the application ohap. iv. 
 of the Crown, ordered of the court rolls of the manor, in — ^^°^' ^' — 
 order to show whether there was not an absence of entries of 
 admissions to the manor in respect of the foreshore (i) ; and, 
 in an information by the Crown claiming as such the soil of 
 the river Thames against the Corporation of London, claiming 
 as owners of the soil and also conservators of the river, an 
 interrogatory was allowed asking, " is it not true that no 
 charter or patent contains any grant of the soil, etc., to the 
 Coiyoration ? " (k). The common case of a defendant requiring 
 production of documents relating to the plaintiff's case, is very 
 different, it is said, from a case where a defendant comes 
 against a plaintiff and says, "You have documents in your 
 possession which disprove your own case " {I). Though the 
 plaintiff in an action for infringement of a patent, where the 
 novelty of the invention is denied, has no right to a discovery 
 of the particulars of the prior user relied upon by the defendant, 
 i.e., the particulars of his defence (m), when you come to the 
 case of a defendant asking questions of a plaintiff, it is a very 
 different thing. It is the defendant's business to destroy the 
 plaintiff's case, and there the defendant has a right to ask 
 all questions which are fairly calculated to show that the 
 patent is not a good patent, or that what he alleges to be an 
 infringement is not an infringement (n). The above remarks 
 must, however, be construed with reference to the par- 
 ticular case before the Court, for it is well established that 
 the rights of plaintiff and defendant to discovery are reci- 
 procal (o), and that a defendant is not any more than a plaintiff 
 entitled to see the evidence of his opponent's case (p). 
 
 Although a party is not entitled to a discovery of his Discovery in 
 opponent's case, except to the limited extent above men^ opponent's 
 tioned (g), yet he is entitled to a discovery not only in case. 
 support of his 07'iginal pri'md facie case, but also of his 
 answer to his opponent's case (r). "Nothing can be more 
 
 <i) A. G. V. Emerson, C. A., 10 Q, B. D, 191. 
 
 (A) A. G. V. Corp. of Zondon, 12Beav. 8 ; 2 Macn. & G. 247. 
 
 (I) See Boyd v. Petrie, 20 L. T. 934, per Selwyn, L. J. ; Smith v. Dttke of 
 BeaufoH, 1 Ha. 507, 1 Phill. 209. 
 
 (to) See Daw v. Eley, 2 H. & M. 725 ; per GifFard, L. J., L. R. 4 Ch. 
 App 681. But see post, p. 172, as to statutory particulars in such cases. 
 
 («') See Hoffman v. Postill, K R. 4 Ch. App. 673, 681 ; per Giffard, L. J. 
 
 (o) deeper LordRomilly, M. R.,42 L. J. Ch. 346. 
 
 (■p) V. ante, p. 33. 
 
 Iq) V. ante, p. 36. 
 
 (r) W. pi. 342 ; A. G. V. Lonoion Corporation, 2 Mapn. & G. 247. 
 
40 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. IV. clear," says Lord Cottenham, " from authority and universal 
 Sect. 3. practice, than that a plaintiff is entitled to discovery, not 
 only of that which constitutes his own original title, but that 
 he is also entitled to, a discovery for the purpose of re- 
 pelling what he ar^ticipates will be the defence " (s). In 
 such cases, the plaintiff does not call upon the defendant to 
 discover his own case or ^viderice, but maJces a specific case 
 of his owjh, and asks discovery, in opposition, it is true, to 
 the defence, but which beiiig addressed to the proof of a 
 case specifically made in the hill, is clearly distinguishable 
 in principle as well as fact, from a direct inquiry into his 
 opponent's case (f). Thus, a pla,intiff, in addition to dis- 
 covery of n^atters supporting his claim, is entitled to a 
 discovery of matters which support his reply (if the defence 
 be more than a simple denial of his case) (w), and the de- 
 fendant, in like manner, if the reply be more than such 
 simple joinder of issue, is entitled to discovery in support 
 of his rejoinder, and e^ch pa,rty is entitled, generally 
 speaking, to discovery from the other of matters as to which 
 the burden of proof rests upon him, but not of matters as 
 to which the burden of proof rests upon his opponent {x), 
 except to the extent of knowing generally what his case is. 
 Must be some It has been sa,id that the rule of protection is founded 
 set up! °^^° "P°^ *^® ^^<^* °f some title or case having been set up by 
 the objecting party, and does not apply to the case of a 
 defendant whose case is nierely a denial that the plaintiff 
 has any case at all, for that tbere must be some legal founda- 
 tion for his title befoi,-e a defendant is to be at liberty on 
 that ground to protect himself from discovery {y). 
 Fishing inter-. Interrogatories directed to destroy an opponent's case 
 objec^ionlwe, should be founded on specifiQ pointed allegations of clear 
 and unquestionable materiality (z), for discovery is given 
 to a party to assist him in proving a knovm case, and not to 
 
 (s) 2 Macn. & G. 256 ; see per Euight-JBruoe, V.-G., 1 Y & C Ch 651 • 
 per Bacon, V.-C, 7 Ch. D. 443 ; Bute v. Lewis, W. N. 1867, 66. ' ' 
 
 («) W. pl-. 11*. It must be a specijk averment and not a general charge (cf 
 fna 507 1 Phm 2rar * ^- ^ ^- ^^^' ^'*^ Smith v.: JMke of Beaufort, 
 
 (u) SeeBayley v. Griffiths, 1 H. & C. 529 ; Goodman v. Holroyd, 15 0. B. 
 
 (x) Sea per Jessel, M. R., 16 Ch. D. 95. 
 
 r, 1^' u- ^■;'-L^<»^ Corporation, 2 Macn. & G. 247, 265-6, per Lord 
 Cottenham, L. C. ' > .p -"uiu 
 
 (s) See;)cr Knight Bruce, T.-C, 15 Jiu-. 715 ; BoviU v. Smith, L. R. 2 Eq. 
 
OPPONENT'S 0"WN CASE OR TITLE. 41 
 
 assist him in a iiiUTe roving speculation, to see if he can^sA chap. rv. 
 out a case, or spy out flaws in his opponent's (a). To a ^°°*- ^- 
 certain extent, every interrogatory is a fishing interrogatory, 
 in this sense, that it seeks to ascertain whether one or more 
 facts, material or useful towards establishing a cause of 
 action or a defence, can be shown by the admission or testis 
 mony of the party interrogated. But there is another sense 
 in which the term is more properly applied — where a party, 
 vAthout shelving any probable reason for believing that he 
 has a cause of action, or a ground of defence, seeks to learn 
 his adversary's evidence, so that he may assail it, or seeks 
 information for the chance of discoveHng whether he has 
 some right, or has suffered some wrong, of vjhich as yet 
 he knows nothing (b). Thus, where interrogatories were 
 delivered by a defendant in an action of libel in support of 
 a plea of justification, Archibald, J., said, " The defendant 
 must know that the plaintiff has written the articles upon 
 which he seeks to justify, and not have to interrogate him 
 to discover it. That is fishing for a defence. The defend- 
 ant might ask, did you not in certain papers turite such 
 and such articles ? and not, what articles did you 
 write ? " (c). 
 
 Similarly, a party is not entitled to discovery of documents, Discoveiy of 
 merely for the purpose of ascertaiuing whether they contain '1°'=™™*^ "i"* 
 anything tending to disprove his opponent's case. If he does pick holes in 
 not claim anything positively or affirmatively under the docu^ ™' 
 ments in question, he cannot call for them merely because 
 they may, upon inspection, disclose some defect in his adver- 
 sary's case, and so help him and hurt his adversary, whose 
 title they are (d). In Bolton v. The Corporation of Liverpool, Bolton v. 
 the bill alleged generally, that, if the corporation would pro- Liver 'ooi™ °* 
 duce their own documents relating exclusively to their own 
 title, it would thereby appear that their case at law was un- 
 founded, that is, that the production of the documents of 
 the corporation would furnish evidence against themselves. 
 The defendant denied the allegation, and the Court decided 
 that where a defendant credibly denies the allegation upon 
 
 (a) W. pi. 203 ; P}iilipps\. P., C. A., 4 Q. B. D. 127 ; Hare, 186 ; Daw 
 V. EUy, 2 H. & M. 725 ; sue per Pigot, C. B., Ir. Eep. 5 C. L. 498. 
 («) Per Pigot, C. B., Ir. K. 2 C. L. 651. 
 
 (c) BiMhanan v. Tuylor, W. N. 1876, 73 ; see Goiirley v. PlimsoU, L. R. 
 8 C. P. 362 ; ;«/■ BramwoU, B. 11 L. T. 139. 
 
 (d) Sac Bolimi, v. Corporation of Liverpool, -i Sim. 467, 1 Myl. & K. 88, 
 
42 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. IV. which the plaintiff founds his title to a production of docu- 
 ^^°^- ^- ments relating exclusively to the defendant's case, the plain- 
 tiff has no right to call for an inspection of such documents 
 only for the purpose of seeing whether he can by such 
 inspection discover something which may invalidate the 
 defendant's case (e). Nor can a party be in a better position 
 in this respect only because he alleges a specific defect in his 
 opponent's case, and makes that specific defect his own case, 
 unless he can carry his case beyond his own allegation, where 
 denied (/). 
 Form in which The questions naturally suggest themselves: (1.) What 
 be^ciaimed." statement on the part of the party resisting production on 
 this ground is essential to the claim for protection, and (2.) 
 Whether such statement is in all cases to be accepted as 
 Rule laid down conclusive Or not. The rule upon both points was laid down 
 Bruoe'.'v.-'c. ^y Vice-Chancellor Knight-Bruce (g), and recently adopted 
 by the Court of Appeal Qi), in these terms : " If it be with 
 distinctness and positiveness stated in an answer that a par- 
 ticular document forms or supports the defendant's title, and 
 is intended to be, or may be, used by him in evidence 
 accordingly, and does not contain anything impeaching his 
 defence, or forming or supporting the plaintiff's title, or the 
 plaintiff's case (i), that document is, I conceive, protected 
 from production, unless the Court sees (k), upon the answer 
 itself, that the defendant erroneously misrepresents or mis- 
 conceives its nature (l). But where it is consistent with the 
 answer that the document may form the plaintiff's title, or 
 part of it, may contain matter supporting the plaintiff's 
 title, or the plaintiff's case, or may contain matter im- 
 peaching the defence (m), then, I apprehend, the document 
 
 (e) See per Wigram, V.-C, 1 Ha. 521 — 2 ; per Lord Lyndhurst, L. C, 
 1 PhiU. 220, 15 L. J. Ch. 84 (approving the decision). 
 
 (/) Beeper Wigram, V.-C, 1 Ha. 522. 
 
 (g) In Combe v. Corporation of London, 1 Y. & 0. CIi. 631, 651. 
 
 (A) A. O. V. Mnerson, C. A. , 52 L. J. Q. J3. 67 (10 Q. B. D. 191). The 
 rule though laid down with respect to answers, applies equally to affidavits 
 claiming protection for documents under the modern practice (see per Brett, 
 L. J., ib. 74, 
 
 (i) See the form iu Mimt v. Morgan, L. R. 8 Ch. App. 361, approved of by 
 James, L. J., in Corporation of Hastings v. Ivall, ib. 1017, 1021. 
 
 (k) I.e., is reasonably satig,fled or certain (see A. G. v. Hmerson). There 
 must be that degree of certainty which a man of reasonable care would, in the 
 ordinary course of things, act upon as a certainty (per Brett, L, J., ih. 73). 
 
 {I) I.e., as to its supporting his o.wn case and not supporting his opponent's 
 (ib.). See per Kindersley, V.-C, 6 W. R. 118; W. pi. 318 ; " 
 Hartley, Ixxiv Law Times, 208. 
 
 (m) As in Smith v. Vuke of Beaufort^ 1 Ha. 507, 1 PhiU. 209, 
 
OPPONENT'S 0"WN CASE OB TITLE. 43 
 
 is not protected ; nor, I apprehend, is it protected if the chap. iv. 
 character ascribed to it by the defendant is not averred by ^^°^- ^- 
 him with a reasonable and sufiScient degree of positiveness 
 and distinctness " (n). 
 
 The mere use of the word title — the mere allegation that 
 the documents relate exclusively to the defendant's title (o) 
 is of no avail to the defendant in resisting production, if 
 that conclusion be opposed by the obvious character of the 
 documents, or if it be not supported by specific averments 
 excluding all probability that the documents would furnish 
 evidence in support of the plaintiff's case (p). It may even 
 be a question, though the expression is in common use, what 
 a defendant in swearing to an answer understands by " the 
 plaintiff's case" (q). The claim of privilege will not be 
 allowed it it appear, on the face of the answer, that the 
 defendant has not himself inspected the documents (r) ; a 
 statement made entirely on the faith of information received 
 from other persons as to the documents is not sufficient to 
 protect them from production (s). It will be observed that 
 there are four allegations deemed important in order to 
 maintain a claim for protection, viz., (1.) That the document 
 swpports the defendant's {t) title ; (2.) That it is intended 
 to be, or may he used by him in evidence accordingly; 
 (3.) That it does not contain anything impeaching his 
 defevA^e ; or (4.) Forming or supporting the plaintiff's (t) 
 title or case. If these four states of circumstances co- 
 exist, then, it is said, the document is protected from pro- 
 duction, unless the Court sees upon the answer itself that 
 the defendant erroneously represents or misconceives its 
 nature (u). 
 
 The considerations by which the Court should be guided Whether oath 
 in determining upon the conclusiveness or otherwise of the eLdutive or 
 claim of privilege, when technically sufficient, are fully ex- not. 
 pressed in the judgments of the Lords Justices in the case 
 
 <n) SeeBannatynev. Leader, 10 Sim. 230. 
 
 (o) See per Kindersley, V.-C, 35 L. J. Ch. 401, 30 ib. 799. 
 
 (n ) Per Wigram, V.-C, i Ha. 185. See ^er Kindersley, V.-C, ubi smrra; 
 lyyell V. Kennedy, H. L., 52 L. J. Ch. 385, 8 App. Gas. 217. 
 
 (?) Seeder- Knight- Bruce, L. J., 8 De G. M. & G. 478. 
 
 (r) Manby v. Bevykhe (No. 3), 8 De G. M. & G. 476 ; see Corribe v. Corpora- 
 tion of London ; Gabbetty. Cavendish, 3 Swanst. 267, n. 
 
 (s) Per Knight- Bruce, L. J., 8 De G._ M. & G. 479. 
 
 (t) By " defendant ' ' and ' ' plaintiff ' ' are of course meant the parties seeking 
 and resisting pi-oduction respectively. 
 
 (M) 'deeper Baggallay, L. J., 52 L. J. Q. B. 70. 
 
44 LAW AND PRACTICE OP DISCOVEEY. 
 
 CHAP. IV. of the Attorney-General V. Emerson (x), ahove cited. Lord 
 ^^°^- ^- Justice Brett said : " If either from the description of the 
 
 Rule laid down documents, or from the answers with regard to the other 
 ' ' ' documents, or from an inspection of other documents which 
 have been produced without any objection being made (y), 
 or from any other admission in the course of the proceedings, 
 the whole of which are before the Judge or the Court, it can 
 be seen, with the certainty that I have before described, 
 that the defendant qannot be trusted when he swears in the 
 form I have described (z), then the Court will not give efifect to 
 the defendant's oath, but will act upon their own view 
 that the description of the documents given by the defendant 
 cannot be trusted. Where the documents are shown to be 
 of such a nature that the Court alone at the final hearing 
 can say that they will not assist the plaintiff's case, and 
 cannot negative the defendant's case, and where in the 
 opinion of the Court it is certain that the affidavit which has 
 been made cannot properly be met, the Court will act upon 
 the affidavit. But where the Court are certain in the sense 
 I have described {z.z), that the documents will assist the plain- 
 tiffs case, or negative the defendant's case, there they will 
 not act upon the affidavit. * * * Jf the nature of the 
 documents is shown to the Court to be such that the 
 Court can say with certainty that no person in the posi- 
 tion of the defendant can affirm or negative the parts which 
 he does affim or negative, then the affidavit cannot be 
 accepted by the Court as a satisfactory- affidavit. The 
 Court, unless they can, in the manner and to the extent 
 described, be certain that the document is of suet a character 
 that the defendant cannot properly swear to the effect to 
 which he is bound to swear, must trust the oath of the 
 defendant and refuse the order for production." And Lord 
 
 B^ggallay, L,J. Justice Baggallay said : " It appears to be clear from the pro- 
 position laid down by VicerChancellor Knight-Bruce, which 
 I am prepared to adopt as a guide, that it is the duty of a 
 Judge, if he finds a defendant's auswe^ iu such precise terms 
 as those pointed out by the Vice-Chancellor, to ascertain 
 whether, from a consideration of the whole case, he is satis- 
 
 {x) Ubi supra. See Ponsoriby v, Earthy, 0. A. (cited ante, p. xxxix). 
 (y) See Corporation of Hastings v. Ivall, L. E. 8 Ch. App. 1017 ; /m»cr, 
 Jjand Co. y. Mastcrman, 29 L. T. 559. "^ 
 
 (z) I.e., the form prescribed by Knight-Br^ce, V.-C. {atite, p. 42). 
 (zz) V. ante {Tc). 
 
OPPONENT'S OWN CASE OR TITLE. 45 
 
 fied that the defendant has en-oneously represented or mis- chap. iv. 
 conceived the nature of his case. In order to do that it is ^^°^- ^' 
 necessary to go into the whole of the answer, but I do not 
 depart from adopting the view which has been repeatedly 
 acted upon, that where there is nothing but the clear and 
 positive denial of the defendant, in some such terms as those 
 enunciated in Combe v. Corporation of London {a) ; there 
 the oath of the defendant must be accepted, and credit given 
 to it"(aa). Accordingly, in that case, the question being 
 between the Crown and the lord of the manor, whether a 
 certain foreshore was within the boundaries of the manor, 
 production was ordered of certain of the court rolls and 
 minute books of the manor, for which protection was fully 
 claimed by the defendant as relating solely to his own title, 
 it being admitted that they related to the matters in ques- 
 tion, and no objection having been made to the production of 
 earlier documents of precisely the same class (6). 
 
 The very nature of the dispute between the parties may Effect of 
 render it impossible to bind the one by the other's views of the te q^stiol'^f 
 character and effect of the documents in his possession (bb), law. 
 as where the question in dispute turns upon the very nature 
 or effect of the documents, as an inference of lata, in which 
 case conclusive effect cannot be given to the oath of the 
 party as to them (c). The case might be a complicated one 
 of title, and a man who is not a professional man might well 
 come to the conclusion that particular documents, according 
 to his view, would not in any way support his opponent's or 
 imperil his own title {d). 
 
 It is not in all cases necessary for the party to swear Denial of 
 absolutely that the documents do not support or tend to ^^'^™'°^, *° 
 support his opponent's case (e) ; a denial to the best of his case need not 
 knowledge, information, and belief will be sufficient, unless ^^ ^'^^°^'^^^- 
 there is, as in the case of Combe v. Corporation of Lon- 
 
 (a) XJU sujyra. 
 
 (aa) lb- 71. 
 
 \b) A. G. V. Emerson, C. A., 10 Q. B. D. 191. 
 
 (hb) Ferrier v. Atwool, 14 L. T. 278. See Hare, 279 ; ^. Q. v. Emerson, C. A. 
 
 (c) See Gresley v. Mousley, 2 K. & J. 288 ; Ponsonly v. Hartley, W. N. 
 1883, 13 ; per Lord Cranworth, V.-C, 1 Sim. N. S. 162. 
 
 (d) See per Baggalla.y, L. J., 52 L. J. Q. B. 71. It was probably with 
 reference to cases of this class that it has been said that the applicant has a 
 riaM to see the documents in order to judge for himself whether they support his 
 cZe or not (see per Wigram, V.-C, 1 Ha. 520 ; per Wood, V.-C, 2 J. & H. 
 323—4, 2 K. & J. 292 ; per Lord Cranworth, V.-C, 1 Sim. N. S. 161—2). 
 
 (e) Minet v. Morgan, L. R. 8 Ch. App. 361 (title-deeds), following Peile v., 
 Stoddart, 1 Macn. & G. 192. 
 
46 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. IV. don (/), something which qualifies the statement, or shows 
 ^^°*- ^- substantial insufficiency on the face of the affidavit (</). 
 
 Sect. 4. — Of the objection on the ground of injurious 
 consequences to the party giving discovery (a). 
 
 Sect. 4. This objection, which must be taken by the party himself 
 
 upon oath, in his answer or by affidavit (6), may be raised on 
 any of the following grounds : 
 1. Tendency I- That to give the discovery sought might criminate or 
 to self-cnmina- ^gnd to criminate the party giving it, or the husband or wife 
 of such party (c), i.e., bring him into the peril and possibility 
 of being convicted as a criminal (d). The Court should not 
 regard the form of words in which the privilege is claimed, 
 but should look to see whether answering would be likely to 
 have or probably would have such a tendency to criminate (e). 
 The existence of the alleged peril is the main question to be 
 considered, and it would be a great pity to lay down a par- 
 ticular form of words for declining to answer (/). Thus, in 
 an action for libel, an objection to answer interrogatories 
 directed to prove publication on the ground that the party 
 was " advised that they might tend to criminate " him was 
 upheld (g). 
 Court not The Court or Judge is not bound to accept the mere 
 
 g^jl^J.gjjjg^^f'^® statement of the party's own belief that his answer may 
 party. tend to criminate him, but is entitled to decide, whether 
 
 the question has really, or may fairly be considered, under 
 all the circumstances of the case, as having, that tendency. 
 In the parallel case of a witness, the law was thus laid down 
 in the case of Reg. v. Boyes (h), which was approved of and 
 
 (/) 1 Y. & C. Ch. 631, 15 L. J. Cli. 80. 
 
 {g) See per Lord Selborne, L. C, L. R. 8 Ch. App. 366. 
 
 (a) See Hare, part III., ch. i. ; Kerr, part I., ch. vi., ». 2. 
 
 (b) Webh V. East, 5 Ex. D. 23, 102 (C. A. ). 
 
 (c) W. pi. 130 ; Mitf. [130] ; Hare, 100 seq. ; Kerr, 149 seq. See also 
 Fisher r. Owen, C. A., 8 Ch. D. 645, 649 ; Allhiisen v. Lahouchere, C. A 
 3 Q. B. D. 654, 658 ; Webb v. East; Lamb v. Munsta; 10 O. B. D. 110 ' 
 
 (d) Per Field, J., 10 Q. B. D. 111. 
 
 (e) See per Field, J., ib. In the case of documents, their criminatory 
 character should be distinctly stated (Eoe v. N. Y. Ass.Press, ante p xxxvii) 
 
 (/) See per Stephen, J., 52 L. J. Q. B. 48 (s.c.) 
 
 {g) Lamb v. Munster, ubi supra. See M'Mahon v. Ellis, 10 Ir C L 
 Rep. 120. 
 
 {h) 1 B. & S. 311, 329 seq. "Where the liability is a mere question of law 
 the Court must determine it {He Mexican Co., 27 Beav. 474). ' ' 
 
TENDENCY TO CRIMINATE. 47 
 
 followed by the Court of Appeal in a recent case (i). " To chap. iv. 
 entitle a party called as a witness to the privilege of silence, ^^°*- '^- 
 the Court must see from the circumstances of the case, and the But must 
 nature of the evidence which the witness is called to give, fuffidencVof 
 that there is reasonable ground to apprehend danger to objection. 
 the witness from his being compelled to answer. We indeed 
 quite agree that, if the fact of the witness being in danger 
 be once viade to appear, great latitude should be allowed 
 him in judging for himself of the effect of any particular 
 question; there being no doubt, as observed by Baron 
 Alderson in Osborn v. London Dock Company (k), that a 
 question which might appear at first sight a very innocent 
 one, might, by affording a link in a chain of evidence, 
 become the means of bringing home an offence to the party 
 answering (Z). Subject to this reservation, a Judge is, in our 
 opinion, bound to insist on a witness answering, unless he is 
 satisfied that the answer will tend to place the witness in 
 peril." In such a case it becomes the duty of the Judge 
 to look at the nature and all circumstances of the case 
 and the effect of the question itself, to see whether it is 
 a question the answer to which will really tend to crimi- 
 nate the witness (m). If the party assigns a reason for not 
 answering which, in the opinion of the Court, will not crimi- 
 nate him, he will not be protected (n). A bare possibility of Danger muat 
 legal peril is not sufficient to entitle a party to protection, g^t^stantial 
 The danger to be apprehended must be real and appreci- 
 able with reference to the ordinary operation of law in the 
 ordinary course of things, and not a danger of an imaginary 
 and unsubstantial character, having reference to some 
 extraordinary and barely possible contingency, so improbable 
 that no reasonable man would suffer it to influence his 
 conduct (o) ; the question is. Is there practically any reason 
 to anticipate such a danger? (p). 
 
 (i) Bkc parte Reynolds, 20 Ch. D. 294. Where the question obviously 
 tends to criminate, as in an action for libel when the defendant is asked 
 whether he wrote the alleged libel, it is of course unnecessary to state any 
 grounds of objection (see Lamb v. Mutister). 
 
 (k) 10 Ex. 698, 701. 
 
 (?) MaccaUumv. Turton, 2 Y. & J. 183 ; Glynn v. Houston, 1 Keen, 329 ; 
 W. pi. 138. 
 
 (m) Per Field, J., in Lamb v. Munster, 10 Q. B. D. 111. 
 
 (n.) Scott V. Miller, Johns, 220 ; Ex parte Aston, 4 De G. & J. S20. 
 
 (o) Reg. V. Boyes, 1 B. & S.' 311, followed and approved in Ex parte 
 Reynolds, C. A., 20 Ch. D. 294. See Short v. Mercier, 3 Macn. & G. 205, 
 217 : Sidebottom v. Adkins, 3 Jur. N. S. 631. 
 
 (p) Per Cockburn, C. J., 1 B. & S. 326. 
 
48 
 
 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. IV. 
 Sect. 4. 
 
 Liability 
 under foreign 
 law. 
 
 2. Exposure to 
 penalty or 
 forfeiture. 
 
 Distinction 
 between for- 
 feiture and 
 conditional 
 limitation. 
 
 The protection applies equally whether the party is 
 amenable to the laws of a foreign country or to the laws 
 of this country, but in the former case a bare statement 
 of such liability without showing what the law in question 
 is, is not sufficient to protect the party from answering- ; it 
 must be shown what the law is, and that it is applicable to 
 the particular case {q). 
 
 It is no ground of objection, however, that the answer 
 might expose the person objecting to civil actions (r), or that 
 it might expose other persons (except it be the husband or 
 wife of the party) to criminal proceedings (s). 
 
 II. That it would expose the party to a 'penalty, by which 
 is meant a penalty strictly so called {t), as in the case of a 
 solicitor being struck off the rolls (^i), or a fine imposed for 
 an offence, and not merely something really equivalent to 
 liquidated damages, (as where a party has bound himself by a 
 penalty not to do a particular act) (x), or a forfeiture of a penal 
 nature {y), i.e., the violent and premature determination of a 
 lawfully existing estate or interest, not the mere determina- 
 tion by a limitation to that effect {z), or the loss of a sum 
 of money (a), unless as a fine on conviction for an offence {aa). 
 There is a fine but well established distinction in this respect 
 between cases where a certain estate is given to an individual, 
 but with a condition annexed, that upon the happening of a 
 certain event there shall be a forfeiture of the estate so given, 
 and those, where the estate is so limited as only to endure 
 till a certain event occurs, and then to go over, commonly 
 called " conditional limitations " (6), for a man has no right 
 to say " Although my estate has determined in consequence of 
 
 C?) See the judgment of Lord Chelmsford, L. C, in IT. S. v. McRae, L. R., 
 3 Ch., App. 79, 8i seq. (distinguishing and explaining the case of King of 
 Two Sicilies v. Wilcox, 1 Sim. N. S. 301) ; Heriz v. Kiera, 11 Sim. 318. 
 
 (r) Tetley v. Easton, 18 0. B. 643 ; Murray v. Clayton, L. R. 15 Eq ' 115 
 119 ; see 46 Geo. 3, c. 87. ' i . 
 
 (s) McGorquodale v. Bell, W. N. 1876, 39; King of Two Sicilies v. 
 Wilcox, supra. 
 
 (t) W. pi. 131 ; Hare, 100 seq. ; The Mary, L. R. 2 A. & E. 319 : see 46 
 Geo. 3, c. 37. 
 
 (m) See Nelme v. Newton, 2 Y & J. 186 n.; Scott v. Miller, John. 328. 
 
 {x) See French v. JUacaie, 2 Dr. & War. 269. 
 
 (y) Jones v. &reen, 3 Y. & J. 298 ; U. S. v. M'Sae, L. R. 3 Ch. App. 79 
 
 (2) Pye V. Butterfwld, 5 B. & S. 829 ; Hare, 118 seq.; Hurst v ZT 30 
 L. T. 698. See A. G. v. Liicas, 2 Ha. 566. '' 
 
 (a) See Sloman v. Kelly, 4 Y. & C. 169. 
 
 [aa] See Eemmings v. Williamson, 10 Q. B. D. 459 (statutory penalty) 
 
 (6) Per Kiudersley, V.-C, in Eambrookv. Smith, 17 Sim. 209, 216 seq. 
 
LIABILITY TO PENALTY OR FOEFEITTTEE. 49 
 
 the act, I have a right to refuse the disclosure whether my chap. iv. 
 estate has determined " (c). ^^°*- •*■ 
 
 Liability to a penalty or forfeiture imposed by the law of a Liability by 
 foreign country is a sufficient ground of objection, provided *°™^'^ ^^^' 
 satisfactory evidence be given of the existence of such law 
 and its applicability to the case in question (d). It is no 
 ground of objection, however, that the disclosure may expose 
 the party to pecuniary loss or liability (e). 
 
 Until the doubts recently expressed by the Master of the Sembie, ground 
 Rolls and Lords Justices Baggallay and Cotton in a recent ^^/jfee'dMu-" 
 case before them (/), the privilege appears to have been un- ments. 
 questionably considered as equally applicable to the case of 
 production of documents (g); on principle, there should be 
 exactly the same privilege in the one case as the other, 
 seeing that applications for production are analogous to ex- 
 ceptions to an answer, so that a party cannot be compelled to 
 produce any document which he could not have been com- 
 pelled to set out in his answer Qi), and it is upon this very 
 ground that Sir James Wigram bases the existence of the 
 privilege (i). 
 
 In any of the above cases, if the reason for allowing the Where liability 
 protection has ceased, as by the expiration of the time in igge ceases!" 
 which criminal proceedings can be taken {k), or by the grant- 
 ing of a pardon to the offender (J,), or where the party seeking 
 the discovery is able and willing to waive the penalty or for- 
 feiture and expressly offers to do so (m), or where the object- 
 
 (c) n,. 
 
 (d) King of Two Sicilies V. Wilcox, supra; U. S. v. McRae, L. E. 3 Ch, 
 App. 79 ; V. ante, {q). 
 
 («) See 46 Geo. III., c. 37. 
 
 (/) Webb V. Mast, C. A., 5 Ex. D. 108. 
 
 {g) See "W. pi. 290 ; Parkhurst v. Lowten, 1 Mer. 391, 2 Swanst. 194, 
 213 ; Nelme v. Newton, 2 Y. & J. 186 n.; Mwing v. Osbaldiston, 6 Sim. 
 608 ; Rice v. Gordon, 13 ib. 580 ; King of Two Sicilies v. Wilcox, 1 Sim. 
 N". S. 331. See also Mitchell v. Koedcer, 18 L. J. Ch. 294, and Robinson 
 V. Kitchen, 21 Beav. 365 (where answers as to documents were refused on the 
 ground of liability to penalties). The authorities at Common Law, of which 
 Hill V. Campbell, L. B. 10 C. P. 222, is the latest, are designedly omitted. 
 With the exception of Taylor on Evidence, (ed. 7), 1464, 1793 (who slales 
 the proposition with a query, referring to Reg. v. Leatham, 6 Cox, 501, 
 3 E. & E. 658), there is a consensus of opinion in support of the privilege, 
 though the cases cited as authorities are not always well chosen (see Eoscoe, 
 Ev. 154 ; Best, Ev. s. 216 ; Greenleaf, Ev. s. 300 ; Daniel, 1695 ; Hare, 105 ; 
 Steph. Dig. Ev., art. 118). See Roe v. N. Y. Ass. Press, ante, p. xxxvii. 
 
 (A) See W. pi. 290. 
 
 (i) Ib. 
 
 (h) Hare, 120 seq.; W. pi. 142 ; Tayl. Ev. § 1458. 
 
 (I) Reg. V. Boyes, 1 B. & S. 311. 
 
 (m) W, pi. 140—1 ; Hare, 110 seq.; see per "Wood, V.-C, L, B. 4 E'^j. 334, 
 338—9. 
 
50 
 
 LAW AND PRACTICE OF DISCOYEKT. 
 
 Waiver. 
 
 Statutory 
 exceptions. 
 
 CHAP. IV. ing party has, by the effect of his own acts, excluded himself 
 Sect. 4. fcom the benefit of the rule, or, as it is said, " contracted him- 
 self out of the protection " (n), or estopped himself from 
 taking the objection (o), the protection will cease also aad the 
 
 Party estopped party will be bound to give the discovery sought. Thus, it 
 
 theoWwtlm ^^^ ^®^^ *^^* ^ ™^^> '"'^° ^^^ ^^^^ himself out as a sworn 
 broker of the City of London, could not refuse discovery to 
 his principal of his dealings and transactions on the ground 
 that it might subject him to penalties for having acted as a 
 broker without being duly admitted as such, the ground of 
 the decision being that a man is bound to make good his 
 express or implied representations (p). It is, of course, open 
 to the party to waive this, as well as any other ground of 
 protection (q), but where it is claimed for a document, it is no 
 answer to show that it was waived on a previous occasion (r). 
 
 Again, in certain cases, the Legislature has, on grounds 
 of public policy, deprived individuals or a class of indivi- 
 duals of the privilege of silence, with or without any indem- 
 nity for any evil consequences entailed by its removal (s), 
 e.g., in the case of printers, publishers, and proprietors of 
 newspapers, who are bound to divulge the nature of their 
 connection therewith, while shielded from the consequences 
 of such discovery (i). It is, of course, open to the party 
 seeking the discovery to prove the facts aliunde (u), or to 
 give secondary evidence of the documents withheld (x). 
 
 The party required to answer may refuse to answer further, 
 although what he has already disclosed may be ample evidence 
 to convict him {y). No unfavourable inference .should be 
 drawn from the refusal to answer ; it is obvious, however, 
 that such a course is likely to be very prejudicial to the party 
 before a jury (z). 
 
 (») Per Hart, V.-C, Green v. Weaver, 1 Sim. 404, 427 sea ; per Romillv 
 M. R., 21 Beav. 370. ■' 
 
 (o) See Robiiison v. Kitchen, 21 Beav. 365 ; S. C 8 De G. M & G 88 • 
 Hare 111, seq.; W. pi. 143. ' ' 
 
 (^p) Robinson v. Kitchen, ubi supra. 
 
 \q) See Gary v. Cutlibert, Ir. Rep., 6 Eq. 559. 
 
 (r) V. post, p. 52 (p). 
 
 (s) See Hare, 108 seq., and eases there cited ; Tayl. Ev., § 1455 ■ Beg v 
 Scott, 25 L. J. Mag. 128; Ex parte Schofleld, C. A., 6 Ch. D. 230 
 (examination of bankrupts) ; 24 & 25 Vict u. 96, s. 85. 
 
 (i!) By 6 & 7 "WiU. IV. c. 76, s. 19, as re-enacted by 32 & 33 Viet c. 24; 
 see Dixon v. Enwch, L. R. 13 Eq. 394 ; Bawdier v. Allen, 39 L. J. C. P. 217 • 
 Bamsden v. BrearUy, 33 L. T. 322 ; Lcfroy v. Bumside, 4 Ir. L. R. 340. ' 
 
 (u) See Mitchell v. Koecker, 12 Beav. 44. 
 
 [x) deeper Lord Eldon, L. C, 2 Swanst. 213. 
 
 Oy) See Beg. v. Oarbelt, 2 C. & R. 474 ; Cooke v. Turner, 14 Sim. 218. 
 
 (s) The decision of the C. A. in Fisher v. Oiuen (8 Ch. D. 645) has been 
 objected to on this ground (seeyej- Field, J., 52 L. J. Q. B. 47). 
 
PROFESSIONAL CONFIDENCE. 51 
 
 Sect. 5. — Of the objection on the ground of professional 
 privilege (a). 
 
 On grounds of necessity and public policy (b), confidential chap. iv. 
 communications between a client and his professional legal ^^°^- ^- 
 adviser (c) are protected from disclosure by discovery or other- Commumca- 
 wise (d). By " legal advisers " are meant professional legal legai adtTser" 
 advisers, that is, barristers, solicitors, and their clerks, whether ^'i ^^^"^ 
 belonging to the courts of this or a foreign country, e.g., a privilegTd. 
 Scotch solicitor and law agent practising in this country (e), 
 and all recognised and usual intermediate agents between 
 them and their clients (/). " The principle is established that 
 whei-e a person has occasion to employ a solicitor, and the 
 solicitor, in order to enable himself to advise on the matter, 
 calls in some person to assist him and to give his opinion, 
 such communications are as much privileged as if they came 
 from the solicitor himself. In such a case the person called 
 in * * * is pro hdc vice the solicitor's clerk " (g). In the 
 Court of Chancery the privilege has been held to apply to 
 communications with a person who, unknown to the client, 
 had ceased to practise as a solicitor at the time when they 
 were made, and the same would probably be held now (h). 
 The privilege is that of the client, not of the legal adviser (i), Privilege 
 and it is the duty of the latter to claim it on his client's ^^1°^^^ *" 
 
 (a) See Hare, part iii., ch. iii., ss. 1-2 ; Kerr, part i., ch. vi., s. 1 ; Steph. 
 Ev., art. 115. 
 
 (6) See per Turner, V.-C, 9 Ha. 387, 390 ; per Jessel, M. R., 2 Ch. D. 
 648 seq. ; per Cotton, L. J., 3 Q. B. D. 621 seq. 
 
 (c) That the privilege is confined to legal advisers, see per Jessel, M. R. , 
 2 Ch. D. 650—1 ; 17 ib. 681—2 ; Slade v. Tucker, 14 ib. 824 ; Steph. 
 Dig. Ev. 171. 
 
 {d) The fuUest and latest erpositions of the law upon this subject are con- 
 tained in the cases of Anderson v. Bank of British Columbia, 2 Ch. D. 644 ; 
 Bustros V. White, 42 L. J. Q. B. 642 ; Southwark Water Co. v. Quick, 3 
 Q. B. D. 315 ; Wheeler v. Le Marchant, 17 Ch. D. 675, and Kennedy v. Lyell 
 (cited ante, p. xxxv. ), decided by the Court of Appeal. 
 
 («) Lawrence v. Campbell, 4 Drew, 485 ; Banbury v. B., 2 Beav. 173. That 
 t'ke friendly opinion of a lawyer is not privileged, see Smith v. Daniell, 
 L. R. 18 Eq. 649 ; Hampson v. B., 26 L. J. Ch. 612. 
 
 (/) Steph. Dig. Ev., art. 115 ; Tayl. Ev., s. 911, 920 ; Slade v. Tucker, 
 14 Ch. D. 824 ; Hooper v. Gumm, 2 J. & H. 602. 
 
 (g) See i^er Wood, V.-C, Walshamy. Stainton, 2 H. & M. 1, 5 (account- 
 ant) ; Chwrton v. Frewen, 2 Dr. & Sm. 390 (interpreter). Before litigation 
 or dispute it is otherwise (v. post, p. 56). 
 
 (h) Calley v. Richards, 19 Beav. 401 ; see per Bacon, V.-C, L. R. 
 18 Eq. 654. 
 
 (i) See per Jessel, M. R., 2 Ch. D. 649 ; Reg. v. Kinglake, 11 Cox, 
 C. C. 499. 
 
 E 2 
 
52 
 
 LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. IV. behalf. 
 Sect. 5. 
 
 Dniation of 
 privilege. 
 
 It may, therefore, be waived by the client, either 
 expressly or by conduct (Jc) ; thus, the right of protection for 
 
 Maybewaiv«d. documents may be lost by setting them out in pleadings or 
 affidavits (?), and where a corporation elected to answer by 
 their town clerk, who was also their solicitor, they were held 
 to have thereby waived their privilege and precluded them- 
 selves and him on their behalf from claiming it (m) ; but the 
 privilege is not waived by the mere fact of the solicitor 
 making an affidavit in the action in support of his client's 
 claim, if it do not contain statements as to the matters con- 
 tended to be privileged {n) or by having previously furnished 
 the opposite party with a copy or a statement of the effect of 
 a privileged document (o), and it is no answer to such claim 
 when set up to show that it has been waived on a previous 
 occasion {p). 
 
 As regards its duration, the nile is " once privileged 
 always privileged." The mouth of the attorney, with respect 
 to privileged communications, is closed for ever, unless 
 he has the permission of his client (whose privilege it is) 
 to speak ; and it is immaterial whether the client be a 
 party to the suit or not (g). Unless the client waives the 
 benefit of it. Courts of justice are bound to consider such 
 communications as if they never had been made (r). It is 
 not affected by the death of the client (s), but follows the legal 
 interest and enures for the benefit of those claiming under 
 him {t), and may, apparently, be set up by the legal repre- 
 sentatives of a deceased legal adviser (u). 
 
 The first and most obvious class of privileged communica- 
 
 cUentlnd kg£d *i°°^ consists of communications between the client himself 
 and the legal adviser. In this case, the privilege is not con- 
 fined to communications when made either during an actual 
 
 (k) See Blenkinsopp v. B., 17 L. J. Ch. 343, where the client waived the 
 privilege on the application for production. 
 
 (J) See Momington v. M., 2 J. & H. 697 ; M'Intosh v. G W R ] Mpfn 
 & G. 73 ; Drake v. Symes, John. 647. ' ' 
 
 (m) Mayor of Swamea v. Quirk, 5 C. P. D. 1 06. 
 
 (») Turton v. Barber, L. fi. 17 Eq. 329. See Seg. v. Levison, 11 Cox 
 C O. 152. 
 
 (o) Carey v. Ouihbert, I. R. 6 Eq. 599. 
 
 {p ) Underwood v. Secretary for India, 35 L. J. Ch 345 
 
 (?) Fer Wigram, V.-C. ; 7 Ha. 86 ; Taylor, Ev., a. 927. 
 
 (r) Per Wigram, V. -C. , ih, 
 
 (s) Ihmell V. Jackson, 9 Ha. 387 ; Chant v. Brown. 7 ih 7q • Q ih lan . 
 per Stuart, V.-C, 4 Giff. 380. ' "•'».» ^O- /■ 90, 
 
 (t) See as to the course of devolution of the privileee ver Turnpr v r 
 9 Ha. 393 seq. ; Fm-d v. De Pontes, 5 Jur. N. S. 993. ■'■"iner, v.-o., 
 
 (ii) i^eeper Lord Eldon, L. C, 1 Mer. 114. 
 
 L Communi- 
 
 adviser. 
 
PEOFESSIONAL CONFIDENCE. 53 
 
 or in . anticipation of an apprehended litigation concerning chap. iv. 
 the subject to which they relate (x). It is suf3B.cient if they ^^°*- ^- 
 pass as professional communicatioTis in a professional 
 capacity {y) with no reference to any particular litigation, 
 and without any other reference to litigation generally than 
 all human affairs have, in so. far as every transaction may, by 
 possibUity, become the subject of inquiry (a). " As I under- 
 derstand it," said Pearson, J., in a recent case (a), "the doc- 
 trine of privilege is now extended to all communications from 
 a client to his solicitor in his professional capacity." 
 
 The rule is, however, subject to the following limitations : l. Must be 
 1. The legal adviser's knowledge of the matter of which dis- tim^^t'fect 
 covery is sought must have been in some sense acquired as the witnessed. 
 result of a coTrbmunicatian, for the privilege does not extend 
 to mere collateral facts, things done, which the legal adviser 
 knows by any other means than confidential communication 
 with his client, though, if he had not been employed as such, 
 he probably woald not have known them (6). Thus, he may 
 prove the client's swearing to the truth of an answer or affir 
 davit, and his baadwidting, by seeing it in documents pre- 
 pared by him in the name- of his employer ; in thje same way 
 he may prove the fact that a. particular document is then- in 
 his possession and in court, for this is not a fact profes- 
 sionally communicated to him (<;), or the state of a particular 
 document at a particular time, for this is matter of ohservo/- 
 tion merely, of which any other person who saw it -VROiild be 
 
 (x) That this was 50, where the legal' adviser, was tl^e party from whpm the 
 discovery was sought, was long since settled (see ^er Wigram, V.-C, 3 Bta^ 
 124), but in the case of the client the rule long fluctuated and the privilege 
 was not definitely settled upon its present footing until the decision of the 
 Court of Appeal in Chancery in Minet v. Morgan, L. R. 8 Ch. App. 361 (see 
 »«r HaU, V.-C-, ih 17. Eq.. 331, 3,nd,per Brett, L.J., 34_L. T. 632), whichhas 
 since been followed in Turton v. Barber, L. R. 17' Eq. 329 ; JSacon v. £.^ 
 '34 L. T. 349 ; Mostyn v. West M. Co., ib. 531 ; Eadie v. Anderson, 47 L. T. 
 543 ; see also Boyd v. Petrie, 20 i6., 935. 
 
 («) See ^er Kindersley, V.-C, 1 Dr. & Sm. 3^7, 4t Drew^ 49D,. cited with 
 approval by Loj-d Selbqme, L. C, in Minet v. iforga/n, swp-a ; per Jessel, 
 M. R., 18 Ch. D. 682 ; Herring v. Clobexy, 1 PhUL 91 ; Carpviael v. Powis, 
 
 (2) See per Lord Brougljam, L. Ci, 1 Myl. & K, 102 ; per Gifiard, L. J., 20 
 L T. 935 ; per Wood, V.-C, 1 K. & J., 459 seq. 
 
 (a) Eadie v. Addison, 47 L. T. 543, 644 ; see per Bacon, V.-C, 34 L. T. 
 350 ; see, however, Hartlepool Coll. Co. v. Moon, C. A., 35 L. T. 685. 
 
 (b) See per Cur. Dwyer v. Collins, 7 Ex. 639,646 ; Samyer v. Birchmm-e, 3 
 Myl. & K. 572 ; Desborough v. Rawlins, 3 Myl. & Cr. 515. 
 
 (c) lb. See Bonner v. Jackson, 1 De G. & Sm. 472 (solicitor bound to 
 state to whom and for what purpose he parted with client's documents, and. 
 wher^ they now are). 
 
54 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. IV. equally cognizant (<i). What a solicitor is privileged from 
 ^^°*- ^- disclosing is that which is communicated sub sigillo confea- 
 sionis, that is to say, some fact which the client communicates 
 for the purpose of obtaining the solicitor's professional advice 
 and assistance (e). Thus, a solicitor's knowledge of his client's 
 residence, even though he knows it simply in consequence of 
 the professional business in which he has been acting for hira, 
 is not on that ground alone a matter of confession, so as to 
 be in the nature of a privileged or confidential communica- 
 tion. He may know it as a mere collateral fact, incidentally 
 learned by him, or, on the other hand, it may have been com- 
 municated confidentially as his client's hiding place (/). 
 
 2. From client 2. The matter of which discovery is sought to be withheld 
 s ranger. -^^ ^^^ legal adviser must have been communicated to him 
 
 directly or indirectly, by the client hi/mself, and not 
 merely acquired by him during and by virtue of the profes- 
 sional employment and in his character of legal adviser (g). 
 He is bound to disclose information communicated to him 
 from collateral quarters (h), and the mere fact of a client 
 having made a confidential communication to his solicitor 
 does not protect the solicitor from giving discovery, if he 
 had acquired the same knowledge before or after such confiden- 
 tial communication, under such circumstances that he would 
 be bound to discover it. The mere fact that a solicitor has con- 
 fidential communications made to him does not merge the 
 other sources of information (i). Nor, again, can a party, 
 who is liable to give discovery at the suit of another, by 
 communicating the matter of such discovery to his solicitor, 
 for the pui-pose of getting his advice, on that ground alone 
 excuse himself from giving the discovery which he would 
 otherwise have been bound to give (k). 
 
 3. In ordinary 3. It must have been made touching matter which came 
 
 (d) See Brovm v. Foster, 1 H. & N. 736. The presence of a stranger is 
 fatal to the privilege (Eeg. v. Levison, 11 Cox, 153). See, as to the distinction 
 between confidential communications and those of facts patent to the senses 
 Kennedy v. Lyell, C. A., 48 L. T. 455. 
 
 (e) Per James, L. J., Ex parte Campbell, L, E. 5 Ch. Ann 703 705 
 (/) li. See Seatt, v. Crealoch, L. B. 15 Eq, 267 ' 
 
 (g) Marsh v. Keith, 1 Dr. & Sm. 342 ; Thomus v. BawUngs, 27 Beav 140 • 
 Ford V. Tennant (No, 2), 32 ii, 162; Besborough v. Rawlins 3 Mvl 
 & Cr. 515. •' ■ 
 
 (h) Sawyer v Birckmore, 3 Myl. & K. 572 ; Desbo,-ough v. Sawlins, 3 Mvl 
 & Cr. 515 ; Ford v. Tennant, 32 Beav. 162 ; Gore v. Bowser! 5 De 
 G. & Sm. 30. 
 
 (i) Lr.wis V. Pennivgton, 29 L. J, Ch. 670, 672, per Romilly M R 
 
 (k) Beeper Wigram, V.-C, 7 Ha. 86 ; per Wood, V.-C, 1 K. & J.' 454. 
 
PROFESSIONAL CONFIDENCE. 65 
 
 ivithin the ordinary scope of professional employment (l), chap. iv. 
 no privilege, therefore, can be claimed for unnecessary (11) ®®°*- ^ 
 
 communications, or those made in furtherance of any criminal, course of legiti- 
 illegal, or fraudulent purpose (m), or the committal of a 
 contempt of the authority of the Court {n). The true test Test of legiti- 
 in such cases, whether the communication is privileged or^ygn" ^ """' 
 not, is whether the transaction as stated is one on which it 
 was perfectly lawful for the client to ask, and for the solicitor 
 to give legal advice (o), or whether on the face of the plead- 
 ings, it appears to be illegal or fraudulent (as was the case 
 in Reynell v. Sprye) (p) ; and the fraud or illegality must be 
 alleged to exist with reference to that part of the case to 
 which the documents in dispute relate, or as to which the dis- 
 covery is sought, and not with reference to matters entirely 
 collateral to the communications with the legal adviser (q). 
 
 4. The privilege can only be set up. as against strangers Privilege can 
 and not as against persons upon whose behalf, no less than "p against 
 on behalf of the party himself, the legal adviser was jointly strangers. 
 consulted or employed (s), for in such a case thei-e would be 
 exactly the same professional confidence with the one as with 
 
 the other (t). Thus, all cases submitted and opinions taken 
 by a trustee to guide himself in the adminstration ef his 
 trust, and not for the purpose of his o.wn defence in any liti- 
 gation against himself (by the cestuis que trustenf) (w) must 
 be produced to the cestuis que truest, as they are taken for the 
 purpose of the administration of the trust, and for the benefit 
 of the persons, entitled to the trust estate, who will ha.ve to, 
 pay the expense thereby incurred (x). 
 
 5. The privilege applies to cases of confiiGt between the Not applicable 
 
 o J, J, to.casecf testa- 
 
 (Z) See per Lord Brougham, L. C, 1 Myl. & K. l,02;,^6r Lord tyndhusstj 
 L. C, 1 PMll. 687. 
 
 ill) See CaMbeck v. Borni, Ir. K. 7 C. L. 32. 
 
 (m) Follat V. Jefferyes, 1 Sim. N. S. 1 ; Charltm v. C(mi(s, k ©iff. 372 ; 
 Gartside. v. Outram, 26 L. J. Ch.. 115 ; aee j36r Turner,, Y.-C, 9, Ha. 392. 
 
 (n) Bamsholham v. Senior,, L. R. 8 Eq. 575. 
 
 (o) Per Lojjd Crajiworth, V.-C, X Sim,' N. S.. 16 ; see Charlton v. Coomhes, 
 supra. 
 
 (p) 10 Beav. 51 ; 11 ib. 618. See Kdly v. Jackson, 13 Ir. Eq. R. 129. 
 
 Iq) Morningtm v. 31., 2 J. & H. 697 ; Charlton y. Coomles, 4 Giff. 372. 
 
 is) See Wards v. W.^ 3 M*3n. & G. 365 ; Porpi v. De Pontes, 7 W. R. 299 
 (solicitor employed by husband and wife). 
 
 (t) Per Lord Cranworth, Y.-C, 1 Sim. N. S. 27. 
 
 (m) See Broun v. OaTcshott, 12 Beav. 252 ; Talbot v. Marshfield,^ 2 Dr. & 
 Sm. 549 ; Bacon v. B., 34 L. T. 349. 
 
 {3-) See per Romilly, M. R., Wynne v. Hamberston, 27 Beav. 421, 423—4 ; 
 Devaynes v. Robinson, 20 ib. 42 ; Talbot v. Marshfield, 2 Dr.. & Siji. 549 ; 
 Mason y. Gattley, 22 Ch. D. 609 ; Woods v. W., i Ha. 83,. 
 
56 LAW AND PRACTICE OP DISCOVERT. 
 
 ■ CHAP. IV. client or those claiming under him and third persons, but not 
 ^^°^- ^- to the case of testamentary dispositions by the client (the 
 mentary dis- disclosure of which can affect no right or interest of his) as 
 cUent™^ " between different parties, all of whom claim under him, e.g., 
 as between the executors and the next of kin (y). Where 
 the question arises as between two parties claiming equally 
 under the client, it would be arbitrary to hold that it 
 belongs to one of them rather than to the other {£). 
 Communioa- The rule extends not merely to a communication madeto the 
 
 agents for"«im- professional agent himself by the client directly, it goes to all 
 munioation. communications made by the client to the solicitor through 
 intermediate agents, and he is not bound to write letters 
 through the post, or to go himself personally to see the 
 solicitor ; he may employ a third person to write the letter, 
 br 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 (a). The agent must, however, be employed on 
 the part of the client to obtain the legal advice or assistance, 
 in which case he stands in exactly the same position as the 
 client as regards protection, and not a mere general agent or 
 representative, e.g., a surveyor (6). Information given and 
 documents communicated to the solicitors by third parties, 
 not as agents of the clients seeking advice, are not protected, 
 because they contain information required or asked for by 
 the solicitor for the purpose of enabling him the better to 
 advise the client (c). The cases, no doubt, establish that such 
 documents are protected where they have come into existence 
 after litigation commenced or in contemplation, and when 
 they have been made vA,th a view to such litigation (d), 
 either for the purpose of obtaining advice as to such litigation, 
 or of obtaining evidence to be used in such litigation, or of ob- 
 taining information which might lead to the obtaining of such 
 evidence, but it has never hitherto been decided that docu- 
 ments are protected merely because they are produced by a 
 third person in answer to an inquiry made by the solicitor (e). 
 tion drtZed '^^® ^^^°^^ '^^^^ °^ privileged communications comprises 
 
 {y) Russell v. Jackson, 9 Ha. 387. 
 (z) See ^e?- Turner, V.-C., ib. 393., 
 
 H ^602^"' ■^^''*^' ^' ^" ^ ^^' "■ ^*^ ■ ^^ **' ^^^ ' ■^'"'•P^'' ^' ^'^™' 2 J. & 
 (6) Wheeler v. Le Marchant, C. A., 17 *, 675, 684, per Cotton, h. J. 
 (c) Ib. See Original Hartlepool Coll, v. Moon, 30 L T 585 
 id) See M'Corquodale v. Bell, 1 C. P. P. 471, post, p 57 
 (0 Per Jessel, M. R., 17 Ch. D. 681, * 
 
PEOFESSIONAL CONFIDENCE. ~ 57 
 
 information obtained and documents prepared during an chap. iv. 
 actual or in contemplation of an anticipated litigation and for ^"°^- ^- 
 the purposes thereof, either (1) by the solicitor hiTuself and his for purposes of 
 agents, or (2) by the client or his agents at the request and ^^^ *'*'s=^'""'- 
 by the directions of the solicitor, or (3) by the client or his 
 agents, without any previous request by the solicitor, but for 
 the purpose of being laid before him for his advice or con- 
 sideration (/). such information and documents being sub- 
 stantially rough notes for the case to be laid before the legal 
 adviser, or to supply the proof to be inserted in the brief, 
 in other words " materials for the brief" (g), which the oppo- 
 nent has no more right to see than the brief itself (K). In 
 order to be privileged, such documents must be in some way 
 connected with the solicitor and the conduct of the litiga- 
 tion; they must be in some sense his work and not indepen- 
 dent communications with third persons (i) ; they must have 
 been specially created, either by him directly or indirectly, 
 or for communication to him (k). 
 
 The most obvious form of privilege is when any litigant sends By solicitor 
 either directly or indirectly to his solicitor a document for the ™^ ' 
 purpose of obtaining his advice, or for the purpose of enabling 
 him to institute or defend an action (I). Again, the solicitor's 
 acts must be protected for the sake of the client. The solicitor 
 requires further information, and says, " I will obtain it from a 
 third person." That is confidential. It is obtained by him as 
 solicitor for the purpose of the litigation, and it must be pro- 
 tected on the same ground, otherwise it would be dangerous, if 
 not impossible, to employ a solicitor (m). You cannot ask 
 him [or the client] (n) what the information he obtained 
 was (nn). There is anothei- class of cases, where information or 
 evidence, which is usually obtained by the solicitor himself, is 
 not obtained by him, but a document stating what evidence can 
 
 (/) Sea per Jessel, M. R., 2 Oh. D. 649—650. 
 
 (g) See per Blackburn, J., L. E. 7 Q. B. 771 ; per James, L. J., 2 Ch. D, 
 656 ; per Brett, L. J., 3 Q. B. D. 320 ; per Cotton, L. J., 17 Ch. D. 684. 
 
 (A) See _per James, L. J., ubi supra; see, as. to the privilege of the papers in 
 the action, Walsham v. Stanton, 2 H. & M. 1 ; NicholU v. Jones, ib, 588 ; 
 Manser v. Six, 1 K. & J. 451. 
 
 (i) See Maden v. Veevers, 7 Beav. 489. 
 
 (k) See Southwa^k Water Co. v. Quick, 0. A. 3 Q. B, D. 315. 
 
 (Z) Per Cotton, L. J., 3 Q. B. D. 322. 
 
 (m) See Curling v. Perring, 2 Myl. & K. 380 ; Simpson v. Brown, 33 
 Beav. 482. 
 
 (re) See Kennedy v. Lyell, C. A., 48 L. J. 455 ; ante, p. xxxv. 
 
 {nn) Per Jessel, M. K., 2 Ch. D, 649 — 50 ; see M'Corquodale v. Bell, 1 
 C. P. D. 471. 
 
58 LA"W AND PEACTICE OP DISCOVERT. 
 
 CHAP. IV. be given is prepared to be communicated to the solicitor (o). 
 ^^°*- ^- If you ask your agent to give you information respecting the 
 evidence which can be given by a person who is to be a wit- 
 ness, or to draw up a case for the opinion of your counsel or 
 solicitor, his communication for that purpose is privileged (p). 
 But a communication from a mercantile agent to his prin- 
 cipal giving information as to what the agent had actually 
 done for and on account of the principal is not privileged, be- 
 cause it is sent in compliance with the request of the prin- 
 cipal given after the principal has been threatened with 
 litigation respecting the matter on which he requires infor- 
 mation (g). 
 By agents of The solicitor is not bound any more than the cUent to do 
 
 solicitor. tiie work himself. He is not bound either to collect informa- 
 
 tion or to collect testimony. He may employ his clerks or 
 other agents to do it for him, and upon the same principle as 
 the information acquired by himself directly is protected, so 
 the informaiion acquired by a clerk or agent employed by 
 Mtti is equally protected (r). 
 By client or Ms But then the cases go still a step further. Suppose the 
 a^^nt^'f^ information required is in a foreign country, where neither 
 soUcitor. the solicitor nor his clerk nor an ordinary agent can obtain 
 
 it, he may request the client to obtain it himself, and then 
 the information obtained by the client at the request or 
 under the advice of the solicitor is in a sense obtained by the 
 agent of the solicitor (s). * * * It is turning the client, 
 so to say, into the agent of the solicitor for the purpose of 
 obtaining information ; but it is clearly within the rule of 
 privilege (i). The fact that the agent you employ is in fact 
 employed at the request and direction of your solicitor to 
 obtain information for him brings the case within the rule (u). 
 If a solicitor asks the client to send somebody to collect in- 
 formation, it is the same thing as if the solicitor himself 
 
 (o) Per Cotton, L. J., in Smtliwarh Water Co. v, Quick, 3 Q. B. D. 315 
 822 ; see also Pacey v. Lrnid. Tramways Co , 2 Ex, l5. 440 n. ; Friend v. 
 I. 0. & D. By. Co., ib. 437 ; the Theo'dor jCorner, 3 P. D. 162 : mr Mellish' 
 L. J., 2 Ch. D. 658—9. ' ' ' 
 
 ip) See per Mellish, L. J., 2 Ch. D. S58— 9 ; ^«»- Jessel, M. R„ ib, 648 
 
 (q) Anderson v. Bank of British Columbia, C. A., 2 Ch. D. 644 See 
 Westinghouse v. Midland By, Co., 48 L, T. 98, 462 (C A ) 
 
 (r) Per Jessel, M. R., 2 Ch. D. 65a 
 
 (s) See Reid v. Langlois, 1 Macn. & G, 6^7 ; Boss v. Oibbs, I<. R. 8. Eq. 
 
 (t) Per Jessel, M. R., 2 Ch. D. 650. See SImU v. Stewart, 1 Ph, 471 • 
 Lafone v. Falkland Isl. Co., 4 K. & J. 34, 36, per Wood, V -C ' * 
 
 (m) Per Jessel, M. K., 2 Ch. D. 653. 
 
PROFESSIONAL CONFIDENCE. 59 
 
 had written to a person in foreign parts asking for informa- chap. iv. 
 tion (uit). The true test in such cases is, not whether the ^^°^- ^' 
 person who is at a distance, and communicates the informa- Test as to 
 tioQ in question, is the agent of the solicitor and sent out by ^^J^ ^fg^g, 
 him, or the agent of the party, and sent out by him, for 
 he may have been sent out by the party, and yet, in 
 collecting the information, he may have acted under the 
 direction and as the agent of the solicitor — but, whether such 
 person in transmitting that information was discharging 
 a duty which properly devolved upon the solicitor, and 
 which would have been performed by the solicitor if the cir- 
 cumstances of the case had admitted of his performing it in 
 person (x). The privilege in such a case depends upon the 
 purpose for u'hich, and the circumstances under vjhich, it 
 was obtained, and not exclusively upon the character of the 
 person who actually obtained it (y). 
 
 It is not, however, necessary that the information or the Sufficient if 
 documents should have been obtained at the instance, or at o'[,t°j^^|fd'™r 
 the request, or by the direction, of the solicitor ; it is enough purpose of 
 if they come into existence merely for the purpose of being foreloUoitor.' 
 laid before hivi for his advice or consideration (z). If a docu- 
 ment comes into existence for the purpose of being commu- 
 nicated to the legal adviser with the object of obtaining his 
 advice, or of enabling him to prosecute or defend an action, 
 then it is privileged, because it is something done for the 
 purpose of serving as a communication between him and the 
 client (a), and it makes no difference that the document was 
 not, as a matter of fact, ultimately laid before the legal 
 adviser for bis ad-\dce or consideration (6). If at the time the 
 document is brought into existence its purpose is that it 
 should be laid before the solicitor, if that purpose is true and 
 clearly appears upon the affidavit, it is not taken out of the 
 privilege merely because afterwards it was not laid before 
 the solicitor. It might not have been laid before him, because 
 
 (vu) lb. 652. 
 
 (x) Per Wood, V.-C, in Lafone v. Falkland Isl. Co. (No. 1), 4 K. & J. 34, 
 36 cited with approval by Jessel, M. R., in Anderson v. Bank of British 
 ColumKa C. A., 2 Oh. D. 644, 652, where all the cases are reviewed, and 
 which is the "leading case upon this branch of privilege. See also per eund. in 
 Wheeler v. Le Marchant, C. A., 17 ib. 675, 682. 
 
 (V) See per Wigrani, V.-C, 1 Ha. 533. 
 
 H Southivark Water Co. v. Quick, C. A., 3 Q. B. D. 315. Distinguish 
 Westinqhoiise v. Midlawl Ry. Co., 48 L. T. 98, 462 (C. A.). 
 
 (a) Seeicr Cotton, L. J., 3 Q. B. D. 322. 323. 
 
 (6) Southu-ark Water Co. v, Qi'.ick, C. A., 3 Q. B. D. 316. 
 
60 
 
 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. IV. 
 Sect. 5. 
 
 Where no 
 
 solicitor 
 
 employed. 
 
 Party muat 
 answer as to 
 acts or know- 
 ledge of agents, 
 
 Papers in 
 action privi- 
 leged unless 
 pubUci juris. 
 
 the person making the statement had died or went away and 
 _ could not be found (c). But it is not enough that the docu- 
 ment should have been prepared with a view to possible 
 litigation, and in the event thereof, of being laid before the 
 solicitor {cc). 
 
 In Andenrson v. British Bank of Golv/mhia (d). Lord 
 Justice Mellish expressed an opinion that in cases where no 
 solicitor is employed but a man acts as his own solicitor, infor- 
 faation obtained by him, before deciding upon bringing or de- 
 fending an action, respecting the evidence which could be given 
 by a person who was to be a witness, would be just as much 
 privileged as if it had been obtained after the action was 
 commenced. At any rate, it is not necessary that a solicitor 
 should have been actually retained or consulted at the time (e). 
 A party is not, however, exempted from the liability to 
 disclose, in answer to interrogatories, information communi- 
 , cated to him by non-legal agents, or information as to matters 
 of fact even though communicated by legal agents (/), 
 for the purpose of the litigation, though that information 
 were contained in documents which would themselves be 
 privileged, as he is bound, if necessary, to procure informa- 
 tion for the purpose of answering; and the knowledge of the 
 agent in the matter of the agency, is or ought to be 
 the knowledge of the principal (g^). The general prin- 
 ciple is, that whatever a party to a suit knows respect- 
 ing the matter in dispute his adversary has a right to 
 know ; that being considered the best means of working 
 justice (h), and though it might perhaps appear reason- 
 able that as soon as parties are in litigation, or even in con- 
 troversy upon those matters which become the subject of the 
 suit, what each party gets for the purposes of the suit should 
 be protected, that is not the rule (i). 
 
 Drafts, of pleadings, affidavits, and deeds are privileged, 
 though the pleadings and affidavits themselves, after being 
 
 (c) Per Brett, L. J., 3 Q. B. D. 320 : seeper Cockbwn, 0. J., ib. 318. 
 (cc) Westingiouse v. Midland Ry^ Co., 48 L. T. 98, 462 (C. A J. 
 
 (d) 2 Ch. D. 644, 658 se<i. See per Lord Cottenliam, L. 0., 1 Myl. & Or. 527. 
 
 (e) See Soufhwark Water Co. v. Quick, 1 Q. B. D. 316. 
 (/) See ICenineehj v. Lyell, C, A., 48 L. T. 455. 
 
 (g) See .per Cotton, L. J., 3 Q. B. D. 321, and the judgments of the Lord 
 Justices in Anderson v. Bank of Brit. Cohimbia, 2 Oh. D 644 654 
 
 (h) Per Kindersley, V.-C, 2 Dr. h Sm. 392. 
 
 (i) Ib. See Anderson V. Bank of Brit. Cohimbia; English v. Tottie, 1 Q. B 
 D. 141 ; Seats, where the information amounts to "materials for brief '*'Vu" 
 ante, p. 57) ; Kennedy v. Lyell, 0. A., 48 L. T. 456. ' 
 
PROFESSIONAL CONFIDENCE. 61 
 
 filed and delivered, become publici juris. Briefs are, in chap. iv. 
 
 strictness, not privileged, so far as they are copies of matters ^^°^' ^" 
 
 .otherwise publici juris, but the production cannot extend to 
 observations, notes, or marks by counsel which may have 
 been made upon them {k). Indorsements on briefs are 
 publici juris, and must be produced, as being the record of 
 what took place in open Court, as also short-hand writer's 
 notes of proceedings in court, but observations and notes 
 made thereon are privileged (Z). 
 
 All communications not coming within one of the above- 
 mentioned heads, are unprivileged, even though made be- 
 tween the parties themselves, or the parties and their agents 
 confidentially and in contemplation of or during litigation 
 and with reference to tlie subject-matter thereof, nay, even for 
 the express purpose of maintaining and defending it, and 
 at the party's own expense (m), there being no necessity 
 for such communications, and, therefore, no privilege (mm). 
 
 The privilege is not confined to the continuance of the Once privi- 
 action or other legal proceeding in which the communication '^jfy;igg^^^^ 
 may have been originally made (n), the rule being " once 
 privileged always privileged " (o) ; it applies, therefore, a 
 fortiori, where the succeeding proceedings are substantially 
 the same as the former, i.e., involve or embrace the same 
 issues (p). Thus, a case stated with respect to the same 
 property as that which was the subject of the suit in which 
 the privilege was claimed, and after the dispute which ter- 
 minated therein had arisen, was held privileged, though 
 stated with reference to a separate litigation {q). In the Cross-actions. 
 
 (k) Walsham v. Stainton, 2 H. & M. 1 ; Manser v. Dix, 1 K. & J. 461. 
 
 {I) Nicholls v. Jones, 2 H. & M. 588 ; Plumley v. Hmrell, "W. N. 1868, 
 240 • Nordon v. Defries, 8 Q. B. D. 508 : see Tyas v. Brown, 42 L. T. 501 . 
 
 (m) Biistros v. WhUe, C. A., 45 L. J. Q. B. D. 642, 1 Q. B. D. 423 ; Ander- 
 son V. Bank of British Columbia, C. A., 2 Ch. D. 644 ; Martin v. Butchard, 
 36 L.' T. 732 (coiTespondence between principals and agents) ; Goodall v. 
 Little 1 Sim. N. S. 155 ; Reid v. Langlois, 1 Macn. & G. 638 (communications 
 between co-defendants) ; distinguish Hamilton r. Nott, L. R. 16 Eq. 112 
 (where one defendant was employed to collect evidence on behalf of the com- 
 mon solicitor), and Jenkyns v. Bushby, 2 ib. 647 (letter written to a co- 
 defendant with directions to forward it to the solicitor held privileged) ; 
 Wriqht v. Vernon, 1 Drew. 344 (information obtained for express pui-pose of 
 suit at party's own expense). ,„,,,,, ,^ , „, 
 
 (mm) Se&per Lord Brougham, L. C, 1 Myl. & K. 101. 
 
 (n) Bullock V. Carry, 3 Q. B. D. 366 ; Nordon v. Defries, 8 ib. 608 ; Bacon 
 y B 34 L T 349 ; Chant v. Brovm, 7 Ha. 79, 86. 
 ' io) Per Cockbum, C. J., 3 Q. B. D. 358. 
 
 (p) Holmes v. Baddelcy, 1 Phill. 476 ; Thompson v. Falk, 1 Drew. 21 ; 
 Nordmi v. Defries, 8 Q. B. D. 608 ; Chant y. Brown ; Bacon v. B., uH supra. 
 
 (2) Jenkyns v. Bushby, L. K. 2 Eq. 547. 
 
62 LAW AND PRACTICE OP DISCOVEEY. 
 
 CHAP. IV. case of cross-actions, what passed between the solicitors and 
 ^^°*- ^- clients in both actions would clearly be privileged, and in the 
 case of two actions by the same plaintiff against different 
 defendants, viz., A. v. B. and A. v. C, the subject-matter of 
 the two actions being substantially the same, communica- 
 tions between solicitor and client in the action against B. 
 would be privileged in the action against C. (r). In these 
 cases the matters in dispute are so immediately connected 
 that confidential communications in the one action ought to 
 be protected in the other (s). So in a case where the facts 
 in both actions are identical, and the defendants in the latter 
 action are in the same position as the plaintiffs were in the 
 former action, for the fact of their positions being reversed 
 cannot affect the privilege (t). In such cases it is obvious 
 that either the communications in question do not relate to 
 the subject of the present proceedings, in which case they 
 are irrelevant, or, if they do so relate, that they are privi- 
 leged (u). 
 Form of claim It is not enough that the affidavit of documents in which 
 of privilege, ^j^g objection is taken should simply state " that the docu- 
 ments are privileged " (x) ; or that the deponent is advised and 
 insists that they are so (xx) ; it should state and verify the 
 facts upon which the objection is grounded (y). A claim of 
 privilege on the ground that the party obtained the informa- 
 tion '■ either as the solicitor or in some other capacity " will be 
 taken most strongly against the party making it, and it will 
 be assumed that he obtained the information in the latter 
 capacity (yy). No presumptions should be made against the 
 party insisting on the privilege from the fact of his doing 
 so (z). 
 
 Any question of privilege, not governed by authority, 
 
 (r) See Jenkyns v, BusKby, supra. 
 
 (s) Per Cockburn, L. C. J., In Bullock v. Corrie, 47 L. J. Q. B. 352, 353. 
 
 (t) lb. See Nordon v. Defries, 8 Q. B. D. 508, wliere shorthand notes of 
 the proceedings at a former trial were held priyileged in a subsequent tiial 
 arising out of the same subject-matter. 
 
 {u) Ford V. Ve Ponies, 7 W. E. 299, 300, per Eomilly, M. R. 
 
 (x) Gardner v. Irvin, C. A., 4 Ex. D. 49. Forms of claim of privilege on 
 this ground will be found in the Append, post, p. 193. It is the common 
 practice to afford the objecting party an opportunity of amending an imperfect 
 claim of privilege. 
 
 {xx) Balgti,y v. Broadhurst, 1 Sim. N". S. 111. 
 
 (j/) Gardner v. Irvin, 4 Ex. D. 49. 
 
 (yy) Thomas v. RawUngs, 27 Beav. 140 ; see Nordon v. Defries, 8 Q. B D 
 £08. 
 
 (z) See per Lord Chelmsford, Wentworth v. Lloyd, 10 H. L. 589. 
 
NOT SOUGHT BONA FIDJE. 63 
 
 should be decided by considering the object and foundation chap. iv. 
 of the rule, and inquiring whether it is reasonably necessary, ^^°^- ^- 
 either as a result of the principle which regulates the privi- 
 lege or for the convenience of mankind, to extend it to the 
 particular case {a). Thus, it has been decided, as we have 
 already seen, that the communications between a testator 
 and his legal adviser with regard to the testamentary dispo- 
 sitions of the former are not privileged from disclosure after 
 the client's death (b). 
 
 Sect. 6. — Of the objection that the discovery is not sought 
 bond fide. 
 
 The discovery sought may be technically material, but gect. e. 
 it may be objected that it is not sought bond fide for the pj^^.^ ^^^ 
 purpose of assisting the party seeking it in proving his granted to 
 case at the trial of the action (c), thus constituting an abuse, ^osity.''"^ 
 or at least a misuse, of the process of the Court (d). It is 
 very important to see that production is not ordered as mere 
 matter of curiosity. It is ordered for the purpose of further- 
 ing the administration of justice, to enable the parties to 
 ascertain the truth and submit it to the Court, to enable it 
 to adjudicate properly on the case ; therefore a mere motion 
 to produce documents from motives of curiosity will not be 
 attended to. It must be shown that there is some practical 
 utility in the production (e). In Cardale v. Watkins (/) 
 Vice-Chancellor Leach said, " The purpose for which dis- 
 covery is given, is the aid of some proceeding pending or 
 intended, and not to satisfy curiosity ; and if such purpose 
 be not stated in the bill a demurrer will lie." The party 
 seeking the discovery must show that he stands in need of it 
 for the legitimate purposes of the litigation (g). Accordingly, 
 an old case, inspection of books was refused where it was 
 sought for the purposes of the applicant's trade (h), and an 
 
 (i) See per Jesse], M. E., 17 Ch. D. 681 ; per Kindersley, V.-C, 4 Drew. 
 490 ; per Turner, V.-C, 9 Ha. 391 ; per Wood, V.-C, 2 J. & H. 605. 
 (6) Russell V. Jackson, 9 Ha. 387. 
 (c) See per Jessel, M. E. 8 Ch. D. 652. 
 id) See per C.-.tton, L. J., 3 Q. B. D. 664. 
 (e) See per Malins, V.-C, L. E. 19 Eq. 45. 
 (/) 5 Madd. 18. 
 
 (g) See per 'Wigva.m, V.-C, 8 Ha. 112. 
 (h) Lingen v. Simpson, Madd. & G. 290. 
 
LAW AND PRACTICE OF DISCOVERT. 
 
 Vexatious in- 
 terrogatories. 
 
 CHAP. IV. application by a remainderman for the inspection of title- 
 
 ^^"^^ ^' deeds in the possession of the tenant for life was refused, 
 
 where the object was to facilitate a contemplated mortgage 
 by him of his interest in the property to which they re- 
 lated (i). 
 
 Interrogatories should be such as tend bond fide to sup- 
 port the case of the party seeking to administer them, and to 
 favour a complete inquiry into the truth of the issue which 
 the Court has to decide (Jc). If they are administered Tnald 
 fide, or with a vexatious or improper purpose, an answer will 
 not be enforced (Z). Where interrogatories tend to criminate 
 or discredit the party interrogated, it is the duty of the Court 
 to see in the first place that they are put bond fide for the 
 purpose of assisting the case made by the party interrogating, 
 and secondly, that they are put for the purpose of support- 
 ing not a mere fishing case, but a definite case which is 
 alleged on the pleadings, and proposed to be supported in 
 evidence {m). Thus, interrogatories asking the defendant 
 whether he had not published a libel were disallowed, where 
 put for the purpose of criminating the defendant, and not 
 bond fide for the purpose of assisting the case (n). 
 Discovery with Again, discovery will not be given where it is in reality 
 a view to sought for the purposes of getting evidence to be used in 
 
 ulterior pro- ° . '■ '^ , . ° r- t 
 
 ceedings or for another action or proceeding, or finding out some person 
 sake of costs or ^gg^jjjg^ whom to bring an action (o), or is unnecessary 
 and useless and only sought for the purpose of swelling 
 costs or causing delay (p), for it was not intended by the 
 rules to make the delivery of interrogatories a mere matter 
 of course, whether necessary for the purposes of the action or 
 not, and if the judge be satisfied that there is no reasonable 
 object in delivering them, he is perfectly justified in striking 
 
 delay. 
 
 (i) Shaw V. S., 12 Price, 163. See Rippin v. Dolman, 2 W. R. 432. 
 
 (!c) See per Sir R. Phillimore, L. R. 2 A. & E. 322. 
 
 {I) See per Channell, B., in McFadzen v. Cm-p. of Liverpool, L. R. 3 Ex. 
 279, 281 ; Biclcford v. Darcy, 1 ih. 354, 4 H. & C. 534 (explaining Baker v.' 
 Lane, 3 ii. 644). 
 
 (m) deeper Thesiger, L. J., 8 Cli. D. 655; per Brett, J., L. E. 10 
 C. P. 234 seq. 
 
 [n) Edmunds v. Qresmoood, L. R. 4 C. P. 70. See Waters v LmA 
 Shaftesbury, 12 Jur. N. S. 3. 
 
 (o) Temperley v. Willett, 6 E. & B. 380 ; Cox v. Bockett, 18 C. B N S 
 241 ; Lee v. Read, 5 Beav. 381. 
 
 (p) See Beehervaise v. G. W. R., L. E. 6 C. P. 35 ; Alexandra Dock Co v 
 Elliot, 23 L. T. 847 ; Bray v. Fineh, 1 H. & N". 468 ; The Biola, 34 L. t' 
 125 ; Newall v. Telegraph Co., L. E. 2 Eq. 756 ; Lloyd v. Adams' 
 4 K. & J. 467. ' 
 
OONTRAEY TO PUBLIC POLICY. 65 
 
 them out (q). Interrogatories are improper and illegitimate chap. iv. 
 which are intended to obviate the necessity of calling a wit- ^^°*' ^- 
 ness at the trial, and so unfairly withdrawing him from cross- Unfair object, 
 examination (r), or to deter the party interrogated from 
 coming forward as a witness (s) ; interrogatories as to the 
 contents of documents might be impropei', if intended to get 
 over the difficulty of their being unstamped. The objection 
 must, ordinarily, be taken in the answer (t), but where inter- 
 rogatories as a whole are so utterly irrelevant as to appear 
 not to have been bond fide delivered, the party called upon 
 to answer them might perhaps get them struck out under 
 Ord. XXXI. r. 5, and so relieve himself of the necessity of 
 raising the objection by answer (i(). 
 
 Sect. 7. — That the discovery tuoiUd be contrary to Public 
 
 Policy. 
 
 No one can be compelled to give evidence [or to produce geet. ?. 
 documents] relating to anj' affairs of State, or as to official TZT^ 
 communications between public officers upon public affairs, and official 
 
 except with the permission of the officer at the head of the cp™™"""^- 
 
 mi • • • • ■ r- I tions privi- 
 
 department concerned {x). This protection is given, firstly, leged. 
 on the ground of public policy, i.e., the danger to the public 
 interest which might result from their production {y), and 
 secondly, because matters of State are exempted from muni- 
 cipal jurisdiction (z). Documents, which are not themselves 
 of a character to justify a refusal to produce them on that 
 ground, are not to be withheld merely because they are con- 
 nected or associated with documents so privileged (a), and 
 
 (q) See ^f/- James, L. J., 1 Q. B. D. 443—4. The proper mode now is to 
 take the objection in the answer, in the case of one or more of several interro- 
 gatories, the power of striking out being restrained to the cases where the 
 delivery of interrogatories at all is objected to as unreasonable or vexatious 
 (v. post, p. 72). 
 
 {r) See Hodsoll v. Taylor, L. R. 9 Q. B. 79. 
 
 is) See Stocks V. Ellis, L. R. 8 Q. B. 452. 
 
 (<) See form, post, p. 190. 
 
 {u) See per James, L. J., in AUhusen v. Laiouckere, 0. A., 3 Q. B. D. 654, 
 659 ; per Cotton, L. J., ib. 664. 
 
 {x) Stephen, Dig. Ev.' Art. 112, citing Beatson v. Skene, 5 H. & K 838 ; 
 Kerr, 147-8 ; Tayl. Ev. s. 947 ; Wadeer v. East IncUa Co., 8 De G. M. & G. 
 182, 'l87 ; Smith v. East India Go., 1 Phlll. 50 ; M'Elveimj v. ConnrJUm, 17 
 Ir. C. L. Rep. 55. 
 
 {y) See Wadeer v. Ea^t India Co. 
 
 (z) Per Turner, L. J. ib. 191. 
 
 (a) Ib. 191. 
 
66 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. IV. 
 
 Sect. 7. 
 
 Privilege miiat 
 be claimed by 
 head of depart- 
 ment. 
 
 What state- 
 ment requisite, 
 
 Privilege o£ 
 judges and 
 arbitrators. 
 
 official correspondence is not privileged as such unless it 
 passed under particular and special circumstances (6). The 
 question whether the production of any particular document 
 would be injurious to the public service, must be determined 
 not by the judge, or other tribunal, before whom the question of 
 production is raised, but by the head of the department having 
 the custody of the documents (c), and if he (which may be done 
 by affidavit) states that, in his opinion, tbe production of 
 it would be injurious to the public service, the judge 
 ought not to compel production of it {d). It is not sufficient 
 for him to state that he has certain official documents, and 
 objects to state anything farther with respect to them on the 
 ground of public policy (e) ; he must pledge his opinion, as a 
 responsible act by a responsible person, that their production 
 would be injurious to the public service, and it should be 
 shown that the mind of the head of the department has been 
 brought to bear upon the particular question (/). Where 
 the objection is made, the Court will not order the production 
 of part only of the document, the other part being sealed up 
 from inspection {g), and a party may decline^to answer interro- 
 gatories as to the contents of documents so privileged on the 
 same grounds as he may decline to produce the documents 
 themselves (A), nor can secondary evidence be given of 
 their contents (i). 
 
 It is upon this ground that judges and arbitrators are, in 
 the absence of fraud, mistake, or misconduct, privileged from 
 disclosing the grounds of their decisions {k). 
 
 Sect. 8. 
 
 Jiond fide 
 purchaser for 
 value. 
 
 Sect. 8. — Of the objection on the ground of being a bond 
 fide purchaser for value. 
 
 It was a principle of equity that if a defendant had in con- 
 science as good a title to property in his possession as the 
 
 (6) Smith V. Sast India Co., 1 Phill. 50, 54, per Lord Lyndhurst, L. C. 
 
 (c) Seatson v. Skene, 5 H. & N". 838 ; R. M. S. Bellerophon, 2 Mar. Law 
 Cas. N. S. 449 {v. ib. for „, form of affidavit) ; Dixon y. Small Arms Co., 
 ih. 450. 
 
 (d) Ib. 
 
 («) Kain v. Farrer, 37 L. T. 469. 
 
 (/) lb. 
 
 ,{g) H. M. S. Belleroplwn, 2 Mar. Law. Cas. N. S. 449. 
 
 (h) Tayl. Ev. s. 948 ; Fitzgibbon v. Greer, Ir. Rep. 9 C. L. 294 
 
 (i) Stace v. Griffith, L. K. 2 P. C. 420. 
 
 (k) See Padley v. Lincoln Waterworks, 2 Macn. & G. 68 ; Ponsford v. 
 Sivaine, 1 J. & H. 433 ; Duke of Buccleugh v. Metropolitan Board, L R 5 
 H. L. 518 ; Re Dare Valley Ry., ih. 6 Eq. 429. ' 
 
EOXA FIDE PURCHASER FOR VALUE. (37 
 
 person who sought to deprive him of it, though he might chap. iv. 
 want a perfect legal title, the Court would not compel him to ^°°*- ^- 
 give to the plaintiff any assistance to the defeasance of his 
 own title (I). Thus, the fact that the defendant in an action 
 is a purchaser for value without notice of the property 
 claimed is a good ground of objection to giving any discovery 
 sought in the action, whether of documents or otherwise, 
 which might impeach his cZe facto title (m), and the rule 
 applies whether the plaintiff is asserting a legal or equitable 
 title (n). In Pilcher v. Rawlings (0) Lord Justice James said, 
 " My view of the principle is, that when once you have Not obliged to 
 arrived at the conclusion that the purchaser is a purchaser yy "^^"^ '^'^ 
 for valuable consideration without notice, the Court has no 
 right to ask him, and has no right to put him to contest the 
 question, how he is going to defend himself, or what he is 
 going to rely on. He may say, honestly, ' I am not going to 
 tell you. I have got the deeds ; I defend them, and you will 
 never be able to make me produce them, and you will never 
 be able to produce secondary evidence of them. I am not 
 obliged to produce them at all. * * * j have a right to 
 rely, as every person defending his position has, on the weak- 
 ness of the title of the person who is seeking to displace me.' " 
 Thus, inspection was refused to a demandant in dower of a 
 deed of her deceased husband conveying the land on which 
 her claim was made to a hond fide purchaser for valuable 
 consideration without notice of her claim {p). The defendant Must give 
 must, however, produce any documents or answer any inter- discevery im- 
 
 , . 1 . 1 1 . , . - peaching his 
 
 rogatories which tend to impeach or disprove the validity of defence. 
 the defence set up, e.g., by showing that there was no 
 valuable consideration for the purchase, or affecting him with 
 constructive notice of the plaintiff's title {q) ; he may be 
 interrogated and tested to any extent as to the valuable con- 
 sideration which he has given in order to show the bona fides 
 or mala fides of his purchase, and also the presence or the 
 
 II) See Hare, Part II. Ch. 3. 
 
 (ot) Dan. (ed. 6) 492 seq., citing Dart, V. & P. 832 seq. ; Basset v. 
 NoswoHJiy, 2 Lead- Cas. Eq. 1 ; Hunt 7. Elmes, 27 Beav. 22. It is no longer 
 a defence to a legal claim for the delivery up of deeds {Cooper v. Vesey, C. A., 
 20 Ch. D. 611). 
 
 (n) See Gomm v. Parrott, 3 0. B. N. S. 47. 
 
 (o) L. R. 7 Ch. App. 259, 269 seq. 
 
 ( p) Gmnm v. Parrott, ubi supra. 
 
 la) Jerrard v. SauTiders, 2 Ves. 187 ; Walwyn v. Lee, 9 ih. 24 ; Neesom v. 
 Clarkson, 2 Ha. 166 n., Coop. P. C. 93 ; Addis v. Campbell, 1 Beav. 258. 
 
 T 2 
 
68 LAW AND PRACTICE OF DISCOVEEY. 
 
 CHAP. TV. absence of notix:e (r). The former rule was that if the pur- 
 ^^p*- Q- chase-d€ed was pleaded the plaintiff was entitled to see it, 
 upon the principle noticed in a subsequent part of this 
 work (s), but otherwise he was not entitled to production of 
 it befoi'e the trial, unless there were suspicious circumstances 
 or fraud in connection Avith it (t). Under the new practice, 
 a defendant is, as will be seen, expressly exempted from the 
 liabilitj' to produce documents relating to his own title, 
 although referred to by him in his defence (u). It is con- 
 ceived, however, that the defendant would be bound to make 
 an affidavit giving a list of the protected documents, though 
 not to produce them or describe their contents in answer to 
 interrogatories (x). 
 
 (r) See per James, L. J., L. R. 7 Cb. App. 269. 
 
 Is) Hunt V. Mmes, 27 Beav. 62.; post, p. 122 iq). 
 
 (i) JEx parte Oaldecott, Mont. .55 ; Kennedy v. Green, 6 Sim. 6. But it has 
 been said that it should be produced to shew whether it comprises the 
 property claimed (see Aston v. A., 3 Atk. 302). 
 
 {u) Post, p. 124. But query how far such a defendant can be said to have 
 any title (see per Lord Eldon in Walwyn t. Lee, 9 Yes. 24). 
 
 {x) See Peirie v. P., 3 Atk. 510 ; post, p. 166. 
 
CHAPTEE Y. 
 
 DISCOVERY BY INTERROGATORIES. 
 
 Sect. 1. — Forvi of Interwgatones. 
 
 Any discovery which, before the passing of the Judicature chap. v. 
 Acts, could have been obtained by a bill of discovery in the ^^"^^ ^- 
 Court of Chancery, can now be obtained by means of inter- Rigtttodeiver 
 rogatories delivered in an action in any division of the High generaUy. 
 Court (a). Generally speaking, every party to a litigation has a 
 right to administer interrogatosies foi* the examination of his 
 opponent (6), (although it was not intended by the new Rules 
 to make the delivery of them in all cases a matter of course (c)), 
 and, subject to the liability of having them struck out under 
 Order XXXI. r. 5, and to the check placed upon them by 
 Order XXXI. r. 2, any questions may be put, leaving the party 
 interrogated to object, if he can, to answer them upon any 
 grounds which, according to the law of the land, entitled 
 him to do so (d). Rule 1 of Order XXXI. enables either 
 party generally and without restriction, to administer inter- 
 rogatories to the other, but the effect of the decisions (e) 
 seems to be to add to. the word " interrogatories," in rule 1 
 of Order XXXI., the words " such as would have been 
 allowed in Chancery before the passing of the Judicature 
 Acts" (ee). Plaintiffs and defendants have the periods inter- 
 
 (a) EamscUn v. Brcarley, 33- L. T. 322 ; Lefrmj v. Burnsidc, 4 L. R. Ir. 
 340; Lyell y. Kmnerhj, C. A., 20 Ch. D. 484; 52 L. J. Ch. 385 (H. L.) ; 
 A.-G. V. Gaskill, C. A., ib. 519. Interrogatories maj' be administered in ;iii 
 action in aid of which a bill of discovery would have been demurrable, e.ij. 
 an action for a personal tort (see Fisher v. Oicev, C. A., 8 Ch. D. 645, 650), 
 but not by an informer in an action for penalties, (see Hunnings v. 
 Williamson, 10 Q. B. D. 4£9). 
 
 (6) Y. ante, p. 3. 
 
 (c) Per James, L. J. 1 Q. B. D. 443. 
 
 (d) See i^CT- James, L. J., 3 Q. B. I>. 659,; per Cotton, L. J., 20 Ch. D. 528^ 
 3 Ex. D. 337 ; per Stephen, J., 31 W. E. 337. 
 
 («) See Lyell v. Kennedy, sujn-a. 
 (ee) Per Stephen, J., 31 W. R. 337. 
 
necessary. 
 
 cation for leave 
 to deliver, 
 
 70 LAW AND PEACTICE OF DISCOVERT. 
 
 CHAP. V. vening between the delivery of their statements of claim or 
 
 ^°°*- ^- defence respectively, and the close of the pleadings, within 
 
 which to deliver interrogatories as of right (/), but if either 
 
 of them wishes to do so at an earlier or a later period he 
 
 When order must obtain an order for that purpose. An order is also 
 necessary when the party whom it is desired to interrogate is 
 a body corporate, joint-stock company, or other body of per- 
 sons empowered by law to sue or be sued in its own name 
 or the name of an officer or other person (ff), the object of 
 requiring such an order being to insure that a proper person 
 is selected to answer, and, lastly, where it is desired to 
 administer a second or further set of interrogatories to the 
 
 OoBts of appli- same person (g). Where the obtaining an order is rendered 
 necessary by the laches of the applicant he is usually ordered 
 (in the Queen's Bench Division) to pay to the opposite party 
 6s. 8d., costs of the summons (h). In the case of applications 
 for leave to deliver a further set, or to deliver them before or 
 after the prescribed period, an affidavit in support should, 
 as a rule, be made (i). The order will be general in its 
 terms, i.e., to deliver interrogatories generally ; and the 
 propriety or otherwise of the interrogatories proposed to be 
 administered will not be gone into at the hearing of the 
 
 Form of inter- application (/<•). Interrogatories are not required to be 
 
 rogatories. printed, whatever may be their length, or signed by counsel 
 (as in the Court of Chancery), or written upon paper of any 
 particular size or description. A statutory form, which is to 
 be followed " with such variations as the circumstances may 
 require " is provided by the rules (Z). They are intituled and 
 marked in the same way as pleadings (m), and should be 
 concise and simple in form, and such as admit of specific and 
 
 (/) As a matter of tactics, it is prudent, as a rule, to obtain discovery of 
 •documents before interrogating, even if the time for doing so of right be thereby 
 allowed to expire, as it may become desirable to interrogate as to the contents of 
 documents, or as to documents suspected to be in the opponent's possession 
 and not disclosed in his affidavit. 
 
 {ff) Ord. XXXI. r. 5 ; v. past, pp. 159, seq. 
 
 (g) lb. r. 1. See p. 194 for a form of summons. 
 
 .T.^^^ ^^l ^^^J;!^ ""■ ^»''»''«^<> * Ji"-- N. S. 579, where the party was ordered in 
 the Court of Chancery to pay 50s. costs in a like case ; but see London Go. v. 
 Jiavtes, 5 Ch. D, 775. 
 
 (») There is a discretion as to requiring one, in such cases {v. ante, p. 17). 
 
 {k) Berkeley y.Staivi. Dis. Co., 9 Ch. D. 643 ; and see JVilson v.ChJ-ch, 
 
 t In! we St t"848^'"'*" ^^' "^"*' ''^°'' '^'' ^' ^*''®' ^" ■ -^''" ""• 
 
 {I) T. Append, post, p. 189. 
 (77t) Dan. 406. 
 
INTEEROGATOEIES. 71 
 
 categorical answers (n). Care should be taken so to frame cKAPi v. 
 them that the party interrogated can put in an answer with- ^°°^- ^- 
 out an oppressive amount of inconvenience, otherwise, if the 
 party interrogating should afterwards apply for an order for 
 a further and better answer, he may not get the costs of his 
 application, even if successful (o). It is objectionable to 
 comprise in a single interrogatory distinct matters which 
 might more properly have been made the subject of several 
 separate, but consecutive interrogatories (p), though several 
 inquiries may be properly included in the same question if 
 germane to one another (q). If interrogatories are exhibited Costs of un- 
 at improper length, the costs occasioned thereby (including proUx^inte" 
 the costs of the answer) may be ordered to be borne by the rogatories. 
 party interrogating ()'). If interrogatories are delivered 
 without leave in a case where leave is requisite, they need 
 not be answered (s), and se'nible, they might be set aside as 
 having been dehvered " unreasonably " or " vexatiously " {i}^ 
 If an application for leave to deliver them at an earlier stage 
 than that indicated by the rules is refused, the summons 
 will be dismissed, and not merely allowed to stand over till 
 the prescribed period has arrived, as no leave will then be 
 required («), They should not be delivered when a 
 demurrer to the whole of the pleading of the party delivering 
 them is pending (x), but they may still be delivered, if neces- 
 sary, though default has been made in appearing or pleading 
 by the opposite party (z). Where more than one person is 
 interrogated in the same set of interrogatories, a note should 
 be appended to the foot, stating which of the individual 
 interrogatories each party is required to answer, and no party 
 need answer any other than those so specified (a). There is Delivery, 
 no necessity to serve them personally, but a copy may be left 
 at the office of the solicitor of the party interrogated (b) ; 
 
 («) Lush, Pr. Vol. ii. p. 857. See Hustler v. Freeland, 2 N. E. 396 ; 
 Armitage v. FitzWiUiam, W. N. 1876, 56 ; per Grove, J., 35 L. T. 849. 
 
 (o) S,eeper Wood, V.-C, John. 651. 
 
 [p) See per Lord Langdale, M. E., 10 Beav. 230 ; Higginson v. Blockhy,, 
 25 L. J. Ch. 74. 
 
 (q) See Zambaea v. Ca^samtti, 38 Beav. 503, 
 
 (r) Ord. XXXL r. 2, v. post, p. 203. 
 
 (s) Carter v. Leecl.s, cfcc. Co., W. N. 1876, 11. 
 
 \t) r. post, p. 72. 
 
 (m) Disney v. Longhourne, 2 Gli. B. 704. 
 
 (k) See Jierder v. Cotton, C. A. 1 Q. B. D. 442. 
 
 (z) V. post, (d). 
 
 la) Ord. XXXL r. 1. Chan. Consol. Ord. Sched. B. 
 
 (6) Bowen v. Price, 2 De G. M. & G. 899 ; Little v. RoUrts, 30 L. T. 367 ; 
 See Ord. XIX. r. 6. 
 
72 LAAT ANr> PRACTICE OF DISCOVERT. 
 
 CHAP. V. delivery to the party's solicitor, however, before appearance, 
 ^^°^- ^- is not sufficient, because he is not then the solicitor on the 
 record (c). Where no appearance has been entered for the 
 party interrogated, they may be delivered by filing them 
 Delivery oat of with the proper officer in the central office (d). Where it is 
 ]unB ic ion. gQugiit +0 interrogate a party who is out of the jurisdic- 
 tion (e), the order made for the service of the writ (/) should 
 also provide for the future service of interrogatories, being 
 expressed, as regards the latter, to come into operation from 
 and after the issuing of the writ, so as to save the expense of 
 a separate application for that purpose (g). In the Court of 
 Chancery interrogatories might be amended, on obtaining an 
 order for that purpose, but no such practice existed in the 
 common law courts, or is provided for by the new rules of 
 practice, the proper course apparently being to obtain leave 
 to deliver a further set instead of amending the original 
 set (A), 
 
 Sect. 2. — Of the mode of objecting to interrogatories. 
 
 Sect. 2. The mode in which objections to interrogatories should be 
 
 taken depends upon the nature of the objection made, i.e., 
 whether it is to the question being put, or to an answer 
 Striking out or being enforced. According to the new rules of practice, if 
 intern atories ^^^ contention of the party interrogated is either that the 
 interrogatories as a luhole have been exhibited unreason- 
 ably, {i.e., without any reasonable object) or vexatiously, or 
 any particular question is objected to as being scandalous (i), 
 {i.e., scandalous and irrelevant), application may be made 
 to set them aside in toto, in the former case, or strike out 
 the particular question alleged to be objectionable, in the 
 latter {k). Interrogatories which have been delivered jpre- 
 
 (c) Sanhey v. Alexander, Ir. Rep. 7 Eq. 407. 
 
 (cCj Orel. XIX. r. 6. 
 
 (c) See Fold v. Younc), 25- L. J. Q. B. 23. 
 
 (/) See Ord. II. i-. i. 
 
 (gr) Young v. Brcmey, 1 Ch. D. 277 ; see Dan. 405. In such a case the 
 order must fix a reasonable time for answering, instead of the usual ten davs 
 (_The Ermna, 34 L. T. 742). •' 
 
 (K) V. ante, p. 70. 
 
 (i) V. post, p. 86, as to what is scandalous. 
 
 Q() Ord. XXXI. r. 5 (Rs. Nov., 1878, i. 3). The mere fact that interro- 
 gatories are open to ciiticisra is no reason for striking them out ( Winters v 
 Pahbs, W. N. 1876, 21). ° ^ '°™ ^- 
 
MODE OF OBJECTING TO INTERROGATORIES. 73 
 
 onaturely may be struck out as being " exhibited un- chap. v. 
 reasonably or vexatiously " {I), but the mere fact that inter- ^^°^- ^- 
 rogatories in an action for damage by collision between two 
 vessels, ask for the same information as will be afforded by 
 the Preliminary Act of the party interrogated, is no reason 
 for striking them out under this rule (m). Although it is Utterly irrcle- 
 no longer a ground for applying to strike out or set aside 
 interrogatories that they are irrelevant, or not put bond fide 
 for the purpose of the action (n), yet if the whole, or the 
 great majority of them were so utterly irrelevant as to show 
 that they were not administered bond fide for the purpose of 
 the action, such an application might be entertained (o). 
 The oiMts in such cases is on the pai-ty objecting to show Onws lies on 
 what particular interrogatories offend, or that the whole of 
 them offend, against the provisions of the rule, which must 
 be done by the summons to strike out or set aside, and it is the 
 duty of the Judge or Master to deal with the interrogatories 
 not en bloc, but individually [p). Where, however, the great 
 majority of the interrogatories are objectionable, or the objec- 
 tionable ones are so intermingled with the unobjection- 
 able that it is impossible or very difificult to separate 
 them, the whole may be struck out or set aside, without 
 requiring the party applying to specify those which he 
 objects to in particular (g). After the decision of the 
 Court of Appeal in Lyell v. Kennedy, that a plaintiff in 
 an action for the recovery of land founded upon the title 
 was not entitled to deliver interrogatories at all in such 
 an action to the defendant (r), the logical result would 
 have been that such interrogatories should be disallowed 
 from the beginning as " vexatious," and Lord Justice Brett 
 expressed himself to this effect (s), and, following this de- 
 cision, it was decided that in an action brought solely to 
 recover 'penalties, the Court would not allow the defendant 
 
 (T) Per Pollock, B., Gay v. LahaucTiere, i Q. B. D. p. 207; Fenwick v. 
 Johnston, W. N. 1876, 54 ; Drake v. IVhiteley, ib. 55. 
 
 (to) The Madnorshire, 5 P. D. 172. 
 
 (re) See Ord. XXXI. r. 5. 
 
 (o) See per James, L. J., in AUhusen v. Laboiwhere, 3 Q. B. D. C. A., 654, 
 659 ; per Cotton, L. J., ib. 
 
 ip) Jllhusen v. Labouchere, supra. 
 
 {q) Beeper Jessel, M. R., in Fisher v. Owen, C. A., 8 Ch. D. 645, 652 ; and 
 the judgments of the liOrds Justices in AUhusen v. Labouchere. 
 
 (r) 20 Ch. D. 484 (reversed upon this point ; v. post, p. 165)^ 
 
 (s) Ib. 491. 
 
7-1 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. V. to be interrogated at all, on the ground that such discovery 
 
 ^^°*' ^- would not have been allowed in the Court of Chancery (t). 
 Application by The application must be made by summons at chambers, 
 chMnbers ^* within four days from the service of the interrogatories (u), 
 and, unless the objection is to the interrogatories as a whole, 
 the summons must, as above stated, specify the particular 
 interrogatories objected to (a;), (which may be done by number), 
 and the grounds of the objection (y). It is not, however, a 
 condition precedent to their being dealt with under this 
 rule that the objectionable ones should be so enumerated, 
 the Master or Judge having a discretion to deal with any 
 which he may consider objectionable if pointed out to him 
 at the time of the application, and the summons or motion 
 may be amended or adjourned, if necessary, to enable the 
 objection to be raised to particular interrogatories (z). Where 
 interrogatories are struck out or set aside, it is usually ex- 
 pressed to be " without prejudice to any fresh interrogatories 
 which the party may be advised to deliver " (a). 
 All other objec- In all other cases, and in cases where the party has not 
 tims to be availed himself of his right to apply to strike out or 
 answer. amend (6), the objection must be taken in the answer, and 
 
 the ground or grounds of it stated (c). It is not the business 
 of the Master or Judge at chambers, before whom objections 
 to interrogatories are brought, to settle the interrogatories (d), 
 but they may be weeded or pruned down by him, if he think 
 fit to do so (e). Where a Judge has gone though the inter- 
 rogatories and ordered them to be struck out, upon grounds 
 on which he could rightly exercise a discretion, the Court of 
 Appeal will not interfere with it (/).■ 
 
 (t) Eunnings v. Williamson, 10 Q. B. D. 459. Similar interrogatories were 
 disallowed in one case by Lnsh, J., at chambers, apparently on the same 
 grounds {Anon. Vf. N. 1875, 219), and allowed in another by Huddlestone, J., 
 as being a matter of discretion {Society of Apothecaries v. Nottingham, ib. 
 259). See Chadwick v. Ch., 22 L. J. Ch. 329. 
 
 (u) Ord. XXXI. r. 5. 
 
 (a;) Allhusen v. Zaboucliere, C. A., S Q. B. D. 654. 
 
 ly) Per Brett, L. J., 3 Q. B. D. 663. A form of summons is given in 
 the Appendix, post, p. 194. 
 
 (s^ Per Brett, L. J., ib. 
 
 {a) See Anon. W. N. 1876, 23, 39. 
 
 (b) V. ante, p. 72. 
 
 (c) Gay V. Labouchere, i Q. B. D. 206 ; FisJier v. Owen, C. A. 8 Ch. D. 645. 
 
 (d) Wintersv. Dabbs, W. N. 1876, 21; see Phillips v. Emmens, 5 N. K. 248. 
 («) Carter v. Leeds, dec. Co., ib. ; Wilton v. Bignell, ib. 1875, 239 
 
 (/) See Fisher v. Owen, C. A, 8 Ch. D. 645. 
 
FURTHER INTERROGATORIES. 75 
 
 Sect. 3. — Further Interrogatories. 
 
 A party is not at liberty to deliver more than one set of chap. v. 
 interrogatories to the same 2>o,'>'iy without an order for that ^^° ^" ^' 
 purpose (g). 
 
 In practice the cases in which it is most frequently sought Where plead- 
 to administer further interrogatories to the same persons '°^ amended. 
 are those in which a party has amended his pleadings, 
 raising a fresh claim or defence, and seeks discovery in 
 support of his amended case, or where the party, since the 
 delivery of his original interrogatories, has discovered fresh O'- fresh matter 
 matter as to which he wishes to interrogate his opponent (h), 
 or it is otherwise important to him that he should do so for 
 the purpose of making out his case (for it is not necessary 
 that he should have discovered new matter) (i), or is in a 
 position to put his questions in a more specific form, not 
 having obtained a satisfactory answer before from a defect 
 in that respect (k). In order to obtain leave he ought to 
 come to the Court with such materials as to show that, plus 
 the interrogatories already exhibited, he has a case which 
 entitles him to a further examination of the opposite party, 
 and it will not be granted upon a mere surmise that he may 
 learn something more on a second examination, the maxim 
 being that nemo debet bis vexari (I), or where the further 
 discovery must be of the most trivial kind (m), or by way 
 of cross-examination upon the answers already given. 
 Where leave is given to a party who has amended his Further 
 pleadings to deliver further interrogatories, the original in- ghtuTdbe"""^ 
 teiTOgatories having been already sufficiently answered, the confined to 
 further set should be confined to the new matters introduced "^ ™^ 
 by the amendment, and should not be repetitions of the 
 former questions («), as otherwise the party inten'ogated may 
 
 (0) Ord. XXXI. r. 1 ; Stvire v. Redman, C. A., 20 S. J. 584. 
 
 (h) Warden v. Peddington, 32 Beav. 639 ; see Ord. XXVII. rr. 1 — 3, and 
 1. 6. Semble, an order to amend the interrogatories should be obtained at the 
 same time as the order to amend the pleading. 
 
 (i) See Crossly v. Dixon, L. R. 6 Eq. 332 ; Few v. Guppy, I Myl. & Cr. 
 
 487. 
 (k) Swire v. Redman, ante. See Lord Water/ord v. Knight, 3 CI. & F. 270. 
 
 (1) See Re Meir. Bank, 0. A. 15 Ch. D. 139. 
 (m) See Mertens v. Baigh, W. N. 1867, 198. 
 
 (n) Hill V. N. By. of Buenos Ayres, i\ L. J. Ch. 69 ;. Drake v. SynKs, 2 
 De G. F. & J. 81 ; Wieh y. rarkcr, 22 Beav. 59. 
 
76 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. V. decline to answer them on that ground (o), or, semble, apply 
 ^^°^- ^- to have them set aside as unreasonable and vexatious (p), 
 but the case is different where the first set has not been 
 Costs. sufficiently answered (q). The costs of the application, and 
 
 the further interrogatories and answers, if not dealt with by 
 the order, would be, as usual, costs in the action ; in a case 
 where ambiguity and defects in the form of the first set had 
 rendered it desirable to re-interrogate, the party so applying 
 was ordered to pay the costs of the application (r). 
 
 A party cannot, however, by amending his pleading, re- 
 instate himself in any right which he has already lost, e. g., 
 of delivering interrogatories without an order for that pur- 
 pose (s). 
 
 (o) Hill V. N. Ey. of Buenos Ayrss. 
 
 (p) Drake v. Symes ; JSTewry v. Kilmorey, L. E. 11 Eq. 425. 
 (9) lb. 
 
 (r) Tliompsmiv. Wymw, Ir. R. 1 C.,L. 600. 
 
 (s) South. Boat, &c. Co. v. Rawlins, 12 "W. K. 285 ; Denis v. Eochussen, 4 
 Jur. N. S. 298 ; see Ord. XXXI. r. 1. 
 
CHAPTER VI. 
 
 ANSWERS TO INTERROGATORIES. 
 
 Sect. 1. — Fm'm of and requirements as to ansiuers. 
 
 A^^SWERS must be signed by the deponents, such signature chap. VI. 
 being affixed or acknowledged in the presence of the person ' ' 
 
 before whom they are sworn (a), and, unless the Court other- Answers must 
 wise directs, the answers of all persons, except the sovereign 
 of this country and the Attorney-General, as representing 
 the sovereign, and persons exempted by statute from taking 
 an oath, must be put in upon the oath of the parties making 
 them (b). Persons entitled to the privilege of peerage in prac- 
 tice answer upon oath, though entitled to protest on honour (c). 
 An order will not be made, even under very special circum- 
 stances, for taking an answer without oath, unless by consent 
 of the opposite party (d), nor can the oath be dispensed with 
 by the agreement of the parties themselves out of Court (e). 
 In the Court of Chancery, an infant might answer by guar- infants, 
 dian or next friend (/), an idiot or person of unsound mind (not l"'>**^<=^' ^''• 
 so found by inquisition) by guardian, and a lunatic (so found) 
 by his committee (if any) or guardian (ff). Married women. Married 
 when suing or sued with their husbands, might either ^^"^ 
 answer jointly with them or, by leave of the Court, put in a 
 
 (a) Ch. Cons. Ord. XV. r. 5. : Dan. 637. 
 
 (t) Ord. XXXI. r. 6 ; Dan. 638 ; Prioleau v. U. S., L. E. 2 Eq. 659, 663 
 seq., per Wood, V. -C. The persons statutorily exempted are Quakers, 
 Moravians, Separatists, ex-Quakers, and ex-Moravians (3 & 4 Wm. IV., c, 49 ; 
 ib c 82 ; 1 & 2 Vict., e. 77), who are permitted to affirm. 
 
 '(c) Cons. Ord. XV. r. 6. 
 
 (d) Anon., 1 L. J. Ch, (0. S.) 4 ; see £acony. Turner, W. N. 1876, 292. 
 
 (e) See PilkingUrn v. Birmsworlh, 1 Y. & C. 612. 
 
 (/) Dan 153 ; Crowe v. Bank of Ireland, 5 Ir. L. R. Eq. 578 ; JHppin v. 
 Dolman, 2 W. R. 432. 
 
 (ff) Dan 158 seq. Secus, in case of mere bodily illness {Willyams v. 
 Hodge, 1 H. & T. 575). 
 
78 
 
 CHAP. VI. 
 
 Sect. 1. 
 
 Printing 
 answer. 
 
 Schedules are 
 included in 
 answer. 
 
 LAW AND PEACTICE OF DISCOVERY. 
 
 < 
 separate answer (g). If the husband was unable to procure 
 the wife to concur in a joint answer, he might apply for 
 an order to that effect, and that he might be discharged 
 from any further liability for her default (h). If a party 
 dies before answering, and the action is continued against 
 his executors, their answer will be sufficient (i). 
 
 A form which may be used " with such variations as cir- 
 cumstances may require," is provided by the Eules (k). An 
 answer, which does not exceed ten folios in length, may be 
 written merely, but if it exceed that length, unless other- 
 wise ordered, it must be printed {I) in the manner pro- 
 vided for the printing of all proceedings in the Supreme 
 Court (m), which is the same as that hitherto employed in 
 the Court of Chancery (n). In the Court of Chancery the 
 order as to printing (o) was considered imperative (p), so 
 that a plaintiff could not waive the filing of a printed 
 answer {q), but an answer written or printed upon other 
 than the prescribed paper might be filed upon leave being ob- 
 tained for that purpose (r). Schedules, which must either be 
 physically annexed to or incorporated (rr) by reference in 
 the answer, are part of the answer, and must, therefore, be 
 included in the computation of folios (and written or 
 printed on paper of the same nature as the answer itself (s)), 
 but exhibits are not (t). In a case where the schedules were 
 very lengthy, the printing of the answer was, for that 
 reason, dispensed with, under the power of the Court to 
 " otherwise order '' (u). In the Court of Chancery it was 
 
 (g) Dan. 164, 635 seq. ; see Ord. XVI. r. 8. 
 
 {h) See Hope v. Carnegie (No. 2), L. E. 7 Eq. 263 ; Dan. 163 seq. 
 
 (i) Martin v. Braxntr, 3 Eq. R. 680 ; see Pearse v. Dobinson, L. E. 1 Ch. 
 App. 1 ; Trench v. Semple, W. N. 1866, 102. 
 
 (/fc) Ord. XXXI. r. 6 ; Jud. Act. 1875, App. B. Form 8 ; u. App. p. 190. 
 
 (0 Ord. XXXI. r. 7 (as amended by Rs. S. C. June, 1876, i. 11). It seems 
 that every figure counts as one word (see Ord. XIX. r. 5, and Anon., 9 Ha. 
 App. Ixxxiii.). See, as to the practice in Chancery as to filing written answers, 
 order March 6, 1860, rr. 2 — 3, and as to making written alterations in printed 
 answers, Lee v. Dawson, 2 L. T. 230 ; 6 Jur. N. S. 389. 
 
 (m) Ord. LVI. i. 2. See, as to furnishing copies of answers, Rs. S. C. 
 (costs), Ord. V. rs. 3 seq. See, as to erasures, ilottings, interlineation and 
 similar defects in answers and affidavits, Rs. April, 1880, ji'. 15, and Consol 
 Ord. I. r. 36. 
 
 (m) Dan. 659, 322. 
 
 (o) Ord. I., March 6, 1860. 
 
 Ip) See Harvey v. Bradley, 31 L. J. Ch. 775. 
 
 Iq) Bloxsome v. Chichester, 2 De G. J. & S. 444. 
 
 (r) lb. 
 
 (rr) Boldero v. Saunders, 3 N. R. 59. 
 
 («) Whale V. Onffiths, 10 W. R. 57. 
 
 (() Webb V. Bomford, 46 L. J. Ch. 288. 
 
 (u) Webb V. Bomford, 46 L. J. Ch. 288. 
 
FORM OF AXSWEES. 79 
 
 not the practice to print schedules of accounts or docu- chap. vi. 
 
 ments attached to an answer, as office copies might be ° " " . 
 
 made of them (x). Books or other documents referred to 
 in the answer or made exhibits must be deposited in 
 Court (xx). It seems that answers will be allowed to 
 be filed without printing, where only a few copies are 
 likely to be required (y), but the poverty of the party 
 required to answer has been held to be no grouad for 
 dispensing with the printing (z). Answers must be in- Title, 
 tituled in the action in which they are made, in the 
 same way as pleadings are, and should be so intituled, 
 that, in case of a prosecution for perjury, there would 
 be no difficulty raised as to what interrogatories, in what 
 action, and of whom it was intended to be the answer (a). 
 They must be filed, in the central office, or in a district Time for 
 registry if the action is proceeding there (b), and not merely =i-°3'"^""S- 
 sworn (c), within ten days from delivering of the interroga- 
 tories, or such other time as may be allowed for the pur- 
 pose (d). Where a married woman obtains an order to 
 answer separately from her husband (e), the time for answer- 
 ing runs from the date of the order, and not from the time 
 of delivering the interrogatories (/). Where the party 
 required to answer is out of the jurisdiction, a reasonable 
 time must be allowed him for doing so (g), which may 
 be fixed by the order giving leave to deliver the inter- 
 rocratories out of the jurisdiction (h). In the Court of 
 Chancery, as a general rule, four times the time which it 
 would ordinarily take to reach the place where the party 
 was residing out of the jurisdiction was allowed for answer- 
 
 (x) See Order 6th March, 1860, r. 2 ; Dan. 680 ; A.-G. v. Edmunds, 15 
 L. T. 343 ; Wright v. Wilkin, 32 L. J. Ch. 227. 
 
 {xx) A.-G. T. Edmunds ; Lafone v. Falk. Isl. Co., 3 K. & J. 267. 
 
 (!/) Anon., W. N". 1875, 218. 
 
 \z) Meux V. WatMns, 7 Jur. N. S. 704, 
 
 (a) Dan. 634 ; see Rdbheth v. Squire, 10 Ha. iii. ; Harford v. Bees, 9 
 ib. Ixviii. 
 
 (J) Ord. XIX. r. 29. 
 
 (c) See Garter v. Stubhs, C. A. 6 Q. B. D. 116 ; c/ Cons. Ord. VIII. i. 5. 
 
 (d) Ord. XXXI. r. 6. Under this rule the time for answering may be 
 shortened as well as extended {see Bamsden v. Brearley, 33 L. T. 322). 
 Appeals are not encouraged (Peru v. Euzo, 30 L. T. 190). 
 
 (e) 7. ante, (g). 
 if) Dan. 166, 642. 
 
 Ig) The Emma, 24 W. R. 587 ; E. <k W. Ind. Dock Co. v. Littledale, 7 Ha. 
 
 57. 
 
 \h) See Young v. Brassey, 1 Ch. D, 277 ; Dan. 377 ; cf. Chan. Cons. Ord. 
 
 X. r. 7, Arts. 1-2. 
 
80 
 
 LAW AXD PRACTICE OP DISCOVERY. 
 
 CHAP. VI, 
 
 Sect. 1. 
 
 Filing. 
 
 Enlargement 
 of time for 
 answering. 
 
 it)g (i) ; three months from service of the interrogatories 
 . has been considered sufficient in the case of a party residing 
 in the United States (k). 
 
 The party by whom, or on whos,e behalf the answer is filed 
 must leave a copy with the proper officer (which must be 
 printed where the original is required to be so) (l), who will 
 examine and mark it as an office copy (tti), and notice 
 of the filing must be given to the opposite party on the 
 same day (n). The fact of the filing may be proved by the 
 registrar's certificate, or by an office copy (o). 
 
 Applications for further time to answer are made by 
 summons at Chambers (p). It was not the practice of the 
 Court of Chancery to require an affidavit when the applica- 
 tion was made for the first time, the statement of counsel 
 as to the necessity for fm-ther time being accepted as suffi- 
 cient (q), though, there was a discretion as to requiring one, 
 and the applicant was required to show " due diligence " on 
 his part and " sufficient cause " for the extension (r), that is, 
 not only that the extended time he asked was necessary at 
 the time he made his application, but that he could not 
 (using due diligence from the beginning) have avoided the 
 necessity of making it (s). Where the facts were not dis- 
 puted there was no occasion for an affidavit to that effect, 
 but the mere silence of the opposite party was not con- 
 sidered equivalent to " sufficient cause " being shown by 
 the applicant (t). There is less necessity now for indul- 
 gence in granting extensions of time, as an answer is no 
 longer a statement of the party's defence, a considera- 
 tion which was not unimportant in estimating the time to 
 be allowed for putting it in (w). Where a party obtains further 
 time for answering, it is on the understanding that a bond 
 fide answer will be put in, and not a mere profession of 
 inability to answer (x). 
 
 (i) See Dan. 377 (m). 
 (4) Sivers v. M'Donald, Ir. R. 5 Eq. 592. 
 {I) Es. S. C. (Costs) Ord. V. r. 6 ; see Dan. 657, seq. 
 (m) See, as to using office copies in eFidence, post, p. 103 (I), 
 (n) Chan. Consol. Ord. III. r. 9. 
 
 (o) Bell V. B.,li Jur. 1129 ; JoTies v. J., 3 W. R. 638. 
 (p) They need not be drawn up (Rs. S. C. May, 1883, r 
 (q) For a form of application, see Appendix, p. 198. 
 (?■) Ch. Cons. Ord. XXXVII. r. 8 ; Dan. 642. 
 Is) See per "Wigram, V.-C, 7 Ha. 65. 
 (t) Broicn v. Lee, 11 Beav. 162. 
 («) See York, etc. By. Co. v. Hudson, 13 Brav. 69. 
 (x) Financial Corporation v. Bristol, d:c. By. Co. 
 Lynch v. Leccsnr, 1 Ha. 620. 
 
 10). 
 
 L. R. 3 E(i. 422 ; see 
 
AMENDIXG ANSWER. 81 
 
 The costs of applications for an extensiou of the time chap. vi. 
 for answering are in the discretion of the taxing-master, ^^"^^ ^- 
 unless dealt with by the order made on the application {y). ^'>^*^- 
 The costs of an answer containing unnecessary matter, or 
 of unnecessary length, may be disallowed on taxation, and 
 in such case the party answering must pay the costs occa- 
 sioned to the other parties by such unnecessary matter or 
 length (z). 
 
 Amending ansiver. 
 
 A party will, in some cases, be allowed to amend his Amending 
 answer to interrogatories ; thus, where he has been required 
 by interrogatories to disclose the facts on which he intends 
 to rely in support of his case, in the same way as he might 
 have been compelled to by particulars (a), if he should sub- 
 sequently to filing his answer discover that there are other 
 facts on which he may fairly and reasonably rely, he will be 
 allowed to amend it in this respect, just as he might have 
 amended his particulars, and set up those other facts (b) ', 
 or, instead of amending or adding to his answer, he may, 
 according to the modern practice in the Court of Chancery, 
 file a supplemental answer (c). Again, if a party, by his Supplemental 
 answer, states or admits as a fact that which turns out not ^°^'^^''' 
 to ba a fact, and has done so by mistake, upon an applica- 
 tion being made, the Couii, when satisfied that it is a 
 mistake, will not hold him bound, so far as he may be 
 relieved by the filing of a supplemental answer (d). But When allowed. 
 in order to justify the Court in granting such an application, 
 it is requisite, not only that it should be thoroughly satis- 
 fied that the admission of fact was a mistake at the time, 
 but that it should have it proved to its satisfaction how the 
 fact now is, and that the arrival at the truth has arisen 
 from the discovery of some document not known to the 
 
 (2/) Rs. April, 1880, 65. In the Court of Chancery, as a general rule, the 
 costs of a first application were costs in the cause ; cf. r. 22 of Rs. S. C. (Costs) 
 1875, annulled by the above rule. 
 
 (2) Es. S. C, 1875 (Costs), Ord. VI. r. 18. 
 
 (a) V. ante, p. 36. See as to explaining away inadvertent admissions, 2>ost, 
 p. 131. 
 
 (V) Per Thesiger, L. J., 7 Ch. D. 452 ; per Cockbura, C. J., 4 Q. B. D. 207. 
 See, as to amending answers generally, Dan. 679 seq. 
 
 (c) Seeder Kiudersley, V.-C, in OlmoHon v. Prewen, 35 L. J. Cb. 97, 98. 
 
 (tZ) Seeder Kindersley, V.-C, uU supra; [s.c.) L. R. 1 Eq. 238. 
 
82 LAW AND PEACTICE OP DISCOYERT. 
 
 CHAP. Vi. parties at the time (e). Such an amend ment will not be 
 
 °° ' ' — allowed, however, where the object is to avoid a threatened 
 
 prosecution for perjury upon the statements contained in 
 the original answer (/). The application should be sup- 
 Affidavit, ported by an affidavit, showing- that at the time of putting 
 in the answer the party did not know the circumstances on 
 which he makes the application, or any other circximstances 
 upon which he ought to have stated the fact otherwise (g) ; 
 a statement in general terms of the fact of the mistake 
 having been made, is not sufficient (h). Where it is merely 
 desired to amend errors in the answer, the proper course is 
 to apply to have it taken off the file that it may be amended 
 and resworn. 
 
 Sect. 2. — Particular grounds of objection to answer. 
 
 Sect, g. After enumerating certain specified grounds for objecting 
 
 Other grounda to answer interrogatories (which have already been con- 
 aLw'^r."*'"" *° sidered in detaU) {hh), rule 5 of Order XXXI. goes on to pro- 
 vide that objection may be made to answer, " on any other 
 grounds," i.e., on any grounds ejusdem generis with those 
 aJready enumerated (i), which according to law entitle the 
 party not to answer Qc) (for the Judicature Acts do not give 
 any right to decline answering interrogatories which did not 
 exist before (Z), although they enable a party to protect himself 
 from answering in a way in which he could not have done 
 formerly) (m), and, it has been said, appear on the face of the 
 pleadings (to). 
 
 The following have been held to be grounds for 
 declining to enforce an answer, or disallowing the inter- 
 rogatory, according to the practice of the respective Courts 
 in which the question has arisen. 
 That question J, That the matters inquired into are matters of opinion, 
 
 (6) lb. 
 
 (/) See Phdps v. Prothero, 2 Dr. & Sm. 274. 
 (gr) Per Lord Eldon, L. C, 10 Ves. 401 ; see Dan. 681. 
 , (h) Ohurton v. Fremn, 35 L. J. Ch. 97, L. R. 1 Eq. 238. 
 {hh) See Chap. IV. 
 
 (i) See per Jessel, M. R., 8 Ch. D. 652 ; per Cur., Bade v. Jambs, 47 L J. 
 Ex. 74, 76. 
 
 (*) Seeder James, L. J., 3 Q. B. D. 658. 
 
 (Z) A.-G. V. GasHll, C. A., 20 Ch. D. 519. 
 
 (m) Per Cotton, L. J., ib. 528. 
 
 \n) Per Dennian, J., 35 L. T. 850. See Forms, post, p. 190. 
 
PARTICULAR OBJECTIONS TO ANSAVERING. 83 
 
 or of law, not of fact, and, therefore, not such as the party chap. vi. 
 interrogated can fairly be required to admit or deny (nn) ; ^^°^- ^- 
 thus, in an action against a professional man for negligence, ^^ *^ *" matter 
 interrogatories asking luhat steps it was his duty to take 
 under the instructions given to him were disallowed (o), but to 
 ask whether a certain way has not always been used as a public 
 footpath, is not asking a question of law (p). In determining 
 whether a question is one of fact, and, therefore, to be 
 answered, it makes no difference that it is so stated as to 
 refer to the subject-matter of a written document (q). 
 
 2. Interrogatories seeking to contradict a written document Rule as to in- 
 by showing that the intention of the parties to it was other to"°ntente of 
 than that expressed in it, were disallowed in the common documents. 
 law courts as violating the rules of evidence (r), but it is 
 obvious that they would be admissible, in support of a claim 
 for the reformation of the contract properly raised on the 
 pleadings. In the common law courts, a party could not 
 be compelled to set out the contents of a document in answer 
 to interrogatories, unless the non-production of the original 
 was prima facie accounted for, so as to let in secondary 
 evidence thereof (s), and the question arose in a recent 
 case (t), whether the Judicature Acts had altered the 
 practice in this respect. The Court (Grove and Bowen, JJ.), DdlrympU v. 
 affirming the decision of Lindley, J., at chambers, held that "^ **' 
 they had not, and that the defendant could not be compelled 
 to answer further, and Bowen, J., said (u), " I desire to say 
 nothing against the useful practice of simplifying proof by 
 obtaining admissions throiigh interrogatories, even as to 
 written documents (a;). But down to the passing of the 
 Judicature Acts the rule at common law certainly was that, 
 where a person was asked on interrogatories to verify the 
 contents of an existing document not in his possession, a 
 demand to see the document before he answered was always 
 
 (nn) W. pi. 187 ; Dan. 625. 
 
 (o) WhaMy v. Crawfm-d, 25 L. J. Q. B. 163 ; see PUlUps v. Barron, W. N. 
 1876, 54. 
 
 (p) See A.-e. V. GasMll, 20 Ch. D. 519. 
 
 (q) Hoffmann v. Postill, L. R. 4 Ch. App. 673. 
 
 (?•) Moor V. Moberts, 2 C. B. N. S. 671. 
 
 {s) Herschfidd v. Clarice, 11 Ex. 712 ; Wolverhampton Water Co. v. 
 SawTcsford, 5 C. B. N. S. 703 ; Scott v. Zygomala, 4 E. & B. 482 ; see Filz- 
 gibbon v. Greer, Ir. Rep. 9 C. L. 294. 
 
 [t) Dalrymple v. Leslie, 8 Q. B. D. 5 (application for further answer as to 
 contents of alleged libel). 
 
 (u) lb. p. 8. 
 
 (x) Dan. 305—6. See Forms, post, pp. 189 seq. 
 
 G 2 
 
84 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. VI. 
 Sect. 2. 
 
 Opportunity 
 of inspection 
 stould be 
 given. 
 
 Unfair, 
 vexatious or 
 oppressive 
 questions. 
 
 No olDJection 
 that informa- 
 tion can be 
 obtained 
 aliunde. 
 
 allowed. I do not think the Judicature Acts have altered 
 this rule, nor do I think that any law or authority exists by 
 which a person can be compelled to set out his imperfect 
 recollection of a document not produced for his inspection, 
 which is not suggested to be lost or beyond the jurisdiction 
 of the Court, or which, for anything that appears to the 
 contrary, might even be in the possession of the interrogat- 
 ing party " {y). 
 
 An answer will not be enforced to questions which, 
 though in strictness such as the party is entitled to ask, 
 are not such as to conduce to the furtherance of justice 
 or the promotion of truth, or are unfair, unjust, vexatious, 
 or oppressive {z). There is nothing unfair, however, in 
 inteiTogating a party as to his conversations with a person 
 who will probably be called by the party interrogating as his 
 witness (a), as he has a right to get from his opponent his 
 version, to the best of his recollection, of the conversation (&). 
 
 It is no ground for declining to answer interrogatories 
 that the interrogator knows as much about the matters 
 inquired into as the party interrogated, or that the same 
 information could be obtained aliunde, (for it is one of the 
 very objects of discovery to facilitate proof) (c), e.g., by cross- 
 examining the party inteiTogated at the trial, the functions of 
 discovery and the functions of cross-examination being 
 totally different {d), or that they seek admission or denial 
 upon oath of the whole matters in question between the 
 parties (e). It is an abuse, however, of the process of the 
 Court, to interrogate the opposite party straight through all 
 the statements in the claim, as was a common practice in the 
 Court of Chancery, whether it is desirable or reasonable or 
 not that discovery should be obtained on the matters con- 
 tained in those statements (/), or to require a party to 
 admit on oath that which he has already admitted by his 
 pleading (g). 
 
 (y) See j3«r Whiteside, C. J., Ir. Rep. 9 C. L. 298 ; i)«r Lord Langdale, M. K., 
 4 Beav. 237. Inspection should he offered by the interrogatory (post, p. 189) 
 
 {z) See per Bertt, J., L. R. 10 C. P. 236 ; Dalrymple v. Leslie, 8 Q. B. D. 6 • 
 Bade v. Jacobs, 0. A., 5 Ex. D. 335 ; A.-O. v. GasMll, C. A. 20 Ch. D. 519. 
 
 (a) See^.-G. v. GasUU, 0. A., 20 Ch. D. 519. 
 
 (h) See per Jessel, M. R., 20 Ch. D. 527 ; per Cotton, L. J., ib. 529 
 
 (c) V ante p 2 4.-ff y. Qaskill, C. A., 20 Ch. D. 519 ; Lyell v. Kennedy 
 (_xi. Lj. J, 52 Li. J. Ch. 385. 
 
 (d) See per Lindlcy, L. J., ib. 530. 
 
 (e) A.-G. V. Gaslcill. 
 
 (/) Per Jessel, M.R., ib. 526 ; per Cotton, L. J., ib. 528. 
 (cf) Per Lindley, J., ib. 530. 
 
PARTICULAR OBJECTIONS TO ANSWERING. 85 
 
 It is no ground for refusing to give discovery that the chap. vi. 
 party seeking it is in contempt, if he appears to really stand ^^°^' ^- 
 in need of it for the purposes of the action Qi), or that he has 9"^ *^* p^^ 
 no right to the relief claimed by him (i), or that somebody Jg ^'contempt, 
 else, not before the Court, is interested in the matters in- °^ *^* ^^^^ 
 quired into, and objects to or would be prejudiced by the te prejudiced, 
 disclosure, for in discovery, the only question is, whether, as 
 between the party interrogating and the party interrogated, 
 the former is entitled to an answer to the question which 
 he asks ; if he is, the latter is bound to answer it satis- 
 factorily, or, at least, to show that he has done so as far as 
 his means of information will permit (Ic). 
 
 Interrogatories as to the possession of documents generally Interrogatories 
 were allowed before the passing of the Judicature Acts both possession of 
 in the Court of Chancery and the Common Law Courts, documents. 
 though in the former Court the party interrogated might 
 decline to answer it, and offer to make an affidavit of docu- 
 ments instead (Z). Such an interrogatory need not be 
 answered under the present practice, the proper mode of 
 obtaining discovery of documents being that pointed out by 
 Order XXXI. r. 12 (-ni), but a party may be interrogated 
 as to the possession ot particular documents, and this is the 
 proper course to take when there is reason to suspect that 
 he has other documents than those admitted by him in his 
 affidavit of documents (n), or that the nature and effect of 
 documents claimed to be privileged has been misconceived 
 or mis-stated by him (o). 
 
 Of the objection that the interrogatories are scandalous. 
 
 In addition to the above grounds of objection, there is a Scandal. 
 further one which may arise in the case of interrogatories, 
 viz., that they are scandalous. Scandal consists in the 
 
 (h) V. post, pp. 96, 106, 127, 152. 
 
 (i) Lush, Pr. 858 ; see per Wigi-am, V.-C, 1 Ha. 189. 
 
 \k) See per Lord Cottenham, L. C, Cr. & Ph. 111-2. 
 
 (Z) Dan. 1675 ; Pijfard v. £eeby, h. R. 1 Eq. 623 ; „. post, p. 191. 
 
 (m) Pitten v. Uhatterburg, W. N. 1876, 248 ; Carter v. Leeds, die. Co., ib. 
 1876, 11 ; Barnicot v. Harris, ib. 9. 
 
 («.) Jones V. Monte Video Gas Co., C. A., 5 Q. B. D. 556 ; the interrogatories 
 may in such a case be general, i.e., as to what relevant documents he has in 
 his possession (ib. ), or as to the possession of particular documents, and also 
 as to what other documents he has ever had {Lelhbridge v. Cronk, 44 
 L. J. C. P. 381). 
 
 (o) Calt V. Tpurlc, 22 L. T. 775. 
 
86 
 
 CHAP. VI. 
 Sect. 8. 
 
 Definition of 
 scandal. 
 
 Nothing 
 relevant is 
 scandalous. 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 allegation of anything which it is unhecoming the dignity of 
 the Court to hear, or is contra bonos mores, or which in- 
 volves an unnecessary (i.e., irrelevant) charge of crime or a 
 moral offence (p). Nothing, however, is scandalous which is 
 relevant (q). No imputation whatever is too bad to be 
 accepted by the Court and allowed to remain on its files, if 
 it be relevant (r). There are two ways of raising this objec- 
 tion, viz., (1) by applying to strike out the obnoxious 
 question, and (2) by objecting to answer it (s) ; the former 
 is that usually adopted. 
 
 Sect. 3. — Of the sufficiency of answers. 
 
 Sect. 3. 
 
 Scandal. 
 
 Impertinence 
 or prolixity. 
 
 Answers might formerly have been excepted to, and can 
 now be called in question upon a summons for a further 
 answer (the process of exceptions having been abolished) {t), 
 for scandal, iinpertinence, or general insufficiency (u) ; an 
 answer containing scandalous matter may also, as formerly, 
 be ordered to be taken off the file, or to be purged of the 
 objectionable matter, upon application being made to that 
 effect (a;). Impertinence, in the sense of prolixity or the 
 statement at unnecessary length of necessary facts, was and 
 still is, matter for costs only (a), but impertinence in matter, 
 i.e., the statement of facts unnecessary to be stated, tends to 
 embarrass (6). Nothing ought to be in the answer except 
 
 (p) See Dan. 290 ; Coyle ■/. Chiming, 40 L. T. 465 ; Duncan v. Vereker, 
 W, N. 1876, 64 (objectional details struck out of pleading) ; Oashinv. Crad- 
 dock (No. 2), 3 Ch. D. 376. 
 
 (q) lb. ; Blake v. Albion Life Ass. Co., 45 L. J. C. P. 663 : Christie v. 
 Christie, L. R. 8 Ch. App. 499; Fisher v. Owen, C. A., 8 Ch. D. 645; 
 Allhusen v. Labouchere, C. A., 3 Q. B. D. 654. 
 
 (r) Per Wickens, V.-C, 26 L. T. 766. 
 
 (i) Ord. XXXI. r. 6. This was so under the repealed rules 5 and 8, for 
 which the above rule is substituted (see Fisher v. Owen, supra). 
 
 (t) Ord. XXXI., rr. 9, 10. 
 
 (m) Dan. 661 seq. 
 
 {x) See Dan. 292 ; Consol. Ord. XVI. i. 21. This may be done at the 
 instance of a stranger to the proceedings, as well as of a party, or by the Judge, 
 suo motu {per Fry, J., Cracknall v. Janson, 11 Ch. D. 1). Costs are allowed 
 as between solicitor and client {Christie v. C, L. R. 8 Ch. App. 499) ; 
 Pearse v. P., 29 L. T. 453). See a form of summons, post, p. 199. 
 
 {a) See 15 & 16 Vict. c. 86, s. 17 ; Cons. Ord. XL. rr. 9—10 ; Owens v. 
 Emmeiis, W. N. 1875, 210, 234. 
 
 {b) See per Baggallay, L. J., in Davy v. Garrett, C. A., 7 Ch. D. 473, 486 ; 
 per Thesiger, L. J., ib. 488 ; Furber v. King (No. 2), 29 W. R. 536 ; v. 
 post, p. 90. 
 
SUFFICIENCY OF ANSWEE. 87 
 
 that which is called for by the bill, or would be material chap. vi. 
 with reference to the order or decree which may be made ^^°*- ^- 
 at the hearing of the cause (c). To re-answer iu a 
 further answer interrogatories already fully answered is im- 
 pertinence (d). 
 
 According to the practice of the former Court of Chancery Substantial 
 a highly technical degree of fullness and sufficiency was re- sXimt. 
 quired in answering (e), though in modern times the old 
 practice of requiring a categorical answer to every interroga- 
 tory was so far departed from as to allow a party to avoid 
 answering a particular interrogatory where it would be en- 
 tirely useless, and would entail mere trouble and expense (/), 
 and where interrogatories were oppressively minute, it was 
 enough if they were fairly and substantially, though not 
 technically, answered (g). Under the new practice, the Court 
 is not directed to deal with answers as on exceptions taken 
 in the Court of Chancery, but will look at the question, the 
 answer, and the surrounding circumstances, and consider if 
 anything impoiiant has been omitted from the answer (h). 
 In a recent case (i) Cotton, L. J., said, " Whatever the old prac- 
 tice in Chancery may have been, I think that if a question 
 has been substantially answered, a further answer ought not 
 to be compelled " (k), and Brett, L. J., expressed an opinion 
 that the former practice was not binding with respect to 
 answers (Z). It is still, however, a question not of discretion 
 but of right. As a matter of right is the interrogator entitled 
 to the information he seeks, or is his opponent entitled to 
 refuse to give it (m) ? 
 
 Answers should follow the order of the interrogatories. Answers 
 and either answer by traverse or admission, or object to ^nd distinct!^"^ 
 
 (c) Per 'Wigrain, V.-C, 2 Ha. 92 ; see Wagstaff v. Bryan, 1 Eiiss. 
 & Myl. 28. 
 
 {d) Bobinson v. Anderson, 2 Eq. Kep. 89; Allfrey v. A., 14 Beav. 235; 
 -see 16 & 16 Vict. c. 86, s. 17. 
 
 (e) See Mitf. [309] ; Dan. 630, and cases there cited ; Earp v. Lloyd, 
 (ISo 2) 4 K. & J. 58, 60, per Wood, V.-C. ; Tipping v. Clarke, 2 Ha. 393 ; 
 Boldero v. Saunders, 3 N. E. 59. 
 
 (/) Seeder Wickens, V.-C, 21 W. E. 138. 
 
 (g) See Meade v. Woodrooffe, 24 Beav. 421 ; Lockett v. L., L. E. 4 Cli. 
 App. 336 ; White v. Barker, 5 De G. & Sm. 746. 
 
 (h) Imp. Merc. Ass. v. Earl of Huntingdon, Ir. E. 6 C. L. 545. 
 
 (i) Barker v. WelU, C. A., IS'Ch. D. 477, 487 ; weeper Baggallay, L. J., 52 
 L. J. Ch. 15. 
 
 (k) Ih. 487. Slipper Lindley, J., 36 L. T. 472. 
 
 [l) lb. p. 485. See si^so per Grove, J., in Dalrymple v. Leslie, 8 Q. B. D. 
 5, 7 ; per Baggallay, L. J., uhi supra. 
 
 {m) Sea per Bowen, .J., 8 Q. B. D. 7. 
 
88 
 
 LAW • AND PEACTICE OF DISCOVEEY. 
 
 CHAP. VI. 
 Sect. 3. 
 
 answer, to each interrogatory specifically (n), in the latter 
 case alleging matter which may enable the Court to judge 
 whether the excuse, made for not answering the particular 
 question, is sufficient or not (o). The party interrogating is 
 entitled to a clear and distinct answer, and to one given in 
 such a way as not to embarrass him in the conduct of his 
 action (p), and need not be satisfied with a statement which 
 only by implication contains an answer {pp). 
 
 The test of the sufficiency of an answer is said to be, 
 whether it would be possible to define the issue for a jury if 
 an assignment of perjury were laid upon it ; if it is so com- 
 plicated and confused that it would be impossible to do so, it 
 is insufficient (g). The party interrogated should not answer 
 Evasive or evasively, but answer the point of substance, and give a fair 
 obiectionabll.^'^ ^^*^ substantial answer {r) ; thus, where he is asked as to 
 several things, he should not answer conjunctively by 
 saying that he is unable to answer them, without adding, 
 " or any of them " (s), and a mere general denial in answer 
 to a specific charge may be evasive (t). By simply answering 
 in the terms of the interrogatories, all difficulty on the subject 
 is avoided, but if, instead of doing so, the party gives an 
 answer which is not precise with reference to all the matters 
 on which he is interrogated, and then endeavours to shelter 
 himself under a general denial, coupled with the words, " ex- 
 cept as aforesaid," or similar expressions, he makes it often 
 difficult to decide whether the answer is sufficient or not (u). 
 The rule of the Court of Chancery was, that whenever the 
 defendant denied the bill to be true, " except as aforesaid," 
 or " except as appears by the other part of the answer," if there 
 were not found on the answer a clear and sufficient statement, 
 which, to a reasonable extent, met the whole case, the answer 
 was deemed to be evasive (x). In considering the sufficiency 
 of an answer, the relevancy or materiality of the question to 
 which it professes to be an answer is a matter proper to be 
 
 Danger of 
 answering 
 "except as 
 aforesaid. " 
 
 (n) Lush. Pr. 858, citing Chester v. Wortley, 18 C. B. 239 ; per Wood, V.C, 
 14 W. U. 579; Dan. 629 scg. 
 
 (o) Se per Wigram, V.-C, 1 Ha. 190. 
 
 (p) Per Bacon, V.-C, Furber v. King, 29 W. R. 536. 
 
 ipp) Boldero v. Saunders, 3 N. R. 59. 
 
 (?) Walker v. Daniell, 30 L. T. 357. 
 
 (r) See Ord. XIX. r. 22 (pleadings) and Cons. Ord. XV. r 2 
 
 (s) See per Wigram, V.-C, in Tipping v. Clarke, 2 Ha. 383, 390. 
 
 (0 II). ; Earp v. Lloyd, 4 K. & J. 58. 
 
 (u) Beeper Wigram, V.-C, in Tipping v. Clarke, 2 Ha. 383, 388. 
 
 (x) Sue per Wigram, V.-C, ib.; Earp v. Lloyd, 4 K. & J. 58. 
 
SUFFICIENCY OF ANSWER. 89 
 
 taken into account {y), but unless the question is dearly im- chap. vi. 
 material, and not merely of doubtful materiality, it is en- ^^°^- ^- 
 titled to an answer (0). Upon objections to an answer for 
 insufficiency, the question is whether it was sufficient at the 
 time it was filed (a). Therefore, a subsequent waiver by the 
 client of his privilege of silence, does not render insufficient 
 the objection of the solicitor to answer upon that ground (6). 
 Any objection to answering, upon which it is intended to objections to 
 rely, may now be taken in the answer (c), and a party answering. 
 who is entitled to decline answering a particular inter- 
 rogatory is not precluded from doing so by the fact that 
 he has not applied to have it struck out {cT). Whether an Whether 
 objection should be expressly taken to answering an inter- grounds should 
 rogatory or not, depends upon ^^hethev fresh facts are relied not. 
 upon as reasons for not answering, in which case they 
 should be set out, or whether the objection is a mere matter 
 of argument, and not a statement of new facts, and the 
 answer as it stands is sufficient, in which case it is not 
 necessary to state the objection (e). Thus, where part of a Irrelevant 
 question is irrelevant, a party may simply omit to answer be passed ov Jr. 
 that part, and is not bound to give a reason for not answer- 
 ing (/), but where a party refuses to answer a relevant inter- 
 rogatory, he must state the reason for his refusal (g). Where 
 an interj'ogatory is unreasonably wide in its terms or other- 
 wise in part liable to the objection of irrelevancy, it is 
 sufficient if it be answered so far as it is relevant, or reason- 
 able (though it seems that this is not obligatory), leaving the 
 objectionable part unanswered (h). Where an objection is 
 taken, the grounds thereof should be distinctly stated, it not 
 beinf enough for the party interrogated to state that he is 
 advised and believes that he is not liable to give the dis- 
 covery sought, and, therefore, objects to answer (i). 
 
 (y) See Chanc. Cons. Orel. XVI. r. 4 ; Tipping v. Clarke, 2 Ha. 383. 
 
 \z) lb. ; r. ante, p. 23. 
 
 (a) See Chant v. £rovm, 7 Ha. 79. 
 
 (6) lb. 
 
 (c) Ord. XXXI. r. 5. See. per Lindley, J., W. N. 1876, 12. 
 
 (d) See Fisher v. Owen, C.A., 8 Oh. D. 645, 649. 
 
 (e) See pc-- Lindley, J., in SmUJi v. Berg, 36 L. T. 471, 472. 
 
 (/) Smith V. Berg; Church v. Perry, 36 L. T. 513. The rule in Chancery 
 was that if a party answered at all, he must answer fully (see per Baggallay, 
 L. J., 52 L. J. Ch. 16). 
 
 (0) Gray v. Baternan, 21 W. R. 137. 
 
 (h) See Parker v. Welh, C. A., 18 Ch. D. ill, per Jessel, M. R. and Brett, 
 L J ■ coiitrci, Cotton, L. J., and see Gray v. Batcman, supra, 
 
 ' ai'Anrm., "W. N. 1875, 229. See Votms, pnst, p. 193. 
 
90 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. vi. Generally speaking, the party answering must answer as 
 ^^°*' ^' to his knowledge, information, and belief (k), a mere pro- 
 Party must fession of inability to answer being considered insufficient 
 his knowledge, and evasive {I); but it is not necessary that those precise 
 i"*"™^*^™' words should be used, if the expressions actually used are 
 tantamount to them (m). Ordinarily speaking, an answer 
 on knowledge and belief includes knowledge or information, 
 but the latter expression should not be omitted where the 
 party's only knowledge must naturally have been acquired 
 from others {n). It is sufficient, as to a fact of which it is 
 impossible, or highly improbable that the deponent can 
 have personal knowledge, to answer as to belief only (o), 
 and in such a case the words, "I am informed," are the 
 same as " I believe " {p). If the deponent has no infor- 
 mation or belief concerning the matters upon which he is 
 interrogated, he must say so, and that will be a sufficient 
 answer {q) (and " I cannot answer more particularly than I 
 have done," or a statement to that effect, is a good an- 
 swer) (r), but when the matters inqixired into are the 
 party's own recent acts, and must therefore presumably be 
 within his knowledge and recollection, he will not be 
 allowed to say that he has no recollection as to them, and 
 even no belief on the subject (s). An answer may be in- 
 sufficient, although it categorically answers the interrogatories, 
 Excess ot by reason of its containing in addition an excess of irrelevant 
 superfluous qj- impertinent matter {t), especially where unfairly inserted 
 with the object of preventing the party obtaining the an- 
 swers from putting them in evidence at the trial {u), and 
 whether the amount of in'clevant matter is so eoccessive as 
 to make an answer insufficient, is a question for the discretion 
 
 (k) Dan. 627 ; Kerr, 207 seq. ; The Minnehaha, L. E, 3 A. & E. 148 ; 
 Reynolds v. Bloonifield, 10 Ir. Rep. C. L. xiv. 
 
 (I) The Minnehaha; see Financial Corporation v. Bristol, Sc, Mv. Co., 
 L. R. 3 Eq. 422. 
 
 (m) V. supra. A party cannot be asked as to his belief, when founded 
 solely on privileged information. (See Kennedy v. Lyell, 48 L. T. 456, 
 Jessel, M. R. and Lindley, L. J.) 
 
 («) See A.-G. v. Rees, 12 Beav. 50 ; post, p. 91. 
 
 (o) Stuart V. Bute, 11 Sim. 442, 444. 
 
 Ip) See Woodhaichy. Freeland, 11 W. R. 398. 
 
 (?) The Minnehaha, L. R. 3 Ad. & Eccl. 148 ; Anon., W. N. 1876, 106 ; 
 A-inhmst v. King, 2 S. & S. 183 ; Jones v. Wiggins, 2 Y. & J. 383 (answer 
 professing entire ignorance held under the circumstances sufficient). 
 
 (r) Orossley v. Tomey, 2 Ch. D. 533. 
 
 (s) Furber v. King, 29 W. R. 536 ; Newton v. Dimes, 3 Jur. N. S. 583 ; 
 see however ^e?- Lord Langdale, M. E., 4 Beav. 43. 
 
 («) Peyton v. Ilarting, L. R. 9 C. P. 9 ; s.c., 43 L. J, C. P. 10. 
 
 (u) See per Denman, J., ib. p. 12. 
 
SUFFICIENCY OF ANSWER. 91 
 
 of the Court or Judge {x). It seems, also, that an answer chap. vi. 
 stating matter of defence as well as answering the question ^^°^- ^- 
 is insufficient {y), though any fair explanation or qualifica- 
 tion of the answer may be given, provided it be not done at 
 excessive length (s). 
 
 The question as to the extent to which a party is bound Rule as to 
 to answer as to the acts of his agents or servants, or persons ^''^'"^"''g ^^ 
 within his control, or for whose acts, with reference to the sei-vants or 
 matters in question, he is answerable (a), or to procure in- ^S"^^- 
 formation for the purpose of answering has been recently 
 •discussed by the Court of Appeal (6). Lord Justice Brett Judgment of 
 said (bb) : " The contention on behalf of the defendants is in Bolck'ow k 
 in substance this — that they are in this case not bound to Fislier, 0. A. 
 give any further answer, because, in order to do so, they 
 would have to make inquiries of their agents or servants ; 
 and it is urged that they are not obliged to make any such 
 inquiries, and that it is sufficient for them to say that they 
 cannot make a better answer because they themselves were 
 not personally present. I am of opinion that a party who is 
 interrogated is not excused from answering questions with 
 regard to certain acts by saying that he was not present when 
 the acts were done, and that his agents were present. If 
 the acts done were such as he must know would, in the 
 ordinary course of business, be done and known to his 
 servants or agents, then, I think, he is bound to answer 
 fully, and give satisfactory information as to those acts. If, 
 indeed, those acts are not more known to his servants or 
 agents than to other persons, then he may not be bound to 
 answer. Also I think that he makes a sufficient answer if 
 he says that, although the acts about which inquiry is made 
 were, if done at all, known to his servants or agents, yet he 
 does not himself know whether they were done or not, and 
 the servants or agents who did them, if they were done, are 
 no longer in his employ or under his control, or are in such 
 a position that it would not be reasonable to force him to 
 enter into any communication with them (c). * * * I 
 
 {x) Per Brett, J., ib. 11. 
 
 iy) See Anon., W. N. 1876, 39 ; Furber v. King, 29 W. E. 536. 
 (2) Ib. deeper Brett, J., in Peyton v. Harting, 43 L. J. C. P. 10, 12. 
 (a) See A.-6. v. Recs, 12 Beav. 50 ; Ecorl of Glengall v. Frazer, 2 Ha. 99. 
 (h) Bolckow V. Fisher, 52 L. J. Ch. 12 ; s.c. 10 Q. B. D. 161 ; see A.-G. v. 
 Rees ; Lord Glengall y. Frazer; Ncate v. Duke of Marlborough, 2 Y. & C. 3. 
 tU) lb. 16. 
 (c) See M'Iniosh y. G. W. E., iDeG. k Sm. 502. 
 
92 
 
 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. VT, 
 Sect. 3. 
 
 Lindley, L. J. 
 
 Knowledge of 
 servant ov 
 agent, is 
 knowledge of 
 master or 
 principal. 
 
 am further of opinion that, if it were shown in the an.swer 
 that it would be wholly unreasonable to ask the party inter- 
 rogated to make inquiries, that it would be too expensive or 
 too cumbersome, or that unreasonable details were _ sought 
 for, then it might well be that the answer would be sufficient, 
 even though the question was not answered in every detail." 
 And Lord Justice Lindley said (d) : " The question upon 
 the facts of this case is, whether a person who is interro- 
 gated as to what was done by his servants or agents, can 
 answer that he does not know, and that he will not inquire. 
 I think that he cannot. Where a party is interrogated as to 
 matter done or omitted to be done by his servants or agents, 
 it is not open to hira to make such an answer. Most of the 
 authorities apply to the discovery of documents, but the 
 principle is the same, and the case of Attorney-General v. 
 Rees applies that principle to interrogatories. The know- 
 ledge of the servant is in such a case the knowledge of 
 the employer, and the employer is hound to make reason- 
 able efforts to ohtaAn the information required." In point 
 of law the principal is to be deemed to have known the 
 facts before he has actually got personal information about 
 them (e). But where the party interrogating has at least 
 equal means of obtaining the information, the party an- 
 swering will not have the burden of doing so imposed upon 
 him (/), and it is doubtful whether in any case he is bound 
 to incur expense for the sake of answering {g) ; thus, in a 
 question of pedigree, one party could not compel the other 
 to examine parish registries, accessible to both, for the pur- 
 pose of answering as to their contents (/i). A defendant, 
 ruith regard to transactions that are not his own, is not 
 bound to find out information for the purpose of communi- 
 cating it to the plaintiff (i). b,.,.... 
 
 (d) 52 L. J. Ch. 17. 
 
 (o) Per Hellish, L. J., in AivUrson v. Baiik of British Columbia, C. A., 2 
 Ch. D. 644, 659 ; see as to the duty of principals to procure information from 
 their agents, the judgments of the LL. JJ. in that case, and as to directors 
 answenng on behalf of companies, per Cotton, L. J., 3 Q. B. D 321 • Rail v 
 L. & N. W. Sy., 35 L. T. 848. 
 
 (/) Earl Gkngall v. Frazer, 2 Ha. 90 ; Leahy v. Lord Milton, 11 L. T. 
 (0. S.) 391. 
 
 (g) V. post, p. ] 38. 
 
 (h) See Per Wigram, V.-C, 2 Ha. 103—4. One party has no right to 
 impose upon the other the duty of doing accountant's work for him 
 {v. pod, p. 93). ' 
 
 (i) Per Leach, V.-C, 11 Sim. 405. 
 
SUFFICIENCY OF ANSWER. 93 
 
 A party is bound to answer as to the contents of all such chap. vi. 
 documents as are in his possession or power, and all such as 
 
 he has the right of access to, and inspection of, are in his ^"^™ents rf 
 power, provided he can enforce that right (k). In such cases documents. 
 he must either give the information required, or at least 
 show that he has bond fide endeavoured to acquire it, 
 and that it is physically impossible for him to give it (l). 
 A party may be asked to verify the contents of, or admit 
 his signature to documents not in his possession or power, 
 which are produced to him for that purpose, but he will not 
 be compelled to set out his imperfect recollection of a 
 document not produced by his interrogator for his inspection, 
 which is not suggested to be lost or beyond the jurisdiction 
 of the Court, or which for anything that appears to the con- 
 trary, might even be in the possession of the interrogating 
 party (m). Thus, in an action for libel the defendant will 
 not be compelled to set out from memory the contents of 
 the alleged libel, of which she swears that she has no exact 
 recollection, unless the document is produced to her before 
 answering, or its non -production satisfactorily accounted for, 
 the old practice in this respect at Common Law not having 
 been altered by the Judicature Acts (n). 
 
 The rule of practice in the Court of Chancery was that, Answering by 
 where inten-ogatories were of a character which would make ^oo^^et,.*" 
 it oppressive to compel the defendant to set out precisely all 
 the particulars called for, the defendant was justified in an- 
 swering by reference to books, if he said that they contained 
 the best information which he was able to give in answer to 
 the interrogatories, in which case the books became part 
 of the answer, so as to entitle the opposite party to inspec- 
 tion (o). Thus, where laborious and detailed accounts were 
 asked for, the Court would consider the circumstances of 
 
 (jfc) Tai/hr v. Eundell, 1 Y. & C. Oh. 128, 1 Phill. 222, 226, per Lord 
 Lvudhurst, L. C. 
 
 (V) Sluart V. Lord Bute, 11 Sim. 442, 451, 12 ih. 460 ; M'Intosh v. 
 G.W. B; 4 De G. & Sm. 502 ; Blerteiis v. Haiyh, 3 De G. J. & S. 528 ; per 
 Lord' Cottenham, L. C, 1 Cr. & Ph. 112, 113; Taylor v. Ruiidell, 
 
 " (to) Dalryraple v. Leslie, 8 Q. B. D. 6 ; ante, p. 83. 
 
 (n) lb. See Fitzgihbon v. Greer, Ir. Kep. 9 C. L,, 294, 298, per 
 
 ■Whiteside, C. J- 
 
 ig\ ggg per Wood, V.-C, in Drake v. Symes, Johns. 647, 652 ; White 
 V Barker, 5 De G. & Sm. 746; Loakett v. L, L. R. 4 Ch. App. 338 ; 
 Ambler v 'Bolton, W. N. 1871, 12. The old rule was that the books must be 
 deposited in Court {v. ante, p. 79), but see post, p. 140. 
 
94 
 
 LAW AND PRACTICE OF BISCOVERT. 
 
 CHAP. VI. 
 Sect. 3. 
 
 Reference 
 should be 
 specific. 
 
 Answer as to 
 accounts. 
 
 Successive 
 answers to be 
 read together. 
 
 the case, and see what useful object could be served by com- 
 pelliiig such an account, and whether every object would not 
 be answered by an iospection of the documents them- 
 selves (p). In such case, the books should be referred to 
 with such explanations, and in such a manner, as to make 
 it as convenient as possible for the party seeking the dis- 
 covery to consult them. It is not enough to say, " Such and 
 such books, without specifying them more distinctly, contain 
 everything you want," or to refer generally to a voluminous 
 correspondence, without specifying any particular letters. It 
 should be pointed out in what books the information is to 
 be found or sought for, so as to narrow as far as possible the 
 sources of information through which he will have to 
 search {q). It was also the rule that where the right of the 
 plaintiff to the account sought was denied, but the defendant 
 gave such an admission as was sufficient for all the objects 
 of the suit up to and including the hearing (i. e., sufficient 
 to entitle him to a judgment or order in his favour), he need 
 not give any further details respecting the account (r). 
 Under the new practice, the general tendency has been to 
 postpone detailed accounts until after the hearing, except in 
 the case of executors and administrators, and to require only 
 aggregate amounts, summaries, or balance-sheets, whether 
 the right is admitted or denied (s). Where an account has 
 been already rendered, it would perhaps be sufficient to refer 
 to, and verify it by the answer (t). 
 
 In the case of a second or third answer or examination, its 
 sufficiency is to be decided by looking, not at the particular 
 answer only, but at it as taken in connection with the pre- 
 ceding answer or answers (u), and the inconsistency of a 
 further answer with a previous one, or of an examination 
 with an answer, does not constitute insufficiency {x). Repeti- 
 
 (p) See Lockat v. i., L. R. 4 Ch. App. 338. Secus, where a short and 
 simple account only was asked for (see Telford v. RysTcin, 1 Dr. & Sm. 
 563). 
 
 (q) See per Wood, V.-C, in Drake v. Sijmcs, John. 647, 652 ; White v. 
 Barker, 5 De G. & Sm. 746 ; Inglessi v. Spartali, 29 Beav. 564 : Christian v 
 Taylor, 11 Sim. 401. 
 
 (r) Locketty. L.\ CUgg-y. Edmunson, 22 Beav. 136; VFier v. Tucker 41 
 L. J. Ch. 471, L. R. 14 Eq. 25 ; Saunders v. Jmies, C.A., 7 Ch. D 435 
 446. ' 
 
 (.s) V. ante, pp. 30 seq. 
 
 («) Me Sutcliffe, 44 L. T. 547. But see Telford v. Ruslcin, supra. 
 
 (u) Farguharson v. Balfour, T. & R. 184, 189 ; Allfrev v. A 14 
 Beav. 235. 
 
 (x) See FarqiiJi arson v. Balfour, T. & R 184, 204. 
 
EN-POECIXG ANSWER OR FURTHER ANSWER. 95 
 
 tions in a subsequent answer of statements made in a chap. vi. 
 previous one, are, as we have seen, impertinent (y). ^^°^- ^- 
 
 Sect. 4. — Of enforcing an answer or further answer. 
 
 If the party interrogated omits to answer, or answers in- Sect. 4. 
 sufficiently, the party interrogating may apply for an order re- Summons for 
 quiring him to answer, or answer further, as the case may be (a), fu^aer answer. 
 and no exceptions need be taken to an answer as insufficient (6), 
 its sufficiency or insufficiency being a matter to be determined 
 by the Court or a Judge (c). In the case of an irregular, 
 wholly evasive, or illusory answer, or one containing scan- 
 dalous matter, the proper course is to apply to have it taken 
 off the file (d), with costs against the party filing it (e), but 
 unless an answer is so palpably insufficient as to show want of 
 bona fides, a party should proceed under this rule, instead 
 of applying under r. 20 (/). Where a party dies before 
 answering at all, or after putting in an insufficient answer, 
 and the suit is continued by or against his personal repre- 
 sentatives, they may be required to answer or answer further, 
 as the case may be (g) . The application shoidd be made by Statement of 
 summons at Chambers in the first instance, in all the Divisions, shouMbTgiven 
 and the summons, if for a further and better answer, should previously. 
 (unless the whole are objected to, or the answer is plainly 
 evasive or an abuse of the process of the Court) (h) specify the 
 particular answers objected to as insufficient, or the parti- 
 cular interrogatories or parts thereof to which a further 
 answer is required (corresponding to the former exceptions), 
 in order to give the opposite party an opportunity, if he 
 
 (y) Ante, p. 87 {d). 
 
 {a) Ord. XXXI. r. 10. See as to what answer is sufficient, ante, p. 87. 
 
 (6) A statement of objections should, however, be given {v. post, p. 194). 
 
 (c) I.e. apparently, on a motion or summons to consider the insufficiency of 
 the answer, as in the Court of Chancery (see Ashley v. Taylor, 37 L. T. 522 ; 
 Furier v. King, 29 W. R. 536 ; Dickson v. Harrison, 47 L. J. Ch. 686. The 
 usual method of procedure is under r. 5. 
 
 (d) See Dan. 684 ; Turner v. Jack, 19 W. R. 433 ; Walkei' v. Daniels, 22 
 ib. 595. See Form, post, p. 199. 
 
 (e\ See Bead v. Barton, 3 K. & J. 166. 
 
 (/) Kennedy y. Dyell, C.A., W. N. 1882, 137. 
 
 (q\ Martin v. Braxner, 3 Eq. R. 680; Pearie v. DoMnson, h. R. 
 
 (A) Furier y. King, 29 W. R. 636. 
 
96 LAW AND PRACTICE OP DISCOVERY. 
 
 CHAP. VI. chooses, to submit to the objections out of Court (i). If 
 ^^°*' ^' this be not done, there is a discretion to refuse the appli- 
 cant his costs, even if successful, or the summons may be 
 adjourned to enable the objecting party to furnish his 
 opponent with a written statement of his objections (k). 
 On appeal from the Judge at Chambers, objections cannot 
 be taken before the Divisional Court to interrogatories which 
 were not specifically objected to at Chambers (I). A party 
 in contempt for non-payment of costs is not thereby precluded 
 from applying for a further answer (m). 
 Time within Although no time is prescribed by the rules within which 
 tiorshoSdTe *^^ application must be made, it should be made within a 
 made. reasonable time after the filing of the answer (n), which will, 
 it seems, in ordinary cases be estimated by reference to the 
 period allowed to a plaintiff in the Court of Chancery for 
 excepting to an answer as insufiScient, viz., six weeks (o). 
 In the Common Law Courts, it was considered that it 
 should be made promptly (p). It may be observed that 
 an answer is deemed to be sufficient until formally objected 
 to (q). 
 Right may he The right to enforce an answer may be waived, e.g., by the 
 *^*' party interrogating signing final judgment against the party 
 interrogated (r), or setting down the action for trial or giving 
 notice of motion for judgment ; in short, by taking any step 
 in the action equivalent to saying that the party interro- 
 gating does not really stand in need of the answer for the 
 purposes of the action (s) ; it is not waived, howevei-, by 
 giving the defaulting party notice to produce documents 
 admitted to be in his possession by the answer (t), or by 
 taking a copy of the answer, as the party has a right to 
 
 (i) Ashley V. Taylor, C.A,, 38 L. T. U ; Chesterfield Co. v. Black, 24 W E 
 783 ; Anstey v. N. Woolwich Co., 11 Ch. D. 439. 
 
 IJc) Anstey v. N. Woolioich Co., mpra; see Langton v. Waile, 15 L. T. 204. 
 A form of summons will be found in the Appendix (post, p. 194)' and 
 a form of statement of objections, h. ' 
 
 {I) Church V. Perry, 36 L. T. 513. 
 
 (m) Wilson v. Bates, 3 Myl. & Cr. 197. 
 
 (w) Lloyd V. Morley, 5 L. R. Ir. 74. 
 
 (o) lb. See Cons. Ord. XVI. r. 6. It must be remembered, however that 
 an answer m Chancery included the defendant's statement of his defence 
 
 (p) Chester v. Wortley, 18 C. B. 239. 
 
 (j) Lafone v. FalMand Isl. Co., 2 K. & J. 276. 
 
 (r) Hayney. Pratt, L. R. 6 C. P. 105; Bridgewater v. B., XXII. Sol 
 Journ. 662. 
 
 (s) Boyse v. Cokell, 18 Jur. 770. 
 
 (i) Lane v. Paul, 3 Beav. 66 ; Hunter v. Capron, 5 ib. 93. 
 
ENFORCING ANSWER OR FURTHER ANSWER. 97 
 
 see if it is sufficient (u), though retaining a copy until ohap. vi, 
 the time for excepting to the answer had expired was held Sect. 4. 
 to have that effect (x). 
 
 The applicant must show that there has been, without just Materiality of 
 cause (y), an omission or refusal to answer. If an interro- be consldM-ed 
 gatory is unreasonably wide, and the party interrogated 
 declines to answer it at all, which he is entitled to do (z), 
 the party interrogating should not press for a full answer, but 
 submit to take a qualified order for an answer to the inter- 
 rogatory as properly limited, to which he is entitled (a). 
 The relevancy or materiality of the question to which it 
 professes to be an answer {b), and the likelihood of any 
 benefit to be derived from getting the desired answer (c), 
 must be taken into consideration in deciding on the sufficiency 
 or otherwise of an answer. 
 
 On the hearing of the application an order may be made Order for 
 for a farther answer, either by affidavit (as is usually done), ''"'''''^'' *°^'^^''' 
 or by viva voce examination, as may be directed (d). Where 
 a further answer is ordered, a time for putting it in should 
 be specified in the order (e), but it is no longer necessary 
 that the copy served upon the opposite party should be 
 endorsed with the memorandum required by Consolidated 
 Order XXIII. r. 10, or any notice of the consequences of 
 disobedience thereto (/). An order directing an answer 
 "forthwith" has been held to be a sufficient direction in 
 this respect (g). In the Court of Chancery it was not the 
 practice to order an examination until after a third answer 
 had been pronounced insufficient, thus showing the party to 
 be contumacious (A), when it was a matter of course to 
 order him to be examined personally upon interrogatories 
 
 (m) EerreU v. Reynolds, 2 Giff. 409. 
 {x) lb. 
 
 («) See C. L. P. Act, 1854, s. 53. . , . „ , „r „ r^ , 
 
 (2) See per Jessel, M. R., and Brett, L. J,, m Parker v. Wdls, C.A., 
 18 Ch. D. 477, diss. Cotton, L. J. 
 
 (a) lb. 
 
 (b) See Ch. Cons. Ord. XVI. 
 
 ic) Per Wigram, V.-C, 2 Ha. 388 ; Hurst v. Peirse, 4 Price, 339. 
 
 Id) Ord. XXXI. r. 10. For form of Summons, v. post, p. 195. 
 
 ie) See Cons. Ord. XVI. r. 14. ^, , ^ , ^ j 
 
 (/) Thcmias v. Palin, C.A., 21 Ch. D. 360. The order must be entered 
 (see Ballard v. Tomlinson, 48 L. T. 515). 
 
 (a) Thomas v. Ndkes, L. R. 6 Eq. 621. 
 
 (K\ Cons Ord XVI. r. 19 ; Farquharson v. Balfour, T. & R. 203 ; Corj}. 
 of Liverpool v. Chippeiidale, 19 L. J. Ch. 327; see however, iSMto™ v. 
 Gruisel 14 W R. 578, where a/ottr<A answer was ordered, and Hamilton v. 
 Nott, L. R. 16 Eq. 112, where eleven answers in all were filed. 
 
98 tAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. VI, before the Chief Clerk as to the points on which it was held 
 ^^°*- ^- insufficient, and to stand committed until he should have 
 properly answered (i), and latterly the practice of directing 
 a vivd voce examination in such cases prevailed (k). After 
 an examination had been ordered, a further answer would be 
 taken off the file as irregular (l). The present practice is to 
 direct a further and better answer to be filed in the first 
 instance instead of an oral examination, but it is a 
 Oral examina- matter entirely for the discretion of the Court. The oral 
 '""■ examination may be conducted before a chief clerk (m), 
 
 master (■mm), or examiner of the Court (n), and will not, as 
 a rule, be taken before a Judge, in the first instance (nn). 
 If the party when examined refuses to answer, or answers 
 insufi&ciently, the examination should be adjourned, and an 
 appointment procured to resume it before the Judge in 
 Chambers, as he has power to commit for not answering, or, 
 an application made to him to commit the party (o). The 
 examination may be conducted by means of interrogatories, 
 settled by the examining authority, supplemented by vivd 
 voce questions, where necessary, or, which is the more con- 
 venient practice, and that hitherto exclusively prevalent 
 in the Courts of Common Law, by vivd voce question 
 and answer exclusively. The order for an oral examina- 
 tion need not specify the precise interrogatories to which a 
 further answer is required, or the precise points upon which 
 the examination is to take place, but may be in general 
 terms, viz., that the party shall answer as to the matters 
 Avith respect to which he has refused or omitted to make an 
 Mode of affidavit (p). In Peyton v. Harting (q), the examination 
 
 examination. ^^^ Conducted by the Master, and is said to have been con- 
 ducted on similar principles to an examination in Court, 
 
 (i) Cons. Ord. XVI. r. 19. See Eayward v. H., Kay, App. xxxi. ; Croskey v. 
 European Co., 14 W. R. 514, and, as to the practice on such examinations. 
 Dan. 673 seq. ' 
 
 [k) See Danell v. Page, 37 L. J. Ch. 631 ; Bishion v. Grissel, 14 "W. R. 578 ; 
 Lloyd v. Adams, 4 K. & J. 467. 
 
 {I) Russell V. Dight, 6 Sim. 430 ; Corp. of Liverpool v. Chippendale, 19 
 L. J. Ch. 327. 
 
 (m) See Eayward v. H. 
 
 (mnf) See C. L. P. Act, 1854, § 53. 
 
 («) See Danell v. Page. 
 
 {nn) Sayward v. S. 
 
 (0) lb. 
 
 (p) Peyton v. Harting, L. R. 9 C. P. 9 ; 43 L. J. 10. See Gonsol. Ord. 
 XVI. r. 19. 
 (q) See 43 L, J. 0. P. 13 n. (2). 
 
ENFOECING ANSWER OR FURTHER ANSWER. 99 
 
 counsel being allowed to attend on behalf of both parties, and chap. vi. 
 
 those questions only which were contained in the written ^^°*- '^- 
 
 interrogatories being allowed to be asked, except where the 
 
 answer was not sufficiently precise, when other questions 
 
 were allowed to obtain an explicit statement (r). According 
 
 to Farquharson v. Balfour, the interrogating party has no 
 
 right to be represented on the examination by counsel, or 
 
 even to be present himself, any more than if it were the case 
 
 of an ordinary answer ; but in Danell v. Page, permission 
 
 was given to the interrogating party to cross-examine by his 
 
 counsel the opposite party on his affidavit. Under the Com- Production of 
 
 mon Law Procedure Act, 1854, the Court or Judge might documents 
 
 J . . . ° ° upon examma- 
 
 order the production of any writings or other documents tioa. 
 mentioned in the rule or order (s), and it was held that the 
 Court had power, under s. 46 of that Act, to order, as 
 ancillary to such application, certain persons to be examined 
 as witnesses touching the matters on which the discovery 
 was sought, the application being postponed in the mean- 
 while (t). The answer taken on such examination must be Examination 
 returned to, and filed in the Central Office (u), and the oppo- *° ^^ ^^^' 
 site party has a right to see it before the party examined is 
 discharged (x). If the party so refers to documents in his 
 examination that, in the case of an answer, they would have 
 been made part of it (y), the opposite party has a right to 
 see them also (2). Where successive depositions have been Suffioieuoy of 
 taken on an examination they are all regarded as one entire 
 document, and as part of the original answer (a) ; repetitions, 
 therefore, of statements made in the answer or a previous 
 deposition are impertinent (b). An examination, like an 
 answer or affidavit of documents, may be sufficient, though 
 it is probably untrue, and inconsistent with what has been 
 sworn by the party in his previous answers, for the Court 
 
 (r) See Farquharsm v. Balfour, T. & R. 203, from which case it appears 
 that any question fairly arising out of the matters contained in the answers 
 may he put. . . 
 
 (s) lb s 53. These powers may still he resorted to as existmg procedure. 
 
 (t) Moline v. Tasm. Ey. Co., 32 L. T. 128 ; cf. Morgan v. Alexander, 
 T T? 1 P P 184 
 
 '{u) Reg.' Gin. Hil. 1853, r. 33 ; 0. L. P. Act, 1854, s. 55 ; Ord. XXXVII. 
 1: 15. 
 
 (x) Farquharson v. Balfour, supra. 
 
 (y) V. anU, p. 93. 
 
 (z) Farquharson v. Balfour, uU supra, p. 202. „ ,„ t, o 
 
 \a) Allfrey v. A., 14 Bear. 235 : Eobinson v. Anderson, 2 W. K. i ; 
 
 t). ante, p. 94 («). 
 
 (*) i*. 
 
 H 2 
 
100 LAW AND PEACTICE OF DISCOVEET. 
 
 CHAP. VI. must be satisfied ■with what the party's conscience allows 
 ^^°*- *• him to swear (c). Where the examination is conducted 
 before a chief clerk, master, or examiner, and the 
 answers are pronounced insufficient, the defaulting party 
 cannot be committed immediately upon default, but a 
 certificate or report of the insufficiency of the examination 
 must be given, which must be dated on the day that the 
 Application application for the attachment is made (d). As this course 
 musTbeto** entails considerable delay, where there are successive exami- 
 judge. nations, it is more convenient to have the party examined 
 
 before a Judge in the first instance, who can commit for any 
 refusal to answer, or to get the master or chief clerk to 
 adjourn the examination, and procure an appointment before 
 the Judge in Chambers (e). If the examination is reported 
 or certified as insufficient, the party who obtained the order 
 for it may apply for the committal of the defaulting 
 party (/) ; in the Court of Chancery it was not the practice 
 to order a committal until there had been four insufficient 
 examinations, by analogy to the ancient practice in the case 
 of insufficient answers, Consol. Ord. XVI. r. 19 being held 
 not to apply to such examinations (g). 
 Costa of further The general rule in the Court of Chancery was that the 
 examination, defendant paid the costs of exceptions, where allowed (gg), 
 for which purpose the costs must be expressly asked for at 
 the time (A). If nothing was said about them, they either 
 became costs in the cause (i), or none were given at all (k). 
 In the Court of Chancery, a defendant against whom the 
 order for examination was made had to pay such costs as the 
 Court thought fit to award (l), which were generally those 
 of his insufficient answers and the application, the costs of 
 the examination being reserved (m), but not progressive or 
 exemplary costs, even where there had been accumulated 
 
 (c) Farq^tJiarson v. Balfour, T. & E. 204. 
 
 (d) Hayward v. H., Kay, App. xxxi.; c/. G. L. P. Aet, 1854, s. 56. 
 («) lb. 
 
 (/) y- post, p. 151, Consequences of failure to comply with m-ders for 
 discovery. 
 
 (g) Allfrey v. A., 12 Beav. 620, foUowed in Sayward y. H. supra 
 
 (gg) See Langton v. Waite, 15 L. T. 204 ; Newton v. Dimes, 3 Jur. N S 
 563 ; Earp r. Lloyd, 4 K. & J. 56. 
 
 (A) Earp v. Lloyd; Belts v. Rimell, W. IT. 1866, 22. 
 
 (i) Orossley v. Stewart, 8 L. T. 269. 
 
 (k) Langton v. Waite. 
 
 (I) Cli. Cons. Ord. XVI. ,-. 19. 
 
 (m) Danell v. Page, 37 L. J. Ch. 631. 
 
EKFOECING ANSWER OR FURTHER ANSWER. ].01 , 
 
 omissions to answer (n). In the common law courts, the chap. vi. 
 costs of the application and proceedings thereon were in the "^^^ ' 
 discretion of the Court or Judge by whom the order was 
 made and were provided for therein (o). The present rule, 
 as laid down in a recent case, is that the costs of the applica- 
 tion for a further ansxver are to be paid by the applicant 
 or the opposite party according as either is wholly success- 
 ful ; if each is in part successful, they are apportioned 
 accordingly (_p), or if only a small proportion of the ques- 
 tions are ordered to be answered, they are made costs in 
 the action {q). A master has jurisdiction to order pro- 
 spectively the costs of a further answer or examination to be 
 paid by the party interrogated in any event (r), but it has 
 been said that it is better, generally speaking, to reserve any 
 question as to them for the trial, for that otherwise there 
 might be some risk of the examination being unduly pro- 
 tracted (s). Where the application is necessitated by the 
 want of care shown by the applicant in framing his questions, 
 he may be deprived of his costs even if successful {t), and, as 
 we have seen, an omission to give a proper notice of objec- 
 tions may have the same effect (u). 
 
 Sect. 5. — Using answer in evidence. 
 
 A party may, at the trial of an action or issue, use in evi- Sect. 6. 
 dence any one or more of the answers of the opposite party One or more 
 to his interrogatories without putting in the other answers, ^^^;;~^^\^ 
 but in such case the Judge may look at the whole of the the others. 
 answers, and if he is of opinion that any of the others are so 
 connected with those put in that the latter ought not to be 
 used in evidence without them he may direct them to be put 
 
 (m' (f L P. Act, 1854, s. 53. The rule seems to be the same under the 
 present' practice (see Ord. LV., and Alnid v. Riches i Ch. D 528). 
 
 (1-) See milis V. ChUde, 13 Beav. 454 ; Larkin v. Dcnms, It. Rep. 
 
 ^ ^a^T'SuHife, U L. T. 547 ; Dan. 675 ; Vally v. IVorham, 32 Beay. 185. 
 
 (r) fimrylb. N. £., 9 Q- B, D. 168; MitMl v. Darley Coll. Co., 
 10 ib. 457. . ^ 
 
 («) .n7affv^Sy^! John. 647; Simpson v. Ckarlesworth, 14 L. T. 699.. 
 
 (u) K. ante, pp. 95—6. 
 
102 I-A-W AND PRACTICE OF DISCOVERY. 
 
 CHAP. VI. in (x). According to the former common law practice, a 
 Sect. 5. party could not put one answer in evidence without putting 
 Except where in the rest, while in Chancery the rule was the same as the 
 qualified or ex- pj-esent One, viz., that a single answer or passage of an 
 otw ^^ ^'^^ answer might be put in by itself unless it was qualified or 
 explained by some other passage in the answer, in which 
 case such latter passage must also be read, although not 
 connected in point of grammatical construction with the 
 former passage, but separated from it by passages relating to 
 distinct subjects, providing that it was in substance con- 
 nected, i.e., in meaning (y). The Court, however, in its dis- 
 cretion, sometimes allowed part of an answer already read to 
 be withdrawn, where the plaintiff had been surprised by 
 being compelled by the rules of the Court to read a further 
 passage of the answer {z). The application to have the other 
 answers read is usually made at the time on behalf of the 
 party against whom the answer has been used. It may be 
 observed that interrogatories are not evidence against the 
 party by whom they are administered (a). 
 Beading No notice need be given to the party interrogated of the 
 
 answer against jjitention of the interrogating party to read his answer 
 
 party making ° o a ./ ... 
 
 it. against him (&), but the answer of one plamtiff or defendant 
 
 cannot be read as evidence against another plaintiff or de- 
 fendant without such notice, the answer being in such case 
 read as an affidavit, and the party against whom it is so 
 read having the right to cross-examine upon it (c). An 
 unsworn answer (where an oath is requisite) cannot be read 
 Effect of using as evidence on behalf of the party answering (d). A party 
 evidence!^ using in a previous proceeding the answer or deposition of a 
 third person makes it evidence against himself thereafter for 
 all the world, as the using of it is an admission that its con- 
 tents are true (e) ; a multo fortiori, therefore, the answer of 
 the party himself, used by him in a former action is admissible 
 
 (k) See Ord. XXXI. r. 23 ; Rickard r. Moore, 28 L. T. 841, 843. 
 
 ly) Dan. 741 ; Freeman v. Tatham, 5 Ha. 329 : Nurses. Bunn, 5 Sim. 225 ; 
 Reade v. Whitchurch, 3 ib. 662 ; Miller v. Oow, 1 Y. & Coll. Ch. 69 ; Davis v. 
 Spurling, 1 R. & M. 68. 
 
 (2) See Freeman v. Tatham. 
 
 (a) Carwell v. Gees, 15 L. T. N. S. 217. 
 
 (t) See Dawkins v. Mortan, 1 J. & H. 339 ; Stephens v. Heathcote, 1 Dr. & 
 Sm. 138 ; Todd v. Gamble, Ir. Rep. 4 Eq. 117. 
 
 (c) Dan. 742 ; Eeatley t. Newton, 51 L. J. Cli. 225. 
 
 \d) Wadeer v. JS. J. Co., 3 L. T. 646 ; Dublin, d-c. Ry. Co. v. Navan,&c. 
 Ry.Co., Ir. Rep. 6 Eq. 393. 
 
 (e) Richards v. Morgan, 4 B. & S. 641 ; 33 L. J. Q. B. 114. 
 
answer. 
 
 USING ANSAVEE IN EVIDENCE. 103 
 
 on proof of its having been so used (/) without proof of the chap. vi. 
 handwriting, or production of the interrogatories to which ^^°*- ^- 
 it is an answer (g), their non-production not rendering it inteiTogatories 
 inadmissible in evidence, but being only matter of remark, ^^^ ^^ •'^*'^- 
 of more or less force, that the evidence not produced might 
 have altered the nature of the apparent admission, a re- 
 mark which would, of course, have no effect whatever, where 
 the answers are quite intelligible by themselves (h). The party, 
 however, whose answer it is, is entitled to put in the inter- 
 rogatories, and require them to be read as explanatory of 
 the admission, jnst as, where part of a conversation has been 
 given in evidence, he might on cross-examination, or by in- 
 dependent evidence, prove the rest of the conversation, 
 or where a letter pui-porting to be part of a correspondence 
 has been given in evidence, might give in evidence the other 
 letters to explain it (i). 
 
 The answer may be proved by means of an examined Proof of 
 copy (k) or an office copy (l). A party is not bound by all ' 
 he reads from an answer, but if, upon the whole of the 
 evidence taken together, the presiding Judge is satisfied that 
 part of the statement read is erroneous or untrue, he may 
 and ought to treat it as such (m). 
 
 It was the rule in the Court of Chancery that the answer Answer of 
 of a person made a party for the purpose of discovery could member may 
 not be read in evidence against the corporation of which he ^^ ^^^^ against 
 was an oflBcer (n), for there may be a right to discovery from company. 
 A. as to the acts of B., and yet not a right to use it as evi- 
 dence against B. (o). Under the new practice, the answer 
 as to matters oi fact, of an officer or member of a corporation, 
 company, or other body, selected to give discovery on their 
 behalf, is evidence against them, as being their not his 
 answer, he representing them for the purpose of giving the 
 
 -(/) Fleet V. Perrin, L. E. 3 Q. B. 536. Qicaere tamen, how far an answer 
 can be said to be tised by merely making and tiling it. 
 (g) Richards v. Morgan, 4 B. & S. 641. 
 (A) FUet V. Perrin, I.. E. 3 Q. B. 536. 
 
 (i) lb. See Pmnell v. Meyer, M. & Eob. 98, 8 C. & P. 470. 
 (k) Fleet v. Perrin ; Lady Dartmouth v. Roberts, 16 East, 334. 
 -11) Es. April, 1880, r. 18. „ . , 
 
 (m) Perdval v. Cawiy, 4 De G. & Sm. 610 ; s.c. nom. StaiUon v. Perciml, 
 
 (n) M'Iritosh v. G. W. R., i De G. & Sm. 544 ; Gibbons v. Waterloo Bridge 
 Co 1 Coop. 385 ; see Bendrie v. Thompson, 1 Jr. Ch. lli-p. 278. 
 
 (o) Per Bruce, V.-C, 4 De G. & Sm. 546 ; see i^cc Cairn.-, L. J., L. E. 2 th. 
 App. 354. 
 
104 
 
 LAW AND PEACTICE OF DISCOVEET. 
 
 CHAP. VI. 
 Sect. 5. 
 
 Answer of 
 guardian not 
 evidence 
 against infant 
 or lunatic. 
 
 Of married 
 woman. 
 
 Reading docu- 
 ments from 
 answer. 
 
 discovery [p). But, the answer of a guardian ad litem 
 cannot be read against the infant (g), nor the answer of a 
 guardian, or (semble) of the committee, of a lunatic against 
 the lunatic, or his estate or representatives after his death (qq), 
 for as a general principle no one can bind another by an 
 admission unless he has an express or implied authority 
 for that purpose (r). The answer is, however, binding on 
 the guardian or committee for all time and in any other 
 character which he may possess (s). The answer of a 
 married woman cannot be read against her husband, either 
 during or after the coverture, or even against herself, except 
 in an action seeking to charge her separate estate (t). If a 
 party in his answer sets out a document which he admits to 
 be in his possession, the document may be read in evidence 
 by the party interrogating without more formal proof (u) ; 
 but semble, that documents simply referred to in an affidavit 
 of documents or the schedule as being in the party's pos- 
 session or power cannot be so read, for the affidavit does not 
 admit their genuineness, or that the documents described as 
 copies are true copies, but only that the pieces of paper are 
 in his possession or power, the proper course in such a case 
 being to give notice to produce them (x). A party who has 
 pleaded a document which is admitted by his opponent with 
 a reference to it when produced, is not entitled at the hear- 
 ing to read its contents from his pleading without producing 
 it (y) ; but if there is a sufficient admission in an answer of 
 a document, with its contents, i.e., a substantial admission, it 
 need not be produced, even though unstamped (z). By the 
 Chancery Procedure Act (15 & 16 Vict., c. 86) (a), upon a 
 motion for a decree or decretal order, or an injunction or 
 receiver, the answer was, for the purposes of the motion, 
 
 (y) See Berkeley v. Stand. Disc. Co. (No. 2), C. A., 13 Ch. D. 97. 
 
 (?) Penival v. Caney, 4 De G. & Sm. 61 ; s.c. nom. Stanton v. Percival, 
 5 H. L. 257 ; Ord. XIX. r. 17, and Ord. XXXIV. r. 4. 
 
 (qq) lb. 
 
 (»•) Per Lord Cranworth, L. C, ib. 273. 
 
 is) lb. 
 
 {i) Olive V. Carew, IJ. & H. 207 ; Callow v. Sowle, 17 L. J. Ch 71. 
 
 (m) Wilson V. Thornhury, L. R. 10 Ch. App. 239 ; Lett v. Morris, i 
 Sim. 607. 
 
 (x) See per Mellish, L. J., ib. 2ii. 
 
 {y) Cox V. AlUngham, Jacobs, 337, 339 ; Dowling v. Zegh, 3 Jones & La T. 
 716 ; V. post, p. 122, as to giving notice to inspect documents so pleaded. 
 
 '/I {!" 7: ^o'-'-w. i Sim. 607, 610 ; MacGowan v. Smith, 26 L. J. Ch. 8. 
 
 (a) SS. 15, 69. 
 
USING ANSWER IN EVIDENCE. 105 
 
 directed to be treated as an affidavit of the defendant, and, chap. vi. 
 therefore, open to cross-examination (b), but at the hearing of Sect. 6. 
 a cause in the ordinary way, an answer was not regarded as 
 an affidavit in favour of the defendant, although such parts 
 as the plaintiff might think fit to use were evidence in his 
 favour (c). A defendant, however, might make his answer 
 evidence by filing an affidavit, affirming generally that all 
 the statements contained in his answer were true, and then 
 the plaintiff was entitled to cross-examine him upon it {cc). 
 
 (i) See Wightinan v. Wludton, 23 Beav. 387 ; Bhedcn v. Wesley, 28 
 L. J. Ch. 797. 
 
 (c) n. 
 
 (cc) lb. 
 
CHAPTEK VII. 
 
 DISCOVERY OF DOCUMENTS. 
 
 Sect. 1. — Disclosure of Documents (a). 
 
 CHAP. vn. If a party is aware, from the fact of their being disclosed 
 ^^°^' ^' in some pleading or affidavit, or otherwise, of the exist- 
 Application ence in the possession or power of any other party of 
 dooumfnt"'"* documents relating to the matters in question in the 
 action or other proceeding, which he is desirous of in- 
 specting, and can, if necessarj', satisfy the requirements 
 of Order XXXI. r. 18, by making the affidavit thereby 
 prescribed (6), he can at once give notice, in the prescribed 
 mode, of his desire to inspect them (c) so as to put himself 
 in a position, if necessary, to apply for an order to that 
 effect {d) ; but if, as is more often the case, he is ignorant of 
 what documents his opponent may have, and unable to give 
 satisfactory evidence in support of his application to inspect, 
 he must apply for an order for the disclosure of documents 
 upon oath by his opponent (e) ; and this he may do, where 
 the discovery is necessary for the purpose of prosecuting or 
 defending the action, even though he may be in contempt 
 for non-compliance with an order for discovery or other- 
 wise (/), though, in the former case, the giving of discovery 
 by his opponent may be postponed until he has given it 
 himself (gf). In Probate actions, an affidavit of documents 
 may be ordered in addition to the usual affidavit of testa- 
 
 (a) See as to discovery of documents in divorce and matrimonial causes, 
 Winscom v. W., 3 S. & T. 383 »., and Pollard v. P., ih. 613. 
 
 (6) V. post, p. 129. (c) Ord. XXXI. r. 14, post, p. 122. {d) lb. r. 18. 
 
 («) lb. rr. 11^12. "Production on oath," and "discovery onoatli,"mean 
 that the party is to be put to his oath to state how far he admits the posses- 
 sion of relevant documents (Lamb v. Orton, 1 Drew. 414). 
 
 (/) Haldane v. Eckford, L. R. 7 Eij. 425 ; Plumbe v. P., 3 Y. & C. 622 : 
 Wilson V. Bates, 3 Myl. & Cr. 197. 
 
 (g) Saldane v. Eckford. 
 
DISCLOSURE OF DOCUMENTS. 107 
 
 mentary scripts Qi). In an action for discovery, if the answer chap. vil. 
 to interrogatories contains a full and sufficient disclosure of ^°°^' ' 
 documents, an affidavit of documents should not be applied 
 for (i). Under special circumstances the party called upon 
 for the affidavit may, in addition to the particulars required 
 by the ordinary form (k), be required to disclose the character 
 or capacity in which he holds the documents (I). The time Time for 
 to be allowed the party called upon to make the affidavit for ^^^vft 
 doing so is not prescribed by the rules, but is left to the dis- 
 cretion of the Court, and must depend upon the circum- 
 stances of the case, e.g., the number and volume of the docu- 
 ments and their locality : in the Court of Chancery seven 
 days were allowed in ordinary cases (m), and the like period 
 for producing the documents after the affidavit had been filed. 
 The time allowed should be expressed in the order for the 
 affidavit, but it is no longer essential that the copy order 
 served upon the party or his solicitor should be indorsed 
 with any notice of the consequences of disobedience in order 
 to its being enforced by attachment {n). 
 
 Interlocutory orders for production are made upon two 
 principles only, viz., security pending litigation, and discovery 
 for the pui-poses of the suit (o), but it is no ground for 
 refusing production that the discovery sought is the same 
 as the party would obtain if he succeeded in obtaining a 
 judgment at the hearing, so as to be, to that extent, an 
 anticipation of the judgment, if it be also necessary for the 
 purposes of the action (p). 
 
 It is no longer necessary, as under the former Common What grounds 
 
 „ . 1 J. J. ii_ for application 
 
 Law Practice, to trace anyone or more documents to the ^^,3,. ^e shewn. 
 possession of the party from whom the discovery is sought (g), 
 and, under ordinary circumstances and where the application 
 is made at the proper stage of the action or proceedings, an 
 
 (A) Sunt V. Anderson, L. R. 1 P. & D. 476 ; see per Warren, J., L. R. 
 (Ir.) 1 Oh. D. 310. 
 
 li) Barnard v. Hunter, 1 Jiir. N". S. 1065. 
 
 Uc) V. post, p. Ill, Affidavit of Documents. For the ordinary form of sum- 
 mons see App. p. 195, and for a form after judgment, ib. See, as to the time 
 for applying, ante, pp. 13 seq. 
 
 U) Boiccn V. Pearson, 8 L. T. 495 ; see Hamhrook v. Smith, 17 Sim. 209. 
 
 (ot) See the form in Seton, vol. 1, p. 133. Four days is the usual 
 
 ^^TiTrTowaTv. Palin, C. A., 21 Ch. D. 360. See Cons. Ord. XXIII. r. 10. 
 
 (0) Per Leach, V.-C, Lingen v. Simpson, 6 Madil. 290, 291. 
 
 (») Chichester v. Lord Donegal (No. 1), L. R. 4 Ch. App. 416 ; Bishop of 
 Winchester v. Bowker, 29 Beav. 479 ; see Rep. Costa Rica v. Strousberg, C. A., 
 11 Ch. D. 323. 
 
 (j) Anon., W. N. 1876, 24 ; see ib. 1875, 281. 
 
108 I'AW AND PEACTICE OF DISCOVERY. 
 
 CHAP. "vii. order will be made almost as a matter of course without any 
 Sg°*- ^- affidavit (the necessity for which is expressly dispensed with 
 by the rules) (r) unless the pleadings show that the dis- 
 covery cannot possibly he wanted (s), or the opponent (on 
 whom the onus of objecting lies) gives some good reason 
 against it (t), or, from the nature of the action there are rea- 
 sonable grounds for believing that the party against whom 
 the application is made has no snch documents (u). 
 Primd facie In a recent case before the Appeal Court in Ireland (x), 
 evidence or Fitzgibbon, L. J., Said : " We do not decide that, as a 
 
 reasonable ° ~ . , , . .~. ■, r- -i -i n • 
 
 presumption of matter of right, a plaintiff or defendant, under all circum- 
 d'^'um'°\°^ stances, and without bringing any facts before the Court, 
 required. can obtain an order for the discovery of documents under 
 
 Order XXXI. r. 11. The subject-matter of the rule is docu- 
 ments which are or have been in the possession or power of 
 a party to the action relating to some matter in question, and 
 I think the possession of some such documents by the party 
 against whom the order is made, or at least some reasonable 
 grounds for believing that he has or has had them in his 
 possession, must be shewn. The Court may require an affi- 
 davit to shew such reasonable grounds if they do not appear 
 upon the pleadings " (y). A similar view of the rule has been 
 taken in our own Courts, chiefly on the ground that the fact 
 of an order being required shews that the application is not 
 a matter of course (0). On the other hand, the existence of 
 any such discretion was recently questioned by the Court of 
 Appeal (a), Cotton, L. J., expressly saying that he in no way 
 favoured such a view (&). The material question, at any 
 rate, seems to be, not whether documents relating to the 
 matters in question are, or have been, in the possession 
 
 (r) Ord. XXXI. i-. 12 ; see EocMale Canal Co. v. King, 15 Beav. 11. There 
 is a discretian, however, as to requiring one {v. post). 
 
 (s) Anon., W. N. 1875, 231, 260 ; ib. 1876, 24, 53 ; see Wilson v. Saffalo- 
 vich, C. A., 7 Q. B. D. 553. 
 
 (0 See Diclcson v. Harrison, 47 L. J. Ch. 686 ; Bray v. Finch, 1 H. & N. 
 468 (where the application was refused as being unnecessary and not 6ore(J^c) ; 
 Newallv. Telegraph Co., L. R. 2 Eq. 766. 
 
 (u) In the Court of Chancery, discovery of documents was considered a 
 matter of strict right, irrespective of any question of benefit to be derived from 
 it (see per Kindersley, V.-C, 11 W. R. 399, 414), and the rule would seem to 
 be the same now {se,e per Cotton, L. J., 7 Q. B. D. 560). See, however. Lane 
 T. Gray, L. R. 16 Eq. 562, and Diclcson v. Harrison, supra. 
 
 (x) Healy v. Smith, 4 L. R. (Ir.) 72, 79 ; &^eper Palles, C. B., in Powell v. 
 Eeffernan, ib. 703, 710—1. 
 
 (y) Sea per Denman, J., 40 L. T. 818. 
 
 (z) See Johnson v. Smith, 36 L. T. 741 ; per Chitty, J., 47 iJ. 577. 
 
 (a) Wilson v. Haffalovich, 7 Q. B. D. 553. 
 
 {b) Ib. 560. 
 
DISCLOSURE OF DOCUMENTS. 109 
 
 of the opposite party, hut whetlier such documents in chap. vii. 
 fact exist; if so, the object of the rule is discovery ^^°^- ^- 
 "whether any of them are in his possession or power (c). 
 If there is prima facie evidence or even a reasonable proba- 
 bility of the existence of documents relating to some ques- 
 tion or issue in dispute, one party is entitled to appeal to the 
 oath of the other, as to such documents being in his pos- 
 session or power (d) ; and the very nature of the property 
 claimed in an action may raise a strong presumption of the 
 existence of documents relating to the title to it, and there- 
 fore to a matter in question in the action, and that they are 
 in the possession of the party alleging such title, as being the 
 proper person to have the custody of them (dd). On the 
 other hand, the order should not be made where there are 
 reasonable grounds for believing that it would be illusory, by 
 reason of there being no such documents in existence. Thus, 
 where from the nature of the action (for seduction), there 
 was no ■presum.ption that there were documents in existence 
 in relation to the matters in question, the application was 
 refused in the absence of an affidavit in support (e). The Affidavit may 
 only meaning and intention of that part of the rule ^^ required m 
 
 *'*-'. . ■'• . support. 
 
 "which dispenses with the necessity for an affidavit was 
 to relax the inflexible rule laid down in the Common 
 Law Courts, that there must be, as a condition precedent, 
 an affidavit showing clearly the possession by the oppo- 
 site party of at least one relevant document (ee). There 
 is a discretion, therefore, as to requiring such an affi- 
 davit to show reasonable grounds for the presumption of 
 the existence of such documents, if they do not appear upon 
 the pleadings (/). Where the application is made before or 
 after the usual time {g), an affidavit may be required showing, 
 in the fonner case, that it is for some reason important to 
 have an affidavit of documents at once Qi), and, in the latter, 
 giving some explanation of the delay {i). Affidavits in sup- 
 
 (c) Reaper Palles, C. B., uU supra ; per Denman, J., 40 L. T. 818. 
 
 (d) See Powell v. Seffernan ; per Denman, J., ubi supra, 
 (dd) See per Palles, C. B., ubi supra ; Healy v. Smith. 
 
 (e) Johnson r. Smith, 36 L. T. 741 (see on this caseper Palles, C. B., 4L. E. 
 (Ir ) 709) ; Cleary v. Fitzgerald, 1 L. K. Ir. 492. 
 
 (ee) See »er Denman, J., 40 L. T. 818 ; per Lindley, J., *. 821. 
 (/) JohTiscm V. Smith, 36 L. T. 741 ; Healy v. Smith, 4 L. R. Ir. 72. 
 (a) V. aTvI.e, pp. 13 seq. 
 
 (h) Per Cleasby, B., 4 Ex. D. 8 ; t>. ante, pp. 14 seq. 
 
 (i) Ellis T. Ambler, 36 L. T. 410 ; but see Lmd., dec. Ins. Co. v. Dames, 5 
 Gil. D. 775, and ante, p. 17. 
 
110 
 
 LAW AND PEACTICE OP DISCOVERT. 
 
 CHAP. VII, 
 Sect. 1. 
 
 Affidavit may 
 be made on 
 behalf of the 
 party where 
 incapable of 
 making it 
 himself. 
 
 Order cannot 
 be made 
 against non- 
 party. 
 
 port of applications for discovery should show merits and that 
 the discovery is necessary and material (ii), and should, 
 apparently, be made by the party himself as well as by the 
 solicitor (k), though this does not appear to be e.ssential. 
 Where the party from whom the discovery is sought is, in the 
 nature of things, incapable of taking an oath, or unable to 
 give the discovery required satisfactorily, an order may be 
 obtained for an affidavit to be made on his behalf by some 
 other qualified person(Z). Thus, the next friend or guardian 
 may make the affidavit on behalf of an infant (m), and the 
 next friend, guardian, or committee on behalf of a lunatic, but 
 an order for an affidavit by the next friend of a married woman 
 was refused, where she herself had already made one (n). 
 In one case, where the party was unable through ill-health 
 to make the affidavit himself, it was permitted to be made 
 by a member of his family (o). The discovery, in such cases, 
 will be confined to documents in the possession or power of 
 the person on whose behalf the affidavit is made (p). In 
 all such cases of vicarious discovery the order for the affidavit 
 should not be absolute in its terms, but liberty should be 
 reserved to the party against whom it is made to apply to 
 the Court to be relieved against it, on its being made satisfac- 
 torily to appear that he is unable to procure the affidavit to 
 be made by the party designated (g). Where the party is a 
 plaintiff, a stay of proceedings may be asked for until the 
 discovery has been given (r). Plaintiffs and defendants on 
 the record are the only parties who can be recognised as 
 such, and if an order for discovery has been made upon them 
 they are bound to obey it just as if they were litigating for 
 their own benefit (s), and compliance with such an order 
 
 (it) See MolUtt \. Enequist, 25 Beav. 609. 
 
 {k) lb. Cf. C. L. P. Act, 1854, s. 50. Rule 12, however, speaks only of 
 Jiling an affidavit. A form is given in the Appendix, post, p. 200. 
 
 {I) See Raiiger v. G. W. R., i De G. & J. 74 (decided upon ss. 13—20 of 
 the Chancery Procedure Act, 1852) ; Orowe v. Bank of Ireland, Ir. Rep. 5 Eq. 
 578. See as to discovery from corporations, foreign states, &o., pod, p. 159. 
 
 (m) Crowe v. Bank of Ireland; Higginson v. Sail, 10 Ch. D. 235 ; Eippin 
 V. Dolman, 2 W. R. 432. Discovery cannot be obtained from the next 
 friend personally (see Re Corsellis, 31 W. R. 414). 
 
 {n) Hardwick v. Wright, 11 Jur. N. S. 297 (see, however, on this case^cr 
 Lord Hagan, L. C, Ir. Rep. 5 Eq. 581). 
 
 (o) See Willyams v. Bodge, 1 H. & T. 575, 1 Macn. & G. 516. 
 • {p) See, as to the form of order in such cases, Appendix, post, p. 195 (t). 
 
 (q) Crowe v. Bank of Ireland; Ranger v. G. W. R., supra; see Appendix, 
 post, p. 195. 
 
 (r) Higginson v. Hall ; Crowe v. Bank of Ireland, supra ; cf. Ord. XXXI. 
 I. 20. [s) Wilson v. Eaffaloi'ich, C. A., 7 Q. B. D. 563. 
 
DISCLOSURE OF DOCUMENTS. HI 
 
 will not be dispensed witli because the real litigant is unable, chap. vii. 
 by reason of their being out of the jurisdiction of the Court, ^^°*- ^- 
 to procure the nominal litigants to make the affidavit, even 
 though the action may be dismissed in consequence (f). 
 
 There is no difference, as regards the liability to make an party bound to 
 affidavit of documents between actions for the recovery of make affidavit 
 
 11 ■ • 1 • • !• • 1 11 though not 
 
 land or otherwise involving questions of title and other bound to 
 actions (g), and it is no reason for declining to make the P'^°'i^<'^- 
 affidavit that the title of or case made by the applicant is 
 denied {h), or that the documents of which disclosure is 
 sought, or some of them are, or may be, privileged from pro- 
 duction or inspection (i) (the right to which will not be gone 
 into then, but determined, if at all, subsequently), or that 
 the party called upon to do so is not in a position to produce 
 the documents, or that making the affidavit would be an 
 admission of the possession of documents criminating the 
 party making it {k) ; the affidavit must in all cases be made, 
 and the protection, if desired, claimed therein. But the 
 granting of the discovery may be postponed (l), under Order 
 XXXI. r. 19, and this will be done where the making of 
 the affidavit would be a useless expense at the then stage 
 of the proceedings (m). 
 
 Sect. 2. — Of the affidavit of documents. 
 The affidavit of documents (n) which a party can be called Se<=*- 2. 
 
 upon to make is an affidavit showing what documents relating Affidavit of 
 to any of " the matters in question " between him and his "^o™*"^"'^- 
 opponent he then has or at any time has had (in the case 
 of the latter accounting for them), and which, if any, of the 
 former class he objects (or is unable) to produce, and, under 
 special circumstances, the character and capacity in which he 
 
 (t) lb. 
 
 (a) New British Co. v. Pead, 3 C. P. D. 196 ; Fortescue v. F., 34 L. T. 
 847 • Powell V. Heffernan, i L. R. (Ir.) 703 ; Magdalen Hospital v. Knotts, 21 
 S. J. 610 ; Wrentmore v. Sagley, 46 L. T. 741 ; Daniel 7. Ford, C. A., 47 
 L. T. 475. See Rvmbold v. Forteath, 3 K. & J. 762, for a form of order. 
 '(A) Ante, p. 85 (i). 
 
 (t) Post, p. 113. 
 
 [le) Sunn v. £., 4 De G. J. & S. 316. But the defendant in action for 
 penalties is not liable to make an affidavit {Hwmings v. Vfilliamson, 10 
 Q. B. D. 459). 
 
 (I) V. ante, p. 26, Postponing Disoovery. 
 
 (m) Dickson v. Harrison, 47 L. J. Ch. 686. 
 
 (n) See Stepli. Dig. Bv. Art. 1, as to the meaning of " documents." 
 
112 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. vii. holds them (o). Where there are several plaintiffs or de- 
 ^^°*' ^- fendants, all of them must join in the affidavit unless some 
 
 All parties special reasons are shown to the contrary ( p), though the 
 
 ^davit' "^ action would not be dismissed if it were shown satisfactorily 
 that one of the parties was not in a condition to make an 
 affidavit {q). An affidavit by the party's solicitor is not a 
 sufficient compliance with the order (s). 
 
 Meaning of The words " matters in question in the action " do not 
 
 words "matters -i j.i. • j.' ■ j t. j.i 7 7 
 
 in question." necessarily mean me issues or questions raised by me plead- 
 ings (t), because there may be none or the order may be 
 made before issue is joined, or the subject-matter of the 
 action or thing in dispute (u), but include all documents 
 which can throw any light or have any bearing upon the 
 determination of such issues or questions {x), whether 
 evidence per se or not (y), e.g., documents relating to the 
 amount of damages recoverable {z), or which may have a con- 
 siderable bearing on the costs to be given at the trial (a). 
 Definition The following definition of the words "relating, etc." was 
 BrefrL. J.^ lately suggested by Brett, L. J. (c) : " Any document, not 
 only which is evidence, but which you may not unreasonably 
 suppose contains information which may (not which must) 
 directly or indirectly enable you to advance your own case or 
 damage your adversary's case, must be set out. I say directly 
 or indirectly, because it may be a document which could 
 fairly lead to a train of inquiry which may have been one of 
 these effects " {cc). 
 
 (0) The afSdavit is in fact in the nature of a carefully prepared answer to a 
 searching interrogatory as to documents (see Rochdah v. King, 15 Beav. 11, 
 per Romilly, M. R., and the form H. 15 in the Rs. S. 0. April, 1880). 
 
 (p) Walker v. Kennedy, 5 "W. R. 396 ; DooKn v. Dixon, 16 ib. 796 ; Wilson 
 V. JRaffalovidi, 0. A., 7 Q. B. D. 553. 
 
 (g) See per Cotton, L. J., ib. 561 ; cf. Hartley v. Ovxn, 34 L. T. 752, where, 
 on an application to dismiss, the affidavit of the wife of an ahsconding party- 
 was accepted as sufficient. 
 
 (s) Wilsmi V. Baffalovidi, supra ; see, however, Barnett v. Hooper, 1 F & F 
 412, 467. 
 
 (0 Pape V. Lister, L. R. 6 Q. B. 242. 
 
 \u) See per Lindley, J., 40 L. T. 821. 
 
 (j:) Mansel v. Feeiiy (No. 2), 2 J. & H. 320 ; Jenkins v. BusJibv, 35 L. J. 
 Ch. 400. 
 
 (2/) ^ee Hutchinson v. Glover, 1 Q. B. D. 138 ; 33 L. T. 834 (C. A.). The 
 producing party is not thereby precluded from objecting to their being used 
 against him at the trial {ib.). 
 
 (2) Pape V. Lister, supra. 
 
 {a) Seeder James, L. J., L. R. 7 Ch. App. 98 ; per Wigram, V.-C 2 Ha 
 391. - ' 
 
 (c) In Compagnie Financiire v, Peruvian Guano Co., C. A., 48 L T 
 22, 23. ■ ■ 
 
 {cc) See also per Baggallay, L. J., ib. 
 
AFFIDAVIT OF DOCniEXTS. 113 
 
 Upon the question of possession or non-possessioo, relevancy chap. vii. 
 or irrelevancy, the deponent's oath is accepted as con- ^°°*' ^' 
 elusive {d), but when the possession of relevant documents is AH relevant 
 once admitted, they must be produced, unless they (1) mani- m°u"tTeVo- 
 festly can have no bearing on the issues or questions to be duoed unless 
 tried (e), or (2) relate exclusively to the case of the party ^""^ ''^^ ' 
 disclosing them, or (3) are otherwise privileged documents. 
 It is the duty of the party called upon to make the afS- Duty of party 
 davit to ascertain for himself by a precise and complete nature of 
 examination the nature and contents of documents in his documents in 
 possession or power, so as to be able to state whether they 
 relate to the matters in question or not, and if so, whether 
 they are material to his opponent's case or not, and if it 
 should appear that he has not done so, or has done so laxly 
 and incompletely, the Court should give his opponent the 
 most ample means of investigation as to their nature and 
 contents (/). Their number or bulk is not a sufficient excuse 
 for an imperfect examination of them, as the Court will, upon 
 a proper application, allow the necessary time to prepare a 
 sufficient and satisfactoiy affidavit (g). 
 
 As an admission that documents are in the possession or what are 
 power of the party making the affidavit is, in general, con- f°™"y>f^ '" 
 elusive against him (h), it is necessary to consider what docu- possession or 
 ments are deemed to be so. A party must set out every ^°'^^^- 
 docuTTient which he has in his possession or power (and all 
 which he has a right to inspect, provided he can enforce that 
 right, are in his power) whether he is bound to produce them 
 or not (i). Although, therefore, the fact that documents are Documents in 
 not in the exclusive possession of the party required to make ^^j^^' P"^^®^" 
 the affidavit, or of his agent, but in the joint possession of him- 
 self and other persons not before the Court, or of an agent on 
 behalf of himself and such other persons, may be a very good 
 reason for not producing them (k), yet that rule does not 
 
 (d) r. post, p. 119. 
 
 («) Mansell v. Feeny, 2 J. & H. 320 ; Dan. 1687. ,,„,,, 
 
 (/) M'Intosh V. O. W. B., 1 Sm. & Giff. 4, 10, per Stuart, V.-C. ; Manhy 
 V. Bevndce (No. 3), 8 De G. M. & G. 476 ; see Govibe v. Corporation of Lo-rAon, 
 I'y. & C. Ch. 631. 
 
 (g) See per Lord Lyndhurst, L. C. 15 L. J. Ch. 81 ; Comhe v. Corporation 
 
 (h) Plants. KendricTc, L. B. 10 C. P. 692. See, however, imst, p. 131, as 
 to explaining away an inadvertent admission in this respect. 
 
 (i) Per Lord Lyndhurst, L. C, 1 Phill. 226 ; Lazarus v. MozUy, 5 Jur. N. 
 S. 1119 ; Stoanslon v. /Ashman, C. A. 45 L. T. 360. 
 '{k) V.post, p. 133. 
 
114 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. VIT. apply to discovery ; in -whicli the only question is, whether, as 
 ^^'''^- ^- between the plaintiff and the defendant, the plaintiff is en- 
 titled to an answer to the question he asks ; for if he is, the 
 defendant is bound to answer it satisfactorily, or, at least, to 
 show the Court that he has done so as far as the means of his in- 
 formation permit (Z). In Clinch V.Financial Corporation (m). 
 Lord Hatherley, when Vice-Chancellor, said, " The attempt 
 has often been made in one way or the other to escape the 
 personal order for production, on the ground of the ownership 
 of the documents being in a corporate or partnership body. 
 I myself recollect, as a pleader, having attempted it un success- 
 Inability to fully in Taylor v. Rundell. But it has always been decided 
 ground for not ^^i** ^^^ parties must give all the information in their power, 
 disclosing. even if the documents be not in their possession in this sense, 
 that they cannot be produced without an order for the purpose, 
 because they are in the joint possession of the directors and 
 others. The Court says, if you have any possession, that is 
 enough. There may be grounds for not producing, but even 
 then you must give discovery " {n). There is no rule plainer 
 than that a person, whether a partner or not, must discover 
 all books which relate to the matters in question, whether he 
 is accountable alone or with others (o). It is no excuse for a 
 party to say that he cannot give the requisite information 
 because the documents are wrongfully withheld from him, 
 or are in a distant part of the world, as the Court will allow 
 Affidavit must him the necessary time for producing them ( p). If the liartv 
 
 show nature . , . ... , i , ? '^ •' 
 
 of joint IS not in a position to produce the documents, if so required, 
 
 possession. the affidavit should show the nature of the joint ownership, so 
 as to enable the Court to determine whether it will order 
 them to be produced notwithstanding (q), and state the con- 
 sequent objection or inability to produce, but it is not neces- 
 sary, as in the case of an answer as to documents, to show 
 that permission to produce them has been refused [r), 
 
 (l) See per Lord Cottenham, L. C, in Taylor v. Rundell, Or. & Ph 104 
 111—3 ; Mertens v. Haiffh, 3 De G. J. & S. 628 
 
 (m) L. K 2 Eq. 271, 273. 
 
 (n) See Swanston v. Lishman, C. A. 45 L T 360 
 
 (c.) P.r Jessel M. R 46 L. T. 361 ; see Tayhr y. Rundell; Mertens v. 
 Hmgh, 3 De G. J. & S. 528. 
 
 L. C. 1 Phill. 225 ; Mertens v. Haigh, ubi supra. 
 
 (e) Bovill V. Cowan L R 6 Ch. App. 496 ; Madley v. McDougall, 7 ih. 
 312 ; Kearsley v. Phihjjs, 10 Q. B. D. 3d, 466 (C. A.). 
 
 (r) See Kearsley v. Philips, distinguishing on this ground Mertens v. ffaigh. 
 
AFFIDAVIT OF DOCUMENTS. 115 
 
 Documents which are in the hands of third parties under a Ken chap. vii. 
 
 upon them created by the act of the party himself are deemed ^^°^- ^- . 
 
 to be at least in his poiuer, if not in his constructive possession, Documents in 
 and must therefore be included in the affidavit (s), unless he ^e"nCltc., 
 is denied access to them by the holder {t), but documents in ^^^^ lien. 
 the possession of a third person under a covenant to produce 
 them at the deponent's expense need not, and a fortiori, 
 therefore, need not be produced (u). A party need not in- 
 clude in his affidavit documents held by him as a mere 
 depositary (x). In all cases where there is any doubt as to Fullest 
 
 the deponent's being able to produce documents, owing to the information 
 
 • , ~.. r„ . ° should be 
 
 existence or a jomt possession oi or property or interest in given. 
 
 them being vested in a third person not before the Court, or 
 where for any other reason it is doubtful whether documents 
 can fairly be considered as being in the deponent's posses- 
 sion or power, in the ordinary sense (y), or where, as is some- 
 times the case, it may in effect be a conclusion of law as to 
 what is their custody and control (2), the deponent should 
 give the fullest information in his power as to their position, 
 setting out the facts relating thereto, so as to enable the 
 Court to decide the question (a). 
 
 A form of affidavit, which is substantially the same as that Statutory form 
 previously used in the Court of Chancery (6), is provided by °^ ^*^'^*^^'- 
 the rules (c), and despite the statement that it may be used 
 " with such variations as the circumstances may require " (d), 
 it was not intended to be merely optional, but to serve as the 
 common form (e), any departure from which will be viewed 
 with suspicion unless satisfactory reasons are shown for such 
 a course (/). Thus, the omission of any statement as to 
 documents formerly in the party's possession, and as to what 
 
 3 De G. J. & S. 528, and Taylor v. Eundell, 1 Y. & C. Ch. 128 ; S. C. I Phill 
 222, and explaining HutchiTison v. Glmer, 1 Q. B. D. 138. 
 
 (s) See re Cameron's Coalhrook Co., 25 Beav. 1 ; Clinch v. Fin. Corp. , L. R. 
 2 Eq. 271 ; Lochett v. Cary, 3 N". R. 405 ; post, p. 134. 
 
 (0 See KettUirell v. Barstow (No. 2), W. N. 1872, 95. 
 
 (m) Bcthell V. Casson, 1 H. & M. 806. See Vivian v. UitU, LXXV. L. T. 103. 
 
 \x) Fm-man v. Neville, 14 L. J. Ch. 33. 
 
 \y) See Clinch v. Fin. Corporation, L. E. 2 Eq. 271. 
 
 (2) Lacharme v. Quartz Mining Co. (No. 2), 31 L. J. Ex. 609. 
 
 (a) lb. Clinch v. Financial Corporatimi, ubi supra. 
 
 (b) See Seton, vol. 1, p. 133. 
 
 (c) Jud. Act, 1875, sched. App. B. No. 9 {v. post, p. 191). 
 id) Ord. XXXI. r. 14. 
 
 («) Per Lindley, J., Anon. W. K 1876, 39 ; see Gardner v. Irvin, C. A. 4 
 Ex. D. 49 ; Ledwidge v. Mayne, It. Rep. 11 Eq. 463. 
 
 (/) See Boyd v. Fcirie, 20 L. T. 935; Woodhatch v. Freelnnrl, 11 
 W. R. 397. 
 
116 
 
 LAW ANB PRACTICE OF DISCOVERY. 
 
 CHAP. VII. 
 Sect. S. 
 
 Grounds of 
 objection or 
 inability to 
 produce must 
 be stated. 
 
 has become of them, will render the affidavit insufficient (g). 
 It should be full and distinct in its terms, as the party- 
 seeking discovery is bound by it, and will be construed 
 strictly, because the other side cannot adduce evidence to 
 contradict it [h). Objections or statements of inability to 
 produce must be distinctly made {%), and the grounds stated 
 as allegations of fact and verified (/c). It is not enough to 
 say merely that the documents are privileged, which is a 
 statement of a matter of law, or to state the grounds vaguely 
 and generally, but the facts should be set out from which it 
 may be seen whether that view of the law is right or not (l) ; 
 neither is it enough for the party to say that he is advised 
 and believes that documents are privileged, where such belief 
 is admittedly founded not upon a personal .examination of the 
 documents in question but upon information derived from 
 others (m), though in ordinary cases it would be sufficient (n). 
 In affidavits, as in pleadings, doubtful or ambiguous state- 
 ments will be construed in the sense most unfavourable to 
 the deponent (o), and Avhere there are inconsistent or contra- 
 dictory statements the opposite party may adopt and act upon 
 that which is most in his own favour (p). It is not necessary 
 that the schedule should show positively that documents are of 
 the character ascribed to them in the affidavit itself, provided 
 that the party swears that they are such, and the schedule is 
 such as not on the face of it to contradict the affidavit (q), 
 Primd facie every document described in the affidavit must 
 be taken to be as it is described (though the Court is of course 
 entitled to look to the schedule to see whether the documents 
 specified therein can possibly fall within the description given of 
 them in the body of the affidavit) (r), but if it can be shown to 
 
 {g) J-Fagstaffv. Anderson, 39 L. T. 332 ; Anon. "W. N. 1876, 39 : Hishton v. 
 (fi-issel (No. 2), 14 W. R. 789. 
 
 Qi) Vesper Cotton, L. J., 4 Ex. D. 53 ; Bovill v. Cowan, L. R. 5 Ch. App. 
 495 ; Manhy v. Bewicke, 8 De G. M. & G. 470 (party cannot be cross- 
 examined upon it at trial, unless used as affidavit). 
 
 (i) Fm-tcscue v. F. , 24 W. R. 944. 
 
 {k) Gardner v. Irvin, C. A. 4 Ex. D. 49 ; Kain v. Farrer, 37 L. T 46« 
 
 (1) Beeper Cotton, L. J., 4 Ex. D. 53. 
 
 (m) See Manhy v. Bcvncke, supra. 
 
 [n) V. ante, p. 45. 
 
 (o) See Tho7nas v. RatvJings, 27 Beav. 
 
 L. J. Cb. 670 ; Nordon v. Iiefries, 8 Q. B. D. 508 
 (p) See Bowes v. Femir. 3 Mvl. & Cr. 632 
 (?) See per ■\Vood, V.-C, 2 H. & JL 5. 
 (r) See per Wood, V.-C, vM supra; Gardner 
 
 49 ; Lijell v. Kr„vefhj (H. L.), 52 L. J. Ch. 386. 
 
 140 ; Lewis v. Pennington, 29 
 
 V. Tnin. C. A. 4 Ex, D. 
 
AFFIDAMT OF DOCUME.\TS. 117 
 
 demonstration on the face of the affidavit and the schedule chap. VII. 
 itself that some of them do not answer the description, they ^^''*- ^- 
 will of course be excepted (s). If an affidavit claiming pro- 
 tection for documents, some of which are, while others are 
 not, privileged, does not sufficiently show which are entitled 
 to protection, production may be ordered of all, or the party 
 may be required to make a further affidavit identifying the 
 documents entitled to protection, which he will be allowed to 
 do under ordinary circumstances (t). 
 
 The sole object of the affidavit being to enable the Court What is a 
 to make an order for the production of the documents, if it de^riptiou of 
 think fit, such a description of the documents as would documents. 
 enable production, if ordered, to be enforced, is sufficient {u); 
 they must be so far identified that the Court can see that 
 the documents referred to are produced if required, and if 
 words are used, which, if true, protect the documents, na 
 further particularity is necessary than in the case of docu- 
 ments for which protection is not claimed {x). It is not 
 necessary, therefore, that such a description should be given 
 of documents for which protection is claimed as to put the 
 opposite party in a position to test the truth of the affidavit 
 thereby, or of the grounds upon which the protection is 
 claimed {y), or to prevent the possibility of other documents 
 being fraudulently substituted for them on production (0). 
 Thus, although a description of documents for which privilege Descriiriion by 
 is claimed as " certain documents, letters, etc." without any ^^'' '^^' ^^' 
 further identification, or as " a bundle of deeds and papers re- 
 lating exclusively to my title," is insufficient (a), deeds or other 
 privileged documents of the same class, may be numbered and 
 tied up in a bundle, initialled by the deponent so as to earmark 
 it, and described accordingly (6). The applicant is not entitled 
 
 (s) See per Knight Bruce, L. J., 8 De G. M. & G. 1873; Lyell v. 
 Kennedy (H. L.). 
 
 (t) See per Cotton, L. J., 4 Q. B. D. 88 ; Parsons v. Eohertson, 2 Keuii, 
 605. 
 
 (u) Taylor v. Batten, C. A. 4 Q. B. D. 85 ; Beuide v. Graliam, C. A., 7 
 ib. 400, 409. 
 
 (x) Ib. 
 
 ly) Ib. Seeder Cotton, L. J., 4 Ex. D. 53. 
 
 \z) See per Wigram, V.-C, 2 Ha. 383. 
 
 (a) See Fortescue v. F., 34 L. T. 8-i7 ; Phel2)s v. Olive, 4 Bcav. 549 n. ; 
 Price V. P., 48 L. J. Ch. 215. 
 
 (b) See the form given in Taylor v. Batten, supra, and followed in Bewicl-e 
 V. Oraham, C. A. 7 Q. B. D. 400, which has since become the stereotyped 
 form in the case of )jrivileged documents. See also ChrisLwii, v. Tuylur, 11 
 .Sim. 401. 
 
118 LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. Yii. to have the dates of privileged documents and such other par- 
 ^^°^' ^' ticulars as may enable him to discover indirectly their con- 
 tents (c), or a detailed schedule of title-deeds showing their 
 nature or the names of the parties thereto (d) ; it is enough 
 
 Prolixity to be that they he described in the manner above indicated. In 
 framing the affidavit and schedules care must be taken to 
 avoid prolixity or impertinence, otherwise it may be ordered 
 to be taken off the file with costs (e), and the objecting party 
 is not bound to point out the particular portions objected 
 to (/). Where there are numerous documents of the same 
 class they should be described in classes in the form given in 
 Taylor v. Batten. Thus, letters should not be set out indivi- 
 dually, but may be referred to hy bundles marked as " letters 
 from A. to B.," or any other mark of identification {g). In- 
 cluding documents in the affidavit or schedules is a sufficient 
 and generally conclusive admission of their relevancy, so as to 
 preclude the party from afterwards raising an objection on 
 that score, but a party may be afforded an opportunity of 
 relieving himself, if he can, by affidavit, from an inadvertent 
 admission of possession or control, or failure to claim protec- 
 
 Where affidavit tion Qi). Where the affidavit is informal or insufficient, e.g., 
 
 insufficient, /■ , .•• i !•• i-ip.i 
 
 party shouia "Om not containing a clear admission or denial of the posses- 
 apply for sion of documents, or a sufficient description to identify them, 
 application should be made for afurther and better affidavit (i), 
 for if a party does not object to the description of the docu- 
 ments at that stage, he is precluded at the next, which is that 
 of production, from asking for any further description of 
 Where privi- them {Ic). Where the affidavit is technically sufficient, the 
 pTty m^'' party who has obtained it should give notice to produce the 
 apply for documents mentioned therein (l), so as to entitle himself to 
 
 inspection. 
 
 (c) See per Cotton, L. J., i Ex. D. 53 ; per Brarawell, L. J., 7 Q. B. D. 
 412. 
 
 {d) S&eper Cotton, L. J., 4 Q. B. D. 89, explaining Fortescue v. F., 34 L. 
 T. 847 ; per Lindley, L. J., 26 W. R. 354 ; Contra, Taylor v. Oliver, 45 L. J. 
 
 (e) See Boyd v. B., 11 L. T. 325 ; Taylor v. Kelly, "W. N. 1876, 139 • 
 Walker v. Poole, 61 L. J. Ch. 846 ; Owens v. Fmmens, XX. S. J. 118 
 
 (/) lb. 
 
 (,g) See Walker v. Poole, 61 L. J. Ch. 840. 
 
 (A) Plumley \. Horrell, W. N. 1868, 240 ; Greenwood v. (?., 6 "W. E. 119 ■ 
 Dan. 1681 ; but see Plant v. JCendrick, L. R. 10 C. P. 692. ' 
 
 (i) Gardner v. Jrvin, C. A. 4 Ex. D. 49. As an alternative, a summons 
 may be taken out "to consider the sufficiency of the affidavit," as under the 
 old Chancery practice (see Dan. 1680), when questions as to production may 
 be raised (see Kicholl v. Joves, 2 H. & M. 688). 
 
 (k) Semper Brett, L. J., 52 L. J. Q. B. 72, 10 Q. B, D. 201—2. 
 
 (0 Sec Ord. XXXI. r. 14. Y . , v^. . ^ i 
 
FURTnER AFFIDAVIT OF DOCUMENTS. II9 
 
 inspect them, and apply for an order to inspect such of chap. vii. 
 them as protection is claimed for, if he challenges the ^^°^- ^- 
 claim to protection {U) ; and if the documents when pro- 
 duced do not correspond with the description of them as 
 given in the affidavit, he should apply for a further affi- 
 davit to be made, to enable him to obtain the production 
 of the identical documents (m). Where the claim to protec- 
 tion is insufficiently stated, e.g., by not stating or verifying the 
 grounds on which it is based, the opposite party may either 
 apply for a further and better affidavit (to)) or take out a-, 
 summons for an order for inspection notwithstanding the- 
 objection raised, on the hearing of which application the ques- 
 tion of privilege can be decided (0). 
 
 Of obtaining a further affidavit of documents. 
 
 In considering the sufficiency of an affidavit of documents. Affidavit 
 the sole question is, not whether it is true in fact, but •^""acLed by 
 whether it is technically sufficient ( p), and the statements contentious 
 contained in it as to the possession or non-possession of docu- ^ *^' ' 
 ments, their relevancy or irrelevancy, the description given of 
 them, and the character and effect attributed to them (g) are 
 so far conclusive as against the opposite party, that he cannot 
 by means of a contentious affidavit impeaching its accuracy 
 call upon the party making it for a further and better affi- 
 davit (r) ; that is, he cannot say, " I make an affidavit that I 
 believe, and have good ground for believing, that there are 
 other documents, and therefore a further affidavit of docu- 
 ments ought to be required" (rr). As was said by Lord Cot- 
 tenham (s), " It is not because you sxispect that a defendant 
 has stated facts incorrectly or untruly in his answer, that you 
 are at liberty to disregard these statements. * * * His answer 
 maybe open to every possible suspicion, and yet, according to 
 
 (IT) See Ord. XXXI. r. 18. 
 
 (m) Sue per "Wigram, V.-C, 2 Ha. 389.. 
 
 (11) See per Cotton, L. J., Gardner v. Irvin,. i Ex. D. 49, 53. 
 
 (0) lb. A form of summons is given in the Appendix, post, p. 196. 
 
 (p) Earl of Eglinton y. Lamb, 35 L. J. Ch. 113. 
 
 (q) This ma}', however, sometimes be a question of law (v. a«?c, p. 115). 
 
 (r) Jones v. Monie Video Oas Go., C. A. 5 Q. B. D. 556, followed in 
 Bewicke v. Graham, C. A. 7 ib. 400 ; Ross v. Dublin Tram. Co., 8 L. li. 
 Ir. 213 ; and Oompagnie Financiire v. Peruvian Co., 48 L. T. 22. 
 
 (rr) See per Brett, L. .J., 48 L. T. 23. 
 
 («) 3 Myl. & Cr. 637. 
 
120 
 
 LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. VII, 
 Sect. 2. 
 
 iQSuf&oiency 
 must be 
 established 
 from internal 
 evidence or 
 admission of 
 party. 
 
 Admission 
 need not be 
 express. 
 
 tlie practice, the Court, cannot reject it." Thus, evidence is not 
 admissible to show that documents have been inadvertently 
 or even fraudulently omitted from the affidavit (t). If, how- 
 ever, from any discrepancy or inconsistency appearing upon 
 the face of the affidavit itself {u), as if the deponent were to 
 refer to a schedule as containing six documents when it 
 appeared that there were only five (x), or from other docwments 
 disclosed or referred to in it (y), or from some admission in 
 the pleadings, answer, or other affidavits (z) {i.e., the affidavits 
 made by way of giving discovery, not general affidavits in the 
 action) (a), of the party from whom discovery is sought, the 
 master or judge is of opinion that the affidavit is insufficient, 
 he ought to make an order for a further affidavit (6), and 
 this may be done even after judgment (c). Thus, where it 
 appeared from the affidavit of documents and schedule that 
 the deponents had formerly had in their possession docu- 
 ments which the"-pleadings showed to be material and which 
 were not disclosed in the affidavit, a further affidavit was 
 ordered (d), as also in a case where a party in his answer set 
 out a long list of the customers of a business carried on by 
 him, which could not have been made from memory merely, 
 but did not disclose in his affidavit any books relating to such 
 business (e). In order to found an application for a further 
 and better affidavit, it is not necessary that there should be an 
 admission in express terms of the possession of other docu- 
 ments; the judge may draw the inference that such is the 
 case (/); but a mere suspicion or surmise that documents 
 have been omitted is not enough ; it must at least be a reason- 
 able suspicion, and one founded on the pleadings and affi- 
 davits (g). 
 
 (t) Reynell v. Sprye, 1 De G. M. & G. 656 ; Richards v. Watkins, 6 Jur. 
 N. S. 168. 
 
 (m) a. O. v. Gastleford Local Board, 27 L. T. 644. 
 
 (»■) See ^«r James, V.-C, 21 L. T. 705. 
 
 iy) See Imp. Land Co. v. Masterman, 29 L. T. 559 ; Original Hartlepool 
 Coll. V. Moon, 30 ih. 193, 585 ; Compaqnie Financiere v. Peruvian Co., 48 
 L. T. 22. 
 
 (z) See Westminster, etc. Co. v. CUiijion, 9 L. T. 534. 
 
 (a) Alcock V. Gill, 21 L. T. 704. 
 
 {V) Jones Y. Monte Video Gas Co., C. A. 5Q. B. D. 556, followed in Beioicke 
 V. Graham, C. A., 7 ib. 400 ; Welsh, d-c. Coll. v. tiaskell, C. A. 36 L. T. 352. 
 
 (c) Richards V, Watldns, 6 Jur. N. S. 168. 
 
 (d) Boss V. Dublin Tram. Co., 8 L. R. Ir. 213. 
 
 (e) Saull V. Broicne, L. R. 17 Eq. 402 ; see Noel v. iV., 1 De G J & S 
 468 ; Wright v. Pitt, L. R. 3 Ch. Aijp. 809 ; Macfarlane v. Bolt, ib. 14 Eq 
 680 ; Richards v. Watkins, 6 Jur. N. S. 168. 
 
 (/ ) Per Jessel, M. R. in Saull v. Broun'-, tibi supra. 
 
 (g) Wright v. Titl, ubi supra. For Ibnii of summons, v. post, p. 195. 
 
FUETHER AFFIDAVIT OF DOCUMENTS. 121 
 
 The party seeking the discovery, however, is not destitute chap. vii. 
 of all remedy in such cases. If he does not obtain what he ^^°*- ^- 
 considers a fair and satisfactory disclosure, but believes that Interrogatories 
 there must be documents in his opponent's possession to documents. 
 which his recollection has not been called, or that he has 
 taken rather too wide a view in his own favour as to what 
 may or may not be pertinent to the case, he may inter- 
 rogate as to such documents Qi), and interrogatories properly 
 framed may force a person to disclose what documents he has 
 in his possession, and the party requiring the production will 
 thereby avoid committing any breach of the practice as to 
 affidavits of docaments [i). Thus, where privilege is claimed 
 for documents in an affidavit, the party claiming it may be 
 asked whether they do or do not relate to certain matters in 
 question in the action, and as to the ground on which he con- 
 tends that they are privileged (k). If the person who interro- 
 gates is not satisfied with the particularity of the description 
 of the documents, he can apply for leave to interrogate 
 further, or that his opponent may be required in his answers 
 to give a more accurate description of them (I). A party who 
 is interrogated as to the possession of particular specified 
 documents, cannot answer by reference to a previous afiidavit 
 of documents denying the possession of documents in general 
 terms {II). If inten-ogatories as to further documents have Party with- 
 been necessitated by the improper withholding of information ''°l<i]°g ''°™" 
 
 ^ , , ments may be 
 
 by the opposite party, he may be compelled to pay the ordered to pay 
 costs (m), and a judge ought to be severe in awarding costs ™^*^' 
 when he finds that expenses have been incurred through a 
 wrongful suppression of material documents (mm). 
 
 When the plaintiff, after obtaining an affidavit of docu- 
 ments, amended his bill, he was held to be entitled to a 
 further affidavit as to documents relating to the further 
 matters contained in such amendments {n). 
 
 (h) Ncwall V. Telegraph Co., L. E. 2 Eq. 756. 
 
 (i) Per Brett, L. jf., 5 Q. B. D. 558 ; see Swanston v. Lishman, C. A. 45 
 L. T. 360. 
 
 ilc) Oatt V. TourU, 22 L. T. 775. A claim of privilege cannot be dispute d 
 by affidavit (Underwood v. Secretary for India, W. N. 1866, 95). 
 
 (/) ?.ecper Brett, L. ,7., .52 L. J. Q. B. 72. 
 
 (H) Catt V. Tourle, 22 L. T. 775. 
 
 (ill) .Junes V. Monte Video Gas Co., 5 Q. B. D. 556 ; see Swanston v. 
 Lishwan, C. A. 45 L. T. 360. 
 
 (mm) Pec The8is-6r, L. .T,, 5 Q. B. D. 559. 
 
 (n) See \Vardcn,\'. Pcddinyton, 32 Beav. 639. 
 
122 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. -711, 
 Sect. 3. 
 
 Notice to 
 produce 
 documents 
 referred to in 
 pleadings or 
 affidayits. 
 
 Sect. 3. — Inspection of docwnients referred to in pleadings 
 or affidavits (n). 
 
 Every party to an action or other proceeding (o) is entitled 
 at any time at or before the hearing thereof (p) to give 
 notice to any other party in whose pleadings (pp) or 
 affidavits (q) reference is made to any document, to produce 
 such document for the inspection of the party giving such 
 notice, or of his solicitor (r), and to permit him or them to 
 take copies thereof (rr). This rule was necessitated by the 
 change in the rules as to pleading (which forbid documents 
 to be set out at length) (s) mainly in order to prevent 
 fictitious documents being introduced into pleadings or 
 affidavits (t), and any party may require, and the Court will 
 order, inspection of documents referred to in any other party's 
 pleading or affidavit, unless such last-named party can show 
 sufficient cause for the document not being produced (u). 
 The fact that a party requires inspection of a document for 
 the purpose of preparing his defence (or of setting it out in 
 answer to the pleading mentioning or referring to it) (x), is 
 a strong reason for ordering inspection (y). The document 
 must, apparently, be relied upon by the party in his plead- 
 ing as the foundation of his claim or defence, and not merely 
 stated by way of inducement {z), and there must be, at 
 
 (m) See Hare, part IV. cli. iii., § 3 ; Kerr, 39 seq. 
 
 (o) See, as to the meaning of the tenns party, action, and proceeding, Jud. 
 Act, 1873, s. 100. 
 
 (p) See rs. 15 seq. {post, p. 124) for the proper mode of giving notice before 
 the hearing. 
 
 (pp) "Pleadings" includes a. petition (see Peyton v. Lambert, 6 Ir. Ch. 
 Rep. 9) or summons (Jud. Act, 1873, s. 100). 
 
 (q) Apparently, this does not include answers, the rule as to which is that 
 a party is entitled to inspection of all documents so referred to in them as to be 
 virtually incorporated iherewith. 
 
 (r) See, as to who may inspect, post, p. 124. 
 
 (rr) Ord. XXXI. r. 14. 
 
 (s) See Ord. XIX. rr. 24, 27. 
 
 {f) This has been frequently stated by the late Master of the Rolls. (See 
 per Chitty, J., 48 L. T. 374). ^ 
 
 (m) V. post, p. 124. 
 
 (a;) See C. L. P. Act, 1852, s. 53 ; per Willes, J., 7 0. B. N. S. 828 • Owen 
 V. Nickson, 3 E. & E. 603. ' 
 
 (y) Quilter v. ffeailey, C. A., 48 L. T. 373. The notice may be given as 
 between co-defendants (per Jessel, M. R., ib.). 
 
 (2) It was upon this principle that the doctrine of profert and its equitable 
 
INSPECTION OF DOCUMENTS EEFEEEED TO IN PLEADINGS. 123 
 
 least, a. presumption of its being in the possession or power chap. vii. 
 of the party called upon to produce it (a). Thus, production ^^°*- ^- 
 was refused of a letter referred to in a petition in support of 
 the equity relied upon by the petitioner, without setting out 
 any part of its contents, or referring to it when produced, or 
 admitting it to be in his possession (b). Reference in an Inadvertent 
 answer to a part of a document conferred a right to inspect tf rXTed"^ 
 that part only (c), and where words of reference to a docu- against. 
 ment had been inadvertently inserted in a pleading, the 
 Court relieved the party from the effects of such reference by 
 allowing it to be amended by omitting the words of re- 
 ference (d). 
 
 It was not intended to make the giving of such notice a Notice not to 
 matter of course in all cases, and no costs will be allowed for ^Iter "S '^^ 
 giving any notice or making any inspection thereunder, un- course. 
 less it is satisfactorily shown that there were good and 
 sufficient reasons for doing so (e). The inspection will not 
 be gi'anted to enable a party to fish for a case or find out a 
 defect in that of his opponent, or where the Court sees that 
 it is sought for an improper purpose ; the applicant must 
 show a " real and peremptory " need of it (/). 
 
 The rule that discovery will not generally be allowed Notice may be 
 to a defendant before he has put in his statement of fendant'^before 
 defence (g), does not apply to inspection of documents re- defence. 
 ferred to in a party's pleadings or affidavits (h). In the case 
 where the above was decided, Jessel, M. E.., said (i) : — "The 
 suggestion is that though the words of the rule {k) are 
 general, it is a sufiScient cause for not making the order that 
 the defendant has not put in his defence. I should have sup- 
 posed that was a reason just the other way. The defendant 
 wants to see the documents for the very purpose of putting 
 in his defence, which is only reasoualde. The plaintiff may 
 have set them out imperfectly. Indeed, it is possible that 
 on seeing the documents the defendant may give in at once. 
 
 (a) V. post, p. 125 ; Quilter v. Heatley. 
 \b) Fitzgerald v. Simpson, 17 Ir. Ch. Rep. 141. 
 (e) Belsham v. Harrison, 15 L. J. Ch. 438. 
 (d) Peyton v. Lambert, 6 Ir. Ch. Eep. 9. 
 
 («) See Es. S. C. (costs) Jmie, 1875, Ord. VI. (special allowances, &c. ) r. 15. 
 (/) See jjer Erie, C. J., 8 C. B. N. S. S3i;per Cromirtou, J., 3 E. & £. 608. 
 Ig) V. ante, p. 15. 
 
 (A) Quilter v. Heatly, 48 L. T. 373 (disapproving of the ratio decidendi in 
 Webster v. Whevxdl, 15 Ch. D. 120, though not of the decision itself), 
 (i) 31 W. R. 330 (s.e. 23 Ch. D. 42). 
 {k) R. 14. 
 
124 LAW AND TEACTICE OJ? DISCOVERY. 
 
 CHAP. VII. At any rate it is sufficient ground for requiring to see them. 
 ^^°*- ^- that they have been made part of the statement of claim " ; 
 and Lindley, L. J., added, " There is a material distinction 
 with regard to the stage at which it is obtainable, between 
 ordinary discovery and the discovery of documents referred 
 to in pleadings and affidavits. Such discovery is of right " (l). 
 Form of The notice must be in writing (m), and a statutory 
 
 form (to) is prescribed by the rules, but it is not necessary 
 that it should be given in the very words of the form, pro- 
 vided that a sufficient description of the documents is given 
 to enable the other party to know what documents are re- 
 quired to be produced (o). In ordinary cases inspection is 
 only permitted to the party, his solicitor, and legal agents ; if 
 inspection by a special agent or witness is required, an order 
 to that effect must be procured (p). No length of notice is 
 fixed by the rules, and no time is specified in the statutory- 
 form within which the inspection may be required to be 
 given, but it results from rule 16 (g), that either 5 or 7 days, 
 as the case may be, is the maximum interval allowed 
 between the receipt of the notice and the giving of the 
 inspection. A notice to inspect on the following day has 
 been considered too short (r). 
 Consequences If the party to whom such notice has been given fails to 
 hig'with'notfce Comply with it by giving a counter-notice of the time at 
 without suffi- which the inspection may be had (s), he will not be allowed 
 cause. afterwards to put any such document in evidence on his be- 
 half, in the action or proceeding, unless he satisfies the Court 
 that such document relates only to his own title, he being a 
 defeyidant in an action, or that he had some other sufficient 
 cause for not complying with the notice {t). By " title " is, 
 apparently,meanttheparty'si'iife to relief or case generaUy{u). 
 It would be contrary to principle to make a defendant pro- 
 
 (l) lb. 331. See, however, Halliday y. Temple, 8 De G. M. & G. 96 ; 
 Turner v. Burkinshau\ 4 Giff. 399. 
 
 (m) Sed quaere, when the notice is given at the hearing. 
 
 (n) V. post. Append, p. 193. 
 
 (o) Seeder- Hall, V.-C, 11 Oh. D. 260. 
 
 (p) V. post, p. 142. 
 
 (g) V. post, p. 126. 
 
 (r) See In re Credit Co., 11 Ch. D. 256. 
 
 (s) r. pest, p. 126. 
 
 (t) R. 14. See, for an instance of the application of this part of the rule. 
 Anmi., W. N. 1876, 40. 
 
 (u) V. ante, p. 33. It must be rememtered that a plaintiff is in tlie 
 position of a defendant qud counter-claim (see_^;c/' Field, J., 5 Q. B. D. 147). 
 
INSPECTION OF DOCUltEXTS REFERRED TO IX PLEADINGS. 125 
 
 duce documents, which, though not muniments of title, are chap. vii. 
 documents not in favour of the plaintiff but of the defendant, ^^°^' ^' 
 who is entitled to produce them for the first time in Court (x). 
 If, however, the plaintiff had an interest in the document, he 
 would have a right to inspect it (y). Upon the principle that 
 ex2)ressio unius exdusio est altei-ms, a plaintiff would not 
 be justified in refusing to produce documents by the fact 
 that they related exclusively to his own title, e.g., were his 
 title deeds, tliough there is some authority to the contrary ; 
 thus, in an anonymous case before Lindley, J., at chambers {z), 
 an application by the executors of a deceased mortgagor, in 
 an action of ejectment by the mortgagees, to inspect the 
 mortgage deed, was refused, the plaintiff undertaking to give 
 a statement of principal, interest, and costs due with par- 
 ticulars of subsequent incumbrances, the case being ap- 
 parently decided in accordance with the ordinary rules of 
 discovery, without any special reference to the rule (a). In 
 Webster v. Wliewall (b), which was an action of trespass, 
 Denman, J., seems to have thought that the fact that the 
 document pleaded was the plaintiff's title-deed, justified 
 him in refusing to produce it for the defendant's inspec- 
 tion. The fact that the document was not in the possession Want of 
 or under the control of the party called upon to produce at ^^1,^^. over 
 the time of giving the notice, would be, of course, a sufficient document, 
 excuse for not complying with it (c), and it is doubtful 
 whether such possession or control is to be inferred, in the 
 absence of any statement to the contrary, from the mere fact 
 of such reference (d). In the analogous case of profert, it 
 was excused where there was an impossibility or insuperable 
 difficulty in the way of the production of the deed without 
 any fault of the party pleading it (e). As above stated, the 
 fact that the defendant has not yet put in his statement of 
 defence is not only no excuse for not producing a document, 
 but may, on the contrary, be a very strong reason for pro- 
 
 (x) Per Pollock, B., 7 Q. B. D. 407; see ^er Kindersley, V.-C, 4 Drew. 
 527 ; Olover v. HoJl, i riiill. 4S4. 
 
 {y) ^- V^'' V- l"^"^- "'' *'' *^® meaning of tlie word "interest." 
 
 (z) Anon., W. N. 1876, 2-3. 
 
 \a) V. aide., p. 33 (o) ; cf. Eoward v. Robinson, 4 Drew. 522. 
 
 (6) 15' Ch. D. 120. 
 
 (c) Hare, 267 ; see FUzgeralclr. Simpson, 17 Ir. Ch. Rep. 141 ; Philips v. 
 Pr.nivfnljKir, Ir. Rep. 3 Eq. 12 ; Soohy v. Mercer, 3 .lur. 949. 
 
 ((^^I'Sfp^wr Lonl Elilon, U C. 1 Swans. 122. 
 
 (f) Seey«/- Jliiule, .!., 7 C. P.. 378. 
 
126 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. vii. ilucing it, if the defendant requires to see it for the purpose 
 ^°''*- ^- of patting it in (/). As an alternative to excluding the docu- 
 ment, the Court or presiding Judge might order the hearing 
 of the proceedings to be postponed at the cost of the non- 
 producing party, in order to give the opposite party an 
 opportunity of enforcing production (g). 
 
 If the party who receives the notice omits in due time to 
 give the counter-notice of a time for inspection, or (in his 
 counter-notice) objects to give inspection of any of the 
 specified documents, the party desiring it may apply for an 
 order for inspection (h), and the burden of showing cause 
 against the application lies upon the party who refuses pro- 
 Two courses duction (i). Two courses, therefore, are, under the rules, 
 
 gfvhignofof OP®'^ *° *^® P*^'*y giviiig t^6 notice; (1) he may take no 
 further action in the matter, and afterwards, at the trial or 
 hearing, object, under this rule, to the document being 
 received in evidence (as was done in Webster v. Whewall) (]c) ; 
 or (2) at once apply (under r. 18) to inspect it ; but it seems 
 from that case, that where the document withheld is a 
 Tnaterial one, the party requiring inspection should not wait 
 until the trial, but apply for an order to inspect, as, other- 
 wise, his conduct may be construed into an admission that 
 he does not really stand in need of an inspection of it (l). 
 Counter-notice The counter-notice of the time during which the docu- 
 by party re- ments may be inspected (which must be a period of three 
 days) must be given by the party receiving the notice within 
 two days from such receipt, if all the documents referred to 
 in the notice have already been set forth by him in an 
 affidavit of documents, or within four days, if any of them 
 Time within have not been so set forth, and must fix a time within 
 which inspec- three davs from the delivery thereof at which the documents 
 
 tion to be , r. i • • i 
 
 given. or such 01 them as the party givmg the notice does not object 
 
 (/) V. ante, p. 123. 
 
 ig) See Ord. XXXVI. r. 21 ; Irish C. L. P. Act (16 & 17 Vict. c. 113) s 64 
 and 30 & 31 Vict. c. 44, s. 109 (Irish Chancery Act). ' 
 
 (A) E._17; V. post, p. 127. This course is inapplicahle to the case of a 
 notice being given at the hearing, when, as it seems, no order for inspection 
 can he made (see Dauvillier v. Myers, 17 Ch. D. 346). 
 
 (i) Quilter v. Heatley, C. A., 48 L. T. 373. 
 • (k) 20 Ch. D. 120. 
 
 [1) lb., per Denman, J. In this case, the plaintiff had actually tendered 
 the deed for inspection after the defence was put in, but the defendant had 
 refused to inspect it, insisting upon his right to exclude it from evidence (see 
 the report in 42 L. T. 868), and the decision was approved of by the 0. A. in 
 a subsequent case (u p, 123, h). 
 
PRODUCTION AND INSPECTION OF DOCUMENTS. 127 
 
 to produce, may be inspected at the office of his solicitor, chap. vii. 
 and must state which documents (if any) he objects to produce ^^°*- ^- 
 and on what ground (U). A form of counter-notice is provided Form of 
 by the rules, which may be used with such variations as cir- <=o™*e'^-i'°*i°«- 
 cumstances may require (m). If the party served with the Application for 
 notice to produce objects (by his counter-notice) to give in- I^^Ire oVec-^*^* 
 spection of any of the documents, application must be made, tion made. 
 in the ordinary way, for an order for their inspection (n). 
 The Court has no power to enforce such inspection, other 
 than by treating a refusal to allow it as a contempt of Court, 
 i.e., by attachment (o). 
 
 Sect. 4. — Production and inspection of documents. 
 
 Application for the production and consequent inspection of ^^°*- ^- 
 documents may be made, either as following up the disclosure Applications 
 of documents generally by affidavit, or a notice to produce „£ documents. 
 documents referred to in pleadings or affidavits (q), or as a 
 substantive application in the first instance (r). A party in 
 contempt is not thereby disabled from making it (s). There 
 is no provision in the rules as to the stage at which the ap- 
 plication may be made (t). In the Court of Chancery, the 
 applicant was not, as a rule, prejudiced by delay in applying, 
 though he was required to show that the inspection was bond 
 fide sought for the purposes of the action {u). 
 
 Where the application is for the inspection of documents Where docu- 
 referred to in the pleadings or affidavits of the party from ^^ j^ pleadings, 
 whom it is sought (x), or disclosed in his affidavit of documents, «*<= . <"• '° 
 
 „ , . . . / \ ii 1 _Li J 1 affidavit of 
 
 no affidavit in support is necessary {y), though there must be documents, no 
 
 (II) Ord. XXXI. r. 16. 
 
 (m) lb. See App. B. No. 11, post, p. 193. The case of a party suing in 
 person has not been provided for by this rule as regards t\ie place of inspection. 
 
 (n) Ord. XXXI. r. 17. 
 
 (o) East Ind. Co. v. Kynaston, 3 Bligh, 153, 163. It is doubtful whether 
 rule 20 applies to such cases. 
 
 (q) V. anU. p. 122. 
 
 (r) Ord. XXXI. rs. 11, 18. A form of application is given in the 
 Appendix, post, p. 196. See as to the costs of the aijpHcation and inspection, 
 post, p. 185. 
 
 («) r. ante, p. 106. 
 
 («) See upon this subject generally, ante, pp. 13, seq. 
 
 (u) Dan. 1678. See Fraiwo v, Meyer, 2 H. & M. 42. 
 
 (x) V. ante, p. 122. 
 
 \y) This is in accordance with the former Chancery practice (see RocMalc 
 Canal Co. v. King, 15 Beav. 11). 
 
128 
 
 LAW AND I'EACTICE OF DISCOVEET. 
 
 CHAP. VII, 
 Sect. 4. 
 
 affidavit 
 required. 
 
 But admission 
 of possession 
 must be shown, 
 
 Eight to 
 inspect. 
 
 Admission of 
 relevancy is 
 ■primd facie 
 sufficient. 
 
 found in the pleadings or affidavits, as they stand at the 
 time of making the application (z), (1) an admission by the 
 respondent (a) of possession of or povjer over the documents, 
 and (2) a sufficient description of them, for unless the docu- 
 ments are in his possession or power, he cannot obey an 
 order for production, and unless they are sufficiently 
 described, the Court cannot know whether its order is 
 complied with or not (h). Detached passages of an answer 
 or affidavit of documents cannot be read as an admission, 
 but the whole case must be taken as it is found therein (c). 
 A distinct allegation in the applicant's pleadings of the pos- 
 session of documents by his opponent may be equivalent, if 
 undenied, to such an admission, so as to found an application 
 for production thereon [d), but it is doubtful whether the 
 fact of such possession or power is to be inferred, in the 
 absence of any statement to the contrary, from the fact that 
 they appear to be the property of the party pleading or 
 referring to them (e). 
 
 Supposing there to be a sufficient admission of possession 
 or power, and a sufficient description of the documents, 
 the applicant, still from the pleadings or affidavits, must 
 next show that they are of a nature to entitle him to 
 an inspection of them, i. e., that he has an interest in the 
 documents, the production of which he seeks (/). An ad- 
 mission in general terms of the relevancy of documents to 
 the matters in question prima, facie entitles the opposite 
 party to inspect them {g), unless it appears from the answer 
 or affidavit of documents, or by affidavit made in opposi- 
 tion to the application, that they are evidence, not of 
 the applicant's case, but of his opponent's exclusively, 
 or that the applicant has otherwise no interest in their 
 production, or that they are covered by some well-established 
 
 [s) See Saverfield v. Pyman, 1 Phill. 202 : O'Gonnell v. Sunny, 2 Ir. 
 Eq. 246. 
 
 (0.) See BlenJeinsopp V. B., 10 Beav. 143, 277 ; 11 ib. 134, S. G. 2 Phill. 607 ; 
 Scott V. Wheeler, 12 Beav. 366 (order for production refused against executor 
 on admission by testator). 
 
 (6) W. pi. 293 ; Lamb v. Orton, 1 Drew. 414. See Ord. XXXI. r. 18. 
 
 (c) See per Lord Cottenham, L. C, 1 Macn. & G. 627 ; ICearsUy v. 
 Philips, 10 Q. B. D. 36. 
 
 {d) See Purcell v. Langston, i Ir. R. Eq. 440. 
 
 (e) See Southwaite v. Daly, 10 Ir. Eq. E. 7 ; per Lord Eldon, L. C, 1 
 Swanst. 122 ; per Palles, C. B., L. R. Ir. 4 C. L. 711. 
 
 {/) W. pi. 294. V.post, p. 130, as to the meaning of "interest." 
 
 ((/) AY. pi. 299. See per Wigrara, V.-C, 1 Hn. 519—20 ; a7:i:, p. 113. 
 
PRODUCTION' AND INSPECTION OF DOCUMENTS. 129 
 
 gi-ound of privilege (h). " Everything," it has been said, chap. tii. 
 " which -will throw light upon the case is primd facie ^^°^- ^- 
 subject to inspection " (i). 
 
 Where the application is made in the first instance for the in other cases 
 inspection of documents other than those so disclosed or °;f:^f'"* '^ 
 referred to, it must, as under the former common law 
 practice, be supported by an affidavit (k), showing (1) of 
 what documents inspection is sought, (2) that the applicant 
 has a 7-ight to inspect them (i. e., that they are of such a 
 nature as entitles him to do so), and (3) that they are in the 
 possession or poxver of the party from whom the inspection 
 is sought (I). It may also be in some cases necessary to show 
 (as where the application is made at an early stage) (4) the 
 nature of the action, and of the question to be tried in it, 
 (5) that the applicant has just ground to maintain or defend 
 it, and (6) to state with sufQcient distinctness the reason of 
 the application and the nature of the documents, in order 
 that it may appear to the Court or Judge that the docu- 
 ments are asked for the purpose of enabling the party 
 applying to support his case, not to find a flaw in the case 
 of his opponent (m), for production of documents will not 
 be ordered to satisfy mere curiosity ; it must be shown that 
 there is som.e practical utility in it {n). In short, it should 
 state all that a plaintiff in a bill of discovery must have 
 stated in order to entitle himself to a discovery and inspec- 
 tion (o). The rules do not expressly require an affidavit by Affidavit need 
 the party himself, as was the case under the Common Law Mmseif.^ ^*' ^ 
 Procedure Act, 1854 {p), but it is the common practice for 
 him to make it, and it has been said that there are very 
 adequate reasons why the Court should not, without sufficient 
 excuse, dispense with an affidavit from him (g). Mere 
 distance and inconvenience were not considered grounds for 
 
 (A) Buslros V. White, C.A. 1 Q. B. D. 423; Bcwicke v. Graham, C.A. 
 7 ib. 400 ; seeder James, L. J. 2 Oh. D. 656. 
 ■ (i) Per Blackburn, J., 1 Q. B. D. UX ; per Stephen, J., 62 L. .J. Q. B. 11. 
 
 (A) K. 18. See C. L. P. Act, 1854, s. 50, and Day, ib., p. 302. A f.iriu of 
 affidavit is given in the Appendix, post, p. 201. Scmbh', drl'ects in the 
 affidavit cannot be aided by reliance upon affidavits nsed in answer to the 
 application ( Woolley v. Pole, 14 C. B. N. S. 538). 
 
 11) Ord. XXXI, r. 18. 
 
 (m) See Hunt v. Hen-itt, 7 Ex. 236, 244. 
 
 (») deeper Malin.s, V.-C, L. R. 19 Eq. 45. 
 
 \o) Hunt V. Hemtl, sii,pra. 
 
 (p) lb. s. 50. 
 
 \q) SeeiJcrWigram, V.-C, 1 Ha. 105; ante, p. 110 (Ic), 
 
130 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. VII. dispensing with such an affidavit in the Common Law 
 
 Sect. 4, 
 
 Courts (r). 
 
 1. Documents 1. The documents sought to be produced should appear 
 soribe/with upon the notice of motion or summons, so that with reason- 
 reasonable dUlg certainty the Court may know what they are (s), and 
 
 am y. ^^^ description given should be such that it may be seen 
 whether the applicant is entitled to inspect them or not {t), 
 and sufficiently full to enable the Court, if necessary, to 
 order their production (u). Where the documents in question 
 are few, they may be conveniently described in the body of 
 the affidavit, but where they are numerous, they may be set 
 out in a schedule, and referred to accordingly {x). 
 
 2. Applicant 2. The right to the production of documents is governed, 
 interest in the generally speaking, by the same rules as regulate the right 
 documents. to other discovery {a), and according to the well-known rule 
 
 the applicant must show that he has an interest in the 
 documents of which he seeks inspection, that is, not neces- 
 sarily an interest in the nature of property, or an interest in 
 the popular and ordinary sense of the word, but that he is 
 so far interested in them as to stand in need of their pro- 
 duction for the legitimate purposes of the litigation in 
 which he is involved (6). He must show that they are, or 
 may be, evidence which may prove, or lead to, or assist m 
 proving his case at the hearing of the cause. It must be 
 shown that the document is of such a character that it will 
 or may give a discovery of the case, or a portion of the 
 case, without proof of which the plaintiff cannot have a 
 decree (c). It is sufficient, however, if the matter suggested 
 to be contained therein is such as may be rationally con- 
 tended to support the applicant's case and impeach or 
 weaken his opponent's, or such as his legal advisers may 
 
 (r) See Ckristopherson v. Lotinga, 15 C. B. N. S. 809 ; Sinqsford v 
 O. W. B., 16 ib. 761 ; HerschfieU v. Glark, 11 Ex. 712. 
 
 (s) See^«?- Stuart, V.-C, in Fiott v. Mullins, 1 Sm. & Giff. 1, 3. 
 
 (t) See AtTcyns v. Wright, 14 Yes. 213 : Fiott v. Midlins : 3iiM v. 
 Hewitt, 7 Ex. 236, 2ii. 
 
 (u) V. ante, p. 117. 
 
 ix) See Cashir-v. Graddock {'So. 1), 2 Ch. D. 140. 
 
 (a) Dan. 1674 ; Swinburn v. Nelson, 16 Beav. 416 ; Clegg v. Edmumon. 22 
 ib. 15 ; per Chitty, J., 47 L. T. 577. 
 
 (6) Semper Wigram, V.-C, 8 Ha. 112, 3 ih. 637; pi. 295. A party 
 IS entitled to inspect documents though ho does not admit their genuineness 
 (Benjamin v, Saulez, Ir. R. 6 C. L. 16). 
 
 (c) Ib. Anciently, the plaintiff used to allege that " by the contents of tlie 
 documents, &c., if produced, the truth of his case would appear." 
 
PRODUCTION AND INSPECTION OF DOCUMENTS. 131 
 
 by a reasonable possibility fairly souse (d); the party seeking chap. vii. 
 for discovery is not bound to show that the documents will ^^<^^- •^- 
 be conclusive in his favour ; it is enough if they be relevant 
 to support his case (e). 
 
 3. It is not sufficient to allege or suggest generally that 3. That they 
 the documents are in the other party's possession or power ; ^gy^" pTs^es- 
 the applicant must show with reasonable certainty that sion or power. 
 they are so (/) (though he is not bound to establish it " with 
 the accuracy of mathematical demonstration ") (g), e. g., an 
 admission by his opponent to that effect. The affidavit 
 ought to state, not a mere suggestion, but circumstances suffi- 
 cient to satisfy the Court or Judge, that there are in the 
 possession, or uiuler the control of the opposite party cer- 
 tain documents, and that those relate to such action or 
 other legal proceeding ; a prisma facie case, calling for an 
 answer, must at least be stated in this respect (h). 
 
 The respondent may show cause against the application Uespondent 
 by affidavit swearing that he has no such documents in his ""'^ ^^"^ 
 possession or power (in the absence of which denial it will affidavit. 
 be assumed that they are) (i)t or that they relate exclusively 
 to his own case, or that he is for any other sufficient reason 
 privileged from producing them (7c) ; or he may submit to show 
 parts, covering the remainder, on an affidavit that the part 
 concealed does not in any way relate to the applicant's 
 case (l), or is privileged ; he is also at liberty (at his own 
 costs) to relieve himself, if he can, from the consequences of 
 an inadvertent previous admission of the possession of docu- 
 ments in his answer or affidavit of documents (m), or an 
 omission to claim protection, and to make good insufficiently 
 worded claims of privilege, or explain blunders in previous 
 affidavits (n) ; he may also show, if such be the case, that he 
 
 (d-j Beeper Knight-Brace, V.-C, 1 Y. & 0. Oh. 651—2, 14 W. E. 597. 
 
 (e) See per Lord Campbell, C. J., 4 E. & B. 335 ; per Brett, L. J., 48 
 L. T. 23. 
 
 (/) See per Cur. 7 Ex. 243. See ante, pp. 113, seq. as to when documents 
 are deemed to be in a party's possession or power. 
 
 (g) See per Monahan, C. J., Ir. E. 2 C. L. 504. 
 
 (A) ffunt V. Hewitt, 7 Ex. 236, 243. See Tlwmpson v. Bohson, 2 H. & N. 
 412 ; Soughtmi v. Lmd. die. Ass. Co., 17 C. B. N. S. 80 ; Emm v. Louis, 
 L. E. 1 C. P. 656 (decided upon s. 50 ot the C. L. P. Act, 1854). 
 
 (i) Seeper Brett, J., L. R. 10 C. P. 231. 
 
 (k) See Hunt v. HeJintt, 7 Ex. 236, 244. 
 
 (I) lb.; V. post, p. 137. 
 
 (ot) Hare, 269 ; Morrice v. Sioaby, 2 Beav. 500 ; Llnivllyn v. BnJrley, 
 1 Ha. 527. See as to the costs in such cases, Smith v. Mn.s^i-e, 4 Beav. 417 ; 
 Gard'iur v. Dange rfield, 5 ib. 389. 
 
 (n) See Corporation of Hastings v. Ivall, L. K, 8 Cli. App. 1017 (where 
 
 K 2 
 
132 XAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. VII. has bond fide parted with the documents since making his 
 ■ ^°°^- ^- affidavit (o). The application may also be met by showing 
 that the question of the right to the inspection sought 
 should be postponed or reserved until the determination of 
 some principal issue or question on which the right depends, 
 or that for some other reason it is desirable to do so until 
 the determination of some other issue or question (p). But 
 unless the party resisting production can bring himself within 
 No dtscretion pjjg Qf ^jjg recognised grounds of protection, no discretion 
 
 as to granting .,. - i.-i7jpi 
 
 production. Can be exercised in the matter, and it is tne duty of the 
 Court to order production (q), the privilege from which, courts 
 of equity have, for a long term of years, been strict in 
 refusing to extend (r). It is no ground, therefore, for re- 
 fusing production that the documents in question would 
 not be admissible in evidence for the applicant (s), for every- 
 thing which will throw light on the case is primd facie 
 subject to inspection (t), or that they might prejudice the 
 case of the producing party before the jury (w), or that 
 they contain not facts but matters of opinion merely (x), or 
 are private and confidential (y), or would disclose the trade 
 secrets of the party producing, or the names of his cus- 
 tomers (z), or are " privileged communications " in the sense 
 familiar in actions for defamation (a). 
 What is posses. The question of when documents are to be deemed to be 
 fo™ m-^o°sTof ^^ ^ party's possession or power for the purpose of discovery 
 production. of their existence and description has already been dis- 
 cussed (&) ; it now remains to be considered in what cases they 
 
 three suocessite affidavits of doounaents were made and a fourth ordered, 
 to make good, if possible, the claims of .privilege), and Lloyd v. Purves 
 (No. 2) 6 W. R. 507. 
 
 (o) V. post, p. 135. 
 
 \p) Ord. XXXI. r. 19. See " Postponing discovery," ante, pp. 26 seq. 
 
 (?) Bmtros v. White, C.A., 1 Q. B. D. 423 ; see per Cotton, L. J. 
 6 Ex. D. 113. A similar construction was put upon s. 18 of the Chancery- 
 Procedure Act from which r. 11 was copied (i6.). See, however, the judg- 
 ments of the CvA. in Bewicke v. Graham, 7 ib. 400, 409. 
 
 (r) Seeder Cotton, L. J., 5 Ex. D. 114. 
 
 (s) Per Jessel, M. B., 1 Q. B. D. 425 ; per Wood, V.-C, 2 H. & M. 593. 
 
 («) Hutchinson v. Glover, 1 Q. B. D. 138. 
 
 (u) Bustrosy. White, C.A., ib. 423. 
 
 (x) Ib. 
 
 ly) M'Corquodale v. Bell, 1 C. P. D. 471 ; Tipping v. Coates, 6 Ha. 16. 
 
 (z) ITowe V. M'Kernan, 30 Beav. 547 ; Telfordy. Buskin, 1 Dr. & Sm. 148 ; 
 Eenard v. Levinstein, 3 N. R. 665 ; see however, Moore v. Graven, L. R. 7 Ch.' 
 App. 94 n. ; Carver v. Pinto Leite, ib. 90, as to postponing discovery of such 
 matters, and ^os<, pp. 172, seq. 
 
 {a) Webb v. East, C.A., 5 Ex. D. 108 ; Black v. Holmes, Fox & Sm. 28. 
 
 (6) V, ante, p. 113 seq. 
 
PRODUCTION AND INSPECTION OF DOCUMENTS. 133 
 
 will be deemed to be so for the puvpose of producing tliem chap. vii. 
 for inspection. When possession for the purpose of produc- ^°°*- ^' 
 tion is spoken of, that is to say, a right and power to deal Possession 
 with it, actual corporea,l possession is not meant, but '^^^ ^ ^ 
 legal possession in respect of which the party is autho- 
 rised to deal with the property in question {c\ and, similarly, 
 by " power " is meant a legal control over the document {d) ; 
 moreover, the admission must be one of exclusive possession, And exclusive. 
 or power, for the rule of the Court, adopted from necessity, 
 with reference to the productioix of documents, is that if a 
 defendant has a joint possession of the document with 
 somebody else who is not before the Court [either actually, 
 or by representation'] (e), the Court will not order him to, 
 produce it, and that for two reasons ; one is, that a, party 
 zuill not. be ordered to do that zvhich he cannot or may 
 not be able to do : the other is, that another party, not 
 present, has an interest (/) in the document which the 
 Court cannot deal with {g). Thus, a party will not, in the 
 absence of such other persons, be ordered to produce docu- 
 ments in the joint possession of himself and his co-part- 
 ners Qi), or co-trustees (i), or in possession of himself on behalf 
 of self and partners Qc), or of an agent on behalf of him and 
 his partners or fellow-tenants in common (l). In such cases Affidavit must 
 it is the duty of the party resisting production to satisfy the Joinl^er- ° 
 Court as to the existence and '^ature of such joint owner- ship. 
 ship (m), but he need not go on to show that he has actually 
 applied to the other joint-ov?ners, and that they have 
 
 (c) Per Lord Cottenham, L. C, in Eeid v. Zomglois, 1 Maon. & G. 627, 
 636 ; see Penney v. Goode, 22L. J. Clj. 371, 1 Drew. 474. 
 
 (d) 76.; see Taylor v. Rnndell, 1 PhiU. 222; Palmer v. Wright, 10 
 Beav. 234. 
 
 (e) See Olyn v. Oaulfield, 3 Macii. & Gt. 463. ; Bichardson v. Hastings, 
 7 Beav. 354 ; Gaskell v. Chambers, 28 L. J. Oh. 388 ; Phillips v. Eglmer, 15 
 W. K. 578. 
 
 (/) i.e. an interest in the nature oi property. 
 
 (g) Per Lord Cottenham, L. C. Or. & Ph. Ill ; Murray v. Walter, ib.Wi; 
 Eeid T. Langlois, 1 Macn. & G. 627 ; Lopez v. Deacon, 6 B.eav. 264 ; Blyn v. 
 Caulficld ; Penney v. Ooode, supra ; K&Ulewell v. Barstow, L. E. 7 Ch. App. 
 686, 693 ; Hadley v. M'Dougall, ib. 312 ; Kearsley v. Philips, 10 Q. B. D. 
 36, 465, C. A., (where all the cases are reviewed). 
 
 (A) Hadley v. M'DaugaU ; Penney v. Goode, ubi svprcf.. 
 
 (i) Kearsley v. Philips, ubi supra. 
 
 (k) B£id V. Langloii ; Murray v. Walter ; Lopez v. Deacon. 
 
 (V) Edmunds v. Lord Foley (No. 2), 30 Beav. 282 ; Airey v. Hall, 
 2 De G. & Sra. 489. 
 
 (m) Bovill V. Cownn, L. R. 5 Ch. App. 495 ; Hutchinson v. Glqvei-, 
 1 Q. B. p. 138 ; Kearsley v. Philips, supra. 
 
l34 ■ LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. vii. refused to consent to the production, or that by reason of 
 ^^°^- ^- such refusal it is physically impossible for him to produce 
 the documents (n). Where production is withheld upon this 
 Applicant can ground, the party seeking the discovery can obtain his object 
 to'contents^ either by making the person interested in the document a 
 or bring all party (if that be possible) (nn) or by interrogating the oppo- 
 the court! °™ ^^^^ P^^rty as to the contents of the documents (o), and getting 
 production of the originals at the hearing by means of a 
 subpoena duces tecum (p). It. should be observed that trus- 
 tees and other pei'sons in a fiduciary position, although 
 legally in possession of documents relating to the trust, will 
 not be allowed to produce them in the absence and to the 
 prejudice of their cestuis que trustent (q). It is no ground 
 for resisting production that a person not before the Court 
 has an interest in the documents short of a joint property (r) ; 
 thus, a mortgagee cannot object to produce the title-deeds of 
 the mortgaged property on the ground of the interest therein 
 of the mortgagor (s). 
 No excuse that That a third person has a lien upon the documents as 
 fn'ha'nds^of'^^ against the party called upon to produce, e.g., as his solicitor 
 agent under or agent, is not a sufficient reason for not ordering him to 
 produce theni, even when a bankrupt (t), as he may be 
 able to pay whatever is due upon them, if necessary, and 
 free them from the lien (u) ; but it is usual in such cases to 
 reserve to the party liberty to apply for an extension of time 
 to enable him to procure the documents for production (x), 
 or for a discharge of the order in case he finds it impossible 
 
 (?!.) Keax^ley v. PTi%lips, 10 Q. B. D. 36, 465 (C. A.), explaining HtiicMnsim 
 V. Glover, ib. 138 ; Murray v, Walter, Or. &Ph. 114. In the case of answers 
 it is otherwise {avie, p. 93). 
 
 (»») See Piigden v. Tylee,^ 21 Beay. 545. 
 
 (o) Hooper v. Gvmm, 2 J. & H. 602, 605 ; Lord Eglington v. Lamb, 35 
 L. J. Cli. 113. 
 
 ip) Dan. 1684; ffadley v. U'Dovgall, L. E. 7 Ch. App. 312; Richards 
 V. WatUns, 6 Jur. N, S, 168 ; see ^er Jessel, M. R. 46 L. T. 361. 
 
 (q) Ford V. Dolphin, 1 Dr. 222 ; see King of Two Sicilies v. Wilcox, 
 1 Sim. TS. S. 331. 
 
 (r) See JCettUwell v. Barstow, L. R. 7 Ch. App. 686 ; Sutcliinson v. Glover; 
 W. pi. 327. 
 
 (s) Gough V. Offiey, 5 De G. & Sm. 653. 
 
 (/) See Vale v. Oppert, L. R. 10 Ch. App. 340 ; see, however, Bainbridge 
 V. Blair, 1 Jur. 256. 
 
 («) Ex parte Shaw, Jacobs, 270 ; Vale v. Oppert i see Re foleman, 13 Ch. 
 D. 885. See, however, Wroughton, v. Barclay, 11 Jur. 274. It seems that 
 the party's solicitor cannot set up a lien acquired in tlie cause as against the 
 right of the other parties to production (see per James, L. J., iu Vale v. 
 Oppert, supra ; Ley v. Barlow, 1 Ex. 800 ; Hope v, LiddelL 7 De G, M & G 
 S31). '■ 
 
 {x) Goodchap v. Wearing, 16 Jur. 586. 
 
 lien. 
 
PEODUCTION AND INSPECTION OF DOCUMENTS. 135 
 
 to do so iy), for the Court will not send a man to prison for chap. vii. 
 not doing that which he is satisfactorily shown not to be in ^°°*- '^- 
 a position to do (z). A mere formal application, however, is 
 not sufl&cient ; he must satisfy the Court that he has done 
 his best to comply with the order {a). 
 
 Where the documents have been hond fide mortgaged or Seem, where 
 pledged previously to, or even, it seems, since the action (6), fhem p^tei 
 so as to part with the property in them, an order for pro- '^^'^ 
 duction will not be made, as the party cannot be ordered to 
 pay off the mortgage or discharge the pledge (6) ; and the 
 fact that documents were detained by counsel as security for 
 fees, or by law stationers for their charges, has been held to 
 be a sufficient answer to an application for an attachment 
 for not delivering them up (d). 
 
 A party is not bound for the purpose of producing docu- Production not 
 ments, to enforce at his own ex,pense a covenant by a third breacho7falth 
 person for their production (e). An undertaking given to a with third 
 third party not to. part with the possession of documents P^"*^" 
 does not entitle the party who. has, given such undertaking 
 to refuse production of them (the possession of the Court 
 being equivalent to that of the party producing) (/), nor does 
 the fact that the documents were compulsorily obtained by 
 an order of the ODurt from parties to a previous suit {g) ; but 
 where a document is obtained not for unlimited publication 
 and use, but in confidence for a limited and restricted pur- 
 pose, e.g., assisting a common claim or defence, the Court 
 will not order production of it, as it would be a manifest 
 breach of faith tpwaj;ds th^ person who voluntarily entrusted 
 the party with it (h). A claim of tien upon documents by an Lien as against 
 agent cannot be set up as a reason for refusing inspection in g^J^g^"* '"' 
 
 {y) See Vale v. Oppert, L. R. 10 Ch. App. 340 ; Liddell v. Norton, 
 Kay, App. XL ; Monsel v. Liiidsay, 13 Ir. Eq. R. 14-*. 
 
 (z) See £nwand v. M'Doniull, 8 Beav. 14 ; Burhidge v. BoMnson, 2 Maon. 
 & G. 244 ; per Turner, L. J' , 9 "W. R. 393. 
 
 {a) Seeder James, L. J., L. R. 10 Ch. App. 342. 
 
 (b) Bwbidge t. BoUmon, 2 Macn. & G, 244 ; see, however, Bwitibridge v. 
 Blair, 1 Jnr. 256. ^ , „ , , 
 
 (c) lAddeM v. Norton, supra ; Palmer v. Wnght, 10 Beav. 234 ; Keltlewel 
 V. Bwrstow (No. 2), W. N. 187.2, 95. 
 
 (d) Re Williaims, 3 De G. F. & J, 304 ; isee North v. Suber, 29 Beav. 437. 
 
 (e) Bethell v. Ca.sson, 1 H. & M. 806 ; cf. Enthoven v. Cobb, 2 De G. M. & G. 
 635, 5 De G. & Sm. 595 ; Vivian v. Little, LXXV. L. T. 108. 
 
 (/) Penkethman v. WhUe, 2 W. R. 380 ; see^«r Cairns, L. J., L R. 2 Ch, 
 
 At)B 448 
 Yq) Beeper Wood, V.-C, in Bnjnolds v. Gorllrr, 4 K, & J. 88, 91. 
 (h) See Enthoven v. Cobb ; Bethell v. Casson, supra.. 
 
136 LAW AND PEACTICE OF DISCOVERT. 
 
 CHAP. VII. ail action by the principal for their recovery (i), and the 
 
 . °^' ^" ordinary lien of a solicitor upon documents does not entitle 
 
 him to refuse inspection of them even to the party against 
 whom or his predecessors in title he claims it, for the lien 
 does not deprive the client of his right, and is not lost by the 
 production (h). In one such case, permission to take copies 
 w^as refused (I), but in a recent case Vice-Chancellor Bacon 
 declined to so limit the order on the ground that the right 
 to take copies was incident to the right to inspect (m). The 
 inspection may, however, be ordered to take place at the 
 premises of the producing party (n). A covenant or agree- 
 ment by the shareholder or member of a company that he 
 Or agreement shall not be at liberty to inspect the company's books has 
 npt to inspect. -^^^^^ j^^j^ ^^^^ ^^ preclude him from obtaining the ordinary 
 production of them in an action between himself and 
 the company (o), and, similarly, the usual " secrecy 
 clause " does not debar a shareholder and contributory 
 of a company In course of winding up from inspection 
 of the books of the company when sought bond fide (p) ; 
 but it seems that, in such a case, if the applicant's right 
 or title to the relief claimed had been denied, the in- 
 spection should, at least, be postponed until after the hear- 
 ing (q) ; and, generally, where a party claims the benefit of an 
 agreement or sets it up, he will not be permitted to ask for 
 a discovery which would lead to a violation of one of its 
 principal provisions (r). It is no answer to a claim of 
 privilege for documents, to show that it has been waived on 
 a previous occasion (s), and, as a general rule, the party can- 
 not be compelled to disclose their contents in answer to 
 interrogatories (t), though secondary evidence may be given 
 
 (t) Lord Brougham t. Ccmvin, 18 L. T. 281. 
 
 (k) Pratt V. P., 51 L. J. C^^. 8'38 ; Salch v. Symes, T. & R. 87. 
 
 (l) Loehett v. Gary, 3 N. R. 406. 
 
 (m) Pratt v. P., supra. 
 
 (n) Loehett v. Gary, sitpra. 
 
 (o) Hall V. Connell, 3 Y. & Coll. 707. See, however, Turney v. Bayley, 4 
 De G. J. & S, 332. In an actiop against an Insurance Company by one of the 
 shareholders, production wa.s ordered of such documents only' as the defen- 
 dants Avere, ;inder their deed of settlement, hound to produce to shareholder 
 (WilUaws V. Prince of Wales Ills. Co., 23 Beav. 338). 
 
 (^.j) He Birmingham BanHng Co., 15 L. T. 203. 
 
 (?) Turney v. Bayley, supra. 
 
 (r) See^jp)- Lord Langdale, M. R., 2 Keen, 587. 
 
 (s) Underwood Y. Secrclary for India, 35 L. J. Ch. 346. 
 
 (0 Latimer v. Nmti, 4 CI.' & Fin. 570, 584. 
 
PRODtrCTION AND INSPECTION OP DOCUMENTS. 137 
 
 of them (u), where the diaclosure would not be contrary to chap. vii. 
 public policy (x). ^^°^- ^- 
 
 Where protection is claimed for certain portions of docu- Privileged 
 ments or books, on the ground that such portions contaiu sealed up. 
 only irrelevant or privileged matter (such as ledgers, account- 
 books, or letter-books, containing a variety of matters some 
 of which may relate to the action, and others not), the pro- 
 ducing party must apply by summons at chambers (y) upon 
 affidavit to that effect, for leave to seal or cover up such 
 portions (z), or liberty to seal up such parts of the documents 
 as shall be produced as are not relevant may be reserved in 
 the original order for the affidavit or for production (a). This Sems, where 
 privilege will not be allowed, however, where the document enti"™and 
 is one, entire and indivisible (b), or where the disclosed parts indivisible. 
 would be unintelligible without reference to the parts sought to 
 be concealed, as in the case of an agreement containing several 
 clauses (c), and it is in no case permissible to mutilate the 
 documents or remove the parts claimed to be protected in- 
 stead of sealing them up {d). If a party imprudently mixes 
 privileged with non-privileged matter in the same documents 
 for his own convenience, so as not to be separable, he must 
 submit to produce the entire documents (e), but it is other-; 
 wise where this has been done by another pei'son in the 
 ordinary course of business, even though in his employ- 
 ment (/). Where the documents are private and confi- Undertaking 
 dential, and the writer is shown to object to their being contents"may 
 made public, the Court may require from the inspecting te required, 
 party an undertaking (which may be made part of the terms 
 of the order for inspection) not to use them for any collateral 
 purpose (g), and, generally, where the consequences of doing 
 
 (u) See Fheljjs v. Pmv, 3 E. & B. 430. 
 
 (x) V. ante, p. 66. 
 
 (V) Dan. 1681 — 2 ; Seton, 155 — 6. A form of summons is given in the 
 Appendix, po!^, p. 198. 
 
 (z) In such a case the party will not be required to pay the costs of hia 
 summons (Talbot v. Marskfield, L. R. 1 Eq. 6). 
 
 (a) See Curd v. C, 1 Ha. 274 ; s^e 8 Ha. 120, for an order for production 
 of deeds with liberty to conceal contents except as to parcels. 
 
 {b) See Ketllewell v. Barstow, L. R. 7 Ch. App. 686. 
 
 \e) Lusarmhe v. Steer, 37 L. J. Ch. 119. 
 
 \d) Ayres v. Levy, 19 L. T. 8. 
 
 (e) Cnrrvj v. White, 5 Beav. 172 ; Freeman v. Fairlie, 3 Mer. 24, 43. 
 
 (/) Airey v. Hall, 2 De G. & Sm. 489. 
 
 (o) Eopkinson v. Lord Biirghley, L. R. 2 Ch. App. 447 ; Mahony v. 
 Widows Life Ass. Fund, ih. 6 0. P. 252 ; c/. Whilakcr v. Izod, 2 Taunt. 115. 
 In the Common Law Courts, inspection has been ordered in the presence of a 
 Mitilcr (post, p. 144 c). 
 
138 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. VII. SO would be mischievous, a party will be probibited from 
 ^^°*- ^- publishing information which he may obtain from the docu- 
 ments {h). 
 Judge may As it is often difificult, on the materials before a Judge, to 
 
 of priviJe^rbT determine whether particular documents are privileged or 
 consent. not, a convenient course is often pursued at chambers, of pro- 
 
 ducing the documents for his inspection (i), which can only 
 be done by consent, as the other party does not see the docu- 
 ments, and the Judge cannot act on ex parte evidence with- 
 out consent (k). Where this course has been taken by a 
 Judge, no appeal lies from his decision [l). 
 
 It seems to have been considered, in the Court of 
 Chancery, that a party was not bound to incur costs in 
 obtaining production of documents, or in order to facilitate 
 their production (m). In one case, the applicant was ordered 
 to pre-pay the expense of transmitting the documents to this 
 country (n). The time to be allowed for production in each 
 Time for individual case will, of course, depend upon the situation of 
 
 pro ucing. ^^g documents and other circumstances affecting them (o) ; 
 where they are shown to be abroad, the Court will order 
 them to be produced within a reasonable time, and if that is 
 not done, the consequences will be the same as if the party 
 had had them here in the first instance and refused to pro- 
 Form of order, duce them (p). The statutory form of order directs the pro- 
 duction to be made (at the office of the solicitor of the 
 producing party) "at all seasonable times on reasonable 
 notice " (q), and, in the Chancery division, may further direct 
 them to be produced " at any examination of witnesses and 
 at the hearing of the action " (r). It is not the practice to 
 limit the time during which documents are to be produced (s). 
 
 {h) See Drake v. Symes, Johns, 647, 650 Cbooks of an Insurance Company) ; 
 Reynolds v. Qodlee, 4 K. & J. 88. 
 
 (i) Seeder Wood, V.-C, 27 L. J. Ch. 28 (where it is said to be the right 
 and proper course in such cases) ; Pomonbyv. Hartley, C. A., W. N. 1883, 44. 
 
 (7c;) See per Blackburn, J., L. R. 7 Q. B. 772. 
 
 (l) See Bustros v. White, C. A. 1 Q. B. D. 423. 
 
 (m) See Bethell v. Casson, 1 Hem. & M. 808 : Fivianv. Little, LXXV. L. T. 
 108. 
 
 (») Lindsay v. Gladstone, L. R. 9 Eq. 132. 
 
 (o) In the Court of Chancery, seven days after xnaking the affidavit of docu- 
 ments was the ordinary time allowance for production (Setojn, vol. I. p. 133). 
 
 (p) Farquharson v. Balfour, 1 T. & R. 184, 190. 
 
 (q) Rs. April, 1880, Form H, 16 ; v. post, App. p. 196. 
 
 (r) See as to the purposes for which documents may be ordered to be 
 produced, Taylor v. k'heppard, 1 Y. & G. 280, 284 n. 
 
 (s) A.-G. v. Brougham, 9 Beav. 159. 
 
PRACTICE AS TO INSPECTION OF DOCUMENTS. I39 
 
 Where an order for the production of documents is appealed chap. vil. 
 from, the party may be restrained from inspecting them Sect. 4. 
 pending the appeal (t). The Court, in such cases must con- Production 
 sider to what extent the party will really be prejudiced by peSg'''^ 
 giving the discovery sought, and how far, upon the merits, appeal. 
 the appeal is likely to succeed (ti). 
 
 Sect. 5. — Practice as to inspection of Documents. 
 
 It is the practice of the Court so to regulate orders for Sect. 5. 
 the production of documents as to prevent any damage Place of in- 
 arising to the producing party, and it is for this reason that ^peotion. 
 no orders are more under the discretion of the Court (x). 
 According to the practice of the Court of Chancery, the in- 
 specting party was, in strictness, entitled to have the docu- 
 ments of which production was ordered deposited at the 
 Record and Writ Clerk's Office (y) (now transferred to the 
 Central Office of the Royal Courts), though it afterwards 
 grew to be the practice, as a matter of indulgence and con- 
 venience to the producing party, to allow them to be pro- 
 duced at the office of his solicitor. In the Common Law 
 Courts, on the other hand, it wa.s not the practice to order 
 deposit of documents in any office of the Courts, there being 
 in fact no such office where they could be deposited, and 
 therefore production was always ordered to be made at the 
 office of the producing party's solicitor or agent (z). 
 
 The Judicature Acts contain no express provision upon the Office of pro-_ 
 subject, but seem to contemplate inspection being had at the solSitor^or ^ ^ 
 London solicitor's officeas a general rule (a), though documents town agent. 
 
 {t) Kelly V. JTation, 15 W. E. 916 ; Combe v. Corporation of London, 1 Y. 
 & C. Ch. 631 ; Slainton v. Chadwick, 3 Maon. & G. 343 ; Flower v. Llotjd, 
 XX. S. J. 584 ; contra, Murray v. Clayton, L. E. 15 Eq. 115. See Ord. 
 LVIII. r. 16. 
 
 (m) See per "Wigram, V.-C, in Drake v. D., 3 Ha. 523, 529. 
 
 {x) Seeper Lord Cottenham, L. C. 1 Macn. & G. 532 ; per Wood, V.-C, 1 
 J. & H. 386 ; Bnstros v. B., 30 "W. E. 374. 
 
 {y) See Consol. Ord. XLII. r. 3, and as to the mode of deposit, Dan. 
 1698 (b). 
 
 (2) See per Jessel, M. R., in Sroim v. Sewell, 0. A. 16 Ch. D. 517, 518, 
 seq. and Dan. 1696. In Roberts v. Lloyd {7 L. J. Ch. 115), this peirmission 
 was given to save expense, Ihe applicant being a pauper. 
 
 (a) See Ord. XXXI. r. 16, and the statutory form of order for production 
 (App. post, p. 196) ; Prcstney v. Mayor, <fcc. of Colchester, 52 L. J. Ch. 346. 
 
140 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. VII. may still, as before, be ordered to be deposited in Court (b). 
 ^^°'^- ^- Now that a central office has been established for the Supreme 
 Court it is desirable that the practice in all the divisions of 
 the High Court should be made uniform as to the place of 
 production (c). In actions proceeding in a district registry 
 production may be ordered to be made at the office of the 
 District Registrar (d). Documents in a foreign country may 
 be ordered to be brought over to this country for inspection, 
 or to be produced at their place of deposit as the justice of 
 the case may require (e) ; in the former case the applicant 
 for inspection rnay be ordered to prepay the costs of trans- 
 mission (/). 
 Production at Where the documents are very numerous, or are shovra to 
 doCTinxentr ^® ^^ Constant use in the trade or business of the producing 
 used or kept, party, SO that they cannot be removed without inconve- 
 pience, it is a matter of course to allow the production to be 
 made at the party's own premises (ff), on an affidavit show- 
 ing (1) that the documents relate not only to the matters in 
 disptite but also to other matters unconnected therewith, 
 and (2) are in QOEistant use in the party's business, so that 
 (3) they cannot be removed without great inconvenience (g): 
 If the other party does not obtain a satisfactory inspection 
 pf them there, it is open to him to apply for an order that 
 they may be deposited in Cpurt (h). An order for produc- 
 tion at the premises of one of the parties cannot be made 
 Aivithout the consent of that party, for the Court cannot order 
 that the other party shall be at liberty to enter his pre- 
 mises (i). 4- party will not be prejudiced in an application 
 that the inspection may take place at his own premises by 
 having in the first instance, before he discovered the incon- 
 
 (6) See Ahud v. Hiches, 2 Ch. D. 528. 
 
 (c) Per Jessel, M. R., 16 Ch. D. 51Q ; pf.r Lush, L. J., ib. 521. The 
 difference in the practice of the Courts as to the place of production gave rise 
 to a difference in the practice as to the allowance of costs of production and 
 inspection {v. post, p. 185). 
 
 (d) Jud. Act, 1^73, s. 66. 
 
 (e) See Bustros v. B., 0. A. 30 W. R. 374. 
 (/ ) V. ante, p. 138 («,). 
 
 (/) iferteiis y. Haigh (No. 1), Johns. 735 ; Grane v. Cooper, 4 Myl. & Cr. 
 263 ; Hooper v. Gumw-, 2 J. & H. 602 ; yi. G. v. WUtwood Local Board, 40 
 L. J. Ch. 592 ; Carew v. Davies, 21 Beav. 213 ; Little v. Kirkwood, L R. 
 (Ir.) 9 Eq. 325 ; Prestney v. Mayor of Colchester, 52 L. J. Ch. 346. 
 
 (jf) See the form in Reid v. Langlois (1 Macn. & G. 628), pronounced to be 
 the proper form by Wood, V.-C. (2 J. & H. 6C8). A form of summons is 
 given in the Appendix, post, p. 199. 
 
 (A) See Me Clements, 46 L. J. Ch. 375. 
 
 {i) Maund y Allies, i Myl. & Cr. 603. 
 
PRACTICE AS TO INSPECTION OF DOCUMENTS. 141 
 
 venience of it, submitted to production at the solicitor's chap. vii. 
 office, which is rather a proof of his hona fides than other- ^^°^' ^' 
 wise (A') ; but this indulgence will not be allowed where there 
 is no business being carried on to which the documents 
 relate (I), or where there are grounds for suspecting fraud or 
 tampering with them (wi). 
 
 The Court has, on the other hand, power to remove docu- Deposit in 
 ments out of the custody of the party in whose possession y^^^^y. special 
 they are disclosed to be into its own (71,), but in the Court of c"<:"'>^stances. 
 Chancery it was not the practice to change the possession 
 of the documents unless some special grounds were shown 
 for doing so (0), (the object of ordering production being to 
 insure the inspection of documents, not their safe custody {p) ), 
 e.g., where there was reason to suspect their genuineness, 
 and it was desirable to have them examined or tested by 
 experts {q), or reason to believe that they would not be pro- 
 duced at the hearing, and, d fortiori, the Court would not 
 deprive a party of the possession of a document representing 
 a sum of money, e.g. a deposit receipt (r). Whatever be the 
 place directed for the production, the Court of Appeal will 
 not interfere with the decision of the judge of first instance 
 in this respect, it being peculiarly a matter of pure dis- 
 cretion (s). Where deeds or other documents are ordered to Central office. 
 be deposited, they must be left in the Central office (formerly 
 in the Record and Writ Clerk's office), and are subject to 
 such directions as may be given for their production {t) ; 
 the Coiirt considers that the person depositing documents 
 has the right to the possession of them, and the custody of 
 the Court is that of the person making the deposit (u), but, 
 according to the practice of the Court of Chancery, inspection 
 was refused to any person representing himself to be the 
 
 gc) See per Wood, V.-C, IJ. & H. 388. 
 
 (l) A. G. V. Whitwood Local Board, 40 L, J. Ch. 592 ; but see Prostncy v. 
 Mayor of Colchester (muniments of corporation), 52 ib. 346. 
 
 (in) See Mertens v. Hairjh (No. 1), John. 735. 
 
 (71) See Ord. XXXI. r. 11, and 15 & 16 Vict., c. 86, ss. 18, 20. 
 
 (0) Dan. 1696. SaeLafone v. Falkland Islands (No. 2), 4 K. & J. 39, where 
 the Court refused to allow original documents to be taken out of the jurisdic- 
 tion no special case for so doing being made out. 
 
 (p) See Dunn v. D., 3 Drew. 17 ; Jones v. Thomas, 2 Y. & C. 312. 
 
 (o) Blakesley v. Pegg, 20 L. T. 51 ; TwcTdyman v. Barnes, 2 De G. & Sm. 
 
 225 
 
 ('r\ Mayor of Berwick v. Murray, 1 PhiU. 630 ; 1 H. & T. 452. 
 (s) sJtros V. B., C. A., 30 W. R. 374 ; v. ante, p. 139. 
 (t) Chanc. Cons. Ord. XLII. r. 3. See Dan, 1696. 
 (u) Per Romilly, M. E„ 21 Beav. 213. 
 
142 
 
 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. VII 
 Sect. 5. 
 
 Who may 
 inspect. 
 
 plaintiff or defendant or party by whom the documents 
 were left, unless introduced by his solicitor or solicitor's 
 clerk (x). The depositing party has a right to have them 
 back again (for which purpose an order is necessary) (y), 
 after the required discovery has been given, subject to the 
 right of the Court to retain them, if it sees that they may 
 be further required in the course of the action or at the 
 hearing (z) ; in one case documents were retained in Court 
 to see whether criminal proceedings would be taken upon 
 them against the producing party (a). 
 
 The common form of order to produce directs produc- 
 tion to the party, his " solicitors and agents," (and an 
 undertaking to produce is construed as being so extended, 
 unless it be otherwise specially provided (6), meaning by 
 Solicitors and " solicitors," the solicitors employed by the party in the 
 action, and by "agents," not necessarily legal agents 
 only or the agents of the solicitor, but general agents, 
 or persons ia some way connected with the proceedings, e.g., 
 a managing clerk of the party (c), and not special agents 
 appointed for the particular purpose of inspecting the docu- 
 ments (d). Thus, a defendant is not entitled to inspect a 
 co-defendant's documents as an " agent " of the plaintiff (e), 
 nor is a mere relation of the party entitled to inspect such 
 an " agent " (/). There may be personal reasons peculiar 
 to the individual selected to inspect, e.g., connection with 
 a rival establishment, which render him an improper person 
 for the purpose (g) ; but it is no objection per se that such 
 agent is also an intended witness in the action (h), or that 
 he is not the sole agent of the inspecting party, for there is 
 no rule that a party can only have one agent (i), and the 
 agent who has the conduct of the action may have inspec- 
 
 Meaning of 
 "agents." 
 
 (x) Braith. Pr. 509. 
 
 {y} Bunnall v. Yarroll, 1 W. R. 442. F. post, App. p. 199. 
 (z) Dunn y. D.,Z Drew. 17 ; 7 De G. M. & G. 25 ; see Plunkett v. Levm, 6 
 Ha. 65. 
 
 (a) Walker v. Cooke, 3 Y. & C. 277. 
 
 (6) Williams v. Prince of Wales Ins. Go., 23 Beav. 338 
 
 (c) Per Wood, V.-C, IJ. & H. 386. 
 
 (d) See per Turner, L. J., in Draper v. Manch., &c. By. Co., 3 De G. F. & 
 J. 23, 27. 
 
 (e) BartUy v. B.,\ Drew. 233. 
 
 (/) Summer field Y. Pritchard, 17 Beav. 9. 
 
 \g) V. post, p. 176 {rr) ; Brown v. Perkins, 2 Ha. 540. 
 
 (A) Per Turner, L. J. , uii supra. 
 
 (i) Republic of Costa Bica v. Erlanger (No. 2), 44 L. J. Ch. 402. 
 
PRACTICE AS TO INSPECTION OF DOCUMENTS. 143 
 
 tion, although another person is named in the pleadings as chap. vii. 
 the agent of the party in this country (k). ^^°*- ^- 
 
 Where it is desired to have inspection by an agent espe- Inspection by 
 cially appointed for that purpose, an authorisation to that ^^^'^^^^ agents. 
 effect must be inserted in the order or applied for subse- 
 quently (l), and it will only be granted under special circum- 
 stances (m). Thus, although the number and bulk of the 
 documents might not perhaps alone be a sufficient reason, 
 yet where there was the additional circumstance that the 
 inspecting parties were foreigners, and the only alternative 
 would have been to bespeak copies of all the documents, 
 relevant or irrelevant, which would have been oppressive 
 towards the inspecting parties, inspection by a professional Accountants 
 accountant was allowed [n) ; and in like manner inspection g^pgjjs^' 
 has been ordered by engineers, surveyors, and other experts, 
 in cases where the inspection would have conveyed little or 
 no information to an ordinary person (o), e.g., where the 
 documents were in a foreign language (p), or accounts had 
 been kept in a foreign currency (q) ; but it seems that this 
 will not be done in a case where taking copies of the 
 documents to be laid before an accountant or other skilled 
 person would be sufficient, and it would not be oppressive to 
 compel the party to do so (r), and where the accounts are 
 only common money accounts, inspection by a professional 
 accountant is unnecessary (s). 
 
 The inspection may be ordered to be made " by a person Court may 
 to be agreed upon by the parties, or, if not agreed "pon, ^^^^^P^^'^""" 
 then by a person to be appointed by the master," for it 
 would be unreasonable for one party to send down an ac- 
 countant or other nominee of his own to inspect the other 
 party's books without giving him an opportunity of objecting 
 to the person who might be sent {t). 
 
 Where a pnmd facie case has been made out for im- Inspection by 
 -^ witnesses. 
 
 (jfc) lb. 
 
 {I) A.-G. V. Whitwood Local Board, 40 L. J. Ch. 592.| 
 (m) Bep. Costa Rica v. Erlanger (No. 2), 44 ib. 402. 
 
 (n) Bontiardet v. Taylor, 1 J. & H. 383 ; Lindsay v. Gladstone, L. E. 9 Eq. 
 132 • Coleman v. West Hart. Ry. Co., i L. T. 467. 
 
 (o) Swansea By. Co. v. Budd, L. R. 2 Eq. 274 ; Blair v. Masscy, Ir. R. 5 
 
 Eq. 623. 
 
 (») Seeyer 'Wood, V.-C, L, R. 2 Eq. 275 ; Bonnardct v. Taylor, supra. 
 
 (a) LAndsay v. Gladstone, supra. 
 
 M A.-G. V. Whitwood Local Board ; Bonnardety. Taylor, supra. See, as 
 to the costs of such inspection, post, p. 186. 
 
 Is) Per "Wood, V.-C, 12 Jur. N. S. 561. 
 
 It) Head v. Willey, XXV. Sol. Joura. 943 ; v. post, p. 150. 
 
144 
 
 XAW AND PRACTICE OP DISCOVERT. 
 
 Mode of con 
 ducting the 
 inspection. 
 
 CHAP. VII. peaching the genuineness of documents, intended -witnesses 
 ^^"^^ ^' have been allowed to inspect them (u), of even to test and 
 examine them by chemical process (x), but not in a case 
 where their genuineness was not impeached by the pleadings, 
 and upon the ordinary affidavit that it was necessary to the 
 applicant's case that they should be so produced (y). In 
 such a case it seems that the names and addresses of the 
 witnesses should be given, and that the solicitors ou both 
 sides should be present at the inspection {z). Special 
 agents should be accompanied by the applicant's solicitor or a 
 duly authorised clerk of such solicitor when making the 
 inspection (a), but the producing party cannot insist upon 
 the party himself being accompanied on the inspection by 
 his solicitor, or a clerk, though he may have as many 
 persons as he pleases present on his own behalf (6). The 
 solicitor of the producing party, or some person on his behalf, 
 has a right to be present at the inspection (c), which should 
 be conducted in a peaceable and decorous manner (d), and 
 may, if thought desirable, be conducted in the presence of 
 an officer of the Court (e). Obstruction to the inspection by 
 duly authorised persons is a contempt of Court, and may be 
 punished by attachment (/). The inspecting party may be 
 required to give an undertaking not to make public the 
 
 No fee charge- information so obtained by him (g). No fee can in any 
 case be charged for an inspection under the order of the 
 Cou]-t, although it might have been, if such an inspection 
 had been made independently of the action, e.g. by the 
 steward of a manor for the inspection of the Court rolls in 
 his possession as such (A). The common form of order 
 
 Taking copies, for inspection provides for the making copies or extracts of 
 
 able. 
 
 (tt) See Groves v. Gf., Kay, App. xix., and cases cited in L. R. 5 Eq. 291. 
 
 {x) See Twmtymwn v. Barnes, 2 De Gw & Sm. 225. An authorisation to this 
 effect must be inserted in the order. 
 
 (i/) Boyd V. Petrie, L. R. 3 Ch. App. 818. 
 
 (z) Groves y. (?. , supra. 
 
 {a) Undsay v. Gladstone, L. R. 9 Eq. 132. It has been hekl that a 
 Defendant is entitled to refuse to allow the inspection by a Plaintiff to take 
 place in the presence of a co-defendant, though employed as an agent bv tlie 
 Plaintiff {BarlUy v. B., 1 Drew. 2.33). 
 
 (6) Oldrieve v. Knowles, xxv. Sol. Journ. 450. 
 
 (c) Per Wood, V.-C, Kay App. xx. 
 
 (d) Willia'ins v. Prince of Wales Co., 23 Beav. 338. 
 
 (e) See Sill v. Phelps, 21 L. J. Ex. 84 n. (6). 
 (/) See re Clernents, 46 L. J. Ch. 375. 
 
 (g) Williams v. Prince of Wales Co., 23 Beav. 338. 
 (A) Moare v. WiUon, L. R. 4 Eq. 1. 
 
PRACTICE AS TO INSPECTION. 145 
 
 the documents inspected by the inspecting party at his chap. vii. 
 
 own expense (i), and, even in the absence of such a provi- : 
 
 sion, there is an implied right to do so (k), though the 
 usual practice is to take the copies from the solicitor of 
 the producing party, who is bound to supply them on the 
 written request of the inspecting party, at the rate of 4d. per 
 folio ; if he refuses or neglects to do so, the solicitor re- 
 quiring the copy or extract is entitled to make it himself, and 
 the other party's solicitor is then not entitled to any fee in 
 respect thereof (Z). In a case where much depended upon 
 the precise form of the documents, fac-simile copies were, 
 by special leave, authorised to be taken by photograph or 
 otherwise (m). 
 
 (i) See Es. April, 1880, H. 16. 
 (it) V. mUe, p. 136 (m). 
 (Z) Rs. S. C. (costs) June, 1875, r. 16. 
 
 (m) Parey v. Pembertim, 11 C. B. N. S. 628 ; Neilson. v. Underwood (No. 
 1), Ir. Rep. 4 Eq. 59 ; see Singer Co. v. Wilson, 11 L. T. 670 ; 12 ib. 140. 
 
CHAPTER VIII. 
 
 INSPECTION OF PEOPEKTT. 
 
 CHAP.viii. Upon the application of any party to an action, an order 
 Inspection of may be made, upon such terms as may seem just, for the in- 
 subj'eot^of the spection (a) of any property (including both real and per- 
 action. sonol corporeal property) which is the subject of such 
 
 action (&). By " subject" is meant "subject-matter " (c), i.e., 
 property in respect of which, or some right or injury con- 
 nected with which, the action is brought (d), and the inspec- 
 tion of which may be material to the proper determination 
 of the question in dispute {dd). An order cannot be made 
 under this rule in an action for a nuisance by noise and vibra- 
 tion for the inspection of the plaintiff's premises to ascertain 
 the extent to which they are affected thereby, they not being 
 the subject-matter of the action (e). The inspection may be 
 had at any time before, or, as it seems, at the trial of the 
 action (/). It may also be obtained, A /oriwW, after judg- 
 ment, when the right of the applicant is ascertained (g). The 
 rule is not restricted, in express terms, to property of the 
 opposite party, if in his possession, or to property in his pos- 
 session, provided he may be supposed to have control over 
 the party who is in possession (Ji), but an order cannot be 
 
 (a) V. post, p. 149, as to what the right of inspection includes. 
 
 \b) Ord. LII, r. 3 ; cf. C. L. P. Act, 1854, ». 58 ; 24 & 25 Vict. c. 10, s. 17. 
 
 (c) See Ord. LII. r. 1. 
 
 (d) See Irish C. L. P. Act (16 & 17 Vict. c. 113), s. 47. 
 
 (dd) See C. L. P. Act, 1854, s. 58 ; WlmUy v. BrancJcer, 10 L. T. 155 ; 
 Kynaston v. Sast Ind. Co., 3 Swanst. 248, 3 Bligh, 153 ; Smith v. Peters, 
 L. R. 20 Eq. 511. Inspection of personal property has been granted to enable 
 plaintiff claiming it to identify and specify it {£arl of Macclesfield v. Davis, 
 3 V. & B. 16 ; see Marsden y. Panshall, 1 Vem. 407). 
 
 (e) Gaunt v. Fynney, W. N. 1870, 162. 
 
 (/) See Meyer v. Barnett, 3 F. & F. 696 ; Line v. Taylor, ii. 731. 
 
 Ig) Kynaston v. Sast Ind. Co. , supra. 
 
 (A) See Morley v. Great Central Gas Co., 2 F. & F. 373. 
 
INSPECTION OF PROPERTY. I47 
 
 made with respect to property ia & foreign country (?). The ohap.viii. 
 application must be made to a judge at chambers (by sum- Application 
 mons) in the Queen's Bench Division {h), and (by motion) to must be to 
 a judge in Court in the Chancery Division, and, if made by a ■'"^''*^^' 
 plaintiff, may be made at any time after the issue of the writ 
 of summons (I), and, if by a defendant or any other party {e.g., 
 a third party), at any time after he has appeared (m) ; in 
 either case it must be made on notice to the opposite party {71), 
 except in cases of emergency, where the object of the appli- 
 cation would be otherwise defeated (0). 
 
 In the Court of Chancery, inspection of property was 1. Where in- 
 granted in two classes of cases ; (1) Where one person had a o7Bropeity'o/ 
 legal interest by contract, statute, or otherwise, in the value another. 
 of the property of another (p), e.g., a claim to tithes in respect 
 of the annual value of premises belonging to the opposite 
 party (cj), or a claim as agent to commission on the value of 
 goods purchased or work done by him for his principal {v), 
 and there was no other mode of ascertaining the value of such 
 premises, goods, or work ; and (2), in cases of trespass upon or 2. Where in- 
 other injury to real property, such as mines, when it was (and ^^^^ to real 
 still is) granted almost as a matter of course (s). " It 
 is established by the cases," said Lord Romilly, M. R., {t) 
 " that if a person is making use of his property to the injury 
 of the property of his neighbour, the latter is entitled to an 
 inspection in order to ascertain the extent of the injury, and 
 this Court only requires him to show a jprvmd facie case, 
 and the mere contradiction of the defendant amounts to 
 nothing, unless he shows positively that no injury has been 
 done to him. There must, in the absence of contract, be a 
 prima facie case, showing a reasonable ground for the belief Primd fade 
 
 (i) See per Lord Westbury, L. C, in BeUs v. Neilson, L. E. 5 E. & I. 
 App. 1, 11. 
 
 (k) Ord. LIV. r. 2 a. 
 
 (I) Ord. LII. r. 4 ; Cooper v. Ince Hall Co., W. N. 1877, 24 ; Amies v. 
 Kelsey, 22 L. J. Q. B. 84 ; see, however, Whaley v. Brancker, 10 L. T. 155. 
 
 (m) lb. It seems, however, that a defendant will not be allowed Inspection 
 until he has put in his defence {Aiwn. W. N. 1877, 53). 
 
 (0) ffenessy v. Bohmann, W. N. 1877, 14 ; see, however, IVhaley v. 
 Brancker, supra. 
 
 {p) See East Ind. Co. v. Kynaston, 3 Bligh. 153, 3 Swanst. 248 ; Bennit v. 
 Whitehouse, 28 Beav. 119. 
 
 (a) East Ind. Co. v. Kynaston, supra. 
 
 (r) See per Lord Redesdale, ib. 166 ; per Lord Eldon, L. C, ib. 262, 264. 
 
 (s) See per Lindley, J.,W. N. 1876, 24. For form of summons, t'. po.<:t, p. 197. 
 
 (t) In Bennit v. WhUehouse, 28 Beav. 119, 121. 
 ' L 2 
 
148 LAW, AND PRACTICE OF DISCOVERY. 
 
 CHAP.viii. that an injury is cominitted. * *■ * Wherever it appears 
 case of iniury *^^* ^ person has power to make use of his land to the injury 
 must be shown, of another, and there is pri/mA facie evidence of his doing so, 
 though it is contradicted, still as the only way of ascertaining 
 the fact is hy an inspection, the Court always allows it, if it 
 can be done without injury to the defendant " {u). The 
 It must be foundation of the right in such cases, is that necessity (i.e., 
 ^''"r" *^^* ^°^ ^^^ purpose of proving the applicant's case) requires the 
 not prove his inspection {x), and the Court should take care to impose, as 
 tr^M*^ ti*n littl® inconvenience as possible on those on whom the order is 
 made (y) ; in- the words of Vice-Chanceller Wigram, a case 
 must be shown " as well of necessity as of irreparable mis- 
 chief" (z). In granting this relief the Court looks at the 
 nature of the suit, the purposes for which it is sought, and 
 whether the case is such that the Court is authorisad in 
 interfering with the defendant's property (a). Inspection will 
 not be granted where it would be useless, as of an alleged 
 nuisance the effects of which must be externally apparent, 
 though the cause of its existence may be internal (b). 
 Inspecting The inspection is to be granted " upon such terms as may 
 
 party may be seem just " (c), that is, as to costs, indemnity for any loss or 
 indemnity and damage. Sustained by the other party in consequence of the 
 pay costs. inspection, and otherwise {d), and the applicant may be 
 ordered to give security for or deposit in Court a sum suffi- 
 cient to provide such indemnity, and must, in any case, pay 
 Court may the costs of the inspection (e). The Court or judge ordering 
 nMessa"y*to°^ inspection has power, as ancillary thereto, to order the re- 
 the inspection, moval, where necessary, of anything that obstructs the inspec- 
 tion, and the doing of all acts necessary to render it effec- 
 tual (/), e.g., the repair and ventilation of a mine, or the re- 
 
 (m) Ih. 122. See cases cited in Bainbridge on Mines, pp. 315 scq., and Kerr 
 on Injunctions, 157 seq. ; Whaley v. Brancker, 10 L. T. 155 ; Saul v. Metrop. 
 By. Co., W. N. 1867, 99 ; Lewis \. Marsh, 8 Ha. 97. 
 
 {z) See per Wigram, V.-C, 8 Ha. 98. 
 
 (?/) See per Lord Eldon, L. C, 3 Swanst. 262. 
 
 (z) 8 Ha. 99. Sea post, p. 175, Inspection in patent cases. 
 
 (a) Per Stuart, V.-C, 18 W. R. 784. 
 
 (b) Barlow v. Bailey, 22 L. T. 464 ; cf. Batley v. Kyiiock, L. R. 19 Eq. 90 ; 
 Piggott V. Angl. Amer. Telegraph Co., 19 L. T. 46. 
 
 (c) R. 3. 
 
 (d) Cf. C. L, P.-Act, 1854, s. 58. 
 
 (e) See the form of order in Bennett v. Griffiths, 3 E. & E. 467. No appeal 
 lies from the order of the judge as to costs, they being in his discretion 
 {Mitchell V. Da/rley Coll. Co., 10 Q. B. D. 457). 
 
 if) See Bennett v. Griffiths, and cases there cited; White v. Storey, 43 
 
INSPECTION OF PROPERTY. 149 
 
 moval of barriers {g), for the Court when it orders inspec- chap.viii. 
 tion will not stop short of what is necessary to make its juris- 
 diction effectual (h). The order may also, for the purposes of 
 the inspection, authorise any person or persons to enter upon 
 or into any land or building in the possession of any party to 
 the action, and any samples to be taken [i), or observation to 
 be made or experiment to be tried (k) which may seem neces- 
 sary or expedient for the purpose of obtaining full information 
 or evidence (Z). Under the Patent Law Amendment Act, 1852, 
 s. 42, in an action for the infringement of a patent relating 
 to type, inspection and delivery for the purpose of analysis of 
 a portion of the type used by the defendant, was ordered in 
 the Court of Chancery (m) (after being refused in the Court 
 of Exchequer) (n), though necessarily involving the destruc- 
 tion of the portion so analysed ; and in a case of encroachment 
 upon mines, leave was given to make a driftway through the 
 defendant's wall for the purposes of the inspection (o), but 
 an application before the hearing for leave to enter upon 
 the opposite party's property and cut trenches in the soil and 
 do other acts therein to ascertain its geological formation was 
 refused (p). The order should provide for the length of 
 notice to be given before inspecting, and (if necessary) the time 
 to be allowed before the notice is given (q). Under the C. L. ^y '"?'o™ '"- 
 P. Act, 1854, s. 58, an order might be made for inspection be^haX ""^^ 
 not only by the party himself and his witnesses (r), but also 
 by his workmen and agents (s). The present rule does not in 
 
 (g) Earl of Lonsdale v. Curwen, 3 Bligh. 168 n. ; Walker v. Fletcher, 
 a. 172 n. 
 
 {h) Per Wood, V.-C, John. 730. 
 
 (i) Mennessy v. Rohmann, W. N. 1877, 14 ; cf. Patent Type Co. v. Walter 
 (No. 2), John. 727. The party inspecting must pay the I'all value of any 
 samples taken (ii.). 
 
 (yfc) The Court may order experiments to be made for its own guidance (see 
 Dickenson v. Grand June. My. Co., 15 Beav. 260 ; Case v. Midi. Ry. Co., 27 
 a. 247 ; Badische Fahrik v. Levinstein, W. N. 1883, 62). 
 
 (I) Ord. LIT. r. 3. 
 
 (rn) Patent Type Co. v. Walter, supra. 
 
 \n) S. C. 5 H. & N. 192 ; see as to inspection in such cases generally, 
 post, p. 175. . 
 
 (o) Bennett v. Grijfltlis, 3 E. & E. 467. 
 
 ( ») Bmwr v. Barwell, 1 De G. F. & J. 629 (varying on appeal the order of 
 Stuart, V.-C, 8 W. R. 300). 
 
 (q) See the form of order made by Lindley, J., in the case of Cooper v. Ince 
 Hall Co., W. N. 1877, 24, and by Stuart, V.-C, in Ihmor v. Barwell, supi-a. 
 
 (r) See Kynaston v. E. L Co., 3 Swans. 248 ; Singer Co. v. Wilson, 12 L. 
 T. 140. 
 
 (s) See the forms of order made in Bennett v. Griffiths, Patent Type Co. v. 
 WaMer, and Ennor v. Barwell, ubi supra. Notice may be reijuiied to be 
 
150 LAW AND PRACTICE OF DISCOVEEY. 
 
 CHAP.viii. any way limit the persons by -whom the inspection may be 
 had. Inspection may be allowed to independent persons, e.g., 
 experts, agreed upon between the parties, where it would be 
 refused to the party personally, as being a rival in trade {€). 
 
 given of the names and descriptions of the persons intended to inspect (see the 
 forms of order made in Walker v. Fletcher, 3 Bligh. 172, 178, and Lewis 
 V. Marsh, 8 Ha. 97, 100). 
 
 «) See Flower v. Lloyd, W. N. 1876, 230 (XX. S. J. 703), where the Lords 
 Justices modified the Vice-Chancellor's order (i6. 169) in this respect ; 
 aiUe, p. 143. 
 
CHAPTER IX. 
 
 OF THE CONSEQITENCES OF FAILURE TO GIVE DISCOVERY. 
 
 A PARTY who fails to comply with an order to answer inter- chap, ix. 
 rogatories, or for discovery (i.e., disclosure) or inspection of Party making 
 documents is liable to attachment (a). Applications for the default in dis- 
 
 . V / rr covery liable to 
 
 issue of a writ of attachment, which writs have the same attacliment. 
 effect as writs of attachment issued out of the former Court 
 of Chancery (b), must be made to a Judge in Court or at 
 chambers (c), on notice to the party against whom the at- 
 tachment is sought (d). If made to a Judge in Court, it 
 must be made by motion in the ordinary way (e). It is not Who may 
 necessary that it should be made by the party who obtained ^^^ ^' 
 the order for discovery, but it may be made by any person 
 who though not a party on the record, is beneficially in- 
 terested in the action, and aggrieved by the disobedience, 
 and who is in the position of a cestui que trust suing by a 
 trustee (/); thus, the official liquidator suing on behalf of a 
 company in liquidation was held entitled to enforce an order 
 obtained by the defendant in the action requiring some of 
 
 (a) Ord. XXXI. r. 20. See He Mulcastfr's Estate, "W. N. 1878, 81. This 
 rule does not, of course, apply to ■^exsoxis privileged frmn arrest (see Dan. 420; 
 Be Anglo-French Co-operative Society, 14 Ch. D. 533), or corporations (see 
 Mackenzie v. Sligo, dec. Ry. Co., 9 C. B. N. S. 250). In the Court of 
 Chancery, orders for discovery were also enforceable by sequestration (sea 
 Goldsmith v. (?., 5 Ha. 123), but this method of proceeding seems, in the 
 case of discovery, to be impliedly taken away by the above rule. If such a 
 writ is still issuable, there is no necessity for its being preceded by a writ of 
 attachment {Miller v. M., 39 L. J. P. & M. 38). 
 
 (V) Ord. XLIV. r. 1. This proviso is immaterial as regards attachment 
 for failure to give discovery. See, as to such writs generally, Dan., 411 
 seq., Morgan's Law of Costs, 527 seq., and Ord. XLIV. 
 
 (c) See Ord. LIV. r. 2. 
 
 (d) lb. r. 3 ; see Abud v. Riches, 2 Ch. D. 628 ; Juirp v. Cooper, 5 
 C. P. D. 26 ; Eynde v. Gould, W. N. 1882, 74. See as to service of notice, 
 post, p. 152, and for a form of motion, post, p. 200. 
 
 («) Ord. LIII. r. 1. Re a solicitor, 14 Ch. D. 162. 
 (/) Madrid Bank v. BaijUy, L. R. 2 Q. B. 37. 
 
ally. 
 
 152 LAW AND PEACTICE OF DISCOVERT. 
 
 CHAP. IX. the directors of the company to answer interrogatories, a stay 
 ' of proceedings having been directed in default of their doing 
 
 so (gr). Partial compliance ■with an order for discovery does 
 not prevent the liability to attachment Qi), and it is no 
 answer to the application to show that the applicant is in 
 contempt for non-payment of costs to the other party (i). 
 Service of Service of an order for discovery (which includes an order 
 
 order for dis- ^q answer interrogatories) {k) or inspection on the solicitor 
 solicitor of the party against whom it is made is sufficient service to 
 
 Bufficient. found thereon an application for an attachment for dis- 
 obedience of the order (J), but the party against whom the 
 attachment is sought may show in answer to the apphcation 
 that he has had no notice or knowledge of the order (m). 
 Notice of It is not absolutely necessary that the notice of motion or 
 neednotTe Summons should be served upon the party against whom it is 
 served person- intended to be made personally ; in an action, it may be 
 served upon his solicitor, as being equivalent to service upon 
 the party himself {n) ; it may also be served by leaving it 
 at his place of residence (o), or by filing it with the proper 
 officer where no appearance has been entered {oo). 
 Writ not The Writ is no longer issued as a matter of course ; it is 
 
 matter of iiow an order of Court, to be made upon notice, and therefore 
 in many cases after discussion {p), and it seems that a party 
 will not be allowed to pursue this remedy where no material 
 discovery is necessary from the defaulting party, and, con- 
 sequently, no benefit can be derived from keeping him in 
 custody (g), the proper course being to take his case as con- 
 fessed, and not apply for an attachment (r). In the Court 
 of Chancery, a party was not kept in custody where taking 
 
 (g) Madrid Bank v. BayUy, L. R. 2 Q. B. 37. 
 
 01) Mornington v. Keeiie, 4 W. R. 793. 
 
 (i) Wilson V. Bates, 3 Myl. & Or. 197. 
 
 {k) DaUon \. Nanson, i1 L. J. Ch. 609. An order for the disclosure of the 
 names of partners suing as a firm (under Ord. XVI., r. 10 a) is not an order 
 for discovery within the meaning of this section {Pike v. Keene, 35 L. T 841). 
 
 (I) See Ord. XXXI. r. 5:1 ; Joy v. HadUy, i1 L. T. 615. 
 
 (m) Ih. See Von Sag v. Soersten, 27 L. J. Ex. 299. A solicitor upon 
 whom such an order is served, and who neglects, without reasonable excuse, 
 to give notice of it to his client, is himself liable to attachment (r 23) 
 
 (n) Browning v. SaUn, 5 Ch. D. 511 ; Richards v. Eitchin, 36 L. T. 730 • 
 Joy V. HadUy, supra. See Cons. Ord. III. r. 6. 
 
 (o) Re a Solidlor, 14 Ch. D. 153 (see, however, Mann v. Ferrv. 44 L T 
 248) ; Young y. ¥., XXVI. S. J. 404. "' 
 
 (oo) Young y. Y. ; see Morton v. Miller, XX. S. J. 603. 
 
 (p) See per Jessel, M. R., 2 Ch. D. 528 ; 21 ib. 366. 
 
 (y) See per Cormick, V.-C, 9 Ir. Eq. R. 474. 
 „ (»■) See /oJjMoji V. M-Auley, Sau. & Sc. 707; O'Brien v. Manders, 
 2 Ir. Eq., R. 39. ' 
 
 course. 
 
CONSEQUENCES OF FAILURE IN DISCOVERY. 153 
 
 the bill pro confesso against him would answer the purposes chap. ix. 
 of justice, because no discovery was required from him (s). 
 Although a party may be technically entitled to apply for an 
 attachment, he should not do so for the purpose of making 
 costs, or unless he is genuinely and honestly desirous of 
 enforcing the discovery in giving which default has been 
 made (t). Before issuing the writ the Court or Judge must Proof of de- 
 be satisfied (by aflSdavit) of the due service of the order for ;ygn*° ^ 
 discovery (u), and that it has not been obeyed. If no appear- 
 ance has been entered, an affidavit of service of the writ will 
 be necessary, and if an enlarged time has been obtained for 
 giving the discovery it should be shown by affidavit, or by an 
 office copy of the order for further time, that such time has 
 expired (x). Upon an application for an attachment for not 
 answering interrogatories, the materiality of the interroga- 
 tories cannot be inquired into, unless it clearly appears upon 
 the face of them that they have been framed for the purpose 
 of delay, and have nothing to do with the object of the 
 suit (y), but the question whether the party in default is 
 'privileged or not from answering may be raised {z). The 
 Courtis, however, in the habit upon such occasions of inquiring 
 what benefit the applicant expects to derive from the discovery 
 sought. A party in custody for default in filing an affidavit of 
 documents will not be heard to say that he has no such docu- 
 ments {a), but in a case where it appeared that the admission 
 of possession had been made by inadvertence, and that the 
 party was genuinely unable to produce the documents, the 
 writ was discharged (6). The Court will not allow the pro- 
 cess to be used oppressively ; an attachment was refused 
 where the party in default for not answering had reasonable 
 ground for thinking that the answer would not be required 
 without a previous intimation to that effect (c), as also where 
 the party was unable through illness to put in his answer {d), 
 and where the answer had been filed though out of time (dd), 
 
 («) See Woodward v. Conebeer, 2 Ha. 506 ; Cons. Ord. XXII. r. 5. 
 
 \t) See Thomas v. Palin, C.A., 21 Ch. D. 360. 
 
 (u) V. ante, p. 152. 
 
 \x) Braithwaite's Pr. 165. 
 
 (y) Jteynolds v. BloomJUld, 8 Ir. C. L. Eep. xiv. 
 
 (z) M'Mahon v. Ellis, 10 ib. 120 ; Jones v. Powell, 1 Swan. 636. 
 
 (a) Hard v. Partinglcm, 12 Price, 689 ; v. ante, p.ll3 (h). 
 
 (b) Nugent v. N., Sau. & Sc. 704. 
 
 (c) Siderfield v. Thatcher, 11 Beav. 201. 
 
 (d) Hicks V. Lord Alvanley, 9 *. 163. 
 
 {dd) Cwranv. Elphinstone, i W. E. 50; TTindle y. lane, 29 L. J. Ex. 245. 
 
154 
 
 LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. IX. and, generally, it will not be granted against a party for 
 failure to comply with an order for discovery which he is 
 .satisfactorily shown not to be in a condition to give (e). So, 
 if an application were made to dismiss the action, no Court 
 would make such an order (/). A married woman may be 
 attached for want of an answer, where she disobeys an order 
 for discovery {g). The writ will not be issued for non-com- 
 pliance with an order for discovery which does not limit the 
 time within which it is to be given Qi), but it is no longer 
 necessary, as under the former practice in Chancery (i), that the 
 copy order served upon the party or his solicitor should be 
 endorsed with a notice of the consequences of disobedience (k). 
 
 Not issued for In the case of insufficient answers, it was not the practice of 
 the Court of Chancery to order a committal until a third 
 insufficient answer had been put in, or a /ouriA. insufficient 
 examination held (I) ; under the present practice, it is left 
 entirely to the discretion of the Judge {m). When the 
 order is made, it is usual to direct that it shall lie in the 
 office or not come into operation until after the expiration of 
 a limited time (which was usually a week in the Common 
 Law Courts), in order to give the opposite party an opportunity 
 of giving the discovery («), and it seems that a locus poeni- 
 tentiae should always be allowed (o). The writ is made 
 returnable at such time as the Court or Judge may direct (p), 
 which should be a reasonable time after the execution (5), 
 but it is not necessary that a date be specified therein for 
 the return (r) ; if no return is made, the party obtaining the 
 writ, may after a reasonable interval require the sheriff to 
 
 When return- 
 able. 
 
 (e) Seeder Cotton, L. J., 7 Q. B. D. 560; Bainbridge v. Blair, 1 Jur. 256. 
 
 (/) lb. V. post, p. 156. 
 
 (g) Dan. 422-3 ; see L. E. 7 Eq. 265 n. (4), as to the practice in such cases. 
 
 (fc) Thomas v. Palin, C.A., 21 Ch. D. 360. 
 
 (i) Cons. Ord. XXIII. r. 10. 
 
 (k) Thomas v. Palin, supra. The order must, however, be entered 
 (Ballard v. TomliTison, 48 L. T. 515). 
 
 (l) Cons. Ord. XVI. r. 17 ; Allfrey v. A., 12 Beav. 90 ; Hayward v. 
 n., Kay, xxxi. This rule did not apply to the case of affidavits of documents 
 (Harford v. Lloyd, 2 W. R. 537). 
 
 (m) Ahud V. Riches, 2 Ch. D. 528 ; Dallas v. Olyn, 3 Ch. D. 190 : 
 Thomas v. Palin, 21 ib. 360. 
 
 (n) See Re Mulcaster's Estate, 47 L. J. Ch. 609 : Thomas v. Palin. 21 
 Ch. D. 360. ' 
 
 (0) See ^er Malins, V.-C, 3 ib. 192. 
 
 (p) Consol. Ord. XII. r. 1. 
 
 (g) See Snowball v. Dixon, 4 Y. & C. 511. 
 
 (r) Owen v. PritJiard, W. N. 1876, 147. 
 
CO>^SEQtrE]srCES OF FAILURE IN DISCOVERT. 155 
 
 do so (s). Where the party against whom the attachment is chap. ix. 
 sought is out of the jurisdiction, it cannot be made return- costs are in 
 able immediately {t). The costs of the attachment, both as discretion of 
 to incidence and amount, are in the discretion of the Court 
 or Judge, there being no longer any fixed amount in such 
 cases (u), and should be pi'ovided for in the order for the 
 issue of the writ ; though if this be not done at the time, 
 they may be obtained by a separate application, at the 
 expense of the applicant, if such a course should involve 
 additional costs (x). Upon an application for an attachment 
 against a defendant for not answering interrogatories, the 
 Court of Common Pleas held that they had jurisdiction, 
 under sect. 46 of the C. L. P. Act, 1854, to order the ex- 
 amination as witnesses of persons suspected to be the real 
 defendants, there being good reason to believe that the 
 defendant on the record was fictitious (y). 
 
 The party in contempt, immediately on filing his answer Obtaining 
 or affidavit, should obtain and serve an order of discharge (on ^^*^ ^'^^^' 
 payment or tender of costs to be taxed) (z), which may be 
 obtained ex parte at the Rolls (a), or on notice in the 
 ordinary way (b), on proof (by production of an office copy of 
 the answer, or a certificate of the filing) of the purging of 
 the contempt ; and, on obtaining the bill of costs, should 
 either pay the amount or get them taxed without delay, and 
 when taxed, tender the amount immediately. If he omits 
 to do this, his opponent has a right to insist that the answer 
 or affidavit shall not remain on the file, provided he refrain 
 from taking any proceeding founded upon it in the mean- 
 while (c). He cannot be detained in custody until the 
 sufficiency or otherwise of his answer or affidavit has been 
 ascertained, for an answer is to be deemed sufficient unless 
 and until formally objected to (d). The opposite party may, 
 
 (s) lb. 
 
 {t) Znlueta v. Vincent (No. 1), 15 Beav. 273. 
 
 (u) Abud V. Riches, 2 Ch. D. 528 (see Ord. LV.). 
 
 (x) Ih. 
 
 {y) Morgan v. Alexander, L. R. 10 C. P. 184 (followed in Moline v. Tasm. 
 Ry., 32 L. T. 828). 
 
 (z) See a form of order in 4 Ha. 473. 
 
 \a) See Ahud v. Riches, supra ; Price v. P., 48 L. J. Ch. 215 ; Re Manning, 
 XXV. .-^ol. Journ. 472. 
 
 (6) Price v. P. 
 
 (c) See IVilMn v. Nainby, 4 Ha. 473, 475, per Wigram, V.-C. ; CoyU v. 
 Allen, 16 Beav. 548 ; Taylor v. SJieppard, 1 Y. & C. 99. 
 
 {d) See Lafone v. Falkland Isl. Co., 2 K. & J. 276 ; Balfour y. Farquliarson, 
 1 S. & S. 72. 
 
156 
 
 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. IX. 
 
 Party cannot 
 be detained 
 for non-pay- 
 ment of costs. 
 
 Contempt may 
 be waived. 
 
 Action may be 
 dismissed or 
 defence struck 
 out. 
 
 however, object to the answer or affidavit as insufficient and 
 get him recommitted if it prove to be so (e), without being 
 obliged to take up the process of contempt against him again 
 ab initio (/). Since the passing of the Debtors Act, 1869, 
 a party who has purged his contempt cannot be kept in 
 custody or re-committed for non-payment of the costs of his 
 contempt or of the application {g), though it may have been 
 made part of the order of the discharge that he shall pay 
 them (h), the opposite party being left to enforce payment as 
 he best can (i). In the Queen's Bench Division, however, it 
 is said to be the practice not to grant the discharge except 
 on payment of the costs (k). If, after receiving notice of the 
 application for committal, the partj' in default clears his con- 
 tempt before it is heard, he should tender the applicant a 
 sum for costs or get his costs taxed, and if the latter persists 
 in his application, he does so at the peril of costs {I). The 
 order of discharge may be rescinded if obtained by misrepre- 
 sentation, in which case the original attachment will re- 
 vive (m), and the question of the sufficiency of the answer or 
 affidavit may be raised upon the application to rescind (n). 
 
 A contempt may be waived, e.g., by accepting an answer 
 filed without payment of the costs of the contempt (o), or by 
 accepting and acting upon an answer, e.g., by applying for 
 the production of documents referred to in it {p}, or taking 
 any other proceeding founded upon it, or signing final judg- 
 ment by consent {q). 
 
 In the case of plaintiffs and defendants in an action, who 
 make default in obeying orders for discovery, they are, in 
 addition to the liability to attachment, liable, in the case of 
 the former, to have their actions dismissed for want of pro- 
 
 (e) See per Wood, V.-C, 2 K. & J. 277. 
 
 (/) Cons. Ord. XII. r. 7. 
 
 ig) Jackson t. Mawby, 1 Oh. D. 86 ; Mickelthwaite v. Fletcher, 27 W. R. 
 793 ; Clark v. Dyson, LXXIII. Law Times, 880. See, however, Be M., 
 46 L. J. Oh. 24. 
 
 (A) See Abud v. Riches, 2 Ch. D. 528 ; Tilney v. Stansfield, 28 W. R. 582 
 (which shows the proper form of order). 
 
 (i) -Jackson v. Mawby. He is entitled to have the answer or affidavit taken 
 off the file (v. ante, p. 155). 
 
 (k) Per Day, J. , in Clarke v. Dyson, ubi supra. 
 
 (l) Seeder Jessel, M. R., 21 Ch. D. 363. 
 
 (m) Price v. P., 48 L. J. Ch. 215. 
 
 In) lb. 
 
 (o) Roberts v. Albert Bridge Co., L R. 8 Ch. App. 753 ; Landors v. AUen, 
 6 Sim. 619. 
 
 ip) HosUns v. Lloyd, 1 S. & S. 393 ; Dan. 431 seq. 
 
 (?) HayTve v. Pratt, L. R. 6 C. P. 105. 
 
COJTSEQtlENCES OF PAILUEE IN DISCOVERY. I517 
 
 secution, and in the case of the latter, to have their state- chap. ix. 
 
 ments of defence struck out, and to be placed in the same ; r-— r 
 
 position as if they had not defended (r). This provision, how- exeroSed^a 
 ever, is considered a highly penal one, which will only he ^^ I'^source. 
 exercised in the last resort, and, apparently in no case where 
 there is a real intention to give fair discovery (s). Accord- 
 ingly it has been held that unless an answer is so palpably 
 insuflScient as to show want of bona fides, the proper course 
 is to apply for a further answer (t). In the Court of 
 Chancery, bills might be ordered to be taken pro confesso 
 against the defendant, where the plaintiff was unable with 
 due diligence to procure the execution of a writ of attach- 
 ment against him by reason of his being out of the jurisdic- 
 tion, or being concealed, or some other cause, and the 
 defendant was consequently deemed to have absconded to 
 avoid or to have refused to obey the process of the Court (u), 
 but there was a "large discretion" as to granting such 
 orders (x). In the case of foreign litigants, persons privi- 
 leged from arrest, corporations, &c., this is the only effectual 
 mode of reaching them, as also in cases where it would be 
 impossible to procure the execution of a writ of attachment 
 against the defaulting party (y). Although, as a general 
 rule, the fact that a defendant has not complied with an 
 order for discoveiy, is sufficient to excuse a plaintiff from 
 proceeding with his action, the defendant has still a technical 
 right to apply to dismiss it for want of prosecution (0), and 
 the fact of a defendant's having filed interrogatories for the 
 examination of the plaintiff does not suspend or interfere 
 with his right to have the action dismissed for want of pro- 
 secution, although the time for answering has not expired (a). 
 
 (r) Ord. XXXI. r. 20. The Court of Chancery possessed a similar jurisdic- 
 tion to dismiss a bill for default of discovery (Bep. Liberia v. Roye, 1 App. 
 Gas. 139), and where a defendant made default, the bill might be ordered to 
 be taken pro confesso, (Dan. 442 — 3). 
 
 (») Per Lnsh, J., Arum. W. N. 1875, 202 ; cf. Twycross v Grant, ib. 201 ; 
 Hartley v. Owen, W. N. 1876, 193. An order was made to strike out a 
 defence in a case of "frightful procrastination" (S. C, W. N". 1875, 229) ; 
 see also Fisher v. Hughes, XXI. S. J. 478, (where the order was made aftor 
 several adjournments granted), and Danvilliery. Myers, C. A., "W. N". 1883, 58. 
 
 (t) Kennedy v. Lyell, C. A., W. N. 1882, 137 ; JDanvillicr v. Myers. 
 
 (u) Ch. Cons. Ord. XXII., r. 2 ; Dan. 442, seq. 
 
 (x) See Zulueta v. Vincent (No. 1) 15 Beav. 272. 
 
 \y) See Dan. 420. 
 
 (z) Cooper V. Castle, C.A., XXI. Sol. Journ. 457. See Howe v. Grey, W. 
 N. 1867, 141. 
 
 (a) Jackson v. Ivinusy, L. E. 1 Eq. 693. 
 
158 LAW AND PRACTICE OP DISCOVERT. 
 
 CHAP. IX. -A-n action will not be dismissed because one of several co- 
 plaintiffs has not complied with an order for discovery, it 
 being satisfactorily shown that he is not in a condition to do 
 so (6), and serrible, the same rule would apply to the case of 
 a sole plaintiff, but there is no discretion as to enforcing an 
 order for discovery made on the nominal plaintiffs on the 
 record because of the hardship to the real plaintiffs from the 
 action being stayed or dismissed (c). The direction that the 
 application shall be made by " the party interrogating " 
 might be supposed to confine the rule to cases of default in 
 answering interrogatories, but in practice the provision has 
 been treated as equally applicable to cases of default in 
 giving discovery of documents {d), so that the expression 
 must be considered as equivalent to " the party seeking the 
 discovery." The application must be made to a Master at 
 chambers in the Queen's Bench Division, and, as a rule, to a 
 Judge in Court in the Chancery Division (e). 
 
 (S) deeper Cotton, L. J., 7 Q. B. D. 561 ; HartUy-v. Owen, 34 L. T. 752, 
 where the affidavit of the wife of an absconding co-plaintift' was accepted as 
 sufficient. 
 
 (c) WiUon V. Eaffalomch, C.A., 7 Q. B. D. 553. 
 
 (d) See Anon., W. N. 1875, 202, 204 ; Fisher v. Hughes, XXI. S. J. 478 ; 
 cf. Rep. lAheria v. Roye, 9 Ch. App. 569 ; 1 App. Cas. 139. 
 
 (e) Evelyn v. E., 13 Ch. D. 138 ; Contra, Freasm, v. Loe, 26 W. R. 138. 
 
CHAPTER X. 
 
 DISCOVEET IN PARTICXJLAE ACTIONS. 
 
 Sect. 1. — Biscovery from corporations, companies, public 
 bodies, andfweign states. 
 
 In actions by or against corporations aggregate (a), joint- chap. x. 
 stock companies, and other bodies of persons empowered ^*''*" ' 
 
 by law to sue or be sued in their own names, or in the name Discovery from 
 
 of any officer or other person, discovery may be obtained member of 
 
 from an officer or member thereof, as representing it (b), so corporation or 
 
 that it is no longer necessary to make such an officer or 
 
 member a party to the action for the purpose of obtaining 
 
 discovery (c), as under the former Chancery practice, and if 
 
 such a person is made a party for such a purpose, his name 
 
 will be struck out with costs against the party who made 
 
 him so (d). A foreign corporation is on the same footing as a 
 
 native one, as far as regards discovery, and it will be assumed 
 
 that its secretary or officers are under its control, so that 
 
 an order upon them to give discovery will be made as a 
 
 matter of course (e), with the usual consequences, in case 
 
 of failure to comply, of striking out the claim or defence, 
 
 such being the only way of reaching them (/). 
 
 In the case of interrogatories, application must be made Leave to inter- 
 by the party seeking to interrogate, by summons at Cham- o^f^ined.^^ 
 bers, for an order empowering him to deliver them to such 
 member or officer (g), the object of requiring such leave to 
 
 (a) A corporation sole must of course answer on oath in the ordinary way 
 (see 1 CI. & F. 347, 349 in arg.). 
 
 (b) Ord. XXXI. rr. 4, 12 ; BerheUy<r. Standard Dis. Co., (No. 2) C. A., 13 
 Ch. D. 97. The former rule is substantially a re-enactment of s. 51 of the 
 CLP Act 1854. 
 
 (c) Wilson y. Church, 9 Ch. D. 552. 
 
 (d) lb. 
 
 (e) Collins v. Brwm, 3 K. & J. 423 ; per Wood, V.-C, L. E. 2 Eq. 732. 
 ( f\ See ver Blackburn, J., 1 Gh. D. 174 ; ante, p. 157. 
 
 (3) Ord. XXXI. r. 4 ; cf. C. L. P. Act, 1854, s. 51. 
 
160 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. X. be given being to insure that a proper person is chosen to 
 LJ give discovery (h). The order will not be made ex parte, 
 
 but the summons should be- served upon the corporation, 
 company, or body whose interest it is to see that the proper 
 person is selected to answer (i), and semble, the officer or 
 member should not appear in the matter at all (k), though 
 he may afterwards apply to rescind the order (l). If the 
 interrogatories are delivered without an order they will be 
 struck out {m), or might simply be left unanswered. The 
 summons should specify the particular officer or member 
 Proper person Selected to answer (n), and some good reason should be 
 selected to shown, by affidavit or otherwise for the selection (o), and 
 answer. the Judge Or Master should exercise his discretion in the 
 
 matter in selecting a person who is likely to know and answer 
 accordingly (and over whom the corporation or company has 
 control), it being for him to decide who is to be interro- 
 gated (p). The applicant should not select a friend of his 
 own, or a person who will in all probability decline to give 
 the discovery (g). If reason be shown why one member or 
 officer can give information on one set of questions, and 
 another member or officer on another set, the Court can 
 direct more than one to answer (r). It is assumed that the 
 secretary or other officers of a trading corporation or com- 
 pany are under its control so as to be compellable to put 
 in an answer (s.) Under this rule and the corresponding 
 sections of the Common Law Procedure Act, 1854, the 
 public officer (t), and the manager (w) of a joint-stock bank, 
 
 {h) Singer Co. v. Long, XXII. Sol. Journ. 854. 
 
 (i) See ^er Jessel, M. E., in Berkeley T. Stand. Disc. Co. (No. 2), 13 Ch. D. 
 97, at p. 99. 
 
 {k) See per Thesiger, L. J., ib. 101. 
 
 (I) Berkeley v. Stand. Disc. Co. (No. 1), 9 Ch. D. 6-43. Sed qvMere. 
 
 (m) Carter v. Leeds, &c. Co., W. N. 1876, 11. 
 
 (n) Berkeley \. Stand. Disc. Co., 9 Ch. D. 643. Under s. 50 of the C. L. 
 P. Act, 1854, the Court or Judge selected the person to answer (see Lacharme 
 V. Quartz, &c. Co., 1 H. & 0. 134). 
 
 (o) See Prioleau t. U. S., L. R. 2 Eq. 659. 
 
 Ip) Mep. Costa MeaY. Erlanger, C. A., 1 Ch. D. 171 ; Wilson v. Church, 9 
 ib. 552 ; Berkeley v. Standard Dis. Co., C. A. , ubi supra. 
 
 (g) See per Mellish, L. J., 1 Ch. D. 173. 
 
 (r) Per Jessel, M.. R., 9 ib. 537 ; see Aiidersonv. Banko/Brit. Columbia, 2 
 Ch. D. 644, where the affidavit of documents was made by the Manager of the 
 Defendant's Bank and another officer. 
 
 (s) Per Wood, V.-C, L. R. 3 Eq. 732. 
 
 (<) M'Kewan v. Rolt, 4 H. & N. 738 (see Hall v. Connell, 3 Y & 
 707). 
 
 (m) Anderson v. Bank of Brit. Columbia, 2 Ch. D. 644. 
 
DISCOVERT FROM CORPORATIONS, ETC. 161 
 
 the secretary of a railway company (x), a director {y), ex- chap. x. 
 director {z), and the chairman (a) of a joint-stock company, ^^°*- ^- 
 and the official liquidator (&) of a company in process of 
 winding up have been pronounced proper persons to give 
 discovery. In one case a director of a joint-stock company 
 which had ceased to carry on business was ordered to pro- 
 duce documents belonging to the company, which were 
 admitted to be in his possession (c), and the public 
 officer of a joint-stock banking company has been held to 
 be still its representative for the purpose of giving discovery, 
 notwithstanding its dissolution (cZ). The solicitor upon the 
 record of a corporation, however, is not an officer who should 
 be called upon to give discovery (e), and it seems that a 
 member should not be directed to give the discovery where 
 there is an officer who has a competent knowledge of the 
 facts (/). Ordinarily, the secretary of a company is the proper Secretary of 
 person for the purpose {g), but a member Qi), or director may '=°™P^°y- 
 be selected instead, provided he has not an adverse interest 
 to the success of the company in the action {i), The officer or Officer or 
 member must be such at the time the order is made (Jc), but ^^^^eh at"^* 
 officers of a company do not cease so be so because a winding- time. 
 up order is made and and an official liquidator appointed {I), 
 and an officer will not be allowed to evade giving discovery by 
 resigning his situation after the action is commenced (m). 
 The ordinary practice is for the solicitor of the corporation Answer should 
 or company to act for the officer or member, and prepare goUcito-^f ^ 
 
 corporation. 
 
 {x) Beckervaise v. G. W. R., L. R. 6 C. P. 36. 
 
 {y) Latcharme v. Q,uartz, &c. Co., 1 H. & C. 134. 
 
 (z) Berkeley v. Stand. Disc. Co. (No. 1), 9 Ch. D. 643. 
 
 (a) Wilson y. Church, ib. 552. 
 
 lb) Welch Coll. Co. v. Gaskcll, 36 L. T. 352. 
 
 (c) iMcharme v. Quartu, d-c. Co. The Court considered him as virtually an 
 officer. 
 
 {d) Hall V. Connell, 3 Y. & C. 707. 
 
 (e) Brown v. Thames, (kc. Co., 43 L. J. C. P. 112. In Swansea Corpora- 
 tion V. Quirk, 5 C. P. D. 106, the solicitor gave the discovery in his capacity 
 of town clerk. 
 
 (/) See^«r Jessel, M. R., 13 Ch. D. 99. 
 
 (g) Berkeley v. Stand. Dis. Co. (No. 1), ubi sicpra ; Re Alexandra Palace 
 Co., 16 Ch. D. 68, 59 ; Manchester Paving Go. v. Slagg, XXVI. Sol. Journ. 
 
 599, 643. 
 
 (A) Berkeley v. Stand. Disc. Co. 
 
 ii) Manchester Paving Co. v. Slagg. 
 
 (k) Madrid Bank v. Bayley, L. R. 2 Q. B. S7 ; Ellwand v. M'Donnell, 8 
 
 Beav. 14. 
 
 (1) lb. In such a case the official liquidator might be ordered to give tha 
 discovery ( Welsh, &c. Coll. Co. v. Gaskell, supra), 
 (m) Acomb t. Landed Estates Co., 14 W. R. 387. 
 
 M 
 
162 
 
 LAW AND PRACTICE OP DISCOVEEY. 
 
 CHAP. X. 
 Sect. 1. 
 
 Officer or 
 member not 
 entitled to 
 costs of 
 answering. 
 
 Duty of officer, 
 etc. , to get 
 information. 
 
 Affidavit of 
 documents by 
 officer or 
 member. 
 
 his answer, charging the corporation or company with the 
 cost of so doing. The officer or member should not, as a 
 rule, put in his answer by a separate solicitor, and in no 
 case has he any right to withhold his answer until he has 
 been paid any costs which he may have incurred, such costs 
 being generally made costs in the action, and recoverable a:s 
 such by the company if successful (n). If an officer who is 
 also the solicitor of the public body is put forward by it to 
 answer, the privilege ordinarily attaching to professional 
 communications between solicitor and client is thereby 
 waived (o). 
 
 The interrogatories themselves will not be gone into upon 
 the application (oo) ; if any objection is afterwards taken to 
 them, it must be taken by the corporation or company, and 
 not by the officer (p). If the officers or members who are 
 ordered to give discovery should find themselves unable to 
 do so, it is not enough for them to state that fact without 
 stating the circumstances upon which the conclusion is 
 founded, as that may be a matter of law (q), and they are 
 liable to the usual consequences of a failure to comply with 
 the order (r) ; they must not only answer as to their individual 
 knowledge, but in answering for the company they must get 
 such information as they can from other servants of the com- 
 pany who have personally conducted the transaction in 
 question, and they cannot properly answer by saying that they 
 know nothing about the matter, when it is in their power to 
 obtain information from other servants of the company 
 who may have personal knowledge of the facts (s). If the 
 officer or member neglects or refuses to answer, application 
 should be made for an order against him requiring an 
 answer or further answer (t). 
 
 Similarly, in the case of application for an affidavit of docu- 
 ments, the affidavit may be directed to be made by the officer 
 
 («) See Berkeley v. Standard Disc. Co. (No. 2), C. A. 13 Ch. D 97 
 reversing the decision of Fry, J., S. 0. 12 ih. 295. " ' ' 
 
 (o) Swansea Corp. v. Quirk, 5 C. P. D. 106. 
 (oo) Berkeley v. Standard Disc. Co. (No. 1), 9 Ch. D. 643 ; S. C. (No. 2), 
 
 (p) Ih. 
 
 (q) Lacharme v. Quartx, &c. Co., 1 H. & C. 134. 
 
 (r) A.-G. V. Mercer's Co., 9 W. E. 83 ; see Button y. 8. E E W N 
 1868, 20. ' ''■ ■"• 
 
 (s) See per Cotton L J. 3 Q. B. D. 321, and the judgments of the LL. 
 JJ. in Anderson v. Bank of British Columbia, 2 Ch D 644 654 
 
 («) See Berkeley v. Stand. Disc. Co. (No. 2), 12 Ch. D. 295, IS ib. 97, 
 
DISCOVERY FROM FOREIGN STATES. 103 
 
 or member (u). The summons for the affidavit may specify chap. x. 
 the person by whom it is desired that the affidavit should be ^^°^- ^- 
 made (x), or the master or judge may name a person to make 
 it (y)> or make the order generally for an affidavit by one or 
 more officers or members (0). The officer or member, selected 
 to make the affidavit, if he has not himself charge of the docu- 
 ments, must state what his sources of knowledge and means 
 of information are, so as to enable the Court to see whether 
 he is the proper person to answer, and it is not sufficient for 
 him to state merely his belief that there are no other docu- 
 m.ents, as it may not be part of his duty to know anything 
 whatever on the subject (a). He should state all he knows 
 as to what has become of them (6), and he cannot escape an 
 order for production (i.e., discovery) on the ground that they 
 are not in his separate and private possession, but belong to 
 the corporation or other public body (c). He must show that 
 he has bond fide applied for leave to produce them, and been 
 refused (cZ). 
 
 It was formerly necessary, where a foreign sovereign or Discovery from 
 government sued in this country, for the defendant to file a officer of 
 cross-bill for discovery, naming some officer as a co-defendant 
 for the purpose of giving it ; the same procedure may now be 
 adopted, as in the case where discovery is sought from a cor- 
 poration (s), (the only difference being that the sole mode of 
 enforcing the discovery is by staying the proceedings) {t) ; 
 that is, the defendant may apply to the foreign state to name 
 some person from whom the discovery sought for may be 
 obtained, and if the state refuses to name a proper person for 
 that purpose, or the person so named makes default in giving 
 the discovery, the Court will be justified in staying the pro- 
 
 [u) Cooke V. Oceanic Steam Co., W. N. 1875, 220 : cf. Ranger v. O. W. R.; 
 4 De G. & J. 74, and Clinch v. Fin. Corp., L. R. 2 Eq. 271. 
 
 (x) V. ante, p. 160, as to the proper person to be selected. A form of 
 summons is given in the Appendix (post, p. 195). 
 
 (j/) Cooke T. Oceanic Steam Co. ; see Lacharme v. Quartz, Jjr. Co., 1 H. 
 & C. 134. 
 
 (z) See the form of order made in Sep. of Lihrria v. Royc, 1 App. Cas. 13fi, 
 140 ; s.c. nmn. Rep. of Liberia v. Lvji. Bank, h. R. 16 Eq. 179, 9 Ch. App. 
 569 ; and Ranger v. G. W. R., supra. 
 
 (a) See per Lord Hatherley in Rep. of Liberia v. Roye (H. L.), 1 App, Cas. 
 139, 146 ; per Lord Cairns, L. C, ib. 142. 
 
 (b) Ib. 
 
 (c) CliTich V. Fin. Corp., L. R. 2 Eq. 271 ; Glyn v. Caulfield, 3 Macn. & G. 463. 
 {d) A. G. V. Mercer's Co., 9 "W. R. 83. 
 
 is) Rep. Costa Rica v. Erlanger, C. A., 1 Ch. D. 171. 
 {t) Ih. ; aeeper Hall, V.-C, L. R. 20 Eq. 141. 
 
 M 2 
 
1641 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. X. ceedings until the defendant's demand is complied with (u), 
 
 ^^°*- ^- and in the last resort, dismissing the action, where the dis- 
 
 Action may fee regard of the order is pertinacious (x). In the case of a mere 
 
 discovery foreign corporation for trading purposes, as we have seen, the 
 
 giren. Court will assume that the secretary or other officers are under 
 
 its control, for the pui-pose of giving discovery on its behalf (j/), 
 
 but in the case of a body politic, it must be shown that it has 
 
 such an authority over the particular individual selected as to 
 
 be in a position to compel him to give discovery (z). If the 
 
 party seeking the discovery name an improper person for 
 
 that purpose, the action will not be stayed until he has given 
 
 it (a) ; the head of a foreign state is not, as a rule, a proper 
 
 person to select to give discovery on its behalf on grounds of 
 
 personal dignity (6). As a general rule, some person on the 
 
 spot, and not a mere representative of the foreign state or 
 
 corporation in this country, should be selected (c). 
 
 Sect. 2. 
 
 Eight of 
 plaintiff to 
 interrogate 
 defendant. 
 
 Sect. 2. — Discovery in Actions for the recovery of Land. 
 
 The right of a plaintiff in what is in substance an action 
 of ejectment on the title to discovery has recently been the 
 subject of much discussion {d). It was well established on 
 general principles of discovery, (adherence to which is of 
 peculiar importance in such cases, owing to the danger likely 
 to arise to a person in possession of property from being 
 compelled to disclose his title to it) {dx£), that he was not 
 entitled to enquire into the defendant's title or defence or 
 the character of his possession, however little information 
 might be given upon the point in the pleadings (e), but in a 
 
 (u) See XT. S. v. Wagner, L. R. 2 Ch. App. 582 ; Sep. of Liberia v. Imp. 
 Hank, ib. 16 Eq. 179 ; S. C. 9 Ch. App. 569 ; per Blackburn, J., 1 Ch. D. 
 174 ; JRepublic of Peru v. Weguelin, L. R. 20 Eq. 140. 
 
 {x) Prioleau v. U. S., L. R. 2 Eq. 659 ; J7. S. v. Wagner ; Mepublic of 
 Peru Y. Weguelin ; Rep. of Liberia v. Eoye, H. L., 1 App. Cas. 139. 
 
 {y) Ante, p. 160 (s). ' i-i- 
 
 (2) Per Wood, V.-C, L. R. 3 Eq. 732 ; Prioleau r. V. S., 2 ih. 659. 
 
 (a) Rep. Costa Rica v. Erlanger, C. A., 1 Ch. D. 171 
 
 (b) lb. ; Prioleau v. XI. S., supra. 
 
 (c) Republic of Liberia v. Roye (H. L.), mpra 
 
 (d) See Lyell v. Kennedy (H. L.), 52 L. J. Ch. 385, 8 App. Cas. 217, 
 reversing the decision of the C. A., reported 20 Ch D 448 
 
 (dd) V. post, p. 167. 
 
 (e) ^fSorton v.Bott, 2 H. & N. 249 ; BUad,y v. B., 10 L. R. (Ir.) 60 ; 
 Ord. XIX. r. 16. The right to withhold production of documents of title 
 even when pleadedt is expressly reserved to defendants fey Ord. XXXI r 1 4 
 {ante, p. 124). 
 
DISCOVEKT IX ACTIONS FOR THE RECOVERY OF LAND. 165 
 
 recent case (/) the Court of Appeal went further, and de- chap. x. 
 cided that the plaintiff was not entitled to any assistance ^^°*- ^- 
 from the Court by way of discovery, and consequently could 
 not interrogate the defendant at all, even with the object of 
 obtaining admissions in support of his own case, on the 
 ground, (1.) that no discovery would have been obtainable in 
 such a case in the Court of Chancery, and (2), that the Judi- 
 cature Acts (g) did not confer any right to administer inter- 
 rogatories in such a case (h). This decision, however, was 
 reversed upon appeal by the House of Lords (on the former 
 point only), where it was held that the plaintiff in ejectment 
 has, as he always had, the same right of discovery as the 
 plaintiff in any other action (i). 
 
 There is no rule that a defendant in such an action cannot 'Rigi^i of 
 interrogate the plaintiff (within the ordinary limits of dis- hiferrogate*'' 
 covery), btit, in accordance with the general rule, he is not plaintiff, 
 entitled to interrogate him as to the character or title in which, 
 the links through which, or the deeds under which, he claims (k), 
 except perhaps to the extent of ascertaining the nature of 
 his title, where the defendant is in the position of a stake- 
 holder (I), or as an equivalent for particulars (m). In the 
 Common Law Courts a distinction was made in this respect 
 in^favour of a defendant who had had long possession, who 
 was considered entitled to know the nature and character of 
 the case made against him, i.e. in what capacity the plaintiff 
 was claiming (there being no pleadings in ejectment) (n), 
 so as to prevent him from being taken by surprise. Now 
 
 (/) Lyell V, Kennedy, 20 Ch. D. 484. 
 
 (g) See Orel. XXXI. r. 1. 
 
 {h) The principle of the decision has been followed by a Difisional Court in 
 Hemmings v. Williamson, 31 W. E. 336, and the decision itself by Chitty, J., 
 in Ford v. Daniel, 47 L. T. 675 (reversed on appeal). The particular interro- 
 gatories disallowed in the principal case are not given but are stated to have 
 been directed to obtaining information in support of the pedigree of the 
 plaintiff 's predecessors in title. The plaintiff had also applied for production 
 of documents described by the defendant's affidavit as relating solely to the 
 defence of his own title, which was refused by Bacon, V.-C, and, on appeal, 
 by the same Court (20 Ch. D. 491). 
 
 (i) 52 L. J. Ch. 385, 8 App. Cas. 217 {v. ante, p. xxxiii.). 
 
 (k) Prov. Ass. Co. v. M'Inerheny, 18 W. R. 583, following Ingilby v. 
 Shafto, 33 Beav. 31. 
 
 (I) See Bellwood v. Wetherell, 1 Y. & C. 211, 216 seq.,per Lord Abinger, C.B. ; 
 per Blackburn, J., L. B. 7 Q. B. 242 ; W. pi. 379 seq. 
 
 (m) See Evelyn v. E. , 42 L. J. 248 ; ante, pp. 38 seq. 
 
 \n) Kettlewell v. Dysm,, 9 B. & S. 300 ; per Erie, C. J., 14 C. B. N. S. 211 ; 
 Pearson v. Turner, 16 ib. 157. See also Garle v. Pobinson, i Jur. W. S. 633 ; 
 and Bellwood v. Wetherell, supra, in Equity. 
 
166 
 
 LAW AND PEACTICE OF DISCOVERT. 
 
 CHAP. X. 
 Sect. 2. 
 
 Defendant 
 must make 
 affidavit of 
 documents, 
 and produce 
 those relating 
 to plaintiff's 
 title. 
 
 that actions for the recovery of land are placed upon the 
 same footing as regards the plaintiff's pleadings as other 
 actions (o), and the defendant can obtain inspection of the 
 documents referred to in those pleadings (p), the distinction 
 seems to he no longer maintainable. 
 
 The defendant, however, is liable to make an affidavit of 
 documents, or answer as to documents, there being no dif- 
 ference in this respect between such actions and ordinary 
 ones iq), and agreeably to the general rule, the plaintiff is 
 entitled to the production of all documents in the possession 
 or power of the defendant which are material to his case. 
 This was admitted in Lyell v. Kennedy (r), above cited, where 
 Lord Justice Brett said, " I do not say that * * * in no case 
 can a plaintiff in an action of ejectment ask for discovery of 
 documents. If he alleged that the defendant had possession 
 of his title-deeds, or of documents which supported his title, 
 and it luas not denied by the defendant (s) that they sup- 
 ported the plaintiff's title, the defendant ought to be com- 
 pelled to produce them. If, however, the defendant answers 
 on oath that the documents which are mentioned are docu- 
 ments which relate solely to his own title, I think that, in 
 ejectment at all events, that is a sufficient answer " {t) ; and 
 Jessel, M.E., said : " The utmost that the defendant could be 
 asked to produce would be the deeds or documents relating 
 to the plaintiff's title " (u). A party has a right to the 
 production of deeds sustaining his own title affirmatively, 
 but not of those which are not immediately connected with 
 the support of his own title, and which form part of his 
 adversary's. He cannot call for those which, instead of sup- 
 porting his title, defeat it, by entitling his adversary. Those 
 under which both claim he may have, or those under which 
 
 (o) Philipps V. P., (No. 1) 4 Q. B. D. 127 ; v. ib., as to what the statement 
 of claim in such a case should contain. 
 
 (p) V. ante, p. 122. 
 
 (q) Rumhold v. Forteatli (No. 1), 3 K. & J. 44 ; Qam v. Baicliff, 3 L. T. 
 363 ; New British Co. v. Peed, 3 C. P. D. 196 ; followed in Wrentmore v. 
 Hagley, 46 L. T. 741. See Lyell v. Kemiedy, H. L., 52 L. J. Ch. 385 ; 
 Daniel v. Ford, (C A.), W. N. 1883, 52. 
 
 (r) 20 Ch. D. 491. The application was for production of documents 
 disclosed by the affidavit of documents and alleged to relate solely to the 
 defence of the defendant's title. On appeal to the House of Lords, leave was 
 given to hie a fresh affidavit in support of the claim of nririlege 
 (u ante, p. xxxiv.). ^ ° 
 
 (s) On affidavit. 
 
 It) Ih. 492. See Bennett v. Glossop, 3 Ha. 578 ; W. pi. 203. 
 
 (i(.) Ib. See Dunn v. Ferrior, 18 W. R. 129. 
 
DISCOVERT IN ACTIONS FOR THE RECOVERY OF LAND. 167 
 
 he alone claims (x). Thus, an heir-at-law cannot, in that chap. x. 
 
 character, call for the general inspection of deeds in the pos- ^^°*- ^- , 
 
 session of a devisee (y), or of deeds anterior to the will (for ^ig^'* °* J'®''^- 
 
 his title does not depend upon documentary evidence), but production. 
 
 only of such as relate to or tend to show his own pedigree, 
 
 or what the parcels of the estate claimed are (z), the question 
 
 upon such an application being tvhat documents may assist 
 
 the heir in proving his heirship (a). On the other hand, a Of heir-in-tail. 
 
 party claiming as heir-in-tail is entitled to the production 
 
 of the deeds creating the entail, and also of those leading up 
 
 to its creation, because they are assumed to be the common 
 
 title of both parties, and of documents which will prove his 
 
 descent (b). 
 
 Before, however, an order ought to be made for the pro- Caution to 
 duction of any title-deeds under the control of a person who where defen- 
 is in the possession of land, when an attempt to get them is ^^^^ i" posses- 
 made by a person who has never been in possession, at least 
 the party applying ought to show some reasonable case 
 which he believes to be true, the production of title-deeds 
 obviously exposing a man to many dangers to which he 
 ought never to be made liable (c). A mere general allegation 
 in an affidavit that the defendant has in his possession docu- 
 ments relating to the property claimed, which would be 
 material evidence of the plaintiff's title, is not sufficient, 
 being denied, to found an order for production upon (d), and 
 an order for discovery will not be made before defence, unless 
 the Court is satisfied, upon the pleadings or by affidavit, that 
 the plaintiff has a reasonably well-founded cause of action (e). 
 The rule that a plaintiff in ejectment cannot obtain discovery 
 of the defendant's title-deeds depends on the circumstance 
 that, where claims to the same land in fee simple are made by 
 two different persons, they must be based on inconsistent 
 
 (x) Per Lord Brougham, L. C, 1 Myl. & K. 91 ; Lady Shaftesbury v. 
 Arrowsmith, 4 Ves. 70 ; see Bennett v. Glossop, 3 Ha. 578 ; Bumbold v. 
 Forteath (No. 2), 3 K. & J. 748. 
 
 {y) lb- 
 
 [z) Wright v. Vernon, 1 Drew. 344 ; JBennett v. Glossop, supra, 
 (a) See yer Wigrara, V.-C, 3 Ha. 581. 
 
 (J) See per Wood, V.-C, in Bwrnbold v. Forteath, 3 K. cfe J. 748, 750 ; 
 Wright v. Vernon, uU supra. 
 
 (c) See per Cotton, L. J., 4 Q. B. D. 140 ; per Jesse], M. R., 51 L. J. Ch. 
 411 ; per James, L. J., L. R. 7 Ch. App. 694 ; per Wood, V.-C, 
 3 K. & J. 750. ^ , , 
 
 (d) Philippsv. P., 27 W. R. 939 ; seeder James, L. J., ubi supra. 
 
 {e) lb. 
 
168 LAW AND PRACTICE OF DISCOVERY. 
 
 OHAF. X. titles ; it cannot therefore be applied to the case of a claim 
 ^^''*- ^- of a right to minerals by the lord against the tenant of a 
 manor where the defendant's right to the possession of the 
 surface is not disputed, but the plaintiff relies upon a reser- 
 vation of the minerals (/ ). 
 
 Sect. 3. — Discovery in actions on policies of marine 
 insurance. 
 
 Sect. 3. Long before the Judicature Acts, the peculiarity of in- 
 
 DiscoTery from surance business had given rise to a practice at common law 
 
 plaintiffs m ^f granting to insurers discovery to a larger extent than in 
 
 marine policies, ordinary business, and this ancient practice has not been 
 
 superseded by those Acts (g). The discovery given in such 
 
 cases is a very large, and, in some respects, exceptional 
 
 one Qi) ; for (1) no onus is thrown on the defendant seeking 
 
 the inspection of showing himself to be entitled to it, as in 
 
 ordinary cases, by affidavit or otherwise {i), and (2) discovery 
 
 may be required, not only from the plaintiff himself, but also 
 
 And all persons from all persons interested in the ship or cargo, the in- 
 
 mteres . surance, and the proceedings (k), by which is meant, persons 
 
 on the same side a^ the plaintiffs, the people who are 
 
 interested in the ship, freight, or cargo, and who are able to 
 
 give information (I). Thus, where the plaintiffs were bare 
 
 mortgagees, not in possession, of the vessel insured, an order 
 
 was made for an affidavit of documents by the mortgagor, who 
 
 had acted as managing owner, or his representatives, as 
 
 well as by the plaintiffs and all persons interested (m). It 
 
 seems, however, that if the plaintiff in such an action were to 
 
 make an affidavit that no other persons are so interested, his 
 
 (/) Fonsonby v. Hartley, LXXIV. Law Times, 208 (affirmed by the C. A., 
 on a different ground) ; v. ante, p. xxxix. 
 
 (g) Per Brett, L. J., in China Steam Co. v. Commercial Ass. Co., G.A., 
 8 Q. B. D. 142, 145 ; West of England Bank v. Canton Ins. Co., 2 Ex. D. 
 472. See Rayiter v. Bitson, 6 B. & S. 888, and Daniel v. Bond, 9 C. B. N. S. 
 716, 724 {a). The practice was not recognised in Chancery, where discovery 
 could only be obtained from the parties to the record. (See Qiteen of 
 Portugal v. Glynn, 7 CI. & F. 466 ; Manckester Fire Co. v. Wyhes, 33 
 xj, 1. 142<} 
 
 (h) See, as to the reason, per Cockburn, C. J., 35 L. J. Q. B. 61 
 
 (i) China, &c., Co., v. Commercial, <£-c., Co.; Rayner v. RUson, 35 
 Xj. J. '4^. Jj. oy. 
 
 {k) See the form of summons in such cases (post, p. 196) ; China &c Co. t 
 Commercial, &c., Co. ; West of England Bank v. Canton Ins. Co., suvra 
 
 {I) See per Jessel, M. R,, SOW. R. 225. " 
 
 .(/ft) West 0/ England Bank v. Canton Ins. Co., supra. 
 
DISCOVERT IN ACTIONS ON MARINE POLICIES. 
 
 169 
 
 own affidavit of documents would be sufficient (n). (3) In chap. x. 
 cases of this description the discovery given is not limited to ^^°*- ^- 
 matters relating strictly to the questions in dispute between Extent of right 
 the parties. " Nothing." said Lord Abinger in Janson v. *" '^^''"''"'^• 
 Solarte (o), " is more difficult to ascertain, and nothing more 
 dangerous to limit, than the right of underwriters to dis- 
 covery. It has been'considered, at all times and in all coun- 
 tries, that in cases of this nature the underwriters are entitled, 
 not only to a discovery of all the circuvxstances attending 
 the original contract, hut to the whole history of the adven- 
 ture and loss. Therefore it is very difficult, and, perhaps, 
 dangerous to limit the power of the underwriters in that 
 respect. * * * With respect to the entries in the books, 
 the general rule is, that the underwriter has a right to the 
 inspection of everything relating to the particular transac- 
 tion in disptite. If there be any doubt as to the purchase, 
 or the shipment, or the value of the goods, or on any question 
 as to false papers imposed on the underwriter, he has a right 
 to the inspection of the books of the assured in relation to 
 those individual matters, but not in relation to matters not 
 connected with the transaction." Where the insurance is 
 upon the ship alone, documents relating to the cargo may 
 nevertheless, be ordered to be produced, as they may be very 
 material, e.g., by showing that the voyage was illegal ( p) . 
 
 It may be made one of the terms of the order that there Stay of pro- 
 shall be a stay of proceedings until the discovery is granted, be^gj^ted^^ 
 evea when the order is for an affidavit by other persons than 
 the plaintiff, but he will be relieved against such a stringent 
 term, if he satisfy the Court tliat he has resorted to all 
 reasonable, lawful, and practicable means in his power to pro- 
 duce the papers or cause them to be produced, and that it is 
 absolutely impossible for him to comply with the order (g). 
 If the plaintiffs swear that they are the only persons in- 
 terested, or that they have tried to obtain documents from 
 the other parties interested and failed, that will be sufficient, 
 and their own affidavit of documents will suffice (r). A stay 
 
 («.) See China, <L-c. Co. v. Commerc. Ass. Co., C. A., 8 Q. B. D. 142. 
 
 (o) 2 Y. & C, 127, 136 seq. 
 
 (p) Per Brett, L. J., 8 Q. B. D. 146. 
 
 {q) China, <S:c. Co. v. Commercial Co. The plaintiff might enforce the 
 affidavit from such other parties under the C. L. P. Act, 1854, s. 48. 
 
 (r) Per Jessel, M. R., 45 L. T. 647; Went of England Bank v. Canton Co., 
 2 Ei. D. 472. 
 
170 LAW AND PRACTICE OF DISCOVEEY. 
 
 CHAP. X. of proceedings was refused where the plaintiff, who was the 
 ^^°^- ^- assignee of the cargo insured and of the policy, was required 
 to obtain an affidavit of documents from the assignor, who was 
 not a party to the action or within the jurisdiction of the 
 Court or under the plaintiff's control, there being no sugges- 
 tion of fraud (s). 
 
 Sect. 4. — Discovery in actions for infringement of 
 
 patents. 
 Sect. 4. Notwithstanding the statutory provisions for the delivery 
 
 Ordinary rules by the plaintiff in actions for the infringement of letters- 
 of discovery patent of particulars of the breaches complained of, and by 
 actions for the defendant of particulars of any objections to the validity 
 of^patenT"' °^ *^® patent on which he means to rely, under pain of being 
 precluded from giving any evidence thereof at the trial {t), 
 the ordinary rules of discovery apply to such actions (u), and 
 consequently, there is a right to deliver interrogatories by 
 the plaintiff or the defendant, with reference to those very 
 matters which ought to be covered by the particulars {uu). 
 Plaintiff Thus, in addition to the particulars of the place or places of 
 
 covery in lieu the alleged prior user of the patented article {x), the plain- 
 of particulars, tiff^ on making out a case for the discovery, may interrogate 
 the defendant as to the names and addresses of the persons 
 alleged to have used it, and also whether the machine in 
 question is still in existence {y). The above decision, however, 
 was given in an action in the Chancery Division, where it 
 is not the practice as a rule to order the delivery of particu- 
 lars, and it seems that in the Queen's Bench Division, at any 
 rate, the information should be obtained in the shape of 
 further and better particulars, except, perhaps, when it is 
 necessary to interrogate for other purposes (z). 
 
 (s) Fraser v. Burrows, 2 Q. B. D. 624 (see Queen of Portugal v. Glyn, 7 CI. 
 & Fin. 466). In this case the order was for an affidavit by the parties /or whom 
 the policy was effected, the object being to get discovery from the assignor who 
 was no longer a party interested (see the report in 46 L. J. B. 501") 
 
 (i!) See 15 & 16 Vict. o. 83, s. 41. ^ J 
 
 (u) Birch V. Mather, 22 Ch. D. 629 ; Finneaan v. James, L. R. 19 Eq. 72 ; 
 Grossley v. Tomey, 2 Ch. D. 633. -i ' 
 
 {uu) lb. 
 
 (x) See 15 & 16 Vict. u. 83, s. 41. 
 
 (y) Birch Y.Mather supra. In Daw v. Eky, 2 H. & M. 725, and BovillT. 
 Smith, L. R. 2 Eq. 459 (where similar discovery was refused), the statute does 
 not appear to have been referred to (seeder Malins, V -C 2 Ch D 539) 
 
 (z) r. arde, p. 36 (p). Such orders have in fact been made 'm numerous 
 
ACTIONS FOR INFRINGEMENT OF PATENTS. 171 
 
 The plaintiff is entitled to discovery of everything show- ohap. x. 
 ing, or merely tending to show, the fact of the infringe- ®®°*- *• 
 
 ment (a), and the defendant cannot by denying the infringe- D'scoveiy by 
 
 ^ P ^ . ,. •'^„, "V-r^ ^ plaintiff from 
 
 ment reiuse to give any discovery (b). He must answer defendant, 
 all questions directed to prove the fact of infringement, 
 although the effect of so doing may be incidentally to 
 reveal his own process or mode of manufacture (c). Thus, he 
 may be asked whether the articles manufactured or sold by 
 him are not substantially identical with those patented by 
 the plaintiff, or if not, in what particulars they differ there- 
 from, and by what method or process he manufactures 
 them (d), or whether he uses any of the ingredients men- 
 tioned in the specification, or any additional ones, and 
 whether the additional ones make any difference in the pro- 
 cess, though he is not compelled to disclose the nature and 
 quantities of the additions (e). Again, although a defendant 
 will not be compelled, as a rule, to disclose before the hear- 
 ing the names of his customers, yet he cannot refuse to do so 
 if the information might lead to important discoveries in 
 regard to the infringement of the patent by other persons (/) ; 
 thus, in a recent case, the shippers of goods which were 
 alleged to be stamped with a counterfeit of the plaintiff's 
 trade mark were compelled, in an action for discovery, to dis- 
 close the names of the consignors and consignees of the goods 
 with a view to taking proceedings against them, the plaintiffs 
 being unable to arrive at the information in any other 
 way (g). The Court will, however, protect the defendant Oppressive or 
 from any improper and unnecessary disclosure of his secret, jlsroverTnot 
 and will not enforce fi-om him an oppressive and inquisitorial enforced, 
 discovery (h). Thus, in a suit for infringing the plaintiff's 
 patent for preparing a colouring matter, alleged to be a com- 
 
 cases in the Court of Chancery under the Statute, e.g. in Flower v. Lloyd, 45 
 L. J. Ch. 746. 
 
 (a) See per Wood, V.-C, 3 K. & J. 391 ; Crosslry v. Stewart, 1 N. R. 426. 
 
 (d) See Eenard v. Levinstein, 10 L. T. 94 ; Foxwell v. Webster, 2 Dr. & 
 Sm. 250 ; ,S'.C. 4 De G. J. & S. 77. 
 
 (c) Ih. ; Howe v. M'Kernan, 30 Beav. 547. See Kelly v, Wijman, 20 
 L. T. 300. 
 
 (dC) CrossUy v. Tomey, 2 Ch. D. 533. 
 
 (e) Senard v. Levinstein, 3 N. R. 665 ; Howe v. M'Kernan, 30 Beav. 547. 
 (/) Crossley v. Stewart, 1 N. R. 426, distinguishing Lie la Bile t. Dickinson, 
 
 3 K. & J. 388. 
 
 (o) Orr V. Diaper, 4 Ch. D. 92. In Carver v. Pinto Leite, L. R. 7 Ch. App. 
 90, similar discovery was enforced. 
 
 {h) Per Wood, V.-C, 10 L. T. 94 ; see per Hall, V.-C, 4 Ch. D. 96. The 
 plaintiff may be expressly prohibited from making known the information 
 acquired by him {v. ante, p. 137, rj). 
 
172 
 
 LAW AND PRACTICE OF DISCOVERT. 
 
 CHAP. X. 
 Sect. 4. 
 
 Discovery of 
 instances of 
 prior user. 
 
 Postponing 
 discovery as 
 to account. 
 
 bination of substances A./B., C, and D., where the defendant 
 _ was required to state what quantities of those substances he 
 used in his business, the names and addresses of the persons 
 who supplied him with them, the manufactures of colouring 
 matter carried on by him during the last twelve months, and 
 all the substances which he had used in such manufacture, 
 the defendant, stating in his answer the quantities of sub- 
 stance A. used by him, but denying that he had used any of 
 the other substances, was excused from any further answer (i) : 
 and the defendant will not be compelled to disclose the nature 
 and quantities of ingredients used by him in addition to 
 those mentioned in the plaintiff's specification, though he 
 must say whether he does use any such additional ingredients 
 or not (k). 
 
 All that the statute in terms requires the defendant to 
 state in his particulars of prior user, and all that can be 
 required by the order for such particulars, is the place or 
 places where and the fnanner in which the prior user of the 
 invention is alleged to have taken place {I) ; but, by the 
 well-established practice in such cases the defendant is never- 
 theless bound to give full particulars, stating the names and 
 addresses of the persons by whom, and the dates at which, 
 such previous user is alleged to have taken place (m,). 
 The plaintiff is not entitled to obtain particulars of ob- 
 jections from the defendant before delivering particulars of 
 breaches (n). 
 
 In accordance with its general practice of enforcing a full 
 answer, where a defendant answered instead of putting in 
 a plea, the Court of Chancery at one time compelled a 
 defendant, even where the infringement was denied, to give 
 discovery by answer of profits made by the sale or use of the 
 article alleged to be an infringement, the names of cus- 
 tomers, &c., and other particulars of his trade (o), which 
 
 (i) Simpson v. Charlesworth, 14 L. T. 699. See Rolls v. Isaacs, W. N. 
 1878, 37. 
 
 (A) Renard v. Levinstein, 10 ib. 94. 
 
 (I) See Flower v. LUyd, 45 L. J. 746 {S.C. XX. Sol. Journ. 660). 
 
 (m) 76. See Birch v. Mather, 22 Ch. D. 629 ; Penn v. Bibby, L. R. 1 Eq. 
 648 ; Morgan v. Fuller (No. 2), 2 ib. 297. See as to amending particulars of, 
 or answers as to objections, per Jessel, M. R. L. R. 19 Eq. 73 ; Baw v. Eley, 
 1 ib. 38 ; Fenn y. Bibty, supra; and as to the sufficiency of such particulars or 
 answer, Morgan v. Fuller, supra ; Flower v. Lloyd, XX. Sol. Journ. 860 • 
 Plimpton V. Spiller, ib. 859. ' 
 
 (ji) Finnegan v. James, L. R. 19 Eq. 72. 
 
 (o) See Swinborne v. Nelson, 16 Beav. 416 ; Soue v. M'Kernan, 30 ib. 547 • 
 Crossley v. Stewart, 1 N. R. 426 ; ante, p. 27. ' 
 
ACTIOXS FOR IXFRINGEMENT OF PATENTS. 17J 
 
 could afford no assistance in determining the question of chap. x. 
 infringement, and which would be obtained as a matter of ^^°*- ^- 
 course under the decree, in the event of the plaintiff suc- 
 ceeding (p), but latterly the practice was so far modified as 
 to postpone discovery which assumed the fact of infringe- 
 ment until after the heai-ing {q). Accordingly, in an action 
 against shippers for exporting goods marked with what the 
 plaintiffs alleged to be their trade-mark, the infringement 
 being denied, discovery was refused before the trial of the 
 names and addresses of the manufacturers and purchasers of 
 the goods, and of the prices at which they had been bought 
 and sold, as being matters the discovery of which was not 
 likely to assist the plaintiffs in making out their case at the 
 hearing, and which might have been used in a manner 
 prejudicial to the defendants in their trade (r), and, 
 latterly, mere money accounts of profits, &c. were refused 
 before the hearing (s). Since the Judicature Acts, as we Discietionl 
 
 / \ , . 7 . . . . since Jud. 
 
 have already seen [ss), there is a discrenon as to requiring a Acts, 
 defendant to answer as to the result of an account before the 
 trial, especially as to an account of profits, as it would not 
 help the plaintiff to get a judgment, and it would be oppres- 
 sive to order it while his title is in dispute {t). Thus, where 
 the question in dispute was which of the two parties was 
 entitled to use a particular trade-name for their goods, the 
 Court refused to compel the plaintiffs to set forth the yearly 
 quantities of goods sold by them for a number of years 
 past (tt). But where the infringement is admitted, the de- 
 fendant cannot refuse to disclose the names and addresses 
 of persons to whom he has sold the patented article, on the 
 ground that they would thereby be exposed to legal pro- 
 ceedings (u). 
 
 After an account of profits or an inquiry as to damages After judg 
 
 ment for 
 
 {p) See per Wood, V.-C, 3 K. & J. 392. 
 
 (q) See De la Hue v. DickiTison, 3 K. & J. 388 ; Foxwell v. Webster, i De 
 G. J. & S. 77 ; Carver v Pinto Leite, L. R. 7 Ch. App. 90 ; per Lord 
 Hatherley, L. C, iib. 576. 
 
 (r) Carver v. Pinto Leite, supra (see on this case per Hall, V.-C, 4 Ch. D. 
 96) ; see Lea v. Saxby, 32 L. T. 731, and ffeuffh v. Garrett, ii h. J. Ch. 305. 
 
 (s) See De la Sue v. Dickinson, 3 K. & J. 388 ; per Lord Hatherley, L. C, 
 L. R. i Ch. App. 576. Distinguish Crossley v. Stewart, 1 N. R. 426. 
 
 ' (ss) V. ante, p. 28 ; Parker v. Wells, C. A., 18 Ch. D. 477 ; Benbowy. Low, 
 C A., 16 ib. 93, 98, per Jessel, M. R. 
 
 ' (t) See i^er Jessel, M. R., in Parker v. Wells, at p. 484, and as to such 
 accounts generally, ante, p. 31. 
 
 (tt) Benbow v. Lmo. 
 
 In) Tetley v. Boston, 18 C. B. 643 ; Murray v. Clayton, L. E. 15 Eq. 115. 
 
174 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. X. 
 
 Sect. 4. 
 
 account or 
 
 Eight of 
 
 defendant to 
 discovery from 
 plaintiff. 
 
 has been directed, the defeadant may be required to disclose 
 the names and addresses of all persons from whom he has 
 received sums of money in respect of royalties or licenses to 
 use the patented article (x), or the number of the patented 
 articles made or sold by him since the date of the patent, 
 together with the names and addresses of the purchasers (y). 
 In prosecuting such an inquiry, the plaintiff is entitled to 
 have from the defendant the fullest possible discovery {z), and 
 the discovery necessary for the taking of the account will be 
 granted, although an appeal against the judgment is pend- 
 ing {a). If a defendant who is charged with selling goods 
 impressed with the plaintiff's stamp has kept no account of 
 such sales, and is unable to say how many of such goods he 
 has sold, the plaintiff may require him to say to whom he 
 has sold those particular goods, and if he is unable to dis- 
 tinguish between the customers to whom he has sold goods 
 so marked and others not marked, then (but not otherwise) 
 to disclose the names of all his customers, to enable the 
 plaintiff to investigate the matter for himself (&). 
 
 The defendant is entitled to a full, fair, and distinct notice 
 of the case intended to be made against him (c), and may 
 interrogate the plaintiff as to the particulars of the infringe- 
 ment on which he relies (d). In such case the plaintiff may 
 answer by reference to the statement of breaches contained 
 in his pleadings (e). In support of the defence of want of 
 novelty, he may interrogate the plaintiff as to the inven- 
 tions described in the specifications of previous pa.tents, and 
 ask in what respect they differ from his ( / ), and generally, 
 may ask all questions which are fairly calculated to show 
 that the patent is not a good patent, or that what the 
 plaintiff alleges to be an infringement is not an infringe- 
 ment (g). In a case of this description, the case of the 
 
 (cc) Kerr on Injunctions, 437. 
 
 (y) Murray v. Clayton L. R. 15 Eq. 115 ; Saxiy v. Easterhroolc, ib. 7 Ex. 
 207 ; Leather Cloth Co. v. Hirsclifield, 1 H. & M. 295. 
 (j) See jo«r Bacon, V.-C, L. R. 15 Eq. 118. 
 (a) Sascby v. Basterhrook, L. E. 7 Ex. 207. 
 (6) See^^ej- Wood, V.-C, 1 H. & M. 297. 
 
 (c) BatUy v. Kynoclc (No. 2) L. E. 19 En. 229 ; Ncedham v. OxUv, 1 
 H. & M. 248. 
 
 (d) Hoffmann, v. Postill, L. R. 4 Ch. App. 673 
 
 (e) lb. 
 (f)Ib. 
 
 (g) Per Giffard, L. J., L. R. 4 Ch. App. 681. The nature and extent of the 
 discovery which the defendant may exact fi-om the plaintiff is shown in Penard 
 V. Levinstein (So. 2), 11 L. T. 79. 
 
ACTIONS FOE INFRINGEMENT OF PATENTS. 175 
 
 CHAP. X. 
 
 Sect. 4. 
 
 defendant is, that the plaintiff's patent is invalid, and every- 
 thing that is material to show that, is part of the defendant's 
 case, and he is entitled to discovery as to all matters of fact 
 which are or may be material to his case (h), though, in 
 accordance with the general rule, he is not entitled to a dis- 
 covery of the details of the plaintiff's evidence (hh). Thus, 
 where the plaintiff's case was that he had used the de- 
 fendants' trade-mai-k for his goods with the knowledge and 
 consent of their predecessors in title, the plaintiff was not 
 compelled to answer interrogatories as to the quantities of 
 such goods sold by him in each year (i). 
 
 The Court has also power, in such actions, at the instance Inspection of 
 of either party, to order an inspection, i.e., an inspection of j^^™;^"^!^ 
 the instrument or machinery manufactured or used by the 
 parties, with a view to evidence of infringement (not of 
 books or documents, the inspection of which is otherwise 
 provided for {ii},), and may give such directions respecting 
 such inspection as it may think fit (k), including the taking 
 of specimens or samples (l). 
 
 The foundation of the jurisdiction in such cases is the Not granted 
 necessity on the part of the applicant for the inspection for ^^ ™g^ i^^t" 
 the purpose of proving his case [IV), and though the Court of necessity must 
 Chancery showed greater readiness to allow inspection in 
 such cases than the courts of common law, it was never con- 
 sidered as a matter of right, but of discretion to be exercised 
 with regard to all the circumstances of the case (wi). Before 
 making the order the Court should be satisfied of two things ; 
 (1) that there really is a case to be tried at the hearing of 
 the cause, and (2) that the inspection is of material import- 
 ance to the party's case, as made out by his evidence {n). 
 
 It must be essential for the purpose of enabling him to 
 
 (h) Per Selwyn, L. J. L. K. 4 Ch. App. 679 ; see per Giffard, L. J., uhi 
 supra. 
 
 (hh) See Benlow v. Low, C. A., 16 Ch. D. 93 ; o. ante, p. 37. 
 
 (i) lb. 
 
 (ii) Vidi T. Smith, 3 E. & B. 969. 
 
 (k) 15 & 16 Vict. c. 83, s. 42. See, as to the mode of applying for such an 
 order, ante, p. 147, and for forms, post, p. 197. The order cannot be made in 
 respect of property situated in a foreign country (ib.). 
 
 m Russell V. Cowley, Webst. 457 ; Patent Type Co. v. Walter, John, 727 ; 
 Fhrver v. Lloyd, W. N. 1876, 169, 230 ; v. ante, p. 149. 
 
 (U) V. ante, p. 148. 
 
 (m) SeeiJer Giffard, V.-C, 19 L. T. 46. 
 
 (n) Ib. See also Amies v. Kelsey, 22 L. T. Q. B. 84, and Meadows v. Kirk- 
 rmn, 29 ib. Ex. 205 (at common law). 
 
176 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. X. 
 Sect. 4. 
 
 Time for 
 
 making 
 
 application. 
 
 prove liis case (o), and this necessity must appear upon the 
 , pleadings, or by affidavit (p). Thus, inspection will not be 
 granted of the defendant's works or machinery, where an 
 examination of the article itself alleged to be an infringement 
 would decide the question (q). The inspection will be strictly 
 limited to what the exigencies of the case require ; thus, the 
 alleged infringer will not be ordered to produce all the 
 machines in his stock of every kind, but to verify on affi- 
 davit the several kinds of machines sold or exposed for sale 
 by him, and to produce a specimen of each class for in- 
 spection (r). Inspection by an impartial expert may be 
 ordered instead of by the party himself, as being a rival in 
 trade (rr). Pending an appeal, the operation of the order 
 will be stayed, if its immediate enforcement would render it 
 nugatory (s). 
 
 The application may be made by" the plaintiff before 
 defence (ss), and it has been said, even before delivery of a 
 statement of claim, where such inspection is necessary for 
 the purposes of pleading (t), but in a later case the Court of 
 Exchequer, " without laying down any general rule," refused 
 an application for leave to interrogate before declaring (w). 
 It seems that the plaintiff is not entitled to discovery at that 
 stage merely because he is unable to deliver particulars of 
 breaches without it (x), but he will be allowed to amend his 
 particulars if desired, after obtaining it (y). 
 
 A defendant will not be allowed inspection of the pa- 
 tented article before defence, in order to enable him to give 
 particulars of his objections (0). The order may be made 
 after judgment (a). 
 
 (0) Batley v. Kyiwclc (No. 1), L. E. 19 Eq. 90. 
 
 Ip) See, as to what the affidavit should contain, Thomas v. Tillie, 17 Ir. 
 C. L. Rep. 783 ; Shaw 7. Bank of England, 22 L. J. Ex. 26. 
 
 (q) Batley y. Kynock, supra. 
 
 (r) Singer Go. y. Wilson, 12 L. T. 140. 
 
 {rr) Flower v. Lloyd, XX. S. J. 703 ; W. N. 1876, 169, 230. 
 
 (s) lb. 584, 703. 
 
 {ss) Thomas y. Tillie, 17 Ir. C. L. Rep. 783 (where it is stated that a similar 
 application was granted in the Courts here). 
 
 (i) Amies v. KeUey, 22 L. J. Q. B. 84, per Crompton, J. ; v. ante, p. 147 il). 
 The application must be supported by affidavit showing the necessity (t6.). 
 
 (m) Jones V. Piatt, 30 L. J. Ex. 365. See, however, Jonesv. Lee, 25 ii 241 
 
 (x) lb. 
 
 (y) lb- 
 
 (z) Crofts v. Peach, 2 Hodgs. 110 ; v. ante, p. 147 (m) 
 (a) Solland v. Fox, 3 E. & B. 977. '' 
 
CHAPTER XI. 
 
 MISCELLANEOUS. 
 
 Sect. 1. — Discovery in the Court of Appeal. 
 
 Hnt.ies 
 
 Sect, 1. 
 
 The Court of Appeal, as having " all the powers and duties °^^^- ^'^• 
 
 as to amendment and otherwise of the Court of First In- 
 stance " {a), has jurisdiction to order production of documents ^^^^^; ^^^ 
 before it at the hearing of the appeal (6) ; in such a case covery. 
 notice should be given to the party in whose possession they 
 are to produce them at the hearing, failing which applica- 
 tion may be then made to the Court by motion (c). 
 
 Sect. 2. — Discovery on references to arbitration. 
 
 The Court of Chancery would not grant discovery in aid of S^"*- ^- 
 proceedings before purely voluntary tribunals of the party's Discovery 
 own choosing, such as arbitrations {d), but, in the case of com- arbitration. 
 pulsm^y references by the Court itself, discovery was obtain- 
 able (e). In the case of references for inquiry and report 
 under the Judicature Act, 1873 (/), if discovery is needed, 
 application should be made (in the Queen's Bench Division) 
 at chambers in the ordinary way, or (in the Chancery Divi- 
 sion) to the Judge at chambers to whom the action is 
 attached, as official referees have no jurisdiction to order dis- 
 covery (g). Where the action has been referred for deci- 
 sion (^), the Court has no longer jurisdiction to order 
 
 (a) See Ord. LVIIL r. 5. 
 
 (b) Benyon v. Godden, C.A., W. N. 1877, 257 ; see In re Nat. Funds Ass. 
 Co., U W. R. 774. 
 
 (c) /*. 
 
 (cj) See He Angl. Austral. Bank, 10 L. T. 369. 
 (e) British Empire SUirpinrj Co. v. Somes, 3 K. & J. 433. 
 (/) F. ib.,s. 56. 
 
 (g) Dauvillier v. Myers, 17 Ch. D. 346, settling the question raised in Row- 
 cliffe V. Leigh, i Ch. D. 661. 
 (A) S. 57. 
 
 N 
 
178 
 
 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. XI. discovery, which should be provided for by the order of 
 ^^°*' ^- reference (i). 
 
 Sect. 3. — Discovery in lunacy. 
 
 Sect. 3. 
 
 Inspection of 
 the proceed- 
 ings in 
 lunacy. 
 
 Inspection of 
 title-deeds, 
 
 &c. 
 
 Priin& facie 
 title must be 
 shown. 
 
 According to the established practice in lunacy, no person 
 except the parties and those claiming under them may as of 
 right inspect the proceedings in lunacy. To entitle any 
 other persons to such inspection a case must be made out to 
 the satisfaction of the Court {k). 
 
 As between rival claimants to the estate of the lunatic, 
 each of them is entitled, on showing a primA facie title to 
 the estate, to access to the title-deeds and other documents 
 relating to such estate, which have been deposited with the 
 master or registrar in lunacy, for the purpose of establishing 
 his claim (Z), and if successful therein to have them de- 
 livered out to him (m). 
 
 It is not enough to swear that the production of them is 
 necessary for the establishment of the applicant's case, but 
 a prima facie title to the estate must be shown (n). The 
 Court requires priTnd facie evidence of an interest in 
 the documents, because they ought not to be open to the 
 inspection of strangers, who have no shadow of interest in 
 them ; but any primA fa^ie case which makes it reasonably 
 probable that the documents may contain something to 
 support the applicant's case is sufficient (o). Thus, in- 
 spection of documents relating to the lunatic's pedigree 
 and estate Was allowed to a person claiming to be his 
 heir-at-law, although it was sworn on the other side, 
 and not contradicted, that the estate had descended to the 
 lunatic from his mother, and that the applicant was no 
 relation to the mother, on the ground that the documents 
 
 (0 Fenrice v. Williams, 31 "W. E. 496 ; semhle, an action for discovery 
 would lie ( V. anU, p. 3). 
 
 (fc) Be Smyth, C. A. (No. 1), 15 Ch. D. 286 ; re "Wood, 4 De G. J. &S. 134. 
 See Tyas v. Brown, 42 L. T. 501 ; Vvman v. LUtU, Ixxv. L. T. 108. 
 
 (I) See re Ferrior, L. R. 3 Ch. App. 175 ; re Smyth (No. 1), supra, ; re 
 Smyth (No. 2), 16 Ch. D. 673 ; Ex parte Clarke, Jac. 589. 
 
 (m) See re Pearson, 1 Coop. Pr. Cas. 314. 
 
 (») Be Smyth (No. 1) ; re Wood, supra. 
 
 (o) Per Cotton, L, J., in re Smyth (No. 2.), C. A., 16 Ch. D. 673, 674. 
 
MISCELLANEOUS. I79 
 
 might, nevertheless, contain something to show that the chap. xi. 
 descent ought to be traced from the lunatic himself (p). ^°°^- ^- 
 
 Upon the application of the next-of-kin of a lunatic for inspection 
 the inspection of securities deposited by him with a third soUckor?^ 
 person, in order to obtain the Master's report as to the lunatic's 
 property and the appointment of a committee, the Court 
 ordered that the Official Solicitor in Lunacy should inspect 
 and schedule them (q). 
 
 Application must be made by petition to the Lord Chancellor Application to 
 or the Judges for the time being intrusted with the care and ^gt^f^n* ^^ 
 commitment of the custody of lunatics and their estates (r), 
 and must be supported by an affidavit verifying the petitioner's 
 title to the lunatic's estate (s), which may be made either by 
 the petitioner himself or by his solicitor (t). Liberty to 
 take copies or extracts of the documents may be refused, or 
 reserved for a further application (w). 
 
 Sect. 4. — Discovery in election petitions. 
 In a parliamentary election petition, neither the Court nor Sect. 4. 
 
 a Judge at Chambers has power to order interrogatories to be No discovery 
 administered to, or discovery of documents to be given by from sitting 
 
 TflATTbnRT* 
 
 a sitting member (x), under ss. 2 and 26 of the Parliamen- 
 tary Elections Act, 1868 (y), or the 44th rule of Michaelmas 
 Term, 1868, as the principle, practice, and rules on which 
 committees of the House of Commons have heretofore acted 
 in dealing with election petitions (z) (where discovery from 
 the sitting member was a thing unheard of), are to be ob- 
 served by the Court and Judge in the case of election 
 petitions under the Act, unless and until altered by any 
 rules made thereunder (a). The early cases, therefore, in 
 
 (y) lb. Similar inspection had been previously allowed to the rival 
 claimant ex parte maternd {re Smyth, Na 1. 15 ib. 286). 
 
 (?) Re Campbell, C. A., 13 Ch. D. 323. 
 
 (r) See Jud. Act, 187S, s. 7. Such applications have been recently made to 
 the division of the Court of Appeal which hears appeals from the Chancery 
 Division. 
 
 (s) See re Smyth (No. 1), 15 Ch. D. 286 ; re Wood, 4 De G. J. &. S. 134. 
 
 {t) V. ib. 
 
 (u) See Sx parte Clarke, Jac. 589 ; re Ferrior, L. R. 4 Ch. App. 175. 
 (x) Wells V. Wren (Wallingford Election petition), 5 C. P. D. 546 ; Moore 
 V. Kenrucrd (Salisbury petition), 10 Q. B. D. 290. 
 (y) 31 & 32 Vict. c. 126. 
 (2) Ib. a. 26. 
 (a) Ib. =. 25. 
 ^ ' K 2 
 
180 
 
 LAW AND PRACTICE OF DISCOVEET. 
 
 CHAP. XI. 
 
 Sect. 4. 
 
 Discovery 
 under Ballot 
 Act, 1872. 
 
 Not granted 
 as matter of 
 course. 
 
 which such discovery was ordered, are no longer law (6), 
 the attention of the Judges who decided them not having 
 been drawn to s. 26 of the Act (c). 
 
 Under the Ballot Act, 1872 (35 & 36 Vict. c. 33), 
 sched. I., rs. 40 and 41, inspection may be obtained by the 
 petitioner, from the Clerk of the Crown in Chancery, of 
 ballot-papers and counterfoils, relating to the election, on 
 satisfying the Court or Judge (at Chambers) (d) by affidavit 
 that such inspection is required for the purpose of the peti- 
 tion impeaching the election (e). The object of the Act 
 was to preserve secrecy as to the way in which an 
 elector has voted, and some special ground must be 
 shown for violating this secrecy (/). It is not enough 
 that inspection is asked for. The Coiu't must be satisfied 
 by evidence on oath that it is reasonably and bond 
 fide required for that purpose. The grounds alleged for 
 requiring it must be looked at (g). Accordingly, inspection 
 of the ballot-papers and counterfoils will not be granted for 
 the purpose of showing the persons who voted, where the same 
 information would be afforded by the marked register of 
 voters (without the same risk of disclosure of how they 
 voted), whch is open to public inspection under s. 42 (K). 
 
 But where it was alleged that the returning officer had 
 wrongly rejected certain ballot-papers, upon grounds appa- 
 rent on the face of them, inspection was ordered, as being 
 absolutely necessary to enable the petitioner to prosecute 
 his case (i). The clerk who has the custody of the documents 
 relating to the election cannot refuse inspection of any of 
 those which are made publici juris by the above section, 
 on the ground that they are sealed up in one package with 
 documents for the inspection of which an order is neces- 
 
 (J) The Coventry Pettiion, 19 L. T. 742 : the Staffordshire Petition, 20 ib. 
 237 ; the JBewdley Case (not reported). 
 
 (c) JVells V. Wren, supra. In this case the Court (Lord Coleridge, C. J. 
 and Grove, J.), expressed a doubt whether the election Judges could make a 
 rule for discovery. 
 
 (d) I.e., a. Divisional Court of the Queen's Bench Division, or one of the 
 I'udges upon the election rota, or an ordinary iudge at chambers (see r. 44 of 
 Mich, term, 1868). 
 
 (e) See Stowe v. JoUiffe, L. R. 9 C. P. 446 ; the Tyrone Election Petition, 
 Ir. Pep. 7 C. L. 190. A form of summons is given in 43 L. J. C. P. 174. 
 
 (/) Stowe V. JoUiffe. 
 (g) Per Denman, J., ib. 459. 
 (A) Stowe V. JoUiffe, supra. 
 
 (i) The Tyrone Election Petition, Ir. L. E, 7 C. L. 190. See a form of order 
 il. 192. 
 
MISCELLANEOUS. lyi 
 
 sary (k), and he may be compelled to produce them by a chap. xi. 
 mandamus or a simple rule of Court. ^^°^' ^- 
 
 It seems that the application should not be made before Semlle, not 
 presentation of the petition (m), as the inspection was not petition. 
 intended to enable the applicant to fish for a case, but only 
 to enable him to prove a bond fide case {n). 
 
 {k) Stowe V. Jolliffe, L. E. 9 C. P. 446. 
 
 (m) Manchester Election Petition, 54 Law Times, 53. 
 
 (m) lb. 
 
CHAPTER XII. 
 
 COSTS. 
 
 CHAP. XII. 
 
 Costs of action 
 for discovery 
 only. 
 
 Costs of 
 
 interlocutory 
 
 discovery. 
 
 Costs of inter- 
 rogatories and 
 answers. 
 
 The rule in Chancery was, that a plaintiff seeking dis- 
 covery only always paid the costs of it (a), the defendant 
 upon putting in a sufficient answer being entitled to receive 
 his costs by an order of course at the Rolls (b). Similarly, 
 persons, who are made defendants to an action for the purpose 
 of discovery only (c), on putting in sufficient answers, are en- 
 titled to be dismissed from the action with costs (d). 
 
 Under the present practice, the costs of and incident to 
 all proceedings in the High Cov/rt, including applications for 
 discovery, the order made thereon, and of the answer, ex- 
 amination, inspection, or other discovery which is conse- 
 quent upon that order, are in the discretion of the Court 
 (including a Judge or Master), and may either be dealt with 
 at the time or be reserved until the hearing (e). If not so 
 dealt with, they are in the discretion of the Judge at the 
 trial, unless in the case of actions tried by a jury, when they 
 follow the event, unless otherwise ordered (/), and being 
 discretionary, no appeal lies from an order as to such costs, 
 except by leave of the Judge who makes it (g). 
 
 The costs of interrogatories and the answers thereto 
 are usually treated on taxation as part of the " costs in the 
 cause,'* which follow the event {h), and this is the case with 
 the costs of the discovery given by an officer or member on 
 
 (a) See Dan. 1411 ; Morgan's Law of Costs, pp. 214 seq. 
 lb) lb. 
 
 (c) V. ante, p. 11. 
 
 (d) SuU V. West Londm School Board, 34 L. T. 674. 
 
 (e) Ord. LV. ; Abud v. Riches, 2 Ch. D. 528 ; Vicary v. G. N. B., 9 Q, B. 
 D. 168 ; Mitchell V. Barley Coll. Co., 10 ib. 457. 
 
 (/) Ord. LV. 
 
 Ql) Jud. Act, 1873, s. 49 ; Mitchell v. Darley Coll. Co., ubi supra. 
 
 (h) See Baines v. Bromley, 6 Q. B. D. 197, 200. 
 
COSTS. 183 
 
 behalf of a corporation or company (i). The Court may, chap. xii. 
 
 however, in adjusting the costs of the action, at the instance 
 
 of either party, inquire or cause inquiry to be made into the 
 
 propriety of exhibiting the interrogatories, and if it is the 
 
 opinion of the taxing-master or of the Court or Judge that 
 
 such interrogatories have been exhibited unreasonably, 
 
 veooatiously, on- at improper length, the costs occasioned by 
 
 the interrogatories and the answers thereto are to be borne 
 
 by the party at fault {k). Thus, the costs of a further 
 
 answer, unnecessarily and vexatiously required, have been 
 
 ordered to be paid by the plaintiff {I). Again, the Judge 
 
 before whom the action is tried, or a divisional Court, has 
 
 power under Order LV. to order that any particular costs 
 
 shall not follow the event of the action, and to allow them 
 
 to the unsuccessful party, so that, although the costs of 
 
 interrogatories administered in the action and answers, as 
 
 a rule, follow the event, a party who succeeds by means of 
 
 them in establishing his claim to a substantial amount, 
 
 though unsuccessful in the main result, might be allowed 
 
 the costs of them (m). In the Common Law Courts, the 
 
 costs of administering interrogatories have been disallowed 
 
 where the answer had not been used at the trial {n), but 
 
 in a Chancei-y case, the cost of interrogatories which, though 
 
 prepared, were not filed in order to save expense, were 
 
 allowed on taxation (o). 
 
 The general rule is, that whenever a party has by his own Costs of 
 fault, however venial, occasioned expense, he must pay the applications 
 costs {p) ; accordingly, the costs of an application for leave to interrogate. 
 deliver interrogatories, where the time for doing so of right 
 has been suffered to elapse, may be ordered to be paid by 
 the applicant {q). 
 
 The costs of applications to strike out interrogatories as Costs of 
 scandalous or to expunge scandalous matter from answers or i^p^rtinent'"^ 
 affidavits, or to take off the file irregular or evasive answers or matter. 
 
 H) Berkeley v. Standard Discount Co., C. A., 13 Ch. D. 97. 
 
 (k) Ord. XXXI. r. 2, cf. Rules S. C. 1875 (costs), Ord. VI. r. 18. 
 
 (l) Cocks v. StanUy, 6 W. K. 45. 
 
 (m) See Barnes v. Brmn,ley, 6 Q. B. D. 197, 200, per Pollock, B. 
 
 {n) Bidkyr. Sutton, 1 H. & C. 741. 
 
 (o) Dairies v. Marshall, 1 Dr. & Sm. 664. 
 
 (p) Per Kindersley, V. C, in Dakins v. Garratt, i Jur. N. S. 579. See 
 Ahod V. Riches, 2 Ch. D. 528. 
 
 \q) lb. But see London, etc., Ins. Co. v. Davies, 5 Ch. D. 775, where they 
 ■were made costs in the cause. 
 
184 LAW AND PRACTICE OF DISCOVERY. 
 
 CHAP. XII. prolix and impertinent affidavits of documents, must be paid 
 by the party in fault ; in the former case, costs are allowed 
 as between solicitor and client (r), even in cases between 
 husband and wife (s). The usual form of order is for the 
 payment of the costs " of and incident to " the answer or 
 affidavit and of the application {t), which include the costs of 
 taking a copy of the objectionable document (u). 
 Costs of The costs of putting in separate answers will not be 
 
 answer. allowed, where there is no justification for such a course, e.g., 
 
 in the case of partners who are sued as such and interrogated 
 as to their joint transactions (a;), and the officer or member 
 of a corporation or company, who gives discovery on its 
 behalf, should not put in his answer by a separate solicitor, 
 but should act by the solicitor of the corporation or com- 
 pany {y). 
 Application The costs of, and incidental to applications for an answer 
 
 for answer, ^j. fyjfcjjer answer are in the discretion of the Court or 
 
 or further 
 
 answer. Judge, and should be provided for by the order made thereon 
 
 (see Order LV.), or, semble, applied for subsequently (a), as, 
 otherwise, they cannot be recovered as ''costs in the 
 CoBtsoffurther cause" (a). The rule as to the costs of further answers or 
 answer. examinations has already been given (6). They may be 
 
 ordered to be paid immediately, and it is said to be highly 
 important for keeping the business of the Court regular, 
 that such costs should be finally disposed of at once (c) ; in 
 the Queen's Bench Division, it is usual to make them costs 
 of the successful party "in any event " {d). In the Court 
 of Chancery, where the defendant submitted to exceptions for 
 insuffjciency (the modern substitute for which is a written 
 statement of the answers objected to as insufficient), before 
 they were set down for hearing, he bad to pay the plaintiff 
 20s. costs (e). 
 
 (r) Christie v. C, L. K. 8 Ch. App. in. 
 {s) Pearse v. P., 29 L. T. 453. 
 it) See Walker v. Poole, 21 Ch. D. 835. 
 (u) Read v. Barton, 3 K. & J. 166. 
 
 {x) Bull V. IVest London School Board, Zi L. T. 674 ; Consol. Ord XL 
 r. 12. 
 
 iy) Berkeley v. Standard Co., C. A., 13 Oh. D. 97. 
 
 (s) See Belts v. Riinell, W. N. 1866, 22 ; Abud v. Hiches, 2 Ch. D. 528. 
 
 (as) F. ante, p. 100. 
 
 (J) V. ante, p. 101. 
 
 (c) See Thoinas v. Bawling (No. 2), 27 Beav. 375, Romilly, M. R. : Ord. XL. 
 r. 12. 
 
 (d) See Vicary v. G. N. E., 9 Q. B. D. 168. 
 
 (e) Ch. Consol. Ord. XL. r. 13. 
 
COSTS. 185 
 
 The costs of making the affidavit of documents are in- chap. xii. 
 variably treated as costs in the action (/), unless it is other- costs of 
 ■wise provided by the order directing the affidavit to be made. Affidavits of 
 The costs, however, of any unnecessary matter contained in 
 such an affidavit, or of any improper length in the affidavit, 
 may be disallowed at the hearing of the case or on taxa- 
 tion (^r). 
 
 According to the practice of the Court of Chancery, the Costs of 
 party producing was not entitled to his solicitor's costs of the ^^° "'^ '""' 
 production as costs in the cause (/i), whether made at the 
 Record and Writ Clerk's Office or at the office of his own 
 solicitor (which was merely a matter of indulgence and con- 
 venience granted him), while in the Common Law Courts 
 where the practice of ordering production at a public office 
 was (as before stated) unknown, the costs of produc- 
 tion at the solicitor's office were allowed, such production 
 being a matter of right not of favour (i). Probably, some 
 new rule will be framed to render the practice uniform as 
 to the place, and consequently the costs, of production in all 
 divisions, and production will be directed in all cases to be 
 made either at the central office or at a district registry 
 as the case may be (k). The schedule of costs in the Rules 
 of the Supreme Court, June, 1875 (costs), contains no allow- 
 ance for attendances either on inspecting documents or pro- 
 ducing them for inspection, except where such inspection 
 or production takes place under Ord. XXXI. r. 14 (l), and 
 no costs are to be allowed of such notice or inspection 
 imless good and sufficient reasons for giving such notice and 
 making such inspection can be shewn (m). 
 
 The costs of inspection are within the discretion of the Court Costs of 
 or Judge making the order therefor (n), but if not provided for ^'^^v'^'=^^°^. 
 therein, the inspecting party cannot recover them, or the costs 
 of taking copies, from his adversary as costs in the cause, it 
 not having been the practice to allow such costs in the Court 
 
 ( /) Ks. S. C. Apr. 1880, Sched. Form H. 14. 
 
 (a) Jb. 1875, Ord. VI. r. 18. 
 
 (I) Brovm v. Sewell, C. A., 16 Ch. D. 517, 
 
 (k) Sea per 3e&se\ M.R., ib. 519, and i^er Lush, L.J., i5. 521. 
 
 (I) F. a»<e, pp.122, sej. ^ > ik 
 
 (m) lb., Ord. VI. (Special Allowances, etc.) r- 15- 
 
 ) ■: Q J LV Under exceptional cu-cumstances, the costs might be made 
 costs in the cause, or of one or other of the parties in any event (see per Brett, 
 L. J.,L. R. 7C. P. 355). 
 
186 LAW AND PEACTICE OF DISCOVERY. 
 
 CHAP. XII. of Chancery (o), and there being nothing in the Judicature 
 Acts to alter the practice ( p), except -where the inspection 
 takes place under Order XXXI. r. 14 (g). The expenses of 
 an accountant or other special agent employed to make 
 such inspection may, however, be recovered by the party 
 employing him, if successful, as expenses for qualifying a 
 Cost of witness to give evidence (r). The costs of the application for 
 
 fn^eSion" °^ ^^ Order for inspection are usually treated as costs in the 
 cause (s) ; the applicant may, however, even though suc- 
 cessful, be ordered to pay the costs, unless he has previously 
 Inspection of applied for inspection and been refused {t). The costs of 
 proper y. inspection of property are in the discretion of the Judge and 
 
 must be provided for by the order, as otherwise they cannot 
 be recovered by either party {u). They are usually ordered 
 to be paid by the inspecting party (a;). 
 Applications The costs of applications for an extension of time for an- 
 for extension of g-yygring Or taking any other proceedings are in the discre- 
 tion of the taxing-master, in the absence of an order by the 
 Court or a Judge directing by whom they are to be paid {y). 
 In practice, the costs of one such application are usually 
 allowed as costs in the cause {z). 
 
 Where the application is made justifiably and bona fide, 
 the apphcant is entitled to the costs of the application, even 
 though the writ is not actually issued {a). If briefs are 
 delivered prematurely by the applicant, the costs of them 
 Applications will be disallowed (6). The costs of writs of attachment 
 ac men . ^^^^ ^^ ^^ have seen, in the discretion of the Court, and 
 should be asked for on the application for the issue of the 
 writ (c). 
 
 (o) See Flockton v. Peake (No. 2), 12 "W. E. 1023. In the Common Law 
 Courts, the inveterate rule was that the applicant paid the costs of the inspec- 
 tion (Eepublic of Peru v. Weguelin, L. E. 7 C. P. 352), though the costs of 
 the application were usually made costs in the cause (ib). 
 
 (p) Brown v. Sewell, C. A., 16 Ch. D. 517. The statutory form of order 
 for inspection contains no direction upon the point. 
 
 (q) V. ante, p. 185. 
 
 (r) Es. S. C, June, 1875 (costs), Ord. VI. r. 8 : Machley v. Chillingworth, 
 2 C. P. D. 273 ; TurnbuU v. Jansoji, 3 ib. 264. 
 
 (s) V. mite. 
 
 (t) See The Memphis, L. E. 3 A. & E. 23. 
 
 (m) See Mitchell v. Barley Coll. Co., 10 Q. B. D. 457. 
 
 (a;) Ih. ; ante, p. 148. 
 
 (y) Es. April, 1880, r. 65. 
 
 (z) Cf Es. S. C. (costs) 1875, Orf VI. r. 22, annulled by the previous rule. 
 
 (a) Thoims v. Palin, C. A., 21 Ch. D. 360 
 
 (V) Ib. 
 
 (c) Abud V. Riches, 2 Ch. D, 528 ; a/nte, p. 155. 
 
COSTS. 187 
 
 Appeals to the Court of Appeal upon interlocutory matters, chap. xii. 
 sucli as questions of discovery, are entertained only as to ^ 
 
 matters of principle, unless where the Court below has not appeals to C. A. 
 been unanimous {d), and in a recent case, in order to dis- 
 courage, as was said, such appeals, and also because the 
 appellant was not wholly successful, the Court gave no costs 
 of the appeal (e). 
 
 {d) See per Cur. EacU v. Jacobs, i1 L. J. Ex. 74. 
 (6) lb. 
 
APPENDIX. 
 
 Inteeeogatoeies. 
 
 In tte High Court of Justice. " °" • j^pp?^^^ 
 
 Division. 
 Between A. B. Plaintiff, 
 
 and 
 C. D. Defendant. 
 
 Interrogatories [or further interrogatories] exhibited on behalf of Inten-oga- 
 
 the for the examination of the [delivered pursuant to order tories. 
 
 dated the ]. 
 
 1. Did not, &c. 
 
 2. Has not, &c., &c. 
 
 [^Add if necessary.'^ 
 
 The is required to answer the interrogatories numbered 
 
 and the is required to answer the interrogatories num- 
 bered (a). 
 
 Delivered, &c. 
 
 Interrogatory as to execution of a document. 
 
 Was not a deed of the nature set forth in the paragraph of the 
 
 statement of claim duly executed by and between the parties therein 
 stated, or some or one and which of them, and does not the said deed 
 bear the date, and is it not to the purport or effect therein set out, or of 
 some and what other date, or to some and what other purport and 
 effect ? (aa) [If you desire to inspect the said deed before answering, 
 you are at liberty to do so.] (i) 
 
 As to contents of a document. 
 
 Look at the document annexed hereto, marked and purporting 
 
 to be a copy of [^describe document] the original of which shall be pro- 
 duced to you if desired {Ih), and say whether the said [document] vras 
 
 (a) This note is only necessary where there is more than one plaintiff or defen- 
 dant (see lA/nch v. Lecesne, 1 Ha. 626). 
 
 {aa) See Dan. 306. 
 
 (6) This should be added if the document is in the interrogating party's posses- 
 sion or power (V. ante, p. 83). 
 
 (hi) V. supra. 
 
190 
 
 Appendix. 
 
 Answer. 
 
 APPENDIX. 
 
 not written or signed by you or by your authority or with your 
 knowledge and consent. 
 
 Another form. 
 
 State whether you wrote and sent any letter or letters to , and 
 
 if so, when, making the statements contained in the paragraph 
 
 of the statement of claim [or, hereinafter set out and marked 
 
 ], or any and which of them, or any and which part of any and 
 
 which of the said statements, or to the same and what purport and 
 effect as the said statements, or any and which of them, or any and 
 which part of any and which of them. Set out as fully as you 
 can also what your said statement or statements were, and if you 
 have a copy or copies of any such letters, make a copy thereof an ex- 
 hibit to your answer (c). 
 
 Answer to Interrogatories. 
 [Formal part as in preceding form.] 
 
 The answer [or, further answer] of the to the interrogatories 
 
 [or the further interrogatories] exhibited for his examination by 
 the^ 
 
 In answer [or, further answer] to the said interrogatories, I 
 
 the make oath and say [or, do solemnly and sincerely declare and 
 
 affirm] (cc) as follows : — 
 
 1. To the 1st iuterrogatoiy I say that, &c., &c. {d). 
 
 Sworn [or, affirmed], &c. 
 
 Filed &0. 
 
 Scandal. 
 
 Irrelevancy. 
 
 Not put bond 
 fide. 
 
 Not imme- 
 diately 
 material. 
 
 Party's own 
 case only. 
 
 Objections to answer Interrogatories. 
 
 [Except as aforesaid] I object to answer the interrogatory [or as 
 
 the case may 6e] on the ground that it is scandalous, or, that the matters 
 therein inquired into are irrelevant and immaterial to the matters in 
 question in this action, and would not in any way prove or assist the 
 case of the [party interrogating'], or, that it is not put land fide for the 
 purpose of obtaining discovery in this action, but for the purpose of 
 [state the circumstances], or, that the discovery sought is not sufficiently 
 material at this stage of the action, and is not necessary for the trial 
 
 thereof, [and that the is not entitled thereto until he has 
 
 obtained judgment in his favour], or, that the right thereto depends 
 upon the determination of the issue, whether [state particular issue or 
 question in dispute'], or, that it is desirable that the issue or question 
 whether &c., should be decided before determining upon the right to 
 such discovery (e), or, that the matters therein inquired into relate 
 solely to the case made by me and do not in any way advance or tend 
 
 to advance the case of the [party interrogating], or, that it relates 
 
 to matters of law only, or, that the matters inquired into are matters 
 
 (c) See Dalrymple v. Leslie, 8 Q.B. D. 5. 
 
 Ice) r. ante, p. 77, and Consol. Ord. (prelim.) r. 10 (6). It ehonld be stated 
 to what denomination the party belongs or belonged. 
 
 (d) Jud. Act, 1875, Sched. 1, App. B. Form 8. 
 
 (e) See Ord. XXXI. r. 19. Other forms of this objection will be found in L. 
 K. 13 Eq. 603, 7 Ch. D. iiO, 16 ib. 94, and 50 L. J. Oh. 36. See also poit, 
 
 p. 19d, 
 
APPENDIX. 191 
 
 of state which cannot in my opinion be disclosed without injury to Appendix, 
 the public interest (/), or, that all the knowledge and information ' 
 
 whidi I possess in respect of the matters thereby inquired into is Public policy. 
 derived from professional and confidential communications made to Piofessional 
 me by A. B. in my capacity as his solicitor [or, as the clerk or agent oonfideace. 
 of his soUcitor] , for the purpose of obtaining my legal advice or as- 
 sistance thereon [or, of maintaining or defending this action], and not 
 otherwise (g), or, from information procured by m.y solicitors or their 
 agents in and for the purpose of defending my title to the heredita- 
 ments in dispute {gg), or, that to the best of my knowledge and belief Self-crimi- 
 the answer might criminate, or tend to criminate me and expose me to nation. 
 an indictment for [as the fact may he\ {h), or, render me liable to for- 
 feiture and penalties under the statute [state the circumstances^, 
 or, to a forfeiture of my estate and interest (i). 
 
 Ohjection to answer Interrogatory as to Documents. 
 
 I object to answer the interrogatory on the ground that the 
 
 discovery thereby sought might be more conveniently and cheaply 
 obtained by means of an application for an affidavit of documents, 
 which I am able and wiUing to make (&). 
 
 Affidavit of Documents. 
 [Heading as in No. 1.] 
 
 1. the above-named make oath and say as follows : — 
 
 l'. I have in my possession or power the documents relating to Affidavit o£ 
 the matters in question in this action set forth in the first and second documents. 
 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 what grounds the objectwn is made, and 
 verify the facts as far as may lei. _ 
 
 4 1 have had, but have not now, in my possession or power tbe 
 documents relating to the matters in question in this action set forth in 
 the second schedule hereto. , . . 
 
 5. The last-mentioned documents were last m my possession oi 
 
 power ^^^^^"-^^^^ ^^^-^ ^j^^f j^^g jgcome of the last-mentioned documents, 
 and in whose possession they now are^. 
 
 7 According to the best of my knowledge, information, and 
 beUef" I have not now, and never had in my [exclusive] (l) possession, 
 custodv or power, or in the possession, custody, or power of my soh- 
 citors or agents, soUcitor or agent, or in the possession custody, or 
 po^er of any other persons or person on my [exclusive] behalf any 
 deeTaccount, book of account, voucher, receipt, letter, memorandum 
 rarer or -^ting, or any copy of or extract from any such document, 
 or any othS^document whatsoever, relating to the matters m question 
 
 (/) See Kain v. rarrer, 37 L. T. 469. 
 
 If iriHiSec^-; toMl p-obiection .». pp. 46 se,. 
 ii) See L E 4 Eq. 327, 332 (liability to confiscation of estates). 
 (k) Hoff^nn y. Postill, h. R. 4 Ch. App. 673. 
 (l) V. post. Statement of joint possession. 
 
192 
 
 Appendix. 
 
 APPENDIX. 
 
 in this action, or any of them, or -wherein any entry has been made 
 relative to such matters, or any of them, other than and except the 
 documents set forth in the said first and second schedules hereto. 
 
 Schedule 1. 
 
 Part 1 . [_Set out documents intended to he produced.'} 
 
 Part 2. [Documents not intended to be produced which may either he 
 described hy a detailed schedule, or where the protection claimed applies to 
 all the classes of documents, hy a reference to their nmnhera as included in 
 an earmarked bundle (m)]. 
 
 Sworn, &c, («). 
 Filed, &c. 
 
 Schedule 2. 
 [Documents parted with.} 
 
 Statement of joint possession of documents. 
 
 Statement of I have in my possession jointly -with A. B., -who is my partner 
 joint posses- [or as the case may he shewing nature of joint ownership'], the following 
 
 sion. documents, viz. [or, the documents mentioned in the schedule 
 
 hereto], and I am not able to produce the same or any of them 
 without the consent of the said A. B., but I am -willing to produce 
 the same if the said A. B. consents thereto (o). Or, I further say that 
 in addition to the documents above-mentioned, there are in the 
 
 possession or po-wer of A. B., of , the following documents relating 
 
 to the matters in question, -viz. . The said A. B. holds the said 
 
 documents as solicitor [or, agent], not only for myself, but also for 0. D. 
 
 [or as the case may he'] of -who is entitled to a moiety of the 
 
 property to -which they relate [state nattire of interest in documents], 
 and who objects to produce the same. Under the above circumstances 
 I submit that they are not in my possession or power, and I therefore 
 object to produce, and am in fact unable to produce them {p). 
 
 Form to he used when documents have heen sealed up (q). 
 
 Statement as ^ have sealed up parts of the documents referred to in the first part 
 
 to documents of the said first schedule, and I s-wear that the said portions sealed 
 
 sealed up. up do not contain any entry or memorandum relating to the matters 
 
 in question in this action or any of them, or -which -would assist, or 
 
 tend to assist the in maintaining [or, defending] this action {r.) 
 
 (m) V. ante, -p.UlT. For a form to be used, -when further documents are sub- 
 sequently discovered, see L. E. 14 Eq. 581. 
 
 (n) Where the affidavit is made on behalf of an artificial person, or otherwise 
 vicariously {v. ante, pp. 110, seq.), the above form must be altered accordingly, 
 and instead of the first person the affidavit must be made in the name of the 
 party from -whom it is called for. The first schedule is only necessary -where the 
 deponent objects to the production of some of the documents ; if he denies having 
 any, he must depose as in paragraph 7, omitting the final -words of excepticm. 
 
 (o) See Bovill v. Cowan, L. R. 5 Ch. App. 495 ; Kettlewell v. Barstow, 7 ib. 
 312. It is sufficient to state the joint possession and consequent objection to pro- 
 duce (Kearsley v. Philips, C. A., 10 Q. B. D 465) 
 
 (y) See 30 Beav. 282. 
 
 (}) This form may be added to paragraph 1 of the affidavit 
 
 {r) See L. R. 7 Ch. App. 90 ; 3 Myl. & Cr. 634 (for a form where parts of par- 
 ticular books are sealed up). ^ 
 
APPENDIX. 1C);3 
 
 Objections to produce documents. 
 I object to produce the said documents [m% except as sealed up] on Appendix, 
 the ground that they [or, such parts thereof as I have caused to be f.,- .. ~T ' 
 sealed up] relate exclusively to my own title or case(s), and do not to produoe docu- 
 the best of my knowledge, information, and belief contain anything ^ents. 
 impeaching my case or forming or supporting the [appHcant's] case or ' 
 
 title, and are not in any manner material to the case of the [applicant] f-^'**^ ^°l®'y 
 as to any matter in dispute between us in this action (<), or, on the ° "^"^ 
 ground that they are professional and confidential communications 
 which passed between me [and my agents] and my solicitor or his Professional 
 clerks and agents [or, my counsel] for the purpose of getting legal assist- confidential 
 ance and advice in maintaining or defending this action, or with ^p™™"""=a- 
 reference to the matters which are now in dispute in this action (a), oi- 
 in apprehension of a claim or dispute arising in respect of such matters, 
 or cases submitted to counsel after the matters in dispute in this 
 action had arisen with reference thereto (a;), or in apprehension that 
 some dispute or claim might arise with respect to such matters, with 
 their opinions thereon, or, that they contain information which was 
 obtained merely for the purpose of being laid before my solicitor [or, 
 counsel] for his advice and consideration in this action [or, of enabling 
 him to maintain or defend this action or the action of v. re- 
 lating to the same subject-matter] (?/). Forms of objection on the 
 ground of " Want of immediate materiality," and " Tendency to crimi- 
 nate," can easily he compiled from those of objections to answer (ante, 
 pp. 190 — 1). See also L. R. 7 Oh. App. 691 /or a form of the former 
 objection. 
 
 Notice to produce documents for inspection. 
 
 [Formal heading as usual.'] Take notice that the requires you Notice to pro- 
 
 to produce for his inspection at the of&ce of your solicitor (jj) the follow- duoe docu- 
 
 ing docnments referred to in your statement of [or as the case may ments. 
 
 be] dated the [describe the documents of which inspection is 
 
 sought] . 
 
 Dated the . 
 
 Tours, &c. 
 To the above-named and Mr. , his solicitor [or, agent]. 
 
 Notice of time and place of inspection. 
 
 [Heading as above.] 
 
 Take notice that you can inspect the documents mentioned in your Counter-notice 
 notice of the [add if necessary, except the deed numbered in to inspect. 
 
 («) If the documents are title-deeds or other muniments of title, the fact may 
 be stated but the aboTe form must be used also, as there is no special privilege 
 for tbem ( V. ante, p. 83). 
 
 (t) This is the form given in Mvnetr. Morgan, L. R. 8 Ch. App. 361, 362, and 
 approved of in Cvrporation of Hastings t. JvaU, ib. 1017 ; see also Bewieke v. 
 Graham, 7 Q. B. D. 400. ^ , ^ „ „„ 
 
 (u) Macfarlan v. RoU, L. K. 14 Eq. 580. 
 
 )x\ Nias V. N. E. My., 3 Myl. & Or. 355. 
 
 (J) ScuthwarJe Water Co. v. Quick, C. A. 3 Q. B. D. 315, 319. 
 
 (z) If the party appears in person, these words should be omitted. 
 
194 
 
 APPEXDTX. 
 
 Appendix, that notice] at my office (a) [or, at ] on. day next the in- 
 
 stant, between the hours of and o'clock, or that the 
 
 objects to giving you inspection of the documents mentioned in your 
 
 notice of the \_or, of the document numbered therein] on the 
 
 ground that (6) [state ground of objection, and conclude as ahove"]. 
 
 Time. 
 
 Notice of 
 objection to 
 answers. 
 
 Notice of ohjection to answers as insufficient. 
 
 Take notice that the objects to the answers numbered to 
 
 the interrogatories delivered by him herein as insufficient and requires 
 and intends, if necessary, to apply at chambers for a further and better 
 answer thereto. 
 
 Dated . 
 
 To Mr. A. B., 
 
 solicitor, — solicitor, 
 
 or agent. or agent. 
 
 StrMMONSES. 
 
 To deliver interrogatories. 
 
 [Formal parts as usual,'] 
 
 To deliver That the may be at liberty [add if necessary, notwithstanding 
 
 interrogatories, ^.j^g y^^g limited for doing so has expired] to deliver to the or his 
 
 solicitor [or, to the secretary or some other officer, or to a member of 
 
 the company] (c), interrogatories [or, further interrogatories] in 
 
 writing for the examination of the ■ , or as to [state the particular 
 
 points as to which the interrogatories are to he administered]. 
 
 To set aside or strike out interrogatories. 
 
 To set aside That the interrogatories delivered herein on the for the examina- 
 
 or strike out tion of may be set aside on the ground that they have been 
 
 interrogatories, delivered unreasonably or vexatiously [or, without an order having 
 been obtained for that purpose], or, that the interrogatory numbered 
 
 may be struck out on the ground that it is scandalous, and that 
 
 the may be ordered to pay the costs of this application. 
 
 For answer. 
 
 For answer or further answer. 
 That [if necessary, add, notwithstanding the objection raised by the 
 
 to answer] the may be ordered within day from the 
 
 service of the order to be made hereon to make and file a full and suffi- 
 
 (a) The case of a party appearing in person is not provided for by the rules and 
 forms relating to inspection. Possibly the place of his address for service (see 
 Ord. XII. r. 8) would be also considered the proper place for inspection. 
 (6) 7. ante, p. 124. r ir „ y 
 
 (c) V. ante, p. 160. The order may be for an answer by A. B. "or such other 
 officer as is most conversant with the transaction in dispute in the action " (Afoline 
 V. Tasm. Ry. Co., 32 L, T. 828). ^ 
 
APPEXDIX. ] 9.; 
 
 cient affidavit in answer [or, further answer] to the interrogatories [or, Appendix, 
 further interrogatories] exhibited herein for his examination on the 
 
 part of the on tie [or, under the order dated the ], or, to 
 
 the questions numbered to both inclusive in the interrogato- 
 ries, etc. , and that the may be ordered to pay the costs of this 
 
 application (d) . 
 
 For oral examination of jtarty interrogated (e). 
 
 That the may be ordered to attend before his Lordship, Mr. For oral 
 
 Justice or , one of the Masters of this Court, or one of the examination 
 
 Chief Clerks of ■, or an Examiner of the Chancery Division of of party 
 
 this Court to be by him examined viva voce on oath on the interroga- 
 tories delivered to the for his examination by the [or, upon 
 
 the interrogatories numbered in further answer thereto] (/) the 
 
 having omitted to answer the said interrogatories [or, having 
 
 answered them insufficiently], and that the said may be ordered 
 
 to pay the costs of such examination and of this application [add, if 
 desired, and that the may be ordered to produce upon such examina- 
 tion the following documents, viz : , or, all documents admitted to 
 
 be in his possession or power by his said answer (3)]. 
 
 For an affidavit of Documents. 
 
 That the may be ordered within days (h) after service, cfcc, For afSdavit 
 
 to make and file a full and sufficient affidavit or affidavits, [or, to file a of documents. 
 full and sufficient affidavit, iScc, to be made by A. B., the Secretary of 
 the said Company, or by the proper officer or as the case may he (i)], 
 
 or, that the by his next friend may make and file, &c. , stating what 
 
 documents are or have been in his [or, their or either of their] possession 
 or power relating to the matters in question in this action [or between 
 him and the applicant or relating to his claim] (k) ; add, if desired, and 
 that in the meantime all further proceedings herein may be stayed (I). 
 
 For further Affidavit of Documents. 
 
 That the niay he ordered within days after service of the For further 
 
 order to be made hereon to make and file a further more full and affidavit. 
 
 (d) For a form of summons to consider the sufficiency of an answer (see Ord. 
 XXXI. r. 9), see 8 L. T. 198. 
 
 (e) For another form, see the order made in Peyton v. Hartmg, 29 L. T. Eep. 
 
 (/ ) Or, "as to such points as he has refused or omitted to answer sufficiently " 
 (see Peyton v. Harting, supra). 
 
 ig) See Consol. County Court Orders, 1875, Sched. Form No. 58, and 9 Ir. C. 
 L. Rep. 297. 
 
 (A) V. ante, p. 107. . .., u ■ .,. j- . , 
 
 (i) y ante, p. 163. The summons may either be in the ordinary form, leav- 
 ing it to the Judge or Master to select and name the proper person to make the 
 affidavit (see Banger v. Q. W. R., i De G. & J. 74 ; lU-p. of Liberia v. Imp. 
 Bank L R 16 Eq. 179), or the appKoant may himself do so by the summons, or 
 the summons may be general for an affidavit by "the proper officer" (see 8 Q. B.^ 
 D 143) or " by .4 B or other person who has cognisance of the Company's affairs 
 (see Manch. Paving' Co. v. Slagg, xxvi. Sol Joum 599, 643). For a form of 
 order for an affidavit by the officers of afor^mjtaU, see L. R. 16 Eq 181 
 
 ik) V. ante, p. 19 ; other forms will be found in 1 De G. J. & S. 4 J2 (e). 
 
 (1) V. ante, p. 110. 
 
196 
 
 Appendix. 
 
 APrEXDIX. 
 
 sufloient affidavit stating whether lie has or has had in his possession or 
 power any and which of the following documents ^describing them] or, 
 any documents relating to the matters in question in this action not 
 
 mentioned in his former affidavit of documents filed herein on the , 
 
 and accounting for the same, and that the said may be ordered 
 
 to pay the costs of this application (m). 
 
 For inspection 
 of ilociiments. 
 
 By special 
 agent. 
 
 For Inspection of Documents. 
 
 That the maybe ordered [add, if necessary, notwithstanding the 
 
 objection raised by him in the said affidavit to produce the same] at 
 all seasonable times upon reasonable notice to produce at the office of 
 
 his solicitor, situate at [or, produce and leave with the clerk of 
 
 records and writs] , the following documents, namely, [or, the docu- 
 ments specified in the schedule annexed to the affidavit filed in support 
 of this application, and stated therein to be in his possession or power, 
 
 or as the case may he] and that the , his solicitor and agents [add, 
 
 if desired, with the assistance of , as his accountant, or as the case 
 
 may he (n)] may be at liberty to inspect and peruse the said documents 
 
 so produced [or, such thereof as the does. not object to produce], 
 
 and take copies and abstracts thereof and extracts therefrom [add, if 
 desired, and that in the meantime all further proceedings may be 
 stayed (o)]. 
 
 For Inspection hy a Special Agent. 
 
 That the inspection by the , their solicitors or agents directed 
 
 by the order dated the may be made by A. B., of , public 
 
 accountant [or as the case may he], as the agent employed by the 
 
 or by some other professional accountant unconnected with the parties 
 to this action (p). 
 
 For Inspection in an action on a policy of Marine Insurance. 
 
 In action on [Formal parts as usual.] That the plaintiff [and all persons 
 
 marine policy, interested in this action and in the insurance the subject of this action, 
 or as the case may be {q)], may be oi'dered to produce and show to the 
 defendants their solicitor or agents upon oath aU insurance slips, 
 policies, letters of instruction, or other orders for effecting such slips 
 or policies, or relating to the insurance or the subject matter of the 
 
 (m) See Westminster, d:c. Co. v. Clayton, 3 N. R. Ill, 112; WiUett 
 V. Thistleton, 1 ib. 42. As an alternative, a summons to consider the svffidency 
 of the affidavit might lie talcen out (see a form in 8 L. T. 198), upon which the 
 question of production might he raised (see NichoU v. Jones, 2 H. & M. 688). 
 
 (n) V. ante, p. 143. The names of any special agents should be inserted in 
 the summons and order made thereon. 
 
 (o) See the statutory form of order Rs. S. C. April, 1880, Sched. H. 16, and 
 the order made in Banger v. 0. W. R., 4 De G. & J. 74, 77. 
 
 (p) See 7 Jur. N. S. 328. 
 
 (S) See West of Engl. BanJc v. Canton Ins. Co., 2 Q. B. D. 472 ; China, d-c. 
 Co. V. Commercial, <£-c. Co., 8 ib. 142. Where the action is brought by the 
 mortgagees of the ship not in possession, the mortgagors and their representatives 
 may be ordered to give the discovery, and the owner may be ordered to do so 
 when the action is brought hy an agent on his behalf {Fraser v. Burrows 2 ib. 
 G'2i). ' 
 
ArPEXDix. 197- 
 
 insiirance on tho ship or the cargo on board thereof, or the freight Appendix. 
 
 thereby, and also all documents relating to the saiHng 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 relating to the effecting the insurance on the said ship, 
 the cargo on board thereof, or the freight thereby, or any other insur- 
 ance -whatsoever effected on the said ship, or the cargo on board thereof, 
 or the freight thereby on the yoyage 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 state- 
 ments, letters, invoices, bills of parcels, bills of lading, manifests, 
 accounts, accounts-current, accounts-sales, bills of exchange, receipts, 
 vouchers, books, documents, correspondence papers, and writings, 
 (whether originals, duplicates, or copies respectively,) which now are 
 in the custody, possession, or power, of the plaintiff, his brokers, 
 solicitors, or agents, [or such persons interested] in any way relating or 
 referring to the matters in question in this action, and that in like 
 manner the plaintiff [and the said other persons as aforesaid] do 
 account for all such documents as were once but are not now in his 
 [<)r their or any of their] possession, custody, or power (r) [and that in 
 the meantime, <&c.J. 
 
 To inspect Mines. 
 
 [^Formal parts as iisiial.'] 
 
 That the plaintiff, his workmen, and agents may be at liberty to Inspection of 
 
 descend into the defendant's colliery or mines at in the affidavit of mines. 
 
 the mentioned, and to view and inspect the workings so far as 
 
 may be necessary to ascertain how far the defendant has worked into 
 the plaintiffs mines, and the quantities gotten therefrom by him, with 
 liberty to use the defendant's machinery for descending and ascending 
 and of measuring, latching, and dialling the mine, and to make surveys 
 and plans of the workings ladd, if necessary, and for that purpose to 
 remove the barriers erected between the mine of the plaintiff and the 
 mine of the defendant], and take measurements and samples of the coal 
 taken away from under the plaintiff's land (s). 
 
 For Inspection in action for Infringement of Patent. 
 
 That the plaintiffs, their solicitors, and agents \or, witnesses] may be inspection of 
 at liberty to inspect the machines \or as the case may 6e] heretofore used macliinery. 
 
 by the defendant in the manufacture of , and to put the said 
 
 machines to work upon such inspection, and take samples of the .' 
 
 made or to be made upon the said machines [and photographs or di-aw- 
 
 (r) See 8 Q. B. D. 143. 
 
 (s) See the forms of order made in JBennitt v. WMtehouse, 28 Beav. 119, and 
 Cooper T. Ince Hall Co., W. N. 1876, 240 ; see also the forms in 3 Bligli. 0. &!. 
 172, and 8 Ha. 97, 100. 
 
198 
 
 APPENDIX. 
 
 Appendix 
 
 Inspection of 
 process of 
 manufacture 
 "with experi- 
 ments and 
 samples. 
 
 ings of the said machines] («), or, that the defendant may be ordered to 
 verify on affidavit the several kinds or classes of machines which he 
 
 has sold or exposed for sale since , and to produce one specimen of 
 
 each kind or class of machines at for inspection at all reasonable 
 
 times by the plaintiff, his solicitors, and Messrs. (u). 
 
 That the plaintiffs with their manager and a skilled witness may be 
 
 at liberty at all reasonable times upon giving days' notice to 
 
 enter upon the business premises of the defendants, where the process 
 of decorating or printing tin and metal plates is carried on by the de- 
 fendants, and to examine and inspect the whole of the process by 
 which such printed and decorated tin and metal plates are manufac- 
 tured by the defendants ; and to take, on paying for the same, samples 
 of such plates ; and upon and during such inspection to make such 
 observations [and experiments] as may be necessary and expedient for 
 the purpose of obtaining full information and evidence of the mode by 
 which such plates are manufactured by the defendants (uu). 
 
 For further time for giving Discovery. 
 
 For further That the may have days further time from the date of the 
 
 time to order to be made hereon to answer the interrogatories dehvered for his 
 
 answer. , examination by the [or as the case may le] (x), or, that the time limited 
 
 by the order dated for the to make and file an affidavit in 
 
 answer to the interrogatories delivered for his examination herein [or 
 as the case may ?>e] may be enlarged till the day of . 
 
 To seal up 
 documents. 
 
 For learn to Seal up Irrelevant or Privileged Matter. 
 
 That the may be at liberty to seal up such parts of Qie several 
 
 documents disclosed in his affidavit of documents herein [or as the case 
 may he\ and thereby admitted to be in his possession or power as 
 according to the affidavit made in support of this application do not 
 I'elate to the matters in dispute in this action [or, are privileged from 
 inspection] and to open and reseal the same when occasion may 
 require (y). 
 
 To have Documents Unsealed. 
 
 To unseal That the may be ordered within days of the order to be 
 
 documents. made hereon to unseal and produce to the the whole of the books, 
 
 letters, and documents mentioned in his affidavit as having been sealed 
 up by him, or such portions thereof as contain, etc. (z). 
 
 [t) See the order made in Davenport v. Jepson, 1 N. R. 307, and as to the 
 affidavits required in support of such applications, 5 H. & N. 192. 
 
 («) See the form of order in Singer Co. v. Wilson, 5 N. R. 506. For a form 
 of summons for mutual inspection of "works by both parties, see Russell v. 
 Cowley, 1 Webst. 458. 
 
 (uu) Flower v. Lloyd, W. N. 1876, 169 (varied on appeal by directing inspec- 
 tion by scientific men to le agreed upon by the parties; ib. 230). 
 
 (k) See Weston v. Ooleer, 20 L. T. 299. 
 
 {y) This is necessary where the documents are in daily use (see the form of 
 order in John. 739). 
 
 (?) See L. R. 7 Ch. App. 90. 
 
APPEXDIX. 199 
 
 For dtposit of Documents in Court. 
 
 That the may be ordered -within days from the service of Appendix. 
 
 the order to be made upon this application to produce and leave T 
 
 ■with the clerk of records and writs at the central office of the Supreme ^° deposit 
 Court of Justice [or, at the office of the district registrar] the documents documents m 
 specified in the schedule annexed to the affidavit to be filed in support 
 
 of this application [or as the case may 6e], and that the , his solicitors, 
 
 or agents be at liberty to inspect, itc, and that the clerk of records and 
 ■writs [or, the district registrar] may produce the said documents upon 
 any examination of witnesses in this action and at the hearing thereof 
 as the applicant shall requii-e (a). 
 
 'For production of Documents at the Party's Place of Business (h). 
 
 That the ■ — — may be at liberty to produce the documents scheduled Production at 
 
 in his affidavit of documents filed herein the [or as the case may he] place where 
 
 or such of them as according to the affidavit (c) made by him in support documents 
 of this application are required by him for his daily use in the conduct ^«P*- 
 
 of his business at his office situate at , instead of at the office of 
 
 his solicitor, as directed by the order dated the (d). 
 
 For delivery out of Documents deposited in Court. 
 
 That the documents produced and left by the with the For delivery 
 
 clerk of records and writs [or, the district registrar], pursuant to out of docu- 
 
 the order dated the and specified in the affidavit of the , filed ments. 
 
 the , may be delivered out to the and to his solicitor or either 
 
 of them. 
 
 Summons to expunge scandalous matter. 
 
 That the answers numbered to , both inclusive, contained To expunge 
 
 in the affidavit of the filed in answer to the interrogatories scandal. 
 
 herein [or as the case may be], may be struck out as scandalous matter, 
 and that the may be ordered to pay the costs of this application. 
 
 To take answer off the file. 
 
 That the affidavit filed by the on the -— day °f last in Taking ans-^-er 
 
 the record and writ clerk's office, purportmg to be the answer ol the off file. 
 
 to the interrogatories delivered for his examination by the 
 
 may be taken oflf the file for irregularity [or as the case may be] {e), and 
 
 Ttl the may be ordered to pay the costs of this applica,tion and 
 
 also the costs occasioned to the in consequence of the fihng 
 
 thereof (/). 
 
 (a) See Blakesley v. Pegg, 20 L. T. 57 ; Groves v. G., Kay, xix. 
 
 ?)\ mie'^OTope'r' form of affidavit in such cases is that given in Beid v. Langhis, 
 1 Sen. /r627, 628 (see p.. Wood V.-C, 2 J & H. 608). 
 
 (cfl See the form of order made in Mertens v. Hmgh, Johns, (35, 739. 
 (e) See 2 De U. & Pm- 223. 
 (/) r. ante, p. 95. 
 
200 
 
 APPENDIX. 
 
 To dismiss action or strike out defence for disobedience of order for 
 discovery {g). 
 
 That this action may be dismissed with costs for want of prosecu- 
 tion [or, that the statement of defence herein may be struck out], the 
 
 To dismiss plain tiif [or, defendant] having failed to comply with the order of 
 
 action or strike j^g^^g herein the [recite direction given hy order'], and that the 
 
 may be ordered to pay the costs of this application. 
 
 Appendix. 
 
 out defence. 
 
 For attach- 
 ment. 
 
 Motion for writ of attachment {h). 
 [Heading as usual.'] 
 
 Take notice that this Honourable Oonrt will be moved on next, 
 
 the day of at , or so soon thereafter as counsel can be 
 
 heard by Mr. as counsel for the , that the may be at 
 
 liberty to issue a writ of attachment against the for his contempt 
 
 of Court, in not [recite act directed to he done] pursuant to the order of 
 
 , dated the [or, in not complying with the order, &c. whereby 
 
 the was directed to, <fec.], and that the said may be ordered 
 
 to pay to the his costs of and occasioned by the motion and 
 
 the issuing and execution of the said writ of attachment. 
 
 Dated, &c. (i). X. T., solicitor 
 
 To Mr. solicitor. for the . 
 
 for the . 
 
 Affidavit in support of summons to interrogate (k). 
 
 [Formal heading as usual.] 
 
 Affidavit on We A. B. of , the above named , and 0. D. of , the 
 
 Bummons to solicitor [or, agent] in this action for the said , severally make oath 
 
 interrogate. and say as follows ; and first I, the said A. B., for myself say : 
 
 1. That this action is brought for [state nature of action] (Z). 
 
 2. That I am advised and believe that I shall derive material benefit 
 in this action (m), from the discovery which I seek by the interroga- 
 tories desired to be administered herein; [add, if the application is 
 made at an earlier stage of the action than usual (n), and that it is 
 necessary and essential in order to enable me to frame my statement 
 of claim herein, or to amend my statement of claim, or to give parti- 
 culars of my cause of action, or defence herein, pursuant to an order 
 
 dated the , directing me to give such particulars, or as the case 
 
 may he, that I should obtain such discoverj' at the present stage of the 
 action ; or if at a later stage than usual, give some explanation of the 
 delay]. 
 
 (g) See, as to how such an order can be enforced, Cremetti v. Crom, i Q. B. 
 ». 225. 
 
 (A) A form of affidavit in support will be found in li C. B. N. S. 605. 
 
 (i) This form can easily be adapted to a summons for a writ of attachment. 
 
 (k) See, as to by whom the affidavit should be made, ante, p. 110, and Day's 
 C. L. P. Acts (ed. 4), pp. 296, 309. Another form will be found in Consol. 
 County Court Rules, Sched. Form. 57. 
 
 (I) This paragraph is only necessary where the application is made before plead- 
 ings have been delivered (see Croomes v. Morrison, 3 E. & B. 984). 
 
 (m) This statement is material (see Oxlade v. N. £. Ry. Co., 1i C. B. N. S. 
 350. 
 
 («) V. ante, pp. \i seq. 
 
APPENDIX. 201 
 
 3. That I am advised and believe that I have a good cause of action Appendix. 
 [or, defence] on the merits (o). 
 
 4. lAdd, if made by a defendaM, That this application is not made 
 for the purpose of delay]. 
 
 And I, the said 0. L)., say [repeat statements in paragraphs 2 — 4, 
 mutatis mutandis']. 
 Sworn, (fee. 
 PHed, &c. 
 
 Affidavit in support of Summons to inspect {p). 
 
 IFormal heading as usual.] 
 
 I. , of , the above named , make oath and say as On summoas 
 
 follows : to inspect. 
 
 1. This action is brought for [state briefly nature of action]. 
 
 2. I am informed and believe that the has in his possession or 
 
 power the following documents, namely [or, the documents set 
 
 forth in the schedule hereto, or otherwise describing them]. 
 
 3. [State circumstances shewing reasonable grounds for the belief that 
 the documents are in his possession or power.] 
 
 4. That I am advised and believe that the whole of the said docu- 
 ments relate to the issues or matters in question in this action, and that 
 I shall derive material benefit therein from the inspection of the said 
 documents, and that it is material and necessary for me in order to 
 support my claim [or, my defence] on the trial of this action [or, to 
 enable me to frame my claim, or defence, or to give particulars of my 
 claim, or defence, or as the case may be], to have inspection thereof (q). 
 
 5. [Add, if made by a defendant, That this inspection is not sought 
 for the purpose of delay] (r). 
 
 Etjles and Oedees. 
 
 Delivery of Interrogatories. 
 
 The plaintiff may, at the time of delivering his statement of claim, 
 or at any subsequent time not later than the close of the pleadings, 
 and a defendant may, at the time of delivering his defence, or at any 
 subsequent time not later than the close of the pleadings, without any 
 order for that purpose, and either party may, at any time, by leave of 
 the Court or a Judge, deliver interrogatories in writing for the exam- 
 ination of the opposite party or parties, or any one or more of such 
 parties, with a note at the foot thereof, stating which of such interroga- 
 tories each of such persons is required to answer : Provided that no 
 party shall deliver more than one set of interrogatories to the same 
 party without an order for that purpose (Ord. XXXI., r. 1). 
 
 Form, of Interrogatories. 
 
 Interrogatories may be in the Form No. 7 in Appendix (B.) 
 hereto with such variations as circumstances may require {ib. r. 3). 
 
 (o) The evidence of merits must be stated (May f. EawUns, 1 1 Ex. 210), 
 and where there are several plaintiffs or defendants whom it is desired to in- 
 terrogate this averment must be made as to all (Doolim. Dixon, 16 W. E. 796). 
 
 (p) See Ord. XXXI. r. 18 ; ante, p. 129. 
 
 (a) V. ante, pp. 14 seq. 
 
 (r) Sre Consol. Couutj Court Orders, 1875, Sched. Form hi. 
 
202 APPENDIX. 
 
 Interrogatories in Actions by or against Companies, etc. 
 
 Appendix. jf any party to an action be a body corporate or a joint stock com- 
 pany, -wlietlier incorporated or not, or any other body of persons, em- 
 powered by law to sue or be sued, wtether in its own name or in the 
 name of any officer or other person, any opposite party may apply at 
 chambers for an order allowing him to deliver interrogatories to 
 any member or officer of such corporation, company, or body, and an 
 order may be made accordingly {ib. r. 4). 
 
 Mode of objecting to Interrogatories. 
 
 Any objection to answering any one or more of several interroga- 
 tories on the ground that it or they is or are scandalous or iiTelevant, 
 or not put bona fide for the purposes of the action, or that the matters 
 inquired into are not sufficiently material at that stage of the action, 
 or on any other ground, may be taken in the affidavit in answer. 
 
 An application to set aside the interrogatories on the ground that they 
 have been exhibited unreasonably or vexatiously, or to strike out any 
 interrogatory or interrogatories on the ground that it or they is or are 
 scandalous, may be made at chambers within four days after service 
 of the interrogatories (R. S. 0., Nov. 1878, i. 3, substituted for 
 the original rs. 5 and 8). 
 
 Answers to Interrogatories. 
 
 Interrogatories shall be answered by affidavit to be filed within ten 
 days, or within such other time as a Judge may allow (Ord. XXXI., 
 !■• 6). 
 
 Form of Answers. 
 
 An affidavit in answer to interrogatories shall, unless otherwise 
 ordered by a Judge, if exceeding ten folios, be printed and may be in 
 the Form No. 8 in Appendix (B.) hereto, with such variations as cir- 
 cumstances may require {ib. i. 7, as altered by E. S. C, June, 
 1876, r. 11). 
 
 Enforcing Ansvier or further Answer. 
 
 No exceptions shall be taken to any affidavit in answer, but the 
 sufficiency or otherwise of any such affidavit objected to as insufficient 
 shall be determined by the Court or a Judge on motion or summons 
 {ih. r. 9). 
 
 If any person interrogated omits to answer, or answers insuffi- 
 ciently, the party interrogating may apply to the Court or a Judge 
 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 vivEi voce examination, as the 
 Judge may direct {ib. r. 10). 
 
 Using Answers in Evidence. 
 Any party may, at the trial of an action or issue, use in evidence 
 any one or more of the answers of the opposite party to interroga- 
 tories without putting in the others : Provided always, that in such 
 case the Judge may look at the whole of the answers, and if he shall 
 
APPENDIX. 203 
 
 be of opinion that any other of them are so connected with those put Appendix, 
 in that the last-mentioned answers ought not to be used without 
 them, he may direct them to be put in {ib. r. 23). 
 
 Costs of Interrogatories and Ansiuers. 
 The Court in adjusting the costs of the action shall at the instance 
 of any party inquire or cause inquiry to be made into the propriety 
 of exhibiting such interrogatories, and if it is the opinion of the taxing 
 master or of the Court or Judge that such interrogatories have been 
 exhibited unreasonably, vexatiously, or at improper length, the costs 
 occasioned by the said interrogatories and the answers thereto shall 
 be borne by the party in fault {ih. r. 2). 
 
 Affidavit of Documents. 
 
 It shall be lawful for the Court or a Judge at any time during the 
 pendency therein of any action or proceeding, to order the production 
 by any party thereto, upon oath, of such of the documents in his 
 possession or power, relating to any matter in question in such action 
 or proceeding, as the Court or Judge shall think right ; and the 
 Court may deal with such documents, when produced, in such man- 
 ner as shall appear just {ib. r. 11). 
 
 Any party may, without filing any affidavit, apply to a Judge for an 
 order dii'ecting any other party to the action to make discovery on 
 oath of the documents which are or have been in his possession or 
 power, relating to any matter in question in the action [lb, r. 12). 
 
 Form of Affidavit. 
 
 The affidavit to be made by a party against whom such order as is 
 mentioned in the last preceding Eule has been made, shall specify 
 which, if any, of the documents therein mentioned he objects to pro- 
 duce, and it may be in the Form No. 9 in Appendix (B.) hereto, with 
 such variations as circumstances may require {ib. r. 1 3). 
 
 Production of Documents referred to in ^leadings or Affidavits. 
 
 Eveiy party to an action or other proceeding shall be entitled, at any 
 time before or at the hearing thereof, by notice in writing, to 
 give notice to any other party, in whose pleadings or affidavits 
 reference is made to any document, to produce such document for 
 the inspection of the party giving such notice, or of his solicitor, and 
 to peimit him or them to take copies thereof; and any party not 
 complying with such notice shall not afterwards be at liberty to put 
 any such document in evidence on his behalf in such action or pro- 
 ceeding, unless he shall satisfy the Court that such document relates 
 only to his own title, he being a defendant to the action, or that he 
 had some other sufficient cause for not complying with such notice 
 
 {ib. r. 14). 
 
 Notice to any party to produce any documents referred to in his 
 pleading or affidavits shall be in the Form No. 10 in Appendix (B.) 
 
 hereto (ib.r. 15). , ^. . . ■, ,, -.t,- j j 
 
 The party to whom such notice is given shall, within two days 
 
204 
 
 APPENDIX. 
 
 Appendix, f^^j^ .(.j^g receipt of suet notice, if all the documents therein referred 
 to have been set forth by him in such affidavit as is mentioned in 
 Eule 13, or if any of the documents referred to in such notice have not 
 been set forth by him in any such affidavit, then within four days 
 from the receipt of such notice, deliver to the party giving the same 
 a notice stating a time within three days from the delivery thereof at 
 which the documents, or such of them as he does not object to pro- 
 duce, may be inspected at the office of his solicitor, and stating which 
 (if any) of the documents he objects to produce, and on what ground. 
 Such notice may be in the Form No. 11, in Appendix (B.) hereto, 
 with such variations as circumstances may require {ib. i. 16). 
 
 If the party served with notice under Eule 15 omits to give such 
 notice of a time for inspection, or objects to give inspection, the party 
 desiring it may apply to a Judge for an order for inspection [ib. 
 r. 17). 
 
 Inspection of Documents. 
 
 Every application for an order for inspection of documents shall be 
 to a Judge. And except in the case of documents referred to in the 
 pleadings or affidavits of th e party against whom the application is 
 made, or disclosed in his affidavit of documents, such application 
 shall be founded upon an affidavit showing of what documents 
 inspection is sought, that the party applying is entitled to inspect 
 them, and that they are in the possession or power of the other party 
 (ib. r. 18). 
 
 Postponing Discovery. 
 
 If the party from whom discovery of any kind or inspection is 
 sought objects to the same, or any part thereof, the Court or a 
 Judge may; if satisfied that the right to the discovery or inspection 
 sought depends on the determination of any issue or question in dis- 
 pute in the action, or that for any other reason it is desirable that any 
 issue or question in dispute in the action should be determined before 
 deciding upon the right to the discovery or inspection, order that 
 such issue or question be determined first, and reserve the question 
 as to the discovery or inspection [ib. r. 19). 
 
 Consequences of Failure to give Discovery. 
 
 If any party fails to comply with any order to answer interro- 
 gatories, or for discovery or inspection of documents, he shall be liable 
 to attachment. He shall also, if a plaintiff, be liable, to have his 
 action dismissed for want of prosecution, and, if a defendant, to have 
 his defence, if any, struck out, and to be placed in the same position 
 as if he had not defended, and the party interrogating may apply to 
 the Court or a Judge for an order to that effect, and an order may be 
 made accordingly {ib. r. 20). 
 
 Service of an order for discovery or inspection made against any 
 party on his solicitor shall be sufficient service to found an applica- 
 tion for an attachment for disobedience to the order. But the party 
 against whom the application for an attachment is made may show in 
 answer to the application that he has had no notice or knowledge of 
 the order {ib. r. 21). 
 
 A solicitor upon whom an order against any party for discovery or 
 
APPENDIX. 
 
 20i 
 
 inspection is served under the last Rule, who neglects without Appendix. 
 
 reasonable excuse to give notice thereof to his client, shall be liable 
 
 to attachment {ib. r. 22). 
 
 Inspection of Property. 
 
 It shall be lawful for the Court or a Judge, upon the application 
 of any party to an action, and upon such terms as may seem just, to 
 make any order for the * ^ * inspection of any property, being the 
 subject of such action, and for all or any of the purposes aforesaid to 
 authorise any person or persons to enter upon or into any land or 
 building in the possession of any party to such action, and for all or 
 any of the purposes aforesaid to authorise any samples to be taken, 
 or any observation to be made or experiment to be tried, which may 
 seem necessary or expedient for the purpose of obtaining full informa- 
 tion or evidence (Ord. LII., r. 3). 
 
 An application for an order under « * * Rules 2 or 3 of this 
 Order may be made to the Court or a Judge by any party. If the 
 application be by the plaintiff for * * * * an order under the said 
 Rules 2 or 3 of this Order it may be made after notice to the defendant 
 at any time after the issue of the writ of summons, and if it be by any 
 other party, then on notice to the plaintiff, and at any time after 
 appearance by the party making the application (ib. r. 4). 
 
 Inspection in Patent Actions. 
 
 In any action in any of Her Majesty's superior courts of record at 
 Westminster and in Dublin for the infringement of letters-patent, it 
 shall be lawful for the Court in which such action is pending, if the 
 Court be then sitting, or if the Court be not sitting then for a Judge 
 of such Court, on the application of the plaintiff or defendant respec- 
 tively, to make such order for an injunction, inspection or account, 
 and to give such direction respecting such action, injunction, inspec- 
 tion-, and account, and the proceedings therein respectively, as to 
 such Court or Judge may seem fit (15 & 16 Yict. c. 83, s. 42). 
 
INDEX. 
 
 ACCOUXT. See Disootert after Jpdgment, and Postponing dis- 
 co very. 
 of real and personal estate, trustees, etc., must give by answer, 32 
 of profits, not given before hearing, 31 
 may be set out in soliedule to answer, 78 
 party may answer as to, by referring to books, 93 
 discovery as to items of, refused before hearing, 30 
 existing, may be referred to and verified, 94 
 
 ACCOUSTAXT, 
 
 inspection of documents by, 143 
 
 ACTIOJT, 
 
 definition of, 7 
 
 includes information in other than Revenue matters, ib. 
 
 ACTIOX FOR DISCOVERY, 
 
 in what cases necessaiy, 3 
 costs of, 183 
 
 ACTION FOR THE RECOVERY OF LAND, 
 right of plaintiff to discovery in, 164 
 
 of defendant, 165 
 discovery of documents in. 111, 166 
 
 ACTIONS ON POLICIES OF MARINE INSURANCE, 
 right of underwriters to discovery in, 168 
 from all parties interested, ib. 
 without filing affidavit, ib. 
 
 proceedings may be stayed until discovery is given, 169 
 form of summons for production, 196 
 
 ADMINISTRATOR 
 
 must set out accounts in answer, 32 
 
 ADMINISTRATION ACTIONS, 
 
 discovery in, after judgment, 18 
 
 See DiscovEiiY after jldgiiext. 
 
208 INDEX. 
 
 ADMISSION 
 
 of possession or relevancy of documents, conclusive, 113, 128 
 application for production must be founded on, 128 
 may be qualified by affidavit, 131 
 
 AFFIDATIT. See Affidavit of Documents, Answer. 
 admissible to qualify admission of documents, 131 
 production of documents referred to in, 122 
 
 AFFIDAVIT OF DOCUMENTS, 
 
 summons for. See Summons foe Affidavit of Documents. 
 
 must be by party on record, 110 
 
 by officer or member of corporation. See Corporation. 
 
 by next friend or guardian of infant. See Infant. 
 
 by guardian or committee of lunatic. See Lunatic. 
 
 defendant in action for recovery of land must make, 111, 166 
 
 secus, in action for penalties. 111 
 
 must include all relevant documents, 112 
 
 what are documents " relating to any matter in question," ih, 
 
 admissions in, conclusive against party making, 113 
 
 unless qualified by subsequent affidavit, 131 
 
 duty of party making, to ascei'tain nature of documents, 113 
 
 what documents are in a party's possession or power, ib. 
 
 statement of joint possession. Hi 
 
 inability to produce is no ground for not making. 111 
 
 must state grounds of privilege or inability to produce, 114 
 
 must include documents subject to lien, 115 
 
 statutory form of, 115, 191 
 
 in action on marine policy. See Actions on Policies of Marine 
 
 Insurance. 
 must be full and distinct, 116 
 all parties must join in, 112 
 descriptionof documents in, 117 
 privileged documents described by bundles, ib, 
 schedules to. See Schedule. 
 may be taken off file for prolixity, 118 
 may be postponed. See Postpon ing discovery. 
 where insufficient, further affidavit may be ordered. See Further 
 
 affidavit. 
 where objection to produce, order for production must besought, 118 
 cannot be impeached by contentious affidavit, 119 
 or cross-examined on, 116 
 costs of, 185 
 form of summons for, 195 
 
 See Further affidavit. 
 
 AGENT, 
 
 principal must answer as to acts of, 91 
 
 possession of documents by, 133 
 
 duty of principal to make inquiries from, 91 
 
 who is, to inspect documents, 142 
 
 may be made party for discovery and costs, 11 
 
 See Inspection of documents ; Professional Privilege. 
 
INDEX. 209 
 
 AGREEMENT, 
 
 party may preclude himself from requiring or refusing discovery 
 by, 136 
 
 AMENDING ANSWER, 
 
 in what cases allowed, 81 
 
 See Supplemental Asswer. 
 
 AMENDING PLEADINGS, 
 
 further discovery in case of, 75 
 lost right of discovery not restored by, 76 
 See FuETHEB Imi'erkogatoeies ; Further Affidavit of Documents. 
 
 ANSWER, 
 
 mnst be on oath, 77 
 
 unless where statutory exemptions, ib. 
 
 of infant, by guardian or next friend. See Infant. 
 
 of insane person or lunatic, by committee or guardian. See 
 
 Lunatic. 
 married woman may answer with husband or separately, 77 
 
 See Married Woman ; Husband. 
 form of, 78 
 
 exceeding 10 folios, must be printed unless by leave, ib. 
 schedules are included in. See Schedules. 
 exhibits not included in. Sec Exhibits. 
 documents referred to in must be deposited in Court, 79 
 entitling, ih. 
 
 must be filed within ten days except by leave, ib._ 
 by party out of jurisdiction, 79 
 application for further time for, 80 
 costs of application, 81 
 
 notice of filing, to be given to opposite party, 80 
 office copy of. See Office Copt. 
 costS of unnecessary matter in, may be disallowed, 81 
 scandalous, irregular, or evasive, m.ay be taken off file, 86, 95 
 form of application, 199 
 costs of, 183 
 
 must state objections to answer, 89 
 proof of, by office or examined copy, 103 
 Using at trial, 101 
 
 may be read against party making, without notice, 102 
 summons for, 194 
 
 See Supplemental Ansv^er ; Sufficiency of Answer. 
 
 APPEAL, 
 
 in discovery to C. A. discouraged, 187 
 discovery on. See Court of Appeal. 
 staying inspection pending, 139 
 
 APPLICATIONS. See Summon.s. 
 
 in di.scovery must be by summons at chambers, 6 
 
 to chief clerk in Chancery Divi.sion, ib. 
 
 to master or district registrar in Queen's Bench Division, ib. 
 
 to judge in Pi-obate, ete., Division, ib. 
 
 P 
 
210 INDEX. 
 
 ARBITRATION, 
 
 action for discovery in aid of, 3 
 
 Court cannot grant discovery in action referred to, 12 
 
 ARBITRATOR, 
 
 not liable to disclose grounds of decision, 66 
 
 may be made party for disco vex-y and costs where fraud, 11 
 
 ATTACHMENT, 
 
 party in default of discovery liable to, 151 
 application for writ of, ib. 
 form of motion, 200 
 who may apply for, 151 
 
 service of order for discovery on solicitor is sufficient, 162 
 notice of application need not be served personally, ib. 
 not issued as a matter of course, ib. 
 proof of default must be given, 153 
 
 will not be granted where sought unreasonably or oppressively, ib, 
 against married woman, 154 
 time for obeying order should be allowed, 154 
 writ to be returnable within reasonable time, ib. 
 costs are in discretion of Court, 156, 186 
 should be provided for in order for writ, ib. 
 Obtaining discharge, 
 order may be obtained ex parte or on notice, 155 
 costs must be tendered or paid, 155 
 party cannot be detained until sufficiency of answer or affidavit 
 
 ascertained, ib. 
 or costs paid, 156 
 
 may be recommitted if insufficient, ib. 
 order of discharge may be rescinded, ib. 
 Waiver, 
 right to attachment may be waived, ib. 
 by accepting answer without costs, ib. 
 by acting upon answer or signing final judgment, ib. 
 
 ATTORNEY-GENERAL, 
 
 not liable to give discovery, 3 
 production of documents by, 4 
 
 BALLOT ACT, 1872, 
 
 discovery under, 180 
 
 not granted before petition, 181 
 
 BANKRUPTCY, 
 
 no ground for not producing document, 134 
 
 BONA FIDES, 
 
 want of, is objection to giving discovery. See Objections to 
 Discovery. 
 
 BOOKS, 
 
 answer by reference to, 93 
 deposit of, in Court, 79 
 
 See Tkade-books. 
 
INDEX. 211 
 
 BOUNDARIES, 
 
 production of documents to show, 35 
 
 CENTRAL OFFICE, 
 
 deposit of documents in, 141 
 
 CHANCERY ACTIONS, 
 what are, 13 
 
 CHATTELS, 
 
 inspection of. See Inspection of Property. 
 
 CHIEF CLERK, 
 
 ajiplications for discovery in Ch. Div. to be made to, 6 
 oral examination before, 93 
 
 CIVIL PROCEEDINGS, 
 
 discovery only obtainable in, 7 
 
 definition of, ib. 
 
 liability to, no objection to giving discovery, 48 
 
 CLAIMANT, 
 
 discovery by and from, in administration actions, 18 
 See Discovery after Judgment. 
 
 CO-DEFENDANTS, 
 
 no discovery between, before judgment, 8,' 10 
 
 except by leave, ib. 
 
 discovery between, after judgment, 20 
 
 communications between not privileged, 61 
 
 except as agents for the solicitor, ib. 
 
 not entitled to inspect each other's documents, 142 
 
 cannot read answer against each other, 102 
 
 COMMITTEE, 
 
 may give discovery for lunatic, 110 
 
 COMMON LAW PROCEDURE ACT, 1854, 
 
 provisions of, in force where not inconsistent with rules and 
 
 orders, 5 
 production of documents under s. 46 of, 10, 99 
 
 COMPANY. See Corporation. 
 
 CONSEQUENTIAL DISCOVERY. See Postponing Discovery. 
 
 CONTEMPT OF COURT, 
 
 obstruction of inspection is, 144 
 
 no privilege for communications relating to, 55 
 
 party in, may get discovery, 85, 106, 152. Sec Attacdment. 
 
 CONTENTS OF DOCUMENTS, 
 
 interrogatories as to, when allowed, 83 
 
 answer as to, by reference to documents themselves, 93 
 
 j> 2 
 
212 INDEX. 
 
 CONTRIBUTORY, 
 
 right of to discovery from oiEcial liquidator, 8 
 
 CONVERSATIONS, 
 
 interrogatories as to substance of, 37 
 
 COPIES OF DOCUMENTS, 
 
 right to take, on inspection, 136, 144 
 
 by photograph, ib. 
 
 costs of, 145 
 
 not recoverable as costs in cause, 186 
 
 GOEPORATION OR COMPANY, 
 
 interrogatories to officer or member of, 159 
 foreign corporation or company, 163 
 application for leave to deliver, 159 
 form, 194 
 
 who should be selected to answer for, 160, 163 
 duty to procure information from servants or agents, 162 
 answering by solicitor, waive privilege, ib. 
 costs of answer are costs in the cause, 162, 182 
 affidavit of documents by officer or member of, 162 
 documents in the possession or power of, 114 
 See Officer. ' 
 
 COSTS. See Affidavit of Documents ; Answer ; Attachment ; Fur- 
 ther Answer ; Inspection ; Interrogatories ; Produc- 
 tion OF Documents. 
 
 COUNSEL'S NOTES, OPINIONS, &c 
 privilege of, 61 
 
 COUNTER CLAIM, 
 
 equivalent to cross-action, 8 
 
 COURT OF APPEAL, 
 
 discovery in, 177 
 
 COVENANT TO PRODUCE, 
 
 party required to produce documents need not enforce, 135 
 
 CREDITORS, 
 
 discovery by and from, in administration actioJis, 18 
 right of, to discovery from official liquidator, 8 
 See Discovery aster Judgment. 
 
 CRIMINATORY DISCOVERY. See Tendency to Criminate. 
 
 CROSS-CLAIMS, 
 
 discovery between defendants in, 8, 10 
 
 CROSS-EXAMINATION, 
 
 discovery for purposes of, not allowed, 25 
 on affidavit of documents, not allowed, 116 
 
INDEX. 213 
 
 CROWN. See Petition of Riqut. 
 
 DAMAGES, 
 
 discovery as to i^mount of, when allowed, 37 
 documents affecting question of, t^re volevijnt, 112 
 
 DEFENCE, 
 
 application to strike out, 20Q 
 
 DEFENDANT, 
 
 meaning of in Judicature Acts, 8 
 entitled to discovery in'peaching plaii(tiflf's case, 39 
 time for obtaining discovery, 15 
 
 defence may be struck out for default in discovery, 156 
 Sec Co-De?endast5. 
 
 DEMURRER, 
 
 no discovery granted pending, 71 
 
 DEPOSIT IN COURT, 
 
 of books, &c., referred to by answer, 79 
 
 of documents, when ordered, 141 
 
 form of application for, 199 
 
 party entitled to return of documents deposited, 142 
 
 summons for, 199 
 
 DEPOSITION OF PARTY. See Oral Examination. 
 
 DESCRIPTION OF DOCUMENTS, 
 what is sufficient, 117 
 
 DIRECTOR, 
 
 may give discovery for corporation or company, 161 
 See Corporation Officer. 
 
 DISCLOSURE OF DOCUMENTS, 
 
 See Affidavit os Do,ouments ; Interrogatories as '^o 
 Documents. 
 
 DISCOYERY, 
 
 See Actions fob Discovery ; Affidavit of- DopuMENTjs ; 
 
 I NTERBOGATOEIBS. 
 
 origin of jurisdiction as to, 1 
 
 iunctions of, 2 
 
 ipode of obtaining, ih. 
 
 obtainable in every division of the High Court, ib. 
 
 in Court of Appeal, 177 
 
 party not disabled from suing because unable to give, 3 
 
 in petition of right. See Petition of Right. 
 
 applications in matters relating to, to be by summons, 6. 
 
 in what proceedings obtainable. See Proceedings. 
 
 between what parties. Sec Parties. 
 
 parties cannot be kept before Court for, 11 
 
 posts of,. 182 
 
214 INDEX. 
 
 DISCOVERY AFTER JUDGMENT. See Postponing Discovbkt. 
 in administration actions, 18 
 actions involving accounts or inquiries, ib. 
 obtainable between co-defendants, 20 
 
 between creditors and trustees, executors, or administrators, 18 
 procedure as to, 20 
 limited to purposes of judgment, 19 
 in aid of exeeutioji, 20 
 obtainable, thougli discovery before judgment, ib. 
 
 DISMISSAL OF ACTION, 
 
 plaintiff making default in discovery is liable to, 156 
 not ordered except ^s last resource, 157 
 form of application for, 200 
 
 OlSTRIQT REGISTRAR, 
 
 applications in discovery to, 6 
 
 DISTRICT REGISTRY, 
 
 production qf documents in, |40 
 
 DOCUMENTS REFERRED TO JN PLEADINGS OR AFFIDAVITS, 
 notice to produce, may be given, ^22 
 by defendant befove defence, 123 
 form of notice, 193 
 
 not to be given as matter of course, 123 
 time for givjng inspection, 124 
 counter notice of liberty to inspect, 126 
 form of, 193 
 
 cause must be shown for not producing, 124 
 
 defendant need not produce documents relating to hia own title, ib. 
 party may apply for order to inspect, ^26 
 posts of inspection, 123 
 
 (See A^FiBAViT op Documents ; Prodvctiqn of Documents. 
 
 EJECTMENT, See Action foe Recoyeey of lanp. 
 
 EJECTION PETITIONS, 
 
 no discovery from sitting memter in, 179 
 See Ballot Act. 
 
 ENFORCING ANSWER, OR FURTHER ANSWER, 
 application to be by summons at Chambers, 95 
 party in contempt may apply, 96 
 summons should specify answer objected to, 95 
 or interrogatories to which an.swer is required, ib. 
 form of summons, 194 
 
 tvpplicfttion should be made within reasonable time, 96 
 rigjit m^y be lost, ib. 
 by acting upon answer, ib. 
 or signing judgment, ib. 
 
 not by giving notice to produce documents referred to in answer, ib. 
 or by taking copy, ib. 
 
INDEX. 215 
 
 ENFORCING ANSWER, OR FURTHER A^SWEU— continued. 
 
 applicant must show omission without just cause to answer, 97 
 
 relevancy of question may be considered, ib. 
 
 further answer may be ordered. See Further answeb. 
 
 or oral examination. See Oral examination'. 
 
 order must specify time for fui-ther answer, 97 
 
 must be entered, ib. 
 
 need not be indorsed under Cons. Ord. xxiii. r. 10, ib. 
 
 costs of further answer ai}d application, 100 
 
 EQUITY, 
 
 doctrines of, to prevail unless otherwise provided, 4 
 
 EVASIVE ANSWER, 
 
 See Sufficiency of Answer. 
 
 EVIDENCE, 
 
 no objection that discovery would not be, 25, 112 
 interrogatories not admissible in, 102 
 discovery of opponent's, not allowed, 34 
 using answer in, 101 
 See Answer, 
 
 EXAMINER, 
 
 oral examination may be before, 98 
 
 EXCEPTIONS, 
 
 to answer, abolished, 95 
 
 See Enforcing answer. 
 
 EXECUTORS, 
 
 must set out accounts in answer, 32 
 may be required to answer for testator, 78 
 
 production of documents by, cannot be ordered on admission by 
 testator, 128 
 See Discovery after judgment. 
 
 EXTENSION OF TIME, 
 
 for answering, applications for, 80 
 
 costs of, 186 
 
 for making affidavit of documents, 107 
 
 for producing docun;ents, 134 
 
 order for, need not be drawn up, ^ifVfi, 
 
 summons for, 198 
 
 no appeal from ojders for, 79 
 
 facsijiilb; of documents, 
 
 taking, 145 
 
 FILING ANSWER OR AFFIDAVIT, 
 mode of, 75 
 proof of, 30 
 notice of, must be given to opposite pa,rty, ik 
 
216 INDEX. 
 
 FISHING INTERROGATORIES, 
 meaning of, 41 
 
 FOREIGN COURTS, 
 
 discovery in aid of proceedings in, 3 
 
 FOREIGN SOVEREIGN OR STATE, 
 must give discovery, 163 
 action by, may be stayed or dismissed, ib. 
 minister or officer of, may give discovery for, 164 
 head of, should not be selected, ib, 
 
 FORGED DOCUMENTS, 
 
 inspection of, by witnesses, 144 
 
 FORFEITURE. See Penalty. 
 
 FRAUD, 
 
 documents impeached far, -production of, 35 
 communications relating to, not privileged, 55 
 See ProfessionaIj pr.iviLEGiii.. 
 
 FURTHER AFFIDAVIT OF DOCUMENTS, 
 when obtainable, 119 
 where pleadings amended, 121 
 form of summons for, 195 
 costs of, 121 
 aft^r ji^dgment, 19, 120 
 
 FURTHER ^NS'VVER, 
 
 s\iin,mans for, 194 
 See Sotficiency of a,nswer. 
 
 FURTHER INTERROGATORIES, 
 when pleadings amended, 75 
 when fresh matter discovered, ib. 
 costs of, 76 
 
 GUARDIAN, 
 
 discovery, by, for infant, 11,0 
 for lunatic, iJ. 
 
 HEIR-AT-LAW, 
 
 right of, to discovery, 167 
 
 HEIR-IN-TAIL, 
 
 right of, to discovery, 167 
 
 HUSBAND, 
 
 answer by, jointly with wife, 77 
 
 fliay obtain order for wife to answer separately, 78 
 
 vyife's ans\Yer cannot be read agi^inst, 104 
 
 ILLEGALITY, 
 
 no j)ri,vilege for communications relating to. See Pkofessiokal 
 
 PRIVILEGE. 
 
INDEX. 217 
 
 IMMATERIALITY OR IRRELEVANCY, 
 
 is ground of objection to give discovery, 22 
 form of objection on ground of, 190 
 must be obvious, 2^^ 
 
 except where discovery injurious to party giving, ib. 
 test for ascertaining, "25 
 right to relief sought will be assumed, 24 
 discovery sought neeil not be evidence, 25 
 discovery not allowed to discredit or for cross-oxaniinatiqn, ib. 
 interrogatories need not be based ou specific charge, ib. 
 See POSTPOXISQ DISUOVEKY. 
 
 IMPERTINENCE, 
 
 in answer or schedule, what is, 86 
 in affidavit of documents, 118 
 matter of costs only, 86 
 
 INDICTMENT, 
 
 no discovery in aid of, 7 
 
 party not liable to give discovery which may expose him to, 16 
 
 or produce documents, 49 
 
 See Tbxdency to ckiminate. 
 
 INDORSEMENTS ON BRIEFS, 
 production of, 61 
 
 INFANT, 
 
 may give discovery by next friend or guardian, 77, 110 
 not bound by answer, 104 
 
 INFORMATION. See Attorney-General, 
 in revenue matters, discovery in, 3 
 relator liable to give discovery in, scmblc, i 
 criminal, no discoveiy in, 7 
 
 INFRINGEMENT OF PATENT, 
 
 discovery in action for, 170 
 IiUerrogatories, 
 
 discovery in lieu of particulars, 170 
 
 of prior user, ib. 
 
 nf infringement, 171 
 
 of breaches, 174 
 
 oppressive or inquisitorial discovery not enforced, 171 
 
 of accounts and consequential matters, may be postponed, 172 
 
 after decree for account or inquiry as to damages, 173 
 
 account not stayed pending appeal, 174 
 
 defendant entitled to destroy plaintiff's case, ib. 
 Inspection, 
 
 Court may order inspection of machinery, &c., 175 
 
 titkiuf! of samples, ib. 
 
 making of experiments, ib. 
 
 inspection not granted as matter of course, 175 
 
 forms of summons for, 197 
 
 by plaintiff, may be before defence, 176 
 
 so:iis, by defendant, ib. 
 
218 INDEX. 
 
 INFRINGEMENT OF FATI.'NT— continued. 
 may be stayed, pending appeal, ib. 
 inspection ty experts, &c. , ib. 
 costs of are in discretion of judge, 185 
 
 INQUIKIES IN CHAMBERS, 
 discovery in, 1 8 
 
 See Discovery after Judgment. 
 
 INQUISITORIAL DISCOVERY, 
 not enforced, 123, 171 
 
 INSPECTION OF DOCUMENTS. 
 By what persons, 
 
 party, solicitor, and agents, 142 
 
 meaning of "agents," ib. 
 
 hy special agents, li3 
 
 summons for, 196 
 
 by person nominated by the Court, 143, 150 
 
 by witnesses, 143 
 Place of, 
 
 at central office, 141. See Deposit in Court. 
 
 at solicitor's office, 139 
 
 at district registry, 140 
 
 at place of business, ib. 
 
 form of application for, 199 
 
 affidavit in support of application, 140 
 Mode of Condtocting, 
 
 who may be present at, 144 
 
 taking copies of documents produced, ib. 
 
 costs of, 185 
 
 no fee can be charged for, 144 
 
 obstruction to, is contempt of Court, ib. 
 See Production of Documents. 
 
 INSPECTION OF PROPERTY. 
 
 inspection of subject-matter of the action, 146 
 
 application must be made to judge, 147 
 
 time for niaking, ib. 
 
 where party has interest in value of property, ib. 
 
 in cases of trespass to real property, ib, 
 
 applicant must make out 2>rimd facie case of injuiy, 148 
 
 necessity of inspection must be shown, ib. 
 
 applicant may be required to give indemnity for loss or damage, ib. 
 
 and to pay costs of inspection, ib., 186 
 
 costs of, are in discretion of Court, 148 
 
 Court may order removal of obstructions, &c. , ib. 
 
 taking of samples, 149 
 
 observations or experiments, ib. 
 
 inspection by workmen and agents, ib. 
 
 by witnesses, ib. 
 
 form of summons for, 19? 
 
INDEX. 219 
 
 INTEREST, 
 
 meaning of, as applied to discovery, 130 
 
 of third person in docnmeut, no reason for not giving discovery, 85, 
 134 
 
 INTERPLEADER, 
 
 discovery in, 9, 17 
 
 INTERROGATORIES, 
 
 general riglit to deliver, 69 
 
 in actions or proceedings equivalent to actions, 7, 8 
 
 between opposite parties, 7 
 
 must be such as would have been allowed in Chancery, 69 
 
 costs of, are usually costs in the cause, 182 
 
 time for delivering, by plaintiff, 14, 16 
 
 by defendant, 15, 16 
 
 by other parties, 1 7 
 See Time fob Discovery. 
 when order necessary, 70 
 summons for leave to deliver, 194 
 costs of, 70, 183 
 affidavit in support of, 200 
 
 to corporation or company, see CoRroHATioN Officer. 
 to foreign state. See Foreign Sovereign. 
 mode of delivery, 71 
 delivery out of jurisdiction, 72 
 where no appearance, 71 
 form of, 189 
 
 should be concise and simple, 70 
 need not be printed, ib. 
 or signed by counsel, ib. 
 
 not evidence against party administering, 102 
 objections to. See Objectioxs to Discovery ; Objectionable 
 
 Intekkogatories ; Scandal. 
 striking out or setting aside. <Se« Striking out Intekkogatories. 
 costs of, where unnecessarily delivered, 183 
 further. See Further Interrogatorie.?. 
 
 INTERROGATORIES AS TO DOCUMENTS, 
 
 not allowed as to documents generally, 85 
 
 fonn of objection to answer, 191 
 
 as to contents of documents, 83 
 
 forms of, 189 
 
 as to possession of further documents, sec Further Affidavit of 
 
 DOCUMENT.S. 
 
 costs of, 121 
 
 as to ejfecution of document, 189 
 
 IRREGULARITY, 
 
 taking auswer off file for, 95 
 form of summons, 199 
 
 ISSUE, 
 
 discovery on trial of, 9 
 
220 INDEX. 
 
 JOINT-POSSESSION. See Possfis.sioN of Doo'jments ; Production of 
 Documents. 
 form of objection to produce on gi'ound of, 192 
 
 JOINT-STOCK COMPANY. See Corporation. 
 
 JUDGE, 
 
 may inspect documents by consent,- 138 
 
 no appeal from discretion of, 74, 187 
 
 not bound to disclose grounds of decision, 68 
 
 JUDICATURE ACTS, 
 
 law of discovery no,t altered by, 4, 5 
 See Practice a«d Procedure. 
 
 JURISDICTION, 
 
 of High Court, to grant discovery, 2 
 
 KNOWLEDGE, INFORMATION, AND BELIEF, 
 party niust answer as to, 90 
 of agent, is knowledge of principal, 91 
 
 LAW, 
 
 party need not answer as to matters of, 83; 
 
 LEAVE TO DELIVER INTERROGATORIES, 
 when required, 70 
 
 LEGAL ADVISER, 
 
 meaning of, 61 
 
 See Professional Privilege. 
 
 LETTERS. See Documents. 
 
 setting out, in affidavit of documents, 118 
 
 LIBEIv 
 
 discovery from printer, &c., of newspaper in action for, 3, SO 
 
 LIEN ON DOCUMENTS, 
 
 of solicitor or age^t, no gi'ound for refusing production, 115, 134 
 as against applicant, no ground for refusing production, 135, 
 
 LIMITATION, 
 
 copditionalj distinguished from forfeiture, 48 
 
 LIQUIDATOR. See Official Liquidator. 
 
 LUNACY. 
 
 production of proceedings in, 178 
 applicant must show interest, ib. 
 
 LUNATIC, 
 
 nm give discovery, by guardian or committee, 77, 110 
 ngit bound by answer, 104 
 
 MACHINERY, 
 
 inspection of, 176 
 form of summons for, 197 
 See Patents. 
 
INDEX. 221 
 
 MANDAMUS, 
 
 to enforce civil right, discovery in aid of, 7 
 
 MAREIED WOMAN, 
 answer of, 77 
 
 not evidence against husband, 104 
 or against hei-self, except separate estate, ib. 
 liable to attachment, 154 
 
 MASTER, 
 
 applications in discovery to be made to, in Q. B. D., 6 
 
 may name person to give discovery on behalf of corporation or 
 
 company, 160, 163 
 oral examination before, 98 
 cannot order inspection of property, 147 
 or attachment, 100, 151 
 
 MATERIALS FOE BRIEF, 
 
 privileged from inspection, 57 
 
 MATERIALITY. See Immatekiahty ; Postponing Discoveky. 
 
 MATTERS IN QUESTION, 
 meaning of, 112 
 
 MEMBER, 
 
 of corporation or company, may give discovery, 158 
 See CoRPOfiATiON ; Officer. 
 
 MINES, 
 
 inspection of, 149 
 
 form of summons, 197 
 
 removal of obstructions, may be ordered, 149 
 
 MORTGAGEE, 
 
 production of documents by, 33 
 
 MOTION, 
 
 applications to Court to be by, 147, 150 
 production of documents on, 10 
 See C. L. P. Act, 1854. 
 
 NEW TRIAL, 
 
 discovery not granted in aid of, 20 
 
 NEXT FRIEND, 
 
 may give discovery for infant, 77, 110 
 not a party to give discoveiy personally, 9 
 answer of, not evidence against infant, 104 
 
 OBJECTIONABLE INTERROGATORIES, 
 as to matters of law not fact, 83 
 seeking to contradict documents, ib. 
 
 as to contents of document not produced, see Contents of Docu- 
 ment. 
 unfair, vexatious, or oppressive, 23, 84, 171 
 no objection that information can be obtained aliunde, 84 
 or that party interrogating is in contempt, 85 
 or that third person would be prejudiced by the disclosure, ih. 
 
222 INDEX. 
 
 OBJECTIONABLE INTERROGATORIES— conM»««rf. 
 as to documents generally, 85 
 
 secus, as to particular documents not disclosed by affidavit, j&., 121 
 See Objections to Discoveey ; Scandalous Intbrrooatoihes. 
 
 OBJECTIONS TO ANSWERS, 
 form of, 194 
 
 OBJECTIONS TO DISCOVERY. 
 
 That the Discovery relates solely to the Party's own Case. 
 
 general rule that party not bound to disclose his own evidence, 33 
 
 except where privity between parties, 35 
 
 or where interest shown, ih. 
 
 or fraud alleged, ib. 
 
 or on q^uestion of parcels or boundaries, ib. 
 
 party entitled to know what opponent's case is, 36 
 
 but not details, ih. 
 
 matter common to both cases must be disclosed, 38 
 
 party may have discovery to impeach opponent's case, ib. 
 
 fishing interrogatories not allowed, 40 
 
 form in which the protection must be claimed, 42, 190, 193 
 
 Court not bound to accept party's statement as conclu.sive, 43 
 
 where effect of documents is question of law, 45 
 
 denial of relevancy to opponent's case need not be absolute, ib. 
 That the Discovery is not sought bond fide. 
 
 discovery not granted to satisfy curiosity, 63 
 
 or to make costs, 64 
 
 or for ulterior proceedings, ib. 
 
 or unfair object, ib, 
 
 form of objection, 190 
 
 See also Immateriality ; Public Poltcy ; Purchaser ; Pro- 
 fessional CONEIDENOB ; TENDENCY TO CRIMINATE. 
 
 OFFICE COPY, 
 
 answer or affidavit may be proved by, 103 
 
 OFFICER OF CORPORATION OR COMPANY, 
 
 may be selected to answer for corporation or company, 159 
 who is pi'oper person to answer, 160 
 costs of answer by, 162 
 duty of, to get information, ib. 
 affidavit of documents by, ib. 
 
 cannot object to discover on ground that documents are not in his 
 possession, 114 
 See Corporation. 
 
 ;0FFIC1AL LIQUIDATOR, DISCOVERY FROM, 
 
 in actions by or against creditors or contributories, 8 
 not liable to make affidavit of documents except' under special cir- 
 cumstances, 9 
 
 OFFICIAL REFEREE, 
 
 cannot order discovery, 177 
 
INDEX. 223 
 
 OPPOSITE PARTY, 
 meaning of, 7 
 
 ORAL EXAMINATION, 
 
 may be ordered instead of further answer, 98 
 
 form of application for, 195 
 
 before whom conducted, 98 
 
 mode of conducting, ib. 
 
 proluctiou of documents upon, 199 
 
 must be filed in Central Office, ib. 
 
 party has right to see documents referred to in, ib. 
 
 sufficiency of, ib. 
 
 party making default in, may be committed. See Attachment. 
 
 costs of examination and order, 100 
 
 ORDER XIV. 
 
 production of documents on application under, 11 
 
 ORDER FOR DISCOVERY, 
 
 must state time for giving discovery, 97 
 but not consequences of non-compliance, ib, 
 must be entered, ib, 
 service of, 152 
 
 PARCELS, 
 
 discovery of title-deeds to show, 35 
 form of order for discovery of, ib. 
 
 PARTICULARS, 
 
 discovery as equivalent for, 36 
 
 See Infkingement of Patent. 
 
 PARTNERS, 
 
 possession of documents by, 133 
 
 must include documents in affidavit, 114 
 
 PARTNERSHIP BOOKS, 
 production of, 133 
 
 PARTY, 
 
 definition of in Jud. Acts, 9 
 
 for discovery only, 11. See Opposite Party. 
 
 PATENT. See Infringement of Patent. 
 
 PAYMENT INTO COURT, 
 discovery in aid of, 37 
 before defence, 16 
 
 PENALTY OR FORFEITURE, 
 
 party not bound to give discovery which might subject him to, 48 
 
 or produce documents, 49 
 
 distinction between penalty and liquidated damages, 48 
 
 meaning of " forfeiture," ib. 
 
 liability by foreign law is sufficient, 49 
 
 sems, to pecuniary loss, ib. 
 
224 INDEX. 
 
 PENALTY OR YOKFEITVRE— continued. 
 cessation of protection, 49 
 
 by lapse of time, ib. 
 
 by waiver of penalty, ib. 
 party may be estopped from claiming privilege, 50 
 statutory liability to disclosure, ib. 
 printers and publishers of newspapers, ib. 
 party who has answered may refuse to answer further, ib. 
 form of objection, 191 
 
 PENALTIES, 
 
 plaintiff in action for, liot entitled to discovery, 73 
 
 PETITION OF RIGHT, 
 
 discovery in, by crown, 4 
 
 suppliant not entitled to discovery from crown, ib. 
 
 PETITIONS, 
 
 production of documents referred to in, 122 
 
 for winding up company, discovery of documents in, 9 
 
 PLAINTIFF, 
 
 time for discovery by. See Time for Discovery. 
 
 action may be dismissed for default of discoveiy. See Dismissal 
 
 OF AOTION. 
 
 right of, to discovery of defendant's case, 40 
 
 PLEADINGS, 
 
 drafts of, are privileged, 60 
 become pubUci juris \vhen delivered, 61 
 
 reference to documents in. See Documents Refeeked to in Plead- 
 ings on Affidavits. 
 definition of, 122 
 
 POSSESSION OF DOCUMENTS, 
 
 what is, for purposes of disclosure, 93, 113 
 
 for purposes of production, 133 
 
 by solicitor or agent, 115, 134 
 
 by partners, 114, 133 
 
 by corporation or company, 114 
 
 effect of admission of, 113 
 
 when presumed, VIS 
 
 admission as to, may be qualified by affidavit, 131 
 
 POSTPONING DISCOVERY. 
 
 Court has discretion as to, 28 
 
 where right to discovery depends upon determination of issue of 
 
 question, 29 
 or where otherwise desirable to decide issue first, ib. 
 where title denied, consequential discovery not ordered where 
 
 oppressive, ib. 
 discovery of items of account refused before trial, 28, 30 
 sufficient to give ailraission of profits or summary, ib. 94 
 except where account may be adopted at trial, 30 
 
INDEX. 225 
 
 POSTPONING DISCOVERY— continued. 
 
 or risk of losing the discovery altogether, 31 
 
 or in case of trustees, executors, or administrators, 32 
 
 account of profits will be postponed, 31 
 
 where title admitted, full account must be given, 32 
 
 objection may be raised in answer, 29 
 
 or by summons to postpone, ib. 
 
 form of objection, 190 
 
 POWEK 
 
 over documents, what is, 93, 115 
 See Possession or Documents. 
 
 PRACTICE AND PROCEDURE IN DISCOVERY, 
 regulated by Jud. Acts, 5 
 construction of rules of, 6 
 
 saving of existing, where not inconsistent with new practice, 5 
 to be analogous to old procedure, ib. 
 large body of, unprovided for by rules, ib. 
 more convenient to prevaU, where conflict, ib. 
 law of discovery not affected by, 4 
 
 PRINTER AND PUBLISHER OF NEWSPAPER, 
 discovery of name of, 3, 50 
 
 PRIVILEGED DOCUMENTS, 
 what are, 128, 132 
 
 PROBATE, &c., DIVISION, 
 
 applications for discovery in, to be to registrar, 6 
 affidavit of documents may be ordered, 106 
 
 PRODUCTION AND INSPECTION OF DOCUMENTS. 
 
 1. Documents referred to in pleadings on affidavits. 
 
 application for, 127 
 
 no affidavit recjuired, ib. 
 
 applicant must show what the documents are, 128 
 
 and admission of possession or power, ib. 
 
 possession or power must be legal, 133 
 
 and exclusive, ib. 
 
 and that he has " interest in them," 128 
 
 meaning of " interest," 130 
 
 admission of relevancy sufficient unless qualified, 128 
 
 2. Other documents. 
 
 time for making application, 127 
 must be affidavit in support, 129 
 form of affidavit, 201 
 form of siunmons, 196 
 in action on marine policy, ib. 
 respondent may show cause by affidavit, 131 
 aU documents must be produced unless privileged, 132 
 grounds of privilege or inability should be stated, 116 
 See Objections to Disoovekt. 
 
226 INDEX. 
 
 PKODUCTION AND INSPECTION OF DOCVUmiTS.— continued'. 
 forms of objection, 193 
 statement of joint possession, 192 
 party cannot excuse himself from producing on ground of lien on 
 
 documents, 134 
 seats, where documents mortgaged or pledged, 135 
 party not bound to enforce covenant to produce, ib. 
 nor incur expense, serrible, 136 
 party inspecting has right to take copies, 136, 144 
 effect of agreement not to require production, 136 
 party claiming privilege not bound by previous waiver, ib, 
 parts of documents may be sealed up. See Sealing up Doou- 
 
 MENTS. 
 
 undertaking not to publish contents may be required, 137 
 
 Judge may look at documents himself, 138 
 
 form of order for production, ib. 
 
 costs of, 185. See Inspection. 
 
 production may be stayed pending appeal, 139 
 
 PROFESSIONAL CONFIDENCE, 
 
 communications between client and legal adviser are privileged, 61 
 privilege confined to legal advisers, ib. 
 includes agents for communication, ib. 
 duration of the privilege, 52 
 may be waived by client, ib. 
 
 1 . Communications between client and legal adviser. 
 
 all communications in professional capacity privileged, 52 
 need not refer to litigation or dispute, ib. 
 
 must be confidential communication, not matter of observation, 53 
 and from client, 54 
 in ordinary course of business, ib. 
 
 communications relating to fraud or illegality, not privileged, 55 
 trustee cannot set up privilege, against c.q.t., ib. 
 except where in litigation, ih. 
 
 testamentary dispositions not privileged from disclosure to next- 
 of-kin, &c. ib. 
 communication may be through agents, 56 
 must be agents ad hoc, ib. 
 form of objection to answer on ground of, 191 
 
 2. Information obtained for purposes of the litigation. 
 
 " materials for brief " are privileged, 57 
 information obtained by client or solicitor himself, ib. 
 cases for opinion of counsel or solicitor, ib. " 
 statements of witnesses, 58 
 
 information obtained by solicitor's clerks or agents, ib. 
 by client or agents on behalf of solicitor, ib. 
 test as to privilege in such cases, 59 
 
 documents need not have been obtained at request of solicitor, ib. 
 or actually laid before him, ib. 
 where party acts as his own solicitor, 60 
 party must aiisxcer as to acts or knowledge of agents, ib. 
 distinction between confidential communications and matters of 
 fact, ib. 
 
INDEX. 227 
 
 PROFESSIONAL CONFIDENCE— co»<Mi«ed. 
 papers in actions are privileged, 57, 60 
 xiDless publici juris, 61 
 
 privilege not confined to continuance of action, ib. 
 actions between same parties, or on same questions, ib. 
 cross-actions, 62 
 grounds of privilege must be stated in affidavit, ib. 
 
 PROFITS, 
 
 postponing discovery of account of, 31 
 
 admission of, may be sufficient, 30. See Postponing Discovert. 
 
 PROLIXITY, 
 
 matter for costs, 86, 118 
 
 FUBLICI JURIS, 
 
 pleadings and affidavits become, when filed, 61 
 
 PUBLIC POLICY, 
 
 discovery not obtainable where contrary to, 65 
 affaii's of state and official communications, ib. 
 by whom objections must be raised, 66 
 secondary evidence of documents not admissible, ib. 
 form of objection to produce on ground of, 191 
 
 PURCHASER FOR VALUABLE CONSIDERATION, 
 not bound to disclose his title, 66 
 mnst answer as to consideration, 67 
 or notice, t6. 
 need not produce purchase-deeds though pleaded, semble, 68 
 
 RECORD AND WRIT CLERKS' OFFICE. See Central OrriCB. 
 
 REFERENCE TO DOCUMENTS. See Documents referred to in 
 Pleadings or Affidavits. 
 
 REFERENCE, 
 
 discovery in aid of, 3, 178 
 
 REGISTRAR 
 
 may order discovery in Probate, &c. Division, S 
 See District Registrar. 
 
 RELATOR. See Information. 
 
 REPETITION 
 
 needless, is impertinence, 86 
 
 of previous answer is impertinent, 99 
 
 REVENUE MATTERS, 
 discovery in, 3 
 
 SCANDAL, 
 
 definition of, 85 
 
 answer or affidavit may be taken off file for, 86 
 
 Q 2 
 
228 INDEX. 
 
 SCANDAL — contiimed. 
 
 interrogatories may be struck out for, 85 
 nothing scandalous if relevant, ib. 
 form of objection to answer on ground of, 190 
 summons to expunge, 199 
 
 SCHEDULES, 
 
 must be annexed to or incorporated with answer or affidavit, 78 
 included in computation of folios, ii. 
 
 SEALING UP DOCUMENTS, 
 
 practice as to, where partly privileged, 137 
 statement as to, in affidavit of documents, 192 
 form of summons, for liberty of, 198 
 affidavit, 137 
 
 SECRETAEY 
 
 is proper person to give discovery for corporation or company, 161 
 
 SEPARATE ANSWERS, 
 
 costs of, may be disallowed, 184 
 
 SEQUESTRATION, 
 
 discovery of documents in inquiry under, 9 
 
 SOLICITOR, 
 
 may be made party for discovery, 11 
 lien of, no ground for not producing document, 134, 136 
 See Pkofessional Cokfidencb. 
 
 SOVEREIGN, 
 
 not liable to give discovery, 4 
 
 See ATTOENBT-GENaRAL ; Petition of Right. 
 
 STRIKING OUT INTERROGATORIES, 
 
 where vexatiously or unreasonably delivered, 72 
 
 for scandal, ib., 85 
 
 utterly irrelevant, 73 
 
 onus lies on party applying, iJ. 
 
 objectionable interrogatories must be pointed out, ib. 
 
 form of application, 194 
 
 Court win not interfere with discretion of Judge, 74 
 
 SUFFICIENCY 
 Of Aiiswer, 
 
 substantial answer is sufficient, 87 
 
 test of sufficiency, 88 
 
 answer should not be evasive, ib. 
 
 but meet point of substance, ib. 
 
 danger of answering " except as aforesaid," ib. 
 
 materiality of questions may be considered, ib. 
 
 answer deemed sufficient until objected to, 96 
 
 objecting to answer. See Objections to Answer. 
 
 irrelevant questions need not be answered, 89 
 
INDEX. 229 
 
 SUFFICIENCY— <;on«m««£e. 
 
 where questions in part irrelevant, sufficient if partly answered, 89 
 
 party must answer as to knowledge, information, or belief, 90 
 
 addition of irrelevant matter may constitute insufficiency, ib. 
 
 party must answer as to acts of servants or agents, 91 
 
 except where unreasonable, ib. 
 
 where equal means of information, party not bound to otain it, 92 
 
 nor incur expense, ib. 
 
 party must answer as to contents of documents in his possession or 
 
 power, 93 
 or show phj'sical impossibility of doing so, ib. 
 answer by reference to books or documents, ib, 
 of answer as to accounts, 94 
 of further answer. See Further Answer. 
 question of, may be raised on summons to consider, 95 
 or for further answer, ib. 
 Of affidavit of docuinents. *!« Affidavit of Documents. 
 summons to consider, 118 
 
 SUMMONS, 
 
 applications in discovery to be by, 6 
 
 SUMMONS FOR AFFIDAVIT OF DOCUMENTS, 
 may be taken out by party in contempt, 106 
 time for obtaining. See Time for Discovert. 
 affidavit not necessary in support of, 108 
 but discretion as to requiring one, 109 
 must he primd facie evidence or reasona,ble presumption of existence 
 
 of documents, 108 
 postponing. See Postponing Discovert. 
 form of, 195 
 
 SUPPLEMENTAL ANSWER, 
 
 in what cases allowed, 81 
 
 application for leave to file, must be on affidavit, 82 
 See Amending Answer. 
 
 TENDENCY TO CRIMINATE, 
 
 party may object to discovery on the ground of, 46 
 objection must be taken on oath, ib. 
 form of objection, 191 
 
 Court or Judge must be satisfied as to bona fides of objection, 48 
 danger must be real and sub.stautial, 47 
 
 liability to criminal proceedings under foreign law sufficient, 48 
 danger to third person not sufficient, ib. 
 semble, ground for not producing documents, 49 
 where danger removed, party bound to answer, ii>. 
 or where compelled by statute, 60 
 
 printers and publishers of newspapers cannot refuse discovery on 
 ground of, ib. 
 
 TESTAMENTARY DISPOSITIONS, 
 discovery of, 56 
 
230 
 
 INDEX. 
 
 TESTATOR, 
 
 executors may answer for, 78, 95 
 
 THIRD PARTY, 
 
 discovery from, by plaintiff, 8 
 
 defendant not entitled to discovery from, 10 
 
 TIME FOR DISCOVERY, 
 By Plaintiff, 
 
 not before defence, 13 
 
 except under special circumstances, \i 
 
 before claim, ib. 
 
 between defence and close of pleadings, 16 
 
 at any time before trial, by leave, 17 
 By Defendant, 
 
 not before defence, 15 
 
 except under special circumstances, ih. 
 
 between defence and close of pleadings, 16 
 
 at any time before trial, by leave, 17 
 By other Parties, ib. 
 Of documents referred to in pleadings or affidavits. 
 
 by defendant, before defence, 123 
 
 extension of. See DiscoVE»r aftbk Judgmsnt ; Extension of 
 Time. 
 
 TITLE, 
 
 meaning of, 33 
 
 TITLE-DEEDS, 
 
 production of, where Impeached for fraud, 35 
 to show parcels or boundaries, ib. 
 where both parties interested in, ib. 
 danger of ordering production of, 167 
 
 TOWN-CLERK. See Cokpokation. 
 
 TRADE-BOOKS, 
 
 party may answer by reference to, 93 
 must be deposited in Court or offered for inspection, ib., 19 
 See Place of Inspection. 
 
 TRADE MARKS, 
 
 discovery as to infringement of, 173 
 
 TRUSTEE, 
 
 must set out accounts in answer, 32 
 
 cannot set up privilege, against o. q. t., 55 
 
 except where litigation, ib. 
 
 not bound to produce trust documents in absence of c. q. t., 134 
 
 UNDERWRITERS, 
 
 discovery in actions against. See Action on Policy of Makine 
 Insurance. 
 
INDEX. 231 
 
 UNSEALING DOCUMENTS, 
 
 form of summons for, 198 
 
 VERDICT, 
 
 discovery after, 20 
 
 See Discovery after Judgment. 
 
 VEXATIOUS DISCOVERY, 
 not enforced, 64, 84 
 
 See STfiiKiNQ OUT Intekeooatories. 
 
 VirA VOCE EXAMINATION. See Oral Examination. 
 
 WITNESS, 
 
 party not bound to disclose name of, 37 
 statements of, privileged, 58 
 inspection by, 143 
 
 THE END. 
 
 BRADUnRT, AONEVT, & CO., PRINTKBS, WHITF.FRIARS. 
 
STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS. 
 
 PAGE 
 
 ABSTRACT DRAWING— 
 
 Scott 32 
 
 ADMINISTRATION ACTIONS— 
 
 Walker and Elgood 18 
 
 ADMINISTRATORS— 
 
 Walker 6 
 
 ADMIRALTY LAW— 
 
 Kay 17 
 
 Smith 23 
 
 AFFILIATION— 
 
 Martin 7 
 
 ARBITRATION— 
 
 Slater 7 
 
 BANKRUPTCY— 
 
 Baldwin IS 
 
 Hailitt 29 
 
 Indermaur (Question & Answer) 28 
 ' 'Ringwood I5) 29 
 
 BAR EXAMINATION JOURNAL 39 
 
 BIBLIOGRAPHY 40 
 
 BILLS OF EXCHANGE— 
 
 Willis 14 
 
 BILLS OF LADING— 
 
 Campbell 9 
 
 Kay 17 
 
 BILLS OF SALE— 
 
 Baldwin 15 
 
 Indermaur . . ; 28 
 
 Ringweod 15 
 
 BUILDING CONTRACTS— 
 
 Hudson 12 
 
 CAPITAL PUNISHMENT- 
 
 Copinger 42 
 
 CARRIERS— 
 
 Su RAILWAY LAW. 
 „ SHIPMASTERS. 
 
 CHANCERY DIVISION, Practice of— 
 Brown's Edition of Snell ... 22 
 
 Indermaur 25 
 
 Williams 7 
 
 And see EQUITY. 
 
 CHARITABLE TRUSTS— 
 
 Cooke 10 
 
 Whiteford 33 
 
 CHURCH AND CLERGY— 
 
 Brice 9 
 
 CIVIL LAW— 5w ROMAN LAW. 
 
 CLUB LAW— 
 
 Wertheimer 32 
 
 CODES— Argles 32 
 
 COLLISIONS AT SEA— Kay . , 17 
 
 COLONIAL LAW— 
 
 Cape Colony 38 
 
 Forsyth 14 
 
 Tarring 41 
 
 COMMERCIAL AGENCY— 
 
 Campbell 9 
 
 PAGE 
 
 COMMERCIAL LAW— 
 
 Hurst and Cecil ... , . . II 
 
 COMMON LAW— 
 
 Indermaur . , . .' . , . . . 24 
 
 COMPANIES LAW— 
 
 Brice 16 
 
 iBuckley 17 
 
 Reilly's Reports 29 
 
 Smith 39 
 
 Watts . 47 
 
 COMPENSATION— 
 
 Browne 19 
 
 Lloyd '13 
 
 COMPULSORY PURCHASE— 
 
 Browne 19 
 
 CONSTABLES— 
 
 i'se POLICE GUIDE. 
 
 CONSTITUTIONAL LAW AND 
 HISTORY— 
 
 Forsyth 14 
 
 Taswell-Langmead 21 
 
 Thomas 28 
 
 CONSULAR JURISDICTION— 
 
 Tarring 42 
 
 CONVEYANCING— 
 
 Copinger, Title Deeds .... 45 
 Copinger, Precedents in ... 40 
 Deane, Principles of 23 
 
 COPYRIGHT— 
 - - Copinger 45 
 
 CORPORATIONS— 
 
 Brice .... .... 16 
 
 Browne ........ 19 
 
 COSTS, Crown Office- 
 Short 41 
 
 COVENANTS FOR TITLE— 
 
 Copinger -45 
 
 CREW OF A SHIP— 
 
 Kay 17 
 
 CRIMINAL LAW— 
 
 Copinger 42 
 
 Harris . . 27 
 
 CROWN LAW— 
 
 Forsyth 14 
 
 Hall 30 
 
 Kelyng 35 
 
 Taswell-Langmead ..... 21 
 Thomas 28 
 
 CROWN OFFICE RULES— 
 
 Short 10 
 
 CROWN PRACTICE— 
 
 Corner .10 
 
 Short and Mellor. . . . . . 10 
 
 CUSTOM AND USAGE— 
 
 Browne 19 
 
 Mayne ......... 38 
 
 DAMAGES— 
 
 Mayne 11 
 
 DICTIONARIES— 
 
 Brown ..,.,., ,26 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBdECTS-f<'»^'»««<^. 
 
 DIGESTS— PAGE 
 
 Law Magazine Quarterly Digest . 37 
 Menzies' Digest of Cape Reports. 38 
 
 DISCOVERY— Peile 7 
 
 23 
 
 DIVORCE— Harrison 
 DOMESTIC RELATIONS— 
 
 Eversley 
 
 DOMICII^-^« PRIVATE INTER 
 NATIONAL LAW. 
 
 DUTCH LAW 
 
 ECCLESIASTICAL LAW— 
 
 Brice 
 
 Smith 
 
 EDUCATION ACTS— 
 
 Set MAGISTERIAL LAW. 
 ELECTION LAW and PETITIONS— 
 
 Hardcastle 33 
 
 O'Malley and Hardcastle . - . 33 
 
 Seager 47 
 
 EQUITY— 
 
 Blyth 22 
 
 Choyce Cases 35 
 
 Pemberton 32 
 
 Snell 22 
 
 Story 43 
 
 Williams 7 
 
 EVIDENCE— 
 
 Phipson 20 
 
 EXAMINATION OF STUDENTS— 
 Bar Examination Journal ... 39 
 
 Indermaur 24 and 25 
 
 Intermediate LL.B 21 
 
 EXECUTORS— 
 
 Walker and Elgood 6 
 
 EXTRADITION— 
 
 Clarke 45 
 
 See MAGISTERIAL LAW. 
 FACTORIES— 
 
 See MAGISTERIAL LAW. 
 FISHERIES— 
 
 See MAGISTERIAL LAW. 
 
 FIXTURES— Brown 33 
 
 FOREIGN LAW— 
 
 Argles 32 
 
 Dutch Law .38 
 
 Foote 36 
 
 Pavitt 32 
 
 FORESHORE— 
 
 Moore 3° 
 
 FORGERY— j-«e MAGISTERIAL LAW. 
 FRAUDULENT CONVEYANCES— 
 
 May 29 
 
 GAIUS INSTITUTES— 
 
 Harris 20 
 
 GAME LAWS— 
 
 See MAGISTERIAL LAW. 
 GUARDIAN AND WARD— 
 
 Eversley 9 
 
 HACKNEY CARRIAGES— 
 See MAGISTERIAL LAW. 
 
 HINDU LAW— 
 
 Coghlan 28 
 
 Cunningham . . . . . 38 and 42 
 
 Mayne 38 
 
 HISTORY— 
 
 Taswell-Langmead . . , . , 21 
 HUSBAND AND WIFE— 
 
 Eversley 9 
 
 INDEX TO PRECEDENTS— 
 
 Copinger 40 
 
 INFANTS— 
 
 Eversley . . . ... 9 
 
 Simpson ........ 43 
 
 INJUNCTIONS— 
 
 Joyce 44 
 
 INSTITUTE OF THE LAW— 
 
 Brown's Law Dictionary ... 26 
 INSURANCE— 
 
 Porter 6 
 
 INTERNATIONAL LAW— 
 
 Clarke 45 
 
 Cobbett 43 
 
 Foote 36 
 
 Law Magazine 37 
 
 INTERROGATORIES— 
 
 Peile 7 
 
 INTOXICATING LIQUORS— 
 
 See MAGISTERIAL LAW. 
 JOINT STOCK COMPANIES— 
 
 See COMPANIES. 
 JUDGMENTS AND ORDERS— 
 
 Pemberton 18 
 
 JUDICATURE ACTS— 
 
 Cunningham and Mattinson . 
 
 Indermaur 
 
 Kelke 
 
 JURISPRUDENCE— 
 
 Forsyth 
 
 Salmond 
 
 JUSTINIAN'S INSTITUTES— 
 
 Campbell 
 
 Harris 
 
 7 
 
 25 
 
 6 
 
 14 
 13 
 
 47 
 20 
 
 LANDLORD AND TENANT— 
 
 Foa 
 
 LANDS CLAUSES CONSOLIDA- 
 TION ACT— 
 
 Lloyd .... .... 
 
 LATIN MAXIMS 
 
 LAW DICTIONARY— 
 
 Brown 
 
 LAW MAGAZINE and REVIEW. 
 LEADING CASES— 
 
 Common Law 
 
 Constitutional Law . ... 
 
 Equity and Conveyancing . . . 
 
 Hindu Law 
 
 International Law 
 
 LEADING STATUTES— 
 
 Thomas 
 
 13 
 
 28 
 
 26 
 37 
 
 25 
 
 28 
 43 
 
 28 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF S(JBJEOTS-«'i^'«««</. 
 
 LEASES— 
 
 Copinger .45 
 
 LEGACY AND SUCCESSION—. 
 
 Hanson lo 
 
 LEGITIMACY AND MARRIAGE— 
 
 See PRIVATE INTERNA- 
 TIONAL LAW. 
 LICENSES— ^■^e MAGISTERIAL LAW. 
 LIFE ASSURANCE— 
 
 Buckley .17 
 
 Reilly 29 
 
 LIMITATION OF ACTIONS— ' - 
 
 Banning . . .- , , . . .42 
 LUNACY— 
 
 Renton ..... ... 10 
 
 Williams . 7 
 
 MAGISTERIAL LAW— 
 
 Greenwood and Martin .... 46 
 MAINE'S (Sir H.), WORKS OF— 
 
 Evans' Theories and Criticisms . 20 
 MAINTENANCE AND DESERTION. 
 
 Martin - '.' . 7 
 
 MARRIAGE and LEGltlMACYr- 
 
 Foote ■ . . . ' . 36 
 
 MARRIED WOMEN'S PRO- 
 PERTY ACTS— '■■■:'-- 
 
 Brown's Edition of Griffith 
 MASTER AND SERVANT - 
 
 Eversley . ... 
 
 MERCANtlLE LAW , 
 
 Campbell- .... 
 
 Duncan ..:.,. 
 
 Hurst and Cecil 11 
 
 Slater , . 7 
 
 Su SHIPMASTERS. 
 „ STOPPAGE IN TRANSITU. 
 MERCHANDISE MARKS- 
 
 Daniel . . . . . . . , 42 
 
 MINES—. . •. , 
 
 Harris . ■.-.,.- 
 
 See MAGISTERIAL LAW. 
 MORTMAIN— 
 
 See CHARITABLE TRUSTS 
 NATIONALITY— .S« PRIVATE 
 
 TERNATIONAL LAW, 
 NEGLIGENCE— 
 
 Beven 
 
 Campbell 
 
 NEGOTIABLE INSTRUMENTS 
 
 Willis ..... 
 NEWSPAPER LIBEL— 
 
 Elliott 
 
 OBLIGATIONS— 
 
 Brown's Savigny . 
 PARENT AND CHILD— 
 
 Eversley , q 
 
 PARLIAMENT— ■ ' i 
 
 Taswell-Langihffiid i. . , .21 
 
 Thomas . 28 
 
 47 
 
 IN- 
 
 40 
 
 14 
 
 PAGE 
 
 PARTITION— . ,- 
 
 Walker . . . . ;.; 1 . . . 43 
 PASSENGERS— '" 
 
 i'es-MAGISTERIAL LAW, 
 „ RAILWAY LAW. 
 PASSENGERS .-AT. SEA— 
 
 Kay . . . . : . . . . 17 
 
 PATENTS— ■ -'.'.. ■ 
 
 Daniel . ■ . ,■..'.-, . 42 
 
 Frost --. . . I' -.'"'. , . . 12 
 PAWNBROKERS— • 
 
 <y««MAGISTERIAL- LAW. 
 PETITIONS IN CHANCERY AND 
 LUNACY— 
 
 Williams .1 7 
 
 PILOTS— 
 
 Kay . .... .17 
 
 POLICE GUIDE— 
 
 Greenwood and Martin . , 46 
 
 POLLUTION OF RIVERS— 
 
 Higgins 30 
 
 PRACTICE BOOKS— 
 
 Bankruptcy ... ... 15 
 
 Companies Law .... 29 and 39 
 
 Compensation . . . . . . .13 
 
 Compulsory Purchase . . . . 19 
 
 Coiiveyancing ...... 45 
 
 DaiHages ........ 31 
 
 Ecclesiastical Law . ... 9 
 
 Election Petitions 33 
 
 Equity . . . . . . 7, ia and 32 
 
 Injunctions . . , . . .44 
 Magisterial ........ 46 
 
 Pleading, Precedents' of ... 7 
 
 Railways .14 
 
 Railway Commission . . . , 19 
 
 Rating 19 
 
 Suprenie. Court of Judicature . . 25 
 
 PRACTICE STATUTES, ORDERS 
 AND RULES— ' ' 
 
 Emden . .- 11 
 
 PRECEDENTS OF PLEADfNG-r ' 
 
 Cunningham and Matt'inson .' ',',? 7 
 
 Mattinson and Macaskie . .' 7 
 
 PRIMOGENITURE— 
 
 Lloyd . , 13 
 
 PRINCIPLES— 
 
 . , Brice (Corporations) , . . , . 16 
 
 Browne (Rating) . .; 19 
 
 . Deane (Conveyancing). . . . 23 
 
 Harris (Criminal La\\t) , . . . 27 
 
 Houston (Mercantile) . . .: . 32 
 
 Indermaur (Common Law) '. . 24 
 
 Joyce (Injunctions) .' ; , . . 44 
 
 Ringwood (Bankruptcy) , . . , 15 
 
 Snell (Equity) 22 
 
 PRIVATE INTERNATIONAL LAW— 
 
 Foote , . , , . 30 
 
STEVENS &> ffAYNES, BELL YARD, TEMPLE BAR. 
 
 INDEX OF SUBJECTS-«»ft»««rf. 
 
 PAGE 
 
 PROBATE— 
 
 Hanson lO 
 
 Harrison 93 
 
 PROMOTERS— 
 
 Watts 47 
 
 PUBLIC WORSHIP— 
 
 Brice -33 
 
 QUARTER SESSIONS— 
 
 Smith (F. J.) 6 
 
 QUEEN'S BENCH DIVISION, Practice, 
 of— 
 
 Indermaur 25 
 
 QUESTIONS FOR STUDENTS— 
 
 Aldred 21 
 
 Bar Examination Journal ... 39 
 
 Indermaur 25 
 
 Waite 22 
 
 RAILWAYS— 
 
 Browne 19 
 
 Godefroi and Shprtt ..... 47 
 See MAGISTERIAL LAW. 
 RATING— 
 
 Browne 19 
 
 REAL PROPERTY— 
 
 Deane 23 
 
 Edwards -_ 16 
 
 Tarring 26 
 
 REGISTRATION— 
 
 Elliott (Newspa:per) 14 
 
 Seager (Parliamentary) .... 47 
 REPORTS— 
 
 Bellewe 34 
 
 Brooke 35 
 
 Choyce Cases 35 
 
 Cooke ... 35 
 
 Cunningham 34 
 
 Election Petitions 33 
 
 Finlason 32 
 
 Gibbs, Seymour Will Case . . 10 
 
 Kelyng, John . . ... . • 35 
 
 Kelynge, William . . . . . 35 
 
 Reilly .' 29 
 
 Shower (Cases in Parliament) . 34 
 ROMAN DUTCH LAW— 
 
 Van Leeuwen 3° 
 
 ROMAN LAW— 
 
 Brown's Analysis of Savigny . . 20 
 
 Campbell 47 
 
 Harris 20 
 
 Salkowski '4 
 
 WhitHeld 14 
 
 SALVAGE— 
 
 Jones 47 
 
 Kay 17 
 
 SANITARY ACTS— 
 
 See MAGISTERIAL LAW. 
 
 SAVINGS BANKS- ^ 
 
 Forbes "> 
 
 SCINTILLAE JURIS- 
 
 Darling(C. J.) i» 
 
 SEA SHORE— i-AGB 
 
 Hall 30 
 
 Moore 30 
 
 SHIPMASTERS AND SEAMEN— 
 
 Kay 17 
 
 SOCIETIES— 
 
 See CORPORATIONS. 
 STAGE CARRIAGES— 
 
 See MAGISTERIAL LAW. 
 STAMP DUTIES— 
 
 Copinger 40 and 45 
 
 STATUTE OF LIMITATIONS— 
 
 Banning 42 
 
 STATUTES— 
 
 Craies 9 
 
 Hardcastle. 9 
 
 Marcy 26 
 
 Thomas 28 
 
 STOPPAGE IN TRANSITU— 
 
 Campbell 9 
 
 Houston < 32 
 
 Kay 17 
 
 STUDENTS' BOOKS . 20—28, 39, 47 
 SUCCESSION DUTIES— 
 
 Hanson. . . . . . . .. l_ 10 
 
 SUCCESSION LAWS- 
 
 Lloyd 13 
 
 SUPREME COURT OF JUDICA- ; 
 TURE, Practice of— 
 
 Cunninghaip and Rt^-ttjiison . . 7 
 
 Indermaur 25 
 
 TELEGRAPHS— 
 
 ■ See MAGISTERIAL LAW. 
 TITLE DEEDS— 
 
 Copinger 45 
 
 TORTS— 
 
 Ringwood 13 
 
 TRADE MARKS— 
 
 Daniel 42 
 
 TREASON— 
 
 Kelyng 35 
 
 Taswell-Langmead ..... 21 
 
 TRIALS— Bartlett, A. (Murder) . . 32 
 Queen v. Gurney ....... 32 
 
 ULTRA VIRES— 
 
 Brice 16 
 
 USAGES AND CUSTOMS— 
 
 Browne I9 
 
 Mayne ■ 38 
 
 VOLUNTARY CONVEYANCES— 
 
 May .29 
 
 WATER COURSES— 
 
 Higgins. ........ 30 
 
 WILLS, CONSTRUCTION OF— 
 Gibbs, Report of Wallace v. 
 
 Attorney-General 10 
 
 WORKING CLASSES, Housing of— 
 Lloyd 13 
 
6 STEVENS &' HAYNES, SELL YARD, TEMPLE BAR. 
 
 Third Edition, in 8vo, in preparation, 
 
 THE LAWS OF INSURANCE: 
 
 dFtte, Htfe, Slccitiettt, anir ffiuarantee. 
 
 ' ' EMBODYING 
 
 CASES IN THE ENGLISH, SCOTCH, IRISH, AMERICAN, AND 
 CANADIAN COURTS. 
 
 By JAMES BIGGS PORTER, 
 
 OF THE INNER TEMPLE AND SOUTH EASTERN CIRCUIT, BARRISTER- AT -LAW. 
 ASSISTED BY 
 
 W, FiEILDEN CRAIES, M.A., ' 
 
 OF THE INNER TEMPLE AND WESTERN CIRCUIT, BARRISTER-AT-LAW. j 
 
 ** In reviewing the first edition'of this book we expressed ah opinion that it was a painstaking aird 
 useful work. Its utility has been shown by the speedy appearance of the present edition, and" the^labour 
 of its authors is still apparent to anyone who will glance through its pages," — Solicitor^ Journal. 
 
 " The success of the first edition proyes its value. It is clearly and concisely compiled, and upwards of 
 I, SOD cases are quoted. "-^Ld-w Times._ 
 
 ' ' Mr. Porter's useful book on insurance law has reached a second edition in less than three years, which 
 is not common in-a book of this- class. The fact is, th^t in taking up insurance law in alj its branches, 
 except marine insurance, he hits upon a popular subject. . . . ' . Mr. Porter wtiU fills the gap thus 
 made for him, and he has called to his aid a useful coadjutor in the person of Mr.-Graies.'' — Law Journal. 
 
 " When writing on the first edition in 1884, we ventured to predict for Mr. Porter'^ work a great success. 
 We spoke in terms of unqualified commendation concerning the lucidity of the author's style, the thorough- 
 ness of his work and his' HappV gift of narrowing down, broad and diffusive subjects into a small space. 
 Practical experience of the contents, of the volume during the past three years has^ we may say, fully con- 
 firmed our favourable views." — Insurance Record. — . . . 
 
 In Royal i2ino, pricie 20^., cloth, 
 
 QUARTER SESSIONS PRACTICE, 
 
 A VADE MECUM OF GENERAL PRACTICE IN APPELLATE AND 
 CIVIL CASES AT QUARTER SESSIONS. 
 
 By FREDERICK JAMES SMITH, 
 
 OF THE MIDDLE TEMPLE, ' BARRISTER-AT-LAW, AND RECORDER OF MARGATE. . 
 
 Third Edition. In one volume, 8vo, nearly ready, 
 
 A COMPENDIUM OF THE LAW RELATING TO 
 
 EXECUTORS AND ADMINISTRATORS, with an Appendix of 
 
 Statutes, Annotated by means of References to .the Text. By W. Gregory 
 Walker, B.A., Barfister-at-Law, and Edgar J. ElGood, B.C.L., M.A., 
 Barrister-at-Law. Third Edition by E. J. Elgood, B.C.L., M.A. 
 
 "We highly approve of Mr. Walker's- arrange- 
 ment, u . . . The Notes are full, and as far as we 
 have been able to ascertain, carefully and accurately 
 
 compiled We can commend it as bearing 
 
 on its face evidence of skilful and careful labour, 
 and Wie anticipate that it will be found a very 
 acceptable substitute for the ponderous tomes 
 of the' inuch esteemed and valued Williams." — 
 Law Times. 
 
 " Mr. Walker is fortunate in his choiceof a sub- 
 ject, and the power of treating it . succinctly '; fbr 
 the ponderous tomes-of Williams, however satisfac- 
 tory as an authority, are necessarily inconvenient 
 for reference as well as expensive. .... .* On the 
 
 whole we are inclined to think the book a good and 
 useful one." — Lazv journal. 
 
 In royal i2mo, price 4^., cloth, 
 A DIGEST OF THE LAW OF 
 
 PRACTICE UNDER THE JUDICATURE ACTS AND RULES, 
 
 AND THE CASES DECIDED IN THE CHANCERY AND COMMON LAW DIVISIONS 
 
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 By W. H. HASTINGS KELKE, M.A., Barrister-at-Law. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in 8vo, price ^s. , cloth, 
 
 THE LAW OF MAINTENANCE AND DESERTION, 
 
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 Second Edition. Crown 8vo, price %s. 6d., cloth, 
 
 THE LAW OF ARBITRATION AND AWARDS; 
 
 With Appendix containing Lord Denman's ARBITRATION BILL, AND 
 STATUTES RELATING TO ARBITRATION, and a collection of Forms 
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 *^* Tke SuppltTnent can be had separately, price 6d. 
 
 In crown 8vo, price 6s. , cloth, 
 
 THE PRINCIPLES OF MERCANTILE LAW. By 
 
 Joshua Slater, of Gray's Inn, Barrister-at-Law. 
 In 8vo, price izs., cloth, 
 
 THE LAW AND PRACTICE OF DISCOVERY i» 
 
 the SUPREME COURT of JUSTICE. With an Appendix of Forms, | 
 
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 EEVII!"WS. 
 
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 are excellent, and the precedents will be found very useful."— /«M Law Times. . „ ■ • , 
 
 "A work which, in the compass of a single portable volume, Contains a brief Ireatise on the Principles 
 and Rules of Pleading, and a carefully annotated body of Forms which have to a great extent gone through 
 the entirely separate sifting processes of Chambers Court, and Judges Chambers, cannot fail to be a most 
 useful companion in the Practitioner's daily routine. —Law Magazine and Revievt. 
 
STEVE IVS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in two volumes, ro3»al 8vo, price 70^.,- cloth. , 
 
 NEGLIGENCE IN LAW 
 
 Being the Second Edition of "Principles of the Law ofKegligence," 
 Re-arranged and Re-written. 
 
 By /TiJOMAS - BEVEN, ,, ~, , 
 
 OF THE INNER TEMPLE," BARR1STER-AT-£aW \ AUTHOR OF " THE LAW OP EMPLOVEKS' LIABILITY 
 } FOR THE.NEIGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW-SERVAliTS.f! ' 
 
 REvmws. 
 
 " These volumes, says Mr. Beven in the preface, ihayte regarded asasecond edition o! his * Principles 
 of the Law of Negligence,' in so far as the subjects treated^ of in both books are the same ; and the 
 materials collected m the one have been- used without reserve in the other. As to anything beyond this, 
 he continues, the present js a new work. The arrangement is altogether different from that previously 
 adoijited. INJearly a half q% the contents of these volumes is absoJatQly new, and 'of the remaini^^rtlie^ie 
 is very little' which b^ not been materially modified, if not in substance, yet in expression. t-i. ,' ) > 
 
 "Upon its first appearance, the .''Prineifjles of the Law of NegUgence' was at once r^Mgnized as a 
 work of the highest importance, and the ability and industry which Mr. Beven had brought to bear upon 
 his task laid the profession under no ordinary obligation. The service which he then renderal has been 
 greatly increased by th^ production of this secoiid edltiori, and the book deserves a place in the first 
 rank among authoritative -expc^itio^^ the law. .-.■-.■'... i " , , " 
 
 " The chief characteristic of Mr. ©even's method Isthoroughness. He is not himself in a huiry, and 
 it is certainly useless for hi^ readers to be so. The .law is to be found in his pages, and, yhen found, it is 
 clearly enunciated J but it is always deduced from a fiiU and dis9rihtihating examination of'multitudmous 
 cases — English and American — and readers must be content to survey, leisurfcly and cautibusly, with Mr. 
 Bfiveni.tlie vholeufield of judicial ^xp^o^tion, and to follow bis ownioa^^ful ^d elaborate criticism, if they 
 would gain the full benefit of the results at which he arrives. The book is not meant to .be taken up 
 for a hasty reference, and often the lawyer may find it more convenient to resort to a treatise more concise. 
 On the other hand, it will be an" invaluable companion- in the considai^tion of any matter whirfi requires 
 research, and the style and arraRgpjjnpnt is ^uph f^liat, whether the book, is used for purposes of business or 
 of general study, it cannot fail to prove deeply interesting. . . . 
 
 "The above account is but a sketch of Mr. Beven's great work. It is impossible within the present 
 limits to give an adequate idea of the variety of topics which are included, of the learning and jKitieijce with 
 which they are discussed. Negligence may only be an aspedt of the law; but the | tre^trne^t here 
 accorded to it throws into prominence a host oftjuestions of the utmost importance, both practically and 
 theoretically. By his contribution to (he due understanding of these Mr. Beven ^has placed the profes- 
 sion under a lasting obligation^ an obli^tion which no readfer of his work will fail' to realizej"— vS'(7/iczV(7rj' 
 youhtal.. ' ":' ' - ", ' . ' ' " ,• . 1 : ; i _' 
 
 " The book upon, jvhich t^is is, foiyided, and which is, in a measure a former edition of tl^e present 
 volumes, has made Mr. Beven'an authority on the subject" of the law of negligence. He h'as,"in writing 
 these volumes, made full useoTh s former latours ; but he claims that in reality the present work is a 
 new one, and his claim is justified. . . . Just occasionally a well-written and ably-conceived law 
 book is published, and such^ one is this of Mr. Beven's. We think that to compare it with other books 
 on thi^ subject would be impossible ; it stands easily the best book on the subject. In clear '^positson of 
 law, for good classification of subject-matter, for accuracy of detail, and for eve_ry arrangement to fecili- 
 tate reference it cannot be beaten. We may congratulate Mr. Beven upon the accomplishment of his 
 laborious task ; he has given to the profession a .valuabler^ork, and Qne ^^ichwill ^hanjce his reputa^on 
 as a writer on the Law of ?Jegljgence."— iaw/ ^oumal^ August 3, 1895. 
 
 " H».has treated^ the well-known subject of N.egligeijce in a scientific way, and has not been content with 
 nierely collecting, in more (^r less relevant positions, a number of cases which anyone, could find for himself 
 in any Digest of jLaw Reports, but has endeavoured to reduce froni the "chaos of decided cases a systematic 
 study of the subject, with clea,r enunciations of the principles he finds/governing the various, decisions. In 
 the arrangement of the book the author has been very happy in his mttlidd, a by no means esasy task in the 
 treatment of a subject in which each branch pf it in reality overlaps another. ... A good index and 
 clear type increase the value of a book which will without doubt receive the hearty commendation of the 
 profession as a successful completipn pf the author's ambitioi^s task." — Laiv Times. _ 
 
 "In respect ofthe style oftreatr(ient of the subject, the book must be highly commend^edT- It will be. of 
 service to every lawyer who wishes rather to get an intelligent understanding of the La-w of Negligence, 
 than merely to find correct and reliable legal propositions forpractical use, and that whether he be astudent 
 or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the 
 cases ; and to the practitioner there are presented all the cases that bear on most points for which he may 
 be in search of authority. One of the chief merits of the work is, that all the available authority on each 
 point IS gpllecte;d and s,o arranged that it can be easily tG\XTA"—JuriditaZ Review. 
 
 • *' 9°^'^^^"= evidence of much serious work, ahd ought to receive a fair trial at the hands of the profes- 
 sion. — I^aw Quarterly Rez'tetv. 
 
STJSVE^rS &- HAYNES, BELL YARD, TEMPLE BAR. 9 
 
 Second Edition, in royal 8vo, price 38^., cloth, 
 
 THE LAW OF THE DOMESTIC RELATIONS, 
 
 INCLUDING 
 
 HUSBAND AND WIFE : PARENT AND CHILD : GUARDIAN AND 
 WARD : INFANTS : AND MASTER AND SERVANT. 
 
 By WILLIAM FINDER EVERSLEY, B.C.L., M.A., 
 
 OF TKE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "We are glad to see a second edition of Mr. Eversley's useful work. There is a convenience in having 
 the various subjects of which it treats collected in one volumcj while at the same time each is handled 
 with such fulness as to give the reader all the information he could expect in a separate volume. Mr. 
 Eversley states the law with the most painstaking thoroughness, and has made an exhaustive survey of 
 all the relevant statutes and cases. . . Great care has been taken to make the present edition complete 
 and accurate, and a very full index adds to its utility." — Solicitors^ Journal. 
 
 " Important statutes and cases have come into operation since the first edition, and this has induced 
 Mr. Eversley to give the contracts of married women separate treatment. Careful revision to date now 
 makes this treatise comprehensive and thoroughly reliable." — Law Times. 
 
 "This is an important and almost a.leadins; treatise on domestic law. The former edition was received 
 with merited favour. Its value has become well known, and now, after an interval of eleven years, the 
 learned author has brought out a second edition." — Laiv Journal. 
 
 " It is only necessary to refer to Mr. Eversley's learned and scholarlike work on ' The Domestic Rela- 
 tions,' a book which, though technically belonging to the forbidding ranks of ' Law Books,' is yet full of 
 human interest, and written, moreover, in the English language." — Edinburgh Review. 
 
 Second Edition, in one volume, royal 8vo, price 32^., cloth, 
 THE LAW RELATING TO THE 
 
 SALE OF GOODS AND COMMERCIAL AGENCY, 
 
 SECOiVB EDITION. 
 By ROBERT CAMPBELL, M.A., 
 
 OF Lincoln's inn, barrister- at-law ; advocate of the scotch bar. 
 
 AUTHOR OF the " LAW OF NEGLIGENCE," ETC. 
 
 "An accurate, careful, and exhaustive handbook on the subject with which it deals. The excellent 
 index deserves a special word of commendation." — Law Quarterly Review, 
 
 " We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu- 
 tion of value to the subject treated of, and that the writer deals with his subject carefully and fully." — 
 La-w Journal. 
 
 Second Edition, in one volume, 8vo, price 28,r., cloth, 
 A TREATISE ON 
 
 THE CONSTRUCTION AND EFFECT OF 
 STATUTE LAW. 
 
 WITH APPENDICES CONTAINING WORDS AND EXPRESSIONS USED IN STATUTES 
 
 WHICH HAVE BEEN JUDICIALLY OR STATUTABLY CONSTRUED, AND 
 
 THE POPULAR AND SHORT TITLES OF CERTAIN STATUTES. 
 
 By HENRY HARDCASTLE, Barrister-at-law. 
 SECOND EDITION, REVISED AND ENLARGED, v^ W. F. CRAIES, 
 
 BARRISTER- AT-LAW, 
 
 "The result of Mr. Craies' industry is a sound and good piece of work, the new Hght thrown 
 on the subject since 1879 having been blended with the old in a thoroughly workmanlike 
 manner Though less a student's manual than a practitioner's text book, it is the sort of 
 volume an intelligent perusal of which would educate a student better than the readmg of 
 much substantial la.'n ." —Saturday Review. 
 
10 STEVENS 6- HAYNBS, BELL YARD, TEMPLE BAR. 
 
 Fourth Edition, in 8vo, price 30J., doth, 
 
 HANSON'S DEATH DUTIES; bei«gthe Fourth Edition of 
 
 the Acts relating to Estate Duty Finance, Probate, Legacy, and Succession 
 Duties. Comprising the 36 Geo. III. c. 52 ; 45 Geo. III. c. 28 ; 55 Geo. III. 
 c. 184; and 16 & 17 Vict. c. 51; the Customs and Inland Revenue Acts, 
 43 Vict. c. 14; and 44 Vict. c. 12; also the- New Estate Duty Finance Acts, 
 57 & 58. Vict. c. 30, , and 59 &. .60 Vict. c. 28; with an Introduction, 
 Copious Notes, and References to all the Decided Cases in England, Scot- 
 land, and Ireland, ' An Appendix and a. full Index. By Alfred IIanson, of 
 the Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Suc- 
 cession Duties. Fourth Edition by Lewis T, Dibdin, M.A., D.C.L., and 
 F. H. L. Errington, M.A., Barristers-at-Law. 
 
 " It is remarkable how surely a really good legal 
 treatise finds favour with the Profession. The late 
 Mr. Hanson's edition of the Acts relating to "Es- 
 tate, Probate, Legacy and Succession Duties,"is 
 one of these. ... . . The passing of the Finance 
 
 Acts of 1894' arid j8q6 have caused the introduction 
 of new matter. We recognise a decided improve- 
 ment in the work, which we think will enhance its 
 
 reputation with the ' Profession, and all interes'ted' 
 in a somewhat difficult subject.'' — La-'uti Times. 
 
 """Of all the various treatises on the subject to 
 which the recent Acts have given birth, the one 
 under review strikes us as the fullest and best, arid 
 "we heartily recommend it to all seeking instruction 
 on these difficult statutes." — Irish Law limes. 
 
 In one Volume, royal 8vo, price 50^-. 7zet, 
 
 THE LAW AND PRACTICE IN LUNACY; with 
 
 the L^nacy Acts, 1890-91 (Consolidated and Annotated); the Rules of Lunacy, 
 Commissioners; the Idiots Act, 1886; the Vacating of Seats Act, l886 ; the 
 Rules in Lunacy ; the Lancashire County (Asylums and other powers) Act, 1891-; 
 the Inebriates Act, iSygand 1888 (Consolidated and Annotated) ; the Criminal 
 Lunacy Acts, 1800-1884 ; and a Collection of Forms, Precedents, &c. By A. 
 Wood Kenton, Barrister-at-Law. '.-,'. " ' ' 
 
 In 8vo, price 30J., cloth, 
 
 THE PRACTICE ON THE CROWN SIDE 
 
 Of the Qneen's Bench DiYision of Her Majesty's High Court of Justice 
 
 (Founded on Corner's Crown Office Practice), including 
 Appeals from Inferior Courts; with Appendices of Rules and Forms, 
 
 By F. H. SHORT, Chief Clerk of the Crown Office, and 
 
 FRANCIS HAMILTON MELLOR, M.A., Barrister-at-Law. 
 
 In 8vo, price 12s., cloth, 
 
 THE CROWN OFFICE RULES AND FORMS, 1886. 
 
 The Supreme Court of Judicature Acts and Rules of the Supreme Court, 1883, relating to 
 the Practice on the Crown side of the QueeyiJs Bench Division ; including Appeals 
 from Inferior Courts, Tables of Court Fees', Scales of Costs ; together with Notes, 
 Cases, f.nd a Full Index. By F. H. SHORT, Chief Clerk of the Crown Office. 
 
 In royal 8vo, 1877, price loj., cloth, 
 
 THE CASE OF LORD HENRY SEYMOUR'S WILL 
 
 (WALLACE V. THE ATTORNEY-GENERAL). 
 
 Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister-at-Law, 
 
 I-ATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. 
 
 In 8vo, 1867, price ids., cloth, 
 
 CHARITABLE TRUSTS ACTS, 1853, 1855, 1860; 
 
 THE CHARITY COMMISSIONERS' JURISDICTION ACT 1862; 
 THE ROMAN CATHOLIC CHARITIES ACTS: ' 
 Together' with a Collection of Statutes relating to or affecting Charities including the 
 Mortmain Acts, Notes of Cases from 1853 to the present time. Forms of Decla- 
 rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a 
 very copious Index. Second Edition. 
 By HUGH COOKE and R. G. HARWOOD, of the Charity Commission. 
 
SJEKE^i'S 6- HAYNES, BELL YARD, TEMPLE BAR. 11 
 
 In one Volume, 8vo, price 2cw., cloth, 
 THE 
 
 PRINCIPLES OF COMMERCIAL LAW; 
 
 WITH AN. APPENDIX OF STATUTES, ANNOTATED BY MEANS OF 
 REFERENCES TO THE TEXT. 
 
 By JOSEPH HURST and LORD ROBERT CECIL, 
 
 OF THE INNER TEMPLE, BARRISTERS-AT-LAW. 
 
 "Their compendium, we believe, will be found a really useful volume, one for the lawyer and the 
 busmess man to keep at his elbow, and which, if not giving them all that they require, will place in their 
 hands the key to the richer and more elaborate treasures of the Law which lie in larger and more exhaus- 
 tive works." — Latv Times. 
 
 "The objectof the authors of this work, they tell us in their preface, is to state, within a moderate 
 compass, the principles of commercial law. Very considerable pains have obviously been expended on the 
 task, and the book is in many respects a very serviceable one." — La-w Journal. 
 
 Second Edition, in royal 8vo, price 25^., cloth, 
 THE 
 
 RELATIONSHIP OF LANDLORD AND TENANT. 
 
 By EDGAR FOA, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "Will be found of much value to practitioners, and when a second edition has given the author the 
 opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place 
 as a very good treatise on the modem law of landlord and tenant." — Solicitors' youmal. 
 
 " Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum- 
 bered by so many decisions as the Law of Landlord and Tenant. But his boldness is justified by the 
 excellent arrangement and by the lucid statements which characterise his book."' — Lauu Quarterly Revienv. 
 
 "Mr. Foa's is a compact work, treating (i) of the creatioil of the relationship; (2) the incidents of 
 creation (distress) and determination of the relationship; (3) modes and incidents of determination. We 
 commend it to the attention of the Profession and predict for Foa on Landlord and Tenant a very useful 
 and very permanent future." — Law Times. 
 
 "We have nothing but praise for the work, and we shall be astonished if it does not take rank In 
 course of time as one of the best — if not the best — work for every-day practice on the subject of Landlord 
 and Tenant." — L,aiv Notes. 
 
 "Without making any invidious comparison with existing works on the subject, we may frankly say 
 that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly 
 favourable one." — La-w Students' yourytal. 
 
 " ' The Relationship of Landlord and Tenant,' written by Mr. Edgar Foa, Barrister-at-Law, affords a 
 striking instance of accuracy and lucidity of statement. The volume should be found useful not only by 
 lawyers but by landlords and tenants themselves, the law in each particular being stated with a simphcity 
 and clearness which bring it within the grasp of the lay mind." — Law Gazette, 
 
 Second Edition, in one Volume, medium 8vo, price 35J., cloth, 
 
 EMDEN'S COMPLETE COLLECTION 
 
 OF 
 
 PRACTICE STATUTES, 
 
 ORDERS AND RULES. 
 
 Being a Selection of such Practical Parts of all Statutes, Orders and Rules as are now 
 in force, and relate to the Practice and Procedure of the Supreme Court. From 
 1275 to 1886. With Tabulated Summaries of the Leading Cases and Analytical 
 Cross-references. 
 
 By ALFRED EMDEN, 
 
 OF THE INNKR TEMPLE, ESQ., BARRISTER-AT-LAW ; AUTHOR OP " THE PRACTICE IN WINDING-UP 
 
 companies;" "the law relating to building, building LEASES, AND contracts;" 
 "the shareholder's legal guide," etc. 
 
 ASSISTED BY 
 
 HERBERT THOMPSON, M.A., 
 
 of the inner temple, BARKISTER-AT-hAW. 
 
12 STEVENS cj- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In royal Svo, price 28^., cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE 
 
 RELATING TO 
 
 LETTERS PATENT for INVENTIONS. 
 
 WITH AN 
 
 APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, 
 RULES, FORMS AND PRECEDENTS, ORDERS, &c. 
 
 By ROBERT FROST, B.Sc. (Lond.), 
 
 FELLOW OF THE CHEMICAL SOCIETY ; OF LINCOLN'S INN, ESQUIRE, BARRISTER- AT- LAW. 
 
 " In our view a good piece of work may create a demand, and without disparaging existing literature 
 upon the subject of patents, we think the care and skill with which the volume by Mr. Frost has been 
 compiled entitles it to recognition , at the hands of the profession. . . . Judging Mr. Frost on this 
 ground, we find him completely satisfactory. A careful examination of the entire volume satisfies us that 
 great care and much labour have been devoted to the production of this treatise, and we think that patent 
 agents, solicitors, the bar and the bench, may confidently turn for guidance and instruction to the pages 
 of Mr. Frost." — Lazv Times. 
 
 "Few practice books contain so much in so reasonable a space, and we repeat that it will be found 
 generally useful by practitioners in this important branch of the law. . . A capital index concludes 
 
 the book." — Law Journal. 
 
 " The book is, as it professes to be, a treatise on patent law and practice, the several topics being con- 
 veniently arranged and discussed in the thirteen chapters which form the body of the work, to which 
 are appended statutes, rules, and forms. The statements of the law, so far as we have been able to test 
 them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is 
 a good one, and will make its way. The index is better than usual. Both paper and type are ako 
 cxcel\ent."—So/zcztor-5' yournaL 
 
 Second Edition. In two volumes, royal Svo, price 50J., cloth, 
 
 A PRACTICAL TREATISE ON THE 
 
 LAW OF BUILDING AND 
 ENGINEERING CONTRACTS, 
 
 And of the DUTIES and LIABILITIES of ENGINEERS, ARCPIITECTS, 
 
 SURVEYORS AND VALUERS, 
 
 WITH AN APPENDIX OF PRECEDENTS, 
 
 ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS 
 
 IN USE. 
 
 AND AN APPENDIX OF UNREPORTED CASES 
 
 ON BUILDING AND ENGINEERING CONTRACTS. 
 
 By ALFRED A. HUDSON, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 " This is a book of great elaboration and completeness. It appears from the preface that the author has 
 the twofold qualification of technical knowledge of building, gained as an architect, and devotion to the 
 legal aspects of building, engineering, and shipbuilding contracts since he became a member of the bar. 
 .... The list of cases cited covers fifty large pages, and they include, not merely English, but American 
 
 and Colonial decisions The book as a whole represents a large amount of well-directed labour and 
 
 it ought to become the standard work on its ^Vi\iy^cx."-— Solicitors' J oHmaL * 
 
 " A very full index completes the book. Mr. Hudson has struck out a new line for himself, and pro- 
 duced a work of considerable merit, and one which will probably be found indispensable by practitioners 
 inasmuch as it contains a great deal that is not to be found elsewhere. The Table of Cases refers to all 
 the reports." — Law JoiimaL 
 
 " Mr. Hudson, having abandoned his profession of an architect to become a barrister, hit upon the idea 
 of writing this work, and he has done it with a thoroughness which every houseowner would like to see 
 bestowed upon modern houses. . . . . The Index and Table of Cases reveal a vast amount of industry 
 expendea upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his 
 labours by obtaining a large and appreciative public." — Law Times. 
 
STEVENS &- ffAYA'ES, BELL YARD, TEMPLE BAR. 
 
 13 
 
 Third Edition. In 8vo, in preparation, 
 
 OUTLINES OF THE LAW OF TORTS. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TEMPLE, BARKISTER-AT-LAW ; AUTHOR OF "PRINCIPLES OF BANKRUPTCY," &C., 
 AND LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY. 
 
 Ihisisawork by the well-known author of a student's book on Bankruptcy. Its groundwork is a 
 series of lectures delivered m 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law 
 bociety. It is clear, concise, well and intelligently written and one rises from its perusal with feelings of 
 pleasure. . .^ . After perusing the entire work, we can conscientiously recommend it to students." — 
 1.WW Students Journal. 
 
 " The work is one we well recommend to law students, and the able way in which it is written reflects 
 much credit upon the author." — Law Times. 
 
 "Mr. Ringwood's book is a plain and straightforward introduction to this branch of the law."— iaii/ 
 youmal. 
 
 *,* Prescribed as a text-book by the Incorporated Laiu Society 0/ Ireland. 
 
 Sixth Edition, in 8vo, price ixs., cloth, 
 
 THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. 
 
 UNDER THE LANDS CLAUSES CONSOLIDATION ACTS, THE RAILWAYS 
 
 CLAUSES CONSOLID.ATION .4CTS, THE PUBLIC HEALTH ACT, 1873 ; 
 
 THE HOUSING OF THE WORKING CLASSES ACT, 1890; 
 
 THE METROPOLIS LOCAL MANAGEMENT ACT, 
 
 AND OTHER ACTS, 
 
 WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. 
 By eyre LLOYD, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 SIXTH EDITION. 
 By AV. J. BROOKS, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 *' In providing the le^al profession ivitk a book nvkich contains tJte decisions oj the Courts oj Law and 
 Eqtdiy -upon the various statntes relating to tlie Laiv of Compensation, Mr. Eyre Lloyd has long since 
 left all competitors in the distance, and his book may now he considered the standard ivork upon the sub- 
 ject. The plan of Mr. Lloyds book is generally known, afid its lucidity is appreciated; the presefit quite 
 fulfils all the promises of t lie preceding editions, and contains in addition to other tnaiter a complete set 
 of forms under the Ariiza?is a?td Labourers Act, 1875, a?td specitnefis of Bills of Costs, ivkickivill be found 
 a novel feature, extremely useful to legal practitioners." — Justice of the Peace. 
 
 In 8vo, price 7j., cloth, 
 
 THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, 
 
 WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE 
 AS IT EXISTS IN ENGLAND. 
 
 By eyre LLOYD, B.A., Barrister-at-Law. 
 In crown 8vo, price bs,, cloth, 
 
 ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY. 
 
 By JOHN W. SALMOND, M.A., LL.B. (Lond.), 
 
 a barrister of the supreme court of NEW ZEALAND. 
 
 In crown 8vo, price 6j-., cloth. 
 
 THE FIRST PRINCIPLES OF JURISPRUDENCE. 
 
 By JOHN W. SALMOND, M.A., LL.B., 
 
 barrister-at-law; author of "essays in jurisprudence and LEGAL history.' 
 
14 STEVENS dr= HAVNES, BELL YARD, TEMPLE BAR, 
 
 In 8vo, price Ts. 6d., cloth, 
 
 THE LAW OF 
 
 NEGOTIABLE SECURITIES. 
 
 CONTAINED IN A COURSE OF SIX LECTURES. 
 Delivered by WILLIAM WILLIS, Esq., Q.C, 
 
 AT THE REQUEST OF 
 
 THE COUNCIL OF LEGAL EDUCATION. 
 
 In one large vol., 8vo, price 32^., cloth, 
 
 INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, 
 
 WITH CATENA OF TEXTS. 
 
 By Dr. CARL SALKOWSKI, Professor of Laws, Konigsberg. 
 Translated and Edited by E. E. Whitfield, M.A. (Oxon.). 
 
 In 8vo, price 4^. dd. , cloth, 
 THE 
 
 NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. 
 
 WITH A STATEMENT OF THE LAW OF LIBEL AS AFFECTING 
 PROPRIETORS, PUBLISHERS, and EDITORS OF NEWSPAPERS. 
 
 By G. ELLIOTT, Barrister-at-Law, of the Inner Temple. 
 In one volume, royal 8vo, 
 
 CASES AND OPINIONS ON CONSTITUTIONAL LAW, 
 
 AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. 
 
 COLLECTED AND DIGESTED FROM OFFICIAL DOCUMENTS 
 
 AND OTHER SOURCES. 
 
 IV7TJ/ NOTES. 
 
 By WILLIAM FORSYTH, M.A., M.P., Q.C, 
 
 STANDING COUNSEL TO THE SECRETARY OF STATE IN COUNCIL OF INDIA, 
 
 Author of " Hortensius," " History of Trial by Jury," " Life of Cicero," etc., 
 late Fellow of Trinity College, Cambridge. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 15 
 
 Sixth Edition, in 8vo, price \os. 6ci., cloth, 
 
 THE PRINCIPLES OF BANKRUPTCY. 
 
 WITH AN APPENDIX, 
 
 CONTAINING 
 
 THE CONSOLIDATED RULES OF 1886, 1890 & 1891, SCALE OF 
 
 COSTS, AND THE BILLS OF SALE ACTS, 1878, 1882, 1890 &. 
 
 1891, AND THE RULES THEREUNDER; THE DEEDS OF 
 
 ARRANGEMENT ACT, 1887, AND THE RULES THEREUNDER. 
 
 By RICHARD RINGWOOD, M.A., 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN. 
 
 *' We welcome a new edition of this excellent student's book. We have written favourably of it in 
 reviewing previous editions, and every good word we have written we would now reiterate and perhaps 
 even more so. . . . In conclusion, we congratulate Mr. Ringwood on this edition, and have no 
 hesitation in saying that it is a capital student's book." — Lazv Students' Joiimal. 
 
 "This edition is a considerable improvement on the first, and although chiefly written for the use of 
 Students, the work will be found useful to the practitioner." — Law Times. 
 
 Seventh Edition, in 8vo, price 21^., cloth, 
 A TREATISE UPON 
 
 THE LAW OF BANKRUPTCY 
 
 AND 
 
 BILLS OF SALE. 
 
 \A^ITH AN APPENDIX 
 
 CONTAINING 
 
 THE BANKRUPTCY ACTS, 1883— 1890; GENERAL RULES, 
 
 FORMS, SCALE OF COSTS AND FEES; 
 
 RULES UNDER S. 122 OF 1888; DEEDS OF ARRANGEMENT ACTS, 
 
 1887— 1890; RULES AND FORMS ; BOARD OF TRADE AND 
 
 COURT ORDERS ; DEBTORS ACTS, 1869, 1878 ; RULES AND FORMS; 
 
 BILLS OF SALE ACTS, 1878— 1891, Etc., Etc. 
 
 By EDWARD T. BALDWIN, M.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "The seven editions simply record the constant progress of case growth and statute law. It is a 
 remarkably useful compendium."— i:<iOT rz»;M, July 20, 1895. , ^ ,j . , , . . „ . 
 " As a well-arranged and complete collection of case law this book should be found of great use. —Law 
 
 yoiimal, July 20, 1895. „„,..,.„ , xt u o 
 
 "Carefully brought down to date."— i^o/!n/«rj yoKrwr/, November 9, 1893. ... 
 
 " We have always considered the work an admirable one, and the present edition is quite up to the 
 previous high standard of excellence. We know of no better book on bankruptcy for the practitioner's 
 lihrBXy."— Law Students yaurnal, ^n%\lit, Tigs. . . ,. . ■■■ r 
 
 " Practitioners may, we feel sure, safely rely on its accuracy. A distinct acquisition for reference 
 purposes to the shelf of any practitioner."— ZaTO Nates. 
 
16 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 Third Edition, in one vol., price los., cloth, 
 
 A COMPENDIUM OF THE LAW OF 
 PROPERTY IN LAND. 
 
 FOR THE USE OF STUDENTS AND THE PROFESSION. 
 
 THIRD EDITION. 
 
 By WILLIAM DOUGLAS EDWARDS, LL.B., 
 
 OF Lincoln's inn, barristkr-at-la\v. 
 
 " We consider it one of the best works published on Real Property Law,'' — Law Students' your?iaL 
 
 ' ' Another excellent compendium which has entered a second edition is Mr. Edwards' ' Compendium of 
 the Law of Property in Land.' No work on English law is written more perspicuously. . . . Mr. 
 Edwards has manifestly bestowed the utmost care in putting into the most modern dress a treatise which 
 we think will continue to' grow in the estimation of the profession." — Law Times. 
 
 "We formed a very favourable opinion of the first edition of this little book, and our opinion is con- 
 firmed by the perusal of the second edition. The author has the merit of being a sound lawyer, a merit 
 perhaps not always possessed by the authors of legal text-books for students." — Law Quarterly Review. 
 ■ "The book is certainly destined to take a high place as a standard "work on the Law of Property in 
 
 Land. The style is good, the conclusions, of law are accurate, and the authorities are well selected 
 
 The amount of detail is much greater than in Williams As a companion volume to it, we can with 
 
 great confidence recommend it to the student ; and the practitioner will find it a very useful epitome of 
 the modern law. Altogether it is a work, for which we are indebted to the author, and is worthy of the 
 improved notions of law which the study of jurisprudence is bringing to the ixoxit." —Solicitors* youmal. 
 
 " This book shows signs of thorough work throughout The book is a business-like and useful 
 
 performance." — Law yournal. 
 
 Third Edition, royal 8vo, price 38^., cloth, 
 THE 
 
 LAW OF CORPORATIONS AND COMPANIES. 
 
 A TREATISE ON THE DOCTRINE OF 
 
 ULTRA VIRES: 
 
 BEING 
 
 An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of 
 CORPORATIONS, 
 
 AND MORE ESPECIALLY OF 
 
 JOINT STOCK COMPANIES. 
 
 By SEWARD BRICE, M.A, LL.D, London, 
 
 OF THE INNER TEMPLE, ONE OF HER MAJESTV's COUNSEL. 
 
 THIRD EDITION. 
 
 KEVISED THROUGHOUT AND ENLARGED, AND CONTAINING THE 
 UNITED STATES AND COLONIAL DECISIONS. 
 
 REVIEWS. 
 Jy«/;..S:.''ls'TURorvXl^Tw'!'''- ^""■--^"-"- --^ - valuaUeaHdmontome literature./ 
 
 .gent ; and M,-. Brice does not do\is book justice bj gTv^T^ sXTuel^ir-^li^J-lS"^'' ""' 
 Lord Justice BRAMWELi, in tke Case of Ev^r^M.T.tl^V ^ylt (L T j^Q i^Sfr"") "' 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 17 
 
 Seventh Edition, in royal 8vo, price 36^., cloth, 
 
 BUCKLEY ON THE COMPANIES ACTS. 
 
 THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, ,862 to 1893 ; and 
 
 THE LIFE ASSURANCE COMPANIES ACTS, 1870 to 1872 ; including 
 
 THE COMPANIES (MEMORANDUM OF ASSOCIATION) ACT; 
 
 THE COMPANIES (WINDING-UP) ACT, and the 
 
 DIRECTORS' LIABILITY ACT. 
 
 riV Irenttsc on the J.ilu of Joint cStocIt Compnnies. 
 
 CONTAINING THE STATUTES, WITH THE RULES, ORDERS, AND 
 
 FORMS, TO REGULATE PROCEEDINGS. 
 
 SEVENTH EDITION BY THE AUTHOR, and 
 A. C. CLAUSON, Esq., M.A., 
 
 OF LINCOLN'S INN, BARRISTER-AT-LA\V. 
 
 Second Edition, with Supplement, in royal 8vo, price ejas., cloth. 
 
 THE LAW RELATING TO 
 
 SHIPMASTERS AND SEAMEN. 
 
 THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES 
 
 AND REMEDIES. 
 
 By THE LATE JOSEPH KAY, Esq., M.A., Q.C. 
 
 Second Edition. 
 
 WITH A SUPPLEMENT 
 
 Comprising THE MERCHANT SHIPPING ACT, 1894, The Rules oj 
 
 Court made thereunder, and the {^proposed) Regulations for 
 
 Preventing Collisions at Sea. 
 
 By the Hon. J. W. MANSFIELD, M.A., and 
 
 G. W. DUNCAN, Esq., B.A., 
 
 OF THE INNER TEMPLE, BARRISTERS-AT-LAW. 
 
 REVIEWS OF THE SECOND EDITION: 
 
 "It will, however, be a valuable book of refer- 
 ence for any lawyer desiring to iook up a point 
 connected with the rights and duties of a ship- 
 master or a seaman— the list of cases cited covers 
 nearly seventy pages — while any shipmaster, ship- 
 agent or consiLt who masters this edition will be 
 well posted up. - - We hope this new 
 
 Edition will be quickly appreciated, for the 
 
 Editors have carried out an arduous task carefully 
 and well." — La'w yournaU April, 1894. 
 
 " It has had practical and expert knowledge 
 brought to bear upon it, while the case law is 
 brought down to a very late date. Considerable 
 improvement has been made in the index." — Law 
 Times, April, 1894. 
 
 In royal 8vo, price los. 6d,, cloth, 
 
 THE MERCHANT SHIPPING ACT, 1894; 
 
 With the Rules of Court made thereunder. Being a Supplement to KAY'S LAW 
 RELATING TO SHIPMASTERS AND SEAMEN. To which are added the 
 (proposed) Regulations for Preventing Collisions at Sea. With Notes. By Hon. J. 
 W. Mansfield, M.A., and G. W. Duncan, B.A., of the Innei Temple, Barristers- 
 at-Law. 
 
18 STEVENS 6^ HAYNES, BELL YARD, TEMPLE BAR. 
 
 Fourth Edition, in royal 8vo, price 40i., cloth, 
 
 THE JUDGMENTS, ORDERS, AND PRACTICE OF 
 THE SUPREME COURT, 
 
 CHIEFLY in RESPECT to ACTIONS ASSIGNED to the CHANCERY DIVISION, 
 
 By LOFTUS LEIGH PEMBERTON, 
 
 One of the registrars of the Supreme Court of Judicature ; and Author of " The Practice 
 
 in Equity by way of Revivor and Supplement. " 
 
 "The work under notice ought to be of considerable service to the profession The forms 
 
 throughout the work— and they arc the most important element in it— appear to us to be accurate, and of 
 the most approved type. This fact alone will commend the new edition to practitioners in the Chancery 
 Division. There is a useful table of the Lord Chancellors and Judges at the beginning of the book, and a 
 Ve ry full index concludes it." — Laiv Tunes. 
 
 In demy i2mo, price 5^. , 
 
 THE STATUTORY LAW RELATING TO TRUSTEE 
 
 SAVINGS BANKS (1863-1891), together with the Treasury Regu- 
 lations (1888— 1889), and the -Scheme for the Appointment of the Inspection 
 Committee of Trustee Savings Banks. By UrquHart A. Forbes, of Lincoln's 
 Inn, Esq., Barrister-at-Law, Author of " The Law Relating to Savings Banks ;" 
 the "Law of Savings Banks since 1878;" and joint Author of "The Law 
 
 Relating to Wa.ter. " ■ ' 
 
 In demy i2mo, price ts., cloth, 
 
 THE LAW OF SAVINGS BANKS SINCE 1878; 
 
 With a Digest of Decisions made by. the Chief -Rfigistrar_ and Assistant Registries of 
 Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to 
 Trustee and Post Office Savings Banks. - . ■' 
 
 By U. A. FORBES, of Lincoln's Inn, Barrister-at-Law. 
 *^* The complete work can be had, price \os. 6d., cloth. 
 
 In 8vo, price 15^., cloth, 
 THE LAW AND PRACTICE RELATING TO 
 
 THE ADMINISTRATION OF DECEASED PERSONS 
 
 HY "I'HE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE; 
 
 WITH AN ADDENDA giving the alterations effected by the NEW EULES of 1883, 
 
 And an APPENDIX OF ORDERS AND FORMS, Annotated by 
 
 References to the Text. 
 
 By W. GREGORY WALKER and EDGAR J. ELGOOD, 
 
 OF Lincoln's inn, barristeks-at-law. 
 
 "In this volume the most important branch of 
 the administrative business of the Chancery Divi- 
 sion is treated with conciseness and care. Judging 
 from the admirable clearness of expression which, 
 characterises the entire work, and the labour which 
 has evidently been bestowed on every detail, we do 
 not think that a literary executorship could have 
 devolved upon a more able and conscientious repre- 
 sentative' .... Useful chapters-are introduced 
 in their appropriate places, dealing with the 
 
 ' Parties to administration actions,' ' The proofs of 
 claims in Chambers,' and ' The cost of adminis- 
 tration actions.' To the last-mentioned chapter we 
 gladly accord special praise, as a clear and succinct 
 summary of the law, from which, so far as we haye 
 tested it, no pt'opo&ition of any importance hiasbeen 
 omitted . . . . An elaborately constructed table 
 of cases, with references in separate columns to all ' 
 the reports, and a fairly good mdlix, much increase 
 the utility of the work." — Solicitors' yournal. 
 
 In Foolscap Svo, superfine paper, bound in VcUumj price 3,?. ^d. net. 
 *^* A limited number of copies have been printed upon large paper, price Ji. 6d. net. 
 
 SCINTILLAE JURIS. 
 
 CHARLES J. DARLING;, Q.C., M.P. With a Frontispiece and Colophon by 
 Frank Lockwood, Q.C, M.P. Fourth Edition (Enlarged). 
 ' ' * Scintillae Juris ' is that little bundle of ^um9rous essays on law and cognate matters which, since the 
 day of its first appearance, some years ago, has been the delight of legal circles. . . . It has a quality 
 of style which suggests much study of Bacon in his lighter vein. Its best essays would not be unwrorthy of 
 the- Essays, and jf read out,, one by one, before a blindfolded connoisseur, ^\%ht often be -assigned - to that 
 wonderful book." — Daily Nt7vs. 
 
Sr^ySAS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 19 
 
 Second Edition, in 8vo, price 25J., cloth, 
 THE PRINCIPLES OF 
 
 THE LAW OF RATING OF HEREDITAIVIENTS 
 
 IN THE OCCUPATION OF COMPANIES. 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C., 
 
 And D, N. McNAUGHTON, of the Middle Temple, Barrister-at-Law. 
 "The tables and s^cimen valuations which are 
 piinted in an appendix to this volume will be of 
 great service to the parish authorities, and to the 
 
 legal practitioners who may have to deal with the 
 rating of those properties which are in the occupa- 
 tion of Companies, and we congratulate Mr. Browne 
 on the production of a clear and concise book of 
 the system of Company Rating. There is no doubt 
 
 that such a work is much needed, and we are sure 
 that all those who are interested in, or have to do 
 with, public rating, will find it of great service. 
 Much credit is therefore due to Mr. Browne for his 
 able treatise — a work which his exiierience as 
 Registrar of the Railway Commission peculiarly 
 qualified him to undertake." — Lwiv Magazine. 
 
 In 8vo, 1875, P"ce Js. 6d.^ cloth, 
 
 THE LAW OF USAGES & CUSTOMS : 
 
 |l f rartital fab Sratt. 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C. 
 
 " We look upon this treatise as a valuable addition to works written on the Science of Law." — Canada 
 Laiv Joitmal. 
 
 "As a tract upon a very troublesome department of Law it is admirable — the principles laid down are 
 sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible and 
 distinguished when necessary." — Irish Law TiTnes. 
 
 "As a book of reference we know of none so comprehensive dealing with this particular branch of 
 Common Law In this way the book is invaluable to the practitioner." — Law Magazine. 
 
 In one volume, 8vo, 1875, price i8j., cloth, 
 
 THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS 
 
 UNDER THE REGULATION OF RAILWAY ACTS, 1873 & 1^74; 
 With the Amended General Orders of the Commissioners, Schedule of Forms, and Table 
 of Fees : together with the Law of Undue Preference, the Law of the Jurisdiction 
 of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of 
 Forms of Applications, Answers and Replies, and Appendices of Statutes and Cases, 
 
 By J. H. BALFOUR BROWNE, 
 
 OF THE MIDDLE TEMPLE, Q.C. 
 
 work of a man of capable legal attainments, and by 
 official position intimate with his subject ; and we 
 therefore think that it cannot fail to meet a real 
 want and to prove of service to the legal profession 
 and the public." — Law Magazine. 
 
 *' Mr. Browne's book is handy and convenient in 
 form, and well arranged for the purpose of refer- 
 ence : its treatment of the subject is fully and 
 carefully worked out : it is, so Jar as we have been 
 able to test it, accurate and trustworthy. It is the 
 
 In Svo, 1876, price 7j. 6^., cloth, 
 
 ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS 
 OF COMPANIES BY CORPORATIONS, 
 
 And the Practice in Relation to the Passage of Bills for Compulsory Purchase through 
 Parliament. By J. H. Balfour Browne, of the Middle Temple, Q.C. 
 
 both by the promoters and opponents, and as this 
 was the first time in which the principle of com- 
 pulsory purchase was definitely recognised, there 
 can be no doubt that it will long be regarded as a 
 leading case. As a matter of course, many inci- 
 dental points of interest arqse during the progress 
 of the case. Thus, besides the main question of 
 compulsory pxu-chase, and the question as to-whether 
 there was or was not any precedent for the Bill, the 
 questions of water compensations, of appeals fiom 
 one Committee to another, and ether kindred sub- 
 jects Werediscussed. These are all treated at length 
 by the Author in the body of the work, which is 
 thus a complete legal compendium on the large 
 subject with which it so ably deals." 
 
 "This is a work of considerable importance to all 
 Municipal Corporations, and it is hardly too much to 
 say that every member of these bodies should have 
 a copy by him for constant reference. Probably at 
 no very distant date the property of all the existmg 
 gas and water companies will pass under municipal 
 control, and therefore it is exceedingly desirable 
 that the principles and conditions under which such 
 transfers ought to be made should be clearly under- 
 stood. This task is made easy by the present volume. 
 The stimulus for the publication of such a work 
 was given by the action of the Parliamentary 
 Committee which last session passed the preamble 
 of the ' Stockton and Middlesborough Corporations 
 Water Bill, 1876.' The volume accordingly con- 
 tains a full report of the case as it was presented 
 
20 
 
 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, plrice ^s., cloth, 
 
 THEORIES AND CRITICISMS OF SIR HENRY MAINE. 
 
 By morgan O. EVANS, Barrister-at-Law, 
 
 Contained in his six works, "Ancient Law," "Early Law and Customs," "Early 
 History of Institutions," "Village Communities," "International Law," and 
 "Popular Government," which works have to be studied for the various examina- 
 tions. 
 
 Second Edition, in crown 8vo, in the press, 
 
 THE LAW OF EVIDENCE, 
 
 By S. L. PHIPSON, M.A., of the, Inner Temple, Barrister-at-Law. 
 " This book condenses a head of law into a 
 comparatively small compass — a class of literary 
 undertaking to which every encouragement should 
 be given. , . . The volume is most portable, most 
 compendious, and as far as we have been able to 
 examine it, as accurate as any laiv book can be 
 expected to be." — Lenv Tzjnes, 
 
 '* We are of opinion that Mr. Phipson has pro- 
 duced a book which will be found very serviceable, 
 not only for practitioners, but also for students. 
 We have tried it in a good many places, and we 
 find that it is well brought down to date." — Laiv 
 Journal. 
 
 In Svo, 1872, price yj. 6^/., cloth, 
 AN EPITOME AND ANALYSIS OF 
 
 SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. 
 
 By ARCHIBALD BROWN, M.A. 
 
 EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW, 
 
 ' Mr. Archibald Brown deserves the thanks 
 of all interested in the science of Law, whether 
 as a study or a practice, for his , edition of 
 Herr von Savigny's great work on ' Obligations.' 
 Mr. Brown has undertaken a double task — the 
 translation of his author, and the analysis of his 
 thor's matter. That he has succeeded in reducing 
 t-, bulk of the original will be seen at a glance* 
 
 the French translation consisting of two volumes, 
 with some five hundred pages apiece, as compared 
 with Mr. Brown's thin volume of a hundred and 
 fifty pages. At the same time the pith of Von 
 Savigny's matter seems to be very successfully pre- 
 served, nothing which might be useful to the 
 English reader being apparently omitted."— Z. aw 
 Journal. 
 
 THE ELEMENTS OF ROMAN LAW. 
 
 Second Edition, in crown Svo, price 6^., cloth, 
 
 A CONCISE DIGEST OF THE 
 
 INSTITUTES OF GAIUS AND JUSTINIAN. 
 
 With copious References arranged in Parallel Columns, also Chronological and 
 
 Analytical Tables, IJsts of Laws, <Sr=(r. Q'c. 
 
 Primarily designed for the Use of Students preparing for Examination at 
 
 Oxford, Cambridge, and the Inns of Court. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A., 
 
 WORCESTER COLLEGE, OXFORD, AND THE iWneR TEMPLE, BARRISTER-AT-LAW ■ 
 AUTHOR OF " UNIVERSITIES AND LEGAL EDUCATION." ' 
 
 •'Mr. Harris's digest ought to have very great success among law students both in the 
 Inns of Court and the Universities. His book gives evidence of fraiseworthv accuracv 
 and laborious condensation. — Law Journal. 
 
 "This book contains a summary in English of the elements of Roman Law as contained 
 mthe works ofCaius and Justinian, and is so arranged that the reader can at once see 
 ■what are the opinions of uther of these two writers on each point. From the verv exact 
 and accurate references to titles and sections given he can at once refer to the orieinal 
 writers The concise manner tn which Mr. Harris has arranged hij digest will render 
 tt most useful, not only to the students for whom it was originally written, but also to those 
 persons who, though they have not the time to wade through the larger treatises of Paste 
 Sanders, Ortolan, and others yet desire to obtain some knowledge of Roman Law"- 
 OXFORD AND CAMBRIDGE UNDERGRADUATES' JOURNAL Ionian l^aw. 
 
 ''Mr. Harris deserves the credit of having produced an epitome which will be of service 
 
WOJiKS FOR LAW STUDENTS. 21 
 
 Fifth Edition, in crown 8vo, price 15^., cloth, 
 
 ENGLISH CONSTITUTIONAL HISTORY: 
 
 FROM THE TEUTONIC INVASION TO THE PRESENT TIME. 
 
 ^csigiub H3 a 'gtE.xt-book fov ^tnbents aiti others. 
 
 By T. p. TASWELL-LANGMEAD, B.C.L., 
 
 OF Lincoln's inn, barrister-at-la\v, formerly vinerian scholar in the university 
 
 AND late professor OF CONSTITUTIONAL LAW AND HISTORY, 
 UNIVERSITY COLLEGE, LONDON. 
 
 Fifth Edition, Revised throughout, with Notes, 
 By Philip A. Ashworth, 
 
 BARRISTER-AT-LAW ; TRANSLATOR OF GNEISt's "HISTORY OF THE ENGLISH CONSTITUTION." 
 
 " We heartily commend this valuable book to the study of all, whether Conservative or Liberal in 
 politics, who desire to take an intelligent part in public life."— TAe New Saturday, 
 
 _" ' Taswell-Langmead ' has long been popular with candidates for examination in Constitutional 
 History, and the present edition should render it even more so. It is now, in our opinion, the ideal 
 students' book upon the subject," — Lata Notes. 
 
 "Mr. Carmichael has performed his allotted task with credit to himself, and the high standard of 
 excellence attained by Taswell-Laogmead's treatise is worthily maintained. This, the third edition, will 
 be found as useful as its predecessors to the large class of readers and students who seek in its pages 
 accurate knowledge of the history of the constitution." — Law Times. 
 
 *'To the student of constitutional law this work will be invaluable The book is remarkable 
 
 for the raciness and vigour of its style. The editorial contributions of Mr. Carmichael are judicious, and 
 add much to the value of the work." — Scottish Law Revie^v. 
 
 " The work will continue to hold the field as the best class-book on the subject." — Contemporary Review. 
 
 ** The book is well known as an admirable introduction to the study of constitutional law for students at 
 law. . . . Mr. Carmichael appears to have done the work of editing, made necessary by the death 
 
 of Mr. Taswell-Langmead, with care and judgment." — Laiv Journal. 
 
 " The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, 
 and size, it would be difficult to find anything better on the real history of England, the history of its 
 constitutional growth as a complete story, than this volume." — Boston (l/.S.) Literary World. 
 
 *'As it now stands, we should find it hard to name a better text-book on English Constitutional 
 History." — Solicitors' journal. 
 
 " Mr. Taswell-Langmead's compendium of the rise and development of the English Constitution has 
 
 evidently supplied a want The present Edition is greatly improved. . . , We have no hesitation in 
 
 saying that it is a thoroughly good and useful work." — Spectator. 
 
 " It is a safe, careful, praiseworthy digest and manual of all constitutional history and law.'' — Globe. 
 
 ** The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a 
 history should be." — Standard. 
 
 "Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing 
 writh that chief subject of constitutional history — parliamentary government — that the work exhibits its 
 great superiority over its rivals." — Academy. 
 
 Second Edition, in 8vo, price 6j., cloth, 
 
 HANDBOOK TO THE INTERMEDIATE AND 
 FINAL LLB. OF LONDON UNIVERSITY ; 
 
 (PASS AND HONOURS), 
 
 Including A COMPLETE SUMMARY OF "AUSTIN'S JURISPRUDENCE," 
 AND THE EXAMINATION PAPERS of LATE YEARS in ALL BRANCHES. 
 
 By a B.A., LL.B. (Lond.). 
 
 In crown 8vo, price 3j. ; or Interleaved for Notes, price 4^., 
 
 CONTRACT LAW. 
 
 QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the 
 Answers. Founded on '■^ Anson" " Chitty," and "Pollock." 
 
 By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn. 
 
22 WORKS FOR LAW STUDENTS. 
 
 Eleventh Edition, in 8vo, price 2lj., cloth, 
 
 THE PRINCIPLES OF EQUITY. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 By EDMUND H. T. SNELL, 
 
 OF THK MIDDLE TEMPLE, BARRISTER-AT-LAW. 
 
 ELEVENTH EDITION. 
 By ARCHIBALD BROWN, M.A. Edin, & Oxon., & B.C.L. Oxon., 
 
 OF THE MIDDLE TEMPLE, BARHISTER-AT-LAW ; AUTHOR OF " A NEW LAW DICTIONARY," 
 "an ANALYSIS OF SAVIGNY ON OBLIGATIONS," AND THE " LAW OF FIXTURES." 
 
 REVIEWS. 
 
 "The Eleventh Edition of ' Snell's Equity ' is remarkable in one respect, viz. , the learned editor has, as 
 he tells us in his preface, actually succeeded in diminishing the size of the book. It is the Eighth Edition 
 which has passed through the ,able hands of Mr. Archibald Brown, and the deserved reputation of the 
 work has certainly not .suffered any loss in the process. In the present edition the book is well brought 
 up to date. . . '. The printiog-and get-up of the book are excellent and the index is good." — Law Journal. 
 
 " This is the Eighth Edition of this student's text-book which the present editor has brought out. . . . 
 the book is a good introduction to Equity, and is additionally useful by having a full index." — Solicitvrs 
 Journal. 
 
 *' The book remains what it always has been, the indispensable guide to the beginner of the study of 
 Equity, without ceasing to be above the notice ot the more experiencefd student." — Oxford Magazine. 
 
 "Whether to the beginner in the study of the principles of Equity, or to the practising lawyer in the 
 hurry of work, it can be unhesitatingly recommended as a standard and invaluable treatise.";— C(mk<^«'^^ 
 Revieiv. 
 
 "This work on the * Principles of Equity' hiis, since the publication of the First Edition, been 
 recognised as the best elementary treatise on the subject, and it would not be necessary to say more of 
 this Edition, than to mention the fact of its publication, were it not for the fact that the author, Mr. Snell, 
 is dead, and the late Editions have been brought out under the care of Mr. Brown. It seldom happens 
 that a new editor is able to improve on the work of his predecessor in its plan or its details. But in the 
 case of the present work we find that each edition is a manifest improvement on the former, ones, and ivell 
 as Mr. Snell did his work we discover that Mr. Brown has done it better."— /rzjA Law Times. 
 
 "This is now unquestionably the standard book on Equity for students." — Saturday Review. 
 
 " We know of no better introduction to the Principles of Equity, ^^ — 
 Canada Law Journal. 
 
 , Fifth Edition, in S.vo, price 6.f., clothj 
 
 AN ANALYSIS OF SNELL'S PRINCIPLES OF 
 
 EQUITY. Founded on the Eleventh Edition. With Notes thereon. 
 By E. E. Blyth, LL.D., Solicitor. 
 
 " Mr, Blyth's book will undoubtedly be very useful to readers of Snell." — Lain Times. 
 " This is an admirable analysis of a good treatise ; read with Snell, this little book will be found very 
 profitable to the student." — Law JouT^ial. 
 
 In 8vo, price 2j-.j sewed, 
 
 QUESTIONS ON EQUITY. 
 
 FOR STUDENTS PREPARING FOR EXAMINATION. 
 
 FOUNDED ON THE NINTH EDITION OF 
 
 SNELL'S "PRINCIPLES OF EQUITY." 
 By W. T. WAITE, 
 
 BARRISTER -AT- LAW, HOLT SCHOLAR OF THE HONOURABLE SOCIETY Of GRA^'S INN- 
 
WORKS FOR LAW STUDENTS. 
 
 23 
 
 Second Edition, in one volume, 8vo, price iSj-., cloth, 
 
 PRINCIPLES OF CONVEYANCING. 
 
 AN ELEMENTARY WORK FOR THE USE OF STUDENTS. 
 By henry C. DEANE, 
 
 OF Lincoln's inn, barrister- at- law, sometime lecturer to the incorporated law society 
 
 OF THE UNITED KINGDOM. 
 
 ^^We hope to see this book, like SnelVs Equity^ a standard class-book in all Law Schools 
 where English law is taught." — Canada Law Journal. 
 
 " We like the work, it is well written and is an 
 ^cellent student's hook, and being onl^ just pub- 
 lished, it has the great advantage of having in it alt 
 the recent important enactments relating to convey- 
 ancing. It possesses also an excellent index." — 
 JLaw Students' y<mmal. 
 
 ** Will be found of great use to students entering 
 upon the difficulties of Real Property Law. It has 
 an unusually exhaustive index covering some fifty 
 pages." — Laiv Titnes. 
 
 " In the parts which have been re-written, Mr. 
 Deane has preserved the same pleasant style marked 
 by simplicity and lucidity which distinguished his 
 first edition. After 'Williams on Real Property,' 
 there is no book which we should so strongly 
 recommend to the student entering upon Real Pro- 
 perty Law as Mr. Deane's ' Principles of Convey- 
 ancing,' and the high character which the first 
 edition attained has been fully kept up in this 
 second." — La-w Journal. 
 
 Fourth Edition, in 8vo, price loj., cloth, 
 A SUMMARY OF THE 
 
 LAW & PRACTICE IN ADMIRALTY. 
 
 FOR THE USE OF STUDENTS. 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW." 
 
 "The book is well arranged, and forms a good introduction to the subject." — Solicitors' yournal. 
 
 " It is, however, in our opinion, a well and carefully written little work, and should be in the hands of 
 every student who is taking up Admiralty Law at the Final." — Lavj Students' yourfial. 
 
 " Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The 
 present'work will doubtless be received with satisfaction equal to that with which his previous ' Summary ' 
 has been met." — Oxford atid Cambridge Undergraduates' Journal. 
 
 Fourth Edition, in 8vo, price 8j.j cloth, 
 A SUMMARY OF THE 
 
 LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS. 
 
 FOR THE USE OF STUDENTS. 
 By EUSTACE SMITH, 
 
 OF THE INNER TEMPLE; AUTHOR OF "A SUMMARY OF COMPANY LAW" AND "A SUMMARY OF 
 THE LAW AND PRACTICE IN ADMIRALTY." 
 
 " His object has been, as Ke tells us in his preface, to give the student and general reader a fair outline 
 of the scope and extent of ecclesiastical law, of the principles on which it is founded, of the Courts by, 
 which it is enforced, and the procedure by which these Courts are regulated. We think the book well 
 fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions 
 contained in it." — Bar Exa-mmation Jmirnal. 
 
 Fourth Edition, in Svo, price ^s. 6d., cloth, 
 
 AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE. 
 
 FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. 
 By J. CARTER HARRISON, Solicitor. 
 
 " The work is considerably enlarged, and we think improved, and will be found of great assistance 10 
 students."— iaii- Students' Journal. 
 
24 WORKS FOR LAW STUDENTS. 
 
 Seventh Edition. In one volume, 8vo, price 20.c., cloth, 
 
 PRINCIPLES OF THE COMMON LAW. 
 
 INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. 
 SEVENTH EDITION. 
 
 By JOHN INDERMAUR, Solicitor, 
 
 AUTHOR OF "A MANUAL OF THE PRACTICE OF THE SUPREME COURT," 
 " EPITOMES OF LEADING CASES," AND OTHER WORKS. 
 
 "The student will find in Mr. Indermaur's book a safe and clear guide to the Prin- 
 ciples of Common Law." — Law Journal, 1892. 
 
 "The present edition of this elementary treatise has been in general edited with praise- 
 worthy care. The provisions of the statutes affecting the subjects discussed, which have 
 been passed since the publication of the last edition, are clearly summarised, and the effect 
 of the leading cases is generally very well given. In the difficult task of selecting and 
 distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading 
 principles are clearly brought out, and very judiciously illustrated."— Solicitors' Journal, 
 
 "The work is acknowledged to be one of the best written and most useful elementary 
 works for Law Students that has been published." — Law Times. 
 
 " The praise which we were enabled to bestow upon Mr. Indermaur's very useful com- 
 pilation on its first appearance has been justified by a demand for a second edition." — 
 Law Magazine. 
 
 " We were able, four years ago, to praise the first edition of Mr. Indermaur's book as 
 likely to be of use to students in acquiring the elements of the law of torts and contracts. 
 The second edition maintains the character of the book." — Law Journal. 
 
 ' ' Mr. Indermaur renders even law light reading. He nOt only possesses the faculty 
 of judicious selection, but of lucid exposition and felicitous illustration. And while his 
 works are all thus characterised, his ' Principles of the Common Law ' especially displays 
 those features. That it has already reached a second edition, testifies that our estimate of 
 the work on its first appearance was not unduly favourable, highly as we then signified 
 approval ; nor needs it that we should add anythiiig to that estimate in reference to the 
 general scope and execution of the work. It only remains to say, that the present edition 
 evinces that every care has been taken to insure thorough accuracy, while including all 
 the modifications in the law that have taken place since the original publication ; and that 
 the references to the Irish decisions which have been now introduced are calculated to 
 render the work of greater utility to practitioners and students, both English and Irish. " 
 — Irish Law Times. 
 
 " This work, the author tells us in his Preface, is written mainly with a view to the 
 examinations of the Incorporated Law Society ; but we think it is likely to attain a wider 
 usefulness. It seems, so far as we can judge from the parts we have examined, to be a 
 careful and clear outline of the principles of the common law. It is very readable ; and 
 not only students, but many practitioners and the public might benefit by a perusal of its 
 pages." — Solicitors' Journal. 
 
IVOJ^KS FOR LAW STUDENTS. 2o 
 
 Seventh Edition, in 8vo, price 14J., cloth, 
 
 4 MANUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, 
 
 IN THE QUEEN'S BENCH AND CHANCERY DIVISIONS. 
 Seventh Edition. 
 Intended for the use of Students and the Profession. 
 By John Indermaur, Solicitor. 
 
 " Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice' at a very 
 opportune time, for he has been able to incorporate the effect of the new Rules of Court which came into 
 force last November, the Trustee Act, 1893, and Rules, and the Supreme Court Fund Rules, 1893, as 
 well as that of other Acts of earlier date. A very complete revision of the work has, of course, been 
 necessary, and Mr. Indermaur, assisted by Mr. Thwaites, has effected this with his usual thoroughness 
 and .careful attention to details. The book is well known and valued by students, but practitioners also 
 find it handy in many cases where reference to the bulkier ' White Book " is unnecessary."— Z«-a/ Times, 
 February y 1894. 
 
 " This well-known students book may very well be consulted by practitioners, as it contains a considerable 
 amount of reliable information on the pi-actice of the Court. It is written so as to include the new Rules, 
 and a supplemental note deals with the alterations made in Rule XI. by the Judges in January last. The 
 praise which we gave to previous editions is quite due to the present issue." — Law Journal, February, 1894. 
 
 Eighth Edition, in Svo, price 6^., cloth, 
 
 AN EPITOME OF LEADING COMMON LAW CASES; 
 
 WITH SOME SHORT NOTES THEREON. 
 Chiefly intended as a Guide to " Smith's Leading Cases." By John Indermaur, 
 
 Solicitor (CliSbrd's Inn Prizeman, Michaelmas Term, 1872). 
 "We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- 
 maur, Solicitor. The first edition of this work was published in February, 1873, the second In April, 1874; 
 and now we have a third edition dated September, 1875. No better proof of the value of this book can be 
 furnished than the fact that in less than three years it has reached a third edition." — Laiu JournaL 
 
 Eighth Edition, in Svo, nearly ready, 
 
 AN EPITOME OF LEADING CONVEYANCING AND EQUITY CASES; 
 
 WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. 
 By John Indermaur, Solicitor, Author of *'An Epitome of Leading 
 Common Law Cases. " 
 " We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- 
 ancing and Equity Cases. The work is very well done," — Law Times. 
 
 "The Epitome well deserves the continued patronage of the class — Students — for whom it is especially 
 intended. Mr. Indermaur will soon be known as the Students' Friend.' " — Canada Law Jounial. 
 
 Sixth Edition, Svo, price 6j'., cloth, 
 
 THE ARTICLED CLERK'S GUIDE TO AND 
 SELF-PREPARATION FOR THE FINAL EXAMINATION. 
 
 Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases, 
 Test Questions, &c., and intended for the use of those Articled Clerks who read 
 by themselves. By John Indermaur, Solicitor. 
 
 * ' In this edition Mr. Indermaur extends his counsels to the whole period from the Intermediate 
 exajnination to the Final. His advice is practical and sensible : and if the course of study he recommends 
 is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient 
 to carry him through the Final Examination." — Solicitors' Journal. 
 
 Now ready. Fifth Edition, in Svo, price ioj., cloth, 
 
 THE ARTICLED CLERK'S GUIDE TO AND SELF- 
 PREPARATION FOR THE INTERMEDIATE EXAMINATION, 
 
 As it now exists on Stephen's Commentaries. Containing a complete course of Study, 
 with Statutes, Questions, and Advice. Also a complete Selected Digest of the 
 whole of the Questions and Answers set at the Examinations on those parts of 
 " Stephen " now examined on, embracing a period of fourteen and a half years 
 (58 Examinations), inclusive of the Examination in April, 1894, &c. &c., and 
 intended for the use of all Articled Clerks who have not yet passed the Inter- 
 mediate Examination. By John Indermaur, Author of " Principles of Com- 
 mon Law," and other works. 
 
 In Svo, 1875, price 6j-., cloth, 
 
 THE STUDENTS' GUIDE TO THE JUDICATURE ACTS, 
 
 AND THE RULES THEREUNDER: 
 
 Being a book of Questions and Answers intended for the use of Law Students. 
 
 ByJon.N Indermaur, Solicitor. 
 
26 IV0JI£-S FOR LAW STUDENTS. 
 
 Fifth Edition, in crown 8vo, price \zs. 6d., cloth, 
 
 AN EPITOME OF CONVEYANCING STATUTES, 
 
 Extending from 13 Edw. I. to the End of 55 & 56 Victoria. Fifth 
 Edition, with Short Notes. By George Nichols Marcy, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition, in 8vo, 
 
 A NEW LAW DICTIONARY, 
 
 AND INSTITUTE OF THE WHOLE LAW ; 
 
 EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO TiJE 
 AUTHORITIES, CASES, AND STATUTES. 
 
 SECOND EDITION, revised throughout, and considerably enlarged. 
 
 By ARCHIBALD BROWN, 
 
 M.A. EDIN. AND OXON,, AND B.C.L. OXON., ,QF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHORiOF 
 THE "law of fixtures," "ANALYSIS OF SAVIGNY'S OBLIGATIONS IN ROMAN LA iV." ETC. 
 
 Reviews of the Second Edition. 
 
 ^^ So far as we have been able to examine the work, it sums to have been most carefully 
 and accurately executed, the present Edition, besides containing much new matter, having 
 been thoroughly revised in consequence of the recent changes in the law ; and we have no 
 doubt whatever that it will befoutid extremely useful, not only to students and practitioners, 
 but to public men, and men of letters." — Irish Law Times. 
 
 - "Mr. Brown has revised his Dictionary, and adapted it to the changes effected by the 
 Judicature Acts, and it now constitutes a very useful work to put into t}ie hands of any 
 student or articled clerk, and a work which the- practitioner will find of value for reference.^^ 
 — Solicitors' Journal. 
 
 " It will prove a reliable guide to law students, and a handy book of reference for 
 practitioners." — Law Times. 
 
 In royal 8vo, jjrice 5^-., cloth, 
 
 ANALYTICAL TABLES 
 
 OF 
 
 THE LAW OF REAL PROPERTY; 
 
 Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. 
 By C. J. TARRING, of the Inner Temple, Barrister-at-Law. 
 
 CONTENTS. 
 
 Table 1. Tenures. 
 
 II. Estates, according to quantity of 
 
 Tenants' Interest. 
 
 „ III. Estates, according to the time at 
 
 which the Interest is to be enjoyed. 
 
 ,, IV. Estates, according to the number and 
 
 connection of the Tenants. 
 
 Table V. Uses. 
 
 J, VI. Acquisition cf Estates in land of 
 
 freehold tenure. 
 ,, VII. Incorporeal Hereditaments. 
 ,, VIII. Incorporeal Hereditaments. 
 
 "Great care and considerable skill have been shown in the compilation of these tables which will be 
 tound ot much service to students of the Law of Real Property."— Z.aiy Tunes. 
 
WGR/CS FOR LAW STUDENTS. 27 
 
 Seventh Edition, in 8vo, price 20s., cloth, 
 
 PRINCIPLES OF THE CRIMINAL LAI. 
 
 INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR 
 THE USE OF STUDENTS AND THE PROFESSION. 
 
 By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), 
 
 AUTHOR OF "a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN.* 
 
 SEVENTH EDITIOX. 
 Bv C. L. ATTENBOROUGH, of the Inner Temple, Barrister-at-Law. 
 
 REVIEWS. 
 
 " Messrs. Stevens & Haynes have just issued the Seventh Edition of their well known text-book, 
 'Harris's Principles of the Criminal Law.' For the present edition Mr. Charles L. Attenborough, 
 of the Inner Temple, Barrister-at-Law, is responsible. He has brought the work up to date, and 
 ensured for it a further career of usefulness as the leading student's text-book upon the Criminal 
 Law." — Laiu Times. 
 
 " This work is pretty well known as one designed for the student who is preparing for examination, 
 and for the help of young practitioners. Among articled clerks it has long enjoyed a popularity which 
 is not likely to be interfered with. . . We have been carefully through the new edition and can 
 
 cordially commend it." — Law Student's yourjial. 
 
 "The book must be good, and must meet a demand, and Harris's Criminal Law remains as it has 
 always been, an excellent work for obtaining that kind of theoretical knowledge of the criminal law 
 which is so useful at the University Examinations of Oxford and Cambridge." — Lmv Notes. 
 
 *'The characteristic of the present Edition is the restoration to the book of the character of 'a concise 
 exposition ' proclaimed by the title-page. Mr. Attenborough has carefully pruned away the excrescences 
 which had arisen in successive editions, and has improved the work both as regards terseness and clearness 
 of exposition. In both respects it is now an excellent student's book. The text is very well broken up 
 into headings and paragraphs, with short marginal notes — the importance of which, for the convenience 
 of the student, is too often overlooked." — Solicitors' JouTttal. 
 
 " The favouj'oble opinion uue expressed of the first edition of this woi-k appears to have 
 been justified by the reception it has met with. Looking through this new Edition^ we see 
 no reason to modify the praise we bestowed on the former Edition. The recent cases have 
 been added and the provisions of the Summary furisdiction Act are noticed in the chapter 
 relating to Summary Convictions. The book is one of the best manuals of Criminal Law 
 for the student.'" — Solicitors' Journal. 
 
 *' There is no IcLck of Works on Crim-inal Law, but there was roo^nfor such a useful 
 haTidbook of Principles as Mr. Seymour Harris has supplied. Accustomed, by his previous 
 labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present 
 work qualifications well adapted to secure the successful accomplishment of the object which 
 he had set before him. That object is not an ambitious one, jor it does not pretend to soar 
 above utility to the young practitioner and the student. For both these classes, and for the 
 yet wider class who may require a book of reference on the subject, Mr. Harris has produced 
 a clear and convenient Epito?ne of the Law.'" — Law Magazine and Review. 
 
 "This work purports to contain 'a concise exposition of the nature of crime, the various offences punish- 
 able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables 
 of offences, punishments, and statutes. The work is divided into four books. Book I. treats of crime, its 
 divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories. 
 Book II. deals with offences of a public nature ; offences against private persons ; and offences against the 
 property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used 
 consistently with a proper explanation of the legal Characteristics of the several offences. Book III. 
 explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension 
 and trial of criminals from arrest to punishment. This part of the work is extremely well done, the 
 description of the trial being excellent, and thoroughly calculated to impress the mind of the uninitiated. 
 Book IV, contains a short sketch of ' summary convictions before magistrates out of quarter sessions.' The 
 table of offences at the end of the volume is most useful, and there is a very full index* Altogether we 
 must congratulate Mr. Harris on his adventure." — Law Journal. 
 
28 H'OUKS FOR LAW STUDENTS. 
 
 Second Edition, in crown 8vo, price 5-f- 6i/., cloth, 
 
 THE STUDENTS' GUIDE TO BANKRUPTCY; 
 
 Being a Complete Digest of the Law of Bankruptcy in the shape of Questions and 
 Answers, and comprising all Questions asked at the Solicitors' Final Examinations 
 in Bankruptcy since the Bankruptcy, Act,, 1883, and all important Decisions since 
 that Act. By John iNDERMiUR,' Solicitor, Author of " Principles of Cominon 
 Law, " &c. &c. ' . ' , . ,\ 
 
 In i2mo, price 5^. td., cloth, 
 
 A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, 
 
 FOR THE USE OF LAWYERS, LAW STUDENTS, AND THE PUBLIC. 
 
 Embracing the Acts of 1878 and 1882. Part I.— Of Bills of Sale genera,lly. Part II.— 
 Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction 
 thereof. Part III.— Of the Effects of Bills of Sale as against Creditors. Part IV. 
 — Of Seizing under, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c. 
 By John Indermaur, Solicitor. 
 
 *' The object of the book is thoroughly practical. Those who want to be told exactly what to do and 
 where to go when they are registering a bill of sale will find the necessary information in this little book." 
 — JLaw yournal. 
 
 Second Edition, in 8vo, price 4^., cloth, 
 
 A COLLECTION OF LATIN MAXIMS & PHRASES. 
 
 LITERALLY TRANSLATED. 
 
 INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. 
 
 Second Edition, by J. N. COTTERELL, Solicitor. 
 
 "The book seems admirably adapted as a book of reference for students who come across a Latin maxim 
 in their reading." — Law Jouma-L 
 
 In one volume, 8vo, price gs., cloth, 
 
 LEADING STATUTES SUMMARISED, 
 
 FOR THE USE OF STUDENTS. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD ; 
 AUTHOR OF " LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED." 
 
 Second Edition, in 8vo, enlarged, price 6j., cloth, 
 
 LEADING CASES IN CONSTITUTIONAL LAW 
 
 Briefly Stated, with Introduction and. Notes. 
 By ERNEST C. THOMAS, 
 
 BACON SCHOLAR OF THE HON. SOCIETY OF GRAY's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. 
 
 _" Mr. E. C. Thomas has put together in a slim octavo a digest of the principal cases illustrating Con- 
 stitutional Law, that is to say, all questions as to the rights or authority of the Crown or persons under it, 
 as regards not merely the constitution and structure given to the governing body, liut also the mode in 
 which the sovereign power is to be exercised. In an introductory essay Mr. Thomas gives a very clear and 
 intelligent surveyof the general functions of the Executive, and the principles by which they are regulated ; 
 and then follows a summary of leading cases." — Saturday R^emew. 
 
 " Mr. Thomas gives a sensible introduction and a brief epitome of the familiar leading cases." — Law 
 Times. 
 
 In 8vo, price 8j,, cloth, 
 
 AN EPITOME OF HINDU LAW CASES. With 
 
 Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage, 
 Adoption, Partition, and Succession. By William M. P. Coghlan, Bombay 
 Civil Service, late Judge and Sessions Judge of Tanna. 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 29 
 
 Second Edition, in crown 8vo, price I2j. td., cloth, 
 
 THE BANKRUPTCY ACT, 1883, 
 
 With Notes of all the Cases decided under the Act ; 
 The consolidated RULES and FORMS, i886 ; The Debtors Act, 1869, so 
 
 FAR AS APPLICABLE TO BANKRUPTCY MATTERS, WITH RULES AND FoRMS 
 THEREUNDER ; THE BiLLS OF SALE ACTS, 1878 AND 1882 ; 
 Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, 
 Fees, and Percentages, 1886 ; Orders of the Bankruptcy Judge of the High 
 Court ; and a Copious Index. 
 
 By WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD, M.A., 
 
 SENIOR REGISTRAR IN BANKRUPTCY, OF THE MIDDLE TEMPLE, ESQ., BARRISTER-AT-LAW. 
 
 Second Edition, by R. RINGWOOD, M.A., 3arrister-at-Law. 
 
 "This is a very handy edition of the Act and Rules The cross references and marginal 
 
 references to corresponding provisions of the Act of 1869 are exceedingly useful There is a verj' 
 
 full index, and the book is admirably printed." — Solicitors' Journal. 
 
 Part I., price *]s. 6d., sewed, 
 
 LORD WESTBURY'S DECISIONS IN THE 
 
 EUROPEAN ARBITRATION. Reported by Francis S. Reilly, 
 
 of Lincoln's Inn, Barrister-at-Law. 
 
 Parts I., II., and III., price 25^., sewed, 
 
 LORD CAIRNS'S DECISIONS IN THE ALBERT 
 
 ARBITRATION. Reported by Francis S. Reilly, of Lincoln's Inn, 
 Barrister-at-Law. 
 
 Second Edition, in royal 8vo, price 30J., cloth, 
 A TREATISE ON 
 
 THE STATUTES OF ELIZABETH AGAINST 
 FRAUDULENT CONVEYANCES. 
 
 The Bills of Sale Acts 1878 and 1882 and the LAW OF VOLUNTARY 
 
 DISPOSITIONS OF PROPERTY. 
 
 By the late H. W. MAY, B.A. (Ch. Ch. Oxford). 
 
 Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, 
 of the Inner Temple, Barrister-at-Law; Editor of the "Married Women's 
 Property Acts," 5th edition, by the late J. R. Griffith. 
 
 " In conclusion, we can heartily recommend this 
 book to our readers, not only to those who are m 
 large practice, and who merely want a classified 
 list of cases, but to those who have both the desire 
 and the leisure to enter upon a systematic study of 
 our Uvi."— Solicitors' Journal. _ ,, ,, 
 
 " As Mr Worthington points out, since Mr. May 
 wrote, the ' Bills of Sale Acts' of 1878 and 1882 
 have been passed ; the ' Married Women s Property 
 Act 1882 ■ (making settlements by married women 
 void as against creditors in cases in which similar 
 settlements by a man would be void) and the 
 ' Bankruptcy Act, i883.' These Acts and the deci- 
 sions upon them have been handled by Mr. Worth- 
 ineton in a manner which shows that he is master 
 of his subject, and not a slavish copyist of sections 
 and head-notes, which is a vicious propensUy of 
 many modem compilers of text-books. His Table 
 of Cases (with reference to all the reports), is 
 admirable, and his Index most exhaustive. —Law 
 
 "The results of the authorities appear to be 
 eiven well and tersely, and the treatise will, we 
 think be found a convenient and trustworthy book 
 of reference. "—Znw' Jonmal. 
 
 ' Mr. Worthington's work appears to have been 
 conscientious and exhaustive." — Saturday Review. 
 
 "Examining Mr. May's book, we find it con- 
 structed with an intelligence and precision which 
 render it entirely worthy of being accepted as a 
 guide in this confessedly difiicult subject. The 
 subject is an involved one, but with clean and clear 
 handling it is here presented as clearly as it could 
 be. . . . On the whole, he has produced a very 
 useful book of an exceptionally scientific character." 
 — Solicitors' Journal. 
 
 " The subject and the work are both very good. 
 The former is well chosen, new, and interesting ; 
 the latter has the quality which always distin- 
 guishes original research from borrowed labours." 
 — American Law Review. 
 
 "We are happy to welcome his(Mr. May's)work 
 as an addition to the, we regret to say, brief cata- 
 logue of law books conscientiously executed. We 
 can corroborate his own description of his labours, 
 ' that no pains have been spared to make the book 
 as concise and practical as possible, without doing 
 so at the expense of perspicuity, or by the omission 
 of any important points.'" — Law Times. 
 
30 
 
 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, medium 8vo, price 38^. , doth ; or in half-roxburgh, 42J. , 
 
 A HISTORY OF THE FORESHORE 
 
 AND THE LAW RELATING THERETO. 
 
 With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale-'s 
 " De Jure Maris," and the Third Edition of Hall's Essay on the 
 
 RIGHTS OF THE CROWN IN THE SEA-SHORE. 
 
 With Notes, and an Appendix relating to Fisheries. 
 
 By STUART A. MOORE, F.S.A., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 wealth of materials for founding a,nd building up 
 arguments. Mr. Stuart Moore has written a work 
 which must, unless his contentions are utterly un- 
 founded, at once become the standard text-book on 
 the law of the Sea-shore." — La-w Times, Dec. ist. 
 "Mr. Stuart Moore in his valuable work on the 
 Foreshore." — The Thnes. 
 
 , "Mr. Stuart Moore's work on the title ;of the 
 Crown- to the land around the coast of England 
 lying between the high, and low: water mark is 
 something more than an ordinary law book. It is 
 a;histpryj aod, a very interesting one, of such land 
 and the rights exercised over it from the earliest 
 times to the present day ; and, a careful study of 
 the facts contained in the book and of the argu- 
 ments brought forward can scarcely fail to convince 
 the reader of the inaccuracy of the theory, now so 
 constantly put forward by the Crown, that without 
 the existence of special evidence to the contrary, 
 the land which adjoins riparian property, and 
 which is' covered at high tide, belongs to the 
 Crown and not to the owner of the adjoining 
 manor. The list which Mr. Moore gives of places 
 where the question of foreshore has been alr^dy 
 raised, and of those as to which evidence onithe 
 subject exists amongst the public records, is valu- 
 able, thpugh by no means exhaustive ; and the 
 book should Certainly find a place in the library of 
 the lord of every riparian manor." — Morning Post. 
 
 "This work is nominally a third edition of the 
 late Mr. Hall's essay on the rights of the Crown in 
 the Sea-shore, but in reality is an absolutely new 
 production, for out of some goo odd pages Hall's 
 essay takes up but 227. Mr. Moore has written a 
 book of great importance, which should mark an 
 epoch in-the history of the rights of the Crown and 
 the subject in the litus maris, or foreshpre of the 
 kingdom^ Hall's treatise (with Loveland's notes) is 
 set out with fresh notes by the present editor, who 
 is anything but kindly disposed towards his author, 
 for his notes are nothing but a series of exposures 
 of what he deems to be Hall's errors and misrepre- 
 sentations. Mr. Moore admits his book to be a 
 brief for the opposite side of the contention sup- 
 ported by Hall, and a more vigorous and argu^; 
 mentative treatise we have'scarcely ever seen.' Tts 
 arguments are clearly and broadly disclosed, and 
 supported by a wealth of facts and cases which 
 show the research of the learned author to have 
 been most full and elaborate. . . . There is no 
 doubt that this is an important work, which must 
 have a considerable influence on that branch of the 
 law with which it deals. That law is contained in 
 ancient and most inaccessible records ; these have 
 now been brought to light, and it may well be 
 that important results to the subject may flow 
 therefrom. The Profession, not to say the general 
 public, owe. the leaped author a deep debt of 
 gratitude for providing ready to hand such a 
 
 In one volume, 8vo, price' 12^-., cloth, 
 A TREATISE ON THE LAW RELATING TO THE 
 
 POLLUTION AND OBSTRUCTION OF WATER COURSES ; 
 
 Together with a Brief Summary of the Various Sources of Rivers 
 
 Pollution. 
 
 By clement HIGGINS, M.A., F.C.S., 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 "As a compendium of the law upon a special 
 and rather intricate subject, this treatise cannot, 
 but prove of great practical value, and more 
 especially to those who have to advise upon the 
 institution of proceedings under the Rivers Pollu- 
 tion Prevention Act, 1876, or to adjudicate upon 
 those proceedings when brought.'"-— /t^jA Lcvw 
 Times. 
 
 "We can recommend Mr. Higgins' Manual as 
 the best guide we possess." — Public Health. 
 
 "County Court Judges, Sanitary Authorities, 
 and Riparian Owners will find in Mr. Higgins' 
 Treatise a valuable aid in-obtaining a clear notion 
 of the Law on- the Subject. ■ Mr.- Higgin.«; has 
 accomplished a work for which he will readily be 
 recognised as having special fitness on account of 
 
 his practical acquaintance both with the scientific, 
 and the legal aspects of his subject." — La'w Maga^ 
 siine and Review. 
 
 "The volume is very carefully arranged through- 
 out, and will prove of great utility both to miners 
 and to owners of land on the banks of rivers.'' — u 
 The Mining youmal. 
 
 "Mr. Higgins writes tersely and clearly, while 
 his facts are so well arranged that it is a pleasure 
 to refer to his book for information ; and altogether 
 the work is one which will be found very useful by , 
 all interested in the subject to which it relates." — . 
 Engineer. 
 
 ' A compact and convenient mantel of the law 
 on the subject to which it relates." — Solicitor^-, 
 youmal. 
 
STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 31 
 
 In 8vo, Fifth Edition, price 28^., doth. 
 
 MAYNE'S TREATISE 
 
 ON 
 
 THE LAW OF DAMAGES. 
 
 FIFTH EDITION. 
 REVISED AND PARTLY REWRITTEN. 
 
 BY 
 
 JOHN D. MAYNE, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW J 
 AND 
 
 His Honor Judge LUMLEY SMITH, Q.C. 
 
 " ' Mayne on Damages ' has now become almost a classic, and it is one of the books which 
 we cannot afford to have up to date. We are therefore pleased to have a new Edition, and 
 one so well written as that before us. With the authors we regret the increasing size of the 
 volume, but bulk in such a case is better than incompleteness. Every lawyer in practice 
 should have this book, full as it is of pracdcal learning on all branches of the Common Law. 
 The work is unique, and this Edition, like its predecessors, is indispensable." — Law Journal ^ 
 April, T894. 
 
 " Few books have been better kept up to the current law than this treatise. The earlier part 
 of the book was remodelled in the last edition, and in the present edition the chapter on 
 Penalties and Liquidated Damages has been rewritten, no doubt in consequence of, or with 
 regard to, the elaborate and exhaustive judgment of the late iVIaster of the Rolls in Wallis v. 
 Smith (31 W. R. 214 ; L. R. 21 Ch. D. 243). The treatment of the subject by the authors is 
 admirably clear and concise. Upon the point involved in Wallis v. Smith they say : ' The 
 result is that an agreement with various covenants of different importance is not to be governed 
 by any inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule, 
 that the intention of the parties themselves is to be considered. If they have said that in the 
 case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless 
 it would lead to such an absurdity or injustice that it must be assumed that they did not mean 
 what they said.' This is a very fair summary of the judgments in Wallis v. Smith, especially 
 of that of Lord Justice Cotton ; and it supplies the nearest approach which can be given at 
 present to a rule for practical guidance. We can heartily commend this as a carefully edited 
 edition of a thoroughly good book." — Solicitors Journal. 
 
 " Duringthe twenty-twoyearswhich have elapsed since the publiccUion of this well-known 
 work, its reputation has been steadily growing, and it has long since become the recognised 
 authoiity on the impoiiant subject of which it t7-eats." — Law Magazine and Review. 
 
 "This edition of what has become a standard 
 work has the advantage of appearing under the 
 snpervision of the original author as well as of 
 Mr. Lumley Smith, the editor of the second edition. 
 The result is most satisfactory. Mr. Lumley 
 Smith's edition was ably and conscientiously pre- 
 pared, and we are glad to find that the reader still 
 enjoys the benefit of his accuracy and learning. 
 At the same time the book has doubtless been 
 improved by the reappearance of its author as co- 
 editor. The earlier part, indeed, has been to a 
 considerable extent entirely rewritten. 
 
 *' Mr Mayne's remarks on damages in actions of 
 tort are brief. We agree with him that in such 
 actions the courts are governed by far looser prin- 
 ciples than in contracts ; indeed, sometimes it is 
 impossible to say they are governed by any prin- 
 ciples at all. In actions for inj uries to the person or 
 reputation, for example, a judge cannot do more 
 than give a general direction to the jury to give 
 
 " This text-book is so well known, not only as the highest authority on the subject treated 
 
 of but as one of the best text-books ever written, that it would be idle for us to speak of it 
 
 in the words of commendation that it deserves. It is work that no practising lawyer can 
 
 do without."— CA-sJ<vf- Law Journal. 
 
 what the facts proved in their judgment required. 
 And, according to the better opinion, they may give 
 damages *for example's sake,' and mulct a rich 
 man mare heavily than a poor one. In actions for 
 injuries to property, however, 'vindictive' or 
 ' exemplary ' damages cannot, except in very rare 
 cases, be awarded, but must be limited, as in con- 
 tract, to the actual harm sustained. 
 
 " It to needless to comment upon the arrangement 
 of the subjects in this edition, in which no alteration 
 has been made. The editors modestly express a 
 hope that all the English as well as tlie principal 
 Irish decisions up to the date have been included, 
 and we believe from our own examination that the 
 hope is well founded. We may regret that, warned 
 by the growing bulk of the book, the editors have 
 not included any fresh American cases, but we feel 
 that the omission was unavoidable. We should add 
 that the whole work has been thoroughly revised," — 
 Solicitors' youma.1. 
 
32 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 In crown 8vo, price 4^. 6</., cloth, 
 
 ABSTRACT DRAWING. Containing Instructions on 
 
 the Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. ScOTT, 
 Solicitor. 
 
 " This little book is intended for the assistance of those who have the framing of abstracts of title 
 entrusted to their care. It contains a number of useful rules, and an illustrative appendix.'"' — Laiij Times. 
 
 " A handy book for all articled clerks." — Law Students' Journal. 
 
 " Solicitors who have articled clerks would save themselves much trouble if they furnished their clerks 
 with a copy of this little book before putting them on to draft an abstract of a heap of title deeds."— Z-ziw 
 Notes. 
 
 " The book ought to be perused by all law students and articled clerks.'' — Red Tape. 
 
 ■ Second Edition, in crown 8vo, price 7^., cloth, 
 
 THE LAW RELATING TO CLUBS. 
 
 By the late JOHN WERTHEIMER, Barrister-at-Law. 
 Second Edition, by A. W. CHASTER, Barrister-at-Law. 
 
 "A convenient handbook, drawn up with great 
 judgment and perspicuity." — Morning Post. 
 
 " Both useful and interesting to those interested 
 in club management." — Laiu Times. 
 
 "Mr. Wertheimers history of the cases is com- 
 plete and well arranged." — Saturday Review. 
 
 " This is a very neat, little book on an interesting 
 subject. The law is accurately and well expressed." 
 — Laiv youmal. 
 
 "This is a very handy and complete little work. 
 This excellent little treatise should lie on the table 
 of every club." — Pump Court. 
 
 In 8vo, price 2^., sewed, 
 
 TABLE of the FOEEIGN MEEOANTILE LAWS and CODES 
 
 in Force in the Principal States of EUROPE and AMERICA. By Charles 
 Lyon-Caen, Professeur agr^g^ i la Faculte de Droit de Paris ; Professeur a 
 I'EcoIe libre des Sciences politiques. Translated by Napoleon Argles, 
 Solicitor, Paris. 
 
 In 8vo, price \s., sewed, 
 
 A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- 
 ALITY AND MILITARY SERVICE, as affecting British Subjects. By A. 
 Pavitt, Solicitor, Paris. 
 
 In one volume, demy 8vo, price \os. 6d., cloth, 
 
 PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, 
 
 RETENTION, and DELIVERY. By John Houston, of the Middle Temple, 
 Barrister-at-Law. 
 
 In 8vo, price \os., cloth, 
 
 THE TRIAL OF ADELAIDE BARTLETT FOR 
 
 MURDER ; Complete and Revised Report. Edited by Edward Beal, B.A., 
 of the Middle Temple, Barrister-at-Law. With a Preface by Edward Clarke' 
 Q.C., M.P. 
 
 In 8vo, price los. 6d., cloth, 
 A REPORT OF THE CASE OF 
 
 THE QUEEN v. GURNEY AND OTHERS, 
 
 In the Court of Queen's Bench before the Lord Chief Justice CocKBURN. With Intro- 
 duction, containing History of the Case^ and Examination of the Cases at Law 
 and Equity applicable to it. By W. F. FlNLASON, Barrister-at-Law. 
 
 In royal 8vo, price los. 6ii., cloth, 
 
 THE PRACTICE OF EQUITY BY WAY OF REVIVOR AND SUPPLEMENT. 
 
 With Forms of Orders and Appendix of Bills. By LoFTUs Leigh Pemberton 
 of the Chancery Registrar's Office. ' 
 
STSVENS &' HAVNES, BELL YARD, TEMPLE BAR, 33 
 
 In 8vo, price \zs. 6d., cloth, 
 
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 Being a Digest of the Decisions of the English, Scotch and Irish Courts 
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34 STEVENS &>' HAYl^ES, BELL YARD, TEMPLE BAR. 
 
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 their series of English Law Reports.'" — Canada Law Journal. 
 
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 highly creditable to the spirit and enterprise of 
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 in our legal history ; there are no year books of the 
 reign of Richard II., and Bellewe supplied theonly 
 substitute by carefully extracting and collecting all 
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 in the order of subjects, so that the.workisa digest 
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 arranged according to their subjects in alpliabetical 
 order. It is therefore one of the most intelligible 
 and interesting legal memorials of the Middle 
 Ages." — Lauu Titnes. 
 
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 CUNNINGHAM'S REPORTS. 
 
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 Consideration of both Houses of Parliament. Third edition, with numerous 
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 " The instructive chapter whidi precedes the 
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 with words which ought, for the information of 
 every people, to be printed in letters of gold. They 
 are as follows: 'Nothing conduces more to the 
 
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 laws and the due execution pf them.' The history 
 of the civil law is then rapidly traced. Next a 
 history is given of English Reporters, beginning 
 with the reporters of the Year Books from i Edw. 
 III. to 12 Hen. VIII. — teing near 200 years — and 
 afterwards to the time of the author." — Canada 
 Law Journal. 
 
STJEVENS 6- HAYA'^ES, BELL YARD, TEMPLE BAR. 
 
 3S 
 
 (Stibtna ant) ggasius' §txxts at Jitpviitts of tlte ®arls ^t^fotttxs. 
 
 CHOYCE CASES IN CHANCERY. 
 
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 TEE PRACTICE OF THE HIGH COUET OF OHANCEET. 
 
 With the Nature of the several Offices belonging to that Court. And the Reports of 
 many Cases wherein Relief hath been there had, and where denyed. 
 
 All 31;! wT.^' '" ''t^';^'^'' J""^ ¥"'''"« (''''= 'Bdlewe's Cases') is a fac-simile of the antique edition. 
 All who buy the one should buy the other."— Ca wadii Lam foiimal. 
 
 In 8vo, 1872, price 3/. 3^., calf antique, 
 
 SIR G. COOKE'S COMMON PLEAS REPORTS 
 
 IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. 
 
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 taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas 
 TOWNSEND BUCKNILL, of the Inner Temple, Barrister-at-Law. 
 " Law books never can die or remain long dead 
 so long as Stevens and Haynes are willing to con- 
 tinue them or revive them when dead. It is cer- 
 tainly surprising to see with what facial accuracy 
 
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 by their enterprise." — Canada. Law JournaL 
 
 BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. 
 
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 titles, with a table of the principal matters. In one handsome volume. Svo. 1873. 
 
 " Both the original and the translation having 
 long been very scarce, and the mispaging and other 
 errors in March's translation making a new and 
 corrected edition peculiarly desirable, Messrs. 
 
 Stevens and Haynes have reprinted the two books 
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 of the series of Early Reports." — Canada Lain 
 Journal. 
 
 KELYNGE'S (W.) REPORTS. 
 
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 Kelyn'GE's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 
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 Justices of England. To which are added, seventy New Casesnot in the First 
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 KELYNG'S (SIR JOHN) CROWN CASES. 
 
 In Svo, 1873, price 4/. 4^,, calf antique, 
 Kelvng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign ot King 
 Charles II., with Directions to Justices of the Peace, and others ; to which are 
 added. Three Modern Cases, viz., Armstrong and Lisle, the King and Plummer, 
 the Queen and Mawgridge. Third Edition, containing several additional Cases 
 never before printed, together with a Treatise upon the Law and Proceed- 
 ings IN Cases of High Treason, first published in 1793. The whole carefully 
 revised and edited by Richard Loveland Loveland, of the Inner Temple, 
 Barrister-at-Law. 
 
 "We look upon this volume as one of the most 
 important and valuable of the unique reprints of 
 Messrs, Stevens and Haynes. Little do we know 
 of the mines of legal wealth that lie buried in the 
 old law books. But a careful examination, either of 
 the reports or of the treatise embodied in the volume 
 now before us, will give the reader some idea of the 
 
 goodservicerendered by Messrs. StevensandHaynes 
 to the profession. . . . Should occasion arise, the 
 Crown prosecutor, as well us counsel for the prisoner, 
 will find in this volume a complete vade fnecunt of 
 the law of hig-h treason and proceedings in relation 
 thereto," — Canada. Laiv youmal. 
 
36 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Second Edition, in 8vo, price 26^., cloth, 
 
 A CONCISE TREATISE ON 
 
 PRIVATE INTERNATIONAL JURISPRUDENCE, 
 
 BASED ON THE DECISIONS IN THE ENGLISH COURTS. 
 By JOHN ALDERSON FOOTE, 
 
 OF Lincoln's inn, barrister-at-law ; chancellor's legal medallist and senior whewell scholar 
 
 OF international law, CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE 
 AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. 
 
 "This work seems to us likely to prove of considerable use to all English lawyers who have to deal with 
 questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty 
 years ago, the judicial decisions of English courts bearing upon different parts of this subject have greatly 
 increased in number, and it is full time that these decisions should be examined, and that the conclusions 
 to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done 
 this well," — Solicitors' Journal. 
 
 " Mr. Foote has done his work very well, and the book will be useful to all who have to deal with the 
 class of cases in which English law alone is not sufficient to settle the question." — Saturday Review^ 
 March 8, 1879. 
 
 'The author's object has been to reduce into order the mass of materials already accumulated in the 
 shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a 
 framework of private international law, not from the dicta of jurists so much as from judicial decisions in 
 English Courts which have superseded them. And it is here, in compiling and arranging in a concise 
 form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good 
 fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable : 
 while a table of cases and a general index will enable him to find what he wants without trouble." — 
 Standard. 
 
 The recent decisions on points of international law (and there have been a large number since Westlake's 
 publication) have been well stated. So far as we have observed, no case of any importance has been 
 omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the 
 grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his 
 
 criticisms seem to us very just On the whole, we can recommend Mr. Foote's treatise as a useful 
 
 addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." 
 — The Journal of Jurisprudence and Scottish Law Magazine. 
 
 " Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those 
 of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend 
 it as one useful alike in Chambers and in Court." — Law Magazine and Review. 
 
 " Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book 
 
 is the ' Continuous Summary,' which occupies about thirty pages, and is divided into four parts — Persons, 
 Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as 
 an attempt at codification. However that may be, they are a digest which reflects high credit on the 
 author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much 
 more than guide him. They will enable him to get such a grasp of the subject as will render the reading 
 of the text easy and fruitful." — Law Journal. 
 
 •' This book is well adapted to be used both as a text-book for students and a book of reference for 
 practising haxrizters."— Bar Examination Journal. 
 
 "This is a book which supplies the want which has long been felt for a really good modern treatise on 
 Private International Law adapted to the every-day requirements of the English Practitioner. The 
 whole volume, although designed for the use of the practitioner, is so moderate in size — an octavo of 500 
 pages only— and the arrangement and development of the subject so well conceived and executed, that it 
 will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty 
 point but the satisfactory disposal of an examination ^2ipe.r."— Oxford and Cambridge Undergraduates' 
 Journal. 
 
 "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, in 
 our opinion, the best work on private international law which has appeared in the English language. . . 
 The work is executed with much ability, and will doubtless be found of great value by all persons who 
 have to consider questions on private international la.yf. "— A thenteum. 
 
STEVENS &• HAYNES, BELL YARD, TEMPLE BAR. 37 
 
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 Fifth Edition, revised and enlarged, 8vo, price y.s. net. 
 
 A TREATISE ON HINDU LAW AND USAGE. 
 
 By John D. Mayne, of the Inner Temple, Barrister-at-Law, Author of ** A Treatise on 
 
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 THE INTRODUCTION TO DUTCH JURISPRUDENCE OF 
 
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 SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND. 
 
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 at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- 
 lation of importance to Students, and other information. 
 
 By a. D. TYSSEN and W. D. EDWARDS, Barristers-at-Law. 
 In 8vo, price 8j., cloth, 
 
 SHORT PRACTICAL COMPANY FORMS. 
 
 By T. Eustace Smith, of the Inner Temple and Lincoln's Inn, Barrister-at-Law, 
 Author of " A Summary of the Law of Companies," etc., assisted by Roland E. 
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 REVIEW. 
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 others interested in the practical working of companies. . . . The forms themselves are short and to 
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 Sixth Edition. In 8vo, price gj. cloth. 
 
 A SUMMARY OF JOINT STOCK COMPANIES' LAW. 
 
 By T. EUSTACE SMITH, 
 
 OF THE INNER TEMPLE, BARRISTER-AT-LAW, 
 
 " The author of this handbook tells us that, when 
 an articled student reading for the final examina- 
 tion, he felt the want of such a work as that before 
 us wherein could be found the mam principles of 
 law relating to joint-stock companies . . . Law 
 students may well read it ; for Mr. Smith has very 
 wisely been at the pains of giving his authority for 
 all his statements of the law or of practice, as applied 
 to ioint-stock company business usually transacted 
 in solicitors' chambers. In fact, Mr Smith has 
 bv his little book offered a fresh inducement to 
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 extent— acquainted with company law as a separate 
 ranch of study."— ^'iw Thfte's. 
 
 " These pages give, in the words of the Preface, 
 ' as briefly and concisely as possible a general 
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 affecting companies.' The work "is' excellently 
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 plan is good, and shows both grasp and neatness, 
 and, both amongststudents and laymen, Mr. Smith's 
 book ought to meet a ready sale." — Law JouT-nal. 
 
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 a large amount of valuable information, and we can 
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 readers." — Oxford and Cavibridge Undergra- 
 duates' yottrnal. 
 
40 STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. 
 
 In 8vo, Sixth Edition, price ^s., cloth, 
 
 THE MARRIED WOMEN'S PROPERTY ACTS ; 
 
 1870, 1874, 1882 and 1884, 
 With Copious and Explanatory Notes, and an Appendix of the Acts 
 
 RELA'l'ING to MaRRIED WOMEN. 
 
 By Archibald Brown, M.A., Edinburgh and Oxon., and the Middle Temple, 
 Barrister-at-Law. Being the Sixth Edition of The Married Women's Property 
 Acts. By the late J. R. Griffiths, B.A. Oxon., of Lincoln's Inn, Barrister- 
 at-Law. 
 
 " Upon the whole, we are of opinion that this is the best work upon the subject which has been issued 
 since the passing of the recent Act. Its position as a well-established manual of acknowledged worth gives 
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 the intelligent treatment of the Editor." — Solicitors' Journal. 
 
 "The notes are full, but anything rather than tedious reading, and the law contained in them is good, 
 and verified by reported cases. ... A distinct feature of the work is its copious index, practically a 
 summary of the marginal headings of the various paragraphs in the body of the text. This book is worthy 
 of all success." — Law Magazine. 
 
 In Svo, price I2j., cloth, 
 
 THE LAW OF NEGLIGENCE. 
 
 SECOND EDITION. 
 
 By Robert Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate 
 of the Scotch Bar. 
 
 ** No less an authority than the late Mr. Justice j new edition brought down to date. It is indeed an 
 
 Willes, in his judgment in Oppenkeitn v. White able and scholarly treatise on a somewhat difficult 
 
 Lion. Hotel Co., characterised Mr. Campbell's branch of law, in the treatment of which the 
 
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 oneswhich annually issue from the press, we think practitioner." — Law Magazine. 
 
 the profession will be thankful to the author of this I 
 
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 Inn, Barrister-at-Law. 
 
 BIBLIOTHECA LEGUM. 
 
 In izmo (nearly 400 pages), price 2s., cloth, 
 
 A CATALOGUE OF LAW BOOKS, including aU the Reports 
 in the various Courts of England, Scotland, and Ireland ; with a Supplement to 
 December, 1884. By Henry G. Stevens and Robert W. Haynes, Law 
 Publishers. 
 
 In small 4to, price 2s. , cloth, beautifully printed, with a large margin, for the 
 special use of Librarians, 
 
 A CATALOGUE OF THE REPORTS IN THE 
 
 VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT 
 BRITAIN AND IRELAND, arranged both in alpha- 
 
 BETICAL &' CHRONOLOGICAL ORDER. By Stevens & Haynes, 
 ZflTC Piiblishers. 
 
STEVENS Ss' HA WYES, BELL YARD, TEMPLE BAR. 
 
 a 
 
 Second Edition, much enlarged, in 8vo, price 20s., clolh. 
 
 CHAPTERS ON THE 
 
 LAW RELATING TO THE COLONIES. 
 
 To which are appended Topical Indexes of Cases decided in the Privy Council 
 on Appeal from the Colonies, Channel Islands and the Isle of Man, and of 
 Cases relating to the Colonies decided in the English Courts otherwise than on 
 Appeal from the Colonies. 
 
 By CH.\RLES JAMES TARRING, M.A., 
 
 ASSISTANT JUDGE OF H.B.M. SUPREME CONSULAR COORT, CONSTANTINOPLE, AND H.M.'S CONSUL; 
 AUTHOR OF "BRITISH CONSULAR JURISDICTION IN THE EAST," "a TURKISH GRAMMAR," ETC." 
 
 CONTENTS. 
 
 Tibte of Cases Cited, 
 Table of Statutes Cited. 
 
 Introductory. — Definition of a Colony. 
 Chapter I. — ^e laws to which the Colonies are 
 subject. 
 Section i. — In newly-discovered countries." 
 Section 2. — In conquered or ceded countries. 
 Section 3. — Generally. ^ - 
 Chapter II. — The Executive.. 
 Section i. — The Governor. 
 
 A. — Nature of his office, power, and 
 
 duties. -- - 
 
 B. — Lijibility to answer for his acts. 
 I.-- Civilly, - 
 
 J. a. — 'Inthe courts of his Go'vem- 
 ment. 
 • ■ b. — In the English courts. 
 
 ^. . L 3. — For what causes of action. 
 
 II. — Criminalljr. 
 Section 2.^— The Executive Council. 
 Chapter III. — The Legislative Power. 
 Section i. — Classification of colonies. 
 Section 2. — Colonies ^vith responsible govern- 
 ment. 
 Section 3. — Privileges and powers of colonial 
 Legis^tive Assemblies. 
 
 Chapter IV. — The Judiciary and the Bar. 
 Chapter V. — Appeals from the ^plonips. 
 Chapter VI. — Imperial Statutes relating to the 
 Colonies. 
 Section I. — Imperial Statutes relating to the 
 
 Colonies in general. 
 Section 2.— Su,bjects of Imperial Legislation 
 relating _ to the Colonies in 
 general. 
 Section 3. — Imperial Statutes relating to par- 
 ticular Colonies. 
 
 Topical Index of Cases decided in the Privy 
 Council on appeal from the Colonies, ,the 
 Channel Islands, and the Isle of Man. 
 
 Index of some Topics of English Law dealt with 
 in the Cases. 
 
 Topical Index of Cases relating to the Colonies 
 decided in the English Courts otherwise than on 
 appeal from the Colonies. , , , 
 
 Index of Names of Cases. 
 
 Appendix I. 
 - IL 
 
 General Index. 
 
 In 8vo, price ioj., cloth, 
 
 THE TAXATION OF COSTS IN THE CROIN OFFICE. 
 
 COMPRISING A COLLECTION OF 
 
 BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN TKAT OFFICE; 
 
 INCLUDING 
 
 COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS, 
 AND ON APPEALS FROM INFERIOR COURTS; 
 
 TOGETHER WITH 
 
 A TABLE OF COURT FEES, 
 
 and a scale of costs usually allowed to solicitors, on the taxation 
 
 of costs on the crown side of the queen's bench division 
 
 of the high court of justice. 
 
 By FREDK. H. short, 
 
 ckiEF clerk in the crown office. 
 
 "This is decidedly a useful work on the subject of those costs whidh are liable to be taxed before the 
 Queen's Coroner.and Attorney (for which latter name that of ' Solicitor '' might now well be substituted), or 
 before the master of the Crown Office ; in fact, such a book is almost indispensable when preparing costs 
 for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will find the scale 
 relating to bankruptcy prosecutions of especial use, as such costs are taxed in the Crown Office. The ' general 
 observations' constitute a useful feature in this manual." — Law Tunes. 
 
 "The recent revision of the old scale of costs in the Crown Office renders the appearance of this work 
 particularly opportune, and it cannot fail to be welcomed by practitioners. _ Mr. Short gives, in the first 
 place a scale of costs usually allowed to solicitors on the taxation of costs in the Crown Office, and tHen 
 bills of costs in various matters. These are well arranged and clearly printed." — Solicitors' Journal. 
 
42 STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 
 
 Just Published, in Svo,, price ^s. 6d., cloth, 
 
 BRITISH CONSULAR JURISDICTION IN THE EAST, 
 
 WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND 
 RELATING TO, CONSULAR COURTS AND CONSULS; ; 
 Also a Collection of Statutes concerning Consuls. 
 
 '" By C. J. TARRING, M.A., ' ' 
 
 ASSISTANT-JUDGE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT. 
 
 In one volume, 8vo, price Ss. 6d. , cloth, 
 A COMPLETE TREATISE UPON THE 
 
 NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, 
 
 CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 
 
 1883, WITH THE RULES AND FORMS, FULLY ANNOTATED 
 
 WITH CASES, &c. 
 
 And a Statement of the Principles of the Law upon those subjects, with a Time Table 
 
 and Copious Index, 
 
 By EDWARD MORTON DANIEL, 
 
 OF Lincoln's inn, barrister- at -law, associate of the institute of patent agents. 
 In Svo, price Ss., cloth, 
 
 The TRADE MARKS REGISTRATION ACT, 1875, 
 
 And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an 
 Introduction containjiiga SUMMARY OF THE LAW OF TRADE MARKS, 
 together with practical Notes and Instructions, and a copious Index. By 
 Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. ' 
 
 Second Edition, in one volume, 8vo, price i6j., cloth, 
 A CONCISE TREATISE ON THE 
 
 STATUTE LAW OF THE LIMITATIONS OF ACTIONS. 
 
 With an Appendix of Statutes, Copious References to English, Irish, and American Cases, 
 and to the French Code,- and a Copious Index. 
 
 By HENRY THOMAS BANNING, M.A., 
 
 ' '- ■ - - OF THE INNER TEMPLE, BARRISTER-AT-LAW. ■ - — . 
 
 "The work is decidedly valuable." — Z-aw Timesi 
 
 * ' Mr. Banning has adhered to the plan of printing the Acts in an appendix, and making his book a 
 running treatise- on the (^aserlaw, thereon. The cases have evidently been investigated' jwith care and 
 digested' with clearness arid intellectuality." — Law JoiimaL ' ' 
 
 In 8vo, price u., sewed, 
 AN ESSAY ON THE 
 
 ABOLITION OF CAPITAL PUNISHMENT. 
 
 Embracing more particularly an Enunciation and Analysis of the Principles of Law as 
 applicable Jo Criminals of the Highest Degree of Guilt. ,, 
 
 By WALTER ARTHUR COPINGER,. 
 
 OF' THE MIDDLE TEMPLEi ESQ., BARRISTER-AT-LAW. 
 
 Sixth Edition, in Svo, price 31J. 6^/., cloth, 
 
 THE INDIAN CONTRACT ACT, No. IX., of 1872. 
 
 TOGETHER 
 
 WITH AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF 
 
 CONTENTS, APPENDIX. AND INDEX. 
 
 By H. S. CUNNINGHAM and H. H. SHEPHERD, 
 
 BARRISTERS- AT-LAW. 
 
STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. 
 
 43 
 
 Second Edition, in 8vo, price 15^-., cloth, 
 
 LEADING CASES and OPINIONS on INTERNATIONAL LAW 
 
 COLLECTED AND DIGESTED FROM 
 
 ENGLISH AND FOREIGN REPORTS, OFFICIAL DOCUMENTS, 
 PARLIAMENTARY PAPERS, and other Sources. 
 
 With NOTES and EXCURSUS, Containing the Views of the Text-Writers on 
 the Topics referred to, together with Supplementary Cases, Treaties, and Statutes; 
 and Embodying an Account of some of the more important International Trans- 
 actions and Controversies. 
 
 By PITT COBBETT, M.A., D.C.L., 
 
 OF gray's inn, BARRISTER-AT-LAW, professor of law, university of SYDNEY, N.S.W. 
 
 "The book is well arranged, the materials well ^The notes are concisely written and trust- 
 
 worthy The reader will learn from them a 
 
 great deal on the subject, and the book as a 
 whole seems a convenient introduction to fuller and 
 more systematic works." — Oxford Magazine. 
 
 selected, and the comments to the pointl Much 
 will be found in small space in this book 
 Journal. 
 
 Second Edition, in royal 8vo. iioo pages, price 45^., cloth, 
 
 STORY'S COMMENTARIES ON EQUITY 
 JURISPRUDENCE. 
 
 Second English Edition, from the Twelfth American Edition. 
 By W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon.), 
 
 AND OF THE INNER TEMPLE, BARRISTER-AT-LAW. 
 
 " It is high testimony to the reputation of Story, 
 that another 
 . . The work 
 
 and to the editorship of Dr. Grigsby, that another 
 edition should haye been called for. . 
 
 has been rendered more perfect by additional 
 indices," — Laiv Times. 
 
 Second Edition, in 8vo, price 8j., cloth, 
 
 THE PARTITION ACTS, 1868 & 1876. 
 
 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the Decided 
 Cases, and an Appendix containing Judgments and Orders. By W. GREGORY 
 Walker, B.A., of Lincoln's Inn, Barrister -at -Law. 
 
 * ' liiis is a very good manual — practical, clearly 
 written, and complete. The subject lends itself 
 well to the mode of treatment adopted by Mr. 
 Walker, and in his notes to the various sections he 
 
 has carefully brought together the cases, and .dis- 
 cussed the difficulties arising upon the language of 
 the different provisions."- — Solicitors' Journal. 
 
 Second Edition, in 8vo, price 2.2.S, cloth, 
 A TREATISE ON THE 
 
 LAW AND PRACTICE RELATING TO INFANTS. 
 
 By ARCHIBALD H. SIMPSON, M.A., 
 
 OF Lincoln's inn, barrister-at-law, and fellow of Christ's college, Cambridge. 
 SECOND EDJTJON. By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn, 
 
 Barrister-at-Law. 
 "Mr. Simpson's book comprises the whole of the 
 law relating to infants, both as regards their per- 
 sons and their property, and we have not observed 
 any very important omissions. The author has 
 evidently expended much trouble and care upon 
 his work, and has brought together, in a concise 
 and convenient form, the law upon the subject down 
 to the lo-esent time." — Solicitors' Journal. 
 
 "Its law is unimpeachable- We have detected 
 no errors, and whilst the work might have been 
 done more scientifically, it is, beyond all question, 
 a compendium of sound legal principles," — Lanxt 
 Times. 
 
 " Mr. Simpson has arranged the whole of the Law 
 relating to Infants with much fulness of detail^ and 
 
 yet in comparatively little space. The result is 
 due mainly to the businesslike condensation of his 
 style. Fulness, however, has by no means been 
 sacrificed to brevity, and, so far as we have been 
 able to test it, the work omits no point of any im- 
 portance, from, the earliest cases to the last. In 
 the essential qualities of clearness, completeness, 
 and orderly arrangement it leaves nothmg to be 
 desired. 
 
 " Lawyers in doubt on any point of law or prac- 
 tice will find the information they require, if it can 
 be found at all, in Mr. Simpson's book, and a 
 writer of whom this can be said may congratulate 
 himself on having achieved a considerable success. " 
 — Lww Magazine, February, 1876. 
 
44 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 
 
 In one volume, royal 8vo, 1877, price 30J., cloth, 
 
 THE DOCTRINES & PRINGIPLES OF 
 THE LAW OE INJUNCTIONS. 
 
 By^WILLIAM JOYCE,, , ^, 
 
 OF Lincoln's' inn, barrister-at-law. 
 
 "Mr. Joyce, whoSe ' learned and exhaustive work on 'The Law and Practice' of Injunctions' has 
 gained such a deservedly high reputation in the Profession, now brings oiU a valuable ■ compaEion volume 
 on the ' Doctrines and Principles ' of this important brappji^of the Law. In the present work the Law is 
 enunciated in its abstract rather than its concrete form, as few cases as polssible /being cited ; while at the 
 same time no statement of a principle is n^ade imsupported by a decision, and. for the most part ^^e very 
 language of the Courts has been adhered to. Written as it is by so acknowledged' a master of his subject, 
 ahd with the conscientious carefulness that mi^bt be expected from him, this workxahnot fail to prove of 
 the greatest assistance alike to the Student^who wants to grasp principles freed from, thejr superincum- 
 bentdetails — and to the practitioner, who wants to refresh his memory on points of doctripe amidst the 
 oppressive details of professional work." — Law Magazine and Remeii), '" ' 
 
 BY THE SAME AUTHOR, _ ' 
 
 In two volijmes,- royal 8vo, 1872, price 70i. , cloth, 
 
 THE LAW & PRACTICE OF INJUNCTIOHS. 
 
 EMBRACING 
 
 ALL THE SUBJECTS IN WHICH COURTS OF EQUITY 
 AND COMMON LAW HAVE JURISDICTION. 
 
 B Y ;W I L L I A M JOYCE, 
 
 OF^i flNCOLN's ^NN, , JiARRlSTEK-AT-LAW. '■ . 
 
 , KEVIBWS. 
 
 "A work which aims at being so absolutely 
 complete,- as that of Mr. Joyce upon a subject 
 whieh is of almost perpetual recurrence in the 
 Courts, cannot fail to be a welcome offering to the 
 profession, and doubtless, it will be well received 
 and largely ased, for it is as absolutely complete as 
 
 it aims at being This work is, therefore, 
 
 eminently a work for the practitioner, being full of 
 practical utility in every page, and every sentence, 
 of^it^ ■ ■ • ■ . We have to congratulate ^ the pro- 
 fession on this new acquisition to ■ a digest of the ' 
 law, and the author on his production of a work^of' 
 permanent utility and fame." — Law Magazine 
 and Review, 
 
 " Mr. Joyce has ^produced, not a treatise, bu,t, a 
 complete and compendious exposition of the Law 
 and Practice of Injunctions both in equity atid 
 common law. 
 
 " Part III, is devoted to the practice of the 
 Courts. Coniaiits Un amoimt of valuable and 
 technital matter noivkere else collected. 
 
 ' *' Proni these remarks it will be sufficiently per- 
 ceived what elaborate and painstaking industry, as 
 well as legal knowledge and\ ability has been 
 necessary in the compilation of iMr., Joyce's _WQrk,' 
 No labour has been spared to >save the practit£QQ<£f 
 labour, and no research has been omitted whioh 
 could tend towards the elucidation and exemplifi- 
 cation of the general principles of the Law and 
 .Priactice of Injunctions." — Law youmal. 
 
 - " He dqesnot attempt to ^o an jnph beyopd that 
 ■for which, "he h^s ex^itss written iiithority*; fie al- 
 lows Che cases to-speak, and does not speak for them. 
 "The work is something more than a treatise on 
 the Law of Injunctions. It gives tis the general 
 law On almost every subject to-which the ptdcess of 
 injunction is applicable. Not only English, but 
 American decisions are cited, thp ^ggreg^tg nunvber 
 being 3,500, and the statutes cited r66i ^^hHst- th^ 
 index is, we think, the most elabdi^te We haveevo? 
 seen — occupying nearly 200 'pagtes. The work is 
 probably entirely exhaustive."-^Xaw Tifnes, 
 
 " This work, considered either as tfo'its matter or manner of execution, is no ordinary work. It is a 
 complete aiid exhaustive treatise both as to the law and the practice of granting injunctions. It must- 
 supersede all other works on the shbjfect. The tei^e statement of the practice will be found of incalculable 
 value. We Icnow of no book as suitable to supplj^ a knowledge of the law of injunctions to our common 
 lawfriends as Mr. Joyce's exhaustive wotk. It is alikfe ihdispinsable to membei-s of the Common La\^ 
 and Equity Bars. Mr. Joyce's great work would be a casket without a key unless accompanied by a gpod 
 index. His index is very full and well arranged. We feel that this work is destined to take its place 
 as a standard text-book, and M« text-book on the particular subject of which it treats. The author 
 deserves great credit for the very great labour bestowtd upon it. The publishers, as usual, have 
 acquitted themselves in a manner deserving of the high reputation they he&t."— Canada Law youmal, - 
 
STEVENS <Sr» HAYNES, BELL YARD, TEMPLE BAR. 
 
 45 
 
 Third Edition, in 8vo, price 2ar., cloth, 
 A TREATISE UPON 
 
 ; THE LAW OF EXTRADITION, 
 
 WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN 
 
 ENGLAND AND FOREIGN NATIONS, 
 
 AND THE CASES DECIDED THEREON. 
 
 By Sir EDWARD CLARKE, 
 
 OF LINCOLN S 1 
 
 " Mr. Clarke's accurate and sensible book is the 
 best authority to 'which the English reader can 
 turn upon the subject of Extradition." — Satiirday 
 
 " "THie opihioh w^ fexpressTedof the" merits of this 
 work when it first app^ared'ha^ been fuUy justified 
 by the reputation it has gained. It is seldom we 
 come across a book possessing, so much interest to 
 the general reader and at the same time furnishing so 
 useful a guide to the lawyer." — Solicitors' JoitmaL 
 "The appearance of a second edition of this 
 treatise does not surprise ust It, is a useful book, 
 well arranged and well written. A student who 
 
 4, S.-G., Q.C, M.P. 
 
 wants to learn the principles and practice of the 
 law of extradition will be greatly helped by Mr. 
 Clarke. Lawyers v;ho have extradition business 
 \Yill find this volume an excellent book of reference. 
 Magistrates who have to administer the extradition 
 law will be greatly assisted by a careful perusal of 
 'Clarke upon Extradition.' This may be called a 
 warm comimendation^ but those who have read the 
 bookVill not say it is unmerited." — Law Journal. 
 The Times of September 7, 1874, in a long 
 article upon "Extradition Treaties," makes con- 
 siderable use of this work and writes of it as " Mr. 
 Ciarke'-s usefitt IVork on Extradition." 
 
 In 8vo, price 2j. 6d., cloth, 
 
 TABLES OF STAMP DUTIES 
 
 FROM 1815 TO 1878. 
 By WALTER ARTHUR COPINGER, 
 
 OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER-AT-LAW : AUTHOR OF " THE LAW OF COPYRIGHT IN 
 WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," *' TITLE DEEDS," &C. 
 
 "We think this little book ought to find its way 
 into a good many chambers and offices." — Soli- 
 citors' Journal. 
 
 •'T hi s book, or at least one containing the same 
 ^Ljnotint of valuable and weH-arranged information, 
 should find a place^in every Solicitor's office. It is 
 of especial value when examining the abstract of a 
 
 large number of old title-deeds." — Laix) Times. 
 
 His Tables 0/ Sta7np Duties, fro7n 1815 to 18^8, 
 have already been tested in Chambers, and being 
 now published, will materially lighten the labdurs 
 of the profession in a tedious department, yetone re- 
 quiring great care." — Law Magazine and Review. 
 
 In one volume, 8vo, price 14J., cloth, 
 
 TITLE DEEDS: 
 
 THEIR CUSTODY, INSPECTION, AND PRODUCTION, AT LAW, IN 
 EQUITY, AND -IN MATTERS OF CONVEYANCING, 
 
 Inclnding Covenants for the Production of Deeds and Attested Copies ; with an Appendix 
 of Precedents, the Vendor and Purchaser Act, 1874, &c. &c. &c. By Walter 
 Arthur Copijiger, of the Middle Temple, Barrister-at-Law ; Author of " The 
 Law of Copyright " and "Index to Precedents in Conveyancing." 
 
 "The literary execution of the work is good 
 ■enQUgh to invite quotation, but the volume is not. 
 large, and we content ourselves with recommending 
 it to the profession."— /.(TOT Times. 
 
 "A really good treatise on this subject must be 
 essential to the lawyer : and this is what we have 
 
 here. Mr. Copinger has supplied a much-felt want, 
 by the compilation of this volume. We have not 
 space to go into the details of the book ; it appears 
 well arranged, clearly written, and fully elaborated. 
 With these few remarks we recommend his volume 
 to our readers. " — Law JoKnial. 
 
 Third Edition, in 8vo, considerably enlarged, price 36^., cloth, 
 
 THE LAW OF COPYRIGHT 
 
 In Works of Literature and Art ; including that of the Drama, Music, Engraving, 
 Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together 
 with International and Foreign Copyright, with the Statutes relating thereto,, and 
 References to the English and American Decisions. By Walter Arthur 
 Copinger, of the Middle Temple, Barrister-at-Law. 
 "Mr Copinger's book is very comprehensive, 
 
 dealing with every branch of hU subject, and even 
 
 ...».„ J!„„ fn rnnvri2ht in foreign countries. So far 
 
 extending to copyright in foreign countries, 
 as we have examined, we have found all the recent 
 authorities noted up with scrupulous care, and 
 there is an unusually good index^ Ihcse are 
 
 merits which will, doubtless, lead to the placing of 
 this edition on the shelves of the members of the 
 profession whose business is concerned with copy- 
 right ;' and deservedly, for the book is one pf con- 
 siderable value." — Solicitors' journal. 
 
46 STEVENS &' HAYNES, BELL. YARD, TEMPLE BAR. 
 
 Third Edition, in One large Volume, 8vo, price 32J., cloth, 
 
 A MAGISTERIAL AND POLICE GUIDE: 
 
 BEING THE LAW 
 
 RELATING TO THE 
 
 PROCEDURE, JURISDICTION, AND DUTIES OF MAGISTRATES 
 AND POLICE AUTHORITIES, 
 
 IN THE METROPOLIS AND IN THE COUNTRY. 
 
 With an Introduction showing the General Procedure before Magistrates 
 both in Indictable and Summary Matters. 
 
 By henry C. greenwood, 
 
 STIPENDIARY MAGISTRATE FOR THE DISTRICT OF THE STAFFORDSHIRE POTTERIES ; AND 
 
 TEMPLE CHEVALIER MARTIN, 
 
 CHIEF CLERK TO THE MAGISTRATES AT LAMBETH POLICE COURT, LONDON ; 
 AUTHOR OF "the LAW OF MAINTENANCE AND DESERTION," " THE NEW FORMULIST," ETC. 
 
 Third Edition. Including the Session 52 & 53 Vict., and the Cases Decided in the 
 Superior Courts to the End of the Year 1889, revised and enlarged. 
 
 By temple CHEVALIER MARTIN. 
 
 "A second edition has appeared of Messrs. Greenwood and Martin's valuable and 
 comprehensive magisterial and police Guide, a book which Justices of the peace should take 
 care to include in their Libraries." — Saturday Review. 
 
 ' ' Hence it is that we rarely light upon a work which commands our confidence, not merely 
 by its research, but also by its grasp of the subject of which it treats. The volume before us 
 is one of the happy few of this latter class, and it is on this account that the public favour will 
 certainly wait upon it. We are moreover convinced that no effort has been spared by its 
 authors to render it a thoroughly efficient and trustworthy guide." — Law Journal. 
 
 "Magistrates will find a valuable handbook in Messrs. Greenwood and Martin's 
 
 ' Magisterial and Police Guide,' of which a fresh Edition has just been published." The 
 
 Times. 
 
 " Kv&Tj valuable introduction, treating of proceedings before Magistrates, and largely of the 
 Summary Jurisdiction Act, is in itself a treatise which will repay perusal. We expressed our 
 high opinion of the Guide when it first appeared, and the favourable impression then produced 
 is increased by our examination of this Second Edition.". — Law Times. 
 
 " For the form of the work we have nothing but commendation. We may say we have 
 
 here our ideal law book. It may be said to omit nothing which it ought to contain." 
 
 Law Times. 
 
 " This handsome volume aims at presenting a comprehensive magisterial handbook 
 for the whole of England. The mode of arrangement seems to us excellent, and is well 
 carried out." — Solicitors^ yournal. 
 
 " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple 
 Martin, is a model work in its conciseness, and, so far as we have been able to test it 
 in completeness and accuracy. It ought to be in the hands of all who, as magistrates or 
 otherwise, have authority in matters of police." .^Daily News. 
 
 " This work is eminently practical, and supplies a real want. It plainly and concisely 
 states the law on all points upon which Magistrates art called upon to adjudicate sysie- 
 matically arranged, so as to be easy of reference. It ought to find a place on every Jusliceh 
 table, and we cannot but think that its usefulness will speedily ensure for it as large a sale 
 as its merits deserve." — Midland Counties Herald. 
 
 " The exceedingly arduous task of collecting together all the enactments on the subject 
 has been ably and efficiently performed, and the arrangement is so methodical and precise 
 that one is able to lay a finger on a Section of an Act almost in a moment. It is wonderftil 
 what a mass of information is comprised in so comparatively small a space. We have much 
 pleasure in recommending the volume not only to our professional, but also to our 
 general readers ; nothing can be more useful to the pubUc than an acquaintance with the 
 outlines of magisterial jurisdiction and procedure." — Sheffield Post. 
 
STEfENS &- HAYNES, BELL YARD, TEMPLE BAR. 47 
 
 In one thick volume, 8vo, price 32J., cloth, 
 
 THE LAW OF RAILWAY COMPANIES. 
 
 Comprising the Companies Clauses, the Lands Clauses, the Railways Clauses Consoli- 
 dation Acts, the Railway Companies Act, 1867, and the Regulation of Railways 
 Act, IS68 ; with Notes of Cases on all the Sections, brought down to the end of the 
 year 1868 ; together with an Appendix giving all the other material Acts relating 
 to Railways, and the Standing Orders of the Houses of Lords and Commons ; 
 and a copious Index. By Henry Godefroi, of Lincoln's Inn, and Torn 
 Shortt , of the Middle Temple, Barristers-at-Law. 
 
 In a handy volume, crown 8vo, 1870, price loj. 6a?., cloth, 
 
 THE LAW OF SALVAGE, 
 
 As administered in the High Court of Admiralty and the County Courts ; with the 
 Principal Authorities, English and American, brought down to the present time ; 
 and an Appendix, containing Statutes, Forms, Table of Fees, etc. By Edwyn 
 Jones, of Gray's Inn, Barrister-at-Law. 
 
 In crown 8vo, price 4J-., cloth, 
 
 A HANDBOOK OF THE 
 
 LAW OF PARLIAMENTARY REGISTRATION. 
 
 WITH AN APPENDIX OF STATUTES AND FULL INDEX. 
 
 By J. R. SEAGER, Registration Agent. 
 
 In 8vo, price 5^., cloth, 
 
 THE LAW OF PROMOTERS OF PUBLIC COMPANIES. 
 
 By NEWMAN WATTS, 
 
 OF LINCOLN S INN, BARRISTER-AT-LAW. 
 
 " Some recent cases in our law courts, which at 
 the time attracted much public notice, have demon* 
 Etrated the want of some clear and concise exposi- 
 tion of the powers and liabilities of promoters, and 
 this task has been ably performed by Mr. Newman 
 Watts." — Investor's Guardian. 
 
 " Mr._ Watts has brought together all the lead- 
 ing decisions relating to promoters and directors, 
 and has arranged the information in a very satisfac- 
 tory manner, so as to readily show the rights of 
 different parties and the steps which can be legally 
 taken by promoters to further interests of new com- 
 panies." — Daily Chronicle, 
 
 Second Edition, in One VoL, Svo, price I2j., cloth, 
 
 A COMPENDIUM OF ROMAN LAW, 
 
 Founded on the Institutes of Justinian ; together with Examination Questions 
 Set in the University and Bar Examinations (with Solutions), and Definitions of 
 Leading Terms in the Words of the Principal Authorities. Second Edition. By 
 Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, 
 Oxford; M.A., LL.D., Trinity College, Cambridge ; Author of "An Analysis of 
 Austin's Jurisprudence, or the Philosophy of Positive Law. " 
 
 In 8vo, price 7j. i>d., cloth, 
 
 TITLES TO MINES IN THE UNITED STATES, 
 
 WITH THE 
 
 STATUTES AND REFERENCES TO THE DECISIONS 
 OF THE COURTS RELATING THERETO. 
 
 By W. a. HARRIS, B.A. Oxon., 
 
 OF Lincoln's inn, barrister-at-law ; and of the American bar. 
 
INDEX 
 
 To the Names of Autfiors and Editors of Works ,eny,mera.led in this Catalogue. 
 
 ALDRED.fP.! F,), pflge 21. 
 
 ArgLES,(N.). 32. ; ASHWOHJH (E A.),,2I,. 
 
 Attenborough (C. L.), 27. 
 Baldwin (E. t.), 15. 
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 •BEal(E.), 32. 
 BsiLiiEwK (R.), 34. 
 Bbven (T.), 8. 
 Blyth (E. E.), 22. 
 Brice (Seward), 16, 33. 
 Brooke (Sir R.), 35- 
 Brooks (W. J.), 13. 
 
 Brown (Archibald), 20, 22, 26, 33, 40. 
 Browne (J. H. Balfour), 19. 
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 "Cecil (Lord R.), 11. 
 
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 Cunningham (John), 7. 
 
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 Duncan (J. A.), 33. 
 
 Edwards (W. D.), 16, 39. 
 
 Elgood (E. j.), 6, 18, 43. 
 
 Elliott (G.), 14. Emden (A.), ii. 
 
 Errington (F. H. L.), io. 
 
 EvanS;(M.O.), 20. 
 
 Eversley (W. p.), 9. 
 
 ii'lNLASON (W. F.), 32. 
 
 Foa(E.), II. 
 
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 Forbes (U. A.), 18. 
 
 Forsyth (W.), 14.' Frost (R.), 12. 
 
 GiBBS (F. W.), 10. 
 
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 "Greenwood (H. C), 46. 
 
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 Grotius (Hugo), 38. 
 
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 Hanson (A.), 10. 
 
 Hardcastle (H.), 9. 
 
 Harris (Seymour F.), 20, 27; 
 
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 Harwood (R. G.), io. 
 
 _ Hazlitt (W.), 29. J • ■ : ■ 
 
 i IllCGINS (C), 30.' , ' wLJ t ^ 
 
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 Hudson (A. A.),, 12. 
 Hurst (J.), 11. 
 
 INDERMAUR (JOHN), 24, 25, 28. 
 
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 Kay (Joseph), 17. 
 Kelke(W. H.), 6. 
 Kelyng (SirJ.), 35. 
 Kelynge (W.), 35. 
 KOTZE'(J; G.), 38. 
 .Lloyd (Eyre), 13. 
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 LovELAND (R. L.), 30, 34, 35. 
 Maasdorp (A. F. S.), 38. 
 Macaskie (S. C), 7. 
 Mansfield (Hon. j. W.), 17. 
 March (John), 35. 
 Marcy (G. N.), 26. 
 Martin CTemple C), 7, 46. 
 Mattinson (M. W. ), 7. 
 May(H. W.), 29. 
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