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TREATISE 
 
 DISCOYEEi OF EVIDENCE 
 
 By THOMAS HARE, 
 
 OF THF, INNKR TEMPLK, ESQ., BARRISTKR-AT-I.AW, 
 
 LJO., ETC. 
 
 SECOND EDITION, 
 
 ADAPTED TO THE PROCEDURE IN THE HIGH COURT OF JUSTICE, 
 
 With Addenda, containing all tlie Reported Cases to the 
 end of 1876, 
 
 By SHERLOCK HARE, 
 
 OF THE INNKR TEMPLE, ESQ., EARRISTER-AT-LAW, AND OF THE MIDLAND CIRCUIT. 
 
 LONDON 
 
 STEVENS & SONS, ll'J, CHANCEEY LANE, 
 
 ICato jpublisijtra ana laaofeacltcts. 
 
 1877. 
 
PKEFACE 
 
 TO THE SECOND EDITION. 
 
 The origin of the jurisdiction of the Court of 
 Chancery for discovery only was the refusal of the 
 courts of common law to receive the evidence of the 
 parties to an action, on the ground that, having an 
 interest in the result, they might be tempted to 
 commit perjury. 
 
 Having obtained jurisdiction in this manner for 
 discovery, the court proceeded to entertain the cause 
 for relief, wherever fraud, accident, or mistake made 
 the dispute one of equitable cognizance. It did 
 this iu order to prevent multiplicity of actions. 
 
 Next, the court would not refuse to exercise its 
 jurisdiction for discovery because power was given to 
 other courts to compel it by their own process. 
 
 By the Supreme Court of Judicature Act, 1873, 
 aU the superior courts are united in one High Court 
 of Justice, to which is assigned most of the jurisdic- 
 tion formerly exercised by the individual courts: the 
 act directing that the new jurisdiction shall be exer- 
 cised in the old manner ; and providing that in case of 
 variance between the principles of the several courts, 
 a2 
 
iv PREFACE TO THE SECOND EDITION. 
 
 those of equity shall prevail. Particular business 
 is also assigned to particular divisions; and the old 
 procedure, where not inconsistent with the new, is 
 preserved. 
 
 By the Act of 1875 provision is made for modi- 
 fying the rules of pleading, practice and procedure 
 in the High Court of Justice ; and to the act is 
 annexed a set of rules prescribing the manner in 
 which relief and discovery are to be obtained. 
 
 The jurisdiction, therefore, of the Court of Chan- 
 cery for discovery is transferred, undiminished, to 
 the High Court of Justice. The extent of this 
 jurisdiction has already been shown. Unless the old 
 doctrine — that a jurisdiction once established will 
 not be given up because other courts obtain a con- 
 current jurisdiction — ^is held to be no longer applic- 
 able, an action for discovery only will still lie in the 
 High Court in all cases where a bill in Chancery 
 would have been sustainable. 
 
 Upon these grounds it is assumed in this treatise 
 that an action for discovery alone may be brought in 
 the High Court of Justice whenever a prima facie 
 case for relief is made out. The point may not be 
 material; but if it should be otherwise decided, 
 certain passages in the following treatise must be 
 understood in a less extensive sense. That an 
 action of discovery in aid of certain other pro- 
 ceedings, not being in the High Court itself, will 
 still he, is open to no doubt. 
 
 Whether an action for discovery only will be of 
 
PREFACE TO THE SECOND EDITION. V 
 
 any Talue, now that discovery can be obtained in the 
 division which can also grant the consequent relief, is 
 open to question. It may be serviceable in some 
 cases ; for instance, in aid of arbitration. 
 
 The object of all civil litigation is the settlement 
 of disputes; and, if that result can, in some cases, 
 be effected ■nithout recourse being had to a tribunal, 
 the benefit of the new rules of procedure wUl be 
 obvious. There were formerly, doubtless, many 
 disputes which never became the subjects of litigation 
 on account of the possible expense, the technicahty 
 of legal proceedings, or the uncertainty of the result 
 of the best managed trial. 
 
 By section 64 of the Act of 1873, aU proceedings, 
 down to and including the entry for trial, may be 
 taken in the district registry fi:om which the writ of 
 summons is issued. An action may, therefore, be 
 commenced by writ of summons, the pleadings filed, 
 and discovery of the facts within the knowledge of an 
 opponent, and production or inspection of documents 
 in his possession or subject to his control obtained — 
 where no opposition is offered — without recourse 
 being had to the court, further than the insertion 
 of its name at the head of the several forms. The 
 expense of ascertaining the actual points in issue is 
 thus reduced to a low figure. 
 
 Under the new rules of procedure, in an action 
 up to trial, there occurs little technicality ; for the 
 writ of summons, statements of claim and defence. 
 
VI PREFACE TO THE SECOND EDITION. 
 
 interrogatories and affidavits in answer to them, are 
 expressed in language which every person affected 
 should understand. 
 
 By means of discovery an explanation of conduct 
 apparently unjustifiable may be obtained without 
 any fiirther proceeding being necessary. And it is 
 evidently preferable to ascertain the merits of a case 
 at its outset, than to await the result of an elaborate 
 trial. Such a process must, however, always be 
 available, for if the discovery furnished is suspected 
 to be false, there may be no other means of testing 
 its veracity. 
 
 The objections to discovery are, in this treatise, 
 divided into two classes : those which extend to the 
 relief as well as to the discovery, and are, therefore, 
 objections to the whole proceeding; and those which 
 concern only particular disclosures. Of the former 
 class, common sense forbids criticism. But, in con- 
 nection with the objections which extend only to 
 particular questions, the idea suggests itself whether 
 the protection afforded by the law is in aU cases in 
 the interests of justice. 
 
 These latter objections are : that an answer may 
 tend to subject a party to a penalty or forfeiture ; 
 that it concerns communications made in confidence 
 to a professional adviser ; or that it is the evidence 
 of an opponent. A fourth kind is treated in this 
 work, that an answer would be immaterial to the 
 purposes of the action. That objection falls within 
 
PREFACE TO THE SECOND EDITION. VU 
 
 the remarks applied above to general objections to 
 discovery — that it is ob^dously a reasonable one. 
 
 To the protection afforded to professional com- 
 munications, no objection can readily be made. It 
 seems impossible to refuse with advantage protection 
 to disclosures made solely with a view to obtaining 
 professional assistance. 
 
 But because a man has committed an offence 
 against the public, or because he has broken some 
 condition attached to his enjoyment of property, 
 and by so doing given effect to a gift over to another 
 person, should he do another wrong, and by refusing 
 his evidence in an action, help to keep a third per- 
 son, perhaps, out of his right ? 
 
 Or, because a man may tamper with his oppo- 
 nent's witnesses, should he not be allowed to find 
 out honestly who they are to be ? There is cer- 
 tainly a rule of evidence, which prevents a party 
 from discrediting his own witnesses, standing in the 
 way of an alteration of this doctrine of discovery ; 
 but is the rule itself a good one ? If a witness is 
 found to give evidence adversely to the party calling 
 him, the court and jury wiU readily suspect a reason, 
 and the testimony of such a witness would obtain 
 little credit. 
 
 The judges of the courts of common law had a 
 discretion in allowing discovery ; and they found 
 it convenient in many instances to neglect the equi- 
 table rules, and to trust to their own skill in de- 
 
viii PREFACE TO THE SECOND EDITION. 
 
 tecting falsehood for a set-off against the danger 
 they incurred by entering upon new ground. There 
 are, however, objections to giving so wide a discre- 
 tion to the court. 
 
 The tendency of the modem alterations in the 
 rules of evidence is to remove restrictions upon the 
 competency of witnesses, and to admit every person 
 to give testimony who knows anything relevant to 
 the matter in dispute, at the same time taking into 
 account in the valuation of that testimony the in- 
 terest of the person giving it. 
 
 Our laws still look upon every defendant as being 
 in the wrong, and therefore interested in conceal- 
 ment. But if a party is defrauding another, why 
 assist the process ? The wiser policy would seem to 
 be to treat him as innocent ; and, upon that hypo- 
 thesis, to call for a complete disclosure. The penal 
 laws are no longer so cruel as to warrant the con- 
 tinuance of protection on the ground of liability to 
 penalty. 
 
 The argument in favour of the abolition of some 
 of the special grounds of protection is based upon 
 the principle that the more a matter is sifted, the 
 nearer wiU the truth be approached. 
 
 The legislature has expressly enacted that the 
 mere fact that a disclosure rdight subject to a money 
 penalty is no ground of protection from discovery. 
 An equally complete settlement of the whole ques- 
 tion must be looked for from the same hands. 
 
PREFACE TO THE SECOND EDITION. IX 
 
 It has been found necessarj' to use the old terms 
 wherever new ones have not been adopted in their 
 places. The senses in which the former ones are 
 now to be understood are shown, here and there, in 
 notes. And, generally, the old text has been re- 
 printed wherever that was possible. The changes 
 both in principles and practice since the reign of 
 King William the Fourth are very considerable ; 
 many alterations having been made in the doctrines 
 of discovery since the time when it could only be 
 obtained by means of bill and answer in equity. 
 
 S. H. 
 
 10, King's Bench Walk, Temple, 
 Kovember. 1875. 
 
 a 5 
 
PREFACE 
 
 TO THE FIRST EDITION. 
 
 The founders of systems of judicial evidence have, 
 been compelled, at the outset of their undertakings, 
 to elect between the principles of partial exclusion 
 and universal reception of testimony. In adopting 
 the first principle, they have attempted an estimate 
 of the weight or '■ proving power" of evidence, by a 
 reference to the sources from whence it proceeds, and 
 have interdicted the use of every kind of proof, 
 which, according to their calculation, does not 
 possess the necessary amount of force. In resorting 
 to the other principle, aU attempts to appreciate the 
 importance of testimony by an invariable standard 
 have been neglected as illusory or discarded as vain ; 
 and the value of every proof has been left to the 
 wisdom of the judge and the emergency of the 
 occasion. 
 
 Unavoidable difficulties attend the application of 
 either principle. The effect of the one is to limit 
 the materials upon which judgment is to be formed, 
 and, therefore, to lessen the labour of discrimination. 
 The consequence of the other is to embark the judge 
 
xii PREFACE TO THE FIRST EDITION. 
 
 ID a wild field of inquiry, exacting a more than ordi- 
 nary combination of knowledge, industry, and cir- 
 cumspection. The line which separates admissible 
 frora inadmissible evidence is necessarily arbitrary, 
 and productive of many anomalies. Testimony of 
 unquestionable value may chance to be without the 
 standard of admissibility, and that which is utterly 
 worthless may happen to be within it. The uni- 
 versal reception of evidence suggests many dangers. 
 The expediency of a system is far from indisputable, 
 if its application demands more universal attain- 
 ments and more inexhaustible energy than are the 
 lot of any numerous class of men. If the restriction 
 upon testimony would sometimes prevent the proof 
 of a fact, the absence of restriction may often lead to 
 the establishment of a falsehood. There would be a 
 temptation to speculate on the possibility of error; 
 and truth might be suppressed or stifled in a mass 
 of unimportant and fabricated evidence. 
 
 Of these conflicting evils, with which the imper- 
 fection of human faculties taints the most solemn 
 of human institutions, the law of England has 
 chosen the least repugnant to the civil polity of 
 the English nation. There is a pervading jealousy 
 of discretionary power, that extends even to the 
 judicial seat ; and the jury is interposed between the 
 magistrate and the people. The principle of a 
 popular selection of those who are to determine 
 upon disputed facts, is necessarily satisfied by the 
 
PREFACE TO THE FIRST EDITION. XIU 
 
 possession of popular attainments. Some limit is 
 required to the admissibility of evidence which 
 should be offered to their consideration. A multi- 
 tude of decisions upon oral and written testimony 
 have constituted permanent rules' for the admission 
 or rejection of evidence. Partiality, a motive which 
 eludes detection, has been ascertained by prescribed 
 tests ; and authenticity, a quality naturally indeter- 
 minate and fluctuating, has been fixed by invariable 
 rules. The paradox is remarkable, but the advo- 
 cates of the system refer with confidence to its 
 result. The administration of justice in England 
 has produced a personal security without fear of 
 aggression, and an enjoyment of the fruits of indi- 
 vidual industry, without apprehension of disturbance, 
 of which history affords but few examples. 
 
 A witness who would obtain a pecuniary advan- 
 tage, or be subjected to a pecuniary loss, according 
 to the event of the trial, is assumed to be deficient in 
 impartiality, and is excluded as incompetent. In 
 this principle of evidence is involved the exclusion 
 of the parties on the record, who commonly possess 
 the deepest interest. A necessary adjunct to the 
 rule is the maxim of the common law, nemo tenetur 
 prodere seipsum ; for, without it, the rule itself 
 would be either abrogated, or might be made an 
 instrument of injustice. The truth of the facts 
 upon which a party relies may, however, be in 
 the knowledge of his adversary, or may be ren- 
 
XIV PREFACE TO THE FIEST EDITION. 
 
 dered manifest by eyidences in his possession. 
 Hence arises the jurisdiction of equity in com- 
 pelUng a discovery. In this jurisdiction the plain- 
 tiff is entitled to call for every necessary proof, 
 and the defendant is permitted to insist upon every 
 just protection. The party who demands the dis- 
 covery is not bound to, peril his case upon the 
 good faith of his adversary ; for he may exercise 
 his discretion upon offering as evidence the proofs 
 vrhich he has elicited. The party who gives the 
 discovery may, in his answer, accompany it with 
 the explanation which is proper for his own security, 
 in the event of his admission being used against 
 him. 
 
 A process not dissimilar in method or design was 
 known to the civil law, and adopted in the -pays de 
 droit ecrit. It is mentioned in the work of Domat, 
 as one of the modes of obtaining the confession of a 
 jDarty. " And this hath its use in the cases where 
 he who wants to prove a fact, having no proofs 
 thereof, and not being willing to refer it to the oath 
 of his adversary, demands that he be interrogated 
 by the judge upon facts which he draws up in the 
 form of a libel or allegation, dividing it into several 
 articles, and inserting therein the fact in question, 
 and other facts and circumstances which may have 
 relation thereto, and serve to prove it. And if the 
 judge find that the said facts or circumstances upon 
 which it is desired that the party may be interro- 
 
PREFACE TO THE FIRST EDITION. XV 
 
 gated, may serve to prove the fact in question, 
 he orders the party to be interrogated, and to make 
 oath that he will speak the truth of all that he 
 knows concerning every one of the articles ; and 
 the answers are taken down in writing; from which, 
 he who demanded them, draws the consequences 
 which may turn to his advantage, whether it be 
 by the confessions, or denials, or variations of the 
 party who has been interrogated." 
 
 A system of judicial inquiry would be obviously 
 defective, which had no means of obtaining a con- 
 fession and production of evidences from the parties 
 themselves. A system which should set no bounds 
 to the power of scrutiny would be fertile in expe- 
 dients of oppression. It is not by making the party 
 a defendant in a court of justice that his civil rights 
 are cancelled. The abolition of such an inquisito- 
 rial practice in this country was considered worthy 
 of being one of the objects of a national struggle. 
 " I am afraid," said Lord Hardwicke, " if the court 
 should overrule this plea, it would be setting up the 
 oath ex officio, which then the parliament, in the 
 time of Charles the First, would in vain have taken 
 
 Sir William Blackstone adverts to the mode of 
 proof in equity, by means of the compulsive dis- 
 covery upon oath, as the first and most fruitful 
 source of equitable jurisdiction. The doctrines of 
 discovery possess an importance, and have attained 
 
xvi PREFACE TO THE FIRST EDITION. 
 
 a magnitude, that entitle them to form a distinct 
 head in jurisprudence. They are the result of that 
 scrupulous care with which a long succession of 
 eminent judges have asserted the powers of judicial 
 investigation, without sacrificing the security and 
 secrecy which aU are entitled to claim and to pre- 
 serve. They define and reconcile the rights of 
 individual privacy, and the demands of public jus- 
 tice. It is, therefore, not merely fi-om their prac- 
 tical application to the business of our courts of 
 equity, that these doctrines deserve to be regarded. 
 They express the extent of the privilege, which the 
 circumstance of becoming a litigant should confer, 
 of requiring fi-om the opposite party the confession 
 of facts, and the liberty of examining written evi- 
 dences. The forms of procedure may be various 
 or changeable, but the necessity and the limits of 
 discovery are identified with the administration of 
 civil justice, and depend upon principles which are 
 perpetual. 
 
 T. H. 
 
 4, New Square, Lincols's Inn, 
 December, 1835. 
 
CONTENTS. 
 
 Part I. 
 
 DISCOVERT IN ACTIONS FOE RELIEF. 
 
 CHAPTEE I. 
 
 Of the Distixctiox between Discovery and Relief, and 
 ITS Effect in Pleading. 
 
 PAGE 
 Arrangement of the subject . . . . . . . . . . 1 
 
 Sect. 1. Of protection from discoyeiy only in an action for 
 
 relief . . . . . . . . . . . . . . 5 
 
 2. Of the rnle that a demurrer which is good to the relief 
 
 extends also to the discovery . . . . . . . . 7 
 
 3. Of the like mle where new matter is pleaded in bar of 
 
 relief 10 
 
 i. What prayers are deemed prayers for relief . . . . 11 
 
 5. Of the prayer for general relief. . . . . . . . 1 ."> 
 
 6. Of the effect of actions for discovery . . . . . . 16 
 
 7. Of amendment of pleading?, by adding or expunging 
 
 the prayer for relief . . . . . . . . . . 18 
 
 CHAPTEE II. 
 
 Op the Discovert which mat be eeqtjired to Accompany 
 
 OE SuppoET a Plea. 
 Sect. 1. Of the natnre and purpose of this discovery .. .. 22 
 2. Of the cases where a discovery is necessary to accom- 
 pany or support a plea . . . . . . . . 23 
 
XVIU CONTENTS. 
 
 PAGE 
 
 Sect. 3. Of discoTcry where the ground of plea is admitted ia 
 
 the plaintifE'a pleadings . . . . . . . . 27 
 
 4. Of discovery where the ground of plea is not admitted 
 
 by the plainti£E's pleadings 30 
 
 5. Of the rule that discovery is required only of matters 
 
 specially alleged or interrogated . . . . . . 32 
 
 Part II. 
 
 ACTIONS FOR DISCOVERT DISTINGUISHED PROM 
 ACTIONS FOR RELIEF. 
 
 CHAPTEE I. 
 
 Of Protection prom Discovery on the Ground that the 
 
 Plaintiff has no Interest in the Subject. 
 Sect. 1. Of this objection to an action for relief . . . . 37 
 
 2. Of this objection by demurrer .. .. .. ,.39 
 
 3. Of this objection by a plea in bar of the plaintiff's 
 
 title il 
 
 i. Of the various forms of pleas in bar to discovery . . 43 
 
 CHAPTER II. 
 
 Op Protection prom Discovert on the Ground that the 
 
 Dependant has no Interest in the Subject. 
 Sect. 1. Of the interest of the defendant in actions for relief. . 48 
 
 2. Of relief against some defendants and discovery against 
 
 others in the same action . . . . . . . . 50 
 
 3. Of the rule that a party who is a mere witness cannot 
 
 be made a defendant to an action of discovery . . 53 
 
 4. Of the exception to the foregoing rule in the case of 
 
 an officer or member of a corporation . . . . 55 
 
 5. Of discovery from a bankrupt or party who has 
 
 assigned his interest . . . . . . . . . . 59 
 
CONTENTS. xix 
 
 CHAPTER in. 
 
 Of Discoveet by a Ptjechasek fob Valttable Considera- 
 tion WITHOUT Notice. 
 
 PAGE 
 
 Sect. 1. Of the general rule G2 
 
 2. Of the discovery of deeds by a purchaser not entitled 
 
 to possession of the estate . . . . . . . . 63 
 
 3. Of disclosure in the plea . . . . . . . . 67 
 
 4. Of this plea opposed to a legal title 70 
 
 CHAPTER rV. 
 
 Of the Effect of a Waut op Peivity 75 
 
 CHAPTER V. 
 
 Op the Purposes foe which Jtteisdiction foe Discoteey 
 
 IS GIVEN. 
 
 Sect. 1. Of the rule that discovery is given only in aid of some 
 
 trial 80 
 
 2. Of discovery after verdict . . . . . . . . 81 
 
 3. Of discovery after judgment in aid of execution . . 84 
 
 4. Of the proceedings in aid of which discovery is given . . 83 
 
 5. Of the courts in aid of which discovery is given . . 88 
 
 CHAPTER VT. 
 
 Of Objections to the Person of the Plaintiff in an 
 Action foe Discoveey 00 
 
 CHAPTER VII. 
 
 Op Pasties TO Actions foe Discoveey 93 
 
XX CONTENTS. 
 
 Paet III. 
 
 OF OBJECTIONS TO PARTICULAR DISCLOSURES. 
 
 CHAPTER I. 
 
 Of Discovery of Evidence which may tend to subject 
 THE Paett to Penalty ob Foefeitubb. 
 
 PAGE 
 Sect. 1 . Of the general rnle . . - . . . . . . . 100 
 
 2. Of exceptions by statute . . . . ■ • ■ ■ 108 
 
 3. Of exceptions by waiver .. .. •• ■• HO 
 
 4. Of exceptions by conduct .. .. ■■ •• HI 
 
 5. Of a penalty and damages .. •. •• •• HT^ 
 
 6. Of forfeiture of an interest and divesting of a wrong- 
 
 ful possession . . .. .. .. .. ■• 118 
 
 7. Of cases where the penalty has ceased to attach . . 120 
 
 8. Of collateral questions . . . . . . . . • • 122 
 
 9. Of the objection when taken in the defence .. .. 126 
 10. Of criminatory interrogatories at common law . . 130 
 
 CHAPTER II. 
 
 Of the Objection that the Discoveey is immateeial. 
 Sect. 1. Of the definition of immateriality .. .. ..136 
 
 2. Of immateriality as regards the action .. ..139 
 
 3. Of immateriality as regards the party . . . . • • 141 
 
 4. Of immateriality as regards the time . . . . . . 142 
 
 CHAPTER III. 
 
 Of the Discoveey of Evidence acquibed in a Confiden- 
 tial Capacity. 
 Sect. 1. Of the privilege of secrecy generally, on the ground 
 
 of confidence .. .. .. .. .. .. 147 
 
 2. Of the privilege of professional confidence when the 
 
 counsel or solicitor is a defendant .. .. .. 169 
 
 3. Of discovery and production of deeds by professional 
 
 parties . . . . . . . . . . . . . . 173 
 
 4. Of the privilege of secrecy, on the grounds of interest 
 
 or public policy 176 
 
CONTENTS. XXl 
 
 CHAPTER IV. 
 
 Of Evidences kelatesg to the Case of an Opponent. 
 
 PAGE 
 
 Sect. 1. Of the general rale 183 
 
 2. Of the rule that a party is not compelled to discover 
 
 his evidence, nnless it tends to establish affirmatively 
 the case of his opponent .. .. .. ..189 
 
 3. Of the evidences to which this rule is applicable . . 1 94 
 
 4. Of exceptions to the rule on the ground of interest . . ] 96 
 
 5. Of exceptions on the ground of the farther liability of 
 
 the defendant 206 
 
 6. Of exceptions on the ground of fraud . . . . ..213 
 
 7. Of the application of the rule at common law .. 217 
 
 Paut IV. 
 
 PROCEDURE. 
 
 CHAPTEE I. 
 
 Of Disclosuee in the Pleadings. 
 Sect. 1. Of the rule in Chancery that a, defendant submitting 
 
 to answer must answer fully . . . . . . 222 
 
 2. Of the form of the pleadings .. .. .. ..225 
 
 3. Of resistance to discovery by means of pleadings . . 230 
 
 4. Of the disclosures necessary in the pleadings . . . . 23G 
 
 CHAPTER II. 
 
 Of Discoveey in Answer to Intereogatoeies. 
 Sect. 1. Of the rules of procedure . . . . . . . . 240 
 
 2. What a party is bound to know .. .. .. 24u 
 
 3. Of answers to interrogatories which cannot be objected 
 
 to 247 
 
 4. Of cases where an answer to interrogatories may be 
 
 deferred nntU the party has had liberty to inspect 
 documents in the possession of his opponent . . 250 
 
 5. Of special instances of interrogatories at common law 252 
 
XXU CONTENTS. 
 
 CHAPTER m. 
 
 Op Discovert by the Peoductiok' ob Isspkction of 
 Documents. 
 
 PAGE 
 Sect. 1. Of the former procedure.. .. .. .. .. 258 
 
 2. Of the rules of procedure . . . . . . . . 261 
 
 3. Of reference to a document . . . . . . . ■ 266 
 
 4. Of the effect of the oath of the party as to the con- 
 
 tents of the evidence withheld . . . . . . 270 
 
 5. Of the practice when part of a document is relevant, 
 
 and another part irrelevant . . . . . . . . 281 
 
 CHAPTEE IV. 
 
 Of the Effect of Disobedience to the Eules, ajtd of 
 Costs 284 
 
 CHAPTEE V. 
 
 Motion ob Summons 288 
 
TABLE OF CASES. 
 
 PAGE 
 Abery v. Williams . . . . 62 
 
 Acomb tt. Landed Estates Co. 246 
 Adams 1). Dowding . . .. 138 
 
 V. Fisher 269, 270, 275 
 
 V. Lloyd . . 135, 253 
 
 Adderley v. Sparrow . . 76 
 
 African Co. r. Parish 101, 111, 112 
 Agar V. Regent's Canal Co. 140, 
 
 141 
 Albrecht v. Snssman . . 91 
 
 Allan r. Copeland . . . . 16 
 
 r. Roy den .. ..152 
 
 AHards v. Campbell . . 28 
 
 Andrews I). Lupton.. .. 13 
 
 Angell V. Angell . . . . 7, 8 
 
 T. Draper . . 40, 85 
 
 '— !'. Westcombe 15, 16 
 
 Annesley v. Earl of Anglesea 163 
 
 Anon 120, 121, 129, 244 
 
 Anon. V. Anon. . . . . 62 
 
 1: Parr . . . . 287 
 
 Annitage v. Wadsworth . .7, 13 
 Arnold v. Heaf ord . . . . 32 
 
 Amsby v. Woodward . . 219 
 
 Astley ». Weldon .. ..117 
 Aston V. Aston . . 14, 69 
 
 V. Lord Exeter 12, 14, 15 
 
 JEx parte. In re Mexi- 
 can and South American 
 
 Co 135 
 
 Atkinson v. Fosbroke 132, 133 
 Atkyns v. Wright . . . . 175 
 
 Atterbnry v. Hawkins . . 174 
 Att.-Gen. ■». Berkeley ..169 
 
 V. Berry . . . . 139 
 
 V. Bingham . . 268 
 
 V. Brown 6, 7, 126, 129 
 
 PAGE 
 Att.-Gen. v. Corporation of 
 
 London 2, 57, 198, 
 200, 202, 224, 271 
 
 V. Duplessis . . 119 
 
 V. Earl of Chester- 
 
 field .. ..52 
 
 T. East Retford . . 246 
 
 V. Ellison . . 202 
 
 V. EuUerton . . 202 
 
 ■». Lambe . . 202 
 
 11. Lambirth . . 249 
 
 V. Lucas .. 102, 109 
 
 V. Mayor of Nor- 
 
 wich .. 
 
 ■ •». Mico . . 
 
 v. Eees . . 
 
 ■». Reynolds 
 
 — V. Ross . . 
 
 V. Stephens 
 
 V. Strntt . . 
 
 V. Sudell . . 
 
 V. Thompson 
 
 V. Vincent 
 
 1). Wilson 
 
 Atwood v. Small . 
 Atwool r. Eerrier . 
 Avery, Deed. v. Longford 218, 219 
 
 35 
 
 118 
 
 245 
 
 101 
 
 81 
 
 202 
 
 62 
 
 101 
 
 81, 146, 
 
 196 
 
 102, 120 
 
 .. 71 
 
 .. 51 
 
 .. 138 
 
 Bailey i\ Adams . . 28, 29, 47 
 
 Baillie v. Sibbald . . . . 47 
 
 Baiubrigge v. Blair . . . . 59 
 
 Baker v. Bramah . . . . 13 
 
 V. Harwood . . . . 35 
 
 ■». Lane .. 101,132 
 
 V. Loader . . . . 51 
 
TABLE OF CASES. 
 
 PAGE 
 Baker v. London and South 
 
 Western RaU. Co. 152, 166 
 
 ■!>. Mellish .. ..7,10 
 
 ■». Pritchard 101, 125, 139 
 
 Bakewell v. Oliver . . . . 116 
 Balchi). Symes .. 214,215 
 Balguy V. Broadhnrst . . 167 
 
 Balls V. Margrave . . . . 94 
 
 V. Strutt . . . . 61 
 
 Banner v. Jackson . . . . 174 
 Barker D.Ray .. ..203 
 
 Barned's Banking Co., JUx 
 
 parte Contract Corporation 1 65, 
 205 
 Barnet v. Noble . . 17, 267 
 Barney v. Luckett . . . . 13 
 Barrel! v. Nicholson . . 202 
 
 Barron v. Grillard . . 50, 55 
 
 Barry ■«. Croskey .. .. 10 
 Bartletti). Lewis 101, 131, 133, 253 
 Bartley v. Bartley . . . . 268 
 Barwick v. Thompson . . 219 
 Basset v. Nosworthy . . 71 
 
 Bassford v. Blakesley 163, 216 
 Batty V. Chester . . . . 35 
 Baugh D. Cradocke . . .. 164 
 Bayley v. Griffiths . . . . 221 
 Beadles v. Birch . . . . 50 
 Beadon v. King . . . . 161 
 
 Beavan v. Cook . . . . 142 
 Beckervaise v. Great Western 
 
 Rail. Co 254, 287 
 
 Beckford v. Wildman 213, 214 
 Bedford (Dnke of) ». Mac- 
 
 namara . . . . . . 209 
 
 Belaney v. Ffrench . . . . 178 
 
 Bellwood».Wetherelll92,210,212 
 
 Belsham v. Harrison 
 Benfield v. Solomons 
 Bennett v. Glossop . . 
 V. Vade . . 
 
 Benson i;. Gibson 
 
 Bent V. Young 
 
 Benyon v. Nettlefold 
 
 Beresford, Lady, v. Driver 
 
 Betts V. Menzies 
 
 Bickford ■». D'Arcy 109, 132 
 
 Bird V. Hardwicke 101, 102, 105 
 
 V. Harrison . . . . 196 
 
 Blackwood's Case . . . . 100 
 
 169, 266 
 
 .. 35 
 
 203j 204 
 
 .. 51 
 
 .. 117 
 
 .. 89 
 
 13,88 
 
 . 205 
 
 . 166 
 
 
 PAGE 
 
 Bleckley v. Rymer . . . . 137 
 
 Blight V. Goodliffe . . . . 163 
 
 Blogg V. Kent . . 194, 221 
 
 Bluck V. Gompertz .. ..221 
 
 Bogne v. Boll and . . . . 178 
 
 Bolton e.Corporation of Liver- 
 pool 2, 168, 187, 190,193,198,204 
 Bond V. Northover . . . . 62 
 
 Bonnardet «. Taylor . . 268 
 
 Boteler v. Allington 102, 120 
 Bovill V. Smith . . . . 187 
 
 Bowes V. Feruie . . > 275, 277 
 Bowles «. Stewart .. .. 51 
 
 Bowman v. Lygon . . . . 212 
 
 Bowyer v. Pritchard . . 49 
 
 Boyle V. Wiseman . . 133, 134 
 Bradshaw v. Bradshaw . . 267 
 Bramwell v. Lucas . . . . 162 
 
 Brand v. Camming . . . . 110 
 
 Brandon v. Sands . . 16, 42 
 
 Brazier v. Mytton . . . . 187 
 
 Brereton v. Gannel . . . . 80 
 
 British Empire Shipping Co. 
 V. Soames . . . . . . 89 
 
 Brookes v. Boucher . . . . 144 
 
 Brooks V. Bradley . . . . 87 
 
 V. Sutton . . . . 28 
 
 Brown v. Oakshott . . . . 168 
 
 V. Perkins 24, 95, 165, 177 
 
 i>. Thames & Mersey 
 
 Marinelnsurance Co. 57 
 
 ■W.Thornton.. .. 17 
 
 V. Wales . . . . 202 
 
 Brownsword v. Edwards 101, 128, 
 130 
 Brnnsvrick (Duke of) v. King 
 
 of Hanover . . . . 36 
 
 Buccleuch (Duke of) v. Me- 
 tropolitan Board of Works 180, 
 181 
 Baden u. Dore .. 188,208 
 
 Bugden v. Tyler . . . . 176 
 Bulkeleyp. Dunbar.. .. 50 
 Bunbary ■!). Bunbury 164,169 
 Bunn V. Bunn . . . . 109 
 
 Burbridge v. Robinson 95, 176 
 Burton i). Earl of Damley .. 167 
 
 V. Neville . . . . 196 
 
 Bote (Marquis of) v. Gla- 
 morganshire Canal Co. . . 202 
 
TABLE OF CASES. 
 
 Bnttcrworth v. Bailey- 
 Byrne V. Byrne 
 
 PAGE 
 .. 19 
 .. 13 
 
 C. 
 
 Caller r. Richards . . . . 165 
 
 Cameron's Coalbrookdale 
 Eail. Co., Ill re 150, 164, 175. 
 178 
 Campbell *•. French. . 277, 2Sl' 
 Cardale v. Watkins . . . . 81 
 
 Carew I'. Davis .. 183,221 
 
 c. White . . . . 282 
 
 Carlisle, Corporation of, u. 
 Wilson .. .. ..15 
 
 Carpraael v. Powis . . 156, 161 
 Carter r. Goetze . . . . 5 
 
 Cartwright i: Green 105, 127 
 
 Carver v. Pinto Leite 139, 145 
 Cathcart, In re, Ex parte 
 
 Campbell 167 
 
 Chadwick v. Broadwood . . 24 
 
 B.Chadwick 107,124,139 
 
 Chamberlain v. Knapp . . 68 
 Chambers v. Goldwln . . 61 
 
 «'. Thompson . . 135 
 
 C^ant V. Brown . . . . 165 
 
 Charlton i: Coombes 163, 165 
 Chartered Bank of India v. 
 
 Rich .. .. 151,163 
 
 Chauncey v. Fenhonlet 102, 120 
 
 V. Tahourden 102, 120 
 
 Cherry r. Legh . . . . 208 
 
 Chester v. Wortley 102, 131, 133 
 Chetwynd v. Linden 102, 115, 116 
 Chichester v. Marqaia of 
 
 Donegal . . 14, 142, 145, 204 
 Chicot V. Leqnesne . . . . 51 
 
 Cholmondeley (Lord) v. Lord 
 
 Clinton 20,21,40,42,95,165 
 Christian v. Taylor . . 246, 247 
 Chnrton v. Preweu . . . . 282 
 Clagett «. Phillips .. ..153 
 
 Claridger.Hoare 101,122, 127,128 
 Clayton v. Earl of Winchelsea 24 
 Cleave v. Jones . . . . 167 
 Clegg D.Edmonson 3,142,143,188 
 Clinch ■». Financial Corpora- 
 tion .. .. 57,177 
 
 PAGE 
 
 Cock V. St. Bartholomew's 
 
 Hospital 185 
 
 Codringtoa I'. Codrington 140, 213 
 Colebrooke v. Att.-Sen. . . 248 
 Collins V. Archer . . 72, 73 
 
 r. Gresley .. 194,203 
 
 V. Yates . . . . 221 
 
 CoUis ('. Swayne . . . . 7 
 
 Colman v. Truman .. 152, 253 
 Columbia Government v. 
 
 Rothschild .. ..59 
 Colyer i: Colyev . . . . 165 
 Combe v. City of London 153, 196, 
 198 
 V. Corporation of Lon- 
 don . . 196, 271, 275 
 Commissioners of Sewers v. 
 
 Glasse 187 
 
 Compton i^-Earl Grey 189, 194 
 Conway v. King . . . . 171 
 
 Cooke V. Turner . . 102, 105 
 Cooper V. Uttoxeter Burial 
 
 Board 269 
 
 Cooth v. Jackson . . . . 5 
 Copeland v. Wheeler . . 249 
 
 Corbett r. Hawkins . . ..194 
 
 Coi-fc V. Wilcock . . . . 47 
 Cossey ». London, Brighton 
 and South Coast Rail. Co. 152, 
 166 
 Costa Rica, Republic of, v. 
 
 Erlanger 216 
 
 Cotman v. Orton . . . . 161 
 Coventry c.Bentley,. .. 17 
 
 Cowan «. Phillips . . . . 40 
 Crauford v. Att.-Gen. . . 248 
 
 Crisp v. Platel . . . . 163 
 
 Cromack v. Heathcote . . 163 
 Crossley r. Stewart .. ..145 
 
 Crow V. Baldwere . . . . 218 
 
 V. Tyrrell 14, 19, 30, 47 
 
 Culverhouse v. Alexander . . 32 
 Curling V. Perring . . . . 151 
 
 CuttSD. Thodey . . 50, 61 
 
 D. 
 
 Daniel v. Bond 
 
 Dar& Valley Co., In re 
 
 b 
 
 221 
 180 
 
XXVI 
 
 TABLE OF CASES. 
 
 PAGE 
 Dartmouth, Corporation of, 
 
 V. Houldswovth . . . ■ 167 
 Dartney D. Clemens.. .. 35 
 Darwin v. Clarice . . . . 267 
 Daubigny v, Davallon . . 92 
 Davies v. Clongh . . . . 165 
 
 I). Waters .. 3,161 
 
 Davis V. Earl of Dysart 14, 204 
 
 V. Parry . . . . 179 
 
 1). Eeid .. .. 120 
 
 V. Waters .. .. 166 
 Davison v. Att.-Gen. . .■ 248 
 
 Daw «. Eley 151 
 
 Day «. Drake .. 51,52,53 
 
 Deare «. Att-Gen. .. 16,2+9 
 Dearman «. Wyche . . . . , 29 
 , De la Rne ■!). Dickinson .. 145 
 Dendy v. Cross . . ..216 
 
 Dent O.Dent 200 
 
 Denys «. Locock . . . . 34 
 Derby Commercial, Bank v. 
 
 Lumsdeu .. 216,253 
 , Earl of, V. Duke of 
 
 Athol 89 
 
 Desborough v. Curlewis . . 21 
 
 V. Rawlings . . 161 
 
 Devaynes v. Robinson . . 168 
 Devonsher v. Neweuham 76, 77 
 Dinely v. Dinely . . . . 54 
 
 Dixon V. Eraser . . . . 201 
 Dobson V. Richardson . . 256 
 Dod V. Herring . . . . 59 
 
 Donegal (Marquis of) v. 
 
 Stewart . . . . 145, 188 
 Drake v. Drake . . . . 24 
 Draper v. Manchester, &c., 
 
 Rail. Co 268 
 
 Drew V.Drew .. 81,32 
 
 Driver v. Wright . . . . 266 
 Dnmmer v. Corporation of 
 
 Chippenham 6, 49, 50, 54, 58, 1 16 
 Duncombe ?).^Davis . . 139,216 
 Dunn V. Coates . . . . 89 
 
 Duplessis's Case . . . . 102 
 Dy&tev, JEx parte .. ..115 
 
 B. 
 
 Earp V. Lloyd 17, 33, 202, 282 
 East India Co. v. Atkyns . . 112 
 
 :^AGE 
 
 East India Co. v. Campbell 101, 
 102, 122 
 
 ■!). Mainston . . 112 
 
 i>. Nash ..112 
 
 V. Neave 9, 101, 
 
 111, 117, 129 
 Edmonds v. Lord Foley . . 176 
 Edmunds v. Greenwood 101, 133 
 Edwards v. Jones . . 167, 275 
 
 V. Wakefield . . 221 
 
 Egremont v. Cowell. . . . 35 
 EUite V. Roupell . . 21, 88 
 
 Elmer v. Creasy 188, 201, 224 
 Euthoven v. Cobb . . . . 169 
 Ersldne v. Bize . . . . 267 
 Evan V. Corporation of Avon 7 
 Evans v. Delegal . . . . 168 
 
 V. Hai-ris . . . . 30 
 
 V. Richards . . . . 266 
 
 Ewing V. Osbaldiston 101, 106 
 
 Eaithfnll, lure .. ..178 
 Ealmouth, Earl of, v. Moss . . 166 
 Farquharson v. Balfour . . 247 
 Farrer v. Hutchinson . . 165 
 
 Fazakerly r. Gillibrand . . 283 
 Felkin v. Lord Herbert 167, 264 
 Feneott v. Clarke . . . . 215 
 Fenner ti. South Eastern 
 
 Rail. Co. 152, 164, 276 
 
 Fenton v. Hughes 51, 53, 54, 56, 60 
 Fenwick ». Reed 51, 52, 150, 165, 
 174, 175, 205 
 Few V. Guppy 94, 166, 171 
 
 Field V. Beaumont . . . . 84 
 
 Finch V. Finch 81, 102. 125, 
 
 129, 139 
 Finney v. Forwood . . 216, 221 
 Firkins v. Lowe . . 188, 280 
 
 Fisher ■!). Price . . 105, 109, 224 
 
 V. Ronalds 101, 134, 135 
 
 Flight V. Robinson . . 2, 168 
 
 Flitcroft ?■. Fletcher 208,219 
 Foley V. Hill . . . . 29 
 
 Follett V. Jefferyes . . . . 1 63 
 
 Foote V. Hayne . . . . 169 
 Forbes 1). Tanner .. ,.140 
 
TABLE OF CASES. 
 
 XXVll 
 
 PAGE 
 
 Ford c. Dolphin . . 94, 176 
 
 11. Tennant .. 159,162 
 
 Foreman v. Cooper . . . . 96 
 
 Forward 1-. Daflield.. ..117 
 
 Foulder ;-. Stewart . . . . 244 
 
 Foulkes r. Sellway .. -.35 
 
 Foxwell v. Webster . . 145, 224 
 
 Francis ■!>. Wigzell .. 10,140 
 
 Franco r. Bolton . . 87, 102 
 
 Freeiand v. Johnson . . 28 
 
 Freeman v. Butler . . 179, 201 
 
 r. Fairlie . . 247, 28.S 
 
 Frietas v. Dos Santos 15, 20 
 
 Fyson v. Pole . . . . 42 
 
 G. 
 
 Gabbett v. Sir H. Cavendish 246 
 
 Gait V. Osbaldiston . 
 Galsworthy v. JTorman 
 Gandee r. Stansfeld. . 
 Gardiner r. Mason . . 
 Gardner v. Dangerfield 
 Gartside v. Gartside 
 V. Ootram . . 
 
 13,43 
 .. 221 
 61, 1.51 
 .. 281 
 .. 268 
 .. 28 
 .. 163 
 .. 113 
 164, 176 
 .. 268 
 
 Gascoigne v. Sidwell 
 Ga&kell v. Chambers 
 Gerard r. Penswick. . 
 Gibbonsv.WateriooBridgeCo. 56 
 Gibson v. Hewett . . . . 179 
 Gilbert v. Lewis 7, 35, 50, 59, Gl 
 Girdlestone v. North British 
 
 Insurance Co. . . . . 201 
 
 Gladstone v, Musnrus Bey. . 58 
 Glascott V. Copper Mines Co. 57 
 Glassford v. Jaffrey . . . . 59 
 
 Glassington v. Thwaites . . 239 
 Glegg V. Legh . . 78, 208 
 
 Glengall (Lord) v. Edwards 102 
 
 ' V. Frazer . . 245 
 
 Glover v. Hall . . 81, 204 
 
 Glyn V. Canlfield 150, 166, 177 
 
 V. Honston 101, 106, 1 22, 
 
 126, 127 
 Gooch's Case, Contract Cor- 
 poration, -/ra re .. .. 205 
 Goodall V. Little . . 164, 166 
 Goodliff r. Fuller .. ..221 
 Goodman v. Holroyd . . 163 
 V. Sayers . . . . 51 
 
 PAGS 
 
 Gordon r. Simpkinson . . 21 
 Gore v. Bowser . . 162, 163 
 Gourley ». PlimsoU . . . . 287 
 
 Govet V. Armitage . . . . 61 
 Graham r. Coape . . . . 239 
 
 Gray v. Haig . . 22, 188 
 
 Great Luxembourg Rail. Co. 
 
 f. Magnay . . . . 142 
 
 Great Western Colliery Co. v. 
 
 Tucker 146 
 
 Green f. Wearer 110,113,115,116, 
 123 
 Greenfield v. Keay . . . . 132 
 Greenlaw ». King .. 147,166. 
 Greenongh ». Gaskell 148,149, 
 159, 163, 172, 174 
 Greenwood v. Eothwell . . 62 
 
 Gregson, lie . . 
 Grenville Murray 
 
 Clarendon 
 Gresley v. Mousley 
 GrifiBn v. Archer 
 GroTes V. Groves 
 Gappy V. Few 
 
 H. 
 
 ..178 
 V. Lord 
 , . . . 35 
 165, 176, 202 
 
 .. 60 
 .. 216,217 
 
 94, 171 
 
 Hadley v. MacDongall 
 Haig V. Gray 
 Hall V. Connell 
 
 ». Hoddesden . . 
 
 V. Hoyes 
 
 Halliday v. Temple . . 
 Hambrook v. Smith . . 
 Hamilton v. Bankin . . 
 
 V. Nott 
 
 Hammond v. Nearae 
 Hampson ■». Hampson 
 Hanslip v. Kitton . . 
 Hardcastle v. Shafto 
 Hardman v, EUames 
 
 Hardy v. Caley 
 Harland v. Emmersou 
 Harris v. CoUett 
 
 V. Harris 26, 
 
 Harrison v. Southcote 
 
 Hartley v. Russell . . 
 Harvey v. Clayton . . 
 b2 
 
 .. 176 
 
 22, 188 
 
 57, 205 
 
 .. 13 
 
 .. 24 
 
 187, 262 
 
 118. 119 
 
 50,51 
 
 151, 166 
 
 .. 58 
 
 162, 164 
 
 .. 85 
 
 .. 249 
 
 24, 31, 32, 
 
 269 
 
 .. 61 
 
 24,33 
 
 .. 13 
 
 29,31,145 
 
 100, 115, 
 
 203 
 
 .. 101 
 
 .. 161 
 
XXVIU 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Harvey v. Morris . . . . 139 
 
 Hawkins v. Carr . . . . 254 
 
 V. Gathercole . . 154 
 
 Heath v. Crealock . . . . 167 
 
 Heeman v. Midland . . 267 
 
 Heming v. St. John. . . . 101 
 
 Henley v. Stone . . . . 24 
 
 Hercy v. Ferrers . . 179, 204 
 
 Herring v. Cloberry . . 161 
 
 Hill 11. Barclay .. ..Ill 
 
 V. Campbell . . 133, 253 
 
 V. Gomme . . . . 269 
 
 V. Gt. Western Rail. Co. 162 
 
 . ■». Philp .. 166,221 
 
 Hills 1>. Watts . . . . 255 
 
 Hincks v. Nelthorpe . . 140 
 
 Eindman v. Taylor . . 43, 45 
 
 Hoare v. Parker . . 69, 71 
 
 «. Peck . . . . 42 
 
 Hodgkin v. Longden . . 7, 8 
 
 Hodgson V. Espinasse . . 35 
 
 Hodsoll V. Taylor . . . . 132 
 
 Hoffman c. P.ostill .. ..139 
 
 Holmes v. Baddeley . . 168 
 
 Honeywood v. Selwin . . 101 
 
 Hooper v. Gumm . . . . 164 
 
 Hope V. Liddell . . . . 178 
 Hopkinson v. Lord Burghley 166, 
 268 
 
 Hornby v. Pemberton . . 247 
 
 Home V. Hough .j . . 256 
 
 Horton «. Bott .. -.218 
 
 Houghton V. Barnett . . 279 
 
 How fl. Best . . 54, 58 
 
 Howard v. Eobinson . . 216 
 Howe V. M'Keman 142, 165, 224 
 
 Hue V. Kichards . . 142, 206 
 
 Hughes V. Biddulph . . 164 
 
 V. Gamons . . 164, 167 
 
 Hunt V. Elmes 62, 68, 179, 188, 275 
 
 V. Hewitt ' . . . . 221 
 
 V. Penrice . . 29, 32 
 
 Hunters. Capron .. .. 167 
 
 Hurst V. Hurst . . . . 202 
 
 Hylton 11. Morgan . . . . 13 
 
 1. 
 
 Ingilby v. Shafto 
 Inglessi v. Spartali . 
 
 2,187 
 .. 247 
 
 Inman v. Hodgson . . 
 
 V. Jenkins . 
 
 Innesu. Mitchell 
 Irving i>. Thompson 
 Ivy V. Kekewich 
 
 J. 
 
 PAOE 
 .. 188 
 .. 133 
 .. 51 
 .. 60 
 187, 195 
 
 Jackson t'. Benson .. .» 110 
 
 Jacobs V. Goodman . . 144, 188 
 
 James v. Sadgrove . . 9, 10 
 
 Janson v. Sblarte . . 116, 141 
 
 Jardine v. Sheridan . . . . 164 
 Jeffries v. Great Western 
 
 Rail. Co 189,220 
 
 Jenkins v. Bushby . . . . 166 
 
 Jenner v. London and South 
 
 Eastern Rail. Co 150 
 
 Jerrard v. Saunders . . 35, 71 
 
 Jones V. Davis . . . . 32 
 
 V. Godrieh .. ..161 
 
 V. Jones . . 203, 216 
 
 V. Lewis . . . . 252 
 
 ■». Maund . . 7, 35 
 
 V. Pengree . . . . 47 
 
 V. Powell . . . . 282 
 
 V. Pratt . . . . 287 
 
 «. Pugh .. .. 161 
 
 Jordain v. Palmer . . . . 256 
 
 K. 
 
 Kay v, Hargreaves . . ..144 
 Kaye v. Posbrooke . . 35, 61 
 
 Kendall v. Marsters . . ..110 
 Kennedy ■!). Green 68,213,215 
 
 V. Wakefield . . 85 
 
 Kettlewell v. Barstow . . 145 
 
 King D. Allen ., .. 13 
 
 V. Burr .87 
 
 V. Heming . , . . 11 
 
 V. Martin . . 60, 61 
 
 V. Rossett . . 7, 15, 20 
 
 Kingsford v. Great Western 
 
 Rail. Co. ... .. 56,58 
 
 Kington t). Gale .. ..174 
 
 Knight ti. Bowyer .. ..110 
 
 V. Marquis of Water- 
 
 ford 196 
 
TABLE OF CASES. 
 
 XXIX 
 
 PAGE 
 
 Lachanne v. Qnartz Bock 
 
 MiDingCo 177 
 
 Lafone i: Falkland Islands 
 
 Co 151,164, 266, 268 
 
 Lamb v. Orton . . . . 169 
 Lambert r. Rogers . . . . 94 
 Lane v. Jackson . . 71, 74 
 
 V. Smith . . . . 59 
 
 Latimer v. Neate . . . . 81 
 
 Lawrence r Campbell 158, 161 
 LeatherClothCo.t'.Hirschfield 165 
 Lee V. Eead .. 101, 113, 122 
 Leigh V. Birch . . . . 201 
 
 Leman v. Alie . . . . 203 
 
 Le Texier v. Margravine of 
 
 Anspach . . 50, 51, 52, 55 
 
 Lett ?J. Parry .. ..145 
 
 Leyy c. Pope .. ..163 
 
 Lewis ». Briggs .. ..221 
 
 r. Pennington . . 170, 171 
 
 V. Smith . . . . 165 
 
 Liberia, Eepublicof, v. Impe- 
 rial Bank 261 
 
 Lichfield, Earl of, v. Bond 101, 105 
 Liddell r. Norton . . . . 176 
 
 Lindsay c. Gladstone . . 268 
 
 Lingen r. Simpson .. ..214 
 
 Lingood v. Croacher . . 51 
 
 Llewellyn t'. Baddeley .. 151 
 Lloyd V. Adams . . . . 13 
 
 V. Lander . . . . 61 
 
 V. Passingham 101, 103 
 
 V. Wait . . . . 179 
 
 Lockett «. Gary .. ..178 
 
 «. Lockett . . . . 144 
 
 Lodge u, Pritchard . . . . 164 
 
 London, Bishop of v. Bowker 
 
 r.Fytche 101, 
 
 139 
 London, Gaslight Co. v. Chel- 
 sea Vestry.. .. 2,221 
 London, Mayor of t'. Ainslie 101, 
 116 
 
 , f. Levy 10, 39. 
 
 81, 115 
 Lonsdale, Lord v. Littledale 51 
 Lopez V Deacon . . . . 176 
 Loasada v. Templer 13, 19 
 
 Lovell V. Galloway . . 13, 18, 89 
 
 Lowndes r. Taylor . . 
 
 i: Davies . . 
 
 Lucas V. Evans 
 V. Lucas 
 
 M. 
 
 PAGE 
 
 61,92 
 
 .. 211 
 
 .. 120 
 
 .. 249 
 
 Macallum v. Turton 101, 122, 126 
 Macaulay i'. Shackell 86, 87, 116 
 M'Eadzen v. Corporation of 
 
 Liverpool .. .. 101,133 
 
 Macfarlan «). Rolt .. ..158 
 
 M'Garel v. Moon . . . . 244 
 
 Macgregor Laird, The . . 148 
 
 II. The East India 
 
 Co 47 
 
 M'Intosh V. The Great Wes- 
 tern Rail. Co. 57, 167, 271 
 Maden v. Veevers . . . . 150 
 Madrid Bank v. Bayley . . 57 
 JIagee v. Lavel . - . . 117 
 Mahoney v. The National 
 
 Widows'Life Assurance Co. 166 
 Maiden v. Great Northern 
 
 Rail. Co 152 
 
 Manbv v. Bewicke (No. 2) . . 271 
 Hansel v. Eeeney 32, 36, 144, 225 
 Manser v. Dix . . 155, 158 
 
 Mant V. Scott . . . . 139 
 
 Marriott v. The Anchor Re- 
 versionary Co. 165 
 
 V. The Marquis of 
 
 Hertford 166 
 
 Marsh v. Keith 137, 161, 162, 244 
 
 r. Sibbald . . 17, 266 
 
 Marshall ;-. Sladden . . 50 
 
 Martin v. Hampton . . . . 45 
 
 V. Hemming 253, 287 
 
 V. NicoUa . . . . 85 
 
 V. Strachan . . . . 218 
 
 Martineau v. Cox . . . . 246 
 Mason r. Murray . . ..110 
 
 V. Wakeman . . 224 
 
 Maund v. Allies . . . . 144 
 May V. Hawkins . . . . 219 
 
 Mellish V. Richardson . . 7 
 Mendes v. Barnard . . . . 80 
 
 Mendizabel v. Machado 42, 43, 45 
 Mertens v. Haigh . . . . 268 
 Metcalf V. Hervey . . 207, 208 
 
XXX 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Mexican and South American 
 
 &c. Co., Ex parte Aston 135 
 Micklethwaite v. Moore . . 1 87 
 Mills V. Campbell . . 12, 13 
 
 Milner v. Lord Harewood 80, 1.B8 
 Minet v. Morgan 158, 205, 273 
 Mitchell V. Koecker . . . . 101 
 Motinins v. Monnins . . 120 
 
 Montague's, Lady, Case . . 101 
 Montague, Lord, v. Dudman 86 
 Moodalay «. Morton 187,282 
 
 Moor «. Roberts . . . . 221 
 Moore v. Craven . . . . 276 
 Moran v. Jenkins . . . . 101 
 Morgan 13. Harris . . . . 5 
 Morison v. Turnour . . . . 30 
 
 Momington ■». Mornington 163, 
 271 
 Morreli v. Wootten . . 
 Morris v. Bethell 
 
 V. Duke of Norfolk 
 
 V. Morgan ■.. . 
 
 ■ Doe d. V. Roe 
 
 Morse «. Royal 
 Mountford ii. Taylor 
 Muckleston v. Brown 
 MuUins ». Symmons 
 Munday «. JKnight . . 
 Murray xi, Clayton . . 
 
 V. Walter 
 
 Mutloe ». Smith 
 
 176 
 
 139 
 
 89 
 
 7 
 
 219 
 
 49 
 
 85 
 
 7 
 
 49 
 
 35 
 
 104 
 
 176 
 
 187 
 
 N. 
 
 Neatei). Duke of Marlborough 245 
 Neesom u Clarkson . . . . 63 
 Nelme v. Newton . . . . 105 
 
 Nelson v. PonsEord . . . . 245 
 
 New Brunswick Co. v. Cony- 
 
 beare . . - . . . 35 
 
 Newcastle (Duchess of) v. 
 
 Lord Pelham . . . . 203 
 Newman v. Hutton . . . . 24 
 
 s. Wallis . . . . 24 
 
 Newton i>. Berresford 196, 281 
 Nias V. Northern and Eastern 
 
 Rail. Co 168 
 
 NichoU V. Jones 165, 168, 282 
 Noble «. Garland .. 12,18 
 
 
 PACE 
 
 Noel V. Noel . . 
 
 .. 275 
 
 ». Ward 
 
 .. 14 
 
 Nokes V. Fish 
 
 .. 35 
 
 Northey «. Pearce . . 
 
 .. 13 
 
 o. 
 
 O'Connor v. Majoribanks . . 166 
 Oliver, Ex parte . . 101, 103 
 Oliver r. Haywood 35, 101, 116 
 Ooddeen v. Oakley . . . . 13 
 Ord V. Fawcett . . 139, 165 
 
 11. Huddleston ... . . 42 
 
 Orme i;. Ci-ockford . . 101, 107 
 
 Osborn ». London Dock Co. 101, 
 
 102, 131, 134, 135 
 
 Owen v. Nickson . . 179, 220 
 
 P. 
 
 Paddon v. Winch . . . . 156 
 Padley v. Lincoln Water- 
 works Co 50, 141 
 
 Paine & Layton, Ea; parte.. 178 
 Palmer v. Mure . . . . 35 
 
 V. Wright . . . - 178 
 
 Pape V. Lister . . 189, 256 
 
 Parker v. Alcoek . . . . 28 
 
 «. Ford .. 19,20 
 
 ■». Dee .• ..19 
 
 V. Legh . . . . 208 
 
 Parkhnrst v. Lowt«n , 100, 101, 
 103, 106, 121, 129, 
 135, 150, 171, 175 
 Parkinson v. Chambers . . 29 
 Patch?). Warde .. ..179 
 Paxton V. Douglas 101, 112, 122, 
 123 
 Payne ■». Dicker . . . . 61 
 Pearse v. Pearse 148, 154, 168 
 Pearse v. Dobinson . . . . 28 
 Pearson v. Turner . . . ■ 219 
 Peile V. Stoddart 187, 271. 275 
 Pelly «. Wathen .. ..'llO 
 Penarth Harbour Co. v. Car- 
 diff, &c. Co 221 
 
 Pennell d. Earl of Dysart . . 204 
 Penney v. Goode . . 95, 176 
 Pennington v. Beechy 25, 31, 63 
 
TABLE OF CASES. 
 
 XXXI 
 
 PAGE 
 
 Penrice i: Parker . . . . 100 
 Penrnddock c. Hammond .. 168 
 
 Pepper r. Hcnzell . . 57, 59 
 
 Peppiatt i: Smith . . . . 221 
 
 Perkins v. Bradley . . . . 58 
 
 Periy v. Smith . . 161, 164 
 
 Phillips e. Carey .. ..188 
 
 c Roath .. .. 151 
 
 r. Phillips . . . . 71 
 
 Pickering i\ Noves . . . . 187 
 
 r. Eigby .. ..251 
 
 Pierce v. Johns . . . . 28 
 Pilkington i: Himsworth . . 216 
 Pliimbe V. Plnmbe . . . . 35 
 Plummet v. May , . . . 54 
 Ponsford v. Swaine . . . . 165 
 Portsmonth.(Lord) v. Effing- 
 ham 84 
 
 Portngal, Queen of, c. Glyn 55, 94 
 Potts V. Adair . . . . 196 
 
 Prentice v. Phillips . . . . 268 
 Preston v. Carr . . . . 1 51 
 
 Price r. Harrison . . . . 221 
 
 V. James . . . . 47 
 
 Princess of Wales r. Lord 
 
 Liverpool 195, 216, 251, 267 
 Pritchard v. Foulkes . . 167 
 
 , Doe d., V. Jauncey 163 
 
 Protector, The Lord, r. Lord 
 
 Lnmley . . . . . . 84 
 
 Protheroe v. Forman . . 81 
 
 Pye V. Bntterfield 102, 118, 219 
 
 E. 
 
 Eamsbotham i: Senior . . 167 
 Ranger v. Great Western 
 Bail. Co 57 
 
 Eawlins v. Rawlins , 
 Rawson r. Samuel . 
 Eayner v. AUhnsen . 
 V. Ritson 
 
 Eeece v. Trye 
 Eeed v. Woodroffe 
 Eeg. V. Arnold 
 
 ■». Boyes 
 
 V. Duchess of Kingston 1 67 
 
 V. Farley . . . . 163 
 
 V. Garbett . . 105, 135 
 
 .. 28 
 10, 269 
 186,221 
 116, 152 
 .. 168 
 .. 142 
 .. 1.34 
 .. 121 
 
 Eeg. V. Gilham 
 
 V. Jones 
 
 I'. Shelley 
 
 Eeid V. Langlois 
 Renison v. Ashley 
 Rew ^•. Hutchings 
 Eeyuell v. Sprye 
 Reynolds v. Godlee 
 Riccard v. Inclosnre 
 
 missioners . . 
 Rice. f. Gordon 
 Richards v. Gellatley 
 Richardson v. Hastings 
 Rigby v. Rigby 
 Roberts v. AUatt 
 Robertson v. Lubbock 
 — T. Shewell 
 
 Robins r. Goldingham 
 Robinson ■!■, Eatchin 
 Robson V. Crawley . . 
 V. Flight 
 
 PAGE 
 
 . 166 
 
 . 163 
 
 . 205 
 
 164, 176, 177 
 
 202, 203 
 
 .. 152 
 
 163, 169 
 
 .. 176 
 
 Com- 
 
 .. 219 
 
 .. 105 
 
 .. 152 
 
 95, 177 
 
 .. 202 
 
 .. 120 
 
 .. 41 
 
 177, 267 
 
 .. 178 
 
 110, 115 
 
 .. 138 
 
 .. 142 
 Roche V. Morgell . . . . 28 
 Eodgers v. Newill . . . . 34 
 Rodick r. Gandell . . . . 178 
 Rogers v. Seale . . 71, 73 
 
 Rondeau v. Wyatt . . . . 40 
 Ross ?'. Gibbs .. ..151 
 
 r. Shearer . . . . 58 
 
 Rothwell V. King . . . . 170 
 Eowe V. Teed . . . . 143 
 
 Roy ?'. Duke of Beaufort .. 117 
 Rumbold v. Forteath - - 204 
 
 Russell V. Jackson . . 16.3, 165 
 Rybott V. Barrel! 28, 49, 141, 165 
 Eyres v. Eyves . . 7, 35, 187 
 
 S. 
 
 Sainthill v. Bound . . . . 251 
 
 Salisbury, Earl of, v. Cecil 196, 
 283 
 Sampson v. Swetenham 188, 269 
 Sanders v. King . . 26, 31 
 
 Sandford t). Remington .. 165 
 Sangoza v. East India Co. . . 93 
 Saull D. Browne 201, 217, 275 
 Saunders ». Saunders 54, 58 
 
 Savage -». Carroll . . . . 249 
 Sawyer v. Birchmore . . 162 
 
xxxu 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Sawyer v. Mills . . . . 35 
 Saxby v. Easterbrook . . 84 
 
 Scott w. Broadwood. . .. 47 
 
 V. Miller 101, 109, 122 
 
 V. Walker . . . . 220 
 
 Seeley v. Boehm . . . . 246 
 Selby V. Crew . . . . 101 
 
 Seton «. Slade .. ..Ill 
 
 Severn v. Fletcher . . . . 19 
 Shadwell v. Shadwell . . 221 
 
 Shaftesbury, Lady v. Arrow- 
 smith . . 186, 203, 204 
 Sharp V. Carter . . 100, 128 
 
 V. Gammon . . . . 60 
 
 Shaw, Hx parte . . . . 178 
 
 ■!>. Holmes .. ..267 
 
 ' V. Shaw . . ' . . 14 
 
 Shellard, Doe d., v. Harris . . 163 
 Shepherd v. Morris . . 35, 211 
 Sherborne?). Clark .. ^ 187 
 
 Shirley ?). Watts .. ..40 
 
 Shore v. Bedford . . . . 164 
 
 Short V. Mercier 102, 1 09, 1 1 5, 
 122, 135 
 Sicilies, King of the Two v. 
 
 Willcox . . 108, 104, 105 
 
 Sidebottom v. Adkins 101, 135 
 Simmonds v. South Eastern 
 
 Bail. Co 178 
 
 Simpson v. Brown . . . . 164 
 
 i V. Chapman . . 142 
 
 •!). Charlesworth .. 145 
 
 Skinner v. Great Northern 
 
 KaiLCo. .. 150, 152, 166 
 
 Skrine v. Powell . . . . 17 
 
 Sloman v. Kelly . . 101, 108 
 
 i^—i>. Walter .. ..117 
 
 Small V. Atwood . . . . 85 
 
 Smith V. Daniell 168, 166, 168 
 
 ■ V. Duke of Beaufort 197 
 
 ■». Duke of North- 
 umberland . . 196 
 
 V. Eox . . . . 40 
 
 ». Read .. ..119 
 
 V. Snow . . 35, 50 
 
 Smithies i). Lewis . . . . 85 
 Sneider ■(). Mangino . . .. 221 
 
 Somerville v. Mackay . . 222 
 
 South Eastern Kail. Co. v. 
 Submarine Telegraph Co. 18, 16 
 
 PAGE 
 
 Sonth Sea Co. v. Bumstead 1 10, 
 112 
 
 Sonthall V. 101, 121, 122, 
 
 125 
 Spain (King of) v. HuUett . . 45 
 Sparke. d. Montriou . . . . 205 
 
 Spencely «. Schulenburg .. 161 
 Spencer v. Luttrell . . . . 171 
 
 Spurrier v. Fitzgerald • ■ 29 
 
 Stainton v. Chadwick 188, 189, 
 216, 224 
 Stan den v. Bullock . . . . 80 
 
 Stanhope v. Nott . . . . 174 
 
 «. Eoberts_ ..171 
 
 Starisbury v. Arkwright . . 35 
 Stapleton v. Sherard . . 187 
 
 Steele i). Stewart .. ..164 
 Stern v. Sevastopulo 101, 132 
 Steward v. East India Co. . . 182 
 Stewart v. Lord Nugent . . 7 
 
 V. Smith . . . . 221 
 
 Stoate V. Rew 211, 212, 219, 253 " 
 Stone V. Strange . . . - 221 
 
 Storev V. Lord Geo. Lennox 151 
 Strathmore v. Strathmore . . 35 , 
 Street v. Rigby . . . . 89 
 
 Strickland v. Strickland . . 24 
 Strode v. Blackbume 65, 69, 72 
 Stroud V. Deacon 188, 199, 208 
 Strudwick v. Pargiter . . 250 
 
 Stuart V. Marquis of Bute 95, 177, 
 
 245 
 Suffolk (Earl of; v. Green 101, 
 
 106 
 Sutherland v. Sutherland 139, 187 
 Sutton v. Earl of Scarborough 4, 
 10,29 
 Swabey v. Sutton . . . . 142 
 Swansea Vale Rail. Co. v. 
 
 Budd 268 
 
 Swift V. Nun . . . . 7 
 
 Swinborne v. Nelson 3, 142 
 
 Symes, Ex parte 101, 102, 122, 
 
 125, 126, 130 
 
 T. 
 
 Talbot V. Marshfield 168, 282 
 Tarleton ■». Hornby.. .. 33 
 
 Taylor v. Blacklow . . . . 165 
 
TABLE OJP CASKt?. 
 
 XXXUl 
 
 Taylor v. Forstcr 
 
 v. Heming 
 
 ■ r. Eundell 
 
 Telford i'. Ruskin 
 
 Temple v. Bank of England 
 
 Tetley v. Easton 
 
 Thol V. Leaske 
 
 Thomas v. Eawlings 
 
 - V. Tyler 
 
 Thompson v. Dnnn . 
 - V. Mosely 
 
 PAGE 
 
 ..161 
 
 ..251 
 
 176, 177, 2io 
 
 165 
 
 58 
 
 104 
 
 221 
 
 161, 16'7, 
 
 171, 188 
 
 17,40 
 
 .. 200 
 
 .. 178 
 
 Thorpe r. Macanlay 86, 101,122, 
 
 124 
 
 Thring i: Edgar 25, 26, 31, 33, 34 
 
 Todd ». Gee . . . . 7, 10 
 
 Tomlinson v. Lymer . . 187 
 
 Tooth V. Dean, &c. of Can- 
 terbury . . . . . . 54 
 
 Tonlmin i: Copeland . . 206 
 
 Towne v. Cocks 187, 196, 218 
 Trinity House, Corporation 
 
 of, V. Burge . . 102, 121 
 
 TTuemsLn, £!x paHe .. 187 
 
 Tugwell V. Hooper . . . . 164 
 
 Tupling V. Ward 
 Tnmey r. Bailey 
 Tnrqnand v. Knight 
 Turton v. Barber . 
 Twentyman v. Barnes 
 Tyler v. Drayton 
 
 101, 131 
 
 144, 167 
 
 .. 161 
 
 .. 158 
 
 .. 217 
 
 187, 188, 196, 
 
 216, 266 
 
 IJ. 
 
 tJnited States of America i\ 
 
 M'Eae .. 103 
 
 V. Prioleau 59 
 
 v. Wagner. . 59 
 
 XJnsworth v. Woodcock 3, 247, 
 266 
 Usbome v. Baker . . . . 138 
 Uxbridge (Lord) U. Stave- 
 land .. .. 102,110 
 
 Vanghan v. Aldridgc 
 Vent V. Pacey 
 Villeboisnet v. Tobin 
 Vyse V. Foster 
 H. 
 
 .. 86 
 
 .. 153 
 
 101, 133 
 
 .. 177 
 
 W. 
 
 PAGE 
 Walburu i: Ingilby . . . . 176 
 
 Walker c. Corke . . . . 106 
 
 Wallen r. Eorrestt .. ..219 
 Wallis v. Duke of Portland 100 
 Walsh i: Trevanion .. 167 
 
 Walsham r. Stainton 165, 168 
 Walsingham r. Goodricke . . 163 
 Walter 1-. GlauTille . . .. 28 
 Walwyu v. Lee . . 67, 70, 72 
 Ward V. Smith . . . . 34 
 
 Warde ■». Warde . . . . 176 
 Wanick r. Queen's College 165, 
 177, 205 
 Waters v. Lord Shaftesbury 101, 
 105 
 AVavland <-. Metropolitan 
 
 Kail. Co 152, 166 
 
 Weaver v. Earl of Meath . . 125 
 Webster r. Threlfall 140, 143 
 Weeks i). Argent . . . . 164 
 Welby V. Duke of Entland 77 
 Welford r. Staiuthorpe . . 266 
 Wellington r. M'Intosh . . 89 
 Wentworth v. Lloyd . . 167 
 
 Whateley v. Crowter 183, 221 
 Wheatley i: Williams . . 161 
 Whiffen v. Hartwright 164, 167 
 Whitbread v. Gnmey . . 166 
 White V. Barker . . . . 144 
 
 V. WilUams . . 129, 246 
 
 Whiting V. Rush . . . . 239 
 Whitmore !■. Francis .. 130 
 
 11. Thorton 81, 82, 83 
 
 Whittingham v. Bnrgoyne. . 126 
 Whitworth v. Davis 59, 60, 61 
 Whyman r. Legh . . . . 212 
 Wich V. Parker . . 35, 224 
 Wier V. Tucker . . . . 140 
 Wildbore v. Parker . . . . 130 
 Wilkinson o. L'Eangier 101,108 
 Williams v. Farrington 110, 121, 
 
 126 
 
 , V. Flight . . . . 36 
 
 V. Lambe. . 72, 73 
 
 c. Prince of Wales 
 
 Insurance Co. 268 
 
 V. Stevfard . . 7 
 
 V. Trve . . . . 109 
 
XXXIV 
 
 TABLE OF CASES. 
 
 PAGE 
 
 Wilmot V. Maccabe . . 86 
 Wilson V. Forster . . 188, 204 
 V. Hammonds 31, 36 
 
 V. Northampton and 
 
 Banbury Eail. Co. 151, 
 157 
 
 V. Prince . . . . 129 
 
 i>. Kastall . • . . 164 
 
 Winchester, Bishop of, v. 
 
 Bowker . . . . 166,205 
 Winn V. Rose . . . . 220 
 
 Wolleyi;. Pole .. 151,166 
 Wolverhampton Waterworks 
 
 Co. V. Hawksford. 
 Wood V. Hitchinga 
 Woods v. Woods 
 
 254 
 10, 50, 140 
 147, 168 
 
 Woolley v. North London 
 
 Eail. Co. 
 Wools V. Walley 
 
 150, 152 
 110 
 
 Wright V. Goodlake. . 
 
 V. Mayer 
 
 V. Morrey . . 
 
 V. Pitt 
 
 V. Plumptree 
 
 v. Vernon . . 
 
 Wrottesley v. Bendcole 
 Wych V. Meal 
 Wynne v. Griffith . . 
 
 V. Humberston 
 
 Yorke v. ^tj 
 Young V. Burrell 
 
 Z. 
 
 Zarifi V. Thornton . . 
 Zychlinski v. Maltby 
 
 PAGE 
 
 .. 256 
 
 173, 175 
 
 .. 221 
 
 .. 275 
 
 15,40 
 
 145, 196 
 
 102, 120 
 
 .. 56 
 
 .. 250 
 
 .. 168 
 
 31 
 
 86 
 
 221 
 139 
 
( XXXV ) 
 
 ADDENDA. 
 
 During the time this treatise has been passing through the 
 press there have heen several decisions upon the subject of 
 discovery, from which it appears that the equitable rules have 
 not invariably been followed. 
 
 Take, for instance, the case of discovery from a company 
 defendant (p. xxxviii). Lush, J., has decided that as against 
 such a defendant, and in other cases, the court will exercise its 
 judgment in controlling the right of eveiy parti/ to an action 
 to deliver interrogatories to any opposite party ; subject to 
 the liability to pay costs, and to have improper questions 
 struck out. 
 
 It may be said that this is no protection against improper 
 interrogatories, which are not, as formerly in equity, drawn 
 by counsel ; and that costs cannot be apportioned. But it is 
 submitted that the pi'otection is ample. If an interrogatory 
 is actively improper, it may be struck out on application at 
 chambers, when costs could be allotted. If it is only passively 
 so, it may be neglected. If it is not so obviously unnecessary 
 as to allow of its being neglected, that must be because it is 
 prima facie not improper. Where interrogatories may be 
 neglected entirely, or where the objectionable ones are very 
 numerous costs will be apportionable ; in other cases tlie 
 expense will be trifling. 
 
 Again, the question of inconsistent pleading has arisen 
 (p. xxxix). A man cannot be not guilty of an act, and also 
 justified in doing it. He may be justified in doing a certain 
 act, and therefore not guilty of an ofience ; but that amounts 
 to pleading a conclusion of law, which is even more objection- 
 c 2 
 
XXXvi ADDENDA. 
 
 able than pleading evidence. A plea of justifieation only 
 would seem to be sufficient. So much the defendant^ admits 
 having done : if that does not amount to an ofifence, it is for 
 the plaintiff to make out one. 
 
 And 'on the same occasion a plaintiff, instead of discovering 
 the defendant by means of interrogatories, was allowed to call 
 upon him to alter his pleading. 
 
 EAMSDEN V. BREAELEY. INw. 5, 1875. 
 Action for Libel.— Q & 7 Will 4, c. 76, s. 19. 
 
 This was an action against the publisher of a newspaper 
 for an alleged libel. It was proposed to put to the defendant 
 the following interrogatory : "Were you, on 22nd November, 
 1874, the printer or publisher, or both, of the newspaper?" 
 
 Lush, J.: " The Court of Chancery no longer elists as a 
 •separate tribunal. It has become a constituent part of the 
 High Court of Justice, each division of which is invested 
 -with equal authority, and with the entire jurisdiction of the 
 whole court. The 24th section ' of the Act of 1873, sub- 
 sect. 7, was designed to meet such cases as this. The 
 proceeding by bill of discovery, pointed out by the Act of 
 Will. 4; has also been abolished ; but the Judicature Acts 
 were not intended to abolish, nor have they the effect of 
 abolishing, the right of discovery which it gives. That right 
 still exists. The procedure substituted by the acts for the 
 bill of discovery is an action in the High Court ; but that, 
 by the hypothesis, has been already brought. By the express 
 language of the section just quoted the remedy is to be 
 granted as a proceeding in that action ; and in order to cany 
 out the policy of the act, it must be granted by that division 
 of the High Com't which has seisin of the cause, so as to 
 ' avoid multiplicity of legal proceedings.' To hold that the 
 suitor must go elsewhere for it would be to defeat the primary 
 objects of the acts. I am, therefore, of opinion, that in the 
 
ADDENDA. XXXYU 
 
 case supposed a plaintiff would be entitled to the discovery 
 now sought, and that the appropriate form of remedy is by 
 administering interrogatories. The protection accorded to 
 the defendant by the Act of Will. 4, will attach to the 
 answer which he makes to this interrogatory, as it would 
 have attached to the answer to the bill of discovery. It is 
 clear that if the Judicature Acts Ivid not passed, the plaintiff 
 might now have filed a bill of discovery, and no reason has 
 been suggested why he should be deprived of the substituted 
 remedy here. The defendant will not be in a worse position 
 by being required to answer the interrogatory than he would 
 have been if such a bill had been filed. I therefore direct 
 that this action be continued according to the course of the 
 High Court of Justice, and allow the interrogatory." 
 
 Stat. 6 & 7 Will. 4, e. 76, s. 19, enacts that the discoveiy 
 of the proprietors, printers or publishers of newspapers may 
 be enforced by bill ; but provides that such discovery shall 
 not be made use of in any other proceeding than that for 
 which it is so made. (Weekly Notes, 1875, 199.) 
 
 MATTOCK V. HEATH. [Kov. 11. 
 
 Interest in Evidence. — Order XXXI., 18. 
 
 Ltbsh, J.: " You are not entitled to discoveiy except of 
 documents that you have a prima facie right to inspect." 
 " Can yon claim to see private memoranda written by the 
 opposite party for his pleasure or convenience ? The plaintiff 
 and the defendant do not claim here from a common ancestor ; 
 but are at issue upon the question who was the father of the 
 intestate." Inspection refused. (W. N. 1875, 201.) 
 
 failwre to gii)e Inspection.— Order XXXI., 20. [Nov. 12. 
 This is a highly penal provision, and only to be exercised in 
 the last resort. (W. N. 1875, 202.) 
 See on same subject, W. N. 1875, 204. 
 
XXXVlll ADDENDA. 
 
 Answer tending to subject to a Penalty. — Order XXXI., 5. 
 
 [Nov. 18. 
 
 Interrogatory ordered to be struck out. ( W. N. 1875, 219.) 
 
 Company Defendant. — Order XXXI., 4, 5. — Interrogatories 
 befcH-e Defence. ■ [Nov. 19. 
 
 Lush, J. : " Wherever under the new practice an order for 
 interrogatories is necessary, the interrogatories will be gone 
 into on the application for the order, and it will not be granted 
 as of course. These interrogatories may be unnecessary after 
 plea." (W. N. 1875, 219.) 
 
 COOKE V. OCEANIC STEAM COMPANY. [Nov. 22. 
 Power to name an Officer of a Company to make Discovei-y. — 
 Order XXXI., 12. 
 Lushf J. : " The Judicature Acts have, in many cases, to be 
 supplemented by the Common Law Procedure Acts, and by 
 sect. 50 of the Act of 1854. I am empowered to name an officer 
 of the company to make discovery." {W. N. 1875, 220.) 
 
 REPUBLIC OP COSTA EICA v. ERLANGER. 
 
 [Nov. 25. 
 Foreign Government Defendant. — Discovery. 
 Matins, V.-C, ordered the officer of the Republic, named 
 by the plaintiff, to give discovery. (W. N. 1875, 225.) 
 
 TWYERON V. aRANT and ANOTHER. [Nov. 24. 
 Failure to Answer. — Order XXXI., 20. 
 Quain, J. : "J will make the order to strike out his defence 
 unless he files his answer within twenty-four hours." Costs of 
 application to be paid by defaulter. (W. N. 1875, 229.) 
 
ADDENDA. XXXIX 
 
 Discovenj of Documents.— Order XXXI., 12. [Nov. 26. 
 
 Quain, J. : " The order for an affidavit of documents will be 
 
 granted as a matter of com-se, without requiring the applicant 
 
 to state what is the nature of the documents which the other 
 
 party has in his possession." 
 
 RESTELL AND WIFE v. STEWARD. [Nov. 29. 
 Inconsistent Pleading. — Amendment of Opponcmfs Pleading. — 
 Orders XIX. & XXVII., 1. 
 Pleas of Not Guilty and Justification allowed in an action 
 for slander. 
 
 In the same case a summons was granted to the plaintiff 
 calling upon a defendant to amend his statement of defence. 
 (W:N. 1875, 231.)- 
 
 Discoveiy of Documents. — Order XXXI., 12. [Dec. 1. 
 Application by defendant refused, the court being of opinion 
 that the object was only to cause delay. (W. N. 1875, 238.) 
 
 WILTON V. BRIGNELL. [Dec. 3. 
 
 Action for Libel. — Order XXXI., 5. 
 
 Fi-om the following interrogatories the words in italics were 
 struck out. 
 
 Was not the passage set out in paragraph 3 of statement of 
 claim intended by the defendant to apply to the plaintiff? If 
 not, say to whom ? 
 
 Were not the words set out in paragraph 5, Sc. (these being 
 a repetition). 
 
 Were you yourself the writer of any of the passages mentioned 
 in the statement of claim. If not, who was f 
 
 It would seem from the report that the first question in the 
 last interrogatory was struck out. Prima facie the question 
 would seem a proper one, that is, if the claim alleged that the 
 defendant had written the passages. The answer might, 
 however, tend to subject to a penalty. 
 
% %xmtm 
 
 ON 
 
 THE DISCOVERY OP EVIDENCE. 
 
 EKRATA. 
 
 At p. 57, line 4, insert : By Order XVI., 10, when an 
 action is brought by, or against, a partnership, the names of 
 the partners can be called for. 
 
 At p. 167, line 15, insert: Also where the plaintififs are 
 partners, their names and addresses may be demanded. 
 Order VII., 2. 
 
 ana to an. qneHLiuus penxueui/ lu luaiu, wutjuuer lue 
 relief be legal or equitable, and whether the party 
 could prove his case by other means, or is destitute 
 of the means of establishing it, " However dis- 
 agreeable it may be to make the disclosurfe, how- 
 ever contrary to his personal interests, however fatal 
 to the claim upon which he may have insisted, he is 
 required and compelled, under the most solemn 
 
ON 
 
 THE DISCOYEEY OF EVIDENCE. 
 
 PART I. 
 
 DISCOVERY IN ACTIONS FOR RELIEF. 
 CHAPTER I. 
 
 or THE DISTINCTIOX BETWEEN DISCOVERT AND 
 BELIEF, AND ITS EEFECT IN PLEADING. 
 
 Arrangement of the Subject. 
 
 The general rule of discovery is, that any party to, 
 an action is entitled to an answer from any opposite 
 party, on oath and before trial, to the statements 
 upon which the claim, or defence to relief are fomided, 
 and to all questions pertinent to them, whether the 
 relief be legal or equitable, and whether the party 
 could prove his case by other means, or is destitute 
 of the means of establishing it. "However dis- 
 agreeable it may be to make the disclosurfe, how- 
 ever contrary to his personal interests, however fatal 
 to the claim upon which he may have insisted, he is 
 required and compelled, under the most solemn 
 
2 ACTIONS FOR BELIEF. 
 
 sanction, to set forth all lie knows, believes or thinks 
 in relation to the matters in question" («). 
 
 Nor is the evidence which must be furnished 
 limited to that within the suitor's personal know- 
 ledge. A party has a right to call for documents 
 under which both parties claim, or under which 
 he alone claims; but not for those under which 
 his adversary alone claims (6). 
 
 The right of discovery, however, does not extend 
 to a disclosure of the materials of evidence of an 
 opponent ; that is to say, a party cannot require his 
 opponent to state how he intends to prove his 
 case (c). 
 
 It is, therefore, one of the purposes of every action 
 to obtain these disclosures, and thereby to aid the 
 effect of the other evidence which may be produced, 
 if they do not render other evidence unnecessary. 
 Thus, the objects of discovery and relief have become 
 blended. The first edition of this work, for the first 
 time, separated the doctrines on these subjects, 
 regarding the one as a branch of procedure, and 
 treating the other as belonging to the department of 
 evidence. 
 
 The rules of procedure are consistent with this 
 arrangement. The cases of the parties and the 
 consequent relief must be stated in the pleadings. 
 
 (a) Per Lord Langdale, Fliifht t. Robinson, 8 Bear. 22, 34. 
 (i) Per Lord Brongham, Bolton y. Corporation of Liverpool, 
 
 1 Myl. & K. 88. See also Att.- 6en. t. Corporation of London, 
 
 2 Mac. Sc G. 247, anticipated case; London Gaslight Co. t. Chelsea 
 Vestry, 6 C. B. (N. S.) 411, evidence for both parties. 
 
 (c) Ingilby v. Shafto, 33 Beay. 31, 41. 
 
DISTINCTION BETWEEN DISCOVEEY AND BELIEF. 3 
 
 and discovery, properly so called, must be obtained 
 by means of affidavits in answer to interrogatories, 
 or by the production of documents (rf). 
 
 There are many olgections to relief which are also 
 valid to discovery; but some of these objections, 
 though substantially the same in both cases, have 
 a different shape when they are offered to the latter, 
 from that which they assume when raised to the 
 former. There are grounds of objection to mere 
 discovery which have no application to relief; and 
 again, there are grounds upon which a defendant, 
 without any general defence to an action, may yet 
 refuse to answer a particidar question, or to make a 
 particular disclosure. Objections of the last kind 
 apply equally to all actions. 
 
 The right to the discovery of evidence is the same 
 whether the subject-matter has been committed to 
 writing, or is to be drawn from the recollection of 
 the party interrogated. In a case in which an 
 attempt was made to draw a distinction between 
 these descriptions of evidence, Sir John Leach 
 said : " I can make no such distinction. The plain- 
 tiff might compel the defendant to set out the 
 contents of the books in his answer, and the produc- 
 tion of books is a part of the discovery" (e). There 
 are, however, rules peculiar to the shape in which 
 the evidence exists; for the acts of answering a 
 
 (d) Part IV. 
 
 («) UnsKorth i. Woodcoeh, 3 Mad. 432; Sminborne v. Kehon, 
 16 Beav. 416; Davies v. Waters, 9 Mees. & W. 608; aegg v. 
 Edmonson, 22 Bcav. 125, 137. 
 
 b2 
 
4 ACTIONS FOK RELIEF. 
 
 question, and producing a paper, are necessarily 
 performed by different processes. 
 
 ■In an early case (/ ) Lord Thurlow decided that, 
 where a bill was for discovery and relief, and no title 
 to relief was shown, there no discovery could be 
 called for. This principle assists the division of the 
 subject. Where the plaintiff seeks relief, and the 
 defendant demurs to the relief, the question of dis- 
 covery cannot arise. The same is true where the 
 action is met by a plea of new matter sufficient to 
 bar the relief; except that a partial discovery may 
 then happen to be necessary to accompany, or sup- 
 port the plea. The extent of the discovery may 
 thus be said to be, in such cases, dependent upon 
 the extent of the demurrer or plea. 
 
 The examination of this rule is the business of the 
 first part of this treatise. The second part relates to 
 the grounds of protection which may be relied on in 
 an action for discovery only, and to their nature as 
 distinguished from similar kinds of resistance to 
 relief. In the third part are comprehended the 
 objections which, not necessarily extending either to 
 the whole action, or to its propriety in limine, yet 
 afford a protection against particular disclosures, 
 whether sought by plaintiff or defendant, and whether 
 in an action for relief or for discovery only. And 
 the last part is devoted to the examination of the 
 rules which have been laid down with regard to the 
 form and manner in which a party to an action may 
 take the several objections to discovery. 
 
 (/.) Price V. James, 2 Bro. C. C. 319; Sutton v. The Earl of 
 ScarVorough, 9 Ves. 71, 75, per Lord Eldon. 
 
distinction between discovekt and relief. 5 
 
 Section 1. 
 
 Of Protection from Discovery only, in an Action 
 for Relief. 
 
 The rule upon this point was thus expressed by 
 Lord Thurlow : — " You cannot demur to a discovery 
 unless you demur to the relief; for then you do not 
 demur to the thing required, but you demur to the 
 means by which it is to be obtained" (^). And 
 Lord Eldon said : — " If the party has a right to 
 relief in equity, he has a right to an answer from the 
 defendant to every allegation of his bill, the admis- 
 sion of the truth of which, or the proof of the truth of 
 which, is necessary to entitle him to that relief" (A). 
 The meaning of these passages is, that the title to 
 relief being supposed, no general objection can be 
 raised to a discovery of the evidence upon the 
 strength of which it should be granted. Many 
 special objections may, however, be taken to certain 
 disclosures for which the plaintiff may happen to 
 call, notwithstanding the defendant does not meet 
 the entire action in limine (i). 
 
 It will be unnecessary here to do more than give 
 an outline of the several special grounds of protec- 
 tion from discovery which may be made available, 
 for they are the subject of a distinct part {k). They 
 are reducible to four principal heads, which must, 
 
 O) Morgan y. Marris, 2 Bro. C. C. 121, 124. 
 (/i) CootA V. Jackson, 6 Ves. 12, 37. 
 
 (i) Mitford, Treatise on Pleading, p. 185; Carter y. Goetze, 
 2 Keen, 581. 
 (J) Part in. 
 
6 ACTIONS FOE BELIEF. 
 
 therefore, be regarded as exceptions to the above 
 rule of Lord Thurlow. They are: 1. That a dis- 
 closure may tend to subject the defendant to penal 
 consequences ; 2. That it is immaterial to the pur- 
 pose of the action ; 3. That it would involve a breach 
 of some confidence, which it is the policy of the law 
 to preserve inviolate ; and 4. That the matter which 
 is sought to be discovered appertains to the case of 
 the defendant, and not to that of the plaintifi". 
 
 It is scarcely necessary to add, with respect to 
 these objections to discovery, that, whether they ex- 
 tend to protect the whole or a part of the case of the 
 party raising them, they cannot sustain a general 
 demurrer to relief. A party may be entitled to 
 relief, without being entitled to it through the evi- 
 dence discovered; and may obtain a judgment, 
 though he has not established his right by his oppo- 
 nent's statements (Z). 
 
 These objections will commonly appear as grounds 
 for not answering particular interrogatories, or not 
 producing particular documents ; and it is evident 
 that, in this respect, the rights of all parties are co- 
 extensive, and are quite independent of the sides in 
 the dispute the parties may take. 
 
 (_l) Att.-Gen. v. Brown, 1 Swans. 265, 294; Bummer v. Corpo- 
 ration of Chippenham, 14 Ves. 245, 255. 
 
distinction beta\'een discovert and relief. 7 
 
 Section 2. 
 
 Of the Rule that a Demurrer which is good to the 
 Relief extends also to the Discover^/. 
 
 After the decision of Lord Thurlow in the case of 
 Price y. James (m), the rule was acknowledged and 
 adopted in a long current of authorities, that, to 
 support a general demurrer to a bill seeking both 
 discovery and relief, it was sufficient to show that 
 the plaintiff was not entitled to the relief which he 
 praj'ed ; and that, therefore, the addition of a prayer 
 for relief to a bUl seeking discovery only, rendered 
 that discovery dependent upon the title to relief (n). 
 This rule is obviously applicable to all actions upon 
 general principles of justice. Unless a plaintiff in 
 his pleadings shows a title to maintain an action, he 
 clearly has no right to interrogate the defendant. 
 The latter would be in a position to demur, and 
 thereby avoid even pleading; and where there are 
 neither pleadings nor interrogatories, it is evident 
 that there can be no discovery. 
 
 (to) 2 Bro. C. C. 319. 
 
 («) Collis T. Srvayne, 4 Bro. C. C. 480; Ryves v. Ryves, 3 Ves. 
 342, 347; Mucltlegton t. Bromn, 6 Ves. 52, 63; HodgMn v. Long- 
 den, 8 Yes. 2; Baker t. Mellish, 10 Ves. 544, 553; Todd y. Gee, 
 17 Ves. 273; Williams v. Steward, 3 Mer. 502; Att.-Gen. v. 
 JBronn, 1 Swans. 265; Armitage •/. WadsmoHh, 1 Mad. 193; 
 Angell \. Angell, 1 Sim. & S. 83, 93; King v. Rossett, 2 Y. & J. 
 33; Mellish v. Sichardson, 12 Price, 530 ; Jones t. Mawnd, 3 
 Y. & C. 347; Stewart y. Lord Nugent, 1 Keen, 201, demurrer to 
 action at law, discovery in equity; Morris y. Morgan, 9 L. J. (Ch.) 
 57; Evan v. Corporation of Avon, 29 Beav. 144, 153; Smift v. 
 Nun, 26 L. J. (Ex.) 365, arguendo; Oiltert v. Lewis, 1 De G., J. & 
 S. 38, 45. 
 
8 ACTIONS FOK RELIEF. 
 
 In order to take a case out of this rule, the dis- 
 covery must be shown t'o have a distinct object. 
 Where relief is prayed, the discovery, if material to 
 the relief, is incidental to it ; and it has been held 
 that prima facie it must be so understood (o). It 
 is only by the introduction of expressions, making 
 the discover^"- a substantive part of the action, that 
 the plaintiff can avert the operation of the rule {p); 
 and this would scarcely be effected by merely avoid- 
 ing to connect the discovery with the relief sought. 
 It may admit of doubt whether any expressions 
 would be sufficient to entitle a plaintiff to discovery, 
 if they appeared in a statement of claim for relief, 
 and a demurrer or plea to the relief was successfully 
 offered ; unless the discovery was merely ancillary to 
 other proceedings. 
 
 The rule which protects a defendant from dis- 
 covery where a demurrer is a good defence to the 
 relief, is founded upon the convenience of the de- 
 fendant, and he may waive it. Lord Eldon held, 
 that he could demur to the relief, and give the 
 plaintiff the assistance of the discovery, saying, in 
 effect, that he would contest the right at the trial, 
 and be ancillary as a volunteer, by giving a discovery 
 of the facts upon which the plaintiff would bring his 
 action {q). But though a defendant might give 
 discovery, whilst demurring to the relief, it was 
 determined that he could not plead or demur to 
 
 (o) Angell v. Angell, 1 Sim. & S. 83, 93. 
 
 (jp) Ibid. 
 
 iq) Eodgkin v. Longden, 8 Ves. 2. 
 
DISTINCTION BETWEEN DISCOVERY AND itELIEK. 9 
 
 the relief, and to a pai"t of the discovery, supplying 
 the rest (r) f for such a partial discovery could serve 
 no useiul pvu-pose, and came within the rule that he 
 ■nho submitted to answer must answer fuUy (s). 
 
 In a case where the bill prayed a discovery of a 
 deed which had been delivered up by the plaintiff to 
 the defendant and cancelled (the plaintiff being at 
 the time in ignorance of the breach of one of its 
 covenants), and the demurrer went both to discovery 
 and relief. Lord Eldon is reported to have said: 
 " So far as it is a demurrer to discovery it covers 
 too niuch. For, upon all the authorities, where the 
 case calling the party into this court is that the con- 
 tract is not in that state (and not by any fault of his) 
 that he can avail himself of it at law, the discovery 
 whether the contract existed or not cannot furnish 
 of itself cause of demurrer, unless the defendant can 
 go further and state that no relief can be had upon 
 it anywhere ; and then from the mere circurhstance 
 of the demurrer extending too far (to the discovery 
 to which the plaintiff is entitled) the court will not, 
 on that account, overrule the demurrer " (<). This 
 would appear, at a first view, to abridge in some 
 degree the operation of the rule now under con- 
 sideration. From the concluding part of the judg- 
 ment, however, it may be inferred that some kind of 
 relief was contemplated by the court, and then the 
 reasoning only imports that the defence to relief 
 
 (?•) Jama v. Sadgrove, 1 Sim. & S. 4. 
 («) Part IV. 
 
 (f) £. I. Co. V. Neave, 5 Ves. 173, 184. The sentence quoted is 
 very involTcd in the report, and Is re-pnnctuated here. 
 B 5 
 
10 ACTIONS FOE BELIEF. 
 
 must be a complete and valid defence to the action 
 as it stands admitted on the record, or a demurrer 
 cannot be sustained (m). 
 
 Relief in one matter, and discovery in another, 
 have been held to be incompatible in the same suit (x). 
 
 If general demurrers are overruled as to some 
 defendants, and allowed as to others, the rrfle is a 
 protection against discovery by the latter (y). 
 
 Section 3. 
 
 Of the like Rule where new Matter is pleaded in bar 
 
 of Relief. 
 
 If the absence of a title to relief be not apparent 
 on the face of the plaintiff's pleadings, whereby the 
 defendant might demur, he may plead the matter 
 he reHes on in bar of the relief in a statement of 
 defence ; and in equity, a plea which was a bar to the 
 relief was a bar to discovery (2: ). 
 
 At common law, leave could, in some cases, have 
 been obtained to have one plea tried before another; 
 if, by so doing, the action would have been more 
 conveniently disposed of (a). 
 
 (ij) Todd T. Gee, 17 Ves. 273, 279. 
 
 (a?) Wood V. Hitchings, 3 Beav. 504, receiver and discovery; 
 Rcmson v. Samuel, 8 L. J. (Ch.) 71, relief both at law and in 
 eqnity; Francis v. Wigzell, 1 Mad. 258, relief against the husband 
 and discovery of the wife's separate estate. See post, p. 50. 
 
 iy) Baiter v. MelUsh, 10 Ves. 544; Mayor of London v. Levy, 
 8 Ves. 398, 403; Barry v. Croskey, 2 John. & H. 130, 136. 
 
 (z) Sutton\.I!arlofScarborovgh,dyea.71; James v. Sadgrove, 
 1 Sim. & S. 4. 
 
 (fl) C. L. P. Act, 1852, sect. 41 ; C. L. P. Act, 1854, sect. 4. 
 
DISTINCTION BETAVEEN DISCOVERY AND RELIEF. 1 1 
 
 By the rules of procedure this may be done (6). 
 
 A statement of defence may raise several distinct 
 matters in bar of the relief sought, any one of which 
 may cover the whole, or a distinct part, of the claim. 
 In such cases, each fact, or set of facts, forming a 
 distinct issue, should for purposes of discovery be 
 treated separately. 
 
 Even assuming the matter pleaded to be a com- 
 plete bar to the whole action, or to a distinct part of 
 it, some disclosure may be required to accompany 
 the plea ; or the plaintiff may be entitled to some 
 discovery by means of answers to interrogatories. 
 The extent of the discovery of these kinds, to ac- 
 company or support the pleadings of a defendant 
 who alleges matter in bar of the claim, is the subject 
 of the next chapter. The respective provinces of 
 the pleadings and affidavits in answer to inter- 
 rogatories are considered in the fourth part. 
 
 Where the defendant, on the face of his plea, 
 pleaded to the relief only, he was ordered to give 
 the discovery sought (c). 
 
 Section 4. 
 
 What Prayers are deemed Prayers for Relief. 
 
 Some difficulty has been found in defining the 
 term relief in the sense in which it should be under- 
 stood in the foregoing rules. There are some kinds 
 
 (J) Part IV. 
 
 (c) King v. Ueming, 9 Sim. 69. 
 
1 2 ACTIONS FOB EELIEF. 
 
 of relief whicli may be sought in an action, the main 
 purpose of which is the discovery of evidence, in 
 which the refusal of that relief is not decisive upon 
 the discovery. It is important to distinguish them. 
 
 The principle upon which the respective boun- 
 daries of these branches of jurisdiction may be de- 
 fined seems to be inferred from the passage of Lord 
 Redesdale's treatise, where it is observed that " To 
 administer to the ends of justice, without pronouncing 
 any judgment which may affect any rights, the 
 courts of equity in many cases compel a discovery 
 which may enable other courts to decide on the 
 subject "(d). 
 
 A court cannot pronounce any judgment on the 
 rights of the parties but upon a hearing of the cause. 
 It foUows, therefore, that if any exercise of the juris- 
 diction of a court be prayed which involves the 
 necessity of a trial or hearing, and judgment, decree 
 or order (e), the action is thereby rendered one for 
 relief, and is liable to all the incidents of that pro- 
 ceeding. On the other hand, if the assistance be 
 such as a court will give without a trial or hearing, 
 and no decree or order be necessary — no judgment 
 upon any rights being required — the rules which 
 have been discussed in the two preceding sections 
 do not apply. The decided cases appear distinguish- 
 able upon this principle. 
 
 For example : a prayer for a commission to exa- 
 mine witnesses abroad (_/ ), or that the testimony of 
 
 (d) Mitford, Plead. 148. 
 
 («) Aston V. Lord Exeter, 6 Ves. 288. 
 
 (/) Mills V. Campiell, 2 Y. & C. 389; Koile v. Garland, 19 Ves. 
 
DISTINCTION BETWEEN DISCOVERT AND RELIEF. 13 
 
 witnesses be perpetuated {ff), may be added to an 
 action for discovery, and does not make it aii action 
 for relief. 
 
 A biU for discovery, praying that the defendant 
 might abide such order " or decree " as the court 
 might think proper, has been held a bUl for relief (A), 
 
 Again, it may be essential to the usefulness of an 
 action for discovery that there should be a prayer 
 for an injunction against the defendant pending the 
 discovery («). 
 
 An injunction to restrain the defendant from set- 
 ting up outstanding terms on the trial of an eject- 
 ment was such relief as could not be granted upon 
 motion (k), but involved the necessity of a hearing 
 and a judgment upon the equitable rights of the 
 parties. A prayer for this relief could not be intro- 
 duced to a biU of discovery without changing its 
 character, and subjecting it to the rules applicable to 
 suits for relief (Z). 
 
 372; Lousada v. Templer, 2 Rnss. 561; King t. Allen, i Madd. 
 247. 
 
 (g) Hall T. ffoddesden, 2 P. Wms. 162. 
 
 (A) Baker \. Bramah, 7 Sim. 17; South Eastern Sail. Co. y. 
 Submarine Telegraph Co., 18 Beav. 429. 
 
 (i) Lovell V. Oallomay, 17 Bear. 1; Lloyd v. Adams, 4 K. & J. 
 467; Andrews t. Lupton, 13 L. J. (Ch.) 201 : the bill held to 
 become a bill for relief. See contra Mills t. Campbell, 2 Y. & C. 
 389; Benyon \. Nettlefold, 3 Mae. & G. 97. Harris v. Collett, 
 26 Beav. 222, a prima facie case mnst he made out. Ooddeen v. 
 Oakley, 2 De G., F. & J. 158, how long it remains in force. 
 
 ( k) Hylton t. Morgan, 6 Ves. 293 ; Byrne y. Byrne, 2 Sch. & L. 
 537; Barney v. Lueliett, 1 Sim. & S. 419; Northey v. Peai'ce, 
 1 Sim. & S. 420. 
 
 (0 Hylton V. Morgan, 6 Ves. 293 ; Armitage v. Wadsworth, 
 1 Mad. 189; Gait v. Oshaldiston, 1 Russ. 158. 
 
14 ACTIONS POK BELIEF. 
 
 A prayer for the delivery of deeds to the plaintiff 
 is clearly one for relief (»i), for there must be a trial, 
 and judgment or order directing that delivery (w); but 
 a prayer for the production of deeds seeks no more 
 than that assistance which, in a proper case, may be 
 obtained upon motion or summons (o), where the 
 action is for discovery only ; and accordingly, in an 
 old case, it was held that a prayer that the defendant 
 might set forth a list of deeds, and that they might 
 be placed in the hands of the clerk in court, was 
 merely incidental to the discovery, and was not a 
 prayer for relief (p). 
 
 There is a class of cases where a prayer of the 
 nature of that which has been last noticed is a 
 prayer for relief. They are not, however, an excep- 
 tion to the foregoing rule, for that rule applies only 
 to actions for discovery properly so called. If a 
 party comes into court seeking the inspection of 
 deeds, not as discovery in aid of any tribunal, but 
 merely for the purpose of information, or to enable 
 him to deal with the property to which they relate, 
 his object is clearly to obtain that assistance which 
 is properly relief. Under this head fall the cases of 
 reversioners and remaindermen seeking to inspect 
 deeds in the hands of the tenant for life, for the pur- 
 pose of disposing of their interests under them (§■). 
 
 (ot) Aston V. Aston, 3 Atk. 302. 
 
 (»t) Aston V. Zurd Exeter, 6 Ves. 288. 
 
 (o) Part IV. 
 
 (p) Crow T. Tyrrell, 2 Mad. 397, 408. 
 
 (j) Noel T. M'ard, 1 Mad. 322; Sham t. Sliam, 12 Price, 163; 
 Davis V. Earl of Dysart, 20 Beav. 405; Chichester v. Earl of 
 Donegal, L. R , 4 Ch. 416. 
 
DISTINCTIOX BETWEEN DISCOVERY AND RELIEF. 15 
 
 The action then depends upon the title to the relief 
 sought, which is not the subject of this treatise. 
 
 It was a necessary part of the order on bUls for 
 discovery that the documents incorporated in the 
 answer might be produced as evidence at the trial. 
 This was but making the discovery effectual, and 
 could not produce the effect of a prayer for relief (?•). 
 
 A prayer for an account renders the action one 
 for relief («). 
 
 Section 5. 
 
 Of the Prayer for General Relief. 
 
 The effect of the formal prayer at the conclusion 
 of the prayer for special relief, that the plaintiff 
 claims " to have such further or other relief as the 
 nature of the case may require "(i), cannot be deter- 
 mined upon the principle which has been suggested. 
 This form does not point to any definite object. It 
 may comprehend nothing more than the aid which 
 is incidental to the former part of the prayer, which 
 the court may grant without a hearing of the cause. 
 It may include an exercise of the jurisdiction beyond 
 that which is merely consequent upon discovery. It 
 may give the plaintiff the opportunity to amend by 
 adding prayers for specific rehef (m). It has been 
 
 (r) Aston •,. Lord Exeter, 6 Ves. 288; Wright y. Plumptre, 
 3 Mad. 481, 486. 
 
 («) Corporation of Carlisle v. Wilson, 13 Ves. 276; Frietas v. 
 Bos Santos, 1 Y. & J. 576; King v. Rossett, 2 Y. & J. 33. 
 
 it) See Order XIX. 8, Appendix C. 
 
 («) Angell v. Westeomie, 6 Sim. 31. 
 
16 ACTIONS FOR RELIEF. 
 
 decided that if the specific relief fails, a prayer for 
 general relief will support the discovery (x). 
 
 The prayer for general relief in a biU by assignees 
 for discovery of money which the bankrupt had lost 
 at play, was held not to render it a suit for relief (3/). 
 That case, observed Graham, B., "has often since 
 its determination been referred to as establishing a 
 precedent. On being looked at, however, it will 
 be found to be one of particular circumstances " {z). 
 He considered the decision to be founded on the 
 ground that it was not possible the biU could be a 
 bill for rehef, for no relief could have been given in 
 equity. 
 
 It has been held, that the prayer for general relief 
 subjects the action to all the incidents of an action 
 for relief; and, therefore, if the .title be a question of 
 law, renders the claim liable to demurrer (a). 
 
 Section 6. 
 
 Of the Effect of Actions for Discovery, 
 
 When a party has obtained a discovery by means 
 
 of an action for that purpose, if he then prosecutes, 
 
 or defends, an action for relief, he may avail himself 
 
 of the discovery by reading the documents containing 
 
 (») Angell-v. Westcomie, 6 Sim. 31; Scare v. Att.-Gen., 1 Y. 
 & C. 197. 
 
 {y") Brandon t. Sands, 2 Ves. jun. 514. 
 ' {z) Allan T. Copeland, 8 Price, 522. 
 
 (<s) Angell v. TFesicom Je, 6 Sim. 30; Allan v. Copeland, 8 Price, 
 522; Deare v. Att.-Gen., 1 Y. & C. 197. But see Brandon, v. Sands, 
 2Vea. jun. 514; South Eastern Rail. Co. v. Siiimarine Telegraph 
 Co., 18 Beav. 429. 
 
DISTINCTION BETWEEN DISCOVERT AND RELIEF. 17 
 
 it as evidence ; or he may proceed without it. The 
 discovery is of no other avaU than as an admission 
 by the party giving it. The court has pronounced 
 no opinion on the rights of the case (b) ; for, so far 
 as the sole object of an action is to obtain a dis- 
 covery, there can be no proceeding beyond delivery 
 of the documents (vehether pleadings or affidavits) by 
 wliich it is disclosed, except an order for the pro- 
 duction of every book, letter, memorandum, paper, 
 or deed referred to, and admitted to be in the 
 possession or power of the defendant (c). To extend 
 the order beyond the mere production, subject to any 
 objections to which the evidence may be liable, would 
 be in effect to pronounce a judgment in the action. 
 
 Where production of documents was ordered by 
 the Court of Chancery, their production was held 
 sufficient at law ; but where it was not ordered, the 
 whole answer was required* to be read («?). 
 
 A party to a bill for discovery merely was formerly 
 entitled to an order for his costs immediately upon 
 putting in a full answer (e). The question whether 
 the answer was sufficiently full was determined by 
 the fact of the time having expired within which the 
 
 (J) Tliomai V. Tyler, 3 Y. & C. 255. 
 
 (c) Barnet t. Nolle, 1 Jac. & W. 227; MansTi r. SiUald, 2 Ves. 
 & B. 376; Order XXXI. 14; Part IV. 
 
 {d) Brawn v. Tlurrnton, I Myl. & Cr. 243. The courts will not 
 inquire into each other's reasons. 
 
 (e) Coventry v. BentUy, 3 Mer. 677. Notwithstanding he had 
 examined witnesses in chief. Shrine f. Powell, 15 Sim. 81. But 
 costs must have been expressly asked for, JEarj) v. Lloyd, 4 K. & J. 
 58. 
 
18 ACTIONS FOB RELIEF. 
 
 plaintiff was allowed to except (/). The defendant 
 was also entitled to his costs of resisting motions 
 made by the plaintiff in the course of a discovery 
 suit(^). 
 
 If deeds or papers admitted by the pleadings or 
 affidavits of a party in a discovery action to be in his 
 hands are needed as evidence in other proceedings, 
 the court or a judge has power to order their pro- 
 duction ; or if they are referred to in the pleadings 
 or affidavits in the same action, their inspection, 
 subject to all just objections, may be obtained upon 
 notice to the party holding them (A). 
 
 Section 7. 
 
 Of Amendment of Pleadings, by adding or expung- 
 ing the Prayer for Relief. 
 
 It is stated to have been at one time a frequent 
 practice to frame a biU for discovery only in the first 
 instance ; and having obtained it, by amending the 
 bill, to try the title to relief (z). * 
 
 This practice was subsequently discontinued. 
 Lord Eldon observed that he had no recollection 
 of such an amendment; which, if it were allowed, 
 
 (/) The time fixed for excepting under the old rules was six 
 weeks — Consolidated Orders, 1860, XVI. 6. No time for ohjecting 
 to the sufficiency of affidavits in answer to interrogatories has been 
 fixed by the Rules; see Order XXXI. 
 
 ig) Noble v. Garland, 1 Mad. 344; Lovell v. Gallomay, 19 Beav. 
 643. 
 
 (A) Part IV. 
 
 (i) Mitford, Plead. 184, n. (ra). 
 
DISTINCTION BETWEEN DISCOVEEY AND RELIEF. 19 
 
 must have been of constant occurrence. And he 
 held that the amendment ought to be the subject of 
 a special application, and not a motion of course (A). 
 It has been said that the modem practice inclined 
 towards the principle laid down by Lord Notting- 
 ham, that where the jurisdiction once attached for 
 discovery, and the discovery was actually obtained, 
 the court would fiarther entertain the question of 
 relief, if the plaintiff prayed it (Z). This rule has 
 been broadly laid down in America {m). But it has 
 perhaps been confined to those cases where the title 
 of the plaintiff to relief appeared upon some dis- 
 closure in the answer (n). 
 
 This diflSculty perhaps resulted from the separate 
 jurisdictions for relief and discovery. Now that all 
 the divisions of the High Court of Justice (o) possess 
 similar powers of compelling discovery, and that one 
 court will rarely (if ever) be ancillary to another for 
 that purpose, the difficulty above stated should not 
 occur; and, evidence having been obtained by an 
 action for discovery, amendments will probably be 
 allowed on motion (where leave is required), or as of 
 course — so as to change the proceeding from an 
 action for discovery into one for relief. , In fact, the 
 very object of an action for discovery being to put 
 the plaintiff in a position to commence an action for 
 
 (*) ButterwoHh v. Sailey, 15 Ves. 363; Parker v. Ford, 1 Coll. 
 506. 
 
 (Z) ParJter v. Dee, 2 Ch. Cas. 200. 
 
 (m) Story, Eq. Jnr. § 71. 
 
 (b) Ibid. § 72; Lousada t. Templer, 2 Unas. 561; Crow y. 
 Tyrrell, 2 Mad. 397; Severn t. Fletcher, 5 Sim. 457. 
 
 (o) Order I. 1. 
 
20 ACTIONS FOR RELIEF., 
 
 relief, founded upon the discovery, it would seem to 
 foUow, as a matter of course, that the change of an 
 action from the one kind to the other would meet with- 
 no special opposition. 
 
 The rules of procedure as to amendments, so far 
 as important, are : " The court or a judge may, at 
 any stage of the proceedings, allow either party to 
 alter his statement of claim or defence or reply, &c., 
 and all such amendments shall be made as may be 
 necessary for the purpose of determining the real 
 questions or question in controversy between the 
 parties.'' 
 
 " The plaintiff may, without any leave, amend his 
 statement of claim once at any time before the ex- 
 piration of the time limited for reply and before 
 replying, &c." 
 
 " The defendant who has set up in his defence 
 any set-off or counter-claim may, without any leave, 
 amend such set-off or counter-claim at any time 
 before the expiration of the time allowed him for 
 pleading to the reply, and before pleading thereto, 
 &c." {p). 
 
 Upon motion to strike out the prayer for relief, 
 and convert the bill into one for discovery merely, it 
 was held that the proper course was to file a new 
 bni, dismissing the former (^) ; and the orders which 
 have been made for amendment seem to have been 
 
 (^) Order XXVII. 1, 2, 3. 
 
 (j) Cholmondeley v. Clinton, 2 Ves. & B. 113; S. C. 2 Mer. 71 ; 
 Frietas v. Dos Santos, 1 Y. & J. 576; King v. BMsett, 2 Y. & J. 
 33; Parlor v. Ford, 1 Coll. 606. 
 
DISTINCTION BETWEEN DISCOVERT AND RELIEF. 21 
 
 made by consent (r), or at the expense of indem- 
 nifying the defendant for the costs of the proceed- 
 ing (s). 
 
 By adding a prayer for relief to a bill of discovery 
 the discovery was limited to that incidental to the 
 relief (^). 
 
 A bill to perpetuate testimony was not allowed to 
 be converted into a bill of discovery (m). 
 
 (r) Clwlnu>ndeley v. Clinton, 2 Ves. & B. 114, u. (a), 
 (s) Gm-don t. SimpMnson, 1 1 Ves. 509. 
 («) Desbormigh \. Ourlemis, 3 T. & C. 175. 
 («) Mlice V. Rmijpell, 32 Beav. 308. 
 
22 ACTIONS FOR BELIEF. 
 
 CHAPTER II. 
 
 of the discovery which may be required to 
 accompany ok support a plea. 
 
 Section 1. 
 
 Of the Nature and Purpose of this Discovery. 
 
 There are few points relating to discovery more 
 important than that which involves the consideration 
 of the cases where a defendant, though he is able to 
 meet the plaintiff's claim, or some distinct part of it, 
 by pleading some matter sufficient to bar the relief 
 sought, is yet compelled to furnish some further dis- 
 closure in his pleadings, or some limited discovery 
 by way of answers to interrogatories. 
 
 Here, his case rests on the matter pleaded. The 
 remainder of the defence and the answers to iaterro- 
 gatories are no part of it. They are nothing more 
 than the evidence which the plaintiff has a right to 
 require for the purpose of trying the validity and 
 truth of the plea. 
 
 This disclosure, or partial discovery, is not called 
 for or intended as a protection to the party making 
 it. It is insisted upon as evidence to which the 
 plaintiff is entitled. The statements of the defend- 
 ant are of considerable weight (a) ; they are also his 
 
 (a) Gray t. Itaig, Haig t. Ch-ay, 20 Beav. 219. 
 
DISCOVEKY KEQUIEED TO SUPPORT A PLEA. 23 
 
 own evidence in support of his adversary's case ; and 
 it is, therefore, a favourable result for him if they 
 happen to state the facts which he has pleaded, or 
 facts leading to the same conclusion. 
 
 Section 2. 
 
 Of the Cases where a Discovery is necessary to 
 accompany or support a Plea. 
 
 Three questions are raised upon a plea: — the 
 form, the substance, and the truth (b). The form is 
 not the subject of this treatise. 
 
 The plaintiff may have charged in his claim such 
 circumstances as would render the new matter pleaded 
 insufficient in substance to bar the relief, even ad- 
 mitting it to be true in fact. He may have stated 
 circumstances which are directly opposite to the 
 matter pleaded in fact, admitting it to be sub- 
 stantially vaKd if it were true. Or he may have 
 alleged circumstances which show the matter of the 
 plea to be both invahd in point of substance and 
 false in point of fact. 
 
 In the first case suggested the court may be called 
 upon to determine if the plea is a substantial protec- 
 tion against the claim of the plaintiff, and the state- 
 ments of the defendant are the only evidence which 
 can be given on the argument of the plea (c). 
 
 In the second case, the merits of the defendant's 
 
 (J) Mitford, Plead. 301, 302. 
 \c) Ibid. 244, 303. , 
 
24 ACTIONS FOE BELIEF. 
 
 case tnay be tried upon a joinder of issue. If he has 
 pleaded an affirmative fact, the truth of which it 
 rests upon himself to prove, the plaintiff is entitled 
 to an answer to every fact which he has charged 
 that would be evidence against the plea (d). If, on 
 the contrary, he has pleaded a fact which throws the 
 burden of proof upon the plaintiff, the latter may 
 then, tipon the same principle, demand a discovery 
 of every circumstance calculated to assist him in that 
 proof (e). The different position in which the plain- 
 tiff is placed in the latter case seems to have occa- 
 sioned the doubts concerning negative pleas, which 
 for a short time involved the subject in much obscu- 
 rity (/). In these stages of the cause the discovery 
 is the same in either case. It is limited to matters 
 which would be evidence on the trial of the plea. If 
 the plea be disproved, or fails to be established by 
 the evidence produced, it is opened at the hear- 
 ing (ff), and the plaintiff will not lose the benefit of 
 the discovery with respect to the other facts which 
 it covered, but the defendant will be ordered to 
 supply the defect (A). 
 
 {d) Sarland v. Emerson, 2 CI. & F. 10, another heir; Nemman 
 y. Kutton, 3 Beav. 114, settled account ; Henley v. Stone, i Beav. 
 389,' want of parties; Bromn y. Perkins, 1 Hare, 564, release; 
 Drake v. Drake, 3 Hare, 523, lien for unpaid purchase-money. 
 
 (e) Strickland v. Strickland, 3 Beav. 224, no such will; 
 Chadmick v. Broadmood, 3 Beav. 530, not heir ; Clayton v. Earl 
 of Winoltelsea, 3 Y. & C. 683, no titheable matters ; Sardman v. 
 Ellames, 2 Myl. & K. 734, adverse possession. 
 
 (/) Newman v. Wallis, 2 Bro. C. C. 143; Hall v. Hayes, 3 Bro. 
 C. C. 483. 
 
 (j>) Mitford, Plead. 241, 245, 277. 
 
 (A) Ibid. 302. 
 
DISCOVERT EEQUIEED TO SUPPOET A PLEA. 25 
 
 If, admitting all the circumstances stated in the 
 plaintiff's case to be ti-ue, the fact insisted upon in the 
 plea is a valid protection against the case made out 
 by him, any further _ disclosure is unnecessary (e). 
 
 The third case comprises both of the first two. 
 
 Sir John Leach thus explains the position : " The 
 discovery which a court of. equity gives is not the 
 mere oath of the party to a general fact, but an 
 answer upon oath to every collateral circumstance 
 charged as evidence of the general fact. When the 
 defendant, therefore, pleads the general fact as a bar 
 to the whole discovery as weU as relief, either the 
 plaintiff ia the particular case must lose the equitable 
 privilege of discovery as to the circumstances which 
 he has charged as evidence of the fact, or some 
 special rule must be adopted by analogy, in order to 
 preserve to him that privilege. If a plaintiff comes 
 into equity to avoid a legal bar upon the ground of 
 some alleged equitable circumstances, as in the case 
 of a release, the defendant is not permitted to avail 
 himself of his legal defence, so as to exclude the 
 plaintiff from a discovery as to the alleged equitable 
 circumstances. He may, indeed, plead his release ; 
 but he must in his plea generally deny the equity 
 charged in the bill, and must also accompany his 
 plea with a distinct answer and discovery as to every 
 equitable circumstance alleged. In such a case the 
 issue tendered by his plea is, not the fact of his 
 release, for that fact is admitted by the bill, but 4he 
 
 (i) Tliring v. Edgar, 2 Sim. & S. 274; Pennington t. Heechy, 
 2 Sim. & S. 282, purchaser for valne. 
 
 H. ■ C. 
 
26 ACTIONS FOR BELIEF. 
 
 issue is upon tte equitable matter charged. Yet, 
 inasmuch as the principles of a court of equity 
 entitle the plaintiff to a discovery from the defendant 
 upon the matter in issue, here we find that, notwith- 
 standing the defendant pledges his oath that there 
 is no truth in the equitable matter charged, he is 
 nevertheless compelled to accompany his plea by an 
 answer and discovery as to every circumstance alleged 
 as evidence of the equity "(^)' 
 
 The plaintiff might formerly have introduced the 
 fact which would have constituted a bar in the form 
 of a pretence, and denied it barely, without stating' 
 a,ny circumstances to disprove it. The defendant 
 might then plead the fact; and upon principle it 
 would seem that there could have been no need of 
 any other answer than the averment in the plea, 
 where the charge consisted in a naked denial (/). 
 
 The defendant may include in his defence state- 
 ments in subsidium touching matters not alleged in 
 the claim. These statements are clearly part of his 
 case ; but it is unnecessary to consider them, for they 
 are in no respect of the nature of discovery. 
 
 The cases in which discovery is necessary may, 
 for convenient discussion, be divided into two 
 classes : — Where the plaintiff admits by his pleading 
 the existence of a legal bar, and charges some cir- 
 cumstances to avoid its effect ; and Where the plaintiff 
 does not admit the existence of any legal bar, but 
 
 * 
 
 {li) Sanders y. Xing, Mad. & G. 61, no partner; Thring v. 
 Edgar, 2 Sim. & S. 274, not indebted. 
 
 (J,) But i&e Harris y. Harris, 3 Hare, 450, partnership, where 
 the plea was introduced in the bill as a pretence. 
 
DISCO"\T:Rr EEQUIEED TO SUPPORT A PLEA. 27 
 
 states some circumstances which may be true, and 
 to which there may be a valid ground of plea, 
 together with other circumstances which are incon- 
 sistent with the substantial vahdity of the plea. 
 
 It is observable that the only difference in these 
 classes is that, in the one the matter of the plea is 
 admitted in the plaintiff's pleading, and in the other 
 it is first shown by the defendant's pleading. The 
 effect of this difference is considerable in defining 
 the extent of the discovery which the defendant is 
 bound to render, notwithstanding his plea. 
 
 The principles of the common law procedure were 
 the same. It was the object of the pleadings to bring 
 the questions in dispute to issues. The issues once 
 settled, the rules of evidence were : that the evidence 
 should be confined to the issues; that the substance 
 only of the issues need be proved; and that the 
 burden of proof lay on the party asserting the affir- 
 mative, unless it were supported by a presumption 
 of ]aw{m). 
 
 Section 3. 
 
 Of Discovery where the Ground of Plea is admitted 
 in the Plaintiff's Pleadings. 
 
 The first class of cases in. the division which has 
 been suggested is where the matter of the plea in 
 bar is expressly admitted in the claim, accompanied 
 l)y a charge of some circumstances to avoid its effect. 
 
 (m) Koscoe's Evidence at Nisi Prius, Object of Evidence, 13th 
 ed. 88. 
 
 C2 
 
28 ACTIONS FOE RELIEF. 
 
 These cases are the lowest in the scale of difficulty. 
 One important question is wholly withdrawn — the 
 truth of the plea is not disputed. The circumstances 
 which are charged in the statement of claim to avoid 
 the matter of the plea plainly constitute the measure 
 of discovery which must be given. This amounts to 
 no more than saying that, if the claim is not rescued 
 from a demurrer hy the allegations it contains, no 
 defence will be necessary, and therefore no dis- 
 covery. 
 
 Instances falling tmder this head are numerous. 
 Of these may be mentioned the cases of bUls 
 brought to impeach decrees on the ground of fraud 
 used in obtaining them (w) ; to avoid the effect of a 
 judgment by a court of ordinary jurisdiction (o); to 
 set aside a release (/)), or an award (g'); or to open 
 a stated account (/•). 
 
 In all these cases, and in others which may fall 
 under the same principle, the plaintiff's pleadings 
 having admitted the existence of a fact which, 
 taken alone, would be conclusive against him, and 
 
 (») Mitford, Plead. 239, et seq.; £ailey v. Adams, 6 Ves. 586, 
 596. 
 
 (o) Mitford, Plead. 253, 256; Rawlins t. Rarclins, 3 Rep. in 
 Cha. 30; Pierce y. Johns, Bunb. 11; Pearse v. Dobinson, L. K., 
 3 Ch. 1. 
 
 {p) Mitford, Plead. 261 ; Walter v. Glanville, 5 Bro. P. C. 
 555; Parlier y. Alcock, 1 Y. & J. 432; Roclie t. Morgell, 2 Sch. 
 & L. 721; Freeland y. Johnson, 1 Anst. 276; Broohs v. Sutton, 
 L. R., 5 Eq. 361. 
 
 (i?) Mitford, Plead. 261; Bailey r. Adams, 6 Ves. 586, 596; 
 Allards ». Camplell, Bunb. 265; Ryliolt v. Barrell, 2 Eden, 
 131; Gartside v. OaHside, 3 Anst. 735. 
 
 (?■) Mitford, Plead. 259; Bailey v. Adams, 6 Ves. 586, 596. 
 
DISCOVERr EEQUIEED TO SUPPOET A PLEA. 29 
 
 then having proceeded to state specific grounds 
 upon Tvhich that fact, though formally or ostensibly 
 in evidence, ought not to have the effect of con- 
 cluding him, the defendant can readily decide what 
 he must plead, and what discovery he must make 
 to support his plea. The statement of claim is an 
 express guide. The plaintiff has pointed out the 
 particular circumstances upon which he relies to 
 overcome the anticipated bar. AVith regard to such 
 circumstances discovery must be given («). 
 
 There are cases approaching very closely to these, 
 where the matter of the plea is not expressly, but 
 tacitly, admitted in the claim. The Statute of 
 Limitations may be pleaded to an action which 
 states that the cause of action accrued more than 
 six years previously, adding that within six years 
 a transaction has taken place raising a new as- 
 sumpsit (f). In such a case the plaintiff can obtain 
 the benefit of the rule, that a plea which is good to 
 the relief is good also to the discovery, only by very 
 special allegations (?/); and the discovery is plainly 
 confined to the circumstances charged which would 
 take the case out of the statute. The Statute of 
 Frauds may be pleaded; and the same principle 
 applies with regard to the necessary discovery (x). 
 
 (s) Foley V. JffiU, 3 Myl. & Cr. 475, Stat. Limitations; Munt t. 
 Penrice, 17 Beav. 525. 
 
 (i) Sailey v. Adams, 6 Ves. 586, 597; Dearman v. Wyche, 
 9 Sim. 570; Parhinton v. Chambers, 1 Kay & J. 72. 
 
 (a) Sutton Y. Earl of Scariorough, 9 Ves. 71, 75, Stat. Limita- 
 tions; Harris t. Harris,.^ Hare, 450. 
 
 (a;) Mitford, Plead. 265 et se^. ; Spurrier v. Fitzgerald, 6 Ves. 
 
30 actions for relief. 
 
 Section 4. 
 
 Of Discovery where the Ground of Plea is not 
 admitted by the Plaintiff^s Pleadings. 
 
 Within this class will be found the cases which 
 have been mainly the subject of discussion. If no 
 ostensible bar is in the plaintiff's pleadings admitted 
 to exist, and yet the defendant would plead matter 
 in bar of the discovery, he must distinguish those 
 facts which, if true, would not invalidate or disprove 
 his plea, and object to the discovery with regard to 
 them ; but he must disclose the facts which, if true, 
 would disprove or invalidate his plea, and the matters 
 which are specially alleged as evidence of such lacts. 
 
 This proposition may be illustrated by many cases. 
 To a bill by a plaintiff claiming under a devise of 
 real estate, the defendant put in a plea founded upon 
 the statute 32 Hen. 8, c. 2, and the Court of Chancery 
 held the plea to be good in substance ; but that, 
 inasmuch as the bill specifically charged that within 
 sixty years the ancestor of the defendant entered 
 upon the premises in question, and occupied them 
 as tenant to those under whom the plaintiff claimed, 
 it was defective without an answer to these facts (y). 
 To a biU for an account of the dealings and transac- 
 tions of a partnership, the plea that the defendant 
 was not a partner, was required to be accompanied 
 by an answer as to the circumstances specially 
 
 548, 555; Morison v. Turnow, 18 Ves. 175, 182; JSkam v. Harrit, 
 2 Ves. & B. 361. 
 
 if) Oram v. Tyrrell, 2 Mad. 397, 409. 
 
DISCOVERT KEQUIEED TO SUPPORT A PLEA. 31 
 
 charged as evidence of the partnership (z). In a 
 creditor's suit, a plea of no debt is a fiiU bar, except 
 in so far as any discovery is distinctly sought of cir- 
 cumstances as evidence of the existence of the alleged 
 debt (a). When the defendant pleads a purchase 
 for valuable consideration -without notice of a defec- 
 tive title, and is required to accompany his plea by 
 an ansvrer, the extent to which he must answer is 
 governed by the same principle (b). In the greater 
 number of cases there would probably be little ques- 
 tion either as to the necessity or th,e extent of the 
 discovery. 
 
 Until the rule in Thring v. Edgar (c) it might 
 have been often a matter of doubt whether the ten- 
 dency of particular facts as evidence to establish the 
 case of the plaintiff was sufficiently distinct to re- 
 quire an answer. In a case before Lord Eldon, upon 
 a bill for an account, charging an agreement and 
 that the accounts had been actually kept, it was held 
 that the latter circumstance would have been evidence 
 before a jury of the agreement stated in the bill, and 
 therefore it was not sufficient for the defendant merely 
 to deny the agreement having been entered into. 
 
 (z) Sanderg v. King, Mad. & G. 61; Torlte v. Fry, Mad. & G. 
 65; Drew \. Drew, 2 Ves. & B. 159; Harris v. Harris, 3 Hare, 
 450. 
 
 (a) Thring v. Edga/r, 2 Sim. & S. 274. 
 
 (J)) Pennington t. Seechy, 2 Sim. & S. 282; Hardman v. 
 Mlames, 5 Sim. 640, 650. 
 
 (c) 2 Sim. ^ S. 281. The particular facts may be charged in 
 the pleadings or appear in the form of interrogatories; Wilson v. 
 Hammonds, L. R., 8 Eq. 323. 
 
32 ACTIONS FOE BELIEF. 
 
 without a negation of that particular circumstance (rf). 
 Where the question turned upon the fact of a partner- 
 ship having existed, it was objected to the plea that 
 it should have been accompanied by an answer to 
 the charge that the party had been an apprentice, as 
 that fact might afford some evidence from the pro- 
 bability that he would be taken into partnership ; but 
 it was held not to be necessary to answer every cir- 
 cumstance tending to the point upon which the 
 defendant relied in his plea (e). 
 
 Section 5. 
 
 Of the Rule that Discovery is required only of Matters 
 specially alleged or interrogated. 
 
 It would seem that an allegation or charge may 
 be specific in two points of view. It may be specific 
 with regard to a particular fact, or it may be specific 
 in pointing to particular evidence. 
 
 If the plaintiff does not allege a special fact, 
 inconsistent with the plea, negativing that plea, as it 
 were, by anticipation (/) ; or if he does not allege 
 that the defendant is in possession of some particular 
 evidence by which the claim would be proved; he 
 
 Jd) Jones v. Davis, 16 Ves. 261; Arnold v. Heaford, 1 M'Clel. 
 & Y. 330, no mortgage ; Hunt v. Penrioe, 17 BeaT. 625, no issue. 
 
 («) Srem \. Drew, 2 Ves. & B. 159; Mansell v. Feeney, 2 John- 
 & H. 313. 
 
 (/) Hardman v. Ellames, 2 Myl. &-K. 732, 744 j Oidverhouse 
 V. Alexander, 2 Y. & C. 218. 
 
DISCOVERY REQUIRED TO SUPPORT A PLEA. 33 
 
 alleges notHing which is specific, and any disclosure 
 accompanying the plea is unnecessary (g). 
 
 The first kind of allegation is illustrated by a 
 remark of Lord Brougham : " It is urged on general 
 principles that discovery ought not to be' compelled, 
 if on proof of the matter of the plea it would appear 
 that the plaintiff has no title. But if the title would 
 in part be proved by the discovery of the fact 
 charged, does not that raise a distinct case and form 
 a ground of exception? Can a defendant to such 
 a bill suppress or evade the discovery by a simple 
 denial of the title generally ? That cannot be the 
 office of a negative or any plea" (h). The plea was 
 founded on an alleged adverse possession for a long 
 time ; and the bill charged- that during that period a 
 party fi-om whom the defendant claimed had occupied 
 upon the trusts of a term. 
 
 In the second point of view the charge is specific, 
 if, after stating a general fact, it formally alleges, as 
 ■evidence of that fact, that certain circumstances 
 occurred which the defendant ought to confess. In 
 this case it was laid down by Sir John Leach, that 
 in order that a defendant may " know what is the 
 particular discovery required of him it is incumbent 
 upon the plaintiff to state it distinctly in his bill." 
 " Unless the defendant is distinctly informed by the 
 plaintiff what are the particular matters affecting his 
 title as to which he seeks discovery, the defendant, 
 
 (g} Tliring v. Edgar, 2 Sim. & S. 274 ; Tarleton v. Hornby, 
 1 y. & C. 172 ; Earp t. LloyA, i Kaj & J. 58. 
 (74) Barland v. Emerion, 8 Bligh, N. S. 86. 
 C5 
 
34 ACTIONS FOR RELIEF. 
 
 not knowing what he is expected to answer, is not to 
 answer at all" (i). 
 
 If the statement of claim insists upon a certain 
 agreement, and, as evidence of it, alleges that the 
 defendant has done some act manifesting his sense of 
 the existence of the agreement, the allegation would 
 properly indicate the matter to be discovered in the 
 event of the defendant pleading to the general fact. 
 
 The object of the charge is to obtain this dis- 
 closure, upon which the plaintiff may compel further 
 discovery or production. 
 
 The rules of procedure provide that: — 
 
 " Wherever it is material to allege malice, fraudu- 
 lent intention, knowledge, or other condition of the 
 mind of any person, it shall be sufficient to allege 
 the same as a fact without setting out the circum- 
 stances from which the same is to be inferred " (A). 
 
 " Wherever it is material to allege notice to any 
 person of any fact, matter, or thing, it shall be 
 sufficient to allege such notice as a fact, unless 
 the form or the precise terms of such notice be 
 material" {I). 
 
 At common law, evidence of the amount of damage 
 in contract and tort might have been given, although 
 it was only alleged generally in the declaration (»n). 
 
 Where general charges as to character were set 
 
 (i) Hiring t. Edgar, 2 Sim. & S. 274, 281; see Benys v. Lococh, 
 3 Myl. & C. 206. 
 
 (A) Order XrX. 25. 
 
 (0 Order XIX. 26. 
 
 (m.) Eoscoe, Nisi Prins, IStli ed. 95, citing Ward t. Smith, 
 11 Price, 19; Badgers v. Mmill, 5 C. B. 109. 
 
DISCO'VTEKT KEQUIRED TO SUPPORT A PLEA. 35 
 
 up, general evidence of good character might have 
 been given (w). 
 
 General charges of these kinds must, therefore, be 
 answered, with more or less particularity. 
 
 But general charges or allegations of fraudulent 
 conduct (o), collusion (p), illegality ((^), breach of 
 trust (r), errors in accounts (s), or of the existence of 
 accounts (t), of outstanding terms (m), title (.r), com- 
 promise (y), privilege (z), neglect and default ((i), 
 damage (S), trust (c), spoliation {d), have been held 
 to require no discovery. 
 
 The charge must be made distinctly. Such words 
 as "allege and believe "(e), "some interest" (/), 
 
 («) Roscoe, Nisi Prins, IStli ed. 96, citing Foulkes v. Sellmay, 
 3 Esp. 236. 
 
 (o) Palmer t. Mure, Dick. 489; Munday t. Knight, 3 Hare, 
 497; Gilbert v. Lewis, 1 De G., J. & S. 38; Nem BruiismcTt Co. v. 
 Conyleare, 9 H. L. C. 711; Wich t. Parler, 22 Beav. 59. 
 
 (^) Benfield t. Solomons, 9 Ves. 77, 86; Kaye r. Fosiroeie, 8 
 Sim. 28; Smith v. Snow, 3 Mad. 10; Oliver v. Say wood, 1 Anst. 
 82; Mitford, Plead. 41. 
 
 (q) Satty t. Chester, 5 Beav. 103. 
 
 (r) Att.- Gen. v. Mayor of Norwich, 2 Myl. & C. 406. 
 
 («) SJieplierd t. Morris, 4 Beav. 252. 
 
 (i) Dartney v. Clemens, 6 Beav. 165. 
 
 (a) Stanslnry \. Arkwright, 6 Sim. 481. 
 
 (a) Baher t. Mamood, 7 Sim. 373. 
 
 (_y) Jones v. Maund, 3 Y. & C. 347. 
 
 (z) Strathmore t. Strathm.ore, 11 L. J. (Ch.) 400, demurrer. 
 
 (a) Sawyer ^ Mills, 20 L. J. (Ch.) 80. 
 
 (J) iVofe* V. if'JsA, 3 Drew. 735. 
 
 (c) Grenville Murray v. ior«Z Clarendon, L. R., 9 Eq. 11. 
 
 (i) Jerrard t. Saunders, 2 Ves. jnn. 454, 458. 
 
 (e) Egremont v. Cornell, 5 Beav. 620; Hodgson v. Espinasse, 10 
 Bear. 473. 
 
 (/) i?2/i;e« V. .R^JJfi^, 3 Ves. 342; Flumbe v. Plwmbe, 4 Y. & C. 
 
36 ACTIONS FOE RELIEF. 
 
 have been held to require no answer. So have 
 alternative allegations (^), or simple statements (A). 
 
 In many of these cases the objection to answer 
 was taken by demurrer ; but where such a proceeding 
 would not be appropriate it would have to be raised 
 by the defence, or by refusing or neglecting to answer 
 interrogatories, or to produce documents. 
 
 If the plaintiff does not obtain from the defendant 
 voluntarily in his pleadings all the facts he is entitled 
 to know, he may compel the discovery of them by 
 means of answers to interrogatories on the subject (e), 
 or of an affidavit of documents (J). 
 
 If the defendant is called upon, before he has 
 delivered his defence, to answer interrogatories which 
 his pleadings, when filed, would show to be unneces- 
 sary, he should put in his defence before the expiry 
 of the time within which he may be required to 
 answer. 
 
 .345 ; and see cases of uncertainty of allegation cited in note (i), 
 .3 Hare, 501. 
 
 ((/) Williams v. Fliglit, 5 Bear. 41. 
 
 (lb) Duke of Brunswick v. King of Hanover, 6 Beav. 1. 
 
 (i) Wilson V. Hammonds, L. K., 8 Eq. 323, not tenant in tail; 
 following Mansell v. Feeney, 2 John. & H. 313. 
 
 (^■) Part IV. 
 
( 37 ) 
 
 PART II. 
 
 ACTIONS FOR DISCOVERY DISTINGUISHED 
 FROM ACTIONS FOR RELIEF. 
 
 CHAPTER I. 
 
 OF PKOTECTIOlSr FROM DISCOVEKT ON THE GROUND 
 THAT THE PLAINTIFF HAS NO INTEREST IN THE 
 SUBJECT. 
 
 Section I. 
 
 Of this Objection to an Action for Relief 
 
 Lord Kedesdale observes, that "interest in the 
 subject of the suit, or a right to the thing demanded, 
 and a proper title to institute a suit concerning it, 
 are essentially necessary to sustain a bill" (a). This 
 proposition merely asserts that an action cannot be 
 maintained if it can be made to appear to the court 
 that the plaintiff is without a title to the subject in 
 question. The circumstance that the case offers a 
 proper question for the decision of the court excludes 
 the possibility that the title of the plaintiff should be 
 indisputable. 
 
 It is obvious that an examination of the interest 
 which is in all cases sufficient to sustain an action 
 involves a very extensive inquiry, into which it is 
 not necessary here to enter. 
 
 (a) Mitford, Plead. 164, 231. 
 
38 ACTIONS FOR DISCOVEEY. 
 
 Where the plaintiff shows, or attempts to show, a 
 title, and thereupon prays relief, if the defendant can 
 protect himself by a demurrer which is good to the 
 relief, it has been seen that it protects also the dis- 
 covery (J). If the defendant is enabled to meet the 
 case by a plea in bar of the relief, the rule is the 
 same (c) ; though it may happen that he must 
 accompany or support his plea by some fiirther 
 defence or answer, the extent of which has been 
 already considered (d). The cases which are to be 
 considered in this chapter are therefore reduced to 
 those in which the plaintiff seeks a discovery only. 
 
 The present ground of objection necessarily ex- 
 tends to the entire subject of action ; and the same 
 remark applies to aU the heads of protection from 
 discovery which compose this second part. 
 
 It must be borne in mind that an action of dis- 
 covery is no longer peculiar to one court; but is 
 within the jurisdiction of every branch of the High 
 Court of Justice. All the cases on the subject, 
 however, having hitherto been tried in Chancery, 
 this part wiU necessarily be illustrated by examples 
 drawn from that jurisdiction only. The nature of a 
 bill of discovery also must not be lost sight of. Its 
 object was to procure evidence on which to found a 
 claim or defence at common law. The consequence 
 was that this bill very frequently related to matters 
 which themselves were not of equitable cognizance. 
 
 (J) Ante, p. 7. 
 
 (c) Ante, p. 10. 
 
 (d) Ante, p. 22. 
 
WANT OF INTEREST OF PLAINTIFF. 39 
 
 An action of discovery at the present time may, or 
 may not, be brought in the court in which proceed- 
 ings win afterwards be taken ; but in either case it 
 win be a separate action, and until its nature is 
 changed by the addition of a prayer for relief, or 
 until a fresh action for relief is brought, the discovery 
 action will be as independent of what may follow 
 from it as though it were a bill filed in the Rolls in 
 aid of an action in the Common Pleas. 
 
 Section 2. 
 
 Of this Objection by Demurrer. 
 
 The most simple case is where it is apparent upon 
 the face of the plaintiff's own pleadings that the 
 action which he projects cannot be sustained. The 
 defendant can then demur. The case is thus reduced 
 to a mere question of law, to determine which no 
 discovery is needed. The averment of title in the 
 claim is not of a fact, but of the consequence of 
 facts (e) ; and although the plaintiff should allege 
 that he is seeking discovery in order to commence 
 an action (/), yet if the court be of opinion that the 
 facts alleged by him are not such as will support an 
 action, a demurrer wiU be allowed — for, unless the 
 plaintiff has a title to recover, supposing his case to 
 be true, he has no right to the assistance of a court 
 
 (e) Mitford, Plead. 233. 
 
 (/) Mayor ofXondon v. Levy, 8 Vea, 398, 404. 
 
40 ACTIONS FOE DISCOVERY. 
 
 to obtain from the confession of the defendant evi- 
 dence of the truth of his case {ff). 
 
 The possibility of acquiring a title ■will not be 
 sufficient ; the plaintiff must be able to allege that 
 he has done every act necessary to perfect his in- 
 terest (/i). 
 
 If the case of the plaintiff is founded upon a deed, 
 the effect of which he purports to state, but alleges 
 that it is in the possession or power of the defendant, 
 and that he is therefore unable to set it forth with 
 certainty, the court will not conclude the plaintiff 
 by that statement, for he admits that it may be in- 
 accurate. If the defendant would call upon the 
 court at once to deterrnine the true construction of 
 the deed, he must plead it (i). 
 
 It may be observed, however, that if it be merely 
 doubtful whether an action will lie upon the case 
 stated, it would seem that the plaintiff wiU not be 
 denied the benefit of a discovery (A). Lord Thurlow 
 held, that if it is " a measuring cast, and upon cases 
 at law which must stand tiU they are revised by ft 
 court of law," he would not, sitting in equity, say 
 that the cases were improperly settled at law (Z). 
 
 It has been argued that discovery may be obtained 
 
 (g) Mitford, Plead. 187; 1 Bro. C. C. 469, 471; Smith r. Fox, 
 6 Hare, 386. See Clwlmondeley t. Clinton, Tnrn. & E. 107. 
 
 (70 Mitford, Plead. 126, 155, 187; Angell v. Draper, 1 Vem. 
 399; Shirley T. Watts, 3 Atk. 200. 
 
 (i) Wright v. Flumtree, 3 Mad. 481. 
 
 (h) Corvan v. Phillips, 3 Anst. 841; Tlwmas v. Tyler, 3 Y. & C. 
 255, 261. 
 
 (0 Rondeau t. Wyatt, 3 Bro. C. C. 154. 
 
WAIfT OF INTEREST OF PLAINTIFF. 4l 
 
 if the facts alleged tend to support the title upon 
 which the plaintiff insists ; for he may have it in his 
 power to produce other evidence in support of his 
 case, and the discovery sought may form a link in 
 the chain (m). It is not, however, enough that the 
 alleged action might be supported by a confession or 
 proof of the allegations on the record, added to other 
 evidence ; but the question is whether it could be 
 sustained if those allegations were confessed or proved, 
 and no other evidence adduced. A demurrer is good 
 if fuU proof of the facts stated by the claim would 
 be insufficient to sustain the action. It is therefore 
 incumbent upon a plaintiff to unfold so much of his 
 case as wiE preclude objection to his title. 
 
 Section 3. 
 
 Of this Objection hy a Plea in bar of the Plaintiff's 
 Title. 
 
 " If," Lord Redesdale observes, " a plaintiff by 
 his bill states himself to have an interest which 
 entitles him to call on the defendant for a discovery, 
 though in truth he has no such interest, the defend- 
 ant may by plea protect himself from making the 
 discovery, which may involve him in difficulty and 
 expense, and perhaps may be prejudicial to him in 
 other cases. Thus, if a plaintiff states himself to be 
 heir or administrator of a person dead intestate, and 
 in that character seeks a discovery from a person in 
 
 (to) Robertion v. Luitoch, 4 Sim. 161, 177. 
 
42 ACTIONS FOE DISCOVERY. 
 
 possession of property wHcL. belonged to the de- 
 ceased, of his title thereto, or of the particulars of 
 which it consists, the defendant may plead that 
 another person is heir or personal representative, or 
 that the person alleged to be dead is living " (w). If 
 a plea of this kind were not good, " any person," it 
 was said by Sir John Leach, " first suing out a writ 
 at law against another might, by a bill in equity for 
 a discovery, compel such other person to disclose 
 upon oath all the particulars of any transaction, 
 however secret and important, with which the plain- 
 tiff had no matter of concern, merely by introducing 
 into his bill the false allegation that he had an inte- 
 rest in the transaction, since it would not be per- 
 mitted to the defendant to protect himself from such 
 discovery by proving to the court the falsehood of that 
 allegation " (o). And it has been justly remarked 
 that, whether the want of interest appear in the plain- 
 tiff's own pleadings, or be brought forward by the 
 defendant, cannot be material in any other view than 
 as deciding whether the defect must be taken advan- 
 tage of by demurrer or by plea(j»). 
 
 (ra) Mitford, Plead. 283; Ord v. Euddlegton, 2 Dick. 510. See 
 CJwlmondeley v. Clinton, 2 Mer. 71; Brandon v. Sands, 2 Ves. 
 jun. 514. 
 
 (o) Mendizahel t. Machado, 1 Sim. 68, 77; Mitford, Plead. 230 
 et seq. 
 
 {p) Beames on Pleas, 276; Hoare v. Peek, 6 Sim. 51; Fygon t. 
 Pule, 3 Y. & C. 267. 
 
"want of interest of plaintiff. 43 
 
 Section 4. 
 Of the various Forms of Pleas in bar to Discovery. 
 
 It has been contended that to a discovery in aid of 
 a common law title, there cannot be a plea of no 
 such title, for that is the very question to be tried at 
 another time {q). The authority on which reliance 
 has been chiefly placed is the case of Hindman v. 
 Taylor (r). The report of the pleadings, it is said, 
 cannot be depended upon(s); but the case appears 
 to have been substantially this. In consideration of 
 the defendant being appointed to the command of a 
 ship, he had contracted to pay the plaintiff a sum of 
 money, part of which only was paid, owing to a new 
 agreement having been made, and the names of the 
 parties taken oiF the original contract. It was in- 
 sisted that this amounted to a release at law, and that 
 the defendant was therefore not bound to answer the 
 bUl. Lord Thurlow overruled the plea. " The rea- 
 son," he observed, " for permitting a plea in bar to 
 the relief, is to prevent the going into the whole 
 cause, by that which, if it stood per se, would put an 
 end to it; but where the bill is for discovery, the 
 cause ends with the answer. Then the whole remedy 
 being, upon the face of the transaction, at law, the 
 question is, whether you shall by the plea bring the 
 whole merits on here. If he had prayed relief, it 
 would have been demurrable ; and now you say he 
 
 (j) Gait V. Osbalduton, 1 Euss. 158. 
 
 (r) 2 Bro. C. C. 7. 
 
 («) Mendizaiel v. Macliado, 4 Sim. 172. 
 
44 ACTIONS FOR DISCOVERY. 
 
 shall not have a discorery, because his relief is at 
 law. This is a case where he has no election, — he 
 must sue at law. The dry question is this, whether 
 there is any objection in natural justice to a defend- 
 ant giving a discovery, in order to found a relief at 
 law. Where the bill is for relief, the discovery is 
 merely ancillary to the relief; therefore, if the de- 
 fendant can show, without going further, that there 
 is one point which will bar the relief, the court will 
 first look into that point. The court there takes the 
 plea as the first method of getting at that justice 
 which the subject has a right to obtain. Where the 
 remedy is legal, to let the defendant refuse the dis- 
 covery is putting matters out of their train ; for the 
 court can ultimately do nothing as to the remedy. 
 If the bill be for equitable relief, and the plea be ' 
 overruled, the defendant has this objection, that the 
 court has put him to a great expense in going 
 through a cause when he had brought it to a point 
 which ought to have decided it in his favour. In 
 the same case, if the remedy is at law, he has only 
 to complaia that he has been put to the expense and 
 trouble of putting in a longer answer. As to the 
 expense of the copy and answer, that the court ex- 
 empts him from ; for the moment the answer comes 
 in, he must be paid all the expense he has been at ; 
 and as to the trouble, the court cannot relieve him 
 from that :'' therefore, " I think myself founded in 
 declaring, that, when the bill is for discovery leading 
 to relief at law, the plaintiff cannot plead in bar here to 
 the discovery, what will be a bar to the relief there." 
 There is another and older case which also illus- 
 
WANT OF INTEREST OF PLAINTIFF. 45 
 
 trates this proposition. A bill sought a discovery 
 to prove trover and conversion. The defendant 
 pleaded "not guiltj." Here was a perfect legal 
 plea; but to have admitted it to bar the discovery- 
 would clearly have negatived the jurisdiction of the 
 Court of Chancery (t). On the other hand, it is 
 submitted that the decision of Lord Thurlow is no 
 authority for the proposition that a legal bar cannot 
 be pleaded to discovery. In the case of Hindman 
 V. Taylor it would have been scarcely possible for 
 the court to have decided that none of the facts 
 alleged in the bill, if they had been confessed by 
 the defendant, could have afforded the plaintiff 
 material evidence on the trial of the issue which 
 the plea must have raised (m). 
 
 At the present day it would seem immaterial 
 whether the defence to an action for discovery were 
 legal or equitable. It would now be tried on its 
 own merits. 
 
 The biU of discovery in equity might have 
 averred that an action had already been brought, 
 or it might have shown that the plaintiff had a 
 right to bring an action. 
 
 Where an action had been brought, and the 
 record in equity showed that some issue had been 
 taken at law, the plea in equity was a good defence 
 to the discovery of any matters collateral to the 
 
 {t) Martin t. Hampton, Choyse Ca. Ch. 123. 
 
 («) Uhi svp. See also Ulendizaiel ». Machado, 1 Sim. 68; 
 Mobertson v. Lubl)oclt,i Sim. 161, 172; King of Spain v. Hnllett, 
 cited Hid. 
 
46 ACTIONS FOE DISCOVERY. 
 
 evidence required to support the issue at law. If 
 the question to be tried at law involved the entire 
 merits of the case, equity would give a discovery of 
 every particular which would afford evidence to sup- 
 port the case of the plaintiff in the bill («). 
 
 "Where the bill was brought before any action 
 had been commenced, upon a state of facts showing 
 a legal right, there was some additional difficulty in 
 sustaining a plea. This difficulty resulted from the 
 circumstance that the subject was not brought to so 
 definite a point. There is the same difficulty now. 
 It may not perhaps with certainty be ascertained 
 what questions may arise on the trial which ■ is 
 contemplated, or what questions may be excluded. 
 Instead, therefore, of merely insisting that the evi- 
 dence sought cannot be necessary upon a certain 
 issue raised between the parties, it would seem that 
 the defendant must be prepared to contend that it 
 cannot be necessary upon any issue which can 
 possibly arise out of the facts stated. 
 
 Assuming the plea to be a good one in bar of the 
 plaintiff's claim, and that no charge appears in the 
 plaintiff's pleadings of any matter which would be 
 evidence adverse to the defendant, or useful to the' 
 plaintiff, upon the trial of the issue which it raises, the 
 discovery may be refused without inconvenience. If 
 there are any facts specially charged, which, if con- 
 fessed or proved, would be evidence upon the trial 
 of that issue, such facts must be answered (a-). 
 
 (v) Ante, p. 22. 
 («) Ante, p. 32. 
 
■WANT OF INTEREST OE PLAINTIFF. 47 
 
 When there are any allegations in the claim of 
 matter which would ayoid the effect of the plea in 
 bar, it cannot be pretended that the plea should 
 protect the defendant from discovery touching such 
 matter. The extent of the discovery which a plea 
 in bar wiU in such cases cover, when the action is 
 for relief, has already been considered («/). The 
 same principle is applicable to an action for dis- 
 covery merely (;). 
 
 The foregoing principles seem to be the resiilt of 
 the decisions upon this subject. In conformity with 
 the view here taken of the qualities which are essen- 
 tial to a plea in bar to discovery, it wiU be found 
 that this protection has been successfully urged where 
 the plea showed an unquestionable defence to an 
 action founded upon the matters alleged in the bill 
 of discovery; for instance, where the Statutes of 
 Limitation have been pleaded (a). 
 
 The case of a purchaser for valuable consideration 
 without notice, which is examined elsewhere, rests 
 upon a different principle. 
 
 (3^) Ante, p. 27. 
 
 (z) CorTi T. WilcocTt, 5 Mad. 328. 
 
 (a) Jones v. Pengree, 6 Ves. 580; Bayley T. Adams, G^Ves. 
 586; BailUey. Sibbald, 15 Ves. 185; Corh v. Wilcoel, 5 Mad. 328; 
 McGregor t. East India Co., 2 Sim. 452; Scott v. Broadwood, 2 
 Coll. 447; Cron T. Tyrrell, 2 Mad. 409; Stat. 32 Hen. 8. Argaments 
 to the contrary have frequently been founded on cases for relief. 
 
48 ACTIONS FOR DISCOVERY. 
 
 CHAPTEE II. 
 
 OP PROTECTION FROM DISCOVERT ON THE GROUND 
 THAT THE DEFENDANT HAS NO INTEREST IN 
 THE SUBJECT. 
 
 — •— 
 
 Section 1. 
 
 Of the Interest of the Defendant in Actions for 
 Relief. 
 
 The necessity which was found in the last chapter of 
 distinguishing between the cases where the objection 
 to discovery was taken by demurrer, or offered by 
 means of a plea in bar, does not occur in considering 
 the present protection. The propriety and effect of 
 a plea or of a demurrer are here to be determined 
 by the ordinary rules of pleading. Some peculiar 
 difficulties, however, belong to this ground of objec- 
 tion to discovery, but these wiU require to be exa- 
 mined in another place (a). 
 
 It was said by Lord Redesdale, that unless a de- 
 fendant had some interest in the subject he might be 
 examined as a witness, and, therefore, could not in 
 general be made a defendant to a biU of discovery ; 
 for such a bill could only be to gain evidence, and 
 the answer of one defendant could not be read 
 
 (a) Part IV. 
 
"WANT OF INTEREST OF DEFENDANT. 49 
 
 •against any other person, not even against another 
 defendant to the same bill (5). 
 
 The question whether a party may be examined 
 as a witness is not decisive of the propriety of making 
 him a defendant to an action for relief. He may be 
 brought before the court in some character necessary 
 to substantiate the action, that there may be proper 
 parties to it (c). It will not be sufficient to object 
 to discovery in such a case that he might be exa- 
 mined as a witness. 
 
 It would be beside the purpose of these observa- 
 tions to enter into an inquiry of the interests which 
 must be represented in actions for relief. It will be 
 sufficient to observe that the question seems to be 
 whether the party has any interest to convey, give 
 up, or receive ; or, if not, whether he stands in such 
 a position that all the court can demand is his tes- 
 timony in the cause between the plaintiff and de- 
 fendant («/) ; for, if that be his situation, he is clearly 
 an improper party to the action. 
 
 (*) Mitford, Plead. 188; and see pp. 160, 234, 235, 283; Taylor 
 on- Evidence, § 684, the reason being that, as there was no issue 
 between them, no opportunity could be afforded for cross-examina- 
 tion; and therefore a party might make a friend of his a co- 
 defendant. An answer might, however, have been read after notice 
 had been given to that effect; see Ryiott t. Barrell, 2 Eden, 131, 
 answers of arbitrators; Mulling v. Symmons, Bunb. 196; Bowyer 
 V. Pritcliard, 11 Price, 103, of defendants in an interpleadiug suit ; 
 Morse v. Royal, 12 Ves. 355, of a trustee against whom a personal 
 decree is not songht. Daniell'a Chancery Practice, 725, 1058. 
 
 (c) Order XVI.; Daniell's Chancery Practice, Chap. IV. 
 
 (iZ) Per Lord Eldou, Dummer v. Corporation of Chippenliam, 
 14 Ves. 245. 
 
 H. D 
 
50 actions fok discovert. 
 
 Section 2. 
 
 Of Relief against some Defendants, and Discovery 
 
 against Others in the same Action. 
 
 To a bill for relief in Chancery there could pro- 
 perly be no defendant who might not be affected by 
 the judgment of the court with respect to the subject- 
 matter in dispute (e), or against whom some parti- 
 cular decree was not prayed (/) ; or else a demurrer 
 by such defendant would lie (cf). 
 
 Arbitrators, solicitors {h), agents (i), and others 
 have been sometimes made parties, although they 
 had no interest to convey, give up, or receive {j). 
 These parties might, by their conduct in respect to 
 the subject, have incurred liabilities rendering them 
 interested in the issue of the action. In aU those 
 cases in which a person without interest in a parti- 
 cular question has been made a party, it has been 
 done because there has been a charge against him, 
 not respecting the question, but respecting the 
 
 (e) Bummer v. Corporation of Chippenham, 14 Ves. 245. 
 
 (/) Le Texier v. Margravine of Anspach, 15 Ves. 159; Barron 
 V. Orillari, 3 Ves. & B. 165; Wooti r. Hiteldngs, 3 Beav. 504. 
 
 (^) Ibid.; Smith v. Snow, 3 Mad. 10; Irving t. Thompson, 
 9 Sim. 17. 
 
 (Ji) Beadles v. Burcli, 10 Sim. 332. 
 
 (i) Bullteley t. Bunbar, 1 Anst. 37. 
 
 {J) Mitford, Plead. 160; Bummer v. Corporation of Chippen- 
 ham, 14 Ves. 245, trustees; Padley v. Lincoln Waterworks Co., 
 2 Mac. & G. 68; Hamilton t. Bankin, 3 De G. & Sm. 782, arbi- 
 trators ; Gilbert T. Lewis, 1 De G., J. & S. 38, bankrupt ; see Mar- 
 shall \. Sladden, 7 Hare, 428, 441, trustee; Cutis v. Tliodey, 13 
 Sim. 206, auctioneer. 
 
"WANT OF INTEREST OF DEFENDANT. 51 
 
 cause (A). ^Yhere an award was impeached on the 
 ground of gross misconduct in the arbitrators, they 
 were ordered to pay costs (/) ; and where attornies 
 have been involved in the fraud of their principals, 
 though a reconveyance or other relief could not be 
 prayed against them, yet rather than that the 
 plaintiff should not have his costs, the court has 
 decreed them to be paid by the agent implicated. 
 It was necessary to sustain a bill against them that 
 the plaintiff should pray that such defendants might 
 be decreed to pay the costs {m) ; and it would seem 
 that only in such cases could such parties be made 
 defendants (n). s 
 
 Lord Eldon remarked that there had been cases 
 upon bills for relief in which persons in the situation 
 of agents had answered as defendants, and where it 
 would have been very difficult to say that any relief 
 could have been prayed against them, unless it were 
 founded upon their having had some interest, as 
 holding deposits, which would frequently entitle a 
 plaintiff to a'decree against them(o). 
 
 (A) Day y. DraJte, 3 Sim. 64, 70, per Alexander, C.'B. 
 
 (?) Mitford, Plead. 161 ; Lingood v. Orouclier, 2 Atk. 395; adcot 
 T. Lequesne, 2 Ves. 315; Lord Lonsdale t. Littledale, 2 Ves. jun. 
 451, 453; Samilton v. JBanhin, 3 De G. & Sm. 782, bill dismissed 
 with costs ; Outts T. Tliodey, 13 Sim. 206, auctioneer. 
 
 (m) Bowles ». Stewart, 1 Sch. & L. 209, 227; Bennet t. Vade, 
 2 Atk. 324; Le Texier y. Margravine of Anspach, 15 Ves. 169; 
 Baiter y. Loader, L. K., 16 Eq. 49. 
 
 (re) Mitford, Plead. 160; Qoodman y. Sayers, 2 Jac. & W. 249, 
 264 ; FenmicTi y. Reed, 1 Mer. 114 ; Innes y. Mitchell, 4 Drew. 
 57, 97; Atmood v. Small, 6 CI. & F. 232, 352. 
 
 (») Fenton y. Svghes, 7 Ves. 287, 289; Bardy y. Caley, 33 
 Bear. 365, intermeddling with trust property. 
 
 d2 
 
52 ACTIONS FOR DISCOVEET. 
 
 An attorney or agent has occasionally been made 
 a defendant on the ground of his possession of docu- 
 ments belonging to the plaintiff, and refusal to pro- 
 duce them, the bill praying a delivery (o). It was 
 unusual, and generally improper, to make an attorney 
 a party to a bill seeking a discovery and produc- 
 tion of title deeds, merely because he had them in his 
 custody; for the possession of the agent is the posses- 
 sion of the principal (/<): but cases have arisen to 
 render such a proceeding advisable, and in such a 
 case the relief sought by the prayer for deHvery has 
 been held sufficient to support the bill against such 
 a defendant (§'). 
 
 The inconvenience that might arise from the absence 
 of any effectual means of procuring all the material 
 evidence in the possession of a person who was not a 
 party to the action, and yet was hostile to the party 
 who stood in need of his evidence, pressed strongly 
 upon the Court of Chancery. This was not the 
 ground for a bill of discovery, and the question 
 seemed to be whether it afforded a foundation for a 
 bin for relief. 
 
 In a case in the Exchequer, to a bill filed by a 
 rector against an occupier of lands for an account of 
 tithes, the landlord was made a defendant ; the bill 
 praying relief against him, and charging that he was 
 acting in concert with the other defendant. The 
 
 (o) Fenmich v. Reed, 1 Mer. 114; Le Texier t. Margravine of 
 Ampach, 15 Ves. 159; Bay t. Drake, 3 Sim. 6i, 70, 72. 
 
 {p) Att.-Gen. v. Earl of Chesterfield, 18 Beav. 596. But see 
 Bond T. Nortliover, 1 Y. & C. 231, solicitor haying lien. 
 
 (2) Fenmich v. Reed, 1 Mer. 114, 123. 
 
"WANT OF INTEREST OF DEFENDANT. 53 
 
 object was to obtain production of material docu- 
 ments in his possession. A general demurrer first, 
 and then a demurrer accompanied by an answer, 
 were overruled ; the answer admitting interest in the 
 question, but not in the suit. It was held, that the 
 defendant was bound to make a discovery of docu- 
 ments in his possession relating to the question of a 
 modus (r). 
 
 Lord Eldon .also remarked, that it was against 
 conscience for a defendant, having an interest in the 
 question, to withhold evidence which would support 
 the case of the plaintiff («). 
 
 It is now provided that " the plaintiff may unite 
 in the same action and in the same statement of claim 
 several causes of action, &c." 
 
 And, " all persons may be joined as defendants 
 against whom the right to any relief is alleged to 
 exist, &c." 
 
 Again, "it shall not be necessary that every 
 defendant to an action shall be interested as to all 
 the reKef thereby prayed for, &c."(<). 
 
 Section 3. 
 Of the Rule that a Party who is a mere Witness 
 cannot he made a Defendant in an Action of 
 Discovery. 
 
 A subscribing witness to a wiU was made a de- 
 fendant to a bill by the heir to discover the circum- 
 
 (r) Day t. Bralte, 3 Sim. 64. 
 («) Fenton t. Hughes, 7 Ves. 287. 
 (i) Order XVH. 1; Order XVI. 3, i. 
 
54 ACTIONS FOE DISCOVERY. 
 
 stances attending the execution, and there was a 
 charge that the defendant claimed an interest. The 
 demurrer of the defendant, supported by a disclaimer, 
 was overruled as informal ; but it was held that any 
 witness might defend himself from such a bill by 
 pleading, and supporting his plea by an answer (m). 
 " The principle," said Lord Hardwicke, " is right, 
 that you cannot make one a defendant to a bill who is 
 merely a witness, in order to have a discovery of 
 what he can say to the matter, though he is properly 
 examinable as a witness. If that were barely the 
 present case, I should at once allow the demurrer. 
 But, as against a party interested, the plaintiff is 
 entitled to have a discovery ; and it is not his being 
 made a witness that will prevent this discovery." 
 
 The reason assigned for the rule is the mischief of 
 enabling one party to discover what will be the testi- 
 mony of a witness for the other, thereby affording 
 him an opportunity of collecting evidence to en- 
 counter and contradict it (u). The observation of 
 Lord Hardwicke seems to extend no farther than 
 this, that the circumstance of a party being a sub- 
 scribing witness to a will which was impeached was 
 not of itself a ground for demurrer to a bill imputing 
 to that witness a participation in the fraud. 
 
 Lord Eldon, commenting on the case, observed 
 
 (w) Plummer y. May, 1 Vea. 426. See Tooth v. Dean and 
 Chapter of Canterbury, 3 Sim. 49 ; Som v. Best, 6 Mad. 19 ; 
 Saunders v. Saunders, 3 Drew. 387; Dinely r. Binely, 2 Atk. 394; 
 Fenton v. Hughes, 7 Ves. 287 ; Bummer v. Corporation of 
 ClnppenTiam, 14 Ves. 245. 
 
 («) Plummer v. May, 1 Ves. 427. 
 
WANT OF INTEREST OF DEFENDANT. 55 
 
 that there was a charge that the party had an 
 interest; and it may be collected from the last 
 passage in the judgment, that it was not a mere 
 charge of interest, but such species of interest that 
 at the hearing there might have been a decree for 
 an accoimt against him ; and his lordship added, 
 " as to that case, I can only say, unless it was upon a 
 bill for relief, I do not know how to understand 
 it " (x). 
 
 The proposition that against a party interested the 
 plaintiff is entitled to have a discovery applied, in its 
 iiiU extent, to no other than bills of relief (7/ ). 
 
 Where it was sought to obtain a discovery and 
 account from a married woman as agent for her 
 husband, in a biU filed against both, the demurrer of 
 the wife was allowed (z). Nor is the case of a bank- 
 rupt an exception to the general rule («). 
 
 Section 4. 
 
 Of the Exception to the foregoing Rule in the case 
 of an Officer or Member of a Corporation. 
 
 This exception is explained by a decision of Lord 
 Talbot on a bill against the East India Company, 
 where one of the officers of the company was made 
 
 (a;) Fentan v. Hughes, 7 Ves. 287, 290. 
 (y) Ibid. 290; Queen of Portugal v. Glyn, 7 CI. & F. 466. 
 (p) Le Teiciery. Margravine of Anspaok, 15 Ves. 159; Barron 
 y. Gillard, 3 Ves. & B. 165, discovery only. 
 (a) Post, p. 59. 
 
56 ACTIONS FOK DISCOVERY. 
 
 a defendant in order to discover some entries and 
 books of that corporation. It was urged, in support 
 of a demurrer, that the defendant had no interest in 
 the subject ; that his answer would be no evidence 
 against the company; that there could be no decree 
 against him ; and that the plaintiff might examine 
 him as a witness. Upon the same principle, it was 
 said, the plaintiff might make the servant of any 
 private person a defendant (c). 
 
 It was held, that there was a difference between 
 the case of a private person and that of a corpora- 
 tion ; for the latter could only answer under their 
 common seal, and therefore could not be indicted for 
 perjury though they answered never so falsely ; and 
 that the discovery so obtained might be useful to 
 direct the plaintiff in drawing interrogatories for 
 obtaining a more complete discovery. The usual 
 practice of the period was also said to be to act in 
 this manner; although it was admitted to be a 
 stretch of the authority of the court to prevent a 
 failure of justice (rf). 
 
 The rule of procedure is : " If any party to an 
 action be a body corporate or a joint stock company, 
 whether incorporated or not, or any other body of per- 
 sons, empowered by law to sue or be sued, whether in 
 its own name or in the name of any oiEcer or other 
 person, any opposite party may apply at chambers for 
 
 (c) WycJi. V. Meal, 3 P. Wms. 310. 
 
 ((Z) Ibid. ; Gibbons v. Waterloo Bridge Co., 5 Price, 491 clerk- 
 Kingsford y. Great Western Mail. Co., 16 C. B. (N. S.) 761 
 benefit of discovery. 
 
WANT OF INTEREST OF DEFENDANT. 57 
 
 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 " (e). 
 
 Partnerships come within this rule {/). 
 
 The member, or officer, having admitted the ex- 
 istence of documents, the opposite party may give 
 the corporation, or body, notice to produce them. 
 
 It has been held that a director, or public officer, 
 does not cease to be liable to be called upon to make 
 a discovery by the fact that the company has ceased 
 to carry on business (ff). But the attorney upon the 
 record is not an officer for this purpose {h). 
 
 The principle extends to trustees of public 
 charities. A master of a free school filed a biU 
 against the corporation of a borough, who were 
 trustees of the charity, alleging misconduct, and 
 praying an answer from the defendants individually. 
 The latter demurred for want of title to discovery 
 against them. Lord Eldon overruled the demurrer, 
 saying : " The question upon this case is whether 
 the court can entertain a bill against these indi- 
 
 (f ) Order XXXI. 4 ; IflntosJi v. Great Western Sail. Co., 2 De 
 G. & Sm. 758, engineer and secretary; Olasoott v. Copper Mines 
 Co., 11 Sim. 305, members; Att.-Gen. v. Corporation of London, 
 12 Bear. 8, ofBcer of corporation ; Banger v. Great Western Rail. 
 Co., 4 De G. & J. 74, officer; Climcli, v. Financial Corporation, 
 L. R., 2 Eq. 271, directors and secretary; Pepper v. Hengell, 2 
 Hem. & M. 486, insolvent secretary. 
 
 (/) Order XVI. 10; Order XXXI. 4. 
 
 (g) Sail T. Connell, 3 Y. & C. 707; Madrid, Banlt Limited v. 
 Bayley, 36 L. J. (Q. B.) 15. 
 
 (A) Brown v. Thames and Mersey Marine 2ns. Co., 43 L. J. 
 (C. P.) 112. 
 
 !D 5 
 
58 ACTIONS rOE DISCOVEEY, 
 
 viduals, as parties, to obtain a discovery whether, 
 through their means, manifested as stated in the bill, 
 there was such an abuse of the discretion vested in 
 the corporation as trustees as this court will reform." 
 " A trustee of either description, a corporation, or 
 an individual, cannot be permitted to act corruptly 
 in the execution of the trust." " If such a trans- 
 action as this can take place, and there is no 
 remedy, the consequence is inevitable that every 
 corporation, a trustee for charitable purposes, wiU 
 have the power of eluding entirely the jurisdiction 
 over charitable subjects " (z). 
 
 The ground of inconvenience upon which the 
 exception to the general rule is admitted cannot, it 
 is evident, apply to cases where the corporation and 
 its members are indifferent in point of interest. 
 Where an officer of the Bank of England was made 
 a party to a suit for the purpose of a discovery as to 
 the times when the stock in question in the cause 
 had been transferred, his demurrer was allowed : the 
 officer being in this case merely a witness (j). When 
 the bank itself was made a party, although it had 
 no interest, and no relief was prayed against it, 
 merely for the purpose of discovery, its demurrer 
 was allowed (A). 
 
 (i) Summer v. Corporation of Chippenham, 14 Ves. 246. 
 
 (J) Horn V. Best, 5 Mad. 19. 
 
 (/j) Saunders v. Saunders, 3 Drew. 387. As to discovery from 
 the Bank of England, see 39 & 40 Geo. 3, t. 36, ss. 1, 2. See 
 Temple v. £anh of England, 6 Ves. 770; Moss v. Shearer, 5 Mad. 
 458; Gladstone t. MuswnsSey, 1 Hem. & M. 495, bills to restrain 
 transfer of stock; Hammond v. Neame, 1 Swans. 35; Gould v. 
 Kemp, 2 Myl. & K. 304; Perkins v. Bradley, 1 Hare, 219, costs. 
 
WANT OF INTEREST OF DEFENDANT. 59 
 
 The rule does not apply to actions by foreign 
 governments ; but if there is no proper officer before 
 the court from whom discovery may be obtained, the 
 action may be stayed (I). 
 
 Section 5. 
 
 Of Discovery from a Bankrupt or a Party who has 
 assigned his Interest. 
 
 Though a bankrupt, made a party to an action 
 against his trustee in bankruptcy concerning his 
 estate, may demur to the rehef, if his bankruptcy is 
 apparent on the record {m\ or plead, if it is not {n), 
 all his interest being vested in his trustee ; yet, if 
 any discovery is sought of his acts before he became 
 a bankrupt, he must answer for the sake of discovery, 
 and to assist the plaintiff in obtaining evidence. His 
 answer, however, cannot be read against his trustee, 
 imless he adopts it — otherwise, by means of collusion, 
 the bankrupt might entirely defeat the ends of 
 justice (o). Bankruptcy does not, of course, affect a 
 person in his representative capacity (/>). 
 
 {V) United States of America t. Wagner, L. E., 2 Ch. 582; 
 Coluvibia Governments. Bothschild, 1 Sim. 94; United States of 
 America v. Prioleau, L. R., 2 Eq. 659. 
 
 (ot) Whitmortli t. JOavies, 1 Ves. & B. 546. 
 
 («) Lane v. Smith, 14 Beav. 49. 
 
 (e) Mitford, Plead. 161; Cfilbert v. Lenns, 1 De G., J. & S. 38; 
 Mod -7. Herring, 1 Enss. & M. 153; Glaufurd v. Jajfrey , ii\te.A. 
 
 1 Ves. & B. 546. 
 
 (^) Bainlrigge t. Slair, 1 Beav. 495; Pepper v. Eemell, 
 
 2 Hem. & M. 486; Lewin on Trusts, 6th ed. 209. 
 
60 ACTIONS FOR DISCOVERT. 
 
 When fraud or collusion is charged between the 
 bankrupt and his trustee, the bankrupt may be made 
 a part jj and then he cannot demur (q). 
 
 A bankrupt could not be made a party, with his 
 assignees, to a bill for discovery only, for the purpose 
 of defending an action at law brought by the as- 
 signees against the plaintiff (r). The only question 
 which remaias is, whether a bankrupt can be made 
 a party to an action for relief against his trustee, 
 praying merely a discovery against him. On this 
 point Sir Thomas Plumer said: " The case of Fenton 
 V. Hughes (s) lays down a broad principle that would 
 exclude this bankrupt from being a party : viz., that 
 a person who has no interest, and is a mere witness, 
 against whom there could be no relief, ought not to 
 be a party," " and the cases of exception mentioned 
 by the Lord Chancellor do not comprehend him " (<). 
 
 It has been thought that a bankrupt might still 
 be a party to a bill for an injunction against his 
 assignees, for the purpose of discovery in support 
 of the injunction. In a case before Sir Thomas 
 Plumer, counsel in court stated this to be the re- 
 ceived practice although no instance could be found 
 to support it; and the Vice-Chancellor admitted 
 its convenience, but remarked that it was difficult 
 to see how the bankrupt's answer could be read 
 against his assignees for the purpose of an injmic- 
 
 (5') King v. Martin, 2 Ves. jun. 641. 
 
 (r) Griffin t. Archer, 2 Anst. 478; contra, Slw-rpey. Gammon, 
 2 Vera. 32. 
 (s) 7 Ves. 289. 
 (f) WliAtmoHK V. Bavii, 1 Ves. & B. 545, 548. 
 
WANT OF INTEREST OF DEFENDANT. 61 
 
 tion, when it could not be read against them at the 
 hearing (m). There does not seem, however, to be 
 any authority for extending to a bankrupt a principle 
 which is imiformly regarded as a stretch of the court 
 to prevent a failure of justice (x). 
 
 If a claim charges the bankrupt with acts of fiaud, 
 which, if proved to be true, would entitle the plaintiff 
 to a decree against him, the bankrupt cannot demur; 
 for, notwithstanding the bar by the bankruptcy, the 
 charges of fraud must be answered (y). 
 
 A bankrupt has been permitted to file a bill in 
 aid of his defence against a creditor who sued him 
 at law(^) — but his trustee may be a necessary 
 party (a); and to commence a suit with the permis- 
 sion of the Court of Bankruptcy {b). 
 
 The examination of a bankrupt before the Court 
 of Bankruptcy has been protected from production ( e). 
 
 Upon the same principle Lord Eedesdale adds(rf), 
 that where a person, having had an interest in the 
 subject of a bill, has assigned that interest, he may 
 yet be compelled to answer with respect to his own 
 acts before the assignment. 
 
 (ji) WliitKorth T. Davis, 1 Yes. & B. 545, 548. 
 
 {x) Ante, p. 56. 
 
 (y) Lloyd v. Lander, 5 Mad. 282, 291; King t. Martin, 2 Ves. 
 Jnn. 641; S. C, cited 1 Vea. & B. 549; see Gilbert t. Lewis, 
 1 De G., J. & S. 38. 
 
 (z) Lonmdes t. Taylor, 1 Mad. 423. But see Kaye v. Foslirooke, 
 8 Sim. 28. 
 
 (a) Balls v. Strutt, 1 Hare, 146; Gomt y. Armitage, 2 Anst. 412. 
 
 (J>) Payne t. JHcher, L. E., 6 Ch. 578. 
 
 (c) Gandee t. Stansfeld, 4 De G. & J. 1. 
 
 (<f) Mitford, Plead. 161; Cliambers r. Goldwin, 9 Ves. 254, 268, 
 intermediate mortgage. 
 
62 ACTIONS FOR DISCOVERY. 
 
 CHAPTER III. ■ 
 
 OF DISCOVERY BY A PURCHASER FOR VALUABLE 
 CONSIDERATION WITHOUT NOTICE. 
 
 Section 1. 
 
 Of the General Rule. 
 
 If the title of the defendant was equal in conscience 
 to the title of the plaintiff, equity, which looked to 
 the conscientious ohligations of the parties, would 
 not interpose to compel a discovery {a). It is under 
 this principle that a purchaser for a valuable con- 
 sideration without notice of any claim upon the 
 estate may defend his possession, and refuse to make 
 any disclosure which may endanger it ; for he may, 
 subsequent to his purchase, have found out a defect 
 in his title, and if he should produce his title deeds 
 they may be made use of to overturn his title at 
 law (J). 
 
 It can hardly appear upon the statement of claim 
 that the defendant is in such a situation ; and there- 
 fore the benefit of this protection must generally be 
 taken by pleading it. But, if the case should be so 
 
 (a) Mitford, Plead. 135, 274; Sngden, V. & P., 14th ed. Chap. 
 
 XXIII. 
 
 (J) Aieri/ v. Williams, 1 Vem. 27; Anon. v. Anon., 3 Atk. 
 302; Att.-Gen. v. Strvtt, 3 Bear. 396; Greenwood v. Rothwell, 7 
 Bear. 291; Bunt v. Mmes, 27 Beav. 62. 
 
PUECHASEE FOE VALtlE. 63 
 
 stated, the defendant may demur ; because the case 
 would appear to be one in wbich a court ought not 
 to assume jurisdiction. 
 
 It is the province of a work more directly on the 
 subject of pleading to treat of the form of this plea, 
 and the averments which are necessary (c) ; and it 
 would be needlessly extending the present inquiry 
 to enumerate the cases in which it is a valid defence 
 to relief. In conformity with the plan adopted here, 
 it will suffice to observe that, if this plea be oflFered to 
 an action for relief, the discovery must depend upon 
 the title to relief (e?). If, at the same time, there is 
 a discovery sought of matters which the plea does 
 not cover, the case faUs within the rules which have 
 been considered with respect to accompanying or 
 supporting the plea by an answer (e). If there are 
 no facts charged in the claim as evidence of notice, 
 or inconsistent with the substantial validity of the 
 plea, the general denial of. notice by the plea is 
 sufficient, and an accompanying discovery is unneces- 
 sary (/). 
 
 Section 2. 
 
 Of Discovery of Deeds by a Purchaser not entitled 
 
 to Possession of the Estate. 
 
 If the plaintiff, at the death of a tenant for life, 
 
 entered into possession of an estate to which he was 
 
 (c) Mitford, Plead. 274. 
 
 (d) Ante, p. 7. 
 
 (e) Ante, p. 22. 
 
 (/) Pennington v. BeecJiy, 2 Sim. & S. 282; Neesovi v. Clarli- 
 son, Coop. P. C. 93, constructive notice. 
 
64 ACTIONS FOB DISCOVERY. 
 
 entitled in remainder, and the defendant held the 
 title deeds of the same by virtue of a mortgage made 
 by the tenant for life for a period exceeding his life 
 estate in duration, having deceived the defendant by 
 a suppression of the deed which vrould have shown 
 his real interest, a question was raised whether, 
 assuming that the defendant could not use the deeds 
 to recover the estate, he should be allowed to retain 
 them to the vexation and mischief of the plaintiff, 
 and without profit to himself. Lord Rosslyn held 
 that, as by law the defendant could not hold the 
 deeds, it was against all conscience to refuse to 
 describe that which the plaintiff, by the admission 
 of the defendant, had a right to recover. " It by no 
 means follows," he said, " that every species of deed 
 that may be in his possession should be directed by 
 this court to be delivered up, but it would be ex- 
 tremely pernicious to permit him to close his mouth 
 and to refuse any account whatsoever. Suppose 
 counterparts of leases were delivered to the defendant. 
 They are of no value except to the actual owner, not 
 so much as a clear sMn of parchment. So surveys, 
 maps, rent-roUs of a manor are of no intrinsic value. 
 They are of value to the owner of the estate of 
 which they are the muniments, and the enjoyment 
 of which is carried on by means of them." " It 
 ought to be considered what these title deeds may 
 be. If there are none of which the defendant can 
 make any advantage, he is, without any beneficial 
 interest or profit to himself, retaining what may be 
 a profit and advantage to the plaintiff." " Till the 
 discovery is made it is impossible to know whether 
 
PURCHASER FOR TALUE. 65 
 
 any relief can be given ; therefore the proper order 
 will be that the plea shall be overruled as to the dis- 
 covery, and shall stand for an ansvrer, with liberty 
 to except" (^). 
 
 The foregoing decision was, after much considera- 
 tion, overruled by Lord Eldon. "The bill," his 
 lordship observed, " is filed by a person having got 
 possession. If the principle is that the court will 
 not stir against a purchaser for valuable considera- 
 tion without notice, what are the rights of the son, 
 tenant in tail, when his father's life estate determines? 
 His legal rights are that he shall have possession of 
 the estate. I do not know what I am entitled to say 
 of the title deeds; but that he shall recover in trover 
 the value of the deeds; or in detinue, in which the 
 judgment is for the deeds or their value. But, with- 
 out attending to the imperfection of the law in such 
 actions, which is probably the ground of the jurisdic- 
 tion here for the specific delivery of the thing, I will 
 suppose the right at law to be the specific delivery. 
 It is true he is not seeking in equity to recover 
 possession of the estate, but he is seeking to recover 
 something which he cannot recover at law, the value 
 of which non constat he can recover at law without 
 the discovery of the deeds. Is it of necessity, then, 
 that this court must hold, as against a purchaser for 
 valuable consideration without notice, that, if the 
 possession of the estate has been got fi:om him, the 
 possession of the deeds shall be taken out of his 
 hands by this court, and thrown in to the person 
 
 (#) Strode t. Blacliburne, 3 Ves. 222. 
 
66 ACTIONS FOR DISCOVERT. 
 
 who has got from him the possession of the estate ? 
 Is it not worth consideration, whether the very 
 principle of this plea is not this: — ' I have honestly 
 and bond fide paid for this, in order to make myself 
 the owner of it, and you shall have no information 
 from me as to the perfection or imperfection of my 
 title, until you deliver me from the peril in which 
 you state I have placed myself in the article of 
 purchasing bondfide.^ Is it not worth consideration 
 whether every plea of purchase for valuable con- 
 sideration without notice does not admit that the 
 defendant has no title ? If he has a good title, why 
 not discover ? I apprehend there is sufficient ground 
 for saying, a man who has honestly dealt for valuable 
 consideration without notice shall not be called upon, 
 by confessions wrung from his conscience to say he 
 has missed his object in the extent in which he 
 meant to acquire it. I doubt, therefore, the argu- 
 ment calling upon the court to presume that this 
 man can bring no ejectment; that, if he did, he 
 could not recover; that he has not now the legal 
 fee; that he has not some term vested in him; that 
 he may not be able to procure either; and presum- 
 ing that, at the hazard of preventing him from doing 
 that very thing, if he is at this moment engaged in 
 the endeavour to do it. The possession of the deeds, 
 at least, is a thing purchased with the estate; and if 
 it happens that the purchase misses its object to this 
 extent, that the purchaser has had the possession 
 taken from him without the assistance of this court, 
 is there a clear principle that therefore the possession 
 of the deeds shall, with the assistance of the court. 
 
PURCHASER FOR VALUE. 67 
 
 be recovered by that person who has so obtained the 
 possession of the estate ? I am not sure that follows 
 as a sound principle of equity, if the principle be 
 that, against a purchaser for valuable consideration 
 without notice, this coiurt gives no assistance" (A). 
 The plea was allowed. 
 
 Section 3. 
 Of Disclosure in the Plea. 
 
 The extent to which the "defendant must disclose 
 his purchase deeds in this plea has been the subject 
 of some difference of opinion. This is distinct from 
 the doctrines of discovery. It is the form of the 
 defence. The purpose of considering it in this 
 treatise is to contrast the nature of the discovery 
 which takes place under this plea, with a view to 
 defence solely, and the discovery which is ordered 
 with a view to evidence, where the ground of resist- 
 ance is that the evidence relates to the title of the 
 defendant exclusively ( i). 
 
 This plea was formerly held to extend to the dis- 
 covery of the purchase deeds ; but it has been since 
 thought that these must be necessarily excepted, for 
 they are pleaded. It is clear, however, that the 
 deeds of purchase must be stated, and their dates, 
 parties, and contents, briefly set forth (A). 
 
 {Ti) Walwyn t. Lee, 9 Ves. 24. 
 
 (i) Part III., Chap. IV. EVIDENCE or Opponent. 
 
 (Ji) Sngden, V. & P., 14th ed. 788, and cases quoted. 
 
68 ACTIONS FOB DISCOVERY. 
 
 Whether the time of execution should be expressed 
 has been doubted; but it seems that this particular 
 must appear (/). 
 
 The consideration it was at one time held unne- 
 cessary to set out, but at present this is always done ; 
 and it is observed, in Lord St. Leonards' work, that 
 " there can be no objection to state the consideration, 
 as, if it is valuable, the plea will not be invalidated 
 by mere inadequacy. The question is not whether 
 the consideration is adequate, but whether it is valu- 
 able. For if it be such a consideration as will not be 
 deemed fraudulent within the statute 27 Elizabeth, or 
 is not merely nominal, or the purchase such a one as 
 would hinder a puisne purchaser from overturning it, 
 it ought not to be impeached in equity" (m). 
 
 In ordinary cases it is presumed that the plaintiff 
 would have no right to the production of the pur- 
 chase deeds before trial (n). 
 
 This plea necessarily requires the discovery of 
 matters which would show the quantity of the land, 
 or subject-matter in question, over which the plea 
 substantially extends. It is usual to set out the 
 parcels as they are specified in the purchase deed(o). 
 " A jointress," said Lord Hardwicke, " ought to 
 produce her jointure deed, and a purchaser his pur- 
 chase deed, that it may be seen whether the lands 
 
 (l) Sugden, V. & P., 14th ed. 788, and cases cited, 
 (m) Ibid. p. 789, and cases cited. 
 
 («) Kennedy \. Green, 6 Sim. 6 ; but see Hunt t. Elmei, 
 27 Beav. 62. 
 
 (o) Chamberlain v. Knapp, 1 Atk. 52; Beames on Pleas, 343. 
 
PURCHASER FOR VALUE. 69 
 
 they claim are comprised in their deeds" (jo); and 
 where the discovery was sought of specific chattels 
 against a pawnbroker, to found an action of trover, a 
 plea was overruled which did not put in issue the fact 
 that the defendant held the property specified in the 
 plea, and no other of the property alleged to have 
 been pawned i^q). A purchaser is not bound to dis- 
 cover the specific things in his possession, for that 
 may be as injurious as the disclosure of his title ; 
 but if the defendant were not compelled to state, 
 affirmatively or negatively, what he has so purchased 
 hondjide, it would be impossible to assign the extent 
 of the protection to be allowed to the defendant, or 
 of the relief to be given to the plaintifil 
 
 Lord Eosslyn put the case of a mortgage made by 
 the owner of an estate, partly settled, partly un- 
 settled, the boundaries of which had been confounded 
 during the possession of that owner. " If a person 
 entitled imder the settlement filed a bill to compel 
 the mortgagee to set out, not the title by which he 
 claims, but the metes and bounds of the estate sub- 
 ject to his mortgage, no plea would go to the extent 
 of that discovery " (r). 
 
 There is here an ambiguity in the meaning of the 
 words, " subject to his mortgage ; '' for the very 
 question in that case was the right of the mortgagee 
 to protect himself by plea from affording informa- 
 tion which would enable the plaintifip to wrest from 
 him the deeds which he held. His lien upon the 
 
 {2>) Aston V. Aston, 3 Atk. 302. 
 
 (j) Hoarev. Parker, IBvo.C.C. 578; Mitford, Plead. 277, n. («). 
 
 (r) Strode v. Blackburne, 3 Vea. 222, 225. 
 
70 ACTIONS FOE DISCOVERY. 
 
 mortgaged premises had failed ; the question arose 
 whether anything remained subject to his mortgage, 
 and therefore covered by his plea. Lord Rosslyn's 
 conclusion was, that nothing so remained. If, in the 
 supposed case, the mortgagee be taken to be out of 
 possession, it may be presumed that the expression 
 was confined to the unsettled estate ; and then it 
 impHes an opinion that the defendant must, in such 
 circumstances, give every discovery required to dis- 
 tinguish its boundaries. 
 
 This reasoning is justly questioned in the argu- 
 ment for the plea in Walwyn v. Lee (s). If, it 
 was said, the owner of a settled estate had con- 
 founded it with an unsettled estate, and mortgaged 
 both to a person without any notice, and the person 
 claiming the settled estate could not get on with any 
 process without having the boundaries ascertained, 
 the mortgagee could not be compelled to say any- 
 thing, upon the common principle, having taken it 
 as au unsettled estate. If, however. Lord Eosslyn 
 within the terms " subject to his mortgage" com- 
 prehended the whole estate which the mortgagor 
 assumed to convey, the proposition is undeniable. 
 
 Section 4. 
 Of this Plea opposed to a Legal Title. 
 It follows fi:om the principle which has been stated, 
 that the plea of purchase for a valuable consideration, 
 
 (») 9 Vea. 24, 26. 
 
PUECHASEE FOE VALUE. 7 1 
 
 bondjide, and without notice of any imperfection in 
 the title taken, wUl be equally good, whether the 
 action be for relief or discovery. Upon this point 
 some observations seem important ; for doubts have 
 been suggested whether the plea will avail against a 
 legal title. 
 
 The first occasion on which the question arose 
 was the case of Basset v. Nosworthy (t), heard 
 by Lord Xottingham. It was that of a bill of dis- 
 covery filed by an heir against a purchaser claiming 
 under a conveyance irom the devisees of the plaintiffs 
 ancestor. The plaintiff alleged that the will had 
 been revoked. The defendant raised the plea now 
 under consideration. The plea was allowed, and the 
 bin dismissed. In a later case Lord Nottingham's 
 decision was to a contrary effect (m). In the one 
 case he said that the plea was good against a legal 
 title — in the other, he held that the defendant must 
 answer when the plaintiff has a title at law, but that 
 he may plead where he has only a title in equity. 
 
 In Hoare v. Parker (x) the bill was filed, in aid 
 of an action of trover, against a pawnbroker for the 
 discovery of the particular pieces of plate which had 
 been pavmed by the person to whom they had been 
 bequeathed for life. Lord Thurlow then expressed 
 no doubt that a purchaser for value without notice 
 might in conscience refuse to assist the right owner 
 
 (t) Finch, 102. See also Jerrard v. Saunders, 2 Ves. jnn. 454; 
 Att.-Gen. t. Wilson, 17 Beav. 285; Lane v. Jackson, 20 Bear. 535; 
 Phillips T. Phillips, 3 Giff. 200; and S. C, 8 Jur., N. S. 145. 
 
 («) Rogers v. Seale, 2 Freeman, 83. 
 
 (») 1 Bro. C. C. 578. 
 
72 ACTIONS FOE DISCOVERY". 
 
 in the legal recovery of a subject purchased under 
 such circumstances. 
 
 But, upon a biU by a dowress {y), he is generally 
 supposed to have held that, where the plaintiff pur- 
 sued a legal title, the plea did not apply ; it being 
 only a bar to an equitable claim. And Sir John 
 Leach, following this decision, " and the general 
 principle of equity," was of opinion that the defence 
 was of no avail against a legal title {z). 
 
 Lord Eldon, on. the other hand, overruled the 
 decision of Lord Rosslyn in Strode v. Blackburne{a), 
 and admitted the plea in the case of Walwyn v. 
 Lee(b), expressly referring to the legal rights of the 
 plaintiff, and asking if it was not worth consideration 
 whether every such plea does not admit that the 
 defendant has no title. 
 
 That the plea was generally a good defence to a 
 legal title may be assumed upon the latter authorities. 
 But whether it is so in every case may be doubted. 
 
 The judgment in the case of Williams v. Lambe{c), 
 as explained by the arguments of the counsel for the 
 defendants in the case of Collins v. Archer (d), is 
 perfectly consistent with later cases. Taken as 
 authorities against the validity of this plea to a legal 
 title, these two cases decided that, where the courts 
 of equity and common law had concurrent jurisdlc- 
 
 (y) Williams t. Lamhe, 3 Bro. C. C. 264. 
 
 («) Collins V. Archer, 1 Euss. & Myl. 284, 392. 
 
 (a) 3 Vea. 222. 
 
 (ft) 9 Vc3. 24. 
 
 (e) 3 Bro. C. C. 264. 
 
 Id) 1 Buss. & Myl. 284, 290. 
 
PUKCHASEK FOR VALUE. 73 
 
 tion, if the plaintiff preferred to come into equity, 
 the latter com-t would not have allowed this plea to 
 discovery, the only effect of which would have been 
 not to interpose any principle for the defendant's 
 protection, but merely to exclude its own process. 
 This is a very different thing from refiising the 
 benefit of the plea where the relief sought was purely 
 equitable, or where the court was called upon to 
 compel the defendant to make disclosures that might 
 have exposed his title at law. 
 
 Where the plaintiff had a certain legal remedy, 
 which, for the sake of convenience, was administered 
 in a court of equity, that court would not refuse to 
 exercise its jurisdiction for discovery because the de- 
 fendant was a pui-chaser for valuable consideration. 
 The judgment of Lord Thurlow is consistent with 
 this distinction. He said : " The jurisdiction of this 
 court in assigning, dower is founded on a pure legal 
 title of the dowress (so pure that it does not attach 
 upon the equitable estate), which this court can give 
 effect to with a greater degree of convenience than 
 can be had before a jury on a writ of dower" (e). 
 And the bill in the case before Sir John Leach (/), 
 which sought an account of tithes, fell strictly within 
 the same line of reasoning. To this weight of au- 
 thority the imperfectly reported case of Rogers v. 
 Seale {g), taken in connection with the other deci- 
 
 (c) Williams v. Lamhe, .S Bro. C. C. 26i, Mr. Cox's note of the 
 judgment. 
 
 (/) Collins V. Arclier, 1 Kuss. & Myl. 284. 
 (g) 2 Freeman, 83. 
 
74 ACTIONS FOE DISCOVERY. 
 
 sions of Lord Nottingham, can scarcely be deemed^ 
 an adverse authority (A). 
 
 The question might again arise, now that the juris- 
 diction of all the courts is concurrent, and upon equit- 
 able principles, whether, if a plaintiff came iato court 
 upon a matter which was formerly within the con- 
 current jurisdiction of the Court of Chancery for 
 discovery only, the plea of a purchase for valuable 
 consideration without notice could be sustained. 
 
 (7i) See Lord St. Leonards' account of his own judgment in Lane 
 V. Jaclison, 20 Beav. 535, on appeal, apparently not reported, 
 Sugden, V. & P., 14th ed. 796. 
 
( ^5 ) 
 
 CHAPTER IV. 
 
 OF THE EFFECT OF A WANT OF PRIVITY. 
 
 A WANT of privity between the plaintiff and de- 
 fendant has been made the subject of a section of 
 Lord Redesdale's treatise, where it is stated as a 
 sufficient defence to a bill in equitj, whether taken 
 by demurrer (a), or plea (S), to relief (c), or to dis- 
 covery merely (d). On this head of defence it may 
 be observed that, while on the one hand a case would 
 scarcely occur in which it is exclusively applicable, 
 there seems, on the other hand, great difficulty in 
 assigning to the term "privity" such a definite 
 meaning as could afford any fixed and certain guide 
 to the draftsman (e). The existence of privity may 
 be a matter of ready solution between persons stand- 
 ing in certain relations to each other ; but it cannot 
 be made a necessary ingredient in the case of a com- 
 plainant in a court of justice, without extending its 
 signification so widely as to comprehend all cases in 
 which a suit can be sustained, and then the terra is 
 
 (a) Mitford, Plead. 158. 
 (*) Ibid. 234. 
 
 (c) Ibid. 158, 234. 
 
 (d) Ibid. 189. 
 
 (e) Ibid. 160, n. (n). 
 
 e2 
 
76 ACTIONS FOR DISCOVERY. 
 
 superfluous; or affixing some narrower definition 
 founded upon technical reasoning, which must after 
 all be inconclusive. 
 
 In support of this ground of defence is adduced 
 the case of a biU by a person claiming to be lord of 
 a manor against another person also claiming to be 
 lord of the same manor ; and ^praying (amongst 
 other things) a discovery how the defendant derived 
 title to the manor, when a demurrer was allowed be- 
 cause the plaintiff had shown no right to the dis^ 
 covery (y). And another case, of a bUl filed by a 
 person claiming, under a grant from the Diichy 
 of Lancaster, to be bailiff of a liberty within the 
 duchy — ^with a right to aU waifs, estrays and other 
 casualties within the liberty, and to aU fees and per- 
 quisites respecting the same — against the owner of 
 an inn in the liberty and his tenants ; alleging that 
 the inn yard had been used as a common pound 
 within the liberty for all waifs, strays and casualties, 
 and that the tenant under demise from the owner 
 had taken all such waifs, strays and other casualties, 
 a,nd received the fees and perquisites thereon ; and 
 requiring the owner to discover how he derived title 
 thereto : where also a demurrer to the discovery was 
 allowed (jg). Thep is little doubt but that these 
 were bills praying some kind of relief. In the judg- 
 ment of Lord Redesdale in the case of Devonsher v. 
 
 (/) Mitford, Plead. 189, citing Adderley v. Sparrow, itself 
 cited Devonsher v. Newenham, 2 Sch. & L. ] 99. 
 (?) Mitford, Plead. 190. 
 
WANT OF PKIVITT. 77 
 
 Newenham (A), lie observes that the same point was 
 decided in Adderley v. Sparroio as in Welby v. 
 Duke of Rutland, which was that a bill for establish- 
 ing a legal title cannot be supported before the title 
 has been tried and determined at law. This is a 
 specific ground of defence, which is not aided by, 
 and does not require the aid of, the principle to which 
 the case is referred in the treatise on pleading. 
 
 It has been observed, that a case wiU scarcely 
 occur in which a defendant can insist upon this 
 ground of protection, and upon no other. If an 
 action for discovery is brought with a view to future 
 proceedings, an objection falling within Lord Redes- 
 dale's definition must, it is presumed, rest on the 
 ground that the intending action in aid of which the 
 discovery is sought will not lie ; for if the action can 
 be supported, that fact must either negative the 
 want of privity, or the want of privity can be no 
 objection. If discovery is sought with a view -to 
 defence against some threatened proceedings, the 
 plaintiff in such proceedings could certainly not in- 
 sist that there is no privity between himself and the 
 defendant. 
 
 In a collection of precedents founded upon Lord 
 Kedesdale's treatise, a form is given of a demurrer to 
 a bill filed by an owner of lands, asserted to be tithe 
 free, for discovery of the title of the lay impropriator 
 to the tithes of the parish within which such lands 
 are situated. This form of demurrer insists that the 
 
 (A) 2 Sch. & L. 199, 209, 
 
78 ACTIONS FOR DISCOVKEY, 
 
 plaintiff has not by his bill shown any such right 
 or title as entitles -him to the discoveiy thereby 
 sought (z). The cases cited as authorities for this 
 form seem to show that no such general demurrer to 
 all discovery can be sustained. In Glegg v. Legh (It), 
 which was a cross bill for discovery in a tithe suit, 
 the defendant did not rely on such a defence, but 
 answered part of the bill, and demurred to so much 
 as sought particular discoveries of his title ; and the 
 order protected the defendant from the discovery of 
 his title and his title deeds, but no further. 
 
 The objection to discovery for want of privity 
 between the parties, if it be good, may be an objec- 
 tion to the entire action ; or it may be that such a 
 privity exists to support one interrogatory, while it 
 fails as to another. The objection, that the discovery 
 sought is of that which is exclusively evidence for 
 the defendant, may extend to more or less of the 
 claim, according to circumstances. It is true that 
 where the title of the defendant is not in privity, 
 but inconsistent, with the title made by the plaintiff, 
 it often happens that the defendant is not bound to 
 discover the evidence of the title under wliich he 
 claims (Z); but the existence, or non-existence, of 
 privity is not the criterion. In the cases cited in 
 Lord Redesdale's treatise and elsewhere on the same 
 point, the question was whether the matter or writings 
 
 (*■) Willis's Prec. PI. 474. 
 
 (h) 4 Mad. 193. 
 
 (J.) Mitford, Plead. 190. 
 
WANT OF PRIVITY. 79 
 
 of which a discovery was sought constituted the 
 evidence of the defendant's title, or might be evidence 
 for the plaintiff. It may therefore be concluded that, 
 so far at least as this ground of objection extends to 
 discovery, it properly belongs to the class of objec- 
 tions considered in the next part; and that it depends 
 upon the principle that the defendant is not boimd 
 to disclose the evidence of his title. 
 
80 ACTIONS FOE DISCOVERY. 
 
 CHAPTEE V. 
 
 OF THE PURPOSES FOR WHICH JURISDICTION FOE 
 DISCOVERY IS GIVEN. 
 
 Section 1. 
 
 Of the Rule that Discovery is given only in aid of 
 
 some Trial. 
 DiSCfOVEEY is not given for the mere gratification 
 of curiosity. Its object is to administer to the ends 
 of justice, without pronouncing any decision iipon 
 the rights of the parties (a), by putting a plaintiff, 
 who appears to have a legal or equitable right, in 
 possession of that evidence which is necessary to 
 make that right available (S). For this purpose 
 either party to an action may compel his opponent 
 to confess or deny upon oath his knowledge of the 
 facts alleged which tend to sustain the case of the 
 party seeking the discovery. This right is given 
 either because the party cannot otherwise prove the 
 facts, or in aid of proof, and to avoid expense (c). 
 
 {a) Mitford, Plead. 148. 
 
 ( h) 2 Fonblanque, Tr. Eq. 487, n. (/). 
 
 (c) Mitford, Plead. 307; Brereton t. Gannel, 2 Atk. 241; 
 Milnery. Lord Haremood, 17 Ves. 144, where Lord Eldon supposes 
 that it were necessary to prove a conversation between the plaintiff 
 and defendant, no other person being present; Mendes v. Barnard, 
 cited Dick. 654; Standen v. Bullock, Tot. 9. 
 
JURISDICTION. 81 
 
 In the earlier times, discovery could only have 
 been obtained in aid of some action already com- 
 menced; and it was even necessary to allege that 
 the action could not be carried on without the dis- 
 covery sought. Subsequently, it was given when 
 an action was only in contemplation (rf). At the 
 present day, an interest in the subject-matter seems 
 to be aJl that is necessary to support a discovery 
 action. That interest must, it would appear, be 
 sufficient to support an action; and the discovery 
 must have been withheld. If no such interest ap- 
 pears in the plaintiff's claim, the action cannot be 
 sustained (e). 
 
 * 
 
 Section 2. 
 
 Of Discovery after Verdict, 
 
 " "UTiere there is no trial to be had, there can be 
 no discovery to be sought; and if a verdict had 
 passed simpKciter without more, a bill then filed for 
 discovery might be demurred to, for there could be 
 no discovery any more than as to a matter not at 
 issue" (_/). It is not the province of discovery to 
 relieve against the consequences of mispleading, or 
 of indiscreetly conducting an action (^). 
 
 (rf) Mitford, Plead. 186; Cardale \. Watkins, 5 Mad. 18; Att.- 
 Gen. V. Rosii, 8 Price, 190, 205; Finch \. Finch, 2 Ves. 491; Mayor 
 of London v. Levy, 8 Ves. 398, 405. 
 
 (e) Olover r. Hall, 2 Phil. 484, 492, explaining Latimer v. 
 Neate, 4 CI. & F. 570; Att.-Gen. t. Thompson, 8 Hare, 106, 112; 
 these, however, were upon bills for relief. 
 
 (/) Per Eichards, B., Whitmore v. Thornton, 3 Price, 241, 248. 
 
 (y) See Protlieroe y. Forman, 2 Swans. 227, 232. 
 E 5 
 
82 ACTIONS FOR DISCOVERY. 
 
 Interrogatories may be delivered "at any time, 
 by leave of the com-t or a judge" (A); but it is sub- 
 mitted that it would require a very special case to be 
 made out before discovery after trial would be per- 
 mitted with a view to further litigation. Interest^ 
 reipublicce ut sit finis litium. 
 
 The circumstance that a rule was pending to show 
 cause why there should not be a new trial was held 
 not sufficient of itself to sustain a bill of discovery. 
 "Are we," said Richatds, B., " to order a conditional 
 injunction, in case the rule should be made absolute, 
 with the alternative that it shall stand dissolved if 
 the rule should be discharged ? " " If a defendant in 
 an action at law submits to go to trial without filing 
 a bill in equity for discovery of evidence, and after 
 verdict against him attempts to obtain that discovery 
 as a ground for a hew trial, the court of equity will 
 not countenance such a proceeding where there is no 
 fraud in the conduct of "the plaintiff at law"(i). 
 
 If there should have been, in the conduct of either 
 of -the parties during the action, a violation of the 
 duties which the court may regard as arising from 
 the relation between them, an action of discovery 
 may be brought against the offender after verdict. 
 
 In an action of trespass, the question was whether 
 the locus in quo passed in a certain demise. Pre- 
 .viously to the trial the plaintiff in equity gave notice 
 to the defendant to produce rent rolls and other 
 documents; but they were not produced, and that 
 
 (A) Order XXXI. 1. 
 
 (i) WUtmore v. Thornton, 3 Price, 248; Mitford, Plead. 132. 
 
JUEISDICTION. 83 
 
 defendant obtained a verdict. A new trial was, 
 however, ordered, owing to the rejection of other 
 e-^adence which the plaintiff had tendered. A bill 
 for discovery and production of the papers was then 
 filed, and an injunction prayed to stay trial. " On 
 the motion for a new trial," Lord Eldon observed, 
 " I cannot think that the Court of King's Bench 
 would be influenced by the production or non-pro- 
 duction of the documents; they would have said 
 only that other measures should have been adopted 
 to enforce production; but, on the ground that the 
 judge rejected evidence which he ought to have 
 received and laid before the jury, that court granted 
 a new trial. Now, without referring to the case in 
 the Exchequer (A), I entertain no doubt that after 
 the trial, with proper and apt charges, a bill might 
 have been filed in this court to compel the produc- 
 tion of these documents, to which a demurrer would 
 not have been allowed." " Considering," he added, 
 "the mutual obligations of landlord and tenant, 
 this is a different case, and a biU might have been 
 sustained in this court for relief or for discovery. 
 Then, it is said, that pending the application for a 
 new trial no one could have advised the defendant at 
 law to file a biU. Now, in my opinion, the attempt 
 to obtain a new trial, after being foiled in compelling 
 the production of these documents, was a reason for 
 filing a biU; and I think there was negligence in 
 this respect, though I am far fi-om imputing blame 
 
 (k) Whitmore t. Thornton, 3 Price, 241. 
 
84 ACTIONS FOE DISCOVERY. 
 
 to any one" (Z). In this case the defendant under- 
 took to produce the documents on bath at the trial, 
 and the motion was dismissed. 
 
 Interrogatories as to accounts have been allowed 
 after verdict and pending appeal (m). 
 
 Section 3. 
 
 Of Discovery after Judgment in aid of Execution, 
 
 There are some early cases which appear opposed 
 to the rule, which has been stated in the preceding 
 sections, that a discovery wiU. only be given to be 
 used as evidence at a trial. "Where certainty 
 wanteth, the common law faileth, but yet help is to 
 found in chancery for it ; for if the; queen grant to 
 me the goods of A., who is attainted of felony, and 
 I know not the certainty of them, yet shall I compel 
 any man to whose possession any of them are come, 
 to make inventory of them here " (w). " The demurrer 
 of an outlaw to a bill for the discovery of his real 
 and personal estate was overiniled; for it was held 
 that the protector was entitled to the estate by course 
 of law, and that a common person may have dis- 
 covery to enable him to take out execution " (o). 
 The cases which are cited in support of a juris- 
 
 (l) Field V. Beaumont, I Swans. 204, 209. With regard to bills 
 of relief after trial, see Mitford, Plead. 131; Lord PoHsmoitth v. 
 Zord Effingliam, 1 Ves. 435. 
 
 (m) Saxly T. Eastcrlroolt, 41 L. J. (Ex.) 113. 
 
 (■») Cai7, 21. 
 
 (o) Protector v. Lord Lximley, Hard. 22. 
 
JUEismcTiON. 85 
 
 ■diction of this nature seem to be chiefly bills for 
 relief raising a diiferent and substantive equity. In 
 Mountford v. Taylor (p), where the plaintiff had 
 sued out writs of eleffit, and brought his bill for a 
 discovery of the freehold estates, the general right of 
 the creditor to a discovery, in order to make his 
 judgment available, was admitted by the counsel for 
 the defendant; and Lord Eldon, who observes that 
 in point of principle the case was equal in importance 
 to any that had come before the court, yet seems to 
 proceed on the defendant's admission (q).. 
 
 Interrogatories afl;er decree for the purpose of 
 ascertaining how the property in dispute had been 
 managed have been allowed (r). 
 
 Where a plaintiff brought an action in this country 
 upon a foreign judgment, it was held, on the ground 
 that the judgment could not be questioned here, that 
 the defendant was not entitled to a discovery in aid 
 of his defence (s). 
 
 Section 4. 
 
 Of the Proceedings in aid of which Discovery is given. 
 
 A discovery wiU only be given in aid of proceed- 
 ings which relate to civil rights. "A bill of dis- 
 covery," said Lord Hardwicke, "lies here in aid of 
 
 (;)) 6 Ves. 788. 
 
 (j) Smithies T. LeKU,\Yera.S,%9; Angell f. Draper, Jbid. 399; 
 2 Fonblanqne, 484 ; Kennedy v. Wakefield, 39 L. J. (N. S.) Ch. 827; 
 Sanalip T. Kitton, 1 De G., J. & S. 440. 
 
 (r) Small t. Atmood, 2 Y. & C. 105. 
 
 («) Martin t. Nicolls, 3 Sim. 458, 
 
86 ACTIONS FOE DISCOVEKT. 
 
 some proceedings in this court in order to deliver 
 the party from the necessity of procuring evidence, 
 or to aid the proceeding in some suit, relating to a 
 civil right in a court of common law, as an action ; 
 but not to aid the prosecution of an indictment, or 
 an information, or to aid the defence to it. It is 
 said, this is a mandamus to compel the holding of a 
 court; but this court has nothing to do to aid the 
 discovery upon that"(i). 
 
 It is no objection that the action proceeds ex 
 delicto. " No such limitation of the jurisdiction as 
 to discovery is hinted at in any book of practice, or 
 by the dictum of any judge. Courts of equity exer- 
 cise a direct jurisdiction in matters of waste and 
 public nuisance which are ex delicto ; I am not 
 therefore prepared to say that a court of equity will 
 refuse its ordinary aid to the parties to any action at 
 law proceeding from a civil remedy " (m). The same 
 principle was affirmed by Lord Eldon (a:). And 
 generally there seems to be no civil right the trial of 
 which will not be aided by means of discovery (y). 
 
 It was observed by Lord Eldon that, in the 
 Exchequer, it was the practice of underwriters, 
 when policies of insurance where found to be affected 
 with gross frauds, to bring the assured into courtj 
 and compel them to answer, by pleading frauds which 
 
 (i) Lord Montague v. Dudman, 2 Ves. 396, 398. 
 
 («) Per Sir John Leach, Thorpe v. Macavlay, 5 Mad. 218, 230; 
 Wilmot V. Maccabe, 4 Sim. 263; K I. Co. v. Evans, 1 Vem. 305; 
 
 (») Macavlay v. Sliakel, 1 Bligh, N. S. 96. 
 
 (y) Vavghan t. Aldridge, Forrest, 42, breach of promise of 
 marriage; Young v. Burrell, Gary, 65. 
 
JURISDICTION. 87 
 
 ■veoiild have been indictable {z). The discovery can- 
 not be averted by exculpatory affidavits. " There 
 is no man," said Lord Eldon, " who does not know 
 that to answer a great many questions put to him 
 is not quite so easy an operation as to make an affi- 
 davit stating what he is pleased to state, without 
 having any questions asked of him" (a). 
 
 An action for damages having been brought 
 against the author of a libel, a bill was filed for the 
 discovery of evidence in support of a plea of justifi- 
 cation. It was objected that the bill admitted the 
 authorship of the libel ; that, whether true or false, 
 it was an indictable offence, and that the plaintiff, 
 therefore, by his own showing, came into court to 
 protect himself against the consequences of his crime. 
 But it was held that, if the plaintiff at law thought 
 fit to treat the conduct of the defendant as a civil 
 injury only, it was but just that the same course 
 should be open to him which was open to other 
 defendants in civil suits. The court could only con- 
 sider it as an alleged libel ; and whatever might be 
 the nature or character of such an alleged libel, the 
 court must assist the plea of justification (b). 
 
 A discovery will not be given in aid of an action 
 which is contrary to public policy (c), or upon a con- 
 tract which is immoral (rf). But where the action is 
 
 (z) Maeaulay v. SUaltel, 1 Bligh, N. S. 96, 133. 
 
 (a) Ibid. 132. 
 
 (J) Ibid. 134. Part III. Chap. I., Peualty or FoUpbitUbb. 
 
 (c) King v. Bvrr, 3 Mer. 693; Srooks v. Bradley, 2 Cha. Ca., 
 in prejudice of the king's charter. 
 
 (d) Franco v. Bolton, 3 Ves. 368. 
 
88 ACTIONS FOE DISCOVERT. 
 
 merely for discovery, it may perhaps be doubtM 
 how far any objection on these grounds could be 
 sustained, if they did not also constitute an objection 
 at law ; and in that case the defence rests iipon a 
 principle which has been considered elsewhere (e). 
 
 So also is the question of the time at which disco- 
 very will be ordered (/). 
 
 Section 5. 
 Of the Courts in aid of which Discovery is given. 
 
 If the action in aid of which the discovery is 
 sought is depending in the court itself, the jurisdic- 
 tion is already affirmed. And although no action 
 for relief is depending, the courts wiU. nevertheless 
 entertain an action for discovery only if a sufficient 
 interest is shown by the plaintiff It therefore only 
 remains to consider the cases in which discovery may 
 be sought in aid of some trial in another court. 
 
 The jurisdiction of the Court of Chancery in com- 
 pelling discovery was exercised " to assist the admi- 
 nistration of justice in the court itself or in some 
 other court" (^). 
 
 The authorities with regard to this subject are 
 few. If the court in which the trial was to be had 
 could itself compel the discovery required, equity 
 
 <c) Ante, p. 37; Benyon v. Nettlefold, 3 Mac & G. 94 ; Ellice 
 V. Bmpell, 32 Beav. 299. 
 (/) Part III. Chap. II., Immateriality. 
 (g) Mitford, Plead. 186. 
 
JUKISDICTION. 89 
 
 yrovid not interfere (A). On this ground a disco- 
 very to be used in the ecclesiastical courts has been 
 denied (i). 
 
 It has been' said that discovery would not be given 
 in aid of inferior courts (A); nor would the Court of • 
 Chancery be made, ia this manner, ancillary to the 
 determinations of arbitrators (?). 
 
 As the defendant cannot be compelled to answer 
 on oath before the Queen in council, it has been held 
 that discovery should be given in aid of that juris- 
 diction (m). It has also been given to aid the juris- 
 diction of a foreign court; but where it did not 
 appear that the foreign court itself could not have 
 obtained discovery by its own process, discovery was 
 refused (n). 
 
 In bankruptcy proceedings, the discovery of the 
 bankrupt's estate is provided for by the Bankruptcy 
 Act, 1869 (o). 
 
 (A) Mitford, Plead. 186. But see Morris t. Du&e of NorfolTi, 9 
 Sim. 472, proceediDgs under Tithe CommntationAct; Lovell y.Oal- 
 lomay, 17 Beav. 1, in aid of action at law after C. L. P. Act, 1852. 
 
 (i) Ihinn r. Coates, 1 Atk. 288. 
 
 (i) Mitford, Plead. 53 ; Harl of Berly y. Buhe ofAthol, 1 Ves. 
 201. 
 
 {I) Wellington v. M'Intosh, 2 Atk. 569; Street v. Migly, 6 Ves. 
 821 ; bnt see British Empire Shipping Co. Limited y. Soames, 
 3 Kay & J. 433, compnlsory reference. 
 
 (ot) Earl ofBeriy v. Bvhe of Athol, 1 Ves. 201. 
 
 (re) Bent v. Yowng, 9 Sim. 180. 
 
 (o) 32 & 33 Vict. e. 71, ss. 96, 97. 
 
'90 ACTIONS FOE DISCOVERY. 
 
 CHAPTER VI. 
 
 or OBJECTIONS TO THE PERSON OF THE PLAINTIFF 
 IN AN ACTION FOE DISCOVERT. 
 
 " If a plaintiff is not entitled to sue by reason of 
 any personal disability which is apparent on the bill 
 the defendant may demur. Therefore, if an infant, 
 a, married woman, an idiot or a lunatic, exhibiting a 
 bill, appear on the face of it to be thus incapable of 
 instituting a suit alone, and no next friend or com- 
 mittee is named in the bill, the defendant may 
 demur ; but if the incapacity does not appear upon 
 the face of the biU the defendant must take advantage 
 of it by plea. This objection extends to the whole 
 bill, and advantage may be taken of it as weljl in the 
 case of a bill for discovery merely as in the case of 
 a bill for relief. For the defendant in a bill for dis- 
 covery merely, being always entitled to costs after a 
 ftdl answer as a matter of cdtif se, would be materially 
 injured by being compelled to answer a bill exhibited 
 by persons whose property is not in their ovm dis- 
 posal, and who are therefore incapable of paying the 
 costs" (a). A defendant, it is said, may "plead 
 that the plaintiff is outlawed, excommunicated, at- 
 
 («) Mitford, Plead. 153. 
 
OBJECTION TO PERSON OF PLAINTIFF. 91 
 
 fainted, or an alien enemy" (S), thereby traversing 
 the right of the plaintiff to caU. for a discovery. 
 
 If the plaintiff in an action for rehef requires the 
 discovery, it is presumed the question would alw.ays 
 be whether the action could be maintained by him ; 
 and if that were the case, he would be entitled to 
 discovery as a right (c). If, o^^ing to a personal 
 disability, he cannot prosecute his action, and cannot 
 amend (d), the discovery would be nugatory. 
 
 "Where the plea is that of " alien enemy," although 
 the discovery would be nugatory with reference to 
 the courts of justice in these dominions, there is yet 
 another objection. The discovery might be used as 
 evidence in foreign courts, within the jurisdiction of 
 which British subjects may have property ; and the 
 principle which excludes the Queen's enemies from 
 the benefits of her courts would then be overcome (e). 
 
 If the defendant in an action for relief reqiiires the 
 discovery in aid of his defence, there do not seem to 
 be any cases in which a plea merely to the person 
 could be a defence to discovery. 
 
 It has been decided in the Exchequer that the 
 plea of alien enemy would not hold in the latter case, 
 upon the principle that if an alien may be sued, as 
 he would be allowed process to compel the attendance 
 of his witnesses, so he should have a discovery for 
 the same purpose (_/). This reasoning seems to 
 
 (J) Beames on Pleas, 254. 
 
 (c) Order XXXI. 1. 
 
 (d) Order XXVIL 1, 2; Order XIX. 13. 
 
 (e) Cooper, Plead. 191, 293. 
 
 (/) AlbrecU v. Suuman, 2 V. & B. 323; Mitford, Plead. 229, 
 and cases cited. 
 
92 ACTIONS FOK DISCOVERT. 
 
 proceed upon a just view of the nature of discoveryt 
 and is in conformity with several decisions in which 
 the court has held defendants entitled to discovery 
 in eiid of their defence, to whom no assistance might 
 have been afforded if they had appeared in the 
 character of plaintiffs, seeking to sustain an action (^)» 
 The rules of procedure provide that : — " Married 
 women and infants may respectively sue as plain- 
 tiffs by their next friends, in the ' manner prac- 
 tised in the Court of Chancery before the passing 
 of this act ; and infants may, in like manner, defend 
 any action by their guardians appointed for that 
 purpose. Married women may also, by the leave of 
 the court or a judge, sue or defend without their 
 husbands and without a next friend, on giving such 
 security (if any) for costs as the court or a judge 
 piay require" (A). 
 
 (g) Daiiligny v. Davallon, 2 Anst. 462 ; Lowndes v. Taylor, 
 1 Mad. 423. 
 (A) Order XVI. 8. 
 
( 93 ) 
 
 CHAPTER VII. 
 
 OF PAETIES TO ACTIONS FOE DISCOVERY. 
 
 A DEMUEEEE to an action for discovery merely will 
 not hold for Avant of parties, for the plaintiff seeks 
 no decree (a). 
 
 A bill complained of the infringement of a patent, 
 and liberty was given to bring an action to try its 
 validity. The plaintiff in the action which was 
 brought for this purpose was a trustee to whom the 
 property in the patent had been assigned. The 
 defendants filed a bill against him for a discovery 
 and production of papers in aid of their defence. 
 The plaintiff answered the bUl; but resisted a motion 
 which was made before Lord Langdale for the pro- 
 duction of certain documents referred to in the 
 schedule. The Vice-ChanceUor was of opinion that, 
 as the motion was in reality against th6 cestuis que 
 trustent, production could not be directed unless 
 they were parties. An appeal motion was con- 
 sequently made before the Lord Chancellor; and, 
 to obviate objection on the ground of parties, was 
 intituled in both causes : the cestuis que trustent 
 being plaintiffs in the original bill. Lord Lyndhurst 
 held that, with regard to the motion, the parties 
 
 (a) Mitford, Plead. 200, 280 j Sangoza v. E. I. Co., 2 Eq. Ca., 
 Ab. 170. 
 
94 ACTIONS FOK DISCOVERY. 
 
 stood in the situation they would have occupied if 
 the original suit had not existed. The action had 
 been brought by the trustee having the legal title, 
 with the concurrence of the parties beneficially in- 
 terested, and for their benefit. It was not possible 
 for them to be plaintiffs in the action ; nor was it 
 possible that they could be made defendants to the 
 bill of discovery — for that bill could be filed against 
 none other than the plaintiff in the action. The 
 trustee was under the same obligation to produce 
 the documentary evidence sought as if he possessed 
 both legal and beneficial interests. And its produc- 
 tion was accordingly ordered (6). 
 
 There are cases in which a party who appears to 
 be, or admits that he is, a trustee in respect of docu- 
 ments would not be ordered to produce them unless 
 the cestui que trust were before the court ; but these 
 are upon questions of' relief, and are dependent upon 
 different principles (c). 
 
 In The Queen of Portugal v. Glyn {d) it was 
 decided by the House of Lords, upon a review of all 
 the authorities on the subject, that a bilt of discovery 
 cannot be supported against a person who, although 
 he may have an interest in the matter in dispute, is 
 not a party to the record. An order for production 
 of documents was, in another case, refused against 
 
 (ft) Gwppy V. Few, Few v. Guppy, 1 Myl. & Cr. 487, and 8. C. 
 13 Beav. 437; bat the cestui que trust mast be represented, Ford 
 V. Dolphin,, 1 Drew. 222. 
 
 (c) Lamhert T. Rogers, 2 Mer. 489; bnt see Balls v. Margrave 
 4 Bear. 119. 
 
 (^d) 7 CI & F. 466, and cases cited. 
 
PAETIES. 95 
 
 parties similarly situated (e). Lord Langdale, how- 
 ever, ordered production where the parties interested 
 were members of the same club, although some of 
 them only had been made defendants as represen- 
 tatives (/). And a party has been ordered to pro- 
 duce documents in his possession though belonging 
 to a person not a party (^). 
 
 "Where a bill of discovery was met by a plea, and 
 a wise was directed to try the question raised by the 
 plea, a motion in the meantime to amend the bill by 
 adding other parties as plaintiifs was refused. " With 
 regard to the question of form," said Lord Eldon, 
 " I woidd ask whether any authority can be produced 
 in which the court has allowed a bill of discovery to 
 be amended by adding parties as plaintiifs ? I will 
 not make a precedent for which there is no foundation 
 in the principles or practice of the court "(A). In 
 this case there was no demurrer for want of parties. 
 The shape which the objection assumed was a denial 
 of the plaintiff's legal title, and therefore of his right 
 to maintain the ejectment, to which the discovery 
 was proposed to be assistant. 
 
 On the subject of parties to actions generally. 
 Order XVI. of the Kules of Procedure, 1875, must 
 not be forgotten. 
 
 (e) Stvart t. Lord Bute, 13 Sim. 453. 
 
 (/) Ilicliardson v. Hastings, 7 Beav. 354. 
 
 (^) Foreman v. Cooper, 11 Price, 515 ; Brorvn v. PerMnx, 
 2 Hare, 540. See Part III. Chap. III., Confidence. In Bur- 
 hidge v. Bohinson, 2 Mac. & G. 244, and Penney v. Goode, 1 Dr«w. 
 474, possession had heen parted with. 
 
 Qi) Clwlmundcley v. Clinton, 2 Mer. 71, 74. 
 
96 ACTIONS POK DISCOVERT. 
 
 In concluding the Second Part, it may be useful to 
 advert to the material distinctions which exist between 
 the grounds of defence to discovery of which it treats, 
 and those which are the subject of the Third Part. 
 
 The protection from discovery which is founded 
 upon the foregoing principles is necessarily a defence 
 to the entire action. If it be insisted that the 
 plaintiff has no title to sue; that the defendant 
 possesses no interest ; that he is a bona fide pur- 
 chaser ; or that the discovery is not required for any 
 purpose which the court will aid ; it is clear that the 
 defect upon which the objection is founded must 
 pervade the entire action. None of these grounds 
 of defence is, in its nature, capable of a divided appli- 
 cation. If the objection take the form of a demurrer, 
 it is a demurrer to the whole action. If it be raised 
 by plea, it must be pleaded ante litem contestatam, 
 for it asserts a reason why discovery should not be 
 given. 
 
 The objections to discovery which it is the business 
 of the next part to examine are opposed to the last 
 kind in each of these particulars. 
 
 If it be insisted that the discovery of a certain 
 matter might subject a party to a penalty ; that it 
 would be immaterial ; that it involves a breach of 
 confidence ; or that it relates to the title of the de- 
 fendant exclusively ; it is evident that these objec- 
 tions do not, of necessity, extend to the entire action. 
 They cannot, in fact, furnish any defence to the 
 relief, if relief be prayed ; for they are objections 
 which apply to discovery, and to discovery alone. 
 They are, in their nature, capable of a partial appli- 
 
PARTIES. 97 
 
 cation ; they may extend to one interrogatory with- 
 out affecting another. HencCj also, the same con- 
 trariety in their form. Though the usual form of 
 taking them is by objecting to answer interrogatories, 
 yet where they cover the whole ground of action, or 
 a distinct part of it, they may be raised by demurrer 
 or plea ; and even in those cases they are not incom- 
 patible with a partial disclosure. 
 
 There are some cases where these grounds of pro^ 
 tection, so distinct from each other in principle, have 
 in practice a great degree of similarity. If the de- 
 fendant denies the title of the plaintiff, he may yet 
 be required to accompany his plea by a defence or 
 answer to some charges or interrogatories relating 
 to the evidence of that title. If, on the other hand, 
 the party objects that a disclosure might subject him 
 to certain penalties, the objection may possibly cover 
 every interrogatory. In the one of these contrasted 
 cases the plea to the entire action is accompanied by 
 a discovery, and in the other the limited or partial 
 objection, whatever its form, protects the whole dis- 
 covery. 
 
 It is apparent, however, that the relative extent of 
 these defences is merely an accidental circumstance. 
 It neither confounds the essential distinction between 
 them nor diminishes its importance. The former 
 ground of protection necessarily extends to the relief, 
 or offers a bar to all farther proceeding : the latter 
 ground can in no circumstances extend to the relief 
 or constitute a bar to the proceeding. It merely 
 objects that, for certain specified reasons, the party 
 ought not to be compelled to make a discovery. And 
 
98 ACTIONS rOK DISCOVEKT. 
 
 it seems to be a necessary result that, where the 
 action is met by a valid plea of the first kind, it 
 rests upon the plaintiff to entitle himself to discovery, 
 which he can only do by introducing some special 
 charges inconsistent with the plea ; and, where the 
 objection is of the latter kind, the party interrogating 
 is entitled to a full disclosure, the burden lying on 
 his opponent to protect himself from discovery by 
 bringing the particular matter within one of the 
 principles of exemption discussed in the following 
 part. 
 
 Some of the objections to discovery next to be 
 considered are of more extensive application than 
 those already treated, in the sense that they concern 
 witnesses as well as parties. A witness in an action 
 may, for instance, equally with a party, object to 
 make disclosures which would tend to subject him 
 to a penalty or forfeiture, or which would be a breach 
 of professional confidence. This is not, however, a 
 point of discovery, but is a matter within the depart- 
 ment of evidence — for discoveiy is confined to dis- 
 closures by parties before trial, and does not include 
 disclosures made at a trial by witnesses. 
 
 A farther distinction of great practical moment 
 win be found to arise firom the nature of the several 
 objections to discovery in the application of the rule 
 that a party who submits to answer must answer 
 fuUy. That rule applies generally to cases falling 
 within the second part of this treatise, but does 
 not apply to cases which are within the third part. 
 The effect of the rule, which is not now as stringent 
 as it formerly was, will properly be considered in that 
 
PARTIES. 99 
 
 part which relates to the form iu which the various 
 grounds of protection must be insisted on. 
 
 It remains to be added, with respect to the actions 
 to which these objections are respectively applicable, 
 that, whilst general objections to discovery, or those 
 which are considered in the second part, are limited 
 to the cases which have been specified under the 
 several heads, the objections to answer which are 
 called special, and are examined in the third part, 
 may be taken in the same form, and have the like 
 operation in all suits, whether the action seeks relief 
 or discovery merely. 
 
 ■F 2 
 
( 100 ) 
 
 PART III. 
 
 OBJECTIONS TO PARTICULAR DISCLOSURES. 
 
 CHAPTER I. 
 
 OF DISCOVERT OF EVIDENCE WHICH MAY TEND 
 TO SUBJECT THE PAKTY TO PENALTY OK FOK- 
 FEITURE. 
 
 Section 1. 
 
 Of the General Rule. 
 
 If the answer of the party might be evidence tend- 
 ing to subject him to punishment by any judicial or 
 competent authority, or to any penalty or forfeiture, 
 or disability in the nature of a penalty, he will not be 
 compelled to make the discovery. 
 
 " It is," said Lord Hardwicke, " a general rule, 
 established with great justice and tenderness by the 
 law of England, that none shall be obliged to dis- 
 cover what may tend to subject him to a penalty, or 
 to that which is in the nature of a penalty "(a) ; and 
 the cases are numerous in which the principle has 
 been appealed to(&). 
 
 (a) Harrison v. Southcote, 2 Ves. 389, 394 ; ParMiurst v. 
 Lonten, 2 Swans. 194, 214, per Lord Eldon; Mitford, Plead. 193, 284. 
 
 (J) Penalties by Statute ob Common Law: Blaehmood's 
 ease, Hardres, 139, general principle; Penrice \. Parher, Eep. t. 
 Finch; Wallis T. Duke of Poi-tlanA, 3 Ves. 494; SlMr;p v. Carter, 
 
PENALTY OR FORFEITURE. v Wl 
 
 Not only may a party resist answering a charge 
 or interrogatory tending directly to criminate him, 
 
 3 P. Wms. 375; Olivei- v. Baymood, 1 Anst. 82; Eartley t. 
 Bussell, 2 Sim. & S. 2i4, 252; Mayor of London v. Ainslie, 1 
 Anst. 158; Scott v. Miller, ioim. 220, champerty and maintenance; 
 Lady Montague's case, Csaj, 12, wardship; Att- Gen. t. JReynolds, 
 1 Eq. Ca. Ab. 131, breach of charter; ParkUurst v. Lomten, 1 
 
 Mer. 891; Southall v. , Yonnge, 308, simony; Thorpe v. 
 
 Macaulay, 5 Mad. 218; Baker v. Lane, 3 Hurl. & C. 544; Tapling 
 V. TTari^, 6 Hurl. & N. 749; Stern v. Sevastopulo, 14 C. B. (N. S.) 
 737; Edmunds v. Greenwood, L. R., 4 C. P. 70; Moran t. JenMns, 
 L. E., 5 C. P. 738, Ubel; Salter v. Pritchard, 2 Atk. 387; ^ZJ^/ 
 T. Of?», 2 Anst. 504, subornation of perjury; Att.- Gen. v. Sudell, 
 Prec. Ch. 214; Bishop of London v. Fytohe, 1 Bro, C. C. 96, 
 general bond of resignation ; Glyn t. Bouston, 1 Keen, 329 ; 
 M'Fadzen v. Corporation of Liverpool, L. E., 3 Ex. 279, false 
 imprisonment ; Claridge ». Boare, 14 Ves. 59, conspiracy to 
 preyent prosecution for felony; Lloyd t. Passingham, 16 Vos. 
 58, forgery; Eoneymood r. Selwin, 3 Atk. 276, parliamentary in- 
 capacity; Barl of Lichfield v. Bond, 6 Bear. 88, keeping a gaming 
 house; Beming v. St. John, 2 Sim. 181 ; Orme v. Crocliford, M'Clel. 
 185; Sideiottom v. Adkins, 3 Jur., N. S. 631, gaming; Fisher t. 
 Ronalds, 12 C. B. 762. Contra, Wilkinson v. L'Eaugier, 2 Y. & C. 
 363; Sloman v. Kelly, 4 Y. & C. 169, it being open to argument 
 whether money lost at play was recoverable at law. Waters t. 
 Lord Shaftestury , 12 Jnr., N. S. 3, embezzlement; Ex parte 
 Symes, 11 Ves. 521; Ex parte Oliver, 2 Ves. & B. 244; Bartlett 
 T. Lewis, 12 C. B. (N. S.) 249, penalties under bankrupt laws; 
 Mitchell T. Koeclter, 11 Beav. 380, revenue; Earl of Suffolk y. 
 Green, 1 Atk. 450, usury (repealed); E. I. Co. v. Campiell, 1 Ves. 
 246; E. I. Co. y. Weave, 5 Ves. 173; Paxton v. Douglas, 16 Ves. 
 239 ; 8. C, 19 Ves. 225; African Co. v. Parish, 2 Vern. 244, 
 breach of bye-laws; Ewing v. Osialdiston, 6 Sim. 608, keeping 
 unlicensed theatre (repealed). See Bird v. Bardwicke, 1 Vern. 
 109, and note (1). 
 
 EbatiD: Osborn v. London Dock Co., 10 Exch. 698, in trade; 
 Lee T. Reed, 5 Beav. 381, insurance; Villeboisnet v. Tobin, L. E., 
 
 4 C. P. 184; Macalltm v. Turton, 2 Y. & J. 183, company matters. 
 Ecclesiastical Penalties: Brownswordy. Edwai'ds, 2 Vea, 
 
102 OBJECTIONS TO PABTICULAE DISCLOSURES : 
 
 but he may also object to make any statement whicli 
 would collaterally have that effect (c). And Lord 
 Truro remarked that a person, in order to entitle 
 himself to this protection, is not bound to show to 
 what extent the discovery sought may affect him ; 
 for to do that would often deprive him of the benefit 
 he seeks ((/). 
 
 It was formerly said that, if a discovery might 
 tend to render a party infamous, he should not be 
 obliged to answer (e); but Lord Eldon held that, 
 if a party is not liable to any penalty or forfeiture, 
 he is bound to answer fully ; notwithstanding his 
 
 243 ; Finch v. Mnoli, Ibid. 491 ; Jhiplessls's case, Parker, 163; 
 Franco y. Bolton, 3 Ves. 368; Chetniynd v. Linden, 2 Ves. 
 450. 
 
 Local Acts : Corporation of Trinity House v. Surge, 2 Sim. 
 411. 
 
 Personal Disability: sach as that of Papists, now abolished; 
 see Bird t. Eardwicke, 1 Vem. 1Q9, n. (1). 
 
 FOEFEITUKE: WrottesUy v. Beadish, 3 P. Wms. 233; Chauncey 
 V. Talhourden, 2 Atk. 392; Chauncey v. Fenhoulet, 2 Ves. 265, on 
 marriage without consent; Lord Vxbridge t. Staveland, 1 Ves. 56, 
 assignment without licence; Cooke v. Turner, 14 Sim. 218, on dis- 
 puting competency to make will; Chester v. Wortley, 17 C. B. 
 410; Fye V. Butterfield, 5 Best & S. 829, for breach of covenant ; 
 Boteler v. Allington, 3 Atk. 453, plurality,; Lord Crlengall t. 
 Fdmards, 2 Y. & C. 1 25, consideration for bill of exchange; Att.- 
 Gen. y. Vincent, Comyu, 664, waste. 
 
 And the other cases quoted in this chapter. It was immaterial 
 whether the forfeiture was incurred at law or in equity, Att.- Gen. 
 V. I/ueas, 2 JHare, 566. So also is the amount of the penalty, Fx 
 parte Symes, 11 Ves. 521. 
 
 (c) Post, Sect. 8. 
 
 {d) Short V. Mercier, 3 Mac. & G. 205, 217; Osuorn v. London 
 Doch Co., 10 Exch. 698. 
 
 (e) E. I. Co. T. CampUll, 1 Ves. 247. 
 
PENALTY OK FOEFEITUEE. 103 
 
 answer may tend to cast a great degree of reflection 
 upon Ms character and conduct (_/). 
 
 A party refusing to answer a question tending to 
 affect him criminally is not on that account to be 
 considered as admitting the truth of the allegation (17) ; 
 but, as Lord Eldon said in a case of banlcruptcy, "he 
 must submit to the consequences of that refusal being 
 unsatisfactory" {h). 
 
 Lord Cranworth decided that the privilege only 
 applied where the penalty incurred was one inflicted 
 by English law. He said : " I am of opinion, in the 
 absence of all authorities on the point, that the rule 
 of protection is confined to what may tend to subject 
 a party to penalties by our own laws" (i). 
 
 This case was distinguished by Lord Chelmsford 
 in United States of America v. M'Rae{k), where he 
 said : " It was imnecessary to lay down so broad a 
 proposition to support the judgment which he (Lord 
 Cranworth) pronounced, and he certainly could not 
 have contemplated a case where the presumed igno- 
 rance of the judge as to foreign law is completely 
 removed by the admitted statements upon the plead- 
 ings, in which the exact nature of the penalty or 
 forfeiture incurred by the party objecting to answer 
 
 (/) Park/iurst V. LoTVten, 1 Jler. 391, 400. The cases which 
 show that a party may refuse to give answers which, in other times, 
 wonld have subjected him to ecclesiastical penalties, must, perhaps, 
 at the present day be considered of no value. They will now subject 
 the party giving them to no penalty ; and the fact that an answer 
 would reflect upon his character is not a ground of protection. 
 
 (17) Lloyd V. Passingham, 16 Ves. 59, 69. 
 
 (A) Bx parte Oliver, 2 Ves. & B, 244, 250. 
 
 (i) King of the Two Sicilies v. Willeox, 1 Sim. (N. S.) 301, 331. 
 
 (A) L. E., 3 Ch. 79. 
 
104 OBJECTIONS TO PAETICULAE DISCLOSURES : 
 
 is precisely stated, and where the plaintiffs calling 
 for an answer are the sovereign power by whose 
 authority and in whose name the proceedings for the 
 forfeiture are instituted, and who have the property 
 to be forfeited within their reach." 
 
 The properties in dispute were, in the one case, a 
 ship which had been purchased by a revolutionary 
 party in Sicily ; and in the other, monies raised upon 
 bonds of the Confederate States of America. In 
 one case the penalty was the alleged punishment for 
 rebellion ; in the other, forfeiture by an ex post facto 
 Act of Congress. It seems impossible to sustain the 
 former case since the last decision. Punishment for 
 rebellion in Sicily must have been a very real ground 
 for claiming protection at the time it was brought for- 
 ward — ^much more so than a mere forfeiture of pro- 
 perty. If the former case be understood to decide 
 that the mere allegation of a liability is not sufficient 
 to found a protection, it would appear to be supported 
 by Lord Chelmsford; but the facts go further than 
 that contention would warrant. 
 
 In. the same case Lord Cran worth also remarked 
 that " the privilege is confined to penal consequences 
 likely to be occasioned to the party himself: nemo 
 tenetur seipsum prodere : but there is no privilege 
 against disclosing matter within the knowledge of 
 the party, merely because it might subject other 
 persons to punishment" (Z). An exception to this 
 
 Q) King of the Ihvo Sicilies v. Willeox, 1 Sim. (N. S.) 329 ; 
 Tetley t. Easton, 18 C. B. 643, where the defendant alleged that 
 he should make his customers liable for his infringement of a patent ; 
 Murray v. Clayton, L. E., 15 Eq. 115, 119. 
 
PENALTY OR FORFEITURE. 105 
 
 rule is seen where evidence is souffht from a wife 
 which may expose her husband to punishment for 
 felony (m). 
 
 Nor could a party shield himself fi-om producing 
 documents on the ground that there was an indict- 
 ment pending against him for perjto-y concerning 
 them in the suit itself(w). 
 
 If the plaintiff, in his pleadings, mixes up matters 
 upon which he is entitled to a disclosure with other 
 matters which he cannot call upon the defendant to 
 discover, in such a manner that they cannot be sepa- 
 rated, he must suffer for it (o). The reason of this 
 being the impossibility of separating the matters, the 
 principle would apply equally to interrogatories, 
 where the difficulty would be that the party ex- 
 amined might not know what particular questions 
 he was boimd to answer ; and he is under no obli- 
 gation of settling interrogatories for his own exami- 
 nation on behalf of his examiner. 
 
 Although a defendant had admitted the whole 
 corpus delicti in the body of his answer, he was 
 nevertheless not compelled to produce documents 
 protected by the privilege (/>). 
 
 (m) Cartmright t. Green, 8 Ves. 405, 410; and see Bird, t. 
 HarcLwioke, 1 Vem. 109, u. (1); Taylor on Evidence, § 1210, &c. 
 
 (n) Riee v. Gordon, 13 Sim. 580. See Waters y. Loi-A Shaftet- 
 iury, 12 Jar., N. S. 3. 
 
 (o) Earl of Lichfield t. Bond, 6 Beav. 88. See Fisher t. Price, 
 11 Beav. 194, where a separation conld have been made. 
 
 (jp) Nelme v. Newton, 2 Y. & J. 186, n. (h), acting illegally as a 
 notary ; Cooke v. Turner, 14 Sim. 218 ; King of the Tn-o Sicilies v. 
 Willcox, 1 Sun. (N. S.) 301; R. v. Garlett, 2 Car. & K. 474. But 
 F 5 
 
106 OBJECTIONS TO PARTICULAK DISCLOSURES : 
 
 If the penalty which might be incurred is pecu- 
 niary, and attaches upon a fund of which the de- 
 fendant is merely a trustee, though it be not the 
 consequence of his own act whereby he will be per- 
 sonally liable for any loss, yet he may, and it seems 
 is bound to, take the objection ; for a trustee has as 
 much the benefit of pleading as he who possesses 
 the beneficial interest ; and the cestui que trust is 
 entitled to have the privilege maintained (5'). 
 
 The protection extends to a party's representa- 
 tives (»•). 
 
 Documents in coiu-t belonging to one party have 
 been detained there in order to give the opponent 
 the opportunity of taking criminal proceedings («). 
 
 Where the whole object of a bill of discovery was 
 to extract matter on which to charge the defendant 
 criminally, a general demurrer was allowed, although 
 some of the interrogatories exhibited were not directly 
 criminatory in their character (<). On the other 
 hand, in the case of a biU to set aside the proceed- 
 ings upon a petition under Lord St. Leonards' Act, 
 alleging that the statements in the petition were 
 false, exceptions to the answer were opposed on the 
 ground that the charges in the bOl might tend to 
 subject the defendant to penal consequences. Sir 
 
 see Eming v. Ostaldiston, 6 Sim. 608, said to have been affirmed 
 on appeal by Lord Brougham ; see 2 Myl. & Cr. at p. 77. 
 
 (2 ) Earl of Suffolk v. Green, 1 Atk. 450; and ParMurst T. 
 Lorcten, 1 Mer. 391, 401. 
 
 (r) Parlihwst v. Lowten, Ibid. 
 
 («) WaUer t. Corlte, 3 Y. & C. 276. 
 
 (t) Glynn v. Somton, 1 Keen, 329, 338. 
 
PENALTY OR PORFEITUTIE. 107 
 
 George Turner allowed the exceptions, there being 
 nothing ia the bill entitling the defendant to claim 
 exemption from discovery which would not equally 
 apply to every defendant charged with fraud (m). 
 He did not consider that a general charge of fraud, 
 or other matter of equitable cognizance, such as ap- 
 peared in almost every biU m Chancery, was any 
 reason why a defendant should not answer. 
 
 There are some cases which may be properly de- 
 scribed as exceptions to the rule, and others that 
 would be inaccurately so termed, but are rather cases 
 in which it has been held to be inapplicable. The 
 exceptions comprehend the instances in which, by 
 some provision of the legislature, or by some act of 
 the plaintiff, or of the defendant himself, the power 
 of insisting upon the objection is taken away. The 
 cases in which the rule has been determined to have 
 no operation, are of two kinds : — Where the liability 
 which the party incurs, though in effect it may re- 
 semble a penalty or forfeitm-e, is not construed to be 
 strictly penal ; and Where the penalty which at one 
 time attached in respect of the matter in question 
 has ceased to attend it. 
 
 Adverting to the right of protection from dis- 
 covery. Lord Chief Baron Alexander added, when- 
 ever that right shall be taken away from the subject, 
 " it must be done expressly, by a clear and unequi- 
 vocal enactment " (j:). 
 
 (m) CJtadwick T. Cliadmick, 22 L. J. (Ch.) 329. 
 (_x) Orme v. Orockford, 13 Price, 376, 389. 
 
108 objections to particulae disclosures : 
 
 Section 2. 
 Of Exceptions by Statute. 
 
 The legislature has in some cases expressly pro- 
 vided that the parties to transactions illegal by statute 
 shall be compellable to answer bills in equity for dis- 
 covery of such transactions. 
 
 The act to prevent stock-jobbing (y), since re- 
 pealed (2)', was one instance of this kind. 
 
 The statute for the prevention of gaming (a), 
 repealed, except as to the right to relief and dis- 
 covery (J), gives the power of compelling a discovery 
 of money won at play. It has been held that this 
 statute does not extend to compel a discovery in aid 
 of an action by a common informer, but only in aid 
 of the party by whom the money was lost. The loser 
 of money won at play, it was said, might be, and 
 generally is, without witnesses of the fact to support 
 the action, which would therefore be given idly and 
 in vain ; and even -before the statute equity would 
 have compelled a discovery on his behalf (c). The 
 common informer, on the contrary, might call the 
 loser as a witness. Forfeiture under the first section 
 of this statute has been held not to be such a penalty 
 as to protect from discovery the consideration for the 
 security on which an action was brought (rf). 
 
 iy) 7 Geo. 2, c. 8. 
 
 («) 23 & 24 Vict. c. 28. 
 
 (a) 9 Ann. c. 19. 
 
 (i) 8 & 9 Vict. c. 109. 
 
 (c) Wilkinson t. L'Eaugier, 2 Y. & C. 363. 
 
 {d) Sloman v. Kelly, 4 Y. & C. 169. 
 
PENALTY OR FOEFEITUEE. 109 
 
 By the 85tli section of « The Larceny Act, 1861 "(e), 
 it is expressly provided that nothing in any of the 
 ten preceding sections (which relate to frauds by 
 agents, bankers, or factors) should entitle any person 
 to refuse to make a frill and complete discovery by 
 answer to any biU in equity, or to answer any question 
 or interrogatory in any civil proceeding in any court, 
 or upon the hearing of any matter in bankruptcy ; 
 but no person making a disclosure in any compulsory 
 proceeding is afterwards liable to be convicted of any 
 of the misdemeanors mentioned in any of the ten 
 sections. 
 
 And "The Merchandize Marks Act, 1862"(/), 
 declares that the liabilitj- to proceedings under it shall 
 not exempt any person from answering or making 
 discovery in any civil action : provided that no evi- 
 dence so obtained shall be admissible to support any 
 indictment or other penal proceeding. 
 
 Penalties imder the following statutes have been 
 held not to protect from discovery : the Stock-job- 
 bing Act, 7 Geo. 2, c. 8 (repealed) (<?); the Marriage 
 Act, 4 Geo. 4, c. 76, s. 23(h); the Statute of Fraudu- 
 lent Conveyances, 13 Eliz. c. 5{i); the Attorneys 
 and Solicitors Act, 6 & 7 Vict. c. 73(A); the Act 
 
 (e) 24 & 25 Vict. c. 96. 
 (/) 25 & 26 Vict. c. 88, s. 11. 
 
 (^) Fisher V. Price, 11 Beav. 194; Williams v. Tnje, 18 Beav. 
 .366. Bat see Short v. Mereier, 3 Mac. & G. 205. 
 (A) Att.-Oen. v. Lucas, 2 Hare, 566. 
 (i) Bunn v. Bunn, 12 W. E. 561. 
 
 (A) See Scott v. Miller, John. 220; Bichford v. B'Arcy, L. E., 
 Ex. 354. 
 
110 OBJECTIONS TO PARTICULAE DISCLOSURES : 
 
 relating to Brokers of the City of London (l). Con- 
 sidered as exceptions to the general rule, these statutes 
 have very little operation. Few other statutes will 
 be found abridging the right of protection from self- 
 accusation, which, wisely or not, pervades every part 
 of our system of judicial inquiry. 
 
 Section 3. 
 Of Exceptions hy Waiver. 
 
 If the party solely {m) entitled to take advantage 
 of a penalty or forfeiture, expressly waives that 
 right, the objection to discovery on this ground is 
 obviated (w), and his opponent must answer. The 
 former would then be bound by his waiver, and would 
 subsequently be unable to recover the penalty (o) ; 
 for it seems that an offer contained in the pleadings 
 cannot be retracted (^). 
 
 If the penalty were prescribed for the non-payment 
 of money — ^as of rent on a given day — and a party 
 should waive the penalty or forfeiture, he may, per- 
 
 (Z) Oreen, v. Weaver, 1 Sim. 404; BoHnson, v. Kitchin, 8 De G., 
 M. & G. 88. 
 
 (m) Mason v. Murray, cited Williams v. Farrington, 3 Bro. 
 C. 0. 38; South Sea Co. Y. Bumstead, Mos. 75. 
 
 (») Sotcth Sea Co. t. Bumstead, Mos. 77; Mitford, Plead. 195; 
 Brand v. CummAng, 22 Vin. Ab. 315, pi. 4; Mason v. Murray, 
 Ibid. 
 
 (o) Lord Uxiridge v. Staveland, 1 Ves. 56; Wools t. Walley, 
 
 1 Anst. 100; Jachson r. Benson, 1 Y. & J. 32. 
 
 (^) Pelly V. WatJien, 7 Hare, 351, 371 ; Kendall t. Marsters, 
 
 2 De G., r. & J. 200; Knight y. Bowyer, 2 De G. & J. 421, 447, 
 
PENALTY OE FOEFEITUKE. Ill 
 
 haps, be entitled to a larger relief, even after his 
 waiver, than would be decreed in the absence of the 
 penal stipulation. He wiU still be entitled to com- 
 pensation (g) for the breach against which the penalty 
 was designed to guard ; and, in placing him in a 
 situation the same as if the covenant were performed, 
 the courts may give interest upon interest (r), look- 
 ing upon the penalty as still impending, but treating 
 it as a security for affording to him the full benefit of 
 his contract. If not, it may be proper to introduce 
 an exception in the waiver to meet the circum- 
 stances ; and it is presumed that such partial waiver 
 would then be sufficient. 
 
 Section 4. 
 
 Of Exceptions by Conduct. 
 
 There have been several decisions in cases where 
 the East India, South Sea, and African Companies 
 have been plaintiffs in proceedings upon covenants by 
 their servants, framed to prevent them from convert- 
 ing situations of confidence into soiurces of private 
 and unauthorized emolument. In some instances 
 the defendants had bound themselves to pay, or to 
 permit the company to deduct, or retain on ac- 
 count (s), a specified sum in case of a breach of the 
 regulations of their service. There, it has been said, 
 
 (5) Hill T. Barclay, 18 Ves. 56. 
 
 (r) Seton t. Slade, 7 Ves. 264, 273; Pisher, Mort. § 1684. 
 (s) African Co. v. Parish, 2 Vem. 214; 8. C, cited 1 Sim. 
 428 ; E. I. Co. V. Neave, 5 Ves. 173. 
 
112 OBJECTIONS TO PARTICULAR DISCLOSURES : 
 
 the defendant, by agreeing to allow the sum in ac- 
 count, had so made himself an accounting party that 
 equity would, on its ordinary principles, compel a 
 discovery (if). In other cases of this description, the 
 defendant had expressly covenanted to answer a bill 
 of discovery («). It has been insisted that such a 
 covenant could not restrain the defendants from re- 
 sorting to that defence which the law allows to every 
 subject. 
 
 If a party, it was urged, had covenanted to refer 
 aU disputes to arbitration, yet he might have been 
 sued in Westminster HaU; if a mortgagor cove- 
 nanted not to redeem, yet, upon a bill filed in Chan- 
 cery, a redemption would be decreed ; if a tenant 
 covenants that if his landlord shall distrain he wiU 
 not bring a replevin, yet he may replevy ; and, if 
 parties are relieved against covenants which rob 
 them of the hberty of suing in common with other 
 subjects, much more shall they be relieved against 
 that which deprives them of their legal defence in 
 case they are sued by others {x). The Court of 
 Chancery, however, gave effect to these covenants, 
 and compelled the defendants to answer; but no 
 plaintifiF, other than the company with whom the 
 contracts were made, has been held to be entitled 
 to the discovery upon them (i/). It is also to be 
 
 (t) African, Co. t. Parish, ubi sup. ; M. I. Co. v. Mainston, 2 
 Cha. Ca. 218. 
 
 (?f ) South Sea Co. v. Sumstead, Mos. 74 ; E. I. Co. t. Atkyns, 
 1 Stra. 168 ; JB. I. Co. v. Nash, cited Moa. 77. 
 
 (aj) South Sea Co. v. JBumstead, Ibid. 76. 
 
 (y) Pamton v. Dovglas, 16 Ves. 239, 242. 
 
PENALTY OE rOEFEITUKE. 113 
 
 remarked that the cases seem to be those of mere 
 pecuniary (z), and not of corporal responsibility. 
 In fact, where the charge was a criminal one, it was 
 held that the defendant was not deprived of his right 
 to refuse discovery, even by agreement (a). 
 
 Without expressly covenanting to answer, a party 
 may, by the effect of his acts, exclude himself from 
 the benefit of the rule (S). In equity, there was no 
 difference between a mere moral obligation, and one 
 resulting from stipulation by deed (c) ; and the obh- 
 gation has been deemed to be of a higher kind, 
 where one party trusted unreservedly to the character 
 which the other assumed, than where he contemplated 
 a breach of the contract, and provided for his da- 
 mages in that event. The latter consideration may, 
 however, be more applicable to an engagement to 
 indemnify than to an obligation to disclose. 
 
 A broker of the city of London, charged with 
 fraud in giving fictitious names as those of the 
 vendors of merchandize which he purchased for the 
 plaintiff, and in making a secret profit beyond his 
 brokerage, set forth the bond he had entered into, 
 and the oath he had taken to perform the duties of 
 his office, of which the alleged transaction would 
 have been a breach ; and, thereupon, objected to 
 answer. The partners of the broker were also 
 
 (z) Green y. Weaver, 1 Sim. 404, 430. 
 (a) Zee v. Head, 5 Bear. 381. 
 
 (S) Green v. Weaver, 1 Sim. 404, 427; Gascoyne v. Sidrvell, 
 Gilb. Eq. R. 186 ; JVash v. J.sh, 1 Eden, 378. 
 (c) Green y. Weaver, Ibid. 432. 
 
1 14 OBJECTIONS TO PAETICULAE DISCLOSURES : 
 
 defendants, and they alleged that they had not been 
 admitted as brokers, and relied on the penalties im- 
 posed by statute on persons so acting without due 
 admission, as a ground for protection from discovery. 
 Sir Anthony Hart held that the defendants were 
 bound to answer ; for, if not, it might render these 
 Acts of Parliament, especially framed for the purpose 
 of protecting principals from the dishonesty of their 
 agents, a cover to their agents in the grossest fraud : 
 for, stript of the effect of the statutes as inflicting 
 penalties, it would be the common course of a court 
 of equity to compel each of the defendants to state 
 on oath whether they were employed as brokers or 
 agents of the plaintiff, or whether they acted in that 
 capacity ; to set forth every particular of each of the 
 defendants' dealings as agent or broker of the plaia- 
 tiff ; and to produce every entry in his books, and 
 every document relating to those transactions. If 
 equity in this case protected them from the discovery, 
 the proceeding at law must be quite nugatory : for 
 the materials of evidence must necessarily rest almost 
 exclusively in their possession. 
 
 A party may so contract as to incur the obligation 
 to make the discovery of aU the facts relative to that 
 contract, although the effect of that discovery may 
 incidentally subject him to pecuniary liability. " If," 
 the Vice-Chancellor added, "a court of equity gives 
 effect to a defence so constituted, I do not know 
 that there can be any reason why an executor or ad- 
 ministrator who has made oath duly to administer 
 the assets, and executed a bond for that purpose. 
 
PENALTY OR FOEFEITDKE. 115 
 
 may not allege those matters in answer to a bill of 
 discovery charging him with fraudulently tendering 
 an account of the assets" (d). 
 
 Where a man objected to answer whether he was 
 a sworn stockbroker or not, on the ground of the 
 penalty attached to acting in that character without 
 admission, Lord EomiUy decided that, having held 
 himself out to the world as properly qualified, he was 
 bound to answer (e). And where one party had so 
 acted that the other had an equitable case against 
 him, or a case of which the Court of Chancery would 
 take cognizance or entertain jurisdiction, the former 
 could not insist upon the objection to discovery that 
 it might afford evidence upon an indictment for con- 
 spiracy. 
 
 The boundaries between matter which is indictable, 
 and that which amounts to a fraud, are often very 
 close (f). When the biU was for a discovery of the 
 property in goods alleged to be liable to the alien 
 dues, and entered by one of the defendants in the 
 name of another, a natural-born subject, the de- 
 fendants demurred on the ground that it was in sub- 
 stance a charge of conspiracy, although the common 
 charge of combination had been omitted ; but Lord 
 Eldon did not allow their demurrer on that ground (<7). 
 
 Qd) Green y. Weaver, 1 Sim. iOi, 432 ; JEx parte Dyster, 1 
 Mcr. 155, 171. 
 
 (e) Jlvhinson, v. Kitehin, 21 Eeav. 365. In this case a distinc- 
 tion was drawn between illegality known to both parties, as in 
 Sliort T. Mercier, 3 Mac. & G. 205, and to one party only. 
 
 (/) Per Lord Hardwicke, Chetwynd v. lAndon, 2 Ves. 451 ; 
 Uarriion v. Southoote, 2 Ves. 390. 
 
 ( g) Mayor of London t. Levy, 8 Ves. 398, 404. 
 
116 OBJECTIONS TO PARTICULAE DISCLOSURES : 
 
 In a case which is stated elsewhere (h) the like ob- 
 jection was taken, and his lordship observed, " I am 
 , perfectly satisfied that by allowing this demurrer I 
 should destroy this jurisdiction, as without the ordi- 
 nary words charging the parties with combination 
 and confederacy, in nine cases out of ten from all 
 time past they would upon modern doctrine be liable 
 to indictment, yet courts of equity have been con- 
 stantly compelling the discovery " (i). 
 
 Adverting to the practice in the Exchequer, Lord 
 Eldon said that " underwriters frequently brought 
 their assured into that court, to be relieved aga;inst 
 their liability in respect of the assured's actions against 
 them, by pleading frauds, which frauds would have 
 been indictable" (A). 
 
 It is said that there have been cases in which a 
 protection against discovery on the ground of con- 
 spiracy has been allowed (?); and it is clear that 
 a charge of unlawful combination need not be 
 answered (w). 
 
 Where, however, a party submits to be examined 
 as to matters which are penal to him, the courts will 
 not interpose (w). 
 
 (A) Dummer v. Corporation of ChippenJiam, \i Ves. 245, 252; 
 ante, p. 58. 
 
 (i) S. a 14 Ves. 245, 251. See Chetmynd v. Zindon, 2 Ves. 
 451. 
 
 (J) Macaulay t. Shahell, 1 Bligh, N. S. 96, 121; Janson v. 
 Bolarte, 2 Y. & C. 127, 132; Bayner v. Mtson, 35 L.J. (Q. B.) 59. 
 
 (V) Bakereelly. OMwr, in the Exchequer, cited ilfayoro/ion<?o» 
 •^. Aimlie, 1 Ansfc. 160; S. C. cited 8 Ves. 401; Oliver y. Hay- 
 mood, 1 Anst. 82. 
 
 (m) Mitford, Plead. 41; ante, p. 35. 
 
 (») See Green t. Weaver, 1 Sim. 404, 429. 
 
penalty or forfeiture. 117 
 
 Section 5. 
 Of a Penalty and Damages. 
 
 On this objection to discovery it is sometimes im- 
 portant to distingiiish whether the liability is in the 
 nature of a penalty, or in damages (o). If it merely 
 sound in damages, whether liquidated or otherwise, 
 the principle cannot apply {p). Cases may, perhaps, 
 be found which, upon the question of relief, have 
 been held to fall within the latter class ; but where, 
 if the point of discovery had been made, the Court 
 of Chancery would probably not have compelled it (^q). 
 These cases may be regarded as to a certain degree 
 anomalous (r). 
 
 Individuals cannot agree inter se that they, or 
 some of them, shall be subject to a penalty on breach 
 of contract, for the courts will relieve against it {$). 
 Again, the private remedy of individuals for a tort 
 is in damages only (t). The common law, a statute, 
 or, it seems, a bye-law of a company empowered by 
 statute to make bye-laws, can alone inflict a penalty. 
 
 (o) Por this distinction in cases of contract, see Chitty on Con- 
 tracts, 9th edit. 819. 
 
 (^) 46 Geo. 3, c. 37. 
 
 (2) Boy T. Buhe of Bea-ufort, 2 Atk. 190, 194; E. I. Co. v. 
 Neave, 5 Ves. 173, 182. 
 
 (r) E. I. Co. V. Neave, Ihid. 183, 185. 
 
 («) Aitley T. Weldon, 2 B. & P. 346, 353; Chitty, nH sup. 
 Penalties by agreement have been long relieved against in equity; 
 Sloman t. Walter, 1 Bro. C. C. 418; Benson v. Gibson, 3 Atk. 
 393; Forwa/rd, t. JDuffield, 3 Atk. 555. 
 
 (f) Except in actions of replevin, when the very good.s distrained 
 are reclaimed. See Magee v. Lavel, 43 L. J. (C. P.) 131. 
 
118 OBJECTIONS TO PARTICULAK DISCLOSUKES : 
 
 Private individuals may, however, impose condi- 
 tions of forfeiture ; and may derive benefit from either 
 a penalty, or a forfeiture. 
 
 Section 6. 
 
 Of Forfeiture of an Interest, and divesting of a 
 wrongful Possession. 
 
 If the facts sought to be discovered would show 
 that a party never had an interest in the property 
 which he wrongfully retains, or, having had an in- 
 terest, that it has ceased by the taking effect of some 
 limitation over, the party will not be permitted to 
 set up the loss of possession which the proof of these 
 facts would occasion as a ground for withholding 
 discovery (m). 
 
 In an old case in the Exchequer, where a question 
 arising upon this principle was elaborately argued, it 
 was said that bills were common in that court to dis- 
 cover the prisage due upon imported wines, for these 
 duties were not a penalty, but an inheritance of the 
 crown (x) ; and that it had been usual, without ob- 
 jection, to prefer bills in the court of wards to dis- 
 cover tenures in capite, for this was a reservation 
 between lords and tenants upon the distribution of 
 lands and the original creation of tenures {y). Where 
 commissions were issued under the Great Seal to 
 
 («.) Bambrooh v. Smith, 17 Sim. 209; Fye t. SuUerfield, 5 
 Best & S. 829, 837. 
 (a;) Att.-Gen. t. Mioo, Hard. 138, 145. 
 (y) Ibid. 
 
PENALTY OE FOEFEITUEE. 119 
 
 inquire whether the defendant and her daughter 
 were aUens, and if they were, then to seize the lands 
 and rents of which they were devisees into his 
 majesty's hands, the Attorney-General exhibited an 
 information in the Exchequer for discovery and pro- 
 duction of deeds and papers. It was urged that 
 alienage is no crime ; that there could be no punish- 
 ment where there is no guilt, no command neglected, 
 or no prohibition broken; that there was neither 
 right to be divested, nor forfeiture ; for the defendant 
 took nothing originally, but for the benefit of the 
 crown. The defendant was therefore compelled to 
 answer (z). 
 
 " There is a difierence," said Lord Hardwicke, 
 "where the disability arises from the rules of law, 
 and where it is imposed as a penalty "(a). And 
 the principle is adverted to by Lord Eedesdale as 
 applying to all cases where the discovery is sought 
 of matter which would show the party incapable of 
 having any interest or title (5). 
 
 If the cessation of interest, upon the happening 
 of the event of which a discovery is sought, be con- 
 sidered as a conditional limitation (c), and not a 
 forfeiture, the party must answer ((f). This is the 
 
 (z) AU.-Gen. v. Duplessis, 1 Bro. P. C. 415, 420. 
 
 (a) Smith y. Mead, 1 Atk. 526. 
 
 (i) Mitford, Head. 197. 
 
 (c) See Hambrook t. Smith, 17 Sim. 209, where Sir Richard 
 Kindersley said of a conditional limitation, " I understand it to 
 mean that the estate is limited to endure till a certain event hap- 
 pens, and then to go over." " The objection to the discovery, on 
 the ground of the happening of the event on which the estate 
 would determine, is not tenable." 
 
 {d) Mitford, Head. 197. 
 
120 OBJECTIONS TO PAETICULAE DISCLOSUKES : 
 
 case where the limitation of an estate is during 
 widowhood, and then over(e). But, if the terms 
 of a bequest make a forfeiture of that which would 
 otherwise be absolutely in the party, a discovery 
 will not be compelled (/"). 
 
 It was argued that a discovery of facts creating 
 incapacities under the statute against pluralities (ff), 
 should be compelled on the ground that the accept- 
 ance of a living, which vacated one previously held, 
 is a mere determination of the estate in the former 
 living; but Lord Sardwicke determined that this 
 legislative provision was of a penal nature, and a 
 ground of defence to discovery {h). 
 
 Section 7. 
 
 Of Cases where the Penalty has ceased to attach. 
 
 The penalty to which the party was at one time 
 liable, if the charge were true, may have ceased to 
 attach ; and the objection is then removed. This 
 may happen, either by lapse of time during which 
 the party is liable to action or prosecution, or by the 
 death of the person who was solely entitled to take 
 advantage of the penalty (z). 
 
 (e) Lucas r. Mans, 3 Atk. 260 ; ' Chauncey v. Talwurden, 2 Atk. 
 392 ; Chauncey v. Fenhoulet, 2 Vea. 265. 
 
 (/) Cliaunoey v. Fenlwulet, 2 Ves. 265 ; Monnins T. Monnins, 
 2 Cha. Rep. 68 ; Wrottesley t. Bendish, 3 P. Wms. 235. 
 
 (S) 21 Hen. 8. 
 
 (Ji) JBoteUr v. AlUngton, 3 Atk. 457. 
 
 (i) Anon, I Vern. 60; Att.-Gen. v. Firacerai, Bunb. 192 ; Moberts 
 T. Allatt, Mood. & M. 192; Davis v. Eeid, 5 Sim. 443, 448. 
 
PENALTY OK FOEFEITUKE. 121 
 
 If a party is liable to a penalty or forfeiture, 
 provided hie is sued withia a limited time, and the 
 action is not commenced until that time has expired, 
 he is bound to answer (k). 
 
 A party is entitled to an answer if the period of 
 liability ceases during the progress of the cause, after 
 the objection to discovery has been insisted on, and 
 before it is heard. Thus, where the defendant pleaded 
 the statute giving penalties upon the acts with which 
 he was charged, and the time of suing for the penal- 
 ties expired before the hearing of the plea, the plea 
 was overruled (/). And the same upon exceptions 
 to an answer. Where the time of suing for penalties 
 to the crown elapsed, after exceptions had been taken 
 to the first answer, and before the second answer 
 came in, the reason of the protection failed, and the 
 discovery was given (?w). 
 
 Where the penalty is personal, and does not 
 survive, the objection cannot be taken after the 
 death of the party who might have sued for the 
 penalty. Therefore, a biU. by the executor of a 
 person for an account of tithes subtracted was not 
 required to contain a waiver of the treble value (re). 
 
 (A) Per Lord Eldon, Parkhurst t. Lorvten, 1 Mer. 391, 400; 
 
 Southall T. , Younge, 308 ; WiUiami t. Farrington, 3 Bro. 
 
 C. C. 38. 
 
 (J) Corporation of Trinity Souse T. Burge, 2 Sim. 411 ; and 
 see cases at law, cited Ibid. p. 414. 
 
 (to) Williams v. Farrington, 3 Bro. C. C. 38 ; B. v. Boyes, 
 1 Best & S. 311, pardon. 
 
 (n) Anon. 1 Vem. 60; 8 Vin. Ab. 540, pi. 17; 11 Vin. Ab.247, 
 pi. 19 et seq. 
 
 H. G 
 
122 objections to particular disclosures : 
 
 Section 8. 
 Of collateral Questions. 
 
 The objection to a particular disclosure may be, 
 not that it alone could lead to punishment, but that 
 it is connected with other questions which altogether 
 might have that affect; or, if their combined effect 
 would be insufficient, still that it might form a link 
 in a chain of evidence adduced aliunde to establish a 
 liability to penalty. 
 
 When the facts are such as a party will not be com- 
 pelled to disclose, he cannot be required to disclose 
 the attendant circumstances, although they have not 
 such an immediate tendency to criminate (o). It 
 was laid down by Lord Eldon, that at no stage of the. 
 proceedings can a party be compelled to answer any 
 question accusing himself, or one of a series of ques- 
 tions which has that tendency; the rule in these 
 cases. being that he is at liberty to protect himself 
 against answering, not only the direct question 
 whether he did what was illegal, but also every ques- 
 tion fairly appearing to be put with the view of 
 drawing from him an answer containing nothing to 
 affect him, except as it is one link in a chain of 
 proof that it is to affect him (/>). "I have," he 
 
 (o) JS. I. Co. r. Campbell, 1 Ves. 246 ; Ulx parte Symes, 11 Ves. 
 521, 524; Claridge v. Hoare, 14 Ves. 59, 65 j Paaston v. Douglas, 
 
 16 Ves. 239,242; Southall v. , Younge, 308, 316; Maceallum 
 
 v.. Turton, 2 Y. & J. 183; Thorpe t. Maeauley, 5 Mad. 218, 229; 
 Glynn t. Houston, 1 Keen, 329, 338; Lee v. Read, 5 Beav. 381; 
 Hhort T. Mercier, 2 De G. & S. 635; S. C, 3 Mac. & G. 206; Scott 
 V. Miller, John. 328. 
 
 (p) Paxtov>y. Douglas, 19 Ves. 225. 
 
PENALTY OR FOEFEITUEE. 123 
 
 said, "looked into all the cases, and I find the dis- 
 tinctions between questions supposed to have a ten- 
 dency to criminate, and questions to which it is 
 supposed answers may be given as having no con- 
 nexion with the other questions, so very nice, that I 
 can only say the strong inclination of my mind is to 
 protect the party against answering any question not 
 only that has a direct tendency to criminate him, but 
 that forms one step towards it " (q). 
 
 Sir A, Hart commenting upon this passage ob- 
 served, that " the true principle of a bill in equity is 
 that every statement of fact in every bill ought to be 
 incidentally leading to the same conclusion ulti- 
 mately as the prayer leads to ; for the fact is either 
 conducive to the general result, or it is unimportant 
 and irrelevant." He considered Lord Eldon to 
 have meant, not that every fact which might lead to 
 the effect of subjecting a party to a penalty was ob- 
 jectionable, but where the whole ffist and object of 
 the suit was to convict a man in a penalty — where 
 there would be'no other purpose but to have relief in 
 equity on the footing of penalty — that, as a court of 
 equity did not relieve on penalty, it would not give 
 any incidental discovery (/•). 
 
 It is submitted that if this explanation of Lord 
 Eldon's meaning must be understood to import that 
 the objection to answer questions not so directly 
 leading to penal consequences could only be raised 
 when they related to a subject upon which the court 
 
 (q) Paxton r. Douglas, 19 Ves. 225, 22T. 
 (r) Green v. Weaver, 1 Sim. 404, 430. 
 
 g2 
 
124 OBJECTIONS TO PAKTICULAE DISCLOSURES : 
 
 would not interfere, the cases are not consistent with 
 the proposition. There are many authorities which 
 estabhsh the protection as to collateral questions, 
 although the suit was strictly of equitable cognizance. 
 And where the objection is to the jurisdiction it is 
 not referable to the present ground of protection (s). 
 It would be useful, if it were possible, to adopt 
 some leading rule which would mark the extent to 
 which this objection covers collateral questions, and 
 serve as a guide in the application of the principle. 
 This must, however, be a matter of great difficulty. 
 The variations of circumstances are infinite, and 
 there is no fact which may not in some conceivable 
 case form an ingredient in the evidence of a crime. 
 No distinguishing rule of this nature has been 
 pronounced, and the reported cases do not afibrd 
 materials from which any such rule can be collected. 
 If such a rule should be laid down, it would pro- 
 bably be founded upon scientific grounds, and not 
 be based upon legal decisions only. 
 
 Some examples may be extracted: Where an 
 action for damages was brought against the author 
 of a libel imputing to the plaintiiF conduct amount- 
 ing to a misdemeanor, and the defendant filed a 
 bill for discovery in support of a plea of justifi- 
 cation, a demurrer was allowed to the whole dis- 
 covery sought ; for, though many questions were not 
 criminating, yet the sole object of the biU was to 
 prove the truth of the criminal matter charged (f). 
 
 (i) Chadrviek v. CMdmok, 22 L. J: (Ch.) 329; post, p. 126. 
 (i) Thorpe v. MacauUy, 5. Mad. 218, 229.. 
 
PENALTY OB FOEFEITURE. 125 
 
 And where a bill inquired whether a, witness had not 
 committed perjury by the defendant's procurement, 
 and whether a verdict had not been obtained princi- 
 pally upon the evidence of that witness. Lord Hard- 
 wicke held that the question as to the influence of 
 the evidence was a part of another question, and 
 not distinct ; and a demurrer to both questions was 
 therefore proper (m). 
 
 On the other hand, where, to an interrogatory 
 whether the defendant was tenant for life, he pleaded 
 that it might subject him to a forfeiture, he having 
 made a lease for the life of another, the plea was 
 overruled by the same judge. " Suppose a bill of 
 discovery of waste, charging the defendant to be 
 tenant for life, and that he committed waste, and 
 praying that he may set forth and discover whether 
 he is not tenant for life ; he may plead to the dis- 
 covery whether he hath committed waste or not, but 
 not whether he is tenant for life or not. The plaintiff 
 will be entitled to have such discovery ; he may plead 
 to discovery of the act causing the forfeiture ; but 
 this is not a plea to that, but to discovery of the 
 estate. There never was such a thing heard of. 
 Consider how far it would go. Suppose tenant for 
 life makes a conveyance in fee for valuable considera- 
 tion with covenant for further assurance, and there 
 is a bin on the foot of that covenant, can he plead 
 that he is but tenant for life, and may forfeit his 
 estate to another?" (a:). 
 
 (u) Baker v. Priteliard, 2 Atk. 387. See Soutliall v. , 
 
 Tonnge,308, 312; Ex parte Symes, 11 Ves. 524. 
 
 (ar) Weaver t. Earl of Meath, 2 Ves. 109. See Finch y. Mndi, 
 2 Ves. 491. 
 
126 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 It was said by Lord Eldon, that if the "questions 
 proposed are : — first, whether the party has received 
 money; secondly, how it has been applied — the 
 first question, if connected with the other, has a 
 tendency to bring him into that situation in which 
 he may avail himself of the principle protecting him 
 fi:om a criminal prosecution "(y). 
 
 Section 9. 
 
 Of the Objection when taken in the Defence. 
 
 The objection to answer which is withiri this rule 
 must be distinguished from that which results from 
 the principle, that it is only in the prosecution of a 
 civil right, or in the defence of a civil action, that 
 a discovery can be compelled (2;). The rule now 
 under consideration is only applicable where there is 
 no general objection to the whole proceeding, and 
 where it is simply contended that there are questions 
 which the courts will not require to be answered (a). 
 The objection may, however, embrace the whole cause 
 of action, eo that no discovery can be compelled; 
 and, in such a case, if the action is for discovery 
 only (5), it resembles in effect a general objection. 
 But its extent is a mere accident, that cannot change 
 the nature of the defence. If the action is for relief, 
 
 (y).Mx parte Symei, 11 Ves. 521, 524. 
 
 {z) Ante, p. 85. 
 
 (a) WhiUingham v. Burgoyne, 3 Anst. 900 ; Att.-Qen. v. 
 Brown, 1 Swans. 265, 286; Glynn v. Houston, 1 Keen, 329, 338 j 
 ^nd see Williams v. Farrington, 3 Bro. C. C. 38. 
 
 (J) Macallum v. Turton, 2 T. & J. 183. 
 
PENALTY OR FOErEITUEE. 127 
 
 and interrogatories are delivered, the party, in order 
 to protect himself j must show that every question 
 individually is liable to the objection upon which he 
 insists (c). 
 
 The distinction is illustrated by the case of a bill 
 of discovery, charging the defendants with having 
 converted to their own use a sum of money which 
 they found secreted in a bureau delivered to them 
 for the purpose of repair. They demurred upon the 
 ground that the discovery sought might subject them 
 to criroinal punishment ; but Lord Eldon expressly 
 placed his judgment on the ground of jurisdiction, 
 and held that the policy of the law required that the 
 coral; should not give discovery. The objection was 
 not founded upon the tendency of the interrogatories 
 to criminate ; but that they related to a proceeding 
 in aid of which the court would not be made sub- 
 servient («?). 
 
 When the objection appears upon the face of the 
 claim, it is a proper subject of demurrer, provided 
 it covers the whole claim ; or the defendant may 
 simply omit to answer the questions put to him (e). 
 The case is attended with greater difficulty where 
 the plaintiff by his pleadings shows himself to be 
 entitled to discovery, but the defendant, by his 
 pleadings, sets forth some new matter; and con- 
 necting it with the facts alleged against him, thereby 
 
 (p) Claridge v. Hoare, 14 Ves. 69, 65. The bill in this case 
 was for relief, the plea only to discovery. 
 
 {d) Cartnright t. Green, 8 Ves. 405, 408; Olynn T. Houston, 1 
 Keen, 329, 337. 
 
 («) Part IV". 
 
128 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 shows a liability to a penalty, upon which he claims 
 the protection of the principle. 
 
 A party may protect himself from answering by 
 suggesting a penal liability foreign to the matter 
 alleged, to which it does not necessarily lead, or has 
 no obvious reference. Where a bill stated a marriage 
 of the defendant with a particular woman, the de- 
 fendant pleaded matter to show that such a marriage 
 would have been iucestuous, and refused to state 
 anything more (/). So, to a biU for a discovery of 
 deeds which the defendant was alleged to hold under 
 pretence of having contracted for the purchase of 
 the estate, the defendant pleaded that the contract, 
 if any, had been made after the supposed seller was 
 out of possession, and that the discovery tended to 
 subject him to forfeiture under the statute against 
 selling or contracting for pretended titles (^). 
 
 Some observations occur with regard to the con- 
 sequences to which the principle may lead. Suppose 
 a claim for an account of money received and paid 
 by the defendant on behalf of the plaintiff, to which 
 the latter pleads that such an account if rendered 
 might subject him to penalties under some act, as, 
 for instance, under the acts against bribery at 
 elections. The plea may be merely an artifice to 
 avoid discovery. The question then arises whether 
 discovery can be thus defeated. 
 
 It has been suggested that the supposed liability 
 
 (/) Bromnsreord v. Edwards, 2 Ves. 242, 245; Claridge v. 
 iloare, 14 Ves. 59, 65; Mitford, Plead. 284. 
 (g) Sliarpe T. Carter, 3 P. Wms. 375. 
 
PENALTY OR FORFEITURE. 129 
 
 to penalties cannot be interposed against a discovery 
 of that which is matter of account between the 
 parties (A). "A party accountable cannot protect 
 himself from an account in equity, by the mere sug- 
 gestion that the duty of accounting is blended with 
 duties of another kind " (i). 
 
 The observations of Lord Eldon, which have given 
 some countenance to this opinion, seem to refer to 
 the title of the plaintiff to relief by having the account 
 taken, merely asserting jurisdiction on the subject 
 without entering into the question how far the de- 
 fendant must answer, or the plaintiff be left to such 
 proof as he can make {j). The conclusion of Lord 
 Eldon on the several occasions on which he examined 
 the point clearly seems to have been that it is an 
 inflexible principle of our jurisprudence that a party 
 shall not be required to give any answer which may 
 accuse himself (A). 
 
 It may be inferred from some decisions that where 
 it is practicable the party seeking discovery will not 
 be left wholly unassisted. If deeds are withheld, 
 secondary evidence of their contents may be given. 
 Lord Eldon held, in bankruptcy, where a party was 
 charged with the receipt of money upon the oath of 
 the bankrupt, and refiised to state the application of 
 it, that the consequence was that money tvas traced 
 
 (A) See H. I. Co. t. Mave, 5 Ves. 173, 185; Anon. 2 Eq. Ca. 
 Ab. 70, pi. 7; Wilion t. Prince, cited 2 Ves. 244. 
 
 (i) Per Lord Eldon, Att.-Oen. t. Brown, 1 Swans. 265, 303. 
 
 (,j) Mnchy.Mnch, 2 Ves. 491, 493; Att.-Oen. v. Sronn, 1 
 Swans. 265, 294. See White v. Williams, 8 Ves. 192. 
 
 {k) Parkhunt t. Lawten, 2 Swans. 194, 214. 
 g5 
 
130 OBJECTIONS TO PAETICULAK DISCLOSURES: 
 
 to Mm, and he could not prove that it had gone from: 
 him, therefore it was necessarily to be considered 
 still in his hands (Z). And in a case before Lord 
 King, where the defendant in a cross bill refused to 
 make a discovery, it was held that he could have no 
 relief in the original suit(»n). These are cases con- 
 nected with the production of evidence at the hearing 
 and do not relate to discovery in order to ascertain 
 beforehand an opponent's contention. They are, 
 therefore, immaterial to the present subject. 
 
 It may be observed that if a penal responsibility, 
 which has no foundation in fact, is suggested in the 
 plea, the ordinary course is open of raising the ques- 
 tion of the truth of the plea by a joinder of issue («). 
 If the truth of a plea suggesting matter of criminal 
 accusation were put in issue the court might happen 
 to be led into a collateral inquiry with which it 
 would be somewhat difficult to deal; and it might 
 be necessary in such a case to appeal to principles 
 to which the Court of Chancery had no occasion to 
 have recourse. 
 
 Section 10. 
 Of Criminatory Interrogatories at Common Law. 
 The question arose, under the " Common Law- 
 Procedure Act, 1854," whether a party objecting to 
 
 {ly Ex parte Symes, 11 Ves. 621. 
 
 (m) Wildbore v. Parser, Mob. 121. See Whitmore y. Francis, 
 8 Price, 616; 8. C. 2 Sim. 182, n. id,\ discovery in aid of defence 
 at law refused. 
 
 (») See Bromnsmord v. Edmards, 2 Ves. 242, 2i7, per Lord 
 Hardvricke. 
 
PENALTY OK FORFEITURE. 131 
 
 interrogatories, the answers to which might tend to 
 subject him to a penalty or forfeiture, ought to take 
 that objection at once; or whether the interroga- 
 tories should be delivered in the first instance, and 
 the objections to answering them taken at the oral 
 examination of the party. 
 
 In the case of Osborn \. London Dock Co. (o), it 
 was held that criminatory interrogatories might be 
 put; and if the party refused to answer them, he 
 should state his objection when put on his oath. 
 In some cases this course has been followed — in 
 others not. 
 
 One effect of allowing interrogatories to be de- 
 livered, answers to whith cannot be enforced, was 
 noticed by Martin, B., in the case of Tupling v. 
 Ward(^p). " We .think it unfair to submit questions 
 which a party is not bound to answer ; the object 
 being either to compel him to answer when not 
 bound, or to refuse, and so create a prejudice against 
 him." When this argument was made xi»e of by 
 counsel before him, Erie, C. J., remarked : "A man 
 is not to be punished upon his own forced admission 
 of guilt. If he has been guilty of swindliug short of 
 an indictable offence, he must answer ; but, if he has 
 overstepped the line, he is privileged from answering. 
 I must confess I do not see why a guilty man should 
 not be prejudiced in the eyes of a jury" (y). 
 
 (o) 10 Exch. 698, fraud at common law. See also Chester v. 
 Wortley, 17 C. B. 410, ejectment on breach of covenants in a 
 lease. 
 
 (;>) 6 Hnri. & N. 749, libel. 
 
 (j) Bm-tlett V. Lewis, 12 C. B. (N. S.) 249, felony under the 
 " Bankruptcy Act, 1849." 
 
1 32 OBJECTIONS TO PARTICULAR DISCLOSURES : 
 
 In the case of Stern v. Sevastopulo (r), the action 
 was for speaking and publishing certain defamatory 
 words ; and the proposed interrogatories were : — 
 1. Did you speak and publish the words laid in the 
 declaration, &c. ? 2. When and where, and to whom 
 did you speak them, &c. ? The Lord Chief Justice 
 explained that most of the cases where interrogatories 
 had been allowed had been cases of contract, or 
 claims of property, or charges of tort, where some 
 definite fact material to the case was to be inquired 
 into ; but these interrogatories his lordship con- 
 sidered to be quite unprecedented, and unjustifiable^ 
 And it certainly seems unreasonable to allow a party 
 to plead " not guilty," and then to ask him almost in 
 so many words, " are you guilty?" 
 
 Under ' certain circumstances, even such leading 
 questions have been permitted in the Queen's 
 Bench (s). But that court at the same time ex- 
 pressly recognized the principle laid down by the 
 Lord Chief Justice Erie. ' 
 
 In the case of Baker v. Lane {£), the Barons of the 
 Exchequer considered that the interrogatories were 
 not bondjide, and on that ground disallowed them («) ; 
 but, in the next case reported, they concurred in the 
 rule laid down in the Court of Common Pleas {x). 
 
 (r) 14 C. B. (N. S.) 737, slander. 
 
 (s) AtUngon v. Fosbrohe, L. E., 1 Q. a. 628, slander ; see also 
 Hodsollv. Taylor, L.H., 9 Q. B. 79; Greenfield y, Meay, L. E., 
 10 Q. B. 217. 
 
 (i) 3 Hurl. & C. 644, libel, and statutory penalty. 
 
 (u) See BieTiford t. B'Arey, L. R., 1 Ex. 354. 
 
 (as) BicUford v. B'Arey, ubi sup. 
 
PENALTY OE FORFEITURE. 133 
 
 The rule eventually seems to have been that tlie 
 courts would not allow questions to be put, the an- 
 swers to which might tend to criminate, unless suffi- 
 cient reason appeared for doing so (y) ; and, in cases 
 where they were allowed, the party was left to refuse 
 to answer on the ground now under consideration, 
 when examined by the judge (z). 
 
 It is difficult to reconcile this rule with the general 
 principle. A reason may be sufficient either in re- 
 lation to the person concerned, or to the offence, 
 which is measured by the penalty. It is obvious that 
 no personal considerations could be taken into ac- 
 count. As to the penalty, there arise the two ques- 
 tions : its severity ; and the weight of evidence to 
 support it. 
 
 If the discretion is to be exercised when the 
 penalty is heavy, it would follow that the stronger 
 the ground of protection, the greater the infringe- 
 ment of it. If, when it is light, it may be said that 
 the infringement is not very material. Where the 
 relief sought sounds in damages only, as in Atkinson 
 V. Foshroke, and Hill v. Campbell, ia which cases 
 the chances of indictment were probably remote, the 
 position becomes somewhat analogous to one in 
 which the penalty is waived (a). If the exercise of 
 
 (y) Bartlett v. LemU, nbi sup. ; McFadzen v. Corporation of 
 Liverpool, L. R., 3 Ex. 279 ; Edmunds v. Greenwood, L. R., 4 
 C. P. 70; Villeboisnet v. Tobin, L. R., i C. P. 184; Jnman v. 
 Jenkins, L. R., 5 C. P. 738, libel; see also Sill v. Campiell, L. R., 
 10 C. P. 222. 
 
 (z) Boyle y. Wiseman, 11 Exch. 360; Chester v. Wortley, 17 
 C. B. 410. 
 
 ((7.) Ante, p. 110. 
 
134 OBJECTIONS TO PAETICULAK DISCLOSURES: 
 
 the discretion is to depend upon any state of the 
 evidence, the court will have power to furnish or 
 exclude testimony, and that of the most unsatisfac- 
 tory kind — mere prejudice. And " an advocate of 
 the existing practice (of not examining prisoners) has 
 observed that ' few things tell more strongly against 
 a prisoner than his non-explanation of apparently 
 criminating circumstances '" (6). Until jjrisoners 
 are again (c) invariably examined, it would be well 
 if the practice of putting criminatory interrogatories 
 were universal, or else altogether done away with. 
 
 The section of " The Common Law Procedm-e 
 Act, 1854," which has been thus construed by the 
 judges of the courts at Westminster, seems to faU 
 within the scope of the remark of Lord Chief Baron 
 Alexander cited earKer (rf). 
 
 The present rules of procedure are explained in 
 the fourth part. 
 
 At the oral examination of a party, the judge 
 may caution him, before he answers a question, that 
 he is not bound to say anything which may tend 
 to criminate him (e) ; but the solicitor or counsel, 
 it seems, have no right to raise the objection, which 
 should come from the party himself, after he has been 
 sworn (/). 
 
 (J) Stephen, Criminal Law of England, 198. 
 
 (c) l¥iA. 195. 
 . (d) Ante, p. 107. 
 
 (e) Fisher v. Ronalds, 12 C. B. 762; see R. v. Arnold, 8 Car. & 
 P. 621. 
 
 (/) Oshorn v. London Booh Co., 10 Exch. 098; Boyle y. Wise- 
 man, 10 Exch. 647. 
 
PENALTY OR FOEFEITUKE. 135 
 
 It makes no difference in the right of a party to 
 protection, that he has already answered in part; 
 he may claim the privilege at any stage of the 
 inquiry (5^). 
 
 In Fisher v. Ronalds (^h), the Lord Chief Justice 
 Jervis held that a party should judge for himself as 
 to the liability of an answer to an interrogatory to 
 criminate him ; though he admitted that there was 
 at times great difficulty in applying the rule. Other 
 authorities do not sanction giving the party so much 
 scope. In Oshorn v. London Dock Co. (i), dicta of 
 several Lord Chancellors (A), were quoted to a dif- 
 ferent effect ; and it was generally acknowledged by 
 the judges present that it was very difficult to say 
 where the line should be drawn. A dictum of Baron 
 Alderson on that occasion has practically been acted 
 upon. " The proceeding is analogous to that of the 
 examination of a witness at Nisi Prius. It seems 
 to me that the same rule should be followed." 
 
 The Lords Justices Knight Bruce and Turner 
 decided that whether a witness was allowed to decide 
 the point for himself or not, if he volunteered a reason 
 for not answering a question, and his reason was in- 
 sufficient, the court would order him to answer (/). 
 
 (?) R. T. Gariett, 2 Car. & K. 474. 
 
 (A) 12C. B. 762. 
 
 (i) 10 Exch. 698. 
 
 (k) Lord Longhborongh in Chamhers t. Thompson, 4 Bro. C. C. 
 433; Lord Eldon in Parklmrst Y.Lowten, 2 Swans. 203; and Lord 
 Tmro in Sliort v. Mercier, 3 Mac. & G. 205 ; Sidehotliam v. 
 Adhint, 3 Jnr. (N. S.) 631; Adams v. Lloyd, 4 Jnr. (N. S.) 690. 
 
 (V) In re Mexican and South American Co., Ex parte Aston, 
 4 De G. & J. 320. 
 
136 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 CHAPTER II. 
 
 OF THE OBJECTION THAT THE DISCOVERT IS 
 IMMATERIAL. 
 
 Section 1. 
 
 Of the Definition of Immateriality. 
 
 Lord Redesdale says (a) — "Every plaintiff is 
 entitled to a discovery from the defendant of the 
 matters charged in the bill, provided they are neces- 
 sary to ascertain facts material to the merits of his 
 case, and to enable him to obtain a decree;" and 
 again, " As the object of the court in compelling a 
 discovery is either to enable itself or some other 
 court to decide on matters in dispute between the 
 parties, the discovery sought must be material, either 
 to the relief prayed by the biU, or to some other suit 
 actually instituted, or capable of being instituted. 
 If, therefore, the plaintiff does not show by his bill 
 such a case as renders the discovery which he seeks 
 material to the relief, if he prays relief; or does not 
 show a title to sue the defendant in some other court, 
 or that he is actually involved ia litigation with the 
 defendant, or liable to be so, and does not also show 
 that the discovery which he prays is material to 
 
 (a) Mitford, Plead. 306. 
 
IMMATEEIAMTY. 137 
 
 enable him to support or defend, a suit ; he shows no 
 tide to discovery, and consequently, a demurrer will 
 hold" (6).- 
 
 In determining the question of immateriality, the 
 propriety of the discovery must be tried by its appli- 
 cability to the relief prayed ; and if the party from 
 whom discovery is sought does not demur, or set up 
 a plea in bar to the relief, it must be assumed that 
 he admits the subject to be within the cognizance of 
 the court, and that the claim or counter-claim is not 
 liable to an objection by which all discovery might 
 be resisted (c). 
 
 Several classes of objections to discovery are re- 
 ferred in the reports to the principle of immateriality. 
 The term has sometimes been used to describe the 
 objection which denies the interest of the party, and 
 therefore the utility of the discovery {d). 
 
 In its most extended sense, the term may compre- 
 hend every case in which a discovery, if it were 
 given, would be inadmissible in evidence at a trial, 
 or nugatory because there is no case to be tried. 
 This, however, confounds the objection of immate- 
 riality with other grounds of defence. Convenience, 
 sanctioned by authority and practice, assign to the 
 subject of the present chapter a much narrower ex- 
 tent. In its present application it must be consi- 
 dered as synonymous with "irrelevancy." 
 
 (J) Mitford, Plead, 191. 
 
 (c) Bleeliley t. Rymer, i Drew. 248. See Marsh v. Keith, 
 1 Dr. & S. 342, discovery of incnmbrances by trustee, 
 ((i) Mitford, Plead. 193. 
 
138 OBJECTIONS TO PAKTICULAE DISCLOSURES : 
 
 There appears to be a class of cases which does 
 not fall within this definition, and where the ground 
 of defence seems to be the foundation for a general 
 demurrer. This occurred where, after the institution 
 of an original suit in equity, some event happened 
 which occasioned an alteration in the interest of the 
 parties, or some circumstance took place of which a 
 fiirther discovery was necessary. This was the case 
 for a supplemental bill (e). It was a valid ground 
 '6f demurrer to such a bUl that the new facts alleged 
 were immaterial to the relief sought by the original 
 bill (/). This defence arose out of the principles of 
 pleading rather than from the doctrines of discovery. 
 The adoption of the word " material " seemed to call 
 for some observation pointing to this distinction. 
 
 Matter may be scandalous, and therefore irrele- 
 vant {g) ; or too wide, and require no defence (A). 
 
 For the purposes of this treatise, a discovery may 
 be said to be immaterial fi-om three points of vifew. 
 It may not relate to the matter in question, and- be 
 therefore immaterial to the purpose of the action. 
 It may not affect a particular party, and be there- 
 fore immaterial as to him. Or it may be obviously 
 important at some stage of the cause, bijt be imma- 
 terial at the time when it is sought (i). 
 
 (e) Tfiborne v. Baiter, 2 Mad. 379. 
 
 (/) Adams v. Dtmding, 2 Mad. 53; Milrler v. Lord Harewood, 
 ir Ves. 144; Mitford, Plead. 63, n. (o). 
 
 {g) Atrvool t. Ferrier, 14 W. R. 1014. 
 
 (h) Robson V. Crawley, 2 Hurl. & N. 766. 
 
 (i) The subject of discovery after judgment in aid of execution 
 has already been considered. It is admitted that the question of the 
 
immateriality. 139 
 
 Section 2. 
 Of Immateriality as regards the Action. 
 
 To resist discovery on this ground the charge, or 
 interrogatory, must be so plainly immaterial — or, as 
 Lord Thurlow expressed it, so obviously frivolous — 
 that no state of the case can be supposed in which a 
 discovery can be made available (J). In general, if 
 it can be sixpposed that the discovery may in any 
 way be material to one party, the other party wiU be 
 compelled to make it (A). 
 
 Some cases may be mentioned in which the objec- 
 tion has been successfully raised. 
 
 In a redemption suit, the question whether the 
 mortgagee was a trustee was held to be imma- 
 terial (J). 
 
 On a question relating to real estate a discovery 
 of proceedings had ia a court of delegates upon the 
 grant of administration was held immaterial {m). 
 
 time at which discovery shonld be given might be considered to be 
 properly incladed nnder that head. It is, however, introduced here 
 in order to compare it with the more extensive objections to the 
 particular person, and to the whole cause of action. 
 
 {j') Bishop of London v. Fytche, 1 Bro. C. C. 95, 97 ; Mant v. 
 jScott, 3 Price, 477, 493; Hoffmann v. PostUl, L. R., 4 Ch. 673, 
 678; Morris v. Bethell, L. K., 4 C. P. 765. 
 
 Qi) Mitford, Plead. 193; Mnch v. Fineh, 2 Ves. 491; Att-Gen. 
 T. Berry, 2 Coll. 33; I>uneombe v. Davis, 11 L. J. (Ch.) 17; Chad- 
 teick v. Chadmiek, 22 L. J. (Ch.) 329; Svtlwrland v. Sutherland, 
 17 Bear. 209; Ord v. Faweett, 19 L. J. (Ch.) 487; Carver v. Pinto 
 Leite, L. R., 7 Ch. 90; ZychlinsU v. Malthj, 10 C. B. (N. S.) 838. 
 
 (Z) Harvey v. Morris, Nels. 214. 
 
 (ni) Baker v. PritcJiard, 2 Atk. 387. 
 
140 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 On a bill to establish an agreement for a separate 
 maintenance, a demurrer was allowed to tbe discovery 
 of the separate acts of the husband to induce his wife 
 to recede from the agreement (?n). 
 
 Where a bill required an admission of assets, or 
 an account, if the defendant admitted assets he was 
 not obliged to set out an account (w). 
 
 Where no distinct consideration was paid for 
 certain bUls of exchange, but they formed items 
 in a general banking account, particulars of aU pay- 
 ments into the general account were held unneces- 
 sary (o). 
 
 And where, in a bill for a dissolution of partner- 
 ship, the capital recited by the deed of partnership 
 to have been brought into the concern was alleged 
 not to have been so brought in in fact — to which 
 allegation the defence was that the account was 
 settled at the time — discovery of how the capital was 
 made up was held irrelevant (p). 
 
 Certain classes of acti6ns seem to be entitled to 
 particular consideration by the courts. Actions 
 relating to policies of insurance are of this kind. 
 " Nothing is more difficult to ascertain," said Lord 
 
 (m) Hincks v. Nelthorpe, 1 Vem. 20i. 
 
 (m) Agar t. Regent's Canal Co., Cooper, C. C. 212 ; Paries r. 
 Tanner, 9 Jur., N. S. 455. 
 
 (o) Webster v. Tlirelfall, 2 Sim. & S. 190. 
 
 {p) Wier V. Tucker, L. E., 14 Eq. 25. See also Codrmgton t. 
 Codrington, 3 Sim. 519, exercise of power of appointment ; Wood 
 V. ffitchings, 3 Beav. 504, bill for appointment of receiver, dis- 
 covery songht of other matters; Francis v. Wigxell, 1 Mad. 258, 
 discovery of wife's separate estate, where there could be no decree 
 against her. 
 
IMMATEKIALITY. 141 
 
 Abinger, "and nothing more dangerous than to 
 limit, the right of underwriters to discovery. It has 
 been considered, at all times and in all countries, 
 that in cases of this nature the imderwriters are en- 
 titled, not only to a discovery of all the circum- 
 stances attending the original contract, but to the 
 whole history of the adventure and loss"(5'). 
 
 Section 3. 
 Of Immateriality as regards the Party. 
 
 The discovery, though it may be material to the 
 action, may yet be immaterial as regards the par- 
 ticular party from whom it is sought. 
 
 There are frequently mere formal parties intro- 
 duced for the purpose of bringing before the court 
 all persons who have an interest in the subject in dis- 
 pute ; and it is often unnecessary for each party to 
 meet all the allegations in the claim, or to answer 
 every interrogatory pertinent to them. 
 
 " A trustee or incumbrancer interested only in 
 part, or heir-at-law, always answers to so much of 
 the bUl as applies to him, and need not answer the 
 rest"(r). On a bill against arbitrators. Lord North- 
 ington said : " I do not say that arbitrators are to 
 answer precisely as other defendants are, but yet they 
 ought to answer material charges "(s). 
 
 (j) Janson v. Solarte, 2 Y. & C. 127. See also the rights of an 
 heir, pogt, Chap. IV., Evidence op Opponent. 
 
 (r) Agar t. Regent's Canal Co., Cooper, C. C. 212. 
 
 («) Rylott V. Barrell, 2 Eden, 131; Padley v. Lincoln Wator-^ 
 works Co., 2 Maq. & G. 68. 
 
142 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 It is the business of the party interrogating to 
 point out the charges, or iaterrogatories, applicable 
 to his several opponents. It would manifestly be a 
 task of great difficulty and responsibility on the part 
 of those opponents, or their professional advisers, to 
 select the questions or charges, which it would be 
 incumbent upon each of them to answer. 
 
 The rule of procedure is that interrogatories 
 for the examination of opponents shall contain " a 
 note at the foot thereof, stating which of such 
 interrogatories each of such persons is required to 
 answer," &c.(i). 
 
 Interrogatories may be immaterial as regards the 
 party in the sense that aU the proper parties may 
 not be before the court (m). 
 
 Section 4. 
 Of Immateriality as regards the Time, 
 Where the discovery sought was of partnership 
 accounts before decree (a:). Lord Romilly said : " It 
 
 (<) Order XXXI. 1. 
 
 («) Simpson v. Chapman, 15 Jar. 714, partners. See post, 
 Chap. III., Confidence. 
 
 (x) Clegg v. Edmonson, 22 Beav. 125, 141. This case is sup- 
 ported by many others : see Hue v. Richards, 2 Beav. 305; Sobson 
 V. Flight, 33 Beav. 268; Seavan t. Cooh, 17 W. R. 872; Howe v. 
 M'Kernan, 30 Beav. 547; Great Luxemboiirg Rail. Co. v. Magnay, 
 28 Beav. 646 ; Sminhorne v. Nelson, 16 Beav. 416, 429 ; Reed v. 
 Woodroffe, 24 Beav. 421 ; Srvaiey v. Sutton, 1 Hem. & M. 514 ; 
 Chichester v. Marguis of Donegal, L. R., 4 Ch. 416, title deeds ; 
 which really turn upon the point of practice that a defendant 
 submitting to answer must answer fully. Part IV. 
 
IMMATEEIAllTT. 143 
 
 is contended that the plaintiffs are not entitled to the 
 discovery sought, because it will he immaterial at 
 the hearing of the cause, and that, therefore, the 
 defendant may resist the production of the informa- 
 tion. But what I understand by that is such a case 
 as Webster v. Threlfall{y), where whatever informa- 
 tion you give by the answer, it can, in no degree, 
 assist the plaintiffs in obtaining a decree at the hear- 
 ing. But this case does not fall within that principle, 
 because, assuming that the plaintiff, at the hearing 
 of the cause, proves the existence of the partnership 
 and the amount of his share, and that he thereby 
 establishes his title to the relief which he seeks, he 
 may be entitled to say, ' I will take a decree for the 
 amount of profits admitted by the defendants, with- 
 out taking the account ;' or he may find by the 
 answer the amount of profits so small that it may 
 not be worth his while to proceed with the suit. 
 That cannot be said to be immaterial to the plain- 
 tiff's case. The observation of Lord Eldon in the 
 case of Rowe v. Teed^z), expressly meets this par- 
 ticular point, on the principle that the court is 
 desirous of giving complete relief at the time when 
 it pronounces the decree in the first instance ; for an 
 account is only directed because the court finds its 
 inability, upon the evidence before it, to give com- 
 plete relief" 
 
 On appeal (a) the Lords Justices ordered the 
 motion to stand over to the hearing. 
 
 (y) 2 Sim. & S. 190. 
 
 (z;) 15 Ves. 372. 
 
 (a) Clrgg t. Edmonson, 3 Jur., N. S. 299. 
 
144 OBJECTIOIfS TO PAETICULAE DISCLOSURES: 
 
 In Mansel v. Feeney (b) Lord Hatherley ruled, in 
 accordance with the appeal motion just quoted. He 
 said : " The practice of the court as to production 
 is well settled, and is quite consonant with reason 
 and justice. Even where the question arises on the 
 answer (c) the court has refused to compel a defendant 
 to set out accounts of profits, where the alleged part- 
 nership is denied, because a naere account of profits 
 cannot affect the question whether he is a partner or 
 not. The plaintiff is entitled to all such discovery, 
 and to the production of all such documents as are 
 necessary to make out his case at the hearing ; and 
 if he should fail in that, any account of the profits 
 of the business would become useless and improper ; 
 and it would be unjust to the defendant to compel 
 him to disclose such particulars to a person who, in 
 the event supposed, would have had no interest in 
 the discovery." 
 
 If the party gives such an admission as is sufficient 
 for aU the objects of the suit, up to and including the 
 decree, heneed not give any further details respecting 
 the accounts (<f) ; and where the accounts sought are 
 very extensive the court will inquire what object 
 would be gained by compeUing a party to incur 
 great expense (e). 
 
 (5) 2 John. & H. 313. See also Jacobs v. Goodman, 3 Bro. C. C. 
 487, n ; Turney v. Bailey, i De G., J. & S. 332, partnership cases ; 
 Maund v. Allies, i. Myl. & C. 503, receiver. 
 
 (c) Ante, p. 14:2, u. (a). 
 
 (<2) Lockett V. Lockett, L. R., 4 Ch. 336 ; Brookes v. Bouoher, 
 31 L. J. (Ch.) 821. 
 
 (e) Ibid. ; citing White v. BarTter, 5 De G. & S. TIB ; Kay t. 
 Hargreaves, 14 L. T. (N. S.) 281, bill of discovery. 
 
IMJIATEKIALITT. 145 
 
 The proposition is, upon the general principle, 
 altered where it is alleged that, by means of the 
 e^'idence called for, the case of the party calling for it 
 would be proved, or its proof in any way assisted (_/*). 
 
 Where the discovery sought was of the parcels of 
 the property in dispute, it was reftised. Sir Richard 
 Kindersley remarked : " Some of the documents of 
 which the plaintiif seeks to have production are deeds 
 relating to the estates in question ; and the ground 
 on which he seeks production is that they show the 
 particulars of the parcels. If that were necessary 
 for the plaintiflE" to assist him in the contest, he would 
 have a right to the production, but it will not assist 
 him at all ; the question at issue does not in the 
 least degree depend upon the amount or particulars 
 of the parcels ; and as to those documents, therefore, 
 the plaintiff is not entitled to production "(^). 
 
 Particulars of the infringement of a patent, or a 
 trade-mark, were refused in the same manner until the 
 question of infringement itself had been decided (A). 
 
 Where alternative relief was prayed, the same 
 principle was adopted (i) ; also, where the particulars 
 of a pedigree were sought (A) ; and private dealings 
 
 (/) Harris t. Harris, i Hare, 179; S. C, 3 Hare, 450, partner- 
 ship; Chichester v. Marquis of Donegal, L. E., 4 Ch. 416, title. 
 
 (j}) Wright v. Vernon, 1 Drew. 344 ; Marquis of Donegal v. 
 Stewart, 3 Ves. 446, particulars of goods sold. 
 
 (7«) De la Rue v. Dickinson, 3 Kay & J. 388; Carver v. Pinto 
 Leite, L. R., 7 Ch. 90 ; Foxmell v. Webster, 2 Dr. & S. 250, 2S6 ; 
 Simpson v. Charlesmorth, 14 L. T., N. S. 699. See contra, 
 Crossley v. Stewart, 1 N. K. 426. 
 
 (i) Lett y. Parry, 1 Hem. & M. 617. 
 
 (A) Kettlewell v. Barstow, L. E., 7 Ch. 686; Wright T. Vernon 
 1 Drew. 344. 
 
 H. • H 
 
146 OBJECTIONS TO PARTICULAR DISCLOSURES. 
 
 of a vendor with third parties were protected in a 
 suit to set aside the sale (/). 
 
 The principle seems to be properly summed up 
 in the note to the case of Attorney-General v. 
 Thompson {m): "A plaintiff is not entitled to dis- 
 covery of documents, the right to the possession or 
 inspection of which is not necessary to the proof of, 
 and is only consequential upon, the existence of the 
 title he claims, the title not being admitted; but 
 where the court finds upon the answer that although 
 the title of the plaintiff is not admitted, the question 
 as to the existence of such title is a question to be 
 tried, the plaintiff is entitled to the discovery and 
 production of particulars material to establish his 
 case on such trial." 
 
 When the right to some relief is not in dispute, 
 discovery is usually given. The ground upon which 
 this is done is that the parties have a mutual interest 
 in the evidence called for. The cases upon the sub- 
 ject wiU be found under the head of exceptions to the 
 rule that a party is not entitled to a discovery of the 
 evidence of his opponent (w). 
 
 (t) Great Western Colliery Co. v. Tucker, L. R., 9 Ch. 376. 
 (m) 8 Hare, 106. The objection here encroaches upon that to 
 the discovery of the evidence of an opponent, poit. Chap. IV. 
 (w) See Chap. lY., post. 
 
( 147 ) 
 
 CHAPTEE III. 
 
 OF THE DISCOVERY OF EVIDENCE ACQUIRED IN 
 A CONFIDENTIAL CAPACITY. 
 
 Section 1. 
 
 Of the Privilege of Secrecy generally, on the Ground 
 of Professional Confidence. 
 
 Sir James "Wigram said, " So long as the state of 
 the law shall make it impossible for parties to be 
 their own lawyers, and to act without professional 
 advice, it is indispensably necessary that the privi- 
 leges now conceded to professional communications 
 should be maintained " (a). 
 
 The protection which should be afforded to matters 
 coming to the knowledge of professional men, and 
 to communications passing between them and their 
 clients, was at one time considered to be very different 
 in degree, according as the discovery was sought from 
 the client himself or from his professional adviser (b). 
 The contrary has now been expressly decided ; but 
 the decisions have been so contradictory as to call 
 forth the remark of the Lord Justice Knight Bruce 
 that, having "looked at many, if not all, of the 
 
 (a) Woods T. Woods, i Hare, 83. 
 (i) Grreenlav; v. King, 1 Beav. 137. 
 h2 
 
148 OBJECTIONS TO PAKTICULAE DISCLOSUKKS: 
 
 judicial opinions that are reported as having, from 
 time to tipie, during the last twenty-five years, been 
 pronounced in our com-ts of equity as to the cir- 
 cumstances in which, and the extent to which, a 
 suitor can enforce against his adversary a discovery 
 of documents, I was then and have been now much 
 struck with their number and variety" (c). 
 
 The same difficulty seems to have been experienced 
 in settling this question in the courts of common 
 ■ law. Dr. Lflshington is reported to have remarked, 
 " I have examined the cases at common law on the 
 subject, but the whole question seems to me to be in 
 a state of darkness and confusion " (c? ). 
 
 Lord Brougham distinguished the several phases 
 of the question in a judgment given in the case of 
 Greenough v. Gaskell, which may be considered as 
 the leading case upon the subject : — 
 
 " To compel a party himself to answer upon oath, 
 even as to his belief and thought, is one thing ; nay, 
 to compel him to disclose what he has written and 
 spoken to others, not being his professional advisers, 
 is competent to the party seeking the discovery : for 
 such communications are not necessary to the con- 
 duct of judicial business, and the defence or prose- 
 cution of men's right by the aid of skilful persons. 
 
 " To force from the party himself the production 
 of communications made by him to professional men 
 seems inconsistent with the possibility of an ignoi^ant 
 man safely resorting to professional advice, and can 
 
 (c) Pearse v. Pearse, 1 Dc 6. & Sm. 12, 31. 
 {d) Tlie Macgregor Laird, L. R., 1 A. & E. 307. 
 
CONFIDENCE. 149 
 
 only be justified if the authority of decided cases 
 warrants it. 
 
 '"' But no authority sanctions the much wilder 
 violation of professional confidence, and in circum- 
 stances wholly diflTerent, which would be involved in 
 compelling counsel, or attornies, or solicitors, to 
 disclose matters committed to them in their pro- 
 fessional capacity ; and which, but for their employ- 
 ment as professional men, they would not have 
 become possessed of." 
 
 The extent of the privilege is the subject of this 
 chapter : its foundation is not difficult to discover. 
 " It is not (as has sometimes been said) on account 
 of any particular importance which the law attributes 
 to the business of legal professors, or any particular 
 disposition to afibrd them protection, though certainly 
 it may not be very easy to discover why a like privilege 
 has been refiised to others, and especially to medical 
 advisers. But it is out of regard to the interests of 
 justice, which cannot be upholden, and to the admi- 
 nistration of justice, which cannot go on without the 
 aid of men skilled in jurisprudence, in the practice 
 of the courts, and in those matters aflfecting rights 
 and obligations which form the subject of aU judicial 
 proceedings. If the privilege did not exist at all, 
 every one would be thrown upon his own legal 
 resources ; deprived of aU professional assistance, a 
 man would not venture to consult any skiHul person, 
 or would< only dare to tell his counsellor half his 
 case " (e). 
 
 («) Per Lord Brongham, Greenovgli y. Gashell, 1 Myl. & K. 98. 
 
150 OBJECTIONS TO PAETICULAK DISCLOSDRES: 
 
 This protection, being adopted simply from ne- 
 cessity, ought to extend no farther than is absolutely 
 necessary; and beyond that point, ought not to curtail 
 the valuable power of the coui;ts of compelling 
 discovery (/). 
 
 The privilege is that of the client, and not that of 
 the solicitor (9). It would seem to follow, therefore, 
 -that the principle of this objection should extend as 
 ■well to communications made to the party himself, 
 without the medium of a professional man, as to 
 those which pass through that medium. Where the 
 discovery was sought of letters from witnesses, Chief 
 Baron Alexander held that the parties were not en- 
 titled either to their discovery, or to the discovery of 
 the names of the vrriters of them, which it would be 
 sufficient to make known in time for cross-examination. 
 " All the rules," he said, " with respect to the publica- 
 tion of depositions are decidedly in opposition to the 
 production to the plaintiff of what are probably the 
 statements of the facts which the witnesses will be 
 able to prove, and they would not be any evidence if 
 produced. I think, also, that the plaintiff is not en- 
 titled to the production of any documents relating to 
 
 (/) Glyn T. Caulfield, 3 Mac. & G. 463; WoolUy v. North 
 London Mail. Co., L. R., 4 C. P. 602; Jenner v. London and 
 South Eastern Sail Co., L. E., 7 Q. B. 767, 770; Skinner v. 
 Great Northern Bail. Co., L. R., 9 Exch. 298. Lord Langdale's 
 decisions on the subject have been oTerrnled, such as Maden v. 
 Yeeveri. 
 
 (g) Parhhiirst y. Lowten, 2 Swans. 194, 216, per Lord Eldon ; 
 In re Cameron's Coalhrookdale Rail. Co., 2.5 Beav. 1 ; and, there- 
 fore, the si'lioitor must do what his client ought to do; Fenmick t- 
 Reid, 1 Mcr. 114. 
 
CO^*FlDENCE. 151 
 
 iacts or circumstances occurring since the institution 
 of the suit" (A). 
 
 Sir John Stuart ruled that " communications with 
 a professional, or even an unprofessional, agent, in 
 anticipation of litigation, with a view to the prosecu- 
 tion of a claim, or a defence against a claim, and to 
 the matter in dispute, being confidential, are privi- 
 leged " (i). 
 
 The cases of Preston v. Carr and Ross v. Gibbs(k) 
 show- that the communications between a party, or 
 his legal adviser, and witnesses, are also privileged. 
 There is, in those cases, the same necessity for pro- 
 tection ; otherwise, as Lord Langdale remarked, it 
 would be impossible for a defendant to write a letter 
 for the purpose of obtaining information on the sub- 
 ject of a suit, without incurring the liability of having 
 the materials of his defence disclosed to the adverse 
 party (/). 
 
 This principle has been carried so far as to pro- 
 tect letters passing between co-plaintiffs relative to a 
 
 (h) Prenton v. Carr, 1 Y. & J. 175. 
 
 (i) Rosi T. GMs, L. R., 8 Eq. 522. 
 
 (A) Vhi sup. 
 
 (J) Cvrling v. Perring, 2 My]. & K. 380; Storey v. Lord G. 
 Lennox, 1 Myl. & C. 525, 537; Llemellyn v. Baddeley, 1 Hare, 
 527; Lafone v. Falkland Islandt Co., 4 Kay & J. 34; Gandee 
 T. Stamfeld, 4 De G. & J. 1; Dam y. Eley, 2 Hem. & M. 725; 
 Cl-Mrtered Bank of India Y. Rioh, 32 L. J. (Q. B.) 300; WolUy 
 V. Pole, 32 li. J. (C. P.) 263; Phillips v. Routk, L. R., 7 C. P. 
 287, negligence; Wilson v. Northampton and Banhury Junction 
 Mail. Co., L. B., 14 Eq. 477, 483, solicitors to directors, secretary, 
 engineer, and agents; Hamilton ». Nott, L. E., 16 Eq. 112; 
 Chap. IV., Evidence op Opposest. 
 
152 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 proposed litigation (m), and between defendants and 
 possible plaintiffs (w). 
 
 Several recent railway cases are also very mate- 
 rial. But, in these cases, the conclusions arrived at 
 by the various courts differ. They all agree that 
 the reports of employes and medical officers, sent to 
 report upon railway accidents, are privileged, if they 
 are of the nature of evidence collected for the com- 
 panies ; but not where the officers are employed as 
 agents to treat with injured persons, or merely make 
 returns in the ordinary course of their duty (o). The 
 differences consist in the kind of report which is held 
 to be liable to inspection, the Court of Queen's Bench 
 being less willing to allow inspection than the Courts 
 of Common Pleas or Exchequer (p). 
 
 The extent of the privilege accorded to communi- 
 cations between the professional adviser and the 
 client, where the client is the party interrogated, has 
 been the subject of frequent controversy. 
 
 (m) Allan v. Royden, 43 L. J. (C. P.) 206. .But see Cnlman v. 
 Truman, 3 Hurl. & N. 871; Rayner v. EAtsnn, 6 Best & S. 888. 
 
 (») Richards v. Gellatly, L. R, 7 C. P. 127. 
 
 (o) Baker t. London and South Western Rail. Co., 8 Best & S. 
 645; Woolley v. Korth London Rail. Co., L. R., 4 C. P. 602; 
 Cossey v. London, Brighton and Sonth Coast Rail. Co., L. R., 5 
 0. P. 146; Fenner v. South Eastern Rail. Co., L. R., 7 Q. B. 767; 
 Skinner t. Great Northern Bail. Co., L. R., 9 Ex. 298; Maiden 
 V. Great Northern Rail. Co., cited iMd.; Wayland v. Metro- 
 politan Rail. Co., Weekly Notes, 1874, p. 96. See Hill v. Great 
 Western Rail. Co., 10 C. B. (N. S.) 148; Bere v. Hutchings, 10 
 C. B. (N. S.) 829. 
 
 (p) But see the judgment of Sir James Hannen in the case of 
 Fenner v. South Eastern Rail. Co., ubi svp., at p. 772. 
 
CONFIDENCE. 153 
 
 * 
 
 Sir James Wigram tlius gave judgment in the case 
 of Walsingham v. Goodricke (q). " The first point 
 decided upon this subject -was that communications 
 between the solicitor and client, pending litigation 
 and with references to such litigation, were privi- 
 leged : upon this there is not at this day any ques- 
 tion." 
 
 " The next contest was upon communications 
 made before litigation, but in contemplation of, and 
 with reference to, litigation which was expected and 
 afterwards arose ; and it was held that the privilege 
 extended to these cases also." 
 
 " A third question then arose with regard to com- 
 munications after the dispute between the parties, 
 followed by litigation, but not in contemplation of, 
 or with reference to, that litigation ; and these com- 
 munications were also protected." 
 
 " A fourth point which appears to have called for 
 decision was the title of a defendant to protect fi-om 
 discovery, at the suit of one party, cases and state- 
 ments of fact," " relating to the same question, but 
 having reference to disputes with other persons." 
 These were also protected (r). 
 
 " The case which is now before me is not within 
 any of the cases which I have stated. I am asked 
 to carry the pri\'ilege further than any of those de- 
 cisions have carried it." " The question is, whether 
 these written communications (between client and 
 
 (j) 3 Hare, 122. 
 
 (r) Vent y. Pacey, 4 Buss. 193; Clagett t. Phillips, 2 T. & C. C. 
 C. 82; Combe v. C%ty of London, 1 Y. & C. C. C. 631. 
 
 h5 
 
154 OBJECTIONS TO PAKTICOLAR DISCLOSURES: 
 
 solicitor) are privileged, regard being had to the cir- 
 cumstance that they took place before any dispute 
 arose, though with reference to the very Subject in 
 respect of which that dispute has since arisen. If 
 the matter were res integra, I should scarcely hesitate 
 in favour of the privilege." 
 
 " I believe I am correct in saying that in no re- 
 ported case before any lord chancellor does it appear 
 that the court was called upon by the actual circum- 
 stances of the case to decide that communications 
 like those before me might not be privileged. I am of 
 opinion the privilege, so far as the cases warrant it, 
 ought to be upheld. Any part of the letters which 
 contains legal advice or opinions may be protected." 
 And his Honor ordered production of all the 
 letters in question,^ except such of them as were 
 stated upon affidavit to contain legal advice or 
 opinions. 
 
 This case was approved of by Lord Cranworth as 
 Vice-Chancellor ; but he decided that, as it was not 
 alleged that any of the letters specified in the 
 schedule before him contained legal advice or 
 opinions, they ought to be produced (s). 
 
 Lord Justice Knight Bruce, in the case of Pearse 
 V. Pearse (t), also went very fuUy into the question 
 of privilege. He said, " What, for the purposes of 
 discovery, is the distinction in point of reason, or 
 principle, or justice, or convenience, between such 
 communications (after the commencement of a dis- 
 pute ending in litigation) and those which differ from 
 
 (s) Hawkins v. GathercoU, 1 Sim. (N. S.) 150. 
 (i) 1 De G. & Sm. 12, 27. 
 
CONFIDENCE. 155 
 
 them only in this, that they precede instead of follow- 
 ing the actual arising, not of a cause of dispute, but 
 of a dispute, I have never hitherto been able to 
 perceive." 
 
 " A man is in possession of an estate as owner ; 
 he is not under any fiduciary obligation ; he finds a 
 flaw, or a supposed flaw, in his title, which it is not 
 in point of law or equity his duty to disclose to any 
 person ; he believes that the flaw or supposed defect 
 is not known to the only person, who, if it is a defect, 
 is entitled to take advantage of it, but that this per- 
 son may probably or possibly soon hear of it, and 
 then institute a suit or make a claim. Under this 
 apprehension he consults a solicitor, and, through the 
 solicitor, lays a case before counsel on the subject, 
 and receives his opinion. Some time afterwards the 
 apprehended adversary becomes an actual adversary, 
 for, coming to the knowledge of the defect or sup- 
 posed flaw in the title, he makes a claim, and after a 
 preliminary correspondence, commences a suit in 
 equity to enforce it ; but between the commencement 
 of the correspondence and the actual institution of 
 the suit, the man in possession again consults his 
 solicitor, and through him lays a case before counsel." 
 " I have, I repeat, yet to learn that such a distinc- 
 tion has any foundation in reason or convenience." 
 
 Lord Hatherley, when Vice-ChanceUor, in giving 
 judgment in the case of Manser v. Dix{u), said: 
 " You can of course extract from the client every- 
 thing that he knows ; the circumstance that he has 
 
 (M) 1 Kay & J. 451, 454, 4C1. 
 
156 OBJECTIONS TO PAKTIOULAR DISCLOSUKES: 
 
 coraimmicated it to his solicitor is not a reason for 
 refusing this kind of discovery. You would be able 
 to discover every fact in the client's knowledge ; but 
 you must get them from him upon oath, and as you 
 Could not call his solicitor to contradict anything 
 which he may say by disclosing what may have passed 
 between them in consultation, I should .have thought, 
 independently of authority, that the true rule would 
 be that, as you could not show that in conversation 
 with his solicitor he had made such and such state- 
 ments, of course everything which he wrote to his 
 solicitor should be equally privileged." . 
 
 " In this case the constdtations were between a 
 man and his solicitor as to a proposed conveyance to 
 him, in order to make himself quite secure." " Here, 
 where the consultation has been against all possible 
 claimants who may hereafter dispute the title, I think 
 I am authorized to say that these documents are 
 privileged." 
 
 The suit of Paddon v. Winch (z) was brought by 
 a legatee for the purpose of obtaining a declaration 
 that her legacy was charged upon certain freehold 
 hereditaments which had been sold to the defendant. 
 The latter insisted upon his title of purchaser for 
 value without notice, and that he was led to believe 
 that the plaintiflF's legacy had been long since paid, 
 though he admitted that he held an indemnity from 
 his vendor against any claim in respect of it. Pro- 
 duction was sought from the defendant of the letters 
 
 (a) 9 Eq. 666. See Carpmael v. Poiclt, 1 Ph. 687, marginal 
 note; semble. 
 
CONFIDENCE. 157 
 
 which passed between the solicitors of the parties to 
 the sale in reference to it. Lord Justice James, 
 when Vice-Chancellor, is reported to have said, 
 " They cannot be said to be letters written in antici- 
 pation of the claim raised by this suit, and must 
 therefore be produced." 
 
 The words printed in italics seem to suggest that 
 it was on the ground they point out that production 
 was ordered. Such a decision would be contrary to 
 the principles now adopted. But these letters were 
 not letters between a client and solicitor, but be- 
 tween the solicitors of vendor and purchaser — possible 
 co-defendants ; or between the solicitor and a stranger 
 to the litigation. Neither of these cases come within 
 the protection from discovery. 
 
 The case of Wilson v. Northampton and Ban- 
 hury Junction Railway Company (y) was thus 
 described by Sir Richard Malins : " The ques- 
 tion is, whether letters or communications passing 
 between the soHcitor and client before litigation com- 
 menced, but which afterwards did commence, relating 
 to a contract which had been entered into and which 
 led to the litigation, are privileged." After review- 
 ing a number of cases, his Honor concluded, " On 
 the broad general principles on which I desire to be 
 understood as deciding this case, all correspondence 
 between solicitors and clients .relating to the subject- 
 matter of a contract which has been entered into, 
 and which may lead to litigation — whether it has 
 done so or may do so, whether it is probable or im- 
 
 (y) L. R., U Eq. 477, 480, 483. 
 
IAS OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 probable that it may do so— ought certainly to be 
 privileged." 
 
 The case of Macfarlan v. Rolt{z) turned princi- 
 pally upon the sufficiency of the affidavit of docu- 
 ments to protect them. Sir John Wickens decided : 
 "As to the general question here, I shall foUow 
 Manser v. Dix (a), which appears to me to be appli- 
 cable to this case." 
 
 The next case seems to have been that of Minet v. 
 Morgan (b). There production was sought from the 
 plaintiff Lord Selbome made use of the following 
 expressions. " There is a (judgment) by that most 
 accurate and learned judge, Sir E.. T. Kindersley-^ 
 Lawrence v. Campbell (c) — which contains a state- 
 ment of the Vice-Chancellor's view of the principle, 
 and also of the rule which in 1859 had come to be 
 well settled and established in this court on the 
 foundation of that principle. He says, ' It is not 
 now necessary, as it formerly was, for the purpose 
 of obtaining production, that the communications 
 should be made either during or relating to an actual 
 or even to an expected litigation. It is sufficient if 
 they pass as professional commimications in a pro- 
 fessional capacity.' I can only say that I entirely 
 agree with the views both of the principle and of its 
 proper extension taken in these later authorities." 
 
 As to this privilege where the counsel, attorney 
 or solicitor is the party interrogated, the case 
 
 (a) L. E., 14 Eq. 580. 
 
 (a) UH Slip. 
 
 (J) L.R.,8Ch. 36L See also Twrfora v. 5a?-Jer, L. E., 17 Eq. 329. 
 
 (c) 4 Drew. 485. 
 
CONFIDENCE. 159 
 
 already quoted of Greenough v. Gas'kell{d) is 
 again in point. Lord Brougham thus states it. 
 "We are here to consider, not the case which has 
 frequently arisen in courts of equity, and more than 
 once since I came into this court, of a party called 
 upon to produce his own communications with his 
 professional advisers." " Here the question relates 
 to the solicitor, who is called upon to produce the 
 entries he made in accounts and letters received by 
 him, and those written (chiefly to his town agent) 
 by him, or by his direction, in his character or situa- 
 tion of confidential solicitor to the party ; and I am 
 of opinion that he cannot be compelled to disclose 
 papers delivered, or communications made to him, 
 or letters, or entries made by him in that capacity." 
 After the passage, attributed to him above, his lord- 
 ship proceeds (speaking of counsel and solicitors) : 
 " As regards them, it does not appear that the pro- 
 tection is qualified by any reference to proceedings 
 pending or in contemplation. If, touching matters 
 that come within the ordinary scope of professional 
 employment, they receive a communication in their 
 professional capacity, either from a client or on his 
 account, and for his benefiti^e) in the transaction of 
 his business ; or, which amounts to the same thing, 
 if they commit to paper, in the course of their em- 
 ployment on his behalf, matters which they know 
 only through their professional relation to the client, 
 they are not only justified in withholding such 
 
 {d) 1 Myl. & K. 98, 100, 101, 115. 
 
 («) On the words in italics, see Furd v. Tennant, post, p. 162. 
 
160 OBJECTIONS TO PARTICULAR DISCLOSURES : 
 
 matters, but bound to withhold them, and will not 
 be compelled to disclose the information, or produce 
 the papers in any court of law or equity, either as 
 party or as witness. If this protection were con- 
 fined to cases where proceedings had commenced, 
 the rule would exclude the most confidential, and,, it 
 may be, the most important of all communications ; 
 those made with a view of being prepared either for 
 instituting or defending a suit, up to the instant that 
 the process of the court issued. If it were confined 
 to proceedings begun or in contemplation, then every 
 communication would be unprotected which a party 
 makes with a view to his general defence . against 
 attacks which he apprehends, although at the time 
 no one may have resolved to assail him. But, were 
 it allowed to extend over such communications, the 
 protection would be insufficient, if it only included 
 communications more or less connected with judicial 
 proceedings ; for a person oftentimes requires the aid 
 of professional advice upon the subject of his rights 
 and his liabilities, with no reference to any particular 
 litigation, and without any other reference to Htiga^ 
 tion generally than all human affairs have, in so far 
 as every transaction may, by possibility, become the 
 subject of judicial inquiry. It would be most mis- 
 chievous, said the learned judges in the Common 
 Pleas, ' if it could be doubted whether or not an 
 attorney, consulted upon a man's title to an estate, 
 was at liberty to divulge a flaw.' " " The rules of 
 evidence are the same on both sides of the Hall." 
 
 Lord Lyndhurst, approving of the case just quoted, 
 laid down the rule that where an attorney is employed 
 
CONFIDENCE. 161 
 
 by a client professionally, to transact professional busi- 
 ness, all the communications that pass between the 
 client and attorney in the course, and for the purpose, 
 of that business, are privileged(/). 
 
 Notwithstanding the masterly judgment of Lord 
 Brougham, there have been several limit9,tions im- 
 posed upon the protection. 
 
 In the first place, the communications must have 
 been confidentially made to the attorney or solicitor 
 whilst acting in that character (9) ; or be such as he 
 would not have obtained but for his having been 
 consulted professionally (A): they must be within 
 the ordinary scope of a solicitor's duty (2); and must 
 not come fi-om collateral quarters. Thus, a distinc- 
 tion has been drawn between matters of fact relating 
 to professional business come to the knowledge of (A), 
 
 (/) Serving v. Cloherry, 1 Ph. 91, snit to rectify an old settle- 
 ment, solicitor employed to prepare the deed, hut never acted again ; 
 Jones T. Fngli, 1 Ph. 96, citing; Boj'cc^ t. Clayton, 2 Swans. 221, 
 ■in- note, protection given to a scrivener; Carpmael v. Porvis, 1 Ph. 
 f;s7, sale of an estate; Davies v. Waters, 9 Mees. & W. 608, deed 
 only read by attorney jnst previonsly at a consultation; Wheatley 
 V. Williams, 1 'Mees. & W. 533, per Lord Abinger. The privilege 
 extends to an attorney's clerk, Taylor v. JPorster, 2 Car. & P. 19.'5. 
 
 (g) Tliomas T. Rawlings, 27 Beav. 140; B^adon v. King, 17 
 Sim. 34; Turquand v. Knight, 2 Mees. & W. 98 ; Lamrence v. 
 Camplell, 4 Drew. 485, Scotch solicitor; Perry y. Smith, 9 Mees. 
 & W. 681. 
 
 (A) Wheatley v. Williams, 1 Mees. & W. 533. 
 
 (i) Carpmael v. Poms, 1 Ph. 687. 
 
 (h) Spencely v. Schulenbnrg, 7 East, 357 ; Seshnrovgh v. 
 Mamlings, 3 MyL & Cr. 515; Cotm.an v. Orton, 9 L. J. (Ch.) 268 ; 
 Jones V. Godrich, 5 Moo. P. C. 16; Marsh v. Keith, 1 Dr. & S. 
 342. 
 
162 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 or questions of fact asked of{l), a professional ad- 
 viser ; and statements made to Hm for the purpose 
 of obtaining legal advice (w). Again, communica- 
 tions between a solicitor and his client, and between 
 the former and third parties, have been distin- 
 guished (w). 
 
 The next important limitation of the doctrine is 
 pointed out by Lord Justice Turner. He said, that 
 " where the rights and interests of clients, and those 
 claiming under them, come in conflict with the 
 rights and interests of third persons, there can be 
 no difficulty in applying the rule." But there is a 
 difficulty where cases of testamentary disposition 
 arise. " The disclosure in such cases can affect no 
 right or interest of the client. The apprehension of 
 it can present no impedient to the full statement of 
 his case to his solicitor, and the disclosures when 
 made can expose the court to no greater difficulty 
 than presents itself in all cases where the views and 
 intentions of persons, or of the objects for which 
 the disposition is made, are unknown. In the cases 
 of testamentary dispositions the very foundation of 
 the rule seems to be wanting, and, in the absence, 
 therefore, of any illegal purpose being entertained 
 
 (Z) Brammell v. Luoas, 2 Barn. & C. 745. 
 
 (m) Sareyer v. Birchmore, 3 My I. & K. 572. 
 
 (») Gore T. Bowser, 5 De G. & Sin. 33, where solicitor communi- 
 cated with the opposite party; Ford v. Tennant (No. 2), 32 Beav. 
 162, -where letters in question were from a stranger to the suit; Marsh 
 V. Keith, 1 Dr. & Sm. 342; Bampson v. Bampson, 26 L. J. (Ch.) 
 612, where party afterwards became London agent. 
 
CONFIDENCE. 163 
 
 by the testator, there does not appear to be any 
 ground for applying it " (o). 
 
 The allusion to an illegal purpose in the above 
 judgment suggests the most important departure from 
 the rule. It was said by Lord Hatherley, in the 
 case of Gartside v. Outram(p), "that there is no 
 confidence as to the disclosure of iniquity. You 
 cannot make me the confidant of a crime, or a fraud, 
 and be entitled to close up my lips upon any secret 
 which you have the audacity to disclose to me 
 relating to any fi*audulent intention on your part : 
 such a confidence cannot exist." Fraud is no part 
 of a solicitor's duty, therefore the rule cannot apply 
 where such a state of things exists (y). 
 
 The privilege of secrecy on the ground of profes- 
 sional confidence extends to business communications 
 between client and solicitor (?•), client and solicitor's 
 
 (o) Rvssell V. Jaclison, 9 Hare, 387. 
 
 {p) 26 L. J. (Ch.) 113, 114, citing Annegley v. Earl of Anglesea, 
 17 How. State Trials, 1139; Mornington t. Morningtnn., 2 John. & 
 H. 697, 703; Gore t. Bowser, 5 De G. & Sm. 30; Goodman v. 
 Holroyd, 15 C. B. (N. S.) 831>; Blight t. Goodliffe, 18 C. B. (N. S.) 
 757; Chartered Bank of India v. Rich, 32 L. J. (Q. B.i 300, 306; 
 B. Y. Jones, 1 Den. C. C. 166; B. t. Farley, 1 Den. C. C. 197. A 
 mere charge is insufficient. Crisp v. Platel, 8 Beav. 62; Charlton 
 v. Coomhes, 4 GifE. 372. The conrt will look at the circnmstances 
 of each case, Bassford v. Blahesley, 6 Beav. 131. See also Boe A. 
 Shellard v. Harris, 5 Car. & P. 594; Levy v. Pope, Moo. & M. 410. 
 
 (q) Beynell T. Sprye, 10 Beav. 61; Follett v. Jefferyes, 1 Sim. 
 (N. S.) 1. 
 
 (r) Greenovgh v. Oashell, 1 Myl. & K. 98; secvs, where the 
 party is not an attorney, Boe d. Pritohard v. Jauncey, 8 Car. & 
 P. 99. See also Smith v. Baniell, L. R., 18 Eq. 649; Cromaeh v. 
 Heathcote, 2 Brod. & B. 4. 
 
164 OBJECTIONS TO PARTICULAE DISCLOSURES: 
 
 agent(.?), client's agent and solicitor (0, and between 
 solicitor and his agent (m). Where the attornies of 
 the parties met with a view to compromise, their 
 conversations were privileged (x); but there was no 
 privilege admitted where the parties themselves were 
 present (y). Where the attorney had acted for the 
 plaintiff, he was allowed to give evidence against the 
 defendant (z). Where he had acted for both parties, 
 he could not refuse to give evidence for either of 
 them (a). In a case where the parts of the evidence 
 which were admissible, and those Avhich were in- 
 admissible, were so mixed up that they could not be 
 separated, production of the whole was refused (J). 
 
 The practitioner's mouth is shut for ever (c). The 
 protection does not terminate with the death of one 
 
 (s) Steele v. Stewart, 13 Sim. 533 ; Lafone v. Falldand Islands 
 Go., 4 Kay & J. 34; Simpson v. Bromn, 33 Beav. 482; Fenner t. 
 Sovih Eastern Rail. Co., L. R., 7 Q. B. 767, 770. 
 
 it) Goodall V. Little, 1 Sim. (N. S.) 155; Reid v. Langlois, 2 
 Hall & T. 59; Hooper v. Gumm, 2 John. & H. 602; Btmhury v. 
 Bnnbury, 2 Bear. 173. 
 
 (ii) Hughes v. Biddulph, 4 Enss. 100; Goodall t. Little, uH 
 svp. ; Hampson v. Hampson, 26 L. J. (Ch.) 612; Lafone t. Falk- 
 land Islands Co., 4 Kay & J. 34. 
 
 (x) Jardine v. Shefidan, 3 Car. & K. 24; Hnghes v. Garnons, 
 6 Beav. 352. See Whiff en v. Hartwright, 11 Beav. 111. 
 
 {y) Weeks v. Argent, 16 Mees. & W". 817; Shore v. Bedford, 5 
 Man. & G. 271. See In re Cameron's Coalbrookdale Rail. Co., 25 
 Beav. 1 ; GasTiell v. Chambers, 26 Beav. 303. 
 
 («) Perry v. Smith, 9 Mees. & W. 681. 
 
 (a) Baugh v. Cradoche, 1 M. & Eob. 182; TiigKell v. Hooper, 
 10 Beav. 348. 
 
 (*) Lodge v. Pritchard, 4 De G. & Sm. 587. 
 
 (c) Per BuUer, J., Wilson v. Rastall, 4 T. E. 753, 759. 
 
CONFIDE^rCE. 165 
 
 of the parties to it ((?) ; if the solicitor becomes an 
 interested party (e); or ceases to practise without 
 the knowledge of the client (/); and it may be 
 enforced by injunction (ff). 
 
 It covers certain memoranda, such as those of 
 trustees(A), arbitrators (f), accountants (A), aiidshort- 
 hand writers (Z); but business accounts must some- 
 times be disclosed(w). Deeds affecting property 
 after the date of a transaction which is impeached, 
 are not privileged (w). The court rolls of a manor 
 are not privileged as against the freeholders of the 
 manor(o). And there is no especial privilege attach- 
 ing to the office of an official liquidator (/)). 
 
 {d) But follows the legal interest, Russell v. Jackson, 9 Hare, 
 387; Penreick \. Heed, 1 Mer. 114; Clutrlton v. Coovibes, 4 Gill 
 372. See Chesley v. Mousley, 2 Kay & J. 288. 
 
 (e) Cholmondeley v. Clinton, 19 Ves. 261, 272; Chant t. Brown 
 7 Hare, 79. 
 
 (/) Calley v. Richards, 19 Beav. 401; Marriott v. Anolior 
 Reversionary Co., Ld., 3 Giff. 304. 
 
 (^) Davies t. Clough, 8 Sim. 262 ; Lemis t. Smith, 1 Mac. & G. 
 417; or the depositions suppressed, Sandford v. Remington, 2 Ves. 
 jun. 189. See also Taylor v. Blaeklom, 3 Bing. N. C. 235. 
 
 (A) Colyer v. Colyer, 30 L. J. (Ch.) 408; but see Farrer y. Hut- 
 chinson, 3 Y. & C. 692. 
 
 (i) Ponsford v. Swaine, 1 John. & H. 433; Bybott \. Barrell, 
 2 Eden, 131, 134. 
 
 (Ti) Walsham t. Stainton, 2 Hem. & M. 1. 
 
 (I) MchoU T. Jones, 2 Hem. & M. 588. 
 
 (ot) Brown v. Perhins, 2 Hare, 540, solicitors ; Telford v. RvsMn, 
 1 Dr. & Sm. 148, wine merchants ; Home v. McKernan, 30 Beav. 
 547; Ord v. Fawcett, 19 L. J. (Ch.) 487; Leather Cloth Co. 
 (Limited) v. Hirsclifield, 1 Hem. & M. 295, other tradesmen. 
 
 (n) Gresley v. Mousley, 2 Kay & J. 288. 
 
 (o) Warrick v. Queen's College, L. R., 3 Eq. 683. 
 
 (p) In re Barned's Banking Co., Ex parte Contract Corpora- 
 tion, L. R., 2 Ch. 350. 
 
166 OBJECTIONS TO PAKTICULAK DISCLOSURES: 
 
 The privilege does not extend to communica^ 
 tions between co-defendants (y), or those made to 
 parents, friends (r), clergymen (*), medical attend- 
 ants(i), agents(M), stewards(ar), or persons in the 
 most confidential relationship (y). The possession 
 of a trustee is constructively that of his cestui que 
 trust{z). 
 
 Where production of a document is not ordered 
 the party wiU not be bound to state its contents (a). 
 The property in a letter is in the receiver (6). 
 
 The protection may be lost by not being distinctly 
 
 (j) Goodall Y. Uttle, 1 Sim. (N. S.) 155; TtTiUbread v. 
 Gv/rney, Younge, 541; Glyn t. CaulfieU, 3 Mac. & G. 463; Betts 
 V. Menzies, 26 L. J. (Ch.) 528; Hamilton v. JVort, L. R., 16 Eq. 
 112, where one defendant was the agent of the solicitor on the 
 record. But see JenJdns v. Bushy, L. E., 2 Eq. 547, where the 
 letter was to be forwarded to the joint solicitor of the corresponding 
 defendants. 
 
 (r) SmitJb T. Daniell, L. E., 18 Eq. 649. 
 
 (») B. V. Gilliam, 1 Moody, C. C. 186. 
 
 (<) Baiter v. London and South Western Rail. Co., 3 C. P. 91 ; 
 Wayland t. Metropolitan Bail. Co., Weekly Notes, 1874, p. 96; 
 Malioney t. National Widoms' Life Assurance Co., L. R., 6 C. P. 
 252. Bat see Cossey v. London, Brighton and South Coast Bail. 
 Co., L. E., 5 C. P. 146 ; Skinner \. Great Northern Rail. Co., 
 L. E., 9 Ex. 298, ante, p. 152. See also Hill v. Philp, 7 Exch. 
 232, lunatic asylum. 
 
 (m) But see Wolley t. Pole, 32 L. J., C. P. 263; SHtmer v. 
 Great Northern Bail. Co., L. R., 9 Ex. 298. 
 
 (a) 'Barl of Falmouth v. Moss, 11 Price, 455, 465; Doe d. 
 Marriott t. Marquis of Hertford, 19 L. J., Q. B. 526 ; Bishop of 
 Winchester v. Bomher, 29 Beav. 479. 
 
 (jl) Greenlam v. King, 1 Bear. 137; 16 & 17 Vict. c. 83 ; 0' Connor 
 T. Majorihanks, 4H. & Gr. 435. 
 
 (z) Fern V. Gvppy, 13 Beav. 457. 
 
 (a) Bams v. Waters, 1 Dowl. P. R. (N. S.) 651. 
 
 (J) Hophinson v. Lord Burghley, L. E., 2 Ch. 447. 
 
CONFIDENCE. 167 
 
 claimed (c) ; but not by agreement {d), or compro- 
 mise (e). It is extinguished by the party becoming 
 a trustee for the benefit of creditors (_/). It is, of 
 course, a question for the judge and not for the 
 jury (^). The refusal to permit one's solicitor to give 
 evidence does not give rise to an adverse presump- 
 tion (/t). 
 
 The same rules are applicable to all proceedings, 
 whether they are of a civil or criminal nature (z). 
 But the privilege of a bankrupt, so far as his estate 
 is concerned, comes to an end vyhen it vests in the 
 trustee. 
 
 A solicitor is not bound to disclose the address of 
 his client (A) ; but where a ward of court is in ques- 
 tion it is otherwise (Z), and in bankruptcy (tw). 
 
 Letters, cases, opinions, instructions, drafts and 
 briefs of cotmsel are privileged to a corresponding 
 extent ; that is, it seems that they must have been 
 
 (c) Walsh V. Trevanion, 15 Sim. 577; Balguy T. Broadhurst, 
 1 Sim. (N. S.) Ill; Hunter v. Capron, 5 Beav. 93; Edmardsy. 
 Jones, 14 L. J. (Ch.) 62; Melntosh v. Great Western Rail, Co., 
 1 Hall & T. 41; Corporation of Dartmonth v. Holdsmorth, 10 
 Sim. 476; FelUn v. Lord Herlert, 30 L. J. (Ch.) 798; Thomas v. 
 Mailings, 27 BeaT. 140. 
 
 {d) Turney v. Bailey, 33 L. J. (Ch.) 499; S. C, 34 Beav. 105; 
 Whiffen T. Hartieright, 11 Beav. 111. 
 
 («) Sughes v. Garnons, 6 Beav. 352. 
 
 (/) Pritchard v. Foulkes, 1 Coop. P. C. 14. 
 
 (y) Cleave v. Jones, 7 Exch. 421, 425. 
 
 (ft) WentTBorth v. Lloyd, 10 H. L. C. 689. 
 
 (i) Reg. v. Duchess of Kingston, 20 How. State Trials, 355, 612. 
 
 (i) Heath v. Orealpelt, L. R., 15 Eq. 257. 
 
 (0 Ramsiotham v. Senior, L. E., 8 Eq. 575; Burton v. Earl of 
 Darnley, cited ibid. 
 
 (m) In re CatJicart, Ex parte Camplell, L. E., 5 Ch. 703. 
 
168 OBJECTIONS TO PARTICULAE DISCLOSURES: 
 
 written or delivered in the ordinary way of profes- 
 sional business (w). 
 
 Cases and opinions, for instance, having reference 
 to the matters in question in a cause, and submitted 
 to counsel after the dispute has arisen were first held 
 to be privUeged(o). Next were included cases stated 
 with a view to a suit in contemplation ; not only in 
 the suit itself, but in any subsequent litigation, with 
 other parties, upon the same subject-matter, and in- 
 volving the same question (p). From that it fol- 
 lowed, that cases and instructions to counsel generally, 
 anterior to litigation, were privileged (§■). 
 
 Instructions to counsel on his brief, or observa- 
 tions, or notes, within it, are privileged ; but not his 
 indorsement, which is publici juris {r). 
 
 A case for the opinion of counsel stated by trus- 
 tees, if paid for by them, is privileged against the 
 cestui que trust(s); but not if taken at the expense 
 of the trust estate (0- An opinion lent, is privi- 
 
 (ffl) And not as a friend, Smith v. Daniell, 18 Eq. 649; Flight 
 T. Mobinson, 13 L. J. (Ch.) 425; Woods y. Woods, i Hare, 83. In 
 an action on an attorney's bill this privilege was refused, Evans y. 
 Delegal, 4 Dowl. P. E. 374. 
 
 (») Bolton V. Corporation of Liverpool, 1 Myl. & K. 88, ex- 
 plaining the earlier cases; Mas v. Northern ^ Eastern By. Co., 3 
 Myl. & C. 355. 
 
 O) Holmes v. JBaddeley, 1 Ph. 476, and cases cited. 
 
 (2) Meece v. Trye, 9 Bear. 316; PenruddochY. Hammond, 11 
 Beav. 59. See Fearse y. Pearse, 1 De G. & Sm. 12. 
 
 (?•) Walsham v. Stainton, 2 Hem. & M. 1 ; Meholl y. Jones, 2 
 Hem. & M. 588. 
 
 (s) Brown v. Oahshott, 12 Beav. 252; Woods v. Woods, 4 Hare, 
 83, taken by cestui qiie triist. 
 
 (t) Devaynes y. RoUnson, 20 Beav. 42; Talbot y. Marshfield, 2 
 Dr. & Sm. 549; Wynne v. Humberston, 27 Beav. 421, claimvit. 
 
cojsrriDENCE. 169 
 
 leged(w): so is the opinion of a foreign counsel (x). 
 The draft of an answer, not put in, is clearly privi- 
 leged, unless it is subsequently referred to(y). Where 
 the draft answer was in another suit. Sir B,. Kinders- 
 ley said, " I think I shall best adhere to this principle 
 if I say that the draft answer comes within the cate- 
 gory of confidential papers, the production of which 
 cannot be compelled ; but if there is a copy of the 
 answer, and the defendant can find an admission of 
 such document by the plaintiff, then he is entitled to 
 production of it" (z). t 
 
 If opinions are taken for the benefit of two parties, 
 they must, no doubt, be open to the inspection of 
 both (a). And it is ground for inferring that they 
 were taken for the mutual benefit of both that they 
 are taken by a tenant in possession, concerning 
 matters which relate to the obligation he is under 
 to preserve his landlord's title (fi). 
 
 Section 2. 
 
 Of the Privilege of Professional Confidence where 
 the Counsel or Solicitor is Defendant. 
 It has been seen that a party cannot be made a 
 defendant to an action for relief unless some decree 
 
 (K) Enthoven v. Cobb, 2 De G., M. & G. 632. 
 
 (x) Bvnbxiry v. Biinbui-y, 2 Beav. 173. 
 
 (?/■) Beliham, v. Harrison, IS L. J. (Ch.) 438. 
 
 (z) Lamb v. Orton, 22 L. J. (Ch.) 713. 
 
 (a) Att.-Geii. v. Berkeley, 2 Jac. & W. 291; Reynell v. Sprye, 
 10 Beav. 51. 
 
 (*) Ibid. The privilege extends to a counsel's clerk, Foote v. 
 Mayne, 1 Car. & P. 545. 
 
 H. I 
 
170 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 is prayed against him(fi). When the action is for 
 discovery, he must have incurred a liability in re- 
 spect of which the action will lie, or it cannot be 
 supported («?). The fact that an action can be 
 supported against him is conclusive that the im- 
 puted transaction is not restricted to mere profes- 
 sional duty. No principle can extend to protect him 
 from answering charges upon which he is sought to 
 be affected in a non-professional capacity. 
 
 A defendant, who is merely a professional agent, 
 may demur, or plead that fact; answering, when 
 necessary, interrogatories offered to him. He then 
 denudes himself of the character of a party, and his 
 evidence can only be obtained by calling him as 
 a witness (e). The doctrines of discovery cease to 
 apply to his case, and if he be examined in the 
 cause, it must be as a witness, and under the -rules 
 affecting witnesses. 
 
 Assuming that a counsel or solicitor is a proper 
 party to an action, the question is, in what respect 
 he differs from any other defendant in the extent to 
 which he is bound to answer. 
 
 If, it has been said, the solicitor or counsel be a 
 party, and especially to a fraud — that is, if he were 
 acting for himself, though he might also be employed 
 for another — he would not be protected from dis- 
 closing; for, in such a case, his knowledge would 
 not be acquired solely by his being employed pro- 
 fessionally (/). In a case before Lord Northington, 
 
 (c) Ante, p. 50. 
 
 {d) Ante, p. 53. 
 
 (e) Lemis v. Pennington, 29 L. J. (Ch.) 670. 
 
 (/) Sect. 1, ante. See Rothwell v. King, 26 Feb., 26 Car. 2, 
 
CONFIDENCE. 171 
 
 the plaintiff claimed an annuity and arrears, and 
 prayed to set aside a lease precedent for securing 
 portions already satisfied, whereof the defendant was 
 assignee, and that he might discover satisfaction. 
 The defendant pleaded that he knew nothing of the 
 satisfaction but as counsel, and he was decreed to 
 answer {ff). Here it is observable that the court did 
 not serrate the knowledge of the transaction which 
 the defendant possessed as counsel and as assignee ; 
 and in another instance, where the defendant com- 
 bined in his own person the character of trustee and 
 solicitor of the cestui que trust, and was defendant 
 to a bill of discovery in aid of the defence to an 
 action in which he was plaintiff, it was held that he 
 could not insist upon the circumstance of his being 
 the solicitor as a ground for resisting the discovery 
 prayed by the bill (A). In these cases, there does 
 not seem to be any distinction arising out of the 
 professional character of the defendant. 
 
 It may happen that the defendant is not able, 
 owing to some difficulty of form, to meet the action 
 by demurrer or plea to the relief or discovery which 
 is sought against him ; or that he may choose to 
 take neither of those courses, but submit to defend 
 the action ; or that his demurrer or plea may extend 
 
 cited Parkhurst v. Zowten, 2 Swans. 194, 221, n. (a), citing Lord 
 Northington's MSS. ; Thomas v. Mailings, 27 BeaT. 140; Lewis v. 
 Pennington, 29 L. J. (Ch.') 670. 
 
 {g) Spencer v. Luttrell, 19 Nov., 26 Car. 2, ubi »up. See also 
 Stanhope "7. Roberts, 2 Atk. 214; Conway t. Sing, at the Bolls, 
 1835. 
 
 (A) Pew V. Quppy, 6h<ppy v. Few, 1 Myl. & Cr. 487. 
 12 
 
172 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 to a portion of the claim only, and that he may 
 defend the rest. It is in such cases that this pro- 
 tection applies, and the defendant will not be com- 
 pelled to disclose communications made to him in 
 his professional character. To determine whether 
 the matter in question is within this privilege, it is 
 necessary to resort to the rules for the examination 
 of witnesses. The law upon this subject forms an 
 important chapter in all the books on evidence, and 
 it is needless to recapitulate it here. 
 
 A sohcitor was made a defendant, and charged 
 with having, by his solicitations, and by misrepre- 
 senting the circumstances of his client, induced the 
 plaintiff to join in a promissory note, upon which the 
 defendant advanced money to release the chent from 
 imprisonment for debt. The latter shortly after- 
 wards became bankrupt, and the plaintiff prayed 
 that the note might be delivered up to be cancelled. 
 The bill stated a variety of facts tending to show 
 that the defendant must have known the situation of 
 the party, for whom he was many years a solicitor. 
 The defendant admitted this knowledge, but denied 
 that the note had been given at his instance or en- 
 treaty. He admitted that he had in his possession 
 books containing entries and memoranda, and also 
 papers and letters relating to the matters in question, 
 but stated that such entries and memoranda were 
 made, and such papers and letters were written or 
 received by him in his capacity of confidential soli- 
 citor for his client ; and these, it was held, he could 
 not be compelled to disclose (i). 
 
 (i) Oreenough v. Oasliell, 1 Myl. & K. 98, and cases cited. 
 
confidence. 173 
 
 Section 3. 
 
 Of Discovery and Production of Deeds by 
 Professional Parties. 
 
 In some cases where an action seeks discover}- and 
 production of deeds, a solicitor may properly be 
 made a party, and an answer, at least to some extent, 
 required from him. Generally he would be an im- 
 proper party, for the possession of the solicitor is the 
 possession of the client ; but if he should withhold 
 the deeds in his possession, and not deliver them to 
 the client on his applying for them, it would be 
 proper to make him a defendant (A). To a proceed- 
 ing of this kind it is presumed that Lord Eldon 
 adverts, when, refusing a motion that an attorney, 
 who it was said was merely a witness, might produce 
 papers, he adds that another mode is open, if it be 
 not the fault of the party (Z). 
 
 The extent to which a defendant in such circum- 
 stances must answer seems to be exemplified in a 
 case where the defendant to a biU of discovery of a 
 deed charged to be in his custody, and of its con- 
 tents, demurred, for that he was an attorney, and in- 
 trusted by his client with that and other deeds, and 
 ought not to deliver the same, or any matters which 
 came to his knowledge. He was ordered to answer 
 whether there was such a deed, and where and to 
 whom delivered, and when he last saw the same, and 
 in whose custody, but not to produce or discover the 
 
 (S) Ante, p. 52. 
 
 {I) Wright v. Mayer, 6 Ves. 280. 
 
174 OBJECTIONS TO PAETICTJLAE DISCLOStTRES : . 
 
 dates or contents of it (m). This extends no farther 
 than merely admitting the possession, or setting out 
 a list of documents in a schedule, which is commonly 
 done (n), and leaves the substantial objection to be 
 decided upon when the plaintiff attempts to avail 
 himself of the admission. The necessity of answer- 
 ing to this extent seems to have been ruled in another 
 case, where the bill was for a discovery of deeds. 
 The defendant pleaded that he knew nothing of them 
 save as counsel, and that he had them not ; and the 
 court held that it was not sufficient to plead that he 
 knew nothing of them save as counsel, without 
 divesting himself of them, and disclosing to whom 
 he had delivered them : for otherwise deeds, having 
 been placed into the hands of counsel, might be sup- 
 pressed, and the party injured left without remedy : 
 the plea was therefore directed to stand for an 
 answer, with liberty to except as to where and to 
 whom he had delivered the deeds (o). 
 
 When a solicitor, or a person standing in a like 
 situation, is made a party to an action seeking dis- 
 covery and production of title deeds, it seems that, 
 so far as concerns the possession of them, his admis- 
 sion of that possession is substantially the admission 
 of the defendant his client, and wiU be so treated on 
 a motion to produce them (p). 
 
 (m) Kington v. Gale, Rep. t. Ein. 269, 260. 
 
 (n) Greenoughy. Gashell, IMyl. & K. 98. See Ord. XXXI. 
 14. 
 
 (o) Stanhope t. Nott, 2 Swans. 221, n. (o); Atterbvry v. Haw- 
 kins, 2 Cha. Ca. 242; Banner v. Jaokson, 1 De G. & Sm. 472. 
 
 {p) Fenwick v. Reed, 1 Mer. 114, 126. 
 
CONFIDENCE. 175 
 
 In a case where the personal representative of a 
 solicitor, in possession of papers relating to the ques- 
 tion in dispute, was made a defendant, with a prayer 
 against him for the delivery of the documents, and 
 in his answer he said he was ready to produce them 
 as the court should direct, submitting whether, as 
 the solicitor who had been confidentially employed 
 by the other defendant, he ought, or ought not, to 
 set forth a list of such papers, or to leave them in 
 the hands of the clerk in court ; Lord Eldon took 
 this passage of the answer, not as a profier of the 
 papers admitted to be in his hands for inspection, but 
 as a submission to produce them in case the court 
 should be of opinion that they ought to be produced( §'). 
 
 It would seem that an attorney, who is not a party 
 to an action, cannot be compelled on motion to pro- 
 duce papers belonging to his client who is a party, 
 even if the client would be compelled to produce 
 them. The proper mode is to serve him with a 
 subpcena duces tecum(j-). 
 
 It is no objection to an order for the production 
 and inspection of documents in the custody of a 
 solicitor, as the common agent of several persons, 
 that some of those persons are not parties to the 
 bill. Again, a defendant who is jointly entitled to 
 the use of the papers in question having admitted 
 their relevancy and the possession of the soKcitor, 
 the court has a right to give the plaintiff whatever 
 
 (q) Fenwick t. Meed, 1 Mer. 114, 123 ; Atliyns v. Wright, li 
 Yes. 211, 213. 
 
 (r) Wright v. Mayer, 6 Ves. 280; Parkhuritt t. Lowten, 3 Mad. 
 121; In re Cameron's Coalbroohdale Mail. Co., 25 Beav. 1. 
 
1 76 OBJECTIONS TO PARTICULAR DISCLOSURES : 
 
 access the defendant himself is entitled to ; and as 
 the solicitor could not refuse access to the defendant, 
 so neither can he refuse access to the plaintiff(s). 
 
 Section 4. 
 
 Of the Privilege of Secrecy on the Grounds of 
 Interest or Public Policy. 
 
 If documents are in the joint possession of several 
 parties, all of whom are not represented, production 
 will not be ordered (f). Lord Cottenham said, "If 
 a defendant has a joint possession of a document 
 with somebody else who is not before the court, the 
 court will not order him to produce it, and this for 
 two reasons ; the one is, that a party will not be 
 ordered to do that which he cannot or may not be 
 able to do ; and the other is, that another party not 
 present has an interest in the document which the 
 court cannot deal with." The difficulty may thus 
 be either physical, or legal. 
 
 When, however, a defendant was able to produce 
 the documents, and the other parties interested in 
 
 (s) Wa Ihnrn v. Ingilby, 1 Myl. & K. 61, 79 ; Gaskell v. Cfiamhers, 
 26 Beav. 303 ; Warde v. Warde, 3 Mac. & G. 365. 
 
 (t) Taylor r. Rundell, Cr. & P. 104, 111 ; Murray v. Walter, 
 Cr. & P. 114, shareholder ; Burhidge v. Robinson, 2 Mac. & G. 
 244, payer of bill of exchange ; Lopez v. Deacon, 6 Beav. 254, 
 agent ; Morrell v. Woottem, 13 Beav. 105 ; Gresley v. Mousley, 
 2 Kay & J. 288, execators ; Ford v. Dolphin, 1 Drew. 222 ; Bug- 
 den V. Tyler, 21 Beav. 545, trustees ; Edmonds v. Lord Foley, 30 
 Beav. 282, solicitor ; Reynolds v. Bodlee, 4 Kay & J. 88, co-de- 
 fendant; Penney v. Ooode, 1 Drew. 474, treasurer ; Reid v. Lang- 
 Ui%, 1 Mac. & G. 627 ; Hadley v. MacDongall, L. R., 7 Ch. 312, 
 partners ; Liddell v. Norton, Kay, App. xi., documents pawned. 
 
CONFIDENCE. 177 
 
 them were not necessary, or were substantially before 
 the court, production was ordered (m). The posses- 
 sion of an agent is the possession of the principal (ar). 
 
 If deeds ai-e in the joint possession of several 
 parties, and one of them only is interrogated as to their 
 contents, if he can obtain access to them he must 
 set them out, although he may not be able to produce 
 them (y). 
 
 Where two defendants had admitted possession of 
 documents, and one of them died, production was 
 refused against the survivor in the absence of the 
 personal representatives of the deceased (z). 
 
 A refusal by the court to allow a plaintiff, who 
 claimed property in the hands of a defendant, to 
 require the terms of, and the documents in connection 
 with, a compromise between the defendant and a 
 third person, relating to the same property at an 
 anterior period, was based upon the impropriety of 
 such a discovery without the other party to the com- 
 promise being before the court (a). 
 
 Though a party has a lien on documents, he must 
 
 (m) Glyn V. Cauljield, 3 Mac. & G. 463; Stuart v. Lord Bute, 
 11 Sim. 442, partner; Clinch v. Financial Corporation, L. K., 2 
 Eq. 371; Lacharmev . Quartz Mock Mining Co., 1 Hurl. & C. 134, 
 company; Tyse T. Foster, L. R., 13 Eq. 602, executor; Richardson, 
 V. Hastings, 7 Beav. 354, members of club ; Bromn v. PerTiins, 
 2 Hare, 540, client's papers on dissolution of partnership of soli- 
 citors. 
 
 (a!) Reid v. Langlois, 1 Mac. & G. 627, 637; ante, pp. 52, 95. 
 
 (y) Taylor t. Rundell, 1 Ph. 222. 
 
 (z) Robertson v. Shewell, 15 Beav. 277. 
 
 (a) Warrick t. Qiwen's College, Oxford (No. 2), L. K., 4 Eq» 
 254. 
 
 I 5 
 
178 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 allow them to be made use of (6). His riglit is only 
 a riglit of possession (c); and the court, although 
 requiring him to produce the deeds, or other papers 
 for judicial purposes, wiU recognise his constructive 
 possession of them(rf). If a solicitor discharges 
 himself, he cannot leave his client in the lurch in 
 the middle of a matter, by revising to deliver up 
 documents; but where he is discharged by his client, 
 he cannot be compelled to afford the latter any 
 facilities, and his right of lien extends to all that is 
 due to him (e). In the first case, however, his lien 
 for costs seems to be only in abeyance (/). He 
 may also, it seems, refuse production of documents 
 on behalf of the parties who have not paid the costs 
 of preparing them {g). 
 
 The position of a mortgagee is different. He has 
 the property in the title deeds of his security (A). 
 Neither the mortgagor, nor any person claiining 
 
 (i) In re Cameron's Coalbroolidale Mail. Co., 25 Beav. 1, wit- 
 ness in winding-up; Simmonds v. South Eastern Mail. Co., L., R., 
 3 Ch. 797, solicitor in bankruptcy; Belaney v. Ffreneh, L. E., 
 8 Ch. 918, solicitor in administration ; Lochett v. Cary, 10 Jnr., 
 Ijf. S. 144, solicitor defendant ; Tltftm/pson v. Mosely, 5 (?ar. & P. 
 501, solicitor witness. 
 
 (o) Bogue t. Bollwnd, 4 Myl. & C. 354, 358; Tisher on Mort- 
 gages, § 589. 
 
 ((?) Hope V. Liddell, 7 De G., M. & G. 331, solicitor witness; 
 Ma; parte Pavne and Layton, L. R., 4 Ch. 215, solicitor in wind- 
 ing-up. . 
 
 (e) In re Faithfull, L. R., 6 Eq. 325; Ex parte Sltam, Jac. 270. 
 
 (/) MoHns V. Goldingham, L. R., 13 Eq. 440. 
 
 (g) Be Greg ton, 26 Beav. 87; Palmer v. Wright, 10 Beav. 234; 
 Bodiok v. Gandell, 10 Beav. 270. 
 
 (K) Fisher on Mortgages, § 579. 
 
CONFIDENCE. 179 
 
 under him, however ignorant of the particulars of 
 the debt or security, can compel production of the 
 title deeds of a mortgagee (i). A mortgagor may 
 see the mortgage deed (A) ; and secondary securities, 
 such as bills, notes, or vouchers, are not privileged (Z). 
 
 When a mortgagor retained copies of the title 
 deeds of the property mortgaged, he was compelled to 
 produce them (tw ). 
 
 Fraud will destroy the right of the mortgagee : 
 for instance, when he had been the mortgagor's only 
 professional adviser (n). In a contest between a 
 prior mortgagee and a purchaser for value without 
 notice, the latter was not compelled to produce his 
 title deeds (o). 
 
 Lord Justice Giffard, when Vice-ChanceUor, thus 
 expressed the competency of an arbitrator to be a 
 witness: "I can see no reason why the arbitrator 
 should not be just as well called as a witness as any- 
 body else, provided the points as to which he is 
 called as a witness are proper points up'on which to 
 examine him. If there is a mistake in point of 
 subject-matter — that is, if a particular thing is 
 referred to an arbitrator, and he has mistaken the 
 
 (i) Il)id., and following paragraphs, with the cases cited. 
 
 (i) Patch T. Warde, L. R., 1 Eq. 436 ; Omen t. Mckson, 30 
 L. J. (Q. B.) 125, memorandnm of deposit; Lloyd t. Wait, 12 
 Sim. 103; Davis v. Parry, 27 L. J. (Ch.) 294, fraud. 
 
 (?) Gibson v. Bemett, 9 Beay. 293; Freeman v. Butler, 33 
 Bear. 289. 
 
 (m) Mercy t. Ferrers, 4 Beav. 97; Omen v. Nichson, 3 El. & E. 
 602, parcels. 
 
 (») Davis T. Parry, 27 L. J. (Ch.) 294. 
 
 (») Hunt V. Flmes, 27 Beav. 62. 
 
1 80 OBJECTIONS TO PAETICULAK DISCLOSURES : 
 
 subject-matter on which he ought to make his award ; 
 or if there is a mistake in point of legal principle 
 going directly to the basis on which the award is 
 founded — these are subjects on which he ought to 
 be examined " ( p). 
 
 In the case of Duke of Buccleugh v. Metropolitan 
 Board of Works (q), Kelly, C. B., supposed the 
 case of an arbitrator " empowered to give compen- 
 sation for injury to a house numbered ' one ' in a 
 particular row of houses, and he professed to award 
 such compensation, although in fact the whole 
 evidence before him related to injury to a house 
 numbered ' two,' and his award really was made for 
 injury to that house. Can it be doubted but that 
 this circumstance might be proved by the defendant 
 on the trial of an action on the award ? and if so, I 
 see no reason why it should not -be proved by the 
 evidence of the umpire himself. I am therefore of 
 opinion that in this case the umpire's evidence was 
 admissible."' BramweU, B., who is reported to have 
 thought otherwise, gave no reasons ; and his opinion 
 to the contrary eiFect is denied (r). 
 
 In the same case in the Exchequer Chamber (s), 
 it was held by all the judges that an arbitrator might 
 be a witness, Blackburn, J., using these words : 
 " There is no case or authority that I can find that 
 says an umpire or arbitrator is either incompetent 
 as a witness or privileged from giving testimony as 
 
 (^) In re Dare Valley Ry. Co., L. R., 6 Eq. 429. 
 (j) L. B., 3 Ex. 306, 324. 
 (?•) L. R., 5 H. L. 457. 
 («) L. R., 5 Ex. 221. 
 
CONFIDENCE. 181 
 
 to any matter material to the issue. Of course any 
 attempt to annoy an arbitrator by asking questions 
 tending to show that he had mistaken the law, or 
 found a verdict against the weight of evidence, should 
 be at once checked, for these matters are irrelevant. 
 But where the question is whether he did or did not 
 entertain a question over which he had no jurisdic- 
 tion, the matter is relevant, and nobody can be better 
 qualified to give testimony on that matter than the 
 umpire " (t). MeUor, J., remarked, that " it would 
 be imfortunate if there were no means of ascertaining 
 whether or not an arbitrator or umpire, in such a 
 case, had reaUy confined himself within the true 
 limits of the authority conferred upon him." " And 
 it must at least occasionally happen, that without 
 the evidence of the arbitrator there would be no 
 means of ai-riving at the fact" (u). 
 
 The report of the judgment of the case in the 
 House of Lords (x), contains the result of the opi- 
 nions of the judges on the point. " That the umpire 
 was admissible as a witness was, without a single 
 exception, the opinion of all the judges who have 
 considered the question in this case." Lord Chelms- 
 ford referred to several cases on the subject (y), and 
 Cleasby, B., said that it was "everyday practice 
 for the arbitrator to make an affidavit where a ques- 
 tion arises as to what took place before him, and I 
 
 (i) L. K., 5 Ex. 234. 
 («) Ibid. 246. 
 
 (x) L. K., 5 H. L. 418, 4u7. 
 (jf) Ibid. 428. 
 
182 OBJECTIONS TO PARTICDLAE DISCLOSURES. 
 
 have kaown him to be examined as a witness without 
 objection (z). 
 
 The judgment of Lord Cairns is very clear upon 
 the point in issue, whether as to matters of fact the 
 evidence of an arbitrator is properly admissible. But 
 he does not touch the other question raised by the 
 Lord Justice, that of matters of law (a) ; which is 
 a point upon which the judgment of the latter and 
 the dictum of Blackburn, J., differ. 
 
 It has been held that an arbitrator cannot be made 
 a party to a biU to set aside an award {b), except 
 where fraud has been charged (c); and that he is 
 not bound to answer as to his motives for making an 
 award(rf), though he must support a plea of arbitrator 
 with evidence of his good conduct (e). 
 
 Judges, jurors, officers of government and others 
 have been privileged from giving evidence. On this 
 subject reference is made to works on evidence. The 
 connection, however, between the right to require 
 evidence from a mere witness, and from a party to 
 an action, is obvious (f). 
 
 Evidence which is painful to the feelings of a 
 person, without being of a valiie to counterbalance 
 that effect, is also excluded (^). 
 
 (z) L. E., 5 H. L 433. 
 
 (a) Ibid. 462. 
 
 (J) Steward v. H. I. Co., 2 Vera. 380; Mitford, Plead. 160. 
 
 (c) Ante, p. SO. 
 
 (rf) Supra. 
 
 («) Ante, p. 22. 
 
 (/) Taylor on Evidence, Chap. XVI. 
 
 (g) Ibid. 
 
( 183 ) 
 
 CHAPTER IV. 
 
 OF EVIDENCES RELATING TO THE CASE OF AN 
 OPPONENT. 
 
 Section 1. 
 Of the General Rule. 
 
 LoED Campbell, in giving judgment in two modem 
 cases (a) said: "The rule on this subject has been 
 very clearlj laid down by that. great jurist. Sir 
 James Wigram, and I concur in that rule in the very 
 terms in which he has laid it down. Whatever 
 advances the plaintiff's case may be inquired into, 
 though it may, at the same time, bring out matter 
 which the defendant relies upon for his defence; but 
 you shall not inquire into what is exclusively matter 
 of defence ; that which is common to both the plain- 
 tiff and defendant may be inquired into by either." 
 The application of the doctrine of discovery to the 
 evidences which are the subject of this rule frequently 
 involves questions of great difficulty and import- 
 ance. 
 
 AU the objection to discovery that have been pre- 
 viously discussed rest upon grounds collateral to the 
 
 (a) Whateley v. Croreter, Carem y. Davis, 5 El. & B. 709, 
 negligence. See the report in the Law Journal, 'Zo Q. B. 167. 
 
184 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 evidence itself. They do not deny the possible 
 existence of evidence which may be favourable to a 
 party, and of which, in some other state of things, 
 he might be entitled to discovery ; but they assert 
 that such a state of facts either does not exist, or has 
 not been shown, as wOl entitle him to the discovery 
 which he seeks. 
 
 Here, the state of facts which entitles him to dis- 
 covery is assumed ; and the question is not whether 
 the discovery shall be given, but to what it should be 
 limited. One party has stated facts which show a 
 title to relief, and demands a certain disclosure in 
 support of that relief The other does not found his 
 objection to discovery upon the ground that the first 
 has not the title which he alleges — for that objection 
 is beside the question ; but he insists that, admitting 
 the title set out, the evidence sought cannot support 
 it; whilst it confers, or contributes to confer, a title 
 on himself. 
 
 The principle of the present objection to discovery 
 involves, in fact, the boundary which divides the 
 right of the litigating parties to the exclusive know- 
 ledge or possession of their own evidence; and it is 
 upon the application of this rule that controversies 
 usually arise. 
 
 It is often of the highest importance to a party 
 not to be compelled to disclose evidence relating to 
 the question in dispute ; for, if the dispute relates to 
 property, the effect of such a disclosure may be 
 detrimental to that enjoyment of it, to which, as the 
 party in possession, he is entitied— at least, until the 
 court has pronounced a decision against him. 
 
EVIDENCE OF OPPONENT. 183 
 
 Some of the inconveniences of the disclosure are 
 obvious. It may deteriorate the value of the sub- 
 ject; it may defeat contracts in progress, or in 
 anticipation ; it may expose a title conscientiously 
 good to invasion from other quarters, upon defects 
 wholly foreign to the question in dispute, and not for 
 the benefit of the plaintifi", but of strangers ; and it 
 may even, incidentally, compel the defendant, by 
 disclosing his title, to ftirnish the plaintiff with 
 means of assailing it. 
 
 " Permitting," said Lord Loughborough, in a case 
 where a party claiming as heir female sought a pro- 
 duction of title deeds, " a general sweeping survey 
 into all the deeds of a family would be attended with 
 very great danger and mischief; and, where the per- 
 son claims as heir of the body, it has been very pro- 
 perly stated that it may show a title in another 
 person, if the entail is not well barred. It may set 
 up a title, not for the benefit of (the plaintiff), but to 
 the injury of the devisees, indulging a speculation to 
 the prejudice of parties whose interest this court has 
 no right to invade" (6). The reason of the rule is 
 stated by Sir James Wigram to be the danger of 
 perjury (c). 
 
 If the question in dispute between the litigants 
 relates to personal obligations, the grounds for refus- 
 ing any unnecessary disclosure are not less strong. 
 
 Referring to the inspection of documents given by 
 statute 14 & 15 Vict. c. 99, s. 6, Lord Chief Justice 
 
 (*) Lady Shafteshvry v. Arrommith, i Ves. 66, 71 ; Cook y. 
 St. Bartholomew's Hospital, Chatham, 8 Ves. 138. 
 (c) Points of Discovery, i. 
 
186 OBJECTIONS TO PARTICULAE MSCLOSUEES: 
 
 Erie said : " The power conferred by the recent statute 
 entitles an applicant to a rule nisi for the inspection 
 of all documents which he judges wiU be material 
 and relevant towards the proof of the case on which 
 he relies, and respecting w:hich his affidavits raise the 
 presumption that they are in the possession of his 
 adversary." And he farther hints at the inconveni- 
 ence of improper disclosures in these words : " The 
 statute by no means authorizes you to inspect gene- 
 rally the mercantile books of your opponent" (rf). 
 
 This sort of attempt to find out the secrets of an 
 adversary, without showing any valid reason for 
 doing so, is very properly called a fishing applica- 
 tion; and against such applications the courts have 
 been scrupulous to guard. 
 
 The right to the exclusive knowledge and posses- 
 sion of the deeds and evidences is incident to the 
 property in the thing to which they relate ; and, 
 although that property is made a subject of litiga- 
 tion, there would be no more justice in giving the 
 plaintiff the benefit of such evidences before trial, 
 farther than may be necessary or useful to establish 
 the title upon which he insists, than there would be 
 in transferring to him in the same stage of the cause 
 the beneficial enjoyment of the property which they 
 concern. 
 
 It is obvious that discovery cannot be designed to 
 afford an opportunity for the examination of all the 
 evidence which a party possesses regarding his pro- 
 prietary and possessory rights generally. Upon the 
 
 ((i) Rayner v. AWiusen, 21 L. J. (Q. B.) 68. 
 
EVIDENCE OF OPPONENT. 187 
 
 pleadings in every cause, there is necessarUy some 
 particular question raised for the decision of the court 
 to which the cognizance of the matter belongs. The 
 object in enforcing discovery is to possess the plaintiff 
 of the evidence which may tend to make available 
 the right upon which he insists. 
 
 In early cases (e) bills praying a discovery of 
 who were tenants of the freehold, or to the pracipe, 
 and, therefore, the proper persons to make defendants 
 to actions, were considered irregular, and demurrers 
 to them were allowed. 
 
 Recently, interrogatories inquiring generally in 
 what way a defendant intended to shape his case 
 were disallowed (/) ; and applications by a party to 
 see the documents an opponent relies on before he 
 puts in his own case (g). 
 
 On several occasions it has been distinctly held 
 that a party need not disclose the evidence of his own 
 case (h), or any evidence which does not relate to the 
 subject at issue before the court (i). 
 
 (e) Stapelton v. Sherard, 1 Vem. 212 ; Slwrliorne v. Clerk, 1 
 A'ern. 273. 
 
 (/) Bovill T. Smith, L. R., 2 Eq. 459, patent; Ingilbyy. Shafto, 
 33 Beav. 31 ; Commissioners of Sewers v. Glasse, 42 L. J. (Ch.^ 345. 
 
 (g) Halliday v. Temple, 8 De G., M. & G. 96. 
 
 (A) Moudalay v. Morton, 1 Bro. C. C. 468, letters; Ivy r. 
 Kekervich, 2 Yea. jun. 679, pedigree ; Tomlinson v. Lymer, 2 Sim. 
 489 ; Brazier v. Mytton, M'Clel. & Y. 618, receipts ; Ityves v. 
 Byves, 3 Ves. 343 ; Mutloe v. Smith, 3 Ans. 709; Pickering v. 
 Noyes, 1 Bam. & C. 262, title deeds; Mieklethwaite t. Moore, 
 3 Mer. 292, valuation ; Tyler v. Drayton, 2 Sim. & S. 309, con- 
 reyance; Bolton y. Corporation of Liverpool, 1 Myl. & K. 88, 
 charters; JUx parte Trueman, 1 Dea. & C. 464, 481 ; Sutherland v. 
 Sutherland, 17 Beav. 209; compare Tomne t. Coehs, L. R., 9 Ex. 45. 
 
 (i) Peile v. Stoddart, 1 Mac. & G. 192 ; ante. Chap. II., Imma- 
 teriality. 
 
188 OBJECTIONS TO PARTICULAR DISCLOSURES : 
 
 And, generally, where the case made out by one 
 party is inconsistent with that set up by the other, a 
 discovery of the evidence of the former is refused {k). 
 Where, however, there is a privity between the par- 
 ties to an action, or an interest in the evidence in 
 the possession of an opponent, it is otherwise {I). 
 
 " It would be a very formidable proposition to lay 
 down," said Alexander, C. B., "that every party 
 might look into documents in the possession of his 
 adversary, without showing that he was interested 
 therein" (m). 
 
 Interest in a document as evidence must not be 
 confounded with interest by way of property (n). 
 An interest of the former Mnd means such assistance 
 as will tend to support the relief sought (o). 
 
 It is necessary that protection should be distinctly 
 claimed, and the statements made by a party so 
 claiming are to be taken most strongly against 
 him (j)). The tmwillingness of a party to produce 
 
 (i) Stroud T. Deacon, 1 Ves. 37, settlement opposed to legal 
 title ; Bnden t. Bore, 2 Ves..445, outstanding term set up; Marquis 
 of Donegal v. Stewart, 3 Ves. 446, relief refused ; Philips v. Carey, 
 4 Ves. 106, administrator denying debt ; Tyler v. Drayton, 2 Sim. 
 & S. 309, settlement opposed to conveyance; Jacobs v. Goodman, 2 
 Cox, 282, partnership ; Mrldns v. Lowe, 13 Price, 193, tithes ; 
 Sampson v. Srvetenham,, 5 Mad 16 ; Wilson v. Forster, Younge, 
 280, partial interest; Stainton v. Chadrvick, 3 Mac. & G. 575, 686, 
 fraud being charged, production ordered; see sect. 6, post. See 
 also Mlmer v. Greasy, L. R., 9 Ch. 69. 
 
 (J) See sect. 4, post. 
 
 (»») Inman v. Hodgson, 1 T. & J. 28. 
 
 (m.) Ante, p. 178. 
 
 (o) Clegg v. Edmonson, 22 Beav. 125. 
 
 (p) Sunt T. Elmes, 27 Beav. 62, purchaser for value; Thomas v. 
 Ra.vlings, 27 Beav. 140, professional confidence; Gray v. Halg, 
 fiai;/ v. fi^j'ay, 20 Beav. 219, accounts destroyed. See Part IV.. , 
 
EVIDENCE OF OPPONENT. 189 
 
 evidence has been held to be a reason for ordering its 
 production (^q). 
 
 Section 2. 
 
 Of the Rule that a Party is not compelled to discover 
 his Evidence, unless it tends to establish affirma- 
 tively the Case of his Opponent. 
 
 It is not a sufficient foundation for discovery to 
 insist that the evidence sought will prove that the 
 defendant has no title, and that the title will devolve 
 upon the plaintiff as a consequence of that failure in 
 the defendant (r). 
 
 Some remarks which have been made upon actions 
 for the recovery of land are applicable to all actions 
 seeking relief. " The plaintiff cannot recover but 
 upon the strength of his own title. He cannot 
 found his claim upon the weakness of the defend- 
 ant's title. For possession gives the defendant a 
 right against every man who cannot show a good 
 title " (s). This principle is peculiarly applicable to 
 the question of discovery, where the court is called 
 upon, without pronouncing any opinion upon the 
 rights in dispute, to communicate to the plaintiff the 
 evidences which are a part of the possession of the 
 defendant. 
 
 (q) Pape T. Litter, 40 L. J. (Q. B.) 87, per Lush, J. 
 
 (r) Compton t. Earl Grey, 1 Y. & J. 154; Stainton y. Chad- 
 nick, 3 Mac. & G. 575. 
 
 («) Per Lord Mansfield, 4 Burr. 2487; Jeffries v. GreatWestem 
 Mail. Co., 5 El. & B. 802, 805, as to goods, per Lord Campbell. 
 
190 OBJECTIONS TO PAKTTCtTLAR DISCLOSURES: 
 
 A case has been put of an ejectment brought 
 against a party in possession, who cannot, by filing 
 a bill against the plaintiff in an action, compel a 
 discovery of his title deeds, by merely alleging that 
 they would show that he had no title (t). The 
 defendant is left to sustain his case, or defend his 
 possession as he may. The purposes of justice are 
 accomplished in affording to the plaintiff all the 
 evidence that tends to establish affirmatively the case 
 on which he insists. 
 
 The proposition is illustrated by the case of 
 Bolton V. Corporation of Liverpool (ii). The cor- 
 poration of that city brought an action to recover 
 local duties on goods imported and exported. The 
 defendant at law filed a bill of discovery in aid of 
 his defence. It was urged that certain grants and 
 documents in the custody of the corporation af- 
 forded evidence negativing the right of the plaintiffs 
 at law to the duties, and therefore constituted a de- 
 fence to the action, and gave the parties a common 
 interest in them. The defendant at law did not sug- 
 gest that the evidence he sought could prove his ex- 
 emption from the duties in question; but only that it 
 would negative the right of the corporation. " The 
 plaintiff," said Lord Brougham in his judgment on 
 appeal, "does not claim anything positively or affirma- 
 tively under the documents in question. He only de- 
 fends himself against the claims of the corporation, and 
 
 (t) Bolton, T. Corporation of Idverpool, 3 Sim. 467, 480, 
 argwendo. 
 
 («) 3 Sim. 467; S. C, 1 M7I. & K. 88. 
 
EVIDENCE OF OPPONENT. 191 
 
 suggests that the documents evidencing their title 
 may aid his defence. How ? By proving his title, 
 he says. But how can these documents prove his 
 title? Only by disclosing some defect in that of 
 the corporation. The description of the documents 
 is that they rebut or negative the plaintiff's title : 
 they are the corporation's title, and not his, and they 
 are only his negatively, by failing to prove that of 
 the corporation. He rests on the I'ight which he 
 has in common with all mankind to be exempt from 
 dues and customs, and he says, ' Prove me liable if 
 you can.' The corporation have certain documents 
 which they say prove this liability. He cannot call 
 for these documents merely because they may upon 
 inspection be found not to prove his liability, and so 
 help him and hurt his adversary, whose title they 
 are." It was held to lie upon those who insisted on 
 a right to levy the toUs to make out at the hearing 
 a title contrary to the force of the common law, but 
 that they were not bound to disclose it in the dis- 
 covery suit. 
 
 In a subsequent case, an occupier, the defendant 
 in a tithe suit, filed a cross bUl against the plaintiff 
 in that suit, the lay rector, for discovery whether he 
 was in any and what manner entitled to the tithes in 
 question, and under what deeds he claimed. " The 
 plaintiff in this suit," said Lord Abinger, " does 
 not suggest upon his bill any doubt whether he may 
 not be put to additional expense, and be harassed 
 again by some person claiming paramount title to 
 the rectory (x). He simply says that the defendant 
 
 (a;) See sect. 5, post. 
 
192 OBJECTIONS TO PAETICULAK DISCLOSURES: 
 
 is not rector; and that brings it to the naked 
 question : ' Shall he be allowed to call on the defend- 
 ant to produce a deed — not because it makes out 
 his own case — not to defend himself — but to expose 
 the plaintiff to all the dangers of a discovery?' 
 The possession of the rector, without any adverse 
 claimant, is prima facie evidence of his title ; and 
 if, in any document to be so produced, a flaw should 
 happen to be found, it would be a summary means 
 to deprive the rector of his right, if that deed were 
 exposed in a court of equity, where other persons 
 might take advantage of the defect. At law, the 
 rector must prove his title, as in any other case, and 
 the defendant might take advantage of any imper- 
 fection ; but to allow such an application as the 
 present would be to enable the defendant in a tithe 
 suit, in every case, to call on the plaintiff to produce 
 the particulars of his title " (y). 
 
 The objection that the matters sought to be dis- 
 covered cannot tend to establish affirmatively the 
 case of the plaintiff is not an independent objection 
 to discovery. The defendant, in order to resist dis- 
 covery on this ground, must first bring the evidence 
 he would withhold within the general rule ; it must 
 be manifestly foreign to the particular title upon 
 which the plaintiff insists, and it must give title to 
 the defendant. 
 
 If the effect of this objection be not thus limited, 
 it may be asked upon what principle is any discovery 
 given in a case where a defendant relies upon a pro- 
 
 (y) Bellwood v. Wetherell, 1 Y. & C. 211, 220. 
 
ETIDENCE OF OPPONENT. 193 
 
 tection which no deeds can substantiate affirmatively? 
 Such, for example, as a right in common vrith every 
 subject to import or export merchandize, or to traffic, 
 free from the imposition of toUs and duties. This 
 was the case of Bolton v. Corporation of Liver- 
 pool(^z), where the discovery which was successfully 
 resisted upon the present principle, extended no 
 farther than the deeds and papers which were de- 
 scribed in the answer as evidencing the title of the 
 corporation to the town and lordship of Liverpool, 
 and the dues in question. 
 
 It may be again objected that, if the evidence which 
 is within this rule must of necessity be previously 
 under the protection of a principle upon which its 
 discovery might be resisted, the rule is inoperative ; 
 that it merely subjoins a second ground of protection, 
 when the first would be sufficient. But the rule is 
 not established as an additional principle of protec- 
 tion ; it has no other object or effect than that of 
 negativing an alleged equity upon which the plain- 
 tiff seeks to avert the operation of the general rule, 
 which excludes from discovery the evidences that 
 give title to the defendant. It is nothing more than 
 a principle necessarily introduced to preserve the 
 integrity of the general rule against the operation of 
 an antagonistic principle by M'hich the effect of the 
 general rule would be destroyed. 
 
 (z) 1 Myl. & K. 88. 
 
 K 
 
194 objections to paeticulak msclosukes: 
 
 Section 3. 
 Of the Evidences to tohich this Rule is applicable. 
 
 The frequent occurrence of this rule in cases where 
 the plaintiff has sought the productioii of title deeds, 
 has led to remarks from which it might be inferred 
 that this ground of protection is peculiar to muni- 
 ments of title. 
 
 An expression which may be thus mistaken is 
 found in a judgment of the Lord Chief Baron 
 Alexander. Stating the jurisdiction of equity to 
 compel a party to produce documentary evidence in 
 his possession, even if it be against his own case, 
 he remarked that the exception is in cases of " title 
 deeds relating to the inheritance." " I have always 
 understood that one party is not bound to give the 
 other party an opportunity of examining his title 
 deeds " {a). And again, that he understood the rule, 
 that a party is not bound to disclose his case, to be 
 confined to mere matters of title, and not to apply to 
 matters of account (ft). 
 
 These remarks may have been suggested by the 
 dijfference of the common law and equitable rules of 
 discovery of documents. At common law, inspection 
 might always have been obtained of a document upon 
 which the case of a party was founded; for the law 
 regarded the holder in the light of a trustee for the 
 benefit of the suitor (c). When an action was 
 
 (a) Collins v. Qresley, 2 Y. & J. 490. 
 
 (J) Corhett v. Hawkins, 1 Y. & J. 421, 426 j Compton y. Earl 
 Grey, 1 Y. & J. 154. 
 {a) Blogg t. Kent, 6 Bing. 614. 
 
EVIDENCE OF OPPONENT. 195 
 
 brought upon such a simple instrument as a bill, 
 note, agreement or policy, this rule would seldom 
 have caused hardship; for there would have been 
 little difficulty in most cases in finding out the con- 
 tents, if the document were not produced. In equity, 
 the fact of a party claiming title through a deed 
 would have been no reason for the court to order its 
 production. If it had been so, the production of the 
 most important deeds might have been obtained by 
 simply filing a bill charging fi:aud(«?). 
 
 It would be difficult to limit the operation of this 
 principle so as to confine it to any particular kinds 
 of evidence. Whether the evidence consists of title 
 deeds, or documents generally illustrative of a party's 
 case, the rule must have the same application ; and 
 then, between written evidence, and evidence resting 
 solely in the memory of the defendant, there seems to 
 be no sound distinction (e). 
 
 The principle is applied, as has been seen, to every 
 species of evidence, and to aU cases where the con- 
 tention of the defendant is adverse to that of the 
 plaintiff, and the latter inquires how he makes out his 
 case, or derives his title, or what are the particulars 
 of his evidence. " He is to make it out," §aid Lord 
 Eosslyn, " but he has no business to tell the plaintiff 
 how he is to make it out" (_/). 
 
 The rule, it is true, has rarely been insisted upon. 
 
 ((Z) See Princess of Wales t. Lord IA/iier2)Ool, explained bj 
 Lord Brongham, 1 Myl. & K. 92. 
 (e) Ante, p. 3. 
 
 (/) -^*y V- ^eJtemich, 2 Ves. jun. 679. 
 k2 
 
196 OBJECTIONS TO PAETICULAK DISCLOSURES: 
 
 but for the purpose of guarding the defendant from 
 the necessity of producing some documentary evi- 
 dence. 
 
 Section 4. 
 Of Exceptions to the Rule on the Ground of Interest. 
 
 Where a document is of common interest to both 
 parties its production is ordered by the general rule. 
 It is therefore material to consider what constitutes 
 such, a mutual interest {g). 
 
 The Corporation of London filed a bill claiming 
 title by prescription to certain dues. The defendant 
 filed a cross biU for discovery in aid of their defence. 
 The plaintiffs admitted possession of certain charters, 
 accounts of dues collected, and other documents 
 which formed part of their title, and which they in- 
 tended to use as evidence at the hearing : but they 
 claimed the right to refiise to produce them before 
 that time. Sir James Knight Bruce ordered pro- 
 duction of the documents on the ground of 
 there being no sufficient denial by the corporation 
 that the documents were not also evidence for the 
 defendants (A). 
 
 (j) Burton v. Mville, 2 Cox, 242; Smith v. BuTte of Northum- 
 berland, 1 Cox, 363; Potts v. Adair, 3 Swans. 268, n. (a); Att.- 
 0en. T. Thompson, 8 Have, 106, general principle; Harl of SaUs- 
 hury V. Cecil, 1 Cox, 277, accounts of funds mixed up ; Bird v. 
 Harrison, 15 Ves. 408, will; Newton v. Berresford,Yomig&, 377, 
 tithe books; Tyler t. Brayton, 2 Sim. & S. 309; Knight y. Marquis 
 of Waterford, 2 Y. & C. 22; Tuwne v. Cocks, L. R., 9 Ex. 45, 
 tithes; Wright r. Vernon, 1 Drew. 344, pedigree. 
 
 (A) Combe t. Corporation of London, 1 Y. & C. C. C. 631. See 
 also Combe v. City of London, 4 Y. & C. 139. 
 
EVIDENCE OF OPPONENT. 197 
 
 Most of the decided cases upon the subject of pro- 
 duction of documents turn upon the question whether 
 the denial that the evidence sought to be withheld 
 related exclusively to the party's own case was suffi- 
 ciently distinct. This question, being more properly 
 one of procedure, is discussed in the fourth part. 
 So also are the cases upon the subject of a reference 
 to documents. 
 
 Before entering into questions of interest under 
 particular states of circumstances, there is one other 
 principle to be considered. 
 
 It has been seen that a party may charge that his 
 case will be proved by evidence in his opponent's 
 possession {i). Such a charge made in a general 
 way is of no importance. A party has no right to 
 call for his opponent's evidence generally by the rule 
 now under consideration. But if he makes a special 
 charge with relation to his opponent's evidence, such 
 charge, if not distinctly denied, is a ground of ex- 
 ception to the rule. 
 
 The case of Smith y. Duke of Beaufort (j) was a 
 suit for discovery of evidence in aid of the defence 
 to an action for the recovery of tolls or dues on 
 coals. The defendant at law charged in his bill that 
 the claim was founded on an alleged custom, which 
 was bad for specific reasons : first, because the amount 
 of the wey on which the toll was computed had varied 
 from time to time ; secondly, because the alleged 
 custom had been diiferently laid at various times, 
 
 (i) Ante, p. 32. 
 (i) 1 Phil. 209. 
 
198 OBJECTIONS TO PAETICDLAE DISCLOSURES: 
 
 sometimes including certain easements; whereas the 
 defendant at law did not derive the benefit of such 
 easements, which were, in his case, the subject of 
 special contract. . 
 
 He set up a certain lease, granted by a former 
 Duke of Beaufort to the party under whom he 
 claimed, of a part of the easement, reserving all 
 customary dues. Discovery was sought of docu- 
 ments showing the terms, or supposed terms, of the 
 alleged custom. 
 
 For the plaintiff at law the cases of Bolton v. 
 Corporation of Liverpool and Combe v.- The City of 
 London were relied on. 
 
 Lord Cottenham, in giving judgment on appeal 
 for the defendant at law, quoted the expressions of 
 the Vice-Chancellor in Bolton v. Corporation of 
 Liverpool {h) : "Inasmuch as these documents are 
 described as being documents which evidence the title 
 of the defendants, and as nothing is to be inferred 
 from any passage in the answer, that they evidence 
 the title of the plaintiff, which they might do though 
 they evidence the title of the defendants,') I am of 
 opinion that the inspection ought not to be granted." 
 " But," his lordship proceeded to say, " in the 
 present case, though the documents relate to the 
 defendant's title, they also relate to the matters 
 specifically charged in the bill as constituting the 
 plaintiff's evidence; and this is not denied by the 
 answer." 
 
 In Att.-Gen. v. Corporation of London (I) Lord 
 
 (i) 3 Sim. 467, 490. 
 (0 2 Hall & Twells, 1. 
 
EVIDENCE OF OPPONENT. 199 
 
 Cottenham said : " Now, that the plaintiff is entitled 
 not only to a discovery of that which constitutes his 
 title, as the title upon which he rests, but that he is 
 entitled to a discovery of everything which may 
 enable him to defeat the title which is expected to 
 be set up against him, perhaps is in every draughts- 
 man's knowledsre." 
 
 " In Stroud v. Deacon (m) the bUl charged that 
 a deed, which was evidence of the defendant's title, 
 contained evidence which would defeat it ; and the 
 defendant was bound to answer. Now, it is per- 
 fectly clear, as has appeared in general practice, that 
 if the defendant pleads a deed of the defendant's 
 title, and withholds the deed, he cannot be compelled 
 to produce it, because it is the defendant's title and 
 not the plaintiff's; but if the plaintiff' alleges that 
 that deed contains something which would show 
 that the plaintiff is entitled, or supports the plaintiff's 
 title, the defendant is bound to answer that question. 
 He may not be bound to produce the deed, if he 
 negatives the ground on which the plaintiff claims 
 the inspection of it ; [but then, although it is the de- 
 fendant's title, it is part of the plaintiff's evidence, 
 who may find in a deed constituting the defendant's 
 title a recognition of that which, if true, would 
 Supersede the title set up by a subsequent instru- 
 ment"] (k). 
 
 (m) I Ves. 37. 
 
 (») The words within this parenthesis have evidently no connec- 
 tion with those immediately preceding them. They are inserted 
 here in order to make the quotation complete. They apparently 
 refer to the previous sentence. 
 
200 OBJECTIONS TO PARTICULAE DISCLOSURES : 
 
 The general principle of the court shows, with re- 
 spect to the protection thrown around the defendant, 
 that he " is not to be compelled to produce the evi- 
 dence of his title, unless he thinks proper to produce 
 it himself, and that, as a matter of pleading, he is 
 not bound to produce it ; but if he intends to take 
 advantage of that protection, he is bound to negative 
 that which the bill alleges such a document to con- 
 tain, so far as it would be evidence of the plaintiff's 
 title" (o). 
 
 This principle of production is consistent with 
 that stated in an earlier part of this treatise with re- 
 spect to pleadings and answers (p). 
 
 In an administration svit, an executor, or trustee, 
 cannot refuse to produce his accounts of receipts and 
 expenditure of the trust property before the hearing. 
 " The court," said Lord Hatherley, " has always 
 thought it desirable that (an executor) should, by his 
 answer, make a full discovery of the assets, so that 
 the plaintiff may be in a position to move to have 
 the balance brought into court " [q). 
 
 So, in a redertiption suit, a discovery of the state 
 of accounts between mortgagor and mortgagee was 
 ordered to be given. Lord Selbome remarked: 
 " We find no authority, and we see no reason, for 
 treating a redemption suit as subject to any different 
 rule in this respect from that applicable to a suit for 
 any other kind of accounts necessary for, consequent 
 
 (o) AU.-6en. v. Corporation of London, 2 Hall & T. 1, 17. 
 {p) Ante, p. 33. 
 
 iq) Tlwmpson r. Dtmn, L. R., 5 Ch. 673 ; Dent t. Dent, L. R., 
 1 Eq. 186, production to purchaser. 
 
EVIDENCE OF OPPONENT. 201 
 
 upon the principal relief prayed " (r). In an action 
 on a policy of assurance, the insurance company was 
 required to show, by producing documents, what its 
 recent course of conduct had been with reference to 
 reinstating lapsed policies (s). And in another, for 
 specific performance of a contract for the sale of an 
 interest in land, discovery of the dealings of the 
 defendant with the property subsequently to the con- 
 tract, was required to be given {t). 
 
 In a. partnership case, the surviving partners were 
 ordered by the court to furnish the widow of the 
 deceased partner with accounts of the moneys they 
 had drawn from the business for their own purposes. 
 The will of the deceased partner sanctioned the in- 
 vestment of his capital in the business, and the 
 discovery was ordered on the ground that it might be 
 of assistance to the plaintiff in conducting her case (m). 
 
 In aU these cases the right to some relief was not 
 denied. 
 
 In cases of boundaries or parcels, there may be 
 an interest in both parties sufficient to warrant dis- 
 covery. Where two tenants in common held a 
 manor in equal moieties, and one of them conveyed 
 his -interest to a third party, acts of ownership by 
 the last party over the waste lands of the manor 
 which were enclosed, entitled the other tenant in 
 
 (r) Elmer T. Creasy, L. R., 9 Ch. 69 ; Freeman y. Butler, 33 
 Beav. 289, administrator paying off mortgage. 
 
 («) CHrdlestone t. NoHh Brituh Mercantile Insurance Co., 
 L. R., 11 Eq. 197. 
 
 {t) Dixon V. Frascr, L. R., 2 Eq. 497. 
 
 (k) Saull V. Browne, L. R., 9 Ch. 364; Leigh \. Birch, 32 Beav. 
 399. 
 
 k5 
 
202 OBJECTIONS TO PAKTICXJLAK DISCLOSURES: 
 
 common to see what authority the third party had 
 acquired to deal with his share {x). And as between 
 landlord and tenant, a tenant contracts, among other 
 obligations, to keep distinct from his own property 
 during the tenancy, and to leave clearly distinct at 
 the end of it, his landlord's property, not in any 
 way confounded with his own (z/). 
 
 On an information to set aside leases by a cor- 
 poration to the defendant, certain family settlements, 
 which contained assignments of the leases, were 
 ordered to be produced (2:). 
 
 Certain other characters affect the rights of persons 
 to discovery. 
 
 A trustee is entitled to know under what title 
 those who claim to be cestuis que trustent hold (a). 
 
 Wbere a corporation held an office in a fiduciary 
 capacity, they were ordered to produce their title ' 
 deeds (6). 
 
 An heir is entitled to considerable assistance in 
 order to make out his title (c). " The title of the 
 heir," said Lord Loughborough, " is a plain one, and 
 it is a legal title. All the family deeds together would 
 
 («) Att.-Gen. v. Lamie, 3 Y. & C. 162; Earp v. Lloyd, 3 Kay 
 & J. 5i9; Margiuis of Bute t. Glamorganshire Canal Co., 1 Ph. 
 C81 ; Sarrell v. MelioUon, 1 Myl. & K. 680, parish. 
 
 iy) Att.-Gen. v. Fullerton, 2 Ves. & B. 263, per Lord Eldon; 
 Att.-Gen.Y. StepTiens,&T)&Cr.,'^L & G.lll; BrorenT. \Vales,'L.'R., 
 15 Eq. 142. 
 
 (z) Att.-Gen. r. EllUon, i Sim. 238; Rigly v. Rigly, 15 Sim. 
 90, rents. 
 
 (a) Burst t. Hurst, L. E., 9 Ch. 762. 
 
 (b) Att.-Gen.-r. Corporation of London,12'B&av.S; S. C2Mac. 
 & G. 247. 
 
 (c) Menison v. Ashley, 2 Ves. jnn. 459; Gresley v. Moiisley, 
 2 Kav & J. 288. 
 
EVIDENCE OF OPPONENT. 203 
 
 not make it better or worse. If lie cannot set aside 
 the will, he has nothing to do with the deeds "(rf). 
 But the court Avill compel production of the deed 
 by which he is disinherited (e). A customary heir 
 may be entitled to a discovery of such a fact as 
 whether there are any imsurrendered copyholds (^). 
 It isj however, a necessary consequence of the rule 
 that in every case the discovery which an heir can 
 demand is confined to the anterior, and cannot 
 extend to the subsequent title {g). 
 
 It is right to observe that high authorities may 
 be adduced for affording to heirs, general and special, 
 a more extensive discovery than is here expressed. 
 Lord Hardwicke, whose consummate knowledge of 
 equitable jurisdiction raises a degree of admiration 
 proportioned to the diligence with which his judg- 
 ments are weighed, is reported to have said, " that 
 there is a certain degree of relief which the heir-at- 
 law has, which is peculiar to this, to have an order 
 for the inspection of all deeds and writings relating 
 to the estate, to see whether he is disinherited, and 
 by what means " (Ji). 
 
 A devisee is entitled, as against the heir, to no 
 more than a discovery and production of such deeds 
 as may be necessary to try the validity of the wUl {i). 
 
 ((Z) Lady SJiafteghiry v. Arrowsmith, 4 Ves. 66, 70. 
 
 (^) Renison v. Ashley, uii svp. 
 
 (/) Jones T. Jones, 3 Mer. 161, 174. 
 
 (g) Collins T. Oresley, 2 Y. & J. 490, 492. See Bennett v. Glos- 
 sop, 3 Hare, 578, as to other parties. 
 
 (ft) Harrison i. Southcote, 2 Ves. 389, 396; Leman v. Alte, 
 Arab. 163. 
 
 (i) Duchess of Newcastle T. Lord Pelham, 3 Bro. P. C. 460; 
 Barker v. Ray, 5 Mad. 64. 
 
204 OBJECTIONS TO PAETICULAR DISCLOSURES : 
 
 To a tenant in tail, a will is no answer. He has 
 such an interest in the deed creating the entail that 
 the court will assist him in obtaining production of 
 it (A) ; but he has no right to call for the deeds by 
 which the entail is defeated (Z) . If he is defendant, 
 he may, upon the like principle, withhold the evi- 
 dence upon which his title against the plaintiff 
 rests (m). 
 
 A remainderman has a sufficient interest in the 
 settled estates to warrant his calling for production 
 of the deeds which show what the property is to 
 which he is entitled (w). 
 
 On a bill of discovery in aid of an ejectment, by 
 a person claiming as heir against the appointees of a 
 feme coverte, alleging the absence, or non-execution, 
 of any power of appointment, the only issue raised 
 was the validity of any such appointment. It was 
 held that the plaintiff was not entitled to the produc- 
 tion of the deeds which the defendants alleged gave 
 the power, although the plaintiff, in default of 
 appointment, would have taken (o). 
 
 Principals, lords of manors, have been permitted 
 to call upon their dismissed agents to produce to the 
 court all documents connected with the naanagement 
 of the estate in their possession, in order that the 
 
 (Ji) Lady Shaftesbury y. Arrorvsmith, i Vea. 66, 71; Bolton y. 
 Corporation of Liverpool, 1 Myl. & K. 88, 91; R-arnbold v. For- 
 teath, 3 Kay & J. 44. 
 
 (l) Wilson T. Forster, Younge, 280. 
 
 (m) Ibid. 
 
 (n) Davis v. Farl of Dysart, 20 Beay. 405; Pennell v. EaH of 
 Dysart, 27 Beav. 542; Hercy v. Ferrers, 4 Beav. 97, legacy charged 
 on real estate; Chichester v. Marquis of Donegal, L. R., 4 Ch. 416. 
 
 (o) Bennett y. Glossop, 3 Hare, 578; Glover v. ILall, 2 Ph. 484. 
 
EVIDENCE OF OPPONENT. 205 
 
 court might judge whether they were entitled to 
 have them delivered up to them (p). 
 
 The copyholders of a -manor have a right to see 
 the roUs of the manor. They have an interest in the 
 evidences of acts of ownership by their predecessors 
 over lands within the manor (y) ; so have the free- 
 hold tenants (r), and persons having common of 
 vicinage (s). 
 
 An official liquidator in a dispute between a cre- 
 ditor, or a contributory, and the company is obviously 
 nothing more than any other litigant ; and when the 
 dispute is between members of the company inter se, 
 he miist stand aloof {t). 
 
 A solicitor, or bare trustee, has no personal right 
 which can affect his duty to produce deeds. The 
 question in such cases is whether the party benefi- 
 cially interested could be called upon to produce 
 them (m). 
 
 A covenant contained in a deed of settlement of a 
 company not to call for an inspection of certain books 
 was held not to prevent a shareholder from doing so 
 after the company had been dissolved (x). 
 
 (p") Lady Beresford v. Driver, \i Bear. 387; Sishop of Win- 
 chester T. Bomker, 29 Beav. 479. 
 
 (j) B. T. Shelley, 3 P. K. 141. 
 
 (r) Warrick v. Queen's College, L. R., 3 Eq. 683. 
 
 («) ilinet V. Morgan, L. R., 11 Eq. 284. 
 
 (t) In re Contract Corporation, Gooch's case,!;. R., 7 Ch. 207; 
 la re Barned's Banking Co., JEx parte Contract Corporation, 
 L. R., 2 Eq. 350. 
 
 («) Fenmick v. Reed, 1 Mer. 114; Sparke t. Montriou, 1 Y. Si C. 
 103. 
 
 (ic) Hall Y.Connell, 3 Y. & C. 707. 
 
206 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 When a surviving partner, and the executors of 
 the deceased partner, agreed that the survivor should 
 carry on the business, inspection of the books of the 
 former was permitted to the latter (y). 
 
 Section 5. 
 
 Of Exceptions on the Ground of the farther Liability 
 of the Defendant. 
 
 A plaintijff, who sets up a title to possession in 
 himself, is entitled, as it has been seen, to discovery 
 of all the evidence which can tend to affirm his case ; 
 but of none of the evidences of the defendant which 
 cannot tend to establish affirmatively the title which 
 he claims. 
 
 The party who is sued may not, however, insist 
 upon a right in himself to the subject in dispute ; 
 but, admitting that he himself has no title, may sug- 
 gest that the plaintiff is without a title to the whole 
 or to part of the subject which he claims ; or that, 
 having had a title, he has conveyed it to some other 
 person. 
 
 In such cases, so far as the defendant charges 
 matter showing that the plaintiff possesses no title to 
 the subject of the suit, or that his title extends only 
 to part of the subject, or that he has aliened his 
 right, the charges must be answered ; notwithstand- 
 ing that the answer might involve a disclosure of 
 
 (y) Toulmin. v. Copeland, 9 L. J., N. S. (Ex. Eq.) 5 ; see Hue 
 V. Richards, 2 Beav. 305. 
 
EVIDENCE OF OPPONENT. 207 
 
 deeds or instruments wholly unconnected with the 
 possession of the plaintiff, and which are evidence of 
 the title of the defendant. 
 
 A bill, in the nature of an interpleading bill, 
 came before Lord Hardwicke, brought by the tenant 
 of an estate against a party claiming the possession 
 and mesne profits. It suggested that there was 
 issue in existence, an infant, who would be entitled 
 to the estate ; and it prayed that if there were any 
 such person he might interplead, and that the 
 defendant might be restrained from bringing ac- 
 tions. " The question," said his lordship, " comes 
 to this, — whether any person in possession of an 
 estate, as tenant or otherwise, may not bring a bill 
 to discover the title of a person bringing an eject- 
 ment against him, to have it set out, and see whether 
 the title be not in some other. I am of opinion he 
 may, to enable him to make a defence in ejectment, 
 even considering him as a wrong-doer against every- 
 body " (z). The principle is adopted and expressed 
 by Lord Kedesdale in nearly the same language (a), 
 with the important omission of the words printed in 
 italics, which seem, however, to form a necessary 
 term in the proposition, not only to show the appli- 
 cation of the judgment to the case then before the 
 court, but also to reconcile the principle which is 
 laid down in this case with the other decisions of the 
 same judge which affirm the proposition that the 
 
 (z) Metcalfy. Hervey, 1 Ves. 248. 
 (a) Mitford, Plead. 53. 
 
208 OBJECTIONS TO PARTICULAR DISCLOSURES: 
 
 evidences of the defendant's title are protected from 
 discovery (5). 
 
 The decision in the case of Metcalfe. Hervey (c) 
 seems to extend no farther than is involved in the 
 principle, nam established, that a sufficient founda- 
 tion for a discovery is raised where the pleadings 
 suggest a cause of apprehension that, if the defendant 
 should recover in his suit or action, the plaintiff may 
 yet be sued by some other person. 
 
 This principle was approved in an action of 
 ejectment in the Court of Exchequer (rf). 
 
 In a case where the object was to obtain evidence 
 to prove that the legal title to tithes sued for was not 
 in the plaintiff, but was in trustees of unsatisfied 
 terms for the benefit of incumbrances, the plaintiff 
 was obliged to answer the charges in a bill of dis- 
 covery that there had been a severance of the tithes 
 from the rectory, and that he had made a convey- 
 ance of them ; although he was not bound to dis- 
 cover his title, or to set forth his title deeds or the 
 contents of them (e). To such a discovery the de- 
 fendant is clearly entitled if, as may perhaps be in- 
 ferred from the ultimate decision in the original 
 suits, he may require to be satisfied that the annuities 
 and interest charged upon the tithes have been paid 
 up to the time when the bill was filed (_/"). 
 
 (J) Bnden v. Dore, 2 Ves. 445; Stroud v. Deacon, 1 Ves. 37. 
 (c) 1 Ves. 248. 
 
 {d) Flitcroft v. Fletcher, 11 Exch. 543. 
 (e) Glegg t. Legh, 4 Mad. 193; Parlter v. Legh, 4 Mad. 208. 
 (/) Glegg v. Legh, 1 Bligh, N. S. 302 ; Oierry v. Legh, Hid. 
 306. 
 
EVIDENCE OF OPPONENT. 209 
 
 A like point was decided in the case of Drury 
 Lane Theatre. The action was one of covenant for 
 dilapidations, and the defendant filed a bill alleging 
 that he had learnt that the plaintiff had conveyed 
 his interest to trustees, who threatened and intended 
 to proceed for the same cause. The discovery, it 
 was insisted, was necessary to the defendant's case at 
 law ; for, after the assignment, covenant would lie 
 in the assignee, and, even if the plaintiff recovered 
 sufficient to rebuild, the defendant would not then 
 be exonerated from further claims. The court held 
 that the defendant had a right to know whether the 
 plaintiff had previously parted with his interest ; and 
 for that purpose was entitled to see the deeds by 
 which that interest had been transferred {g). 
 
 In a case before Lord Abinger, the defendant to 
 an original bill for tithes put in issue by his answer 
 the title of the plaintiff, and then filed a cross bill for 
 discovery of the plaintiff's title, charging also that he 
 was only a portionist. The answer to the cross biU 
 denied that the plaintiff was only a portionist, and 
 submitted that he was not bound to answer the 
 charge with regard to his title deeds. Upon excep- 
 tions to the answer the Lord Chief Baron laid it 
 down, " that though in general the defendant has no 
 right to a discovery of the plaintiff's title, yet, in 
 certain cases, he will be entitled to a discovery 
 of the plaintiff's title. Thus, where a party files 
 his bin as rector, the defendant may file a cross 
 bill to see whether the plaintiff in the original suit 
 
 (g) Duke of Bedford t. Maciiamara, 1 Price, 208. 
 
210 OBJECTIONS TO PAETICOLAE DISCLOSURES : 
 
 is entitled to have tliat which he admits may be due 
 to somebody. The defendant may allege that some 
 other person is entitled, and in such case he may file 
 his bill of interpleader. If he does not go that 
 length, he may suggest that he has had notice that 
 some other person is entitled paramount to the 
 plaintiff, or that the plaintiff has parted with his 
 right to the tithes ; and in such case, though there is 
 no ground whatever to make the party disclose the 
 evidence of his title, still there is ground to call on 
 the party to discover the nature of his title, so that 
 the defendant may not be harassed a second time. 
 That would apply to several cases ; as, for instance, 
 if the defendant to the original suit had established 
 a modus, and it then turned out that the plaintiff 
 had parted with his interest, a person claiming by a 
 paramount title might say that he was not bound by 
 that decision. It is clear that in such a case the 
 defendant would have to claim a discovery of the 
 nature of the plaintiff's title, in order to protect 
 himself in that particular payment" (h). " The case," 
 concluded Lord Abinger, "by which the general 
 rule is entrenched upon, and which forms an excep- 
 tion to the rule is, when it is expedient that the 
 defendant should be protected from any adverse 
 right set up by a paramount claimant, and from 
 agitating the matter over again" (z). 
 
 A t«stator devised his estate to his heir, with re- 
 mainder, if no heir should be found, to the plaintiff's 
 
 (A) JJellmood y.Wetherell, 1 Y. & C. 211, 216. 
 (?) md. 220. 
 
EVIDENCE OF OPPONENT. 211 
 
 ancestor. After the testator's death it was necessary 
 to advertise for an heir to him, when there were 
 several claimants, but the plaintiff's ancestor was 
 decreed possession. A writ of right was, many years 
 afterwards, issued by the defendant in right of his 
 wife, and a biU filed praying that possession might 
 be delivered to him — ^the biU alleging the wife's 
 pedigree. A cross bill was then filed by the plaintiff; 
 and he was allowed to inquire into the alleged pedi- 
 gree of the wife of the defendant (A). 
 
 In a recent action in the Common Pleas the cases 
 above mentioned were followed, the circumstances 
 being very similar (Z). 
 
 Some doubts arise upon decisions, the language of 
 which seems to import that a distinction with respect 
 to discovery might arise out of the circumstances of 
 the possession being either of recent or of long 
 duration, and that there are cases in which the dis- 
 covery may be demanded of the nature of the title of 
 the plaintiff, though not of the evidences of the title. 
 The present subject cannot properly be dismissed 
 without adverting to these distinctions. 
 
 Lord Abinger said, " Where a party is in posses- 
 sion of an estate, and a perfect stranger comes to 
 turn him out, alleging himself to be the person 
 entitled, it is but reasonable that the party so attacked 
 should have an opportunity of knowing the plaintiff's 
 case, so far as whether he claims as heir-at-law — 
 whether he claims under a devise, or whether he 
 
 . (i) Lomndes v. Dames, 6 Sim. 468; Shepherd r. Morris, 1 Beav. 
 175, errors charged in acconnts. 
 (I) Stoate V. Revj, 14 C. B. (N. S.) 209. 
 
2 1 2 OBJECTIONS TO PARTICULAR DISCLOSURES : 
 
 alleges any imperfection in the defendant's title 
 deeds. There the defendant is taken by surprise ; 
 and therefore I can easily understand in such a case 
 why, not the evidence, but the nature of the title, 
 should be disclosed. But in cases of recent posses- 
 sion, where the parties well know the nature of each 
 other's title, there is no ground to compel any such 
 discovery as that which is here required " (m). 
 " When," he added, "a corporation claims a toll to be 
 due from the inhabitants of a town, then I think it 
 would be both expedient and just, not that the 
 evidence of their title, but that the nature of their 
 claim, should be discovered" (n). "The court," it 
 was said by Eyre, C. B., " wiU exercise their discre- 
 tion in allowing the plaintiffs to search into the title, 
 any further than for the purposes of the suit " (o). 
 
 It must be observed that there does not appear, in 
 any of the cases, a definition of what is to constitute 
 such a recent or an ancient possession as will entitle 
 the plaintiff or defendant to the benefit of the distinc- 
 tion which is laid down. Nor does any example that 
 has been given, seem sufficiently explicit to enable a 
 draftsman to frame a defence which shall disclose the 
 nature of the title, and preserve secrecy with regard 
 to its evidences. In the case suggested by Lord 
 Hardwicke, he expressly holds that the title is to be 
 set out ; and in all the authorities cited in the present 
 section, it appears that so far as the plaintiff has 
 
 (m) Bellwood v. Wetherell, 1 Y. & C. 211, 218; Whyman t. 
 Legh, 6 Price, 88. See Stoate v. Rem, 14 C. B. (N. S.) 209. 
 (») Bellmood v. Wetherell, 1 Y. & C. 219. 
 (o) Bowman v. Lygon 1 Anst. 1. 
 
EVIDENCE OF OPPONENT. • 213 
 
 raised a ground for discovery, the disclosure must be 
 fuU, and aU deeds and evidences necessary to com- 
 plete it must be disclosed. It is deserving of con- 
 sideration whether a rule estabhshing a right to 
 discovery upon a particular matter, but not extending 
 to a full discovery, -will not, from the circumstances 
 that it is indefinite, produce the inconvenience of an 
 appeal to the discretion of the court in every case. 
 
 It should also be remarked, that the cases which 
 suggest these distinctions all occurred in the Ex- 
 chequer, where the exceptions were brought before 
 the court in the first instance, and where the rule 
 with regard to answering ftdly was not generally 
 appKed (p). 
 
 Section 6. 
 
 Of Exceptions on the Ground of Fraud. 
 
 When the object of a suit was to set aside or 
 destroy a deed or instrument, a difiiculty seems to 
 have been felt in determining whether the deed or 
 instrument so impeached ought to be viewed in the 
 hght of a title deed (§'). And it has been contended 
 that the deed in such a case is not vdthin the rule 
 which protects the defendant's evidences (r). This 
 may, perhaps, be inferred from the observations of 
 Lord Eldon, in a case to set aside a conveyance 
 of an estate. " Where the object of the suit is to 
 
 ip-) Post, p. 224. 
 
 (j) BecTcford v. Wildman, 16 Ves. 438. See Kennedy y. Green, 
 6 Sim. 6. 
 
 (r) Codrington v. Codrington, 3 Sim. 519, 522. 
 
214 OBJECTIONS TO PAETICULAK DISOLOSUEES: 
 
 destroy the deed, the plaintiff has a right to have it 
 produced, and left in the hands of the clerk in court 
 for the usual purposes of inspection." On another 
 occasion his lordship said : " Where a deed is sought 
 to be impeached, the plaintiff is entitled to have.it 
 produced, and no lien can protect the defendant from 
 producing it, for it is the object of the suit that the 
 deed may be declared a nullity. A considerable 
 question, however, may arise at what period of the 
 cause the production can be compelled " (s). 
 
 There are two principles upon which the court 
 proceeds in mating interlocutory orders for the pro- 
 duction of documents : security pending litigation, 
 and discovery for the purposes of the suit {i). In the 
 consideration of a leading case upon this point 
 the two principles are blended; the object of the bill 
 having been the safe custody of the deeds. Lord 
 Eldon said, " Whether these instruments are to be 
 considered as title deeds or not, it is clear that where 
 the object of the bill is to set aside the grant, the 
 court must have the power of so dealing with the 
 instrument as to be reasonably sure of having it 
 produced upon all occasions when its production 
 may be necessary. That sort of title deed must 
 therefore be produced for the purpose of being proved 
 before the examiner, if necessary for the discovery 
 ' of its contents, and must be produced at the hearing 
 if necessary ; b'ut the court does not take the custody 
 of it in the interval without a special case (m). 
 
 (s) SalcJi v. Symes, Turn. & R. 87, 92. 
 (f) Lingen v. Simpson, Mad. & G. 290. 
 (y) Becliford v. Wild/man, 16 Ves. 438, 442. 
 
ETIDESrCE OF OPPONENT. 215 
 
 An order in another case was made for a delivery 
 to the plaintiff personally, or to her clerk in court, 
 at her option ; and it proceeded on the ground that 
 when a person executes a deed in favour of her 
 soKcitor, and reserves to herself a life interest and a 
 power of revocation, it is impossible for the solicitor 
 to refuse to produce the deed ; and that it is his duty 
 to have a counterpart of it in the hands of his 
 client (z). A voluntary deed, alleged to have been 
 obtained from a person of unsound mind, has been 
 ordered to be produced for the plaintiff's inspec- 
 tion {y). 
 
 Where it was alleged that the plaintiff executed 
 the deed under an impression that it was a power of 
 attorney ; that when she signed the receipt on the 
 back of the deed it was folded down so that she 
 could not see what she was signing; and that the 
 fraud practised in procuring her signature would 
 appear on inspection of the deed, it was ordered to 
 be produced (z). This case cannot be considered as 
 an exception to the general rule; for the patent 
 evidence of fraud, which it was alleged the deed 
 would exhibit, rendered it, to the extent of that 
 charge, the evidence of the plaintiff. It may be 
 doubtful, indeed, whether any of the present cases 
 constitute exceptions to the general rule ; but inas- 
 much as they involve some considerations, which do 
 not arise in other cases, it seemed proper to treat 
 them as a distinct class. 
 
 (ir) Baloh t. Symes, Tnm. & E. 87. 
 (y) Fencott v. Clarhe, 6 Sim. 8. 
 (z) Kennedy v. Green, 6 Sim. 6. 
 
216 OBJECTIONS TO PAETICULAE DISCLOSURES: 
 
 When the plaintiff impeached a deed in the de- 
 fendant's possession, claiming that it was given as 
 security for a debt since paid off; and the defendant 
 admitted the possession and relevancy of the deed, 
 but alleged that it was a bond fide conveyance for 
 valuable consideration, and not a security, production 
 was ordered upon the cases made out by the parties. 
 AU subsequent documents depending upon it and 
 proceeding from it were included in the order ; among 
 other things a receipt for the mortgage debt after 
 the date of the deed (a). 
 
 It seems to be decided that, where it appears by 
 the description of a particular instrument that it is 
 evidence not of the title of the plaintiff but of the 
 defendant, the circumstance that the instrument is 
 sought to be set aside on the ground of fraud does 
 not entitle the plaintiff to a production of it (J), 
 unless there are otherwise special grounds for that 
 production. " The court must look to the circum- 
 stances of each case" (c). 
 
 Where the genuineness of a document has been 
 impeached, the coiirt has allowed it to be inspected 
 by witnesses (<^). 
 
 («) Jones T. Jones, Kay, Appendix vi. 
 
 (J) Tyler v. Drayton, 2 Sim. & S. 309 ; The Princess of Wales 
 T. Earl of Liverpool, 1 Swans. 114; Howard y. Hobinson, 4 Drew. 
 522; PilKngton v. Himsivorth, 1 T. & C. 617; Finney y. For- 
 roood, L. E., 1 Ex. 6. 
 
 (c) Bassford v. Blaltesley, 6 Beav. 131; Buncombe t. Bavis, 
 1 Hare, 184 ; Bendy t. Oross, 11 Beav. 91 ; Stainton v. Chadwick, 
 3 Mac. & G. 575; Republic of Costa Rica v. Erlanger, L. R., 19 
 Eq. 33; Berby Commercial Bamh t. Lumsden, L. R., 5 C. P. 107, 
 trover, interrogatories. 
 
 ((?) Groves T. Groves, Kay, Appendix xix. 
 
EVIDENCE OF OPPONENT. 217 
 
 Scientific tests, when forgery or obliteration has 
 been suspected, have been permitted in the presence 
 of a vice-chancellor (e) ; but refosed, where the 
 party sought to employ them elsewhere (/). 
 
 And where a transaction has been impeached, 
 production of accounts has been ordered {g). 
 
 Section 7. 
 Of the Application of the Rule at Common Law. 
 
 It will be convenient to divide civil actions into 
 real and personal, or those relating to property, and 
 those alFecting persons. 
 
 First, as to real actions. A title to property may 
 be good against all the world ; or possessory only, 
 that is, good against every one not showing a better. 
 Property may consist of land or of goods ; but only 
 so far as it has an intrinsic value beyond its price in 
 money will it here be considered as the subject of a 
 real action. 
 
 The application of the rule to disputes where the 
 recovery of land is in question, is illustrated by the 
 decided cases upon actions of ejectment at common 
 law, brought by claimants against wrongful occu- 
 piers, or by landlords against tenants ; and by suits 
 in equity by parties claiming as heirs, devisees, 
 tenants in tail or otherwise, where some matter 
 charged made the suit one of equitable cognizance. 
 
 (e) Groves t. Groves, Kay, Appendix xix. 
 (/) Tn-entyman t. Barnes, 2 De G. & S. 225. 
 (g) Saull T. Browne, L. E., 9 Ch. 364. 
 
 H. . . . L 
 
218 OBJECTIONS TO PAETIOULAE DISCLOSURES : 
 
 As to the cases at common law. It was a doc- 
 trine of those courts that a claimant must recover 
 upon the strength of his own title, and not through 
 the weakness of that of the occupant. And it was 
 equally well settled that possession was a title 
 against a claimant not showing a good title (A). 
 
 In a recent case (i) Bramwell, B., mentioned that 
 there appeared to be no case in which a plaintiif 
 making a claim as heir thereby gave himself a right 
 to call on a person in possession to state by what 
 title he was so in possession. And in a still more 
 recent action (A) by a rector against his patron for 
 half of the rent of the churchyard, and of the tithes, 
 or rent-charge in heu of tithes, charged to have been 
 improperly received by him, the Barons of the 
 Exchequer permitted interrogatories to be exhibited 
 by the plaintiff seeking a discovery of the parti- 
 culars of the rent of the churchyard, or tithes, or 
 rent-charge in lieu of tithes, which the patron was in 
 the habit of receiving ; whether he had received 
 them during the life of the previous rector ; when 
 his ancestors had commenced to receive them ; and 
 also asking for an accoimt of the monies so received. 
 The interrogatories, however, containing the words 
 " By what authority, &c.," to each particular, were 
 altered so far that those words, which related to the 
 defendant's title only, were ordered to be struck out. 
 
 Where a defendant had been a long time in pos- 
 
 {h) Martin v. Straohan, cited Oram v. Baldmere, 5 T. E. 104, 
 110 ; Doe d. Awry v. Langford, 21 L. J. (Q. B. ) 217 ; ante, p. 189. 
 
 (i) Horton v. Bott, 2 Hurl. & N. 249, 255; ante, p. 202. This is 
 the strongest case. 
 
 (i) Torvne v. Coohs, L. E , 9 Ex. 45 ; ante, p. 197. 
 
EVIDEXCE OF OPPONENT. 219 
 
 session of an estate, a stranger bringing ejectment 
 was required to show his title (/). 
 
 Where the relation of landlord and tenant exists, 
 the case is even stronger. It is well established that 
 a tenant may not dispute his landlord's title, that is, 
 the title under which he himself entered (m). Nor 
 may a landlord interrogate his tenant as to his acts 
 which may have the effect of creating a forfeiture {n). 
 A superior landlord bringing an action for recovery 
 of his land against the lessee of his tenant, holding 
 over after the expiring of the lessee's term, may be 
 regarded as seeking to eject a wrongful occupant, 
 for the privity between the parties is at an end, if it 
 ever existed (o). 
 
 A lessor who had no counterpart of the lease was 
 allowed to see the lease in the hands of the mortgagee 
 of his lessee ( jo). And where a lessee sought to eject 
 his sub-lessee, under a proviso for re-entry in the event 
 of the lessee being desirous to build on the premises 
 demised, if he "should bona fide determine so to do," 
 the Court of Common Pleas allowed the defendant 
 
 (Z) Flitcroft V. Fletclier, 11 Exch. 543; Stoate t. Rew, \i C.B. 
 CS. S.) 209; and see Pearson v. Turner, 33 L. J. (C. P.) 224 ; 
 Miccard v. Inclosure Commissioners, 4 EI. & B. 329; ante,^. 211. 
 
 (m) BarmicU t. Tliompson, 7 T. R. 488, 491. 
 
 («) May T. SawKns, 11 Exch. 210, forfeiture for broach of 
 corenant to insure ; Wallen v. Forrestt, L. R., 7 Q. B. 239, tenant 
 holding over; Pye v. Butterfield, 34 L. J. (Q, B.) 17, forfeiture for 
 breach of covenant not to underlet. 
 
 (o) Arnsiy v. Woodmard, 6 Bam. & C. 519. 
 
 (j)) Doe d. Morris v. Roe, 1 Mees. & W. 207. See also Doe d. 
 Avery v. Langford, 21 L. J. (Q. B.) 217. 
 l2 
 
220 OBJECTIONS TO PAETICULAE DISCLOSURES : 
 
 to ask him whether he had obtained the license of 
 his superior landlord {q). 
 
 The application of the rule now under considera- 
 tion to actions relating to the detention of goods is 
 illustrated by the decided cases upon interrogatories 
 in actions of detinue and replevin. Lord Campbell 
 observed that a person in possession of them " has a 
 good title against every stranger, and that one who 
 takes them from him, having no title in himself is 
 a wrong-doer, and cannot defend himself by showing 
 that there was title in some third person ; for against 
 a wrong-doer possession is a title " (r). 
 
 In an action in the Queen's Bench of detinue for 
 title deeds, to which the defendants pleaded that the 
 deeds had been deposited by way of security, inter- 
 rogatories were delivered seeking to discover from 
 them whether there existed any memorandum of 
 deposit. The following expressions were made use 
 of by AVightman, J.: "A plaintiff is not entitled 
 to inspect a document which solely makes out the 
 defendant's case, but here there is only one document, 
 and the plaintiiFs are interested in it as well as the 
 defendant.'' And Crompton, J., remarked : " In the 
 old cases a party was entitled to have oyer of a deed, 
 when it was relied on by the other side, and the 
 distinction as to oyer between documents under seal 
 and not under seal, has been much done away with. 
 I do not think it was ever intended that when a party 
 in pleading goes upon a particular document, the 
 other party should not be allowed to inspect it " (s). 
 
 (?) Winn Y. Sose, 36 L. J. (C. P.) 306. 
 (r) Jeffries v. 6freat Western Bail Co., 5 EI. & B. 802, 805. 
 (i) Owen V. Nicltson, SOL. J. (Q. B.) 125; Scott t. Walker, 2 
 El. & B. 556. 
 
EVIDENCE OF OPPONENT. 221 
 
 The action of replevin was peculiar, in that the 
 question of title to the goods distrained did not arise. 
 That -was acknowledged, by the form of the action, 
 to have been in the tenant at some time ; and it was 
 the right to distrain which only was in dispute. 
 This turned upon whether the rent had been paid 
 according to the terms of the tenancy: unless the 
 action were not bond fide. 
 
 The rule in question in the case of personal actions 
 is illustrated by several examples, both in actions of 
 contract (t), and of tort{u). 
 
 (f) DiSCOVEET BY THE DEPENDAUT : GoodUff T. Fuller, 14 
 Mees. & W. 4 ; Skadniell v. Shadmell, 6 C. B. (N. S.) 679, at com- 
 mon law; Bayner t. AllTiusen, 21 L. J. (Q. B.) 68 ; Galsworthy v. 
 Norman,2\'L. 3. {Q.B.)70; London Gaslight Co.y. ChelseaVestry , 
 
 6 C. B. (N. S.) 411; Penarth Harhonr, ^-o. Co. v. Cardiff, S'o. Co., 
 
 7 C. B. (N. S.) 816, under the Act of 1851; Daniel v. Bond, 9 C. B. 
 (K S.)716; T/wlY.Leasie,24:'L.3. (;Ex.)U2; £ayleyv. Griffiths, 
 1 Hurl. & C. 429, under the Act of 1854. 
 
 DiSCOVEET BT THE PLAINTIFF : £loi/g T. Xent, 6 BlDg. 614 ; 
 JBluch V. Gompertz, 7 Exch. 67; Sneiderx. Mangino, 7Exch. 229; 
 Wright T. Morrey, 1 1 Exch. 209 ; Price v. Harrison, 8 C. B. (N. S. ) 
 617; Lewis v. Briggs, oL. J. (C. P.) 224, at common law; Hunt t. 
 Hewitt, 7 Exch. 236. under the Act of 1851 ; Stone t. Strange, 3 
 Harl. & C. 541 ; Zarif. v. Thornton, 26 L. J. (Ex.) 214; Moor v. 
 Roberts, 26 L. J. (C. P.) 246, under the Act of 1854. 
 
 («) DiSCOVEBT BY THE DEFENDANT : WAateley V. Crowter, 
 Carew t. Davis, 5 El. & B. 709, negligence ; Collins v. Yates, 27 L. J. 
 (Ex.) 1 50, libel; Hill t. Philp, 7 Exch. 232, against keeper of asylum. 
 DiSCOVEEY BY THE PLAINTIFF : Peppiatt V. Smith, 3 Hurl. & 
 C. 129, negligence ; Finney v. Forward, 4 Hurl. & C. 33, trover ; 
 Stewart v. Smith, L. E., 2 C. P. 293, malicious prosecution ; Ed- 
 mards v. Wakefield, 6 El. & B. 462, trover; all under the Act of 1854. 
 
( 222 ) 
 
 PART IV. 
 
 PROCEDUEE. 
 CHAPTER I. 
 
 OF DISCLOSUKE IN THE PLEADINGS. 
 
 Section 1. 
 
 Of the Rule in Chancery that a Defendant submit- 
 ting to answer must answer fully. 
 
 "The old rule (of the Court of Chancery) before 
 the time of Lord Thurlow was either to demur, to 
 plead something dehors the biU, or that sort of nega- 
 tive plea of which we know more in equity than at' 
 law, or to answer throughout" {a). After many 
 changes, the same practice was finally settled in the 
 latter years of Lord Eldon. It is unnecessary to 
 notice the changes, but the reasons of the final adop- 
 tion of the practice may be adverted to. 
 
 Immemorial practice assigned to the Masters in 
 Chancery the duty of determining upon the suffi- 
 ciency of answers. This was done by a reference to 
 the master, who reported upon the exceptions which 
 were taken. His judgment was in the shape of a 
 
 (a) Per Lord Eldon, Somerville v. Mackaij, 16 Ves. 382, 387. 
 
DISCLOSURE IN THE PLEADINGS. 223 
 
 certificate to the court upon the fact referred to him, 
 and the propriety of his decision might have been 
 questioned by excepting to his report. If an objec- 
 tion to answering were taken by demurrer or plea, 
 the judgment of the court was given in the first in- 
 stance — for the validity of a demurrer or plea was 
 never referred to the determination of the master. 
 The question reserved to the court was mainly, 
 though not wholly, one of law ; whilst the question 
 left to the master was chiefly, though not entirely, 
 matter of fact. 
 
 The result of this division of labour was the adop- 
 tion of two rules : the one, that a defendant who 
 submitted to answer must answer fiilly; and the 
 other, that an answer accompanying a demurrer or 
 plea — except in the case of a plea, an answer to 
 special charges in the bill — overruled the demurrer 
 or plea. These rules were laid down in order to 
 make the pleadings conform to the practice of the 
 court, and also to prevent the "inconvenience" of 
 confounding the defence to the relief with the de- 
 fence to the discovery. 
 
 Another ground was "inconsistency." The 
 answers might be held to be insufficient by the 
 master, and yet the court might refiise to order a 
 farther discovery upon some ground of privilege. 
 They only applied, however, to general objections to 
 discovery, and at no time to objections to parti- 
 cular disclosures. A defendant was not permitted 
 to say, " I will not answer, because you have no 
 title to relief against me at law or in equity," for 
 he had passed the stage at which such an objection 
 
224 PKOCEDUEE. 
 
 was appropriate ; but he might say,. in any stage of 
 the cause, "I am not bound to make this dis- 
 closure, even admitting your title is as you have 
 asserted " (6). 
 
 In the Exchequer, the practice was different. 
 There, exceptions for insufficiency were not referred 
 to a master, but were argued before the court in the 
 first instance. Hence, there was not the same in- 
 convenience to be considered, and the rules were 
 not in vogue. 
 
 By Consolidated Order XV. 4, it was ordered that 
 " a defendant shall be at liberty by answer to decline 
 answering any interrogatory, from answering which 
 he might have protected himself by demurrer, and 
 he shall be at liberty so to decline, notwithstanding 
 he shall answer other parts of such interrogatory, or 
 other interrogatories from which he might have pro- 
 tected himself by demurrer, or other parts of the 
 bill as to which he was not interrogated " (c). 
 
 Upon this order it was decided that when a defend- 
 ant was in a position to demur to the whole action, 
 and did not do so, but put in a defence, he could not 
 afterwards decline to answer a particular interroga- 
 tory, on the ground that he might have demurred 
 generally (e?). In fact, the order was held to apply 
 
 0>) See the remarks of Lord Selborne in JSlmer v. Creasy, L. R., 
 9 Ch. 69, 72. 
 
 (0) 26th August, 1841. 
 
 ((i) Mason v. Wakeman, 2 Phil. 516 j Fislie-r v. Price, 11 Bear. 
 194; Att.-Gen. v. Corporation of London, 12 Beav. 21; Stainton 
 v. ChadwicU, 13 Beav. 320 ; Wich v. Parker, 22 Beav. 59 ; Home 
 V. M'Keraan, 30 Bear. 547; Foxwell v. Welster, 2 Dr. & S. 250. 
 And see the cases cited at p. 142, ante. 
 
DISCLOSUKE IN THE PLEADINGS. 225 
 
 to particular and not to general objections to dis- 
 coverj. 
 
 The rule extended to cases where the claim to 
 relief could be met by a plea in bar of it (e). 
 
 It may be defended upon another ground. If a 
 party can dispose of the question in dispute by a 
 demurrer, or plea in bar, he ought not to create 
 unnecessary costs by entering into irrelevant conten- 
 tions. 
 
 It would seem that this is the only ground upon 
 which such a rule could now be supported. The 
 object of the rule ceased in the year 1852, when the 
 office of master was abolished; and questions of 
 sufficiency of answers have since been, and are now 
 decided by the court, or a judge, on motion or 
 simamons (/). The present procedure, in this 
 respect, is somewhat similar to that formerly in 
 vogue in the Court of Exchequer. 
 
 This question has reference solely to the plead- 
 ings, and does not apply to answers to interrogato- 
 ries, which are treated of elsewhere {g)- 
 
 Section 2. 
 
 Of the Form of the Pleadings. 
 
 It is obvious that the defendant may meet the 
 claim of the plaintiff in one of three ways : by ad- 
 
 (e) Mansell v. Feeney, 2 John. & H. 313. 
 (/) Order XXXI. 9. 
 {g) Post, p. 2i0. 
 
 l5 
 
226 PKOCEDURB. 
 
 mission, by denial, or by pleading some new matter 
 in bar of the relief, or some part of it. In equity 
 there were two forms of defence against the claim 
 set up, the plea and the answer : at law there was 
 but one, the plea. The demurrer, for want of a 
 legal right to relief, was common to both jurisdic- 
 tions. 
 
 A plea in equity was, in effect, an introduction by 
 the defendant of fresh facts into the case made out by 
 the plaintiff, sufficient, if proved, to make the action 
 demurrable. An answer was necessary when the 
 dispute could not so easily be reduced to a simple 
 question (A). 
 
 A plea at common law was sometimes a complete, 
 and sometimes only a partial, defence to an action. 
 There were many kinds of plea, the principal divi- 
 sions being : pleas in abatement, now abolished (i) ; 
 
 (A) " There was a remarkable peculiarity about the pleadings in 
 equity which distinguished them from all other systems of pleading, 
 and eyen from those that were founded upon the same model. This 
 peculiarity consisted in the double office performed by the answer. 
 The answer In equity not only contained the result of the examina- 
 tion of the defendant which the plaintiff had required by his bill, 
 but it also contained the matter upon which the defendant founded 
 his resistance to the claim. Nothing is more common than the use 
 of the term, both in the sense of what is said in reply to a qnestion, 
 and in confutation of a charge; and nothing would be more illogical 
 than to apply the same reasoning to an answer without regard to 
 these diverse senses. It cannot be disputed that the term 'answer' 
 was used in the courts of equity in both of the senses which are 
 attributed to it ; and it seems to follow, as a necessary consequence, 
 that, in all arguments or judgments in which it occurs, the first 
 question is, in which of these senses is it applied ?" 1st edit. p. 223. 
 
 (i) Order XIX. 13. 
 
DISCLOSUKE IN THE PLEADINGS. 227 
 
 and pleas in bar (k). Several pleas might be pleaded 
 together, even if inconsistent with one another. For 
 instance, an administrator has been allowed to plead 
 at the same time 7ie ungues administrator, and plene 
 administravit. The object was to put the plaintiff 
 to the proof of his whole case ; and, if the defendant 
 did not succeed upon one plea, he might yet succeed 
 upon another. The pleas were usually aU tried to- 
 gether ; but the court had power, in some cases, to 
 try one plea before another. 
 
 The usual course of procedure in an action is that 
 the plaintiff delivers a statement of claim, the de- 
 fendant a statement of defence, with or without set- 
 off or counter-claim; and then the plaintiff may 
 deKver a statement of reply. But pleadings may be 
 dispensed with (/).; 
 
 The rules of procedure as to pleadings (so far as 
 material) are : — 
 
 " Every pleading shall contain as concisely as may 
 be a statement of the material facts on which the 
 party pleading relies, but not the evidence by which 
 they are to be proved, &c. " (m). 
 
 " Every statement of claim shall state specifically 
 the relief which the plaintiff claims, either simply or 
 in the alternative, and may also ask for general re- 
 lief. And the same rule shall apply to any counter- 
 
 (i) A plea in bar might be only a defence to a part of the claim, 
 such as part payment. It is probable that the word "plea" will 
 continue in use to represent a separate head of defence. 
 
 Q) Order XIX. 2 ; Order XXII. 1, a statement of defence is 
 only required when a statement of claim is delivered. 
 
 (m) Order XIX. 4. 
 
228 PROCEDURE. 
 
 claim made, or relief claimed by the defendant, in 
 hi statement of defence. If the plaintiff's claim be 
 for discovery only the statement of claim shall show 
 it"(«). 
 
 " Where the plaintiff seeks relief in respect of 
 several distinct claims or causes of complaint founded 
 upon separate and distinct facts, they shall be stated, 
 as far as may be, separately and distinctly. And 
 the same rule shall apply when the defendant relies 
 upon several distinct grounds of defence, set-off, or 
 counter-claim founded upon separate and distinct 
 facts " (o). 
 
 " Every allegation of fact in any pleading in an 
 action, not being a petition or summons, if not denied 
 specifically or by necessary implication, or stated to 
 be not admitted in the pleading of the opposite party, 
 shall be taken to be admitted, except as against an 
 infant, lunatic, or person of unsound mind not so 
 found by inquisition " (p). 
 
 " Each party in any pleading, not being a petition 
 or summons, must allege aU such facts not appear- 
 ing in the previous pleadings as he means to rely on, 
 and must raise all such grounds of defence or reply, 
 as the case may be, as if not raised on the pleadings 
 would be likely to take the opposite party by sur- 
 prise, or would raise new issues of fact not arising 
 out of the pleadings, as for instance, fraud, or that 
 any claim had been barred by the Statute of Limi- 
 tations or has been released " {q). 
 
 (») Order SIX. 8. 
 (o) Order XIX. 9. 
 {p) Order XIX. 17. 
 (2) Order XIX. 18. 
 
DISCLOSURE IX THE PLEADINGS. 229 
 
 " No pleading, not being a petition or summons, 
 shall, except by way of amendment, raise any new 
 ground of claim, or contain any allegation of fact 
 inconsistent with the previous pleadings of the party 
 pleading the same " (?•). 
 
 " It shall not be sufficient for a defendant in his 
 defence to deny generally the facts alleged by the 
 statement of claim, or for a plaintiff in his reply to 
 deny generally the facts alleged in a defence by way 
 of counter-claim, but each party must deal specifically 
 with each allegation of fact of which he does not 
 admit the truth " (s). 
 
 " When a party in any pleading denies an alle- 
 gation of fact in the previous pleading of the oppo- 
 site party, he must not do so evasively, but answer 
 the point of substance, &c." (f). 
 
 Either the plaintiff has, in his statement of claim, 
 made out a case for the interference of the court, or 
 he has not. 
 
 A statement of defence must be in the form of 
 a narrative of all the material facts on which 
 the defendant intends to rely. It must deny all 
 matters specifically charged in the statement of 
 claim which the defendant does not admit {u) ; but 
 the whole statement must be consistent, for although 
 it is not made on oath, it will be conclusive against 
 the defendant. 
 
 The statement of defence may allege several 
 
 {r) Order XIX. 19. 
 («) Order XIX. 20. 
 («) Order XIX. 22. 
 («) Order XIX. 20. 
 
230 PSOCEDUEE. 
 
 distinct matters as grounds why judgment should 
 not be given for tSe plaintifF. Any one of them 
 may be sufficient to raise an issue between the liti- 
 gants, or they may only have that effect when 
 grouped together. For instance, the Statute of 
 Limitations may be put in issue by a simple state- 
 ment that the defendant relies on it ; or it may be 
 necessary to set out a series of circumstances, in 
 order to found the protection. It is evident, also, 
 that several issues may be raised by the same 
 pleading. 
 
 — ♦ — 
 
 Section 3. 
 Of Resistance to Discovery by means of Pleadings. 
 
 The pleadings are, therefore, concise statements of 
 the cases of the parties to the action. 
 
 For example, take Form No. 2, Appendix C. to 
 the schedule to the rules, which is an action for the 
 administration of the real and personal estate of an 
 intestate, and given as an instance of the simplest 
 form of a disputed claim (a:). After formal parts, 
 
 (ic) In the High Court of Justice. 
 Chancery Division. ' 
 [Name of judge."] 
 
 Writ issued 22n(i December, 1876. 
 In the matter of the estate of A. B. deceased. 
 
 Between E.P Plaintiff, 
 
 and 
 G. H. .. .. .. .. .. Defendant. 
 
 Statement of Claim. 
 1. A. B., of K., in the county of L., died on the 1st of July, 1875, 
 intestate. The defendant G. H. is the administrator of A. B. 
 
DISCLOSURE IN THE PLEADINGS. 231 
 
 necessary for purposes of identification, comes the 
 plaintiff's case, with its consequent claim for specific 
 
 2. A. B. died entitled to lands in the said connty for an estate of 
 fee simple, and also to some other real estate, and to personal estate. 
 The defendant has entered possession of the real estate of A. B., 
 and receiTed the rents thereof. The legal estate in such real estate 
 is outstanding in mortgages under mortgages created by the intes- 
 tate. 
 
 3. A. B. was never married ; he had one brother only, who pre- 
 deceased him without haTing been married, and two sisters only, 
 both of whom also pre-deceased him, namely, M. N. and P. Q. The 
 plaintiff is the only child of M. N., and the defendant is the only 
 child of P. Q. 
 
 The plaintiff claims: — 
 
 1. To haye the real and personal estate of A. B. administered 
 
 in this court, and for that purpose to have all proper direc- 
 tions given and accounts taken. 
 
 2. To have a receiver appointed of the rents of his real estate. 
 
 3. Such further and other relief as the nature of the case may 
 
 require. 
 
 In the High Court of Justice. 1876. B. No. 233. 
 
 Chancery Division. 
 \_Xfame of judge."] 
 
 In the matter of the estate of A. B. deceased. 
 
 Between E.F Plaintiff, 
 
 and 
 G. H Defendant. 
 
 Statement of Defence. 
 
 1. The plaintiff is an illegitimate child of M. N. She was never 
 married. 
 
 2. The intestate was not entitled to any real estate at his death, 
 except a copyhold estate situate in the county of R., and held of the 
 manor of S. According to the custom of that manor, when the 
 copyholder dies without issue, and without leaving a brother, or 
 issue of a deceased brother, the copyhold descends to his eldest sister 
 
232 PROCEDURE. 
 
 relief; the statement concluding with a claim for 
 general relief. 
 
 Upon analyzing the statement of claim, it will be 
 found that there are about twenty charges or alle- 
 gations in it. Their number is, however, imma- 
 terial. They are divided into three heads. Para. 1 
 alleges that the defendant sustains a certain cha- 
 racter. He is an administrator. Para. 2 charges 
 that the intestate possessed real and personal pro- 
 perty. Para. 3 asserts the character of the plaintiff. 
 She brings the action as representing a co-heLress, 
 and as one of the next of kin. 
 
 The defendant pleads several matters. The firgl 
 is a complete bar to the whole action. It alleges 
 facts showing that the plaintiff cannot fill either 
 character she assumes. The second plea is a complete 
 bar to any title of the plaintiff to the real estate. 
 It asserts that, by the effect of a local custom, the 
 plaintiff has no right to relief. The third plea is 
 equally conclusive as to the personal estate. It has 
 been exhausted in making necessary payments. The 
 character of the defendant is admitted by his sub-- 
 mission to defend the action. 
 
 In this case the claim is single, the defence con- 
 sists of three distinct pleas, and there is neither 
 counter-claim, nor reply. If there were, it is obvious 
 that the effect of those additions to the pleadings 
 
 and her issue in preference to his younger sister and her issue. 
 P. Q. was older than M. N. 
 
 3. The personal estate of A. B. was not sufficient for the payment 
 of his debts, and has all been applied in payment of his funeral and 
 testamentary expenses and part of his debts. 
 
DISCLOSURE I^^ THE PLEADINGS. 233 
 
 would only be to change -pro tanto the characters of 
 the parties. The subsequent course of procedm-e 
 in the supposed case is that the plaintiff joias issue 
 upon the defence. 
 
 " As soon as either party has joined issue upon 
 any pleading of the opposite party simply without 
 adding any further or other pleading thereto, the 
 pleadings as between such parties shall be deemed to 
 be closed " (y). The cases of the parties are then 
 complete : it only remains to proceed to try their 
 truth. 
 
 In the supposed action for administration it is ob- 
 vious that a decision upon the first plea would, if 
 unfavourable to the plaintiff, be a complete bar to 
 fiirther proceedings. The rules of procedure provide 
 for this case. 
 
 " Subject to the provisions of the preceding rules, 
 the court or a judge may, in any action at any time, 
 or from time to time, order that different questions 
 of fact arising therein be tried by different modes of 
 trial, or that one or more questions of fact be tried 
 before the others, and may appoint the place or places 
 for such trial or trials, and in all cases may order 
 that one or more issues of fact be tried before any 
 other or others " (z). 
 
 Again, there are many other rules of procedure 
 which might be applicable to the supposed action. 
 Instead of proceeding to trial, they may agree to be 
 bound by a decision upon some question of law not 
 
 (y) Order XXV. 
 
 (z) Order XXXVI. 6. 
 
234 PEOCEDUEE. 
 
 admitted by both of them. " The parties may, after 
 the writ of summons has been issued, concur in. 
 stating the questions of law arising in the action in 
 the form of a special case for the opinion of the 
 court, &c. " (a). 
 
 The supposed action contains an allegation that 
 the intestate's real estate had been mortgaged. The 
 plaintiff might have interrogated as to that fact. 
 Her right to an answer would depend upon a deci- 
 sion of the matters alleged in the defence. 
 
 " 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 de- 
 pends on the determination of any issue or question 
 in dispute in the action, or that, for any 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 re- 
 serve the question as to the discovery or inspec- 
 tion " (5). 
 
 The pleadings may show a question of law to be 
 in dispute, when one party is to demur. 
 
 The rules of procedure as to demurring are : — 
 
 " Any party may demur to any pleading of the 
 opposite party, or to any part of a pleading setting 
 up a distinct cause of action, ground of defence, set- 
 off, counter-claim, reply, or, as the case may be, on 
 
 (a) Order XXXIV. 1. 
 
 (S) Order XXXI. 19 ; ante, p. 7. 
 
DISCLOSURE IN TUE PLEADINGS. 235 
 
 the ground that the facts alleged therein do not show 
 any cause of action, or ground of defence to a claim 
 or any part thereolj or set-off, or counter-claim, or 
 reply, or, as the case may be, to which effect can be 
 given by the coiu-t as against the party demur- 
 ring " (c). 
 
 " Where a demurrer is orerruled the court may 
 make such order, and upon such terms, as to the 
 court shall seem right, for allowing the demvirring 
 party to raise, by pleading, any case he may be de- 
 sirous to set up, in opposition to the matter demurred 
 to " (d). 
 
 A demurrer and a defence are not incompatible, 
 if confined to distinct parts of the plaintiff's claim. 
 
 " A defendant desiring to demiir to part of a 
 statement of claim, and to put in a defence to the 
 other part, shall combine such demurrer and defence 
 in one pleading. And so in every case when a party 
 entitled to put in a further pleading desires to demur 
 to part of the last pleading of the opposite party he 
 shall combine such demurrer and other plead- 
 ing "(e). 
 
 But if a party would demur and plead to the same 
 part, or plead to a matter to which a demurrer has 
 been overruled, he must obtain leave to do so. 
 
 " If the party demurring desires to be at liberty 
 to plead as well as demur to the matter demurred 
 to, he may, before demurring, apply to the court or 
 
 (c) Order XXVIII. 1. 
 Qd) Order XXVIII. 12. 
 (c; Order XXVIII. 4. 
 
236 PKOCEDUEE. 
 
 a judge for an order giving Mm leave to do so, and 
 the court or judge, if satisfied that there is reasonable 
 ground for the demurrer, may make an order ac- 
 cordinglj, or may reserve leave to him to plead after 
 the demurrer is overruled, or may make such other 
 order and upon such terms as may be just " (/). 
 
 In the case of a party justifying under a possessory 
 title only, and therefore entitled to protection for 
 discovery against any one not showing a good title, 
 the last-mentioned rule of procedure for obtaining 
 leave to plead the v?ant of title of the plaintiff, and 
 then to demur to the whole action would be particu- 
 larly appropriate. 
 
 Section 4. 
 Of the Disclosures necessary in the Pleadings. 
 
 It is the province of a treatise on pleading to 
 apply the rules of procedure to practice. For pre- 
 sent purposes, it is sufficient to state them. It is 
 important, however, to consider to what extent a 
 party must disclose the facts within his knowledge 
 by his pleadings, and how far he may leave them to 
 be discovered when called upon to answer interro- 
 gatories. 
 
 It has been stated, in the earlier parts of this 
 treatise {g), that every defence, of which the position 
 
 (/) Order XXVIII. 5. 
 is) Ante, p. 96. 
 
DISCLOSURE IN THE PLEADINGS. 237 
 
 is that, from some objection of form or substance, 
 the defendant ought not to be compelled to make 
 any discovery, may be taken by demurrer or plea, 
 according as the objection appears upon the plaintiff's 
 pleadings, or requires to be shown by the defendant 
 in his pleadings; and that where the protection 
 claimed is only against particular disclosures, two 
 states of circumstance may arise. The ground of 
 protection may cover the whole of the case of an 
 opponent ; or it may only protect the party from 
 answering one or more interrogatories. In the 
 former case, the particular objection becomes, in 
 effect, a general ground of demurrer, or the whole 
 action may be covered by a plea of the objection in 
 bar of relief (A) ; and in the latter case the party in- 
 terrogated may neglect to answer the objectionable 
 questions (i). 
 
 In the case of general objections to discovery, the 
 overruling of a demurrer or plea, though it is not 
 conclusive upon the title to relief, is conclusive upon 
 the question of discovery ; for it amounts to a deci- 
 sion that the matter appears to be one for judicial 
 inquiry, and the defendant can no longer refuse to 
 the plaintiff the means of prosecuting that inquiry. 
 Upon special objections to discovery the overruling 
 of a demurrer or plea is not decisive. The effect 
 of such a decision is that the objection cannot be 
 again taken in either of those forms, unless the 
 
 (A) Ante, p. 97. 
 (i) Post, p. 243. 
 
238 PBOCEDUKE. 
 
 court give leave (/() ; but it may still be taken by 
 way of objection to answering interrogatories, as it 
 might have been taken had no previous objection 
 been raised in the pleadings. 
 
 The rule as to disclosure in the pleadings would 
 seem to be, that, when the objection to discovery 
 relied on by the defendant is general — that is to say, 
 when it amounts to a denial of the plaintiff's right to 
 relief, or where it necessarily extends to the whole 
 purpose of the action, as in the case of a defence 
 that the plaintiff has no interest in the subject, that 
 the defendant himself has no interest in the subject, 
 that he is a purchaser for valuable consideration 
 without notice of any defect in his title, that there is 
 no jurisdiction to compel a discovery, or that the 
 plaintiff is under some personal disability by which 
 he is incapacitated from suing — the defendant should 
 set out in his pleadings a concise statement of the 
 whole discovery which, under the circumstances of 
 the case, can eventually be required of him. 
 
 There are exceptions to the rule. When a de- 
 fendant denies and disclaims all interest, insisting 
 that he is a mere witness, other considerations arise. 
 
 Lord Eedesdale observes : " If the defendant has 
 been made a party by mistake, having at the time 
 no interest in the matter in question, yet, as he may 
 have had an interest which he may have parted 
 with, the plaintiff may require an answer sufficient 
 to ascertain whether that is the fact or not ; and if 
 the defendant has had an interest which he has 
 
 (J) Ante, p. 235. 
 
DISCLOSURE IN THE PLEADINGS. 239 
 
 parted with, an answer may be also necessary to 
 enable the plaintiff to make the proper party de- 
 fendant instead of the party disclaiming " (Z). 
 
 When the disclaimer was by an accounting party, 
 Lord Eldon remarked that, " as to the right of the 
 plaintiff to an answer, a defendant cannot shelter 
 himself from answering, by alleging that he has no 
 interest in the matters of the suit. Though he has 
 no interest, others may have an interest in it against 
 him. He may be deeply accountable, and the very 
 statement that he is deeply accountable may, in one 
 sense, be an allegation that he has no interest in the 
 suit. A man cannot disclaim his liability" (m). 
 
 Where the ground of protection from discovery 
 extends only to particular disclosures — that is to say, 
 where the objection is that a disclosure may tend to 
 subject the defendant to penal consequences, that it 
 is immaterial to the purpose of the action, that it 
 would involve a breach of some confidence which it 
 is the policy of the law to preserve inviolate, or that 
 the matter which is sought to be discovered is evi- 
 dence for one party and not evidence for his opponent 
 — the extent of the discoveiy which should be given 
 by the pleadings seems to be the mere statement of 
 the particular protection under which the objection 
 properly falls. 
 
 (V) Mitford, Plead. 318 ; ante, p. 48. 
 
 (ot) Glauington t. Thmaites, 2 Rnss. 462 ; Graham t. Coajie, 3 
 Myl. & C. 638 ; S. C, 9 Sim. 93 ; Whiting v. Bush, 2 Y. & C. 646, 
 by married woman. 
 
240 PROCEDUKE. 
 
 CHAPTEK II. 
 
 OF DISCOVERT IN ANSWER TO INTERROGATORIES. 
 
 Section 1. 
 
 Of the Rules of Procedure. 
 
 It has been seen that the title to discovery depends 
 upon the title to relief (a), and that, therefore, in an 
 action for relief, a demurrer {b), or plea in bar to the 
 relief, is a protection against discovery, except so far 
 as a partial discovery may still be necessary to accom- 
 pany or support the plea (c) ; that there are other 
 general objections to relief which are at the same 
 time objections to discovery (<f ) ; and again, that 
 there are particidar objections to discovery which do 
 not extend to the relief (e). 
 
 The present chapter treats of the manner in which 
 discovery of the evidence within a party's personal 
 knowledge may be obtained. The fundamental rule 
 on this point is that an interrogatory not specifically 
 objected to must be answered fuUy. 
 
 (a) Part I. Chap. I. 
 
 (J) Ante, p. 7. 
 
 (p) Ante, p. 10. 
 
 id) Part II. 
 
 (e) Part III.; and ante, p. 5. 
 
mSCOVEEY IX AIs'SWER TO IlfTERKOGATORIES. 241 
 
 The rules of procedure as to interrogatories are as 
 follows : — 
 
 " 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 plead- 
 ings, 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 exa- 
 mination 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 interrogatories each of such per- 
 sons 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" {f). 
 
 " Interrogatories may be in the Form No. 7, in 
 Appendix (B.) hereto, with such variations as cir- 
 cumstances may require " (ff). 
 
 (/) Order XXXI. 1 ; attte, p. 136, et ses- 
 ig) Order XSXI. 3. 
 
 rorm of Interrogatories. 
 In the High Court of Justice. 
 Division. 
 Between A. B. . . . . . . . . Plaintiff, 
 
 and 
 
 C. D., E. F. and G. H Defendants. 
 
 Interrogatories on behalf of the above-named [plaintiff or de- 
 fendant C. D.] for the examination of the above-named [defendants 
 E. F. and G. H. or plaintiff'\. 
 
 1. Did not, &c. 
 
 2. Has not, &c. 
 &c. &c. &c. 
 
 [The defendant E. F. is required to ansmer the interrogatories 
 nnnibered .] 
 
 [The defendant G. H. is required to ansmer the interrogatories 
 numbered .] 
 
 H. M 
 
242 PROCEDUKE. 
 
 " If any party to an action be a body corporate or 
 a joint stock company, -whether incorporated or not, 
 or any other body of persons, empowered by law to 
 sue or be sued, whether 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" (A). 
 
 " Any party called upon to answer interrogatories, 
 whether by himself or by any member or officer, may, 
 within four days after service of the interrogatories, 
 apply at chambers to strike out any interrogatory, on 
 the ground that it is scandalous, or irrelevant, or is 
 not put honafide for the purposes of the action, or that 
 the matter inquired after is not sufficiently material 
 at that stage of the action, or on any other ground. 
 And the judge, if satisfied that any interrogatory is 
 objectionable, may order it to be struck out " (i). 
 
 " Interrogatories shall be answered by affidavit to 
 be filed within ten days, or within such other time as 
 a judge may allow" {K). 
 
 " An affidavit in answer to interrogatories shall, 
 unless otherwise ordered by a judge, if exceeding 
 
 (A) Order XXXI. 4 ; ante, p. 56. 
 
 (i) Order XXXI. 5. " Scandal consists in the allegation of any- 
 thing which it is nnhecoming the dignity of the court to hear, or is 
 contrary to good manners, or which charges some person with a 
 crime not necessary to be shown in the cause ; to which may be 
 added, that any unnecessary allegation, bearing cruelly upon the 
 moral character of an individual, is scandalous." Daniell's Chan- 
 cery Practice, Chap. VI. a. 4. As to irrelevancy, see ante, 
 p. 137. 
 
 (4) Order XXXI. 6. 
 
DISCOVERT IN ANSWER TO INTERROGATORIES. 243 
 
 three folios, be printed, and may be in the Form 
 No. 8, in Appendix (B.) hereto, with such variations 
 as circumstances may require" (7). 
 
 "Any objection to answering any interrogatory 
 may be taken, and the ground thereof stated in the 
 affidavit" (tw). 
 
 " No exception shall be taken to any affidavit in an- 
 swer, but the sufficiency or otherwise of any such affi- 
 davit objected to as insufficient shall be determined 
 by the court or a judge on motion or summons "(w). 
 
 " 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 
 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 
 viva voce examination, as the judge may direct" (o). 
 
 " 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 interrogatories without putting 
 in the others : Provided always, that in such case 
 
 (I) Order XXXI. 7. 
 
 In the High Court of Justice. 
 Division. 
 Between A. B. . . . . . . . . . . Plaintiff, 
 
 and 
 
 C. D., E. F. and G. H Defendants. 
 
 The answer of the above-named defendant E. F. to the interroga- 
 tories for his examination by the above-named plaintiff. 
 
 In answer to the said interrogatories, I, the above-named E. E., 
 make oath and say as follows ; — 
 
 (m) Order XXXI. 8; ante, p. 96. 
 (n) Order XXXI. 9; ante, p. 18. 
 (o) Order XXXI. 10; ante, p. 131. 
 m2 
 
244 PKOCEDUKE. 
 
 the judge may look at the whole of the answers, and 
 if he shall be of opinion that any other 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 " ( />). 
 
 Upon an aUegation of a general fact the party 
 has been allowed to interrogate as to all the circum- 
 stances, when, where, &c., that were material to 
 make it out. "1 have always understood," said 
 Lord Eldon, " that a general charge enabled you to 
 put all questions upon it that are material " (q). 
 
 "If a biU is filed against an executor for an 
 account of the personal estate of his testator, upon 
 the single charge that he has proved the wiU, may be 
 founded every inquiry which may be necessary to 
 ascertain the amount of the estate, its value, the 
 disposition of it, the situation of any part remaining 
 undisposed of, the debts of the testator, and any 
 circumstance leading to the account required " (r). 
 The proposition is different, however, where answers 
 to the interrogatories would be attended with dis- 
 tinct legal consequences not included in the charges 
 or allegations (s). 
 
 Particular interrogatories miist be answered speci- 
 fically, upon the general principle of discovery, 
 unless there are valid grounds for not doing so. 
 
 A general answer, if it covers the particular 
 question, is sufficient (t). 
 
 (^) Order XXXI. 23; ante, p. 48, 
 
 (ff) Poulder t. Stewart, 11 Ves. 301 ; Marsh t. Keith, 1 
 Dr. & S. 342; M'Garel v. Moon, L. R., 10 Eq. 23; ante, pp. 1, 32. 
 (r) Mitford, Plead. 45. 
 («) See Part III. 
 (0 Anon., 2 T. & C. 310. 
 
discovert ix ansavee to inteeeogatoeies. 245 
 
 Section 2. 
 TVhat a Party is bound to know. 
 
 The only difficulty in discovery is whether, as 
 between the parties, the one is entitled to an answer 
 to the question he asks ; for if he is, his opponent is 
 bound to answer it satisfactorily, or, at least, to show 
 the coiurt that he has done so as far as his means of 
 information will permit (m). 
 
 All that the court can do i§ to get from a party 
 such an answer as he swears he is able to give ; it 
 can do no more than compel him to state the im- 
 pression on his mind. If his statement can be 
 proved to be imtrue, he wiU be liable to the penal- 
 ties of perjury (x). 
 
 When a bill charged that the defendant had the 
 means of making inquiry, the answer of the latter 
 that he was unable to set forth, &c., was held insuf- 
 ficient (y\ 
 
 Generally, where a party, who has acted by an 
 agent, has no personal knowledge of the facts in- 
 quired into, he must show that he has endeavoured 
 to acquire the information from his agent (z). 
 
 "A man is not bound to know the affairs of a 
 partnership in Portugal or in India, in which he 
 may happen to have a share. He is bound by their 
 
 (u) Taylor t. JRundell, Cr. & P. 104; Att.-Gen. y. Mees, 12 
 Bear. 50. 
 
 {x) Nelson t. Ponsford, i Bear. 41. 
 
 (y) Neate v. Duke of Marlborough, 2 Y. & C. 3 ; Stuart y. 
 Lord Bute, 12 Sim. 460, defendant not alleging that he had no 
 means of obtaining information. 
 
 (z) Earl of Olengall v. Frazer, 2 Hare, 99. 
 
246 PEOCEDUEE. 
 
 transactions, it is true, but he is not bound to know 
 them. Suppose the defendant gave a schedule of 
 books, and the partners abroad refused to give them 
 up; how could the court enforce their produc- 
 tion? "(5) 
 
 An officer of a company cannot evade making a 
 discovery by resigning his situation ( c). 
 
 As to accounts. An answer should contain the 
 fullest information the party is able to give ; not by 
 long schedules, but -setting forth the totals in the 
 best manner possible ; referring to documents, so 
 as to make them part of the answer ; and giving 
 the fullest opportunity of inspection [d). 
 
 It would seem that a party cannot excuse himself 
 from answering fully, owing to the labour which may 
 be indispensable to such an answer. If there are 
 large chests of papers in his possession or power, 
 he may be required to examine them all in order to 
 schedule them (e) ; and if a biU be against a part- 
 nership, and one of the partners is a stranger to the 
 subject in question, and for some years has not per- 
 sonally interfered in the management of the business 
 carried on in the joint names of himself and partners, 
 he may yet be interrogated as to his own inspection 
 of the partnership books, and the result of that 
 inspection (/) ; and he would certainly be compel- 
 
 (J) MaHineau v. Cox, 2 Y. & C. 638, per Lord Abinger. 
 
 (f) Acovib V. Landed Estates Co., li W. R. 387. 
 
 ((?) White V. WilUams, 8 Yes. 193; Christian v. Taylor, 11 Sim. 
 401 : Att.-Gen. v. East Bet/ord, 2 Myl. & K. 35; Drake y. Symes, 
 John. 647. As to expense, see ante, p. 44; post, p. 286. 
 
 (e) Gahbett v. Sir H. Cavendish, cited 3 Swans. 267. 
 
 (/) Seeley t. Boehm, 2 Mad. 176. 
 
DISCOVERY IN ANSWER TO IXTERROGATORIES. 247 
 
 lable to specify the documents so as to enable his 
 opponent to move for them {g). 
 
 A distinction has been attempted to be made 
 between matters which are contained in books and 
 documents, and matters which are to be answered as 
 being in the immediate personal knowledge of the 
 defendant himself. This distinction has not been 
 recognized (A). 
 
 The distance of the place in which books or docu- 
 ments may happen to be is also wholly unimportant. 
 When books were stated to be in the East Indies, 
 Lord Eldon ordered that attested copies of all the 
 entries in them should be brought into court within 
 six months ( i). " When I say six months, I consider 
 at the same time that he (the executor) may not be 
 able to do it within that time ;" but it " appears to 
 nae to be the duty of the court to put him under the 
 necessity of coming to the court from time to time 
 to show that he has done his utmost." 
 
 Section 3. 
 
 Of Answers to Interrogatories which cannot be 
 objected to. 
 
 The Attorney-General, in his defence to an action, 
 may state anything which he means to prove ; but 
 
 (^) Christian v. Taylor, 11 Sim. 401 ; IngUssi v. Sj>artali, 29 
 Beav. 564:. 
 
 {h) Unsworth t. Woodcock, 3 Mad. 432. 
 
 (i) Freeman v. Fairlie, 3 Mer. 24, 44; Farquharson v. Balfour, 
 Tarn. & R. 184, 190; JSornly v. Pemherton, Mos. 58. 
 
248 PROCEDURE. 
 
 he cannot be called upon to answer interrogatories, 
 for he is only to protect the interests of the Crown. 
 
 Where exceptions were taken to the formal 
 answer put in by him to a cross-bill for the dis- 
 covery of matters alleged to be material to , the 
 defence of an information, it was held that the dis- 
 covery was in his discretion (k). " I am not pre- 
 pared to say that a biU of discovery has ever been 
 filed, or could upon principle be sustained against 
 the Attomey-Greneral for a discovery of matters 
 that can be in neither his personal nor official know- 
 ledge, or that the Crown would be bound, through 
 the medium of the Attorney-General, to make that 
 discovery. At the same time it has been the prac- 
 tice, which I hope never will be discontinued, for 
 the officers of the 'Crown to throw no difficulty in the 
 way of any proceeding for the purpose of bringing 
 matters before a court of justice, where any real 
 point of difficulty that requires judicial decision has 
 occurred. Hence there are a great variety of cases 
 where bills of this sort have been filed, in which the 
 Attorney-General has been a party; and one case 
 has been referred to where it appears that the Attor- 
 ney-General did set forth a full answer (Z). There 
 the Treasury desired that the question might be 
 brought before the judicial consideration of some 
 court of justice ; and it was very clear, when once 
 the court thought that it ought to have jurisdiction 
 
 (A) Davison v. Att.-Gen., cited 5 Price, 398. 
 {Vj Cranfnrd t. Att.-Oen., 7 Price, \. See also Colehrooke v. 
 Att.-Oen., 7 Price, 192. 
 
DISCOVERT IN ANSWER TO INTERROGATORIES. 249 
 
 over the subject-matter, that it did not become the 
 Attorney-General to urge any form in opposition to 
 it; otherwise, I think it would be a very difficult 
 thing to say, that a mere bill of discovery might be 
 filed against the Attorney-General, instead of putting 
 the party to his petition of right, which is the proper 
 remedy against the Crown, where he claims a specific 
 rehef against the Crown "(w). 
 
 It is a general rule that a discovery cannot be 
 compelled of an infant (n). " In the case of an in- 
 fant the answer is expressed to be made by his guar- 
 dian." " An infant is entitled to the benefit of every 
 exception which can be taken to a biU without ex- 
 pressly making it." "He is considered as incapable 
 of the combination charged in the bill, and his answer 
 cannot be excepted to for insufficiency" (o). It is 
 not now the practice to require any answer from an 
 infant (jd). 
 
 Where a defendant in ejectment filed a bill in aid 
 of his defence, and obtained an injunction to restrain 
 the action in the meantime, the injunction was con- 
 tinued until the infant heir of one who had a common 
 interest with the plaintiff was made a party to the 
 suit, for it was said that he might have some docu- 
 ments relating to the question (q). It has, however. 
 
 (m) Deare v. Att.-Gen., 1 Y. & C. 197, 208. 
 
 (ra) Att.- Gen. t. Lambirtli, 5 Price, 386, 396 ; Savage v. Carroll, 
 1 Ba. & B. 548, 553 ; Copeland v. Wheeler, i Bro. C. C. 256 ; 
 iMcas V. iMcas, 13 Ves. 274. 
 
 (a) Mitford, Plead. 314. 
 
 (^) Daniell's Chancery Practice, 166. 
 
 (^) Hardeastle y. Shafto, 1 Anst. 77. 
 M 5 
 
250 PEOCEDUEE. 
 
 been held that the charge of books and documents 
 having come to the hands of an infant does not 
 affect the general rule which exempts him from the 
 necessity of discovery (r). 
 
 Section 4. 
 Of Cases where an Answer to Interrogatories may 
 be deferred until the Party has had liberty to 
 inspect Documents in the Possession of his Op- 
 ponent. 
 
 The interlocutory orders which may be obtained 
 by a party are not in the nature of relief to him, but 
 are conditions annexed to the relief given to his ad- 
 versary (s). There are cases in which the court has 
 stayed proceedings against a defendant until he has 
 been afforded the opportunity of inspecting papers 
 in the hands of the plaintiff. This is, in fact, im- 
 posing terms, upon a comphance with which only 
 the process of the court is issued. " I think I re- 
 member," said Lord Eldon, " this kind of motion 
 by the defendant, stating by'his answer that the bill 
 calls for a discovery, which he cannot make com- 
 pletely without seeing the partnership books and 
 accounts, and he verily believes those books and 
 accounts, to the joint possession of which both are 
 entitled, are in "the hands of the plaintiff; that the 
 court would stay proceedings against him for not 
 
 (r) Strndmich v. Pargiter, Bnnb. 338. 
 (») Wynne v. Griffith, 1 Sim. & S. 147. 
 
DISCOVERT IN ANSWER TO INTERROGATORIES. 25 1 
 
 putting in his answer until he has been assisted with 
 that inspection" (t). 
 
 There are cases in which a party may obtain, 
 before putting in any defence, an inspection or a 
 "copy of a written instrument upon which the plain- 
 tiff founds his demand. " Where a deed in the 
 plaintiff's hands, mentioned in the plaintiff's bill, 
 was necessary to the defendant's making in his de- 
 fence a fiiU answer, the court ordered the plaintiff 
 should give him a copy of it" (w). It was the rule 
 at common law that where a plaintiff in his declara- 
 tion founded his demand on a written instrument, 
 as a promissory note, the courts would give the de- 
 fendant an opportunity to inspect the instrument to 
 see by whom it was written, whether on a stamp, 
 and with the other requisites (x). 
 
 It would seem, however, that to impeach the 
 authenticity of an instrument by merely negative 
 allegations, without stating any special circum- 
 stances having that effect, does not raise a sufHcient 
 ground for production. 
 
 Where a bill sought specific performance of an 
 agreement alleged to have been made by a testator 
 for the conveyance of an estate that he had devised 
 to the defendants, a motion for production of the 
 agreement was supported by affidavits made by the 
 
 (t) Picltering t. Rigby, 18 Ves. 484; Sainthill v. Bound, i Esp. 
 74 ; Taylor t. Beming, 4 Beay. 235. 
 
 (;;) Practical Register, quoted by Lord Eldon, Princess of Wales 
 V. ilarl of Liverpool, 1 Swans. 114, 125. 
 
 (») lUd. 123. As to policies of insuraDce, see 19 Geo. 2, c. 37, 
 s. 6. 
 
252 PEOCEDURE. 
 
 defendants — one of whom was a daughter of the 
 testator, and had lived with him — in which they 
 deposed that they had never heard, and did not 
 believe, that the testator had ever entered into any 
 such an agreement; that they believed it to be a 
 forgery, and that they were unable fuUy to answer 
 the bUl without first being permitted to have an 
 inspection of the agreement. An order was made 
 for time to answer until a fortnight after the produc- 
 tion of the agreement, but it was subsequently dis- 
 charged (y). 
 
 It is not enough for a party, who does not allege 
 any affirmative or special grounds for production, to 
 make an affidavit that he cannot put in a full answer 
 without an inspection of the documents, if it appears 
 that he may put in a sufficient answer. He is at 
 liberty to call upon the plaintiff to produce them ; 
 and if the plaintiff refuses, he cannot complain that 
 the answer is insufficient. 
 
 Section 5. 
 
 Of Special Instances of Interrogatories at 
 Common Law. 
 
 The Common Law Procedure Act, 1854, gave 
 the courts of common law a discretion in allowing 
 interrogatories. Many of the reported cases on the 
 subjects of discovery, inspection and production at 
 common law turn, more or less, upon the exercise of 
 
 (y) Jones t. Lewis, 2 Sim. & S. 242; see Memo., 4 Sim. 324. 
 
DISCOYEKT IN ANSWER TO INTERROGATORIES. 253 
 
 this discretion. Although the rules of procedure 
 now gire no such power of allowing the delivery of 
 interrogatories, the courts have power to dispense 
 with answers to them {z). The previous decisions, 
 therefore, may, at that stage, be very material. 
 
 The question was naturally raised in the argument 
 of the first case which came before a court of common 
 law whether the power of discovery was to be limited 
 to the cases in which it could be obtained in equity. 
 No opinion was then decidedly expressed by the 
 Court of Exchequer upon the subject (a). Many 
 cases have since been decided in accordance with 
 the practice of the courts of equity, and in many 
 instances the courts of common law have declared 
 that they were not bound by that practice (h). The 
 conclusion seems to be that the common law courts 
 considered that the object of the Act of 1854 was 
 to obviate the necessity of bills of discovery, and 
 that whenever such a biU would lie, they ought to 
 grant the discovery which equity would have given ; 
 but as their jurisdiction was more extensive than 
 that of the courts of equity, their powers of ordering 
 discovery were necessarily larger also. 
 
 " The practice in Chancery to allow parties to 
 exhibit any interrogatories they like was purposely 
 avoided by " The Common Law Procedure Act, 
 
 (z) Order XXXI. 9. 
 
 (a) Martin v. Hemming, 10 Exch. 478. 
 
 (i) Adams v. Lloyd, 3 Harl. & N. 351 ; Colman t. Truman, 3 
 Harl. & N. 871 ; Derhy Commercial Bank, Limited, v. lAtmsden, 
 39 L. J. (C. P.) 72 ; Bartlett t. Lemis, 12 C. B. (N. S.) 249 ; Stoate 
 T. Rew, 14 C. B. (N. S.) 209; Hill v. Campbell, L. R., 10 C. P. 222. 
 
254 PROCEDURE. 
 
 1854," which has left it to the discretion of the 
 judge to determine what, under all the circumstances 
 of each case, is the proper discovery which should 
 be allowed " (c). The practice was new to suitors, 
 and, in this respect, the precaution was, perhaps, 
 wise. The result has been that many valuable deci- 
 sions have been arrived at, which will no doubt 
 guide the practice on many points. 
 
 Under their separate heads are arranged most of 
 the cases in which the matter of the interrogatories 
 was the question to be decided. There are, however, 
 some decisions which cannot properly be so arranged, 
 — occasions on which the discretion of the court was 
 exercised by permitting interrogatories to be delivered 
 which were justified by the particular circumstances 
 of the case before it. 
 
 In the Wolverhampton New Waterworks Co. v. 
 Hawksford (c?), which was an action by a company 
 seeking to make a person liable as a shareholder, the 
 plaintiff was allowed to ask whether the defendant 
 had signed a subscription contract. The document 
 was not forthcoming, and upon that ground the in- 
 terrogatory was allowed, it being understood that the 
 answer should not be used unless the loss of the 
 document should be proved at the trial. 
 
 In Hawkins v. Carr (e), an action upon the com- 
 mon counts for money, goods or work, by represen- 
 tative parties, the court allowed the defendant to be 
 
 (c) Per Willes, J., Beehervaise v. Gfreat Western Rail. Co., 40 
 L. J. (C. P.) 8. 
 
 (d) 5 C. B. (K S.) 703. 
 
 (e) L. E., 1 Q. B. 89. 
 
DISCOVERY IX AXSWER TO INTKEKOGATOEIES. 255 
 
 asked whether a settlement of account had not been 
 come to, and upon what basis ; whether payments 
 had not been made in accordance with that settle- 
 ment; and whether several of the pleas were not 
 false in fact. The opinion of the Court of Chancery 
 as to the propriety of the interrogatories was taken. 
 
 This decision was explained in the subsequent case 
 of Hills V. Watts {/), to have been given on the 
 ground that the plaintiffs sued on behalf of the estate 
 of a deceased person; and that it. was on that ground 
 only that the interrogatories were allowed. But 
 in the practice of the Court of Chancery it made no 
 difference whether a party sued on his own behalf, 
 or whether his representatives sued on behalf of his 
 estate. In either case the same questions would 
 have been allowed. The two decisions seem to be 
 properly explained thus. If a bill had been filed it 
 must have relied upon the circumstances implied by 
 the interrogatories. It must have charged a settle- 
 ment and a payment on account — for these were the 
 cases of the respective plaintiffs — and then the inter- 
 rogatories, whether a settlement had been come to, 
 whether the money had been paid on account of that 
 settlement, and whether a receipt had been taken, 
 would have followed as a matter of course. Next 
 notice might have been given to produce the receipt. 
 The only difficulty would seem to be as to the ques- 
 tion of the receipt. The plaintiff might certainly 
 have interrogated as to the documents in his posses- 
 
 C/) L. E., 9 C. P. 688, action on promissory note by executors of 
 payee; plea, payment to testator. 
 
256 PROCEDURE. 
 
 sion, and the course adopted was only a shorter waj 
 of arriving at the same result. 
 
 As to discovery for the purpose of settling the 
 amount of damages sustained without a trial. 
 
 In Wright v. Goodlake {g), interrogatories were 
 allowed by a defendant to ascertain what damages 
 should be paid into court for an infringement of a 
 copyright. 
 
 In Jourdain v. Palmer (h), similar interrogatories 
 were not allowed. It was an action ex contractu, 
 and the distinction was based upon that ground. 
 
 In Dohson v. Richardson («"), the object was to 
 prove the absurdity of the amount of damages claimed, 
 and interrogatories were again allowed. 
 
 In Pape v. Lister (j), inspection of the plaintiff's 
 letters to the defendant was granted, but not of the 
 defendant's letters to the plaintiff. 
 
 In Home v. Hough (k), Lord Coleridge held that 
 "when the question in issue is simply as to the 
 amount of damage suffered, and the defendant is 
 desirous of paying money into court for the purpose 
 of satisfying the plaintiff's claim and staying the 
 action, the reason of the thing would seem to show 
 that he is entitled to such information as is here 
 sought for." The action was ex contractu, and the 
 interrogatories as to the particulars of the damage 
 sustained. 
 
 (g) 3 Hurl. & C. 540. 
 
 (7j) L. E., 1 Ex. 102. 
 
 (i) L. E., 3 Q. B. 778, breach of agreement. 
 
 (j) L. E., 6 Q. B. 242, breach of promise. 
 
 (i) L. E., 9 C. P. 135. 
 
DISCOVEET IN ANSWER TO INTEEEOGATOEIES. 257 
 
 The reports of these cases do not satisfactorily 
 explain the reasons of the decisions. The effect of 
 the exercise of discretion in these cases seems to be 
 as unsatisfactory as it was in the cases mentioned 
 elsewhere (I). 
 
 (0 Ante, p. 133. 
 
258 PROCEDURE. 
 
 CHAPTER III. 
 
 OF DISCOVEKT BT THE PKODUCTION OR INSPEC- 
 TION or DOCUMENTS. 
 
 Section 1. 
 
 Of the former Procedure. 
 
 Before the act to amend the practice and course of 
 proceedingin Chancery (a), it was necessary in equity, 
 in order to obtain production of documents, to exhibit 
 interrogatories as to the documents in the possession 
 of the defendant. By section 18 of that act, it was 
 enacted that the court, upon the application of the 
 plaintiff in any suit might make an order for the 
 production by any defendant upon oath, of such of 
 the documents in his possession or power, relating to 
 matters in question in the suit, as the court should 
 think right ; and power was given to the court to 
 deal with such documents, when produced, in such 
 manner as should appear just. 
 
 And by section 20, it was further enacted that the 
 court might similarly, upon the application of the de- 
 fendant to any suit — ^but as to suits where the defen- 
 dant was required to answer the plaintiff's bill, not 
 until after he had put in a full and sufficient answer, 
 
 (a) 15 & 16 Vict. c. 86. 
 
DISCOVERT BY PRODUCTION OP DOCUMENTS. 259 
 
 unless the court should make any order to the con- 
 trary — make an order for the production by the 
 plaintiiF on oath of such of the documents in his 
 possession or power, relating to the matters in ques- 
 tion in the suit, as the court should think right ; and 
 power was given to the court to deal with such 
 documents, when produced, as should appear just. 
 
 Upon these sections the following rules were sub- 
 sequently made : — 
 
 " When any deeds or other documents are ordered 
 to be left or deposited, whether for safe custody or 
 for the purpose of any inquiry in chambers or other- 
 wise, the same shall be left or deposited in the 
 record and writ clerks' oiEce, and shall be subject to 
 such directions as may be given for the production 
 thereof" (*). 
 
 " The course of proceeding in use as to the pro- 
 duction of documents, ordered to be produced before 
 the hearing of a cause, shall extend and be applied 
 to the production of documents ordered to be pro- 
 duced after the hearing of any cause or matter "(c). 
 
 By section 26 of " The Master in Chancery Abo- 
 lition Act, 1852 " (d), applications for the production 
 of documents were directed to be made in chambers. 
 
 The old rule at common law as to the production 
 of documents was that, if a party claimed or justified 
 under a deed, which it was necessary to mention in 
 his pleading, he was bound to make profert of it, 
 that is, to offer to produce it; when the opposite 
 
 (*) Order LVII., 16 October, 1852. 
 (c) Order III., 1 June, 1854. 
 {d) 15 & 16 Vict, c- 80. 
 
260 PROCEDURE. 
 
 party, by craving oyer, might inspect and copy it. 
 Inspection of other documents, relied on in the plead- 
 ings, might be obtained on application to the coiu-t. 
 
 If a party desired to bring an action upon an 
 instrument in the hands of an opponent, and yet, 
 v>fithout seeing it, could not safely frame his declara- 
 tion, the courts, regarding the holder in the light of 
 a trustee, would compel its production ; and, upon the 
 same grounds, documents which were mere matters 
 of evidence were generally ordered to be produced. 
 
 Further discovery could only be obtained by a biU, 
 or other proceeding, in the Court of Chancery. 
 
 So the law continued until 1851, when Lord 
 Brougham's Evidence Act was passed, enabling the 
 courts to give inspection of documents relating to 
 the matters in dispute, upon the application of a 
 party, in all cases in which discovery might have 
 been obtained in Chancery. The same act also 
 abolished objections to the competency of a witness 
 in civil actions on the ground of interest ; but the 
 act gave no power, before the hearing, to discover 
 the documents in the possession of an adversary (e). 
 
 Profert and oyer were abolished by " The Com- 
 mon Law Procedure Act, 1852 " (/). 
 
 By section 50 of " The Common Law Procedure 
 Act, 1854 "(</), power was given to the court or a 
 judge, upon the application of either party, to any 
 cause or civil proceeding in any of the superior 
 courts, upon an affidavit by such party of his belief 
 
 (e) 14 & 15 Vict. c. 99, ss. 2, 6. 
 (/) 15 & 16 Vict. c. 76, s. 55. 
 {g) 17 & l« Vict. c. 125. 
 
DISCOVERY BY PEODtTCTION OF DOCUMENTS. 261 
 
 that any document, to the production of which he 
 was entitled for the purpose of discovery or otherwise 
 was in the possession or power of the opposite party, 
 to order the party against whom such application 
 was made to answer by affidavit stating what docu- 
 ments were, in his possession or power relating to the 
 matter in dispute, or what he knew as to their 
 custody, and whether he objected (and if so, on what 
 grounds) to their production ; and upon such affidavit 
 being made, the coru:t or a judge might make such 
 order thereon as should be just. 
 
 At common law documents were produced before 
 the master. 
 
 SECTIOJf 2. 
 Of the Rules of Procedure. 
 
 The rules of procedure as to production and in- 
 spection of documents are as follows : — ■ 
 
 " It shall be lawfiil for the court or a judge at 
 any time during the pendency therein of any action or 
 proceeding, to order tbe production by any party 
 thereto, upon oath (A), 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 
 
 (Ji) Republic of Liberia y. Imperial Bank, L. K., 16 Eq. 179, 
 proper ofBcer. 
 
262 FEOCEDUEE. 
 
 M'ith such documents, when produced, in such manner 
 as shall appear just " (i). 
 
 " Anj party may, without filing any affidavit, 
 apply to a judge for an order directing 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 " {k). 
 
 " The affidavit to be made by a party against 
 whom such order as is mentioned in the last pre- 
 ceding rule has been made, shall specify which, if 
 any, of the documents therein mentioned, he objects 
 to produce, and it may be in the Form No. 9 in 
 Appendix (B.) hereto, with such variations as cir- 
 cumstances may require " (/). 
 
 (i) Order XXXI. 11. See EalUday v. Temple, 8 De G., M. & G. 
 96, 99; ante,^. 187. 
 (*) Order XXXI. 12. 
 (I) Order XXXI. 13. 
 
 Form of AiEdavit as to Documents. 
 In the High Court of Justice. 
 Division. 
 
 Between A. B. . . Plaintiff, 
 
 and 
 
 CD Defendant. 
 
 I, the above-named defendant C. D., make oath and say as fol- 
 lows: — 
 
 1. I have in my possession or power the documents relating to 
 the matters in question in this suit set forth in the first and second 
 parts of the first schedule hereto. 
 
 2. I object to produce the said documents set forth in the second 
 part of the said first schedule hereto. 
 
 3. That IJiere state iipon what grnvnds the objection is made, 
 and verify tliefaets as far as may he']. 
 
 i. I have had, but have not now, in my possession or power the 
 
DISCOVERY BY PRODUCTION OF DOCUMENTS. 263 
 
 " Every 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 bis solicitor, and to permit him or them to take 
 copies tbereof ; and any party not complying with 
 such notice shall not afterwards be at liberty to p\it 
 any such document in evidence on his behalf in such 
 action or proceeding, unless he shall satisfy the 
 court that such document relates only to his own 
 tide, he being a defendant to the action, or that he 
 had some other sufficient cause for not complying 
 with such notice " {ni). 
 
 docnmeDts relating to the matters in question in this suit set forth 
 in the second schedule hereto. 
 
 5. The last-mentioned documents were last in my possession or 
 power on [^state mlieri]. 
 
 6. That [here state nhat has iecome of ttie last-mentioned docu- 
 ments, and in mhose possession tliey now are~\. 
 
 7. According to the best of my knowledge, information and be- 
 lief, I have not now, and never had in my possession, custody or 
 power, or in the possession, custody or power of my solicitors or 
 agents, solicitor or agent, or in the possession, custody or power of 
 any other persons or person on my behalf, any deed, account, book 
 of account. Toucher, receipt, letter, memorandum, paper or writing, 
 or any copy of, or extract from, any such document, or any other 
 document whatsoever, relating to the matters in question in this 
 suit, or any of them, or wherein any entry has been made relative 
 to such matters, or any of them, other than and except the docu- 
 ments set forth in the said first and second schedules hereto. 
 
 (m) Order XXXI. 14. There is no distinction between mere 
 matters of evidence inquired into by an opponent, and questions of 
 
264 PKOCEDUKE. 
 
 " 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 " («). 
 
 " The party to whom such notice is given shall, 
 within 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 
 E,ule 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 produce, may be in- 
 spected at the office of his solicitor, and, stating 
 which (if any) of the documents he objects to pro- 
 duce, and on what ground. Such notice may be in 
 
 title asked of a person in possession. On this point, see ante, p. 195, 
 and post, p. 273. FeVdn v. Lord, Berhert, 30 L. J. (Ch.) 798, title 
 may be to property, or other relief, or to a particular character. 
 («) Order XXXI. 15. 
 
 Form of Notice to produce Documents. 
 In the High Court of Justice. 
 Division. 
 
 A. B. V. C. D. 
 Take notice, that the [plaintif or de/endanf] requires you to 
 produce for his inspection the following docnments referred to in 
 your [itateTiient of claim, defence or affidavit, dated tits day 
 
 of A.D. ]. 
 
 Describe documents required. 
 X.Y., 
 To Z., Solicitor to the 
 
 Solicitor for the 
 
DISCOVERT BY PKODUCTION OF DOCUMENTS. 265 
 
 the Form No. 11 in Appendix (B) hereto, with 
 such variations as circumstances may require " (o). 
 
 " If a party, served with notice imder Rule 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 " {p). 
 
 " 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 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, 
 and that they are in the possession or power of the 
 other party " (g). 
 
 (o) Order XXXT. 16. 
 
 Form of Notice to inspect Documents. 
 In the High Court of Justice. 
 Division. 
 
 A. B. f. C. D. 
 Take notice that yon can inspect the documents mentioned in 
 your notice of the day of A.D. [except the deed nwnv- 
 
 bered in that notice'] at my office on next the 
 
 instant, between the hours of and o'clock ; or, that 
 
 the [plaintiff or defendant] objects to giving you inspection of 
 the documents mentioned in your notice of the day of 
 
 , A.D. on the ground that {state the ground] : — 
 ip) Order XXXI. 17. 
 (y) Order XXXI. 18 ; post, p. 266. 
 
 H. N 
 
266 procedure. 
 
 Section 3. 
 
 Of Reference to a Document. 
 
 Each party has a right to know the case made out 
 hy his opponent. If that does not satisfy him, he 
 may have recourse to interrogatories. If these are 
 not sufficiently answered, objections may be taken 
 to them for insufficiency. If, either in his pleadings 
 or affidavits, a party refers to papers as being neces- 
 sary to complete the discovery to which his opponent 
 is entitled, there is no question but that production 
 of them must be made (r). But, upon a mere refer- 
 ence to documents, the first .inquiry seems to be 
 whether the reference is made to them as part of the 
 case or evidence, and as pointing to a document 
 which must be seen to make them perfect; or 
 whether the reference is made as to an instrument 
 which is imconnected with them, and whoUy dis- 
 tinct from the discovery which is sought. This is 
 illustrated by a remark of Lord Eldon. "When 
 the court orders letters and papers to be produced, 
 it proceeds upon the principle that the documents 
 are, by reference, incorporated in the defendant's 
 case, and become part of it. Being in the office, 
 the effect is the same as if they were stated in hmc 
 verba in the answer "(s). 
 
 (r) Marsh v. SiUald, 2 Ves. & B. 375; Tyler v. Drayton, 
 2 Sim. & S. 309 ; Xfnsmort% t. WoodcocTi,, 3 Mad. 432 ; Driver 
 Y". Wright, 9 Sim. 261 ; Lafone t. Falkland Islands Co., 3 Kay & J. 
 
 267 s Welford v. Stainthorpe, 2 Bear. 587 ; Belsham y. Morrison, 
 15 L. J. (Ch.) 438. 
 
 (») Evans v. Richards, 1 Swans. 17. 
 
DISCOVEET BY PRODUCTION OF DOCUMENTS. 267 
 
 In order to found an order for the production of 
 documents, it must be admitted by the party against 
 whom the order is sought that they are in his pos- 
 session, custody or power (^). If a, witness has a deed 
 in his possession, he may be served with a subpcena 
 duces tecum; and if he then neglects to produce it, his 
 possession of it may then be proved by affidavit, and 
 he will then be liable to penalties (m). But if a party 
 is to produce a document, it must first be shown that 
 he has admitted himself to have it (a;). Without 
 this admission, a mere reference to the document (?/), 
 an admission of execution (z), a description of the in- 
 strument (a), or an admission that it was in the power 
 of the party at a time past (b), is insufficient ; for if 
 an order for production were made, and the party 
 re&sed to produce the instrument, the court would 
 find itself imable to apply its process to enforcing 
 obedience, because non constat that the instrument 
 is in the possession of the party, and that he has the 
 power to obey(c). 
 
 {f) Barmin t. Clarle, 8 Ves. 158; ErsUne t. Bize, 2 Cox, 226 ; 
 Princess of Wales v. Barl of Liverpool, 1 Swans. Hi, 121 ; Mbert- 
 son V. Shemell, 15 Beav. 277. 
 
 (m) BraAsham) v. BradsTicm, 1 Russ. & M. 358. 
 
 (a) Ba/rnett v. Noile, 1 Jac. & W. 227. By affidavit of doca- 
 ments, Order XX5I. 13. 
 
 (y) Princess of Wales v. Earl of Liverpool, 1 Swans. lU, 122. 
 
 («) Barmin T. Clarke, 8 Ves. 158. 
 
 (a) BrsMne v. Bize, 2 Cox, 226. 
 
 (J) Seeman v. Midland, i Mad. 391 ; Sham t. Holmes, 3 C. B. 
 952. 
 
 (c) Princess of Wales y. Earl of Liverpool, 1 Swans. 114, 123. 
 The admission may now be made of course either in the pleadings 
 or affidayits. 
 
 n2 
 
268 PitOCEDUKB. 
 
 If the books referred to are the books of a banker, 
 merchant or tradesman, which are in daily use, upon 
 the statement in the affidavit of the party to that 
 effect, they will not be taken out of his custody, but 
 such an inspection will be directed as the circum- 
 stances may require (d). 
 
 When documents are ordered to be produced, they 
 are either ordered to be deposited in the office of the 
 record and writ clerks, and to be open to the view of 
 the party seeking to inspect them, his solicitors and 
 agents, with liberty to take copies at his expense ; 
 or else, without being so left, they are ordered to be 
 open to the view of the party requiring to inspect 
 and take copies of them at the opponent's solicitor's 
 office or other convenient place. Liberty to inspect 
 is merely a right to see and copy the documents at the 
 office of the solicitor of the party holding them (e). 
 
 It may happen that from some circumstance of 
 
 {d) Gerard y. Pensmick, 1 Swans. 535. 
 
 (e) Dan. Ch.Pr. chap.xlii.; Mertens -r. Maigh, John.735; Gard- 
 ner T. Bangerfield, 5 Beav. 389, place of business. Prentice y. 
 PMUips, 2 Hare, 152, in the office. Lafone v. Falldand Islands 
 Co., 4 Kay & J. 39, to be kept within the jurisdiction. Order XXXI. 
 14. As to who may inspect under an order for that purpose, see 
 Bonnardet y. Taylor, 1 John. & H. 383, not usually a professional 
 accountant; Hartley v. Bartley, 1 Drew. 233, nor a co-defendant ; 
 Braper y. Manchester, ^c. Rail. Co., 3 De G., F. & J. 23, auditor 
 of rival company. Swansea Vale Rail. Co. v. Budd, L. R., 2 Eq. 
 274, engineer ; Lindsay y. Gladstone, L. E., 9 Eq. 132, co-plaintiff 
 as accountant, accompanied by solicitor's clerk. But no extraneous 
 use may be made of the documents inspected ; Williams y. Prince 
 of Wales Insurance Co., 23 Bear. 338, injunction; HvpMnson v. 
 Lord Burgkley, L. R., 2 Ch. 447, undertaking. Production for 
 limited time refused : Att.-Gen. v. Bingham, 9 Beav. 159. 
 
DISCOVERT BY PKODUCTION OF DOCUMENTS. 269 
 
 difficulty, or from some inadvertence, a defendant 
 lias included documents in his affidavit. This alone 
 has, in no case, been held to exclude the privilege, 
 and the authority of the case of Sampson v. Sweten- 
 ham ( f ), and of other cases, has expressly affirmed 
 this principle. In several of these cases both re- 
 ference and admission occur ; and, it is submitted, 
 they must still be considered to support the general 
 principle. 
 
 In the case of Hardman v. Ellames (g), the plaintiff 
 claimed certain estates as heir. The defendant in 
 his answer set out his own title ; possession of the 
 muniments of title was admitted, and reference was 
 made to them for greater certainty. Production 
 was ordered. 
 
 In the case oi Adams v. Fisher Qi), Lord Cotten- 
 ham explained what he decided in Hardman v. 
 Ellames to be that, " Where a party has thought 
 proper to put his defence upon a particular docu- 
 ment, he himself having introduced it and put it 
 forward, he cannot be permitted to make any repre- 
 sentation of it, however unfounded, which he pleases ; 
 but the plaintiff is entitled to see whether he has 
 rightly stated it. It is because the defendant chooses 
 to make it a part of his answer that the plaintiff is 
 entitled to see it ; not because the plain,tiff has an 
 
 (/) 5 Mad. 16; Cooper y. Uttoxeter Burial Board, 1 Hem. & 
 M. 680, inadvertence in an admission in an answer; post, p. 271. 
 (£) 2 Myl. & K. 745; and see Hill v. Gomme, 6 L. J. (Ch.) 258. 
 (Ji) 3 Myl. & C. 526 ; Rawson v. Samuel, i Myl. & C. 330. 
 
270 PROCEDURE. 
 
 interest in it. The principle is that a defendant shall 
 not avail himself of that mode of concealing his de- 
 fence." 
 
 Section 4. 
 
 Of the Effect of the Oath of the Party as to the 
 Contents of the Documents withheld. 
 
 The suit of Adams v. Fisher (i) was for an account 
 against a solicitor, employed by a middle party to 
 conduct an administration suit for the benefit of the 
 plaintiff Adams, and against the personal represen- 
 tative of the middleman. The former defendant 
 denied all connection with the plaintiff, and aU privity 
 between them; and the question was whether, in 
 such a state of affairs, he, Fisher, was bound to 
 produce the documents mentioned lq his answer. 
 
 The answer admitted possession of documents and 
 papers relating to the testator's estate and affairs, and 
 by way of schedule set out a list of them. This 
 schedule the defendant Fisher prayed might be 
 taken as part of his answer, and he craved leave to 
 refer to it ; but he submitted that the plaintiff had 
 no right to call for production of the documents 
 therein mentioned. Lord Cottenham remarked that, 
 " If the defendant sets them out in the schedule to 
 his answer, the question is, upon the whole record, 
 whether the plaintiff has such an interest in them as 
 entitles him to call for their production ? Here the 
 
 (i) 3 Myl. & C. 526. 
 
DISCOVERT BY PEODTJCTION OF DOCUMENTS. 271 
 
 defendant has denied the plaintifFs interest ; he has 
 on the record stated that which, as it stands, in my 
 opinion, excludes the plaintiff from instituting the 
 suit against him. As long as that stands, I think 
 the plaintiff is not entitled to see the documents " (k). 
 Here there were both reference and admission of 
 possession of documents, but a sufficient denial of the 
 plaintiff's interest to prevent their production. 
 
 In Peile v. Stoddart (J), the oath of the defendant, 
 that he was advised, and verily believed, that certain 
 documents contained in a schedule to his answer did 
 not contain any evidence whatever in support of, or 
 tending to support, the plaintiff's pleas, and that they 
 were not in any manner material to the plaintiff's 
 case, was held to be conclusive as to the effect of the 
 evidence withheld. 
 
 In the case of Comber. Corporation of Londonim), 
 Sir James Knight Bruce, V.-C, thus described the 
 various states of circumstances which might entitle 
 a party to production of the evidences in the pos- 
 session of his opponent. " To protect a defendant 
 from the discovery or production of a document re- 
 lating to the subject of dispute, it is not sufficient 
 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 may also be of a similar 
 character with regard to the plaintiff's case, either in 
 
 (A) 3 llyL & C. 549. 
 
 (I) 1 Mac. & G. 192. 
 
 (jm) 1 Y. & C. C. C. 631, 650. Manhy r. Bemiclie (No. 2), 
 8 De G., M. & G. 476; Att.-Gen.ir. Corporation of Zondon, 2 Mac. 
 & G. 247, 266 ; M'Intosh y. Great Western Bail Co., 1 Mac. & G. 
 73 • Mornington T. Mornington, 2 John. & H. 697. 
 
272 PEOCEDUKE. 
 
 a directly affirmative manner, or by exhibiting matter 
 at variance with the defence, or tending to impeach 
 it. I do not at present refer to the instances in 
 which a document forms the common title, or is a 
 subject of the mutual and common right of the 
 plaintiff and defendant. If it be with distinctness 
 and positiveness stated in an answer that the docu- 
 ment 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 impeach- 
 ing his defence, or forming or supporting the plain- 
 tiff's title or the plaintiff's case ; that document is, I 
 conceive, protected from production, unless the court 
 sees, upon the answer itself, that the defendant 
 erroneously represents or misconceives its nature. 
 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 impeaching 
 the defence, then, I apprehend, the document is not 
 protected; nor, I apprehend, is it protected if the 
 character ascribed to it by the defendant is not averred 
 by him with a reasonable or sufficient degree of 
 positiveness or distinctness. " And his honour founded 
 his ord'er to produce the disputed documents upon 
 the fact that he could not find a positive statement 
 anywhere, that their whole contents were merely and 
 exclusively matter of evidence in support of the de- 
 fendant's case, or irrelevant to that of the plaintiff; 
 nor was there an averment that any person who had 
 examined those documents had positively stated, or 
 could positively state, that their whole contents were so. 
 
DISCOVERT BY PEODUCTION OF DOCUMENTS. 273 
 
 In the case oi Minet v. Morgan (n). Lord Selbome 
 said, " The questions which have been argued in this 
 case were, as I thought, long since covered by autho- 
 rity, and it has been with some surprise that I have 
 heard them revived. Of com-se I do not mean to 
 say that upon the terms of particular affidavits ques- 
 tions of this sort may not always be liable to arise ; 
 but I should have thought that the principles which 
 govern them were by this time well understood, and 
 less Hable to be brought into controversy than from 
 the course of the argument appears to be the case. 
 
 " Taking the &st point, which relates to the title- 
 deeds, it is said that the plaintiff, who is here in the 
 situation in which a defendant ordinarily is, having 
 to make discovery, has not sufficiently brought him- 
 self within that protection against the production of 
 title-deeds which is given by the court. 
 
 « Now we have nothing to do with the question 
 whether that protection is or is not based on sound 
 principles, but only with the question whether it 
 ought to be extended to the documents in this case. 
 There might perhaps be great reason for holding 
 that if a man comes into court as a plaintiff , attach- 
 ing somebody else, he ought to be bound to disclose 
 everything on which he relies for the purpose of his 
 attack But that undoubtedly is not the present 
 rule of the court; and the sole question here is, 
 whether the plaintiff has, by the terms of his affi- 
 davit, sufficiently claimed the protection which the 
 rules of the court give when it is properly claimed. 
 
 («) L. R., 8 Ch. 361. 
 N 5 
 
274 PKOCEDURE. 
 
 " Now in this case, as far as I can judge, fhere is 
 certainly no indication whatever of an intention on 
 the part of the plaintiff to fence with the court, or to 
 evade giving the discovery which is due from him. 
 So far from that, I find that this further affidavit 
 appears to have been in a great measure made for 
 the purpose of correcting any error which the lati- 
 tude of the expressions of the former affidavit might 
 possibly have covered. [The ftirther affidavit stated 
 that since the former one the plaintiff had been ad- 
 vised that four of the documents specified in the first 
 part of the second schedule might possibly be mate- 
 rial to the case of the defendant, and he submitted to 
 produce them ; but as to the remaining documents 
 set forth in the first part of that schedule, they re- 
 lated exclusively to his title, and to the best of his 
 knowledge, information and belief, did not contain 
 anything impeaching his case, or forming or sup- 
 porting the defendant's title, or the defendant's case, 
 and were not in any manner material to the case of 
 the defendant as to any matter in dispute between 
 the plaintiff and the defendant in the suit ; and he 
 objected to produce them. J In my judgment the 
 pMntiff has not only said everything needful to 
 entitle him to protection, but he has said it with a 
 plaumess beyond that which has been required from 
 defendants in some of the cases." 
 
 "Here the only question is, whether [a denial that 
 documents tend to prove the title of an adversary] 
 may, with regard to title-deeds of this description, 
 be competently done by saying that to the best of 
 his knowledge, information and belief, they do not. 
 
DISCOTEET BT PRODUCTION OF DOCUMENTS. 275 
 
 No authority whatever has been produced to show 
 that it ever has been held or laid down that a man 
 may not protect himself by putting the negative 
 portion of his statement in that form. I find that 
 in Adams v. Fisher (o) the form of the denial is the 
 same as in this case. The defendant denied, accord- 
 ing to the best of liis knowledge, remembrance, in- 
 formation or belief, and it does not seem to have 
 occurred to Lord Cottenham, or to any one else, 
 that that was insufficient. In Peile v. Stoddart {p) 
 belief upon advice, and no more, was held to be suffi- 
 cient, and my judgment certainly is that unless there 
 were, as in the case of Combe v. Corporation of 
 London (q), something which qualified this state- 
 ment, or showed substantial insufficiency on the 
 face of the affidavit, an affidavit such as this is 
 sufficient to entitle a party to the protection which 
 he asks " (r). 
 
 In Bowes v. Fernie{s), Lord Cottenham remarked, 
 that " it is not because you suspect that a defendant 
 has stated facts incorrectly or untruly in his answer, 
 that you are at liberty to disregard those statements. 
 If, with respect to a particular matter, a defendant 
 has made inconsistent and contradictory statements, 
 
 (») Ubi sup. 
 
 (^) Ubi sup. 
 
 {q) 1 Y. & C. C. C. 631. 
 
 (r) Sunt T. Mmes, 27 Beav. 62, "advised and verily believe;" 
 Edna/rds v. Jones, 13 Sim. 632, denial of particular fact. 
 
 (s) 3 Myl. & C. 632. But see Noel v. Noel, 1 De G., F. & J. 
 468; Wright y. Pitt, L. R. (3 Ch.) 809; Saull v. Browne, L. E., 
 17 Eq. 402. 
 
276 PROCEDUEE. 
 
 the plaintiff may adopt and act upon that which is 
 most in his own favour." 
 
 The ultimate course of proceeding, both in the 
 courts of common law and of equity, when there 
 was a dispute upon the question whether a document 
 should or should not be produced, was that the judge 
 examined the document himself in order to deter- 
 mine the point {t). 
 
 When that course is inconvenient, or when the 
 judge may think proper to dispense with such a pro- 
 ceeding, it is evident that the question of production, 
 or otherwise, -of any document must depend upon 
 the oath of the party in whose possession it happens 
 to be; and with regard to these cases, there are 
 some points which may be noticed. 
 
 In Moore v. Craven (u), Lord Hatherley thus 
 described the mode in which the court exercised its 
 discretion in matters of discovery : " The court does 
 not, when discovery is a matter of indifference to the 
 defendant, weigh in golden scales the question of 
 materiality or immateriality ; but when the nature 
 of the discovery required is such that the giving of 
 it may be prejudicial to the defendant, the court 
 takes into consideration the special circumstances of 
 the case, and whilst, on the one hand, it takes care 
 that the plaintiff obtains aU the discovery which can be 
 of us'e to him, on the other, it is bound to protect the 
 defendant against undue inquisition into his affairs." 
 
 If the defendant denies the possession of any 
 
 (t) Dan. Ch. Prac. 1662! Fenner v. London and South Eastern, 
 Bail Co., L. E., 7 Q. B. 767. 
 (a) ated L. R., 7 Ch. 96. 
 
DISCOVEET BT PRODUCTION OF DOCUMENTS. 277 
 
 writings relating to the subject, that denial is neces- 
 sarily conclusive upon the question of discovery, and 
 the plaintiff must be left to prove his case by such 
 evidence as he can adduce. There may be reason 
 to suspect that the party has not made a ftdl dis- 
 closure, but the courts have no power to iavestigate 
 that question. 
 
 Where the discovery sought was of a correspond- 
 ence, some of the letters produced referring to others 
 which were not set out, it was urged that the cir- 
 cumstance afforded ground for suspecting conceal- 
 ment and fraud ; but it was said by the court : — 
 " The defendant swears to have produced extracts of 
 everything relating to these bills : the other parts of 
 the letters are not relating to them : they have sworn 
 at their peril, but very fully; and we cannot order a 
 production of the other correspondence, as we have 
 no inquisitorial authority to investigate aU the other 
 transactions of these merchants" {x). 
 
 In this case, the defendant denied the existence of 
 any evidence ; and there was, therefore, no subject 
 with which the Court of Chancery could deal. 
 
 Where the defendant admits that there are docu- 
 ments in his possession relating to the matters in dis- 
 pute, a different question is presented. Thus, sup- 
 posing the discovery were sought of a correspondence ; 
 and the defendant, whilst producing some of the 
 letters, admitted that others also related to the sub- 
 ject, but tended to sustain his own case, and not the 
 
 (a;) Campbell v. French, 1 Anst. 59; Sowes v. Fernie, 3 Myl. 
 & C. 632. 
 
278 PKOCEDURE. 
 
 case of the plaintiff. In such an event there would 
 be a wider field for the discretion of the judge. 
 
 It is obvious that there must be some description 
 of the documents before any question of production 
 can arise. Before the court can be in possession of 
 materials upon which to decide that a document 
 ought not be produced, it must be satisfied that the 
 description of the document in the answer is accu- 
 rate in point of appellation, and just with regard to 
 the tendency or ejfect attributed to it. 
 
 The describing of documents by distinguishing 
 appellations is necessarily the office of the defendant. 
 If the evidence is described as consisting of hooks of 
 account during a particular period; books containing 
 entries of money payment in lieu of tithes ; receipts 
 for money; Zei^eT-s from some specified person; letters 
 of a certain date ; indentures of certain dates made 
 between certain parties ; in all such respects it seems 
 possible, upon the question of production, to assume 
 that the appellations are correct. 
 
 If the documents are numerous, and it be the 
 object of the party to afford the smallest degree of 
 information which the forms of the court wiU allow, 
 there may be scope for a disingenuous method of 
 stating the documents in his schedule, but he must 
 be a refined casuist who should distinguish between 
 the conscientious obligation not to deny the posses- 
 sion of an instrument which he in fe,ct does possess, and 
 not to describe it falsely. The description is of less 
 importance when no protection is insisted on, for the 
 opponent may examine the documents themselves ; 
 but if they are brought within some ground of pro- 
 
DISCOVERT BY PRODUCTION OF DOCUMENTS. 279 
 
 tection wliich is claimed, the oatli of tlie party must 
 generally be conclusive upon the question whether 
 the document shall be disclosed. 
 
 And if the defendant pledges his oath that a docu- 
 ment is of a certain description, which the simplest 
 effort of his powers of perception qualifies him to 
 prove, the admission of his oath as proof of the fact 
 is not a greater rehance upon his testimony than is 
 involved in the principle upon which it is admitted 
 at the trial of the action. The description being 
 taken to be true, the protection is a necessary conse- 
 quence (y). 
 
 In order that the description of the docmnent may 
 be sufficient to enable the court to pronounce that 
 the evidence is exclusively that of the defendant, it 
 must not only be correctly named, but its result or 
 effect must be justly weighed. This often involves 
 much more than a simple effort of perception. It 
 may require the exercise of an unprejudiced judg- 
 ment, qualified for the task by experience and erudi- 
 tion. It would seem that, without extending the 
 general principle of discovery, or encroaching upon 
 the protection of the defendant's evidences, cases 
 may arise in which the court, looking to the case 
 made out by the pleadings, and to the description 
 given by the defendant of documents which he 
 admits to be material, would hold the nature and 
 tendency of the documents to be so dubious, that 
 they might possibly support the plaintiff's case, not- 
 withstanding the opinion of the defendant to the 
 
 (y) Houghton t. Barnett, 20 L. J. (Ch.) 444. 
 
280 PROCEDURE. 
 
 contrarj-j and would therefore direct their pro- 
 duction. 
 
 In the answer to a cross bill in support of a modus 
 set up as a defence in a tithe suit, the defendant 
 admitted possession of hooks containing entries of 
 money payments corresponding with the sum stated 
 as a modus ; but he insisted that they were evidence 
 for him, and not for the plaintiff. Graham, B., 
 noticing the facts just mentioned, remarked : — " If 
 parties were allowed thus to put their own construc- 
 tion upon the effect of the documents sought to be 
 produced as evidence, so as to bind the plaintiff, he 
 would have little chance of obtaining a discovery of 
 the evidence by filing a bill. The moment that the 
 defendant admits that he has books in his possession 
 relating to the payment of the sum set up as a 
 modus, he admits that he has books in his possession 
 which may be material to the plaintiff's case as de- 
 fendant in the original suit : and he becomes entitled 
 to caU upon the court to exercise the power which it 
 possesses to compel their production, in order that 
 they may have the benefit of a fiiU disclosure. It 
 is for the court, when they shall be produced, to 
 say what effect they may have as evidence in the 
 cause " («). 
 
 In another suit, where the plaintiff moved for the 
 production of a tithe collector's books in the hands 
 of the defendant, and the answer denied that they 
 would in any manner assist or make out the plaintiff's 
 case. Lord Lyndhurst said : " They are stated to 
 
 (i) Mrkins v. Lome, 13 Price, 199. 
 
DISCOVERT BY PRODUCTION OF DOCUMENTS. 281 
 
 relate to the matters in question, and it does not 
 seem to me sufficient to say, that they will not assist 
 the plaintiiF's case. That must be matter of opinion, 
 and may depend on the way in which they are used. 
 Firkins v. Lowe has disposed of the question " (a). 
 
 Section 5. 
 Of the Practice when part of a Document is rele- 
 vant, and another part irrelevant. 
 
 The principles which have been stated in the pre- 
 ceding part of this chapter frequently require the 
 adoption of some peculiar rules of practice in regard 
 to their application. 
 
 It may often happen that the plaintiff is entitled 
 to a discovery and inspection of some entries in a 
 book, or some passages in a letter, or other docu- 
 ment, and has no concern with the other parts. 
 
 In such cases the proper course for the party, 
 upon resisting a, summons or motion for an order for 
 the production or inspection of documents, is to 
 state the existence of passages to the discovery of 
 which he objects ; and the order is then qualified as 
 to those passages by adding to the direction for 
 production of the documents admitted to be in the 
 possession of the party, that the defendant is to 
 be at liberty to seal up on oath such parts of the 
 
 said documents as do not in any manner relate to 
 
 * _______^ 
 
 («) Newton v. JBeresford, Younge, 382; Gardiner t. Mason, 
 4 Bro. C. C. 479. 
 
282 PROCEDUEE. 
 
 the plaintiff, or to the matters in question in the 
 cause (i). 
 
 If discovery is sought of letters, and the defendant 
 sets forth extracts of the letters, and pledges himself 
 on oath that those are the only parts of the corre- 
 spondence relating to the subject, the plaintiff is en- 
 titled to no fiirther discovery of the letters (c). 
 
 It has been held that, where a person who is bound 
 to keep separate accounts, unites them with others, 
 he must produce the whole ; but where the mixing 
 up of the documents was not a breach of duty, and 
 the unprotected part was inseparable, production of 
 the whole was refused {d). 
 
 It was said by Lord Eldon, in a case before him, 
 that " as to the part of the motion, with respect to 
 bringing the books into court, it is a case of some 
 novelty and difficulty ; but all the difficulty is out of 
 the question with reference to an executor. It is, 
 and must be understood to be, the bounden duty of 
 an executor to keep clear and distinct accounts of 
 the property which he himself is bound to admi- 
 nister; and I have not the slightest difficulty in 
 saying, that if all these books were the books of a 
 banking-house in London, and an executor thought 
 proper to put the accounts of a testator's estate into 
 his banking books, he shall not be allowed to tell 
 
 (fr) Jones T. Powell, 1 Swans. 535, n. (i); Moodalay v. Morton, 
 1 Bro. C. C. 469, 471, n.; Harp v. Lloyd, 3 Kay & J. 549 ; Talbot 
 V. Marshfield, 11 Jur. (N. S.) 901; Mcholl v. Jones, 2 Hem. & M. 
 588. 
 
 (o) Campbell v. French, 1 Anst. 58. 
 
 (d) Churton v. Fremen, 2 Drew. & Sm. 390 ; Carew v. White, 
 5 Beav. 172. 
 
DISCOVERT BY PEODUCTION OF DOCUMENTS. 283 
 
 me, as cestui que trust, tiiat I have no riglit to see 
 Ms original accounts of my property. To an exe- 
 cutor so acting I sliould say, [the parties] shall see 
 every part of these original books which contain any 
 part of this transaction. The case would be a case of 
 greater nicety with respect to the partners of an exe- 
 cutor who had permitted him to place in the general 
 books his accounts as executor. I should say, upon 
 the mere fact of their having so permitted him, that 
 this court would not allow them to withhold a free 
 inspection of the books ; and I should say it was 
 clearly due in a case in which the executor alleges 
 that he may have lent to them money, part of the 
 testator's estate, at interest, on a loan between him 
 and them, and where the executor says they have 
 been dealing with it, by laying it out on securi- 
 ties " (e). 
 
 When part of a map was relevant and the re- 
 mainder immaterial, the same rule was held to 
 
 apply (/)• 
 
 (e) Freeman Y. Fairlie, 3 Mer. 43; Earl of Salisbury v. Cecil, 
 1 Cox, 277. 
 (/) Fagakerly v. Gillibrand, 8 L. J. (Ch.) 248. 
 
284 PEOCEDUKE. 
 
 CHAPTER IV. 
 
 OF THE EFFECT OF DISOBEDIENCE TO THE RULES, 
 AND OF COSTS. 
 
 " If any party fails to comply with any order to 
 answer interrogatories, or for discovery or inspection 
 of documents, he shall be liable to attachment. He 
 shaU also, if a plaintiff, be Hable 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 " (a). 
 
 " Service of an order for discovery or inspection 
 made against any party on his solicitor shall be suffi- 
 cient service to found an application for an attach- 
 ment 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" (6). 
 
 " A solicitor upon whom an order against any 
 party for discovery or inspection is served under the 
 last rule, who neglects, without reasonable excuse, 
 
 (a) Order XXXI. 20. See also Order XXXI. 10, 14, ante, 
 pp. 243, 263. 
 (J) Order XXXI. 21. 
 
EFFECT OF DISOBEDIENCE TO RULES, ETC. 285 
 
 to give notice thereof to his client, shall be liable to 
 attachment" (c). 
 
 The court has jurisdiction to compel a party to 
 pay unnecessary costs which he may have caused his 
 opponent to incur, or to refuse to order an opponent 
 to pay those which the party himself may have in- 
 curred unnecessarily. 
 
 In the case of pleadings of improper length, the 
 rules provide that " the court in adjusting the costs 
 of the action, shall inquire at the instance of any 
 party into any unnecessary prolixity, and order the 
 costs occasioned by such prolixity to be borne by the 
 party chargeable with the same " (d). 
 
 " Where a plaintiff delivers a statement of claim 
 without being required to do so, the court or a judge 
 may make such order as to the costs occasioned 
 thereby as shall seem just, if it appears that the 
 delivery of a statement of claim was unnecessary or 
 improper " (e). 
 
 " Where the court or a judge shall be of opinion 
 that any allegations of fact denied or not admitted 
 by the defence ought to have been admitted, the court 
 may make such order as shall be just with respect 
 to any extra costs occasioned by their having been 
 denied or not admitted " (_/). 
 
 In the case of a demurrer, " if there is no ground, 
 or only a frivolous ground for demurrer stated, the 
 court or judge may set aside such demurrer, with 
 costs " ( g). 
 
 (e) Order XXXI. 22. (/) Order XXH. 4. 
 
 ((?) Order XIX. 2. (g) Order XXVin. 2. 
 
 (e) Order XXI. 1 (c). 
 
286 PEOCEDUEE. 
 
 " Where a demurrer to the whole or part of any 
 pleading is allowed upon argument, the party whose 
 pleading is demurred to shall, unless the court other- 
 wise order, pay to the demurring party the costs of 
 the demurrer" (A). 
 
 " If a demurrer to the whole of a statement of 
 claim be allowed, the plaintiff, subject to the power 
 of the court to allow the statement of claim to be 
 amended, shall pay to the demurring defendant the 
 costs of the action, unless the court shall otherwise 
 order" (i). 
 
 " Where a demurrer is orerruled, the demurring 
 party shall pay to the opposite party the costs occa^ 
 sioned by the demurrer, unless the court shall other- 
 wise direct" (A). 
 
 As to the costs of interrogatories, the rule is : — 
 
 " 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 in- 
 terrogatories have been exhibited unreasonably, vex- 
 atiously or at improper length, the costs occasioned 
 by the said interrogatories and the answers thereto 
 shall be borne by the party in fault" (Z). 
 
 The time at which iaterrogatories should be deli- 
 vered was considered in the Exchequer ; it was there 
 decided that, in ordinary cases, they should not be 
 delivered by a plaintiff until the defendant had filed 
 
 (A) Order XXVin. 8. 
 (i) Order XXVIII. 9. 
 (J) Order XXVIII. 11. 
 (I) Order XXXI. 2. 
 
:effect op disobediekce to rules, etc. 287 
 
 his plea (m). This is important. Until the plaintiff 
 has seen what the defendant's case is — and under the 
 rules of procedure the statement of defence will afford 
 this disclosure — it seems reasonable to require the 
 plaintiff to abstain from creating costs (n). 
 
 When, however, interrogatories were, upon this 
 principle, refiised before declaration, it was upon the 
 understanding that the particulars of demand might 
 afterwards be amended with a view to making them 
 accord with the answers subsequently given by the 
 defendant (o). 
 
 These principles are certainly equitable. 
 
 (m) Martin v. Hemming, 10 Exch. 478; Anon. t. Parr, 34 L. J. 
 (Q. B.) 95; Beckervain t. Great 'Western Hail. Co., L. E., 
 6 C. P. 36 ; Gourley v. Plimsoll, L. E., 8 C. P. 362. 
 
 (n) See Order XXXI. 2. 
 
 (o) Jones T. PraU, 6 Hurl. & N. 697. 
 
288 PEOCEDURE. 
 
 CHAPTER V. 
 
 MOTION OE SUMMONS, 
 
 It has been seen that interrogatories may be deli- 
 vered by either party as a matter of right, and with- 
 out any previous application to the court (a) ; that 
 inspection of any documents referred to in the plead- 
 ings or affidavits, and so made part of them, may be 
 obtained on giving notice to the party introducing 
 them (5) ; that the court or a judge may order any 
 party to discover the documents in his possession 
 material to the question in dispute ( c) ; and that any 
 party may apply to a judge for such an order against 
 his opponent ((?). Also, that interrogatories maybe 
 objected to (e), or not answered, with or without a 
 reason being given (/) ; that inspection or production 
 of documents may be resisted on various grounds (^). 
 Finally, that objections to answering interrogato- , 
 ries(A) or to producing documents (i) will be the 
 subject of a judicial decision. 
 
 It may be useM to describe in a few words the 
 mode in which these questions are to be brought up 
 for decision. 
 
 (a) Ante, pp. 241, 253. (/) Ante, p. 243. 
 
 (J) Ante, p. 263. (^) Parts I. H. III. 
 
 (c) Ante, p. 261. (A) Ante, p. 2i8. 
 
 (d) Ante, p. 262. (i) Ante, p. 261. 
 
 (e) Ante,vp. 241,243 
 
MOTION OR SUMMONS. 28!) 
 
 '• Where, by tliese rules, any application is autho- 
 rized to be made to the court or a judge in an action, 
 such application, if made to a di^asional court or to 
 a judge in court, shall be made by motion" ( /). 
 
 " ^^J judge of the said High Court of Justice 
 may, subject to any rules of court, exercise in court 
 or in chambers all or any part of the jurisdiction by 
 this act vested in the said High Court, in all such 
 causes and matters, and in all such proceedings in 
 any causes or matters, as before the passing of this 
 act might have been heard in court or in chambers 
 respectively, by a single judge of any of the courts 
 whose jurisdiction is hereby transferred to the said 
 High Court, or as may be directed or authorized to 
 be so heard by any rules of court to be hereafter 
 made. In all such cases, any judge sitting in ciourt 
 shall be deemed to constitute a court" (k). 
 
 Business in connection with " discover}^, whether 
 of documents or otherwise, and inspection, except 
 by consent," may not be transacted by a master or 
 registrar in the Queen's Bench, Coriimon Pleas, 
 Exchequer, and Probate, Divorce and Admiralty 
 Divisions (/). 
 
 The costs of improper interrogatories are to be 
 adjusted by the coiul;, at the instance of any party, 
 and if the taxing master, or the court or a judge is ot 
 opinion that they have been improperly adminis- 
 tered {m). 
 
 (j) Order LIII. 1. 
 (k) 36 & 37 Vict. c. 66, s. 39. 
 (0 Order LIV. 2. 
 (m) Order XXXI. 2. 
 H. O 
 
290 PKOCEDURE — MOTION OR SUMMONS. 
 
 Objection for scandal or irrelevancy are to be 
 made to a judge in chambers (m). 
 
 The sufficiency of an answer to inteiTOgatories is 
 to be determined by the court or a judge on motion 
 or summons (n). 
 
 On neglect- to answer, or insufficiency of answer, 
 application is to be made to the court or a judge (o). 
 
 An application for the discovery of documents is 
 to be made to a judge (p). 
 
 The right of a party to refuse inspection of docu- 
 ments is to be tried by the court (y). 
 
 Every application for an order for inspection of 
 documents must be made to a judge (r). 
 
 When an objection is made to giving discovery 
 or inspection of deeds, the court or a judge is to 
 decide upon it(s). 
 
 Attachment, at the instance of a party, vnll be 
 ordered by the court or a judge (t). 
 
 The general rule as to the mode in which applica- 
 tions are to be made seems to be, that where an 
 application is required to be made to the court, it 
 should be by way of motion in court ; where it is 
 to be made to a judge, it should be by way of sum- 
 mons ; where it may be made to either, it should be 
 first by summons in chambers, with an appeal by 
 motion in court. 
 
 (m) Order XXXI. 5. (y) Order XXXI. 14. 
 
 («) Order XXXI. 9. (;•) Order XXXI. 18. 
 
 (o) Order XXXI. 10. (s) Order XXXI. 19. 
 
 ip) Order XXXI. 12. (i) Older XXXI. 20. 
 
INDEX. 
 
 ACCOUNTANT, 
 
 privileged documents of, 165, 
 permitted to inspect under order, 268, n. 
 
 ACCOUNTS, 
 
 prayer for, 15. 
 
 plea of settled, 2i, n. 
 
 bill to open, 28. 
 
 charge of existence of, 31, 35. 
 
 of errors in, .35, 211. 
 pending appeal, 84. 
 rendering liable to penalty, 128. 
 unnecessary when assets admitted, 140. 
 before decree, 142. 
 
 must be sufficient for objects of suit, 144. 
 of business, ordered to be produced, 165. 
 destroyed, 188, u. 
 of funds mixed up, 196, n. 
 where fraud, 217. 
 
 effect of disclaimer upon liability to render, 239. 
 answer as to, 246. 
 
 ACTION, 
 
 discovery, a purpose of every, 2. 
 
 special objections apply to every, 5. 
 
 no right to interrogate unless title to maintain, 7. 
 
 relief and discovery in different matters incompatible in the 
 
 same, 10. 
 for discovery, 12, 38. 
 
 effect of, ] 6. 
 
 converted into action for relief, 18 ; and see Preface. 
 
 title of plaintiff in, 39, 40, 41, 
 
 not peculiar to one branch of the court, 38. 
 
 mispleading no ground for, 81. 
 for relief, 1 1. 
 
 title of plaintiff in, 37. 
 of defendant, 48. 
 
 mere witness an improper party to, 49. 
 
 against agents, 50. 
 
 02 
 
292 INDKX. 
 
 A (;T ION — cmUinmul. 
 
 on foreijjri judKmi.'iit, 85. 
 immateriality »» ri-.y^imU the, 139. 
 iltiiiTii»sed fur cIiHobedioriue, 284. 
 
 ADDEIJ88, »olicitor not bound to diiclouc client'*, I(i7. 
 
 ADMINISTRATION, unit for, 
 iiiirriiiU'riiility in, 180. 
 interent in evidence in, 200. 
 inconaiKtent title in, 188, n. 
 example of, 230. 
 
 ADMINISTRATOR, incon»i«tent plea« at common luw by, 
 227. 
 
 ADMISSION, 
 
 of poKBCiiion of document*, 18, 2f)7. 
 in part, where liability to penalty, 105. 
 of artiiets, 140. 
 
 DufHcient for purpoaen of Buit, 144. 
 of claim, 225. 
 
 AFFIDAVIT, 
 
 annwcnt to interroptatorioH are by, 242, 243. 
 
 objection* to answer by, 24;). 
 
 further answer by, ih, 
 
 production of document* by, 2fll. 
 
 application for dincovery of document* without, 'id'l. 
 
 discovery of documimts by, ih. 
 
 objection to production by, ih. 
 
 of document*, form of, 2«2, ii. 
 
 application for order for inspection by, 285. 
 
 AGENT, 
 
 made parly for misconduct, 50. 
 
 orderi-d to p!iy cost*, 51. 
 
 ffjiirjflation of action against, ih. 
 made party for ponni'ssion of deed*, 52. 
 pohsesMion tlujt of principal, lb. 
 application of larceny act to, 100. 
 no privilege to comtnunication with, 10(;. 
 joint possession of document with, 176, n. 
 knowledge of, 215. 
 
 AGREF.MKNT, 
 
 charge of conduct evidencing, 34. 
 protection from answering lo»t by. 111. 
 not lost by, 113, 167. 
 
 ALLEGATION, 
 
 to re*ist discovery mu»t he di-tinct, 29, 31, 35, 198. 
 may be »pccilic from two point* of view, 32. 
 
INDEX. 293 
 
 ALLEGATION— conti.vKfd. 
 
 may be specific from two points of view — continued. 
 
 as to a special fact, 32. 
 
 particular evidence, ift. 
 no discovery required where general, 32. 
 
 , unless specially interrogated, 31, n., 2M. 
 specifically made must be answered, 27. 
 
 or denied, 228. 
 
 or will be taken to be admitted, ib. 
 refusal to answer when no admission of truth of, 103. 
 interrogatories founded upon general, 32, Hi. 
 of liability simply no protection, 104. 
 of interest in evidence, 197. 
 
 must be distinctly denied, 198, 199. 
 example of, 230, n., 232. 
 of mortgages, 234. 
 
 AMENDMENT. 5ee Addenda, 
 
 of bill of discovery by praying relief. 18. 
 
 arguments in favour of this practice, 19 ; and see 
 Preface, 
 by striking out prayer for relief, 20. 
 rules as to, ib. 
 of parties for relief, .53. 
 
 for discovery, none, 95. 
 ANSWER, 
 
 definition of term in equity, 226, n. 
 discovery by, 3. 
 
 when considered sufficient, 17. 
 to matters not charged, 26. 
 
 of one defendant when evidence against another, 48. 
 draft, 169. 
 rules in equity as to, 222. 
 
 their extent, 224. 
 
 present applicability, 225, 240, 2)5. 
 discovery by answer, 240, 242. 
 
 must be full, ib. 
 
 personal knowledge, 245. 
 
 iiiquiry, ib. 
 
 trouble, 246. 
 
 distance, 247. 
 
 expense, 246, n. 
 
 false, 245. 
 deferred till after production, 250. 
 used as evidence, 213. 
 
 APPOINTEE, interest in evidence of, 201. 
 
 ARBITRATOR. See also CoyriDEScE. 
 made defendant for misconduct, 50. 
 costs against, 51. 
 claim necessary to support action, 51. 
 
294: INDEX. 
 
 ARBITRATOR— eo»!«naerf. 
 
 no discovery in aid of proceedings before, 89. 
 except when reference compulsory, 89, n. 
 immateriality, 141. 
 privileged documents of, 165. 
 not privileged from discovery, 179. 
 as to subject-matter, ib. 
 legal principle, 180. 
 
 ASSIGNEE, 
 
 discovery sought of monies lost at play by, 16. 
 liability of defendant to plaintiffs, 209. 
 
 ASSIGNMENT, 
 
 without licence, forfeiture on, 102, n. 
 discovery of acts before, 61. 
 
 ATTACHMENT for disobedience, 284. 
 
 ATTORNEY. See Solicitor. 
 
 ATTORNEY-GENERAL, answer of, 247. 
 
 AUCTIONEER. See Agent. 
 
 AUDITOR of rival company not allowed to inspect, 268, 
 
 AWARD, bill to set aside, 23. 
 
 BANKER, 
 
 application of larceny act to, 109. 
 production of books of, 268, 282. 
 
 BANKRUPT, 
 
 only a witness, 5S. 
 
 made a party to action against his trustee, 59. 
 
 discovery of acts before bankruptcy by, io. 
 
 answer as against trustee, ib. 
 
 fraud between trustee and, 60. 
 
 relief against trustee, discovery against, ih. 
 
 party to bill for injunction against trustee, ib. 
 
 fraud of, 61. 
 
 bill in aid of defence at law by, ib. 
 
 inferences, when discovery refused by, 129. 
 
 law inflicting penalty on, 101, u. 
 
 privilege of secrecy of, 167. 
 
 address of, ib. 
 
 BILL OF DISCOVERY, 
 order on, 15. 
 costs of, 17. 
 filed in the first instance, 18. 
 
INDEX. 295 
 
 BILL OF DISCOVERY-co««int«erf. 
 
 amended to try relief, 18 ; and see Preface. 
 
 prayer for relief added to, 2L 
 
 nature of, 38. 
 
 alleging that action had been brought, 45. 
 
 intention to bring action, 46. 
 bill to perpetuate testimony not converted into, 21. 
 
 BILL OF EXCHANGE, 
 
 immateriality in action on, HO. 
 illegal consideration for, 102, n. 
 joint possession of, 176, n. 
 
 BILL OF BELIEF, 
 
 impeaching a decree on ground of fraud, 28. 
 to set aside a release, ib. 
 
 or an award, ib. 
 to open a stated account, 28. 
 
 BOUNDARIES, interest in, 201. 
 
 BREACH, 
 
 of covenant, forfeiture for, 219, n. 
 of trust, general charge of, 35. 
 of proboise, damages for, 256. 
 of agreement, damages for, ih. 
 
 BEIEFS, 
 
 of counsel privileged, 167. 
 
 but not their indorsement, 168. 
 
 BROKERS, 
 
 statutes relating to, 110. 
 
 discovery of fictitious dealings by, 113. 
 
 holding out as, 115. 
 
 CASE, 
 
 made out by pleadings, 2, 230, 
 
 anticipated, 2, n. 
 
 party must recover upon strength of his own, 189, 218. 
 
 to be made out at hearing, but Dot evidence discovered, 
 
 191, 195. 
 for opinion of counsel, privileged, 167. 
 of opponent, 187. 
 
 inconsistent, 188. 
 
 must be proved affirmatively, 189. 
 
 mere allegation of no, 190. 
 
 interrogatories to discover, 187. 
 
 CHAMBERS, 
 
 applications at, to strike out interrogatory, 242. 
 discovery by a judge in, 289. 
 
 CHAMPERTY AND MAINTENANCE, penalty for, 101, .,. 
 
2fl6 INDEX. 
 
 CHANCERY, 
 
 rules of the court of, 
 
 a defendant submitting to answer must answer fully, 222. 
 
 demurrer or plea accompanying answer overruled, ib. 
 
 reasons of the rules, ib, 
 production in, 258. 
 
 CHARACTER, general charge of, 35. 
 
 CHARGE. See Allegation. 
 
 CHARTER, 
 
 penalty for breach of, 101, ii. 
 not produced, 187, n., 193. 
 produced, J 96. 
 
 CLAIM, STATEMENT OF, 
 
 plaintiff entitled to an answer to the allegations of, 1. 
 contains the plaintiff's case, 2, 230. 
 is a guide to discovery, 29. 
 for relief, 227. 
 for discovery only, 228. 
 in respect of several distinct causes, ib. 
 must allege all facts relied on, ib. 
 must not raise any new or inconsistent ground, 229. 
 must make out a case, ib, 
 example of, 2.30. 
 explained, 232. 
 
 CLAIMANT, opinion of counsel of, 168. 
 
 CLERGYMAN, no privilege to communications to, 166. 
 
 COLLATERAL QUESTIONS, protection from answering, 122. 
 
 COLLUSION, charge of, 35. 
 
 COMBINATION, charge of, 116. 
 
 COMMISSION to examine witnesses, prayer for, 12. 
 
 COMMON LAW, 
 
 principles of pleading, 27, 226. 
 criminatory interrogatories at, 130. 
 discovery of evidence of opponent at, 217. 
 special interrogatories at, 252. 
 production and inspection at, 259, 276. 
 
 COMPANY. See Corporation. 
 
 CO.MPROMISE, 
 
 general allegation of, 35. 
 protection not lost by, 167. 
 
 CONDITIONAL LIMIT.VFION, 
 
 on liability to discover, effect of, 119. 
 
INDEX. 297 
 
 CONFIDENCE, 
 
 privilege of secrecy on ground of, 147- 
 
 client or legal adviser interrogated, 16. 
 
 adopted from necessity, 150. 
 
 that of client, ib. 
 between third parties and client, 16. 
 in communications with witnesses, 151. 
 in letters between co-plaintilfs, ih. 
 between defendants and possible plaintiffs, 152. 
 ordinary reports, ii. 
 
 evidence with a view to an action, ib. 
 extent of privilege where client interrogated, 152 — 158. 
 
 pending litigation, 153. 
 
 in contemplation of, ib. 
 
 after dispute, 16. 
 
 same dispute with other parties, ih. 
 
 before dispute, 154. 
 
 investigation of title generally, 155 — 158. 
 where solicitor interrogated, 158 — 161. 
 
 profession;il business, 159 — 161. 
 
 accounts, letters, entries, &c., ib. 
 
 advice given, 160. 
 limitations, 161. 
 
 information in professional capacity, ib. 
 
 facts distinguished frT)m advice, 162. 
 
 between solicitor and stranger, ib. 
 
 testamentary disposition, ib. 
 
 fraud, 162, 163. 
 between client or agent, and solicitor or agent, 163. 
 in a compromise, 164. 
 where same adviser for both parties, ib. 
 where matters mixed up, ib. 
 duration of privilege, ib. 
 
 may be enforced, 165. 
 other characters privileged, ib. 
 
 not privileged, 166. 
 property in a letter, ib. 
 how protection lost, ib. 
 question for the judge, 167 
 ward of court, ib. 
 privilege of counsel, ib. 
 
 exceptions, 168, 169. 
 
 solicitor or counsel personally liable, 169, 170. 
 
 merely professional agent, 170. 
 
 only a witness, 171. 
 when professional agent a proper party, 173. 
 
 to procure delivery of deeds, ib. 
 or prevent concealment of them, ib. 
 possession of agent, possession of principal, 174. 
 production by solicitor, 175, 188, n. 
 common agent for several, 175. 
 
 o5 
 
298 INDEX. 
 
 CONFIDENCE— conHnMed. 
 
 joint possession of deeds, 176. 
 
 disclosure of contents wiiere no production, 177. 
 
 death of party, ib. 
 lien on documents, ib. 
 
 right of possession, 178. 
 mortgage of property, ib. 
 
 secondary securities, 179. 
 arbitrator, ib. 
 
 subject matter, 179, 182. 
 
 legal principle, 180, 182. 
 judges, jurors, government officers, &c., 182. 
 evidence painful to feelings, ib. 
 
 CONSIDERATION, 
 
 where purchase for value, 68. 
 where immaterial, 140. 
 
 CONSPIRACY, charge of, 116. 
 penalty for, 101, n. 
 
 CONTENTS, 
 
 of a document disclosed, 177. 
 not disclosed, 166. 
 
 CONTRACT, 
 
 interest in evidence in cases of, 221. 
 damages for breach of, 256. 
 
 CONVEYANCE, production of, refused, 187, u. 
 
 COPYHOLDER, interest in evidence, 205. 
 
 CORPORATION, 
 
 parties for discovery against, 56. 
 
 ofBcer or member, ib. 
 
 director, 57, n. 
 
 public officer, 86. 
 
 secretary, ib. 
 
 engineer, ib. 
 
 clerk, ib. 
 
 but not attorney on record, ib. 
 bank of England, 58. 
 officer of, cannot evade discovery, 246. 
 penalty for breach of bye-laws of, 101, n. 
 
 COSTS, 
 
 of discovery, 17, 246. 
 
 of resisting discovery, 18. 
 
 must be asked for, 17, n. 
 against agent, or party without interest, 51. 
 
IXDEX. 299 
 
 COSTS— cofi<iii«erf. 
 
 against bank of England, 58, n. 
 against a party, 285. 
 
 prolixity in pleadings, ib. 
 
 unnecessary pleadings, ih. 
 
 not making necessary admissions, ib. 
 
 frivolous demurrer, ib. 
 
 where demurrer allowed, 286. 
 where overruled, ib. 
 
 improper interrogatories, ib. 
 
 COUNSEL. See Confidence. 
 
 privileged communications, 167. 
 foreign, 169. 
 clerk of, ib. 
 
 COUNTER-CLAIM. See Claim. 
 effect of, 232. 
 
 COUNTS, COMMON, 
 
 interrogatories allowed in action for money upon, 254. 
 
 COVENANT. See also Agreement. 
 forfeiture for breach of, 102, n. 
 not to call for production, 205. 
 
 CREDITORS, 
 
 solicitor becoming trustee for, 167. 
 
 CROWN, 
 
 interest in title of a corporation, 202. 
 
 DAMAGES, 
 
 general allegation of, 34. 
 
 distinction between penalty and, 117. 
 
 no protection from discovery, ib. 
 
 private remedy for tort, ib. 
 
 for libel, 124. 
 
 interrogatories as to, 256. 
 
 in contract, ib. 
 
 in tort, ib. 
 
 rule, ib. 
 
 decisions unsatisfactory, 257. 
 
 DEBT, 
 
 plea of no, 26, n. 
 
 DECREE, 
 
 where claimed the action is for relief, 12. 
 must be claimed against every defendant, SO. 
 interrogatories after, 85. 
 bill to impeach, 28. 
 
300 INDEX. 
 
 DEFENCE, STATEMENT OF, 
 
 defendant entitled to an answer to the allegations of, 1. 
 
 contains the defendant's case, 2. 
 
 may raise several issues, 11. 
 
 may contain matter in subsidium, 26. 
 
 where required, 227. 
 
 must contain all facts relied on, 227, 228. 
 
 by way of counter-claim, must specify relief, ih. 
 
 may claim distinct remedies, 228. 
 
 must deny charges* not admitted, ib. 
 
 must be consistent, 229. 
 
 denial of facts by, ib. 
 
 form of, ib. 
 
 may raise several issues, ib, 
 
 example of, 231. 
 
 explanation of, 232. 
 demurrer and, 235. 
 effect of overruling part of, 237. 
 struck out for disobedience, 284. 
 
 DEFENDANT, 
 
 value of evidence of, 22. 
 
 may resist discovery, how, 36, 243, 264. 
 
 want of interest in action for relief, 48. 
 
 for discovery, ib. 
 when answer of one evidence against another, 49. 
 formal, ib. 
 
 interest in actions for relief, ib. 
 only a witness, ib. 
 
 relief against one, and discovery against another, 50. 
 must be some claim against a, ib. 
 costs only claimed, 51. 
 agents, &c., 50. 
 interested party when a necessary, 52. 
 
 for discovery, ib, 
 
 for relief, ib. 
 a mere witness is an improper, 53. 
 
 otherwise if interested, 54. 
 
 principle applicable only to discovery, 55. 
 exceptions, officer of corporation, ib. 
 
 trustees, 57. 
 
 partners, ib. 
 no privilege of secrecy between one and another, 166. 
 joint possession by, 176, n. 
 inspection refused to another, 268, n. 
 
 DELIVERY UP OF DEEDS, 
 prayer for, 14. 
 
 against agent, 52. 
 to relief excludes discovery, 4. 
 
IXDEX. . 301 
 
 DEMURRER, , 
 to discovery, 5. 
 by some defendants only, 10. 
 to ir^ferest of plaintiff, 39. 
 of defendant, 48. 
 
 for want of claim for relief, 50. 
 nnere witness, 54. 
 married woman, 55. 
 corporation, ib. 
 trustees, 57. 
 bankrupt, 59. 
 to person of plaintiff, 90. 
 
 of defendant, 91. 
 for want of parties, 93. 
 on ground of penalty, 125. 127. 
 by professional adviser, 170. 
 formerly overruled by answer, 223. 
 defence to claim by, 226. 
 rules as to, 234, 
 effect of allowing, 235. 
 of oveiruling, ib. 
 and defence, ii. 
 and pleading, ib, 
 
 DENIAL, 
 
 of claim, 226. 
 
 must be specific, 229. 
 DETINUE, action of, 
 
 interest in evidence of opponent in, 220. 
 DEVISEE, 
 
 ■ interest in evidence, 203. 
 
 discovery by heir of, 211. 
 
 DISABILITY, 
 
 of plaintiff, personal, 90. 
 
 infant, ib. 
 
 idiot, lb. 
 
 lunatic, ib. 
 
 outlaw, ib. 
 
 excommunicated person, ib. 
 
 attainted person, 91. 
 
 alien enemy, ib. 
 of defendant, personal, ib. 
 rule as to married women, 92. 
 raised by demurrer, 90. 
 by plea, ib. 
 
 DISCLAIMER, 
 
 when insufficient, 238. 
 by accounting party, 239. 
 
 in pleadings distinguished from discovery proper, 2, 22, 36, 
 236. 
 
302 INDEX. 
 
 DISCLOSURE, 
 
 to accompany a plea, 11, 22. 
 
 no part of defendant's case, 22. 
 in plea of purchase for value, 67. ^ 
 
 in pleading, 222. 
 
 where general objection to discovery, 237. 
 
 where special, 239. 
 
 DISCOVERY. 
 
 general rule, 1. 
 
 is in aid of, or substitution for, other evidence, 2. 
 
 relief distinguished from, ii, 
 
 protection from, in action for relief, 5, Part I. 
 
 general objections to, 3, 5, Part II. 
 
 special objections to, 3, 5, Part III. 
 
 incidental to relief, 7, 8. 
 
 a substantive part of an action, 8. 
 
 may be volunteered, ib. 
 
 but not partially, ib. 
 use of matter discovered by action for, 1 6. 
 action converted into action for relief, 18. 
 
 as to this, see Preface, 
 to accompany or support a plea, 22... 
 
 its nature, ib. 
 
 may be refused, when, 46. 
 must suffice to support an action, 41. 
 from mere witness, 53. 
 from particular parties, 55 — 59. 
 object of, 80. 
 jurisdiction for, 80—89. 
 proceedings aided by means of, 85. 
 from interested person not a party, 94. 
 distinguished from evidence of witness, 98. 
 where liability to penalty, 100. 
 
 to support a criminal charge, 106. 
 
 immaterial, 136. 
 
 useful at some time, 139. 
 
 consequential, distinguished from that in aid of 
 relief, 146. 
 
 confidence, 147. 
 
 party's own evidence, 183. 
 postponed till some question of relief tried, 234. 
 by answer, 240. 
 
 production or inspection formerly, 258. 
 at present, 261. 
 
 DISOBEDIENCE, 
 to rules, 284. 
 
 answer to interrogatories, ib. 
 
 discovery or inspection of documents, ib. 
 
INDEX. 303 
 
 DISOBEDIENCE— coniiwued. 
 by solicitor, 284. 
 attachment for, ib. 
 action dismissed, ib. 
 defence struck out, ib. 
 
 DISTANCE, 
 
 of materials of answer immaterial, 247. 
 
 DOCUMENTS. See also Production. 
 
 detained in court for purpose of prosecution, 106. 
 power of court to deal with, 261. 
 reference to, 264. 
 notice to produce, ii. 
 irrelevant in part, 281. 
 
 DOWRESS, 
 bill by, 72. 
 
 DRAFT, 
 
 of counsel privileged, 167. 
 answer, 169. 
 
 DUTIES, 
 
 action for, 190, 196, 197. 
 
 ECCLESIASTICAL, 
 penalties, 101, u. 
 
 EJECTMENT, 
 
 actions of, 208, 219. 
 
 discovery in aid of, 187, 190, 249. 
 interest in evidence in cases of, 217. 
 
 claimant against occupant, 218. 
 
 landlord against tenant, 219. 
 
 EMBEZZLEMENT, 
 penalty for, 101, n. 
 
 EMPLOYE, 
 
 of railway company, discovery from, 152, 
 
 ENGINEER, 
 
 privileged communications from, 151. 
 allowed to inspect, 218, u. 
 
 EVIDENCE, 
 
 materials are privileged, 2. 
 
 in personal knowledge and written, 2, 3. 
 
 interested party withholding, 53. 
 
 protected for confidence, suppressed, 165, n. 
 
304 INDEX. 
 
 EVIDENCE— contiawei. 
 
 unnecessarily painful, 182. 
 of opponent, 183. 
 
 general rule as to protection of, ib. 
 title to, 184. 
 
 as to realty, 185. 
 personalty, ib. 
 fishing application, 186. 
 proprietary and possessory rights, ih. 
 bills to discover proper defendants, 187. 
 before defence put in, ib, 
 to support case, ib. 
 
 where case inconsistent, 188, 
 where privity, ib. 
 interest, ib. 
 claim of protection must be distinct, ib. 
 unwillingness to produce, ib. 
 must prove party's case affirmatively, 189. 
 
 this not an independent objection to discovery, 193. 
 mere allegation of no title insufficient, 190. 
 kinds of, 19*. 
 
 not confined to title-deeds, ib. 
 exceptions to rule, 196. 
 
 where mutual interest, 196. 
 chargeof, 197, 199, 206.- 
 examples, 200 — 206. 
 further liability of defendant, 206. 
 both parties without title, ib. 
 extent of this principle, 208. 
 recent and ancient possession, 211. 
 
 extent of discovery, 212. 
 fraud charged, 213. 
 
 deed impeached produced, 214. 
 principles, ib. 
 rules at common law as to discovery of, 217. 
 must not be inserted in pleadings, 227. 
 use of answers as evidence, 243. 
 
 EXAMINATION, 
 
 of party refusing to answer, 134. 
 rule as to viva voce, 243. 
 
 EXCEPTIONS, 
 
 to answers in equity, 222. 
 abolished, 243. 
 
 EXCHEQUER, 
 
 practice as to answers in the court of, 224. 
 
 EXECUTOR, 
 
 action for tithes by, 121. 
 accounts by, 244, 247. 
 
INDEX. 305 
 
 EXECVtO'R—contmued. 
 
 joint possession by, 176, u. 
 answer by, 244. 
 discovery by, 282. 
 
 FACTOR, 
 
 application of larceny act to, 109. 
 
 FEELINGS, 
 
 evidence painful to the, 182. 
 
 FISHING APPLICATION, 
 defined, 186. 
 
 FOREIGN GOVERNMENT, 
 plaintiff, 59. 
 action stayed till discovery given by, ib. See Addenda. 
 
 FORFEITURE. &e a?so Penalty. 
 
 a special objection to discovery, 6, 100, 102. 
 
 examples, 102. 
 by ex post facto act of Congress, 104. 
 by act of private individual, 118. 
 of an interest, and divesting a wrongful possession, ib. 
 
 alienage, 119. 
 
 conditional limitation, ib. 
 
 no gift over, ib. 
 
 plurality of livings, 120. 
 acts by tenant for term causing, 219. 
 actions to enforce, ib. 
 
 FRAUD, 
 
 decree impeached on ground of, 28. 
 general charge of fraudulent intention, 34. 
 
 fraudulent conduct, 35, 107. 
 protection where liability to punishment for, 101, n. 
 distinguished from penal ofiFence, 107, 115. 
 deed impeached for, 188, n., 213, 216. 
 evidence of one party impeached for, 165, 216. 
 answer deferred where document impeached, 251. 
 
 FRIEND, no privilege for communication to, 166. 
 GAMING, penalty for, 101, n. 
 
 HEIR, 
 
 plea of, 24, n. 
 
 interest in evidence, 202, 218. 
 
306 INDEX. 
 
 ILLEGALITY, general charge of, 35. 
 
 IMMATERIALITY, 
 definition of, 136. 
 test of, 1 37. 
 
 where no demurrer nor plea, 137. 
 synonymous with irrelevancy, ib. 
 for scandal, 138. 
 as to the action, 139. 
 
 must be useless in every event, ib. 
 
 examples, ib. 
 as to the party, 141. 
 
 examples, ib. 
 as to the time, 142, 242. 
 
 examples, ib. 
 
 IMPRISONMENT, FALSE, penalty for, 101, n. 
 
 INADVERTENCE, reference by, 269, ... 
 
 INCONSISTENCY. See Addenda. 
 in equity pleadings, 223. 
 common law, 227. 
 
 INCONVENIENCE, in equity pleadings, 223. 
 
 INCUMBRANCER, discovery by, 14L 
 
 INDICTMENT, pending for perjury in the cause, 105. 
 
 INDORSEMENT of counsel on brief not privileged, 168. 
 
 INFAMY, not a ground of objection to discovery, 102. 
 
 INFANTS, 
 
 privileges of, in pleading, 228. 
 as to discovery, 249. 
 
 INJUNCTION, 
 prayer for, 13. 
 how long in force, 13, n. 
 case for, ib. 
 conditional, 82. 
 
 privilege of secrecy enforced by, 165. 
 to prevent extraneous use of documents, 268, n. 
 
 INQUIRY, party interrogated bound to make, 245. 
 
 INSPECTION. See also Production. 
 distinguished from production, 268. 
 when ordered, 263, 266. 
 of deeds, prayer for, 14. 
 
INDEX. 307 
 
 INSPECTION— coTiKnnpA 
 
 by witnesses, when foro;ery suspected, 216. 
 
 dependent upon determination of an issue, 23t. 
 
 of opponent's books before answer, 250. 
 
 of documents impeached, 213. 
 
 at common law, 259. 
 
 to whom allowed, 268, n. 
 
 INSTRUCTIONS, to counsel privileged, 16?. 
 
 INTEREST, 
 
 of plaintiff, in action for relief, 37. 
 for discovery, 39, 81. 
 possibility of, 40. 
 doubtful, ib. 
 
 of plaintiff must appear by his pleadings, 41. 
 of defendants in actions for relief, 49. 
 
 for discovery, 48. 
 in the question, but not in the suit, 51, S3, 
 effect of cessation of, 119. 
 a ground of discoverv of opponent's evidence, 2, a., 183, 
 
 196-206. 
 in evidence, and in property, 188. 
 partial, 188, n. 
 allegation of, 198. 
 
 INTERROGATORIES, 
 
 form of. 241, n. ' 
 
 particular facts may be asked by, 31, u., 32, 244. 
 compulsory answers to, 36. 
 to officer or member, of company or body, 5&. 
 
 of partnership, 57. 
 after trial, 81. 
 
 decree, 84. 
 tendency to subject to a penalty or forfeiture, 100. 
 
 directly, 101. 
 
 collaterally, 122. 
 containing matters protected and unprotected, 105. 
 criminatory, at common law, 130 — 135. 
 
 whether allowed to be put, 131. 
 
 rule as to, 133. 
 
 objections to it, ib. 
 
 who to decide upon effect of, 135. 
 to several parties, 142, 241. 
 fishing, 186. 
 
 special, where fraud in some party, 216, n. 
 must be answered fully, 240. 
 rules as to, 241. 
 
 time for delivery, ib. 
 
 to several parties, ib. 
 
 one set only to each, ib. 
 
308 INDEX. 
 
 INTEUKOGATORIES— coH/iHMcrf. 
 rules as to — continued. 
 
 company det'endant, 242, 
 
 scandal, 242. 
 
 irrelevancy, ib. 
 
 not bona fide, ib. 
 
 mode of answering, ib. 
 
 time for nnsweripg, ib. 
 
 when to be printed, ib. 
 
 objections to, ib. 
 to answer, 243. 
 
 sufficiency of answers, i!). 
 
 omission to answer, ib. 
 
 further answer. Hi. 
 
 viva voce examination, ib. 
 
 use of answers as evidence, ih. 
 upon general fact, 244. 
 
 exceptions, ib. 
 specific answer to, ib. 
 general answer to, ib, 
 at common law, 252. 
 
 discretion of those courts abolished, ib. 
 
 extent of jurisdiction, 258. 
 
 special instances, 254. 
 
 evidence of opponent, ib. 
 representative party, ib, 
 
 as to damages, 256. 
 rule, ib. 
 before pleadings, 286. 
 
 ISSUE, 
 
 to be treated separately, 11. 
 
 object of pleading to bring disputes to an, 27. 
 
 plea of no, 32, n. 
 
 joinder of, 233. 
 
 separate trial of separate, ib, 
 
 tried before discovery given, 234. 
 
 JOINTRESS, production by, 68. 
 
 JUDGE, privilege of, 182. 
 
 JUDGMENT, 
 
 bill to set aside, 28. 
 
 discovery in aid of execution, 84. 
 
 JURISDICTION FOR DISCOVERY, 
 in aid of some action, 81. 
 
 commenced, or in contemplation, ib. 
 
INDEX. 309 
 
 JUniSDICTION FOR DlSCOVERY-c«,/inaei/. 
 after verdict, 81. 
 
 not to relieve against indiscretion, ib. 
 
 where breacli of duty, S2. 
 
 accounts pending appeal, 81-. 
 after judgment in aid of execution, ib. 
 
 after decree, 85. 
 
 foreign judgment, ib. 
 proceedings in aid of which, i6. 
 
 civil rights, ib. 
 
 not to a mandamus, 86. 
 
 tort, ib. 
 
 fraud, ib. 
 libel, 87. 
 
 contract against public policy, ib. 
 courts in aid of which, 88. 
 
 having power to compel discovery, ib. 
 
 inferior, 89. 
 
 arbitrators, ib. 
 
 Privy Council, ib. 
 
 foreign court, ib. 
 
 JUROR, privilege of, 182. 
 
 KNOWLEDGE, may be charged generally, 34. 
 
 LANDLORD, interest in evidence, 219. 
 
 LESSOR AND LESSEE, 
 
 interest in evidence, 201, 219. 
 
 LETTER, 
 
 property in a, 166. 
 production refused of, 187, n. 
 
 M ABILITY, no disclaimer of, 239. 
 
 LIBEL AND SLANDER. 5fe Addend:i. 
 discovery in aid of justification of, 87. 
 
 where object to criminate, 12'i. 
 actions of, 221. , 
 
 penalty for, 101, n. 
 
 LIEN, 
 
 plea of, 24, u. 
 
 effect on production, 177. 
 
 a right of possession only, 178. 
 
 solicitor having, ib. 
 
 discharging himself, ib. 
 
 discharged by client, ib. 
 
310 INDEX. 
 
 LIMITATION, conditional, 119, n. 
 
 LIQUIDATOE, 
 
 not privileged, 165, 205. 
 
 LOCAL ACTS, penalty under, 102, u. 
 
 LUNATICS, PRIVILEGE Of, in pleading, 228. 
 
 MALICE, 
 
 may be alleged generally, 34. 
 actions charging, 221. 
 
 MANOR, 
 
 court rolls of, 165. 
 
 interest in title to, 201, 205. 
 
 MARRIAGE without consent, forfeiture on, 102, n. 
 
 MARRIED WOMAN, 
 
 relief against husband, discovery against, 10, u. 
 
 made defendant as agent, 55. 
 
 personal disability of, 92. 
 
 not witness against her husband, when, 104. 
 
 immateriality as regards, liO. 
 
 disclaimer by, 239, n. 
 
 MASTERS, in Chancery, 222. 
 
 MEDICAL ATTENDANTS, 
 
 communications not usually privileged, 166. 
 when privileged, 152. 
 
 MERCHANTS, 
 
 books ordered to be produced, 165, 268, 282. 
 production refused, 186. 
 
 MIND, CONDITION OF THE, may be charged generally, 34. 
 
 MORTGAGOR AND MORTGAGEE, 
 plea by, 32, n. 
 extent of discovery by, 141. 
 right to production, 17S. 
 
 of title deeds, 179. 
 
 mortgage deed, ib. 
 
 memorandum of deposit, ib. 
 
 secondary securities, ib. 
 
 copies of title deeds, ib. 
 
 where fraud, ib. 
 immateriality, 139. 
 interest in evidence, 200. 
 
INDEX. 311 
 
 MOTION, 
 
 for leave to amend by praying relief, 19. 
 exception to sufficiency of answer by, 24>3. 
 when proper, 288, 290. 
 
 NEGLIGENCE. 
 
 actions for, 151, n., 183, 221. 
 general allegation of, 35. 
 
 NOTARY, penalty for acting illegally as a, 105, n. 
 
 NOTES, on brief of counsel privileged, 168. 
 
 NOTICE, 
 
 may be charged generally, 34. 
 
 to produce documents, form of, 264, n. 
 
 to inspect, form of, 265, u. 
 
 OATH OF A PARTY, 
 
 as to relevancy of documents, 270. 
 
 reference, possession, 271. 
 
 " advised and verily believe," ib. 
 
 denial of relevancy, 271, 273. 
 
 suspicion, 275. 
 
 inconsistency, ib. 
 
 ultimate mode of deciding, 276. 
 equitable grounds of ordering discovery, 26. 
 
 existence of evidence, 277. 
 
 materiality, 276, 280. 
 
 OBJECTIONS TO DISCOVERY, 
 
 distinguished from objections to relief, 3. 
 general, 5, 96. 
 
 no title to relief, 7, 10. 
 
 want of interest of plaintiff, 37 — 47. 
 
 want of interest of defendant, 48 — 61. 
 
 purchaser for value, 62 — 74. 
 
 want of privity, 75 — 79. 
 
 want of jurisdiction. 80 — 89. 
 
 to person of plaintiff, 90 — 92. 
 
 want of parties, 93 — 95. 
 
 extend to whole ground of action, 38, 96. 
 special, 5, 6, 96. 
 
 penalty of forfeiture, 6, 100 — 135. 
 
 immateriality, 6, 136 — 146. 
 
 confidence, 6, 147—182. 
 
 evidence of opponent, 6, 183 — 221. 
 
 do not extend to whole ground of action, 6, 96. 
 application of rule as to accompanying answer upon, 224. 
 
312 INDEX. 
 
 OBJECTIONS TO DISCOVERY— coH<J»«ed. 
 extent of discovery in cases of, 238, 239. 
 on ground of penalty resembles a genera! objection, 126. 
 
 party must object to every disclosure, 127. 
 demurrer or plea overruling answer in equity where, 223, 
 
 OBSERVATIONS on brief of counsel privileged, 168. 
 
 OFFICER, 
 
 of government privileged, 182. 
 of company, 56, 246. 
 
 OPINION, 
 
 of counsel privileged, 167. 
 lent, privileged, 168. 
 taken by two parlies, 1 69. 
 
 OPPONENT. See Evidence. 
 
 ORDER, 
 
 to answer, or answer further, 243. 
 to give inspection, 265. 
 
 ORDER, CONSOLIDATED, XV. 4. .224. 
 
 ORDERS, 
 
 1. 1..19. 
 
 XVI. 3, 4. .53. 
 
 XVI. 8.. 92. 
 
 XVI. 10.. 57. 
 
 XVI. ..49, 95. 
 XVII. 1..53. 
 
 XIX. 2. .227, 285. 
 
 XIX. 4.. 227. 
 
 XIX. 8, Appendix C... 15, 228. 
 
 XIX. 9.. 228. 
 
 XIX. 13.. 91, 226. 
 
 XIX. .17.. 228. 
 
 XIX. 18.. 228. 
 
 XIX. 19.. 229. 
 
 XIX. 20.. 229. 
 
 XIX. 22.. 229. . 
 
 XIX. 25.. 34. 
 
 XIX. 26.. 34. 
 
 XXI. 1(c), 285. 
 
 XXII. 1..227. 
 
 xxn. 4. 285. 
 
 XXV. 233. 
 
 XXVII. 1,2, 3.. 20, 91. 
 
 XXVIII. 1..235. 
 
 XXVIII. 2 •■285. 
 
 XXVIII. 4. .235. 
 
INDEX. 313 
 
 ORDERS— cortiiiued. 
 XXVIII. 5. .23(j. 
 XXVIII. 8.. 286. 
 XXVIII. 9..iii. 
 XX VIII. 11.. t6. 
 xxviii. 12.. 235. 
 
 XXXI. 1..82, 91, H2, 241. 
 
 XXXI. 2..2S6, 289. 
 
 xxxi. 3. .241. 
 
 XXXI. 4.. 57, 2+1; see Addenda. 
 
 XXXI. 5.. 242; iee Addenda. 
 
 XXXI. 6..ih: 
 
 XXXI. 7.. 243 
 
 XXXI. 8.. it. 
 
 XXXI. 9.. 225, 243, 253, 290. 
 
 XXXI. 10.. 243, 290. 
 
 XXXI. 11.. 262. 
 
 XXXI. 12. 262,290; see Addenda. 
 
 XXXI. 13.. 262. 
 
 XXXI. 14. . 17, 174, 263, 268, 230. 
 
 XXXI. 15.. 264. 
 
 XXXI. 16.. 265. 
 
 XXXI. I7..16. 
 
 XXXI. 18.. 265, 290; see Addenda. 
 
 XXXI. 19.. 234, 290. 
 
 XXXI. 20 . . 284, 290 ; see Addenda. 
 
 XXXI. 21.. 284. 
 
 XXXI. 22.. 285. 
 
 XXXI. 23.. 243. 
 XXXIV. 1..234. 
 XXXVI. 6.. 233. 
 Liv. 2.. 289. 
 
 OUTSTANDING TERM, 
 general charge of, 35. 
 set up, 188, n. 
 
 PARCELS, 
 
 materiality before decree, 145. 
 interest in, 201. 
 
 PARDON, liability to answer after, 121, n. 
 
 PARENTS, no privilege to communication to, 166. 
 
 PARLIAMENTARY INCAFAf!lTY, penalty of, 101, n. 
 
 PARTICULARS of goods sold, materiality, 145, n. 
 
 PARTNERSHIP, 
 
 plea of no, 26, u., 30. 
 charge of, 32. 
 
 U. 
 
314 INDEX. 
 
 PARTNERSHIP— conhnaerf. 
 
 discovery by' member of, 57, 246. 
 immateriality, 140, 145. 
 accounts, 142. 
 
 interest in evidence, 201, 206. 
 joint possession of documents, 176, n. 
 inconsistent case, 188, n. 
 
 PARTY, 
 
 entitled to discovery, 1. 
 
 plea of want of parties, 24, n. 
 
 in action for discovery, witness improper, 48. 
 
 sometimes proper for relief, 49. 
 
 test of interest of, ib. 
 hostile person not a, 52. 
 discovery against interested, 52 — 55. 
 parties to actions for discovery, 93. 
 
 no demurrer for want of, ib. 
 
 otherwise for relief, 94. 
 no discovery from a person interested not a, ib. 
 amendment for relief, 18. 
 
 none for discovery, 95. 
 immateriality as regards the, 141. 
 
 formal, ib. 
 questions addressed to each, 142^ 
 is bound to know, what a, 245. 
 
 to make inquiry, 183. 
 right to exclusive knowledge of own evidence, ib, 
 privity between party and, 188. 
 
 PATENT, 
 
 penalty for infringement of, 104, n. 
 Immateriality, 145. 
 
 PAWNBROKER, documents in hands of, I/O, n. 
 
 PEDIGREE, 
 
 before decree, 145. 
 
 evidence of opponent, 187, 196, n. 
 
 PENALTY, 
 
 rule as to discovery which might subject to a, 100. 
 
 by statute or common law, 100, n. 
 
 for fraud, 101, n. 
 
 ecclesiastical, 102, 103, n. 
 
 personal disability, 102, ii. 
 
 under local acts, ib, 
 
 examples, 100—102. 
 extent need not be stated, 102. 
 infamy not a ground of protection, 102. 
 
INDEX. 315 
 
 PENALTY- coiiWnKed. 
 
 refusal to answer not an admission, 103. 
 
 by foreign law, ib. 
 
 liability of another person to a, 104. 
 
 matters mixed up, IDS. 
 
 protection may be claimed at any stage, Hi. 
 
 incurred by trustee, 106. 
 
 protection extends to representatives, ih. 
 
 criminal charge and misconduct distinguished, 106, 114. 
 
 must be taken away expressly, 107. 
 
 exceptions by statute ; see also Addenda. 
 
 stock-jobbing, 108. 
 
 gaming, ib. 
 
 larceny, 109. 
 
 trade-marks, ib. 
 
 marriage, !6. 
 
 fraudulent conveyances, ib. 
 
 attorneys and solicitors, ib. 
 
 brokers of city of London, 110. 
 exceptions by waiver, 
 
 express, 110. 
 
 relief where penalty waived. 111. 
 exceptions by conduct, 
 
 covenant. 111. 
 
 acts, 113. 
 
 contract, 114. 
 
 holding out, 115. 
 
 submission to answer, 116. 
 distinguished from damages, 117. 
 relief against penalty, ib. 
 
 creature ef common law, statute or bye-law, ib. 
 benefit of, 118. 
 disability and, 119. 
 cessation of, 120. 
 
 by death of party, ib. 
 
 lapse of time, ib. 
 
 during the cause, 121. 
 
 personal, ib. 
 collateral questions, 101, 122. 
 
 link in chain of evidence, 122. 
 
 tendency to criminate, 123. 
 
 whole effect of action to condemn, ib. 
 
 variety of decisions upon eflfect of questions, 1 24, 125, 1 26. 
 objection taken by the defence, 126. 
 
 demurrer, 127. 
 
 plea, ib. 
 
 foreign to the matter alleged, 128. 
 account, 129. 
 
 presumptions, ib. 
 
 falsely raised, 130. 
 
 p2 
 
316 INDEX. 
 
 PEHALTY—cmtimted. 
 
 interrogatories at common law subjecting to a, 130. 
 whether they should be put, 131. 
 leading, 132. 
 rule as to, 133. 
 
 objections to it, ih. 
 oral examination of parties on refusal to answer, 134. 
 rule as to privilege, 135. 
 
 PERJURY, penalty for, 101, n. 
 
 PERPETUATE TESTIMONY, 
 bill to, 12. 
 not converted into bill of discovery, 21. 
 
 PERSONAL DISABILITY, penalty of, 102, n. 
 
 PERSONAL PROPERTY, evidence in cases relating to, 217. 
 
 PETITION exempted from rules of pleading, 228. 
 
 PLAINTIFF, 
 
 may compel discovery, 36. 
 vrant of interest of, for relief, 37. 
 
 for discovery, 39, 40, 41. 
 objections to person for relief, 90. 
 
 outlaw, ib. 
 
 excommunicated person, ib. 
 
 alien enemy, 91. 
 
 married women and infants, 92, 
 for discovery, 91. 
 inspection allowed by co-, 268, ii. 
 
 PLEA, 
 
 in equity, 226. 
 
 at law, ib, 
 
 present practice, 227, n. 
 
 to relief, bars discovery, 4, 1 0. 
 
 to relief only, 11. 
 
 one tried before another, 10, 11, 233. 
 
 defence may contain more than one, 11, 227. 
 
 accompanied by discovery, ib. 
 
 extent of such discovery, 22. 
 questions raised upon a plea, 23. 
 
 form, ib. 
 
 substance, ib. 
 
 truth, 24, 28. 
 affirmative, 24. 
 negative, ib. 
 
INDEX. 317 
 
 PL"EA — continued. 
 
 to title of plaintiff to relief, 41. 
 in bar to discovery only, 43. 
 
 of no legal title, ib. 
 
 form now immaterial, 45. 
 
 must show that discovery unnecessary, 46. 
 to interest of defendant, 48. 
 mere witness, ib. 
 
 for relief, 49. 
 
 for discovery, 48. 
 of personal disability of party, 90. 
 of liability to penalty, 127. 
 of professional confidence, 170. 
 formerly overruled by answer, 223. 
 defence to claim by, 226. 
 inconsistency at law, 227. 
 accompanying a demurrer, 235. 
 effect of overruling, 237. 
 
 PLEADINGS, 
 
 show cases of parties and consequent relief, 2, 230. 
 bar to relief appearing in plaintiff's, 27. 
 
 measure of discovery, 28. 
 first appearing in defendant's, 30. 
 
 measure of discovery, ib. 
 at common law, 27. 
 
 charge of particular facts in, 31, n. ; 32. 
 voluntary disclosures in, 36. 
 criminatory and other matters mixed in, 105. 
 form of the, 225. 
 
 peculiarity of equity, 226, n. 
 
 of common law, 227. 
 
 present, ib. 
 
 may be dispensed with, ib, 
 
 must allege all facts relied on, 227, 228. 
 
 but not contain mere evidence, 227. 
 
 must claim relief, ih. 
 or discovery, ib. 
 
 where several causes of action, 228. 
 
 must specifically deny facts not admitted, 228, 229. 
 
 must be consistent, 229. 
 
 and not raise new grounds, ib. 
 
 example of, it. 
 
 analysis of, 232. 
 
 by way of counter-claim or reply, ib. 
 
 close of the, 233. 
 
 demurrer, ib. 
 
 after demurrer overruled, 235. 
 
 demurrer and defence to distinct grounds of claim, ib. 
 and demurrer to same ground, ib. 
 
318 INDEX. 
 
 TLEXDIUGS— continued. 
 
 resistance to discovery by, 230. 
 
 example of, 236. 
 disclosures in tlie, ib. 
 general rule as to, 1. 
 where general objection raised, 238. 
 effect of overruling objection, 237. 
 where special objection raised, 237, 239. 
 effect of overruling, 237. 
 when party disclaims, 238. 
 accounting party, 239. 
 
 PLURALITY OF LIVINGS, 
 forfeiture for holding, 102, n. 
 
 PORTIONIST, charge that plaintiff at law a, 209. 
 
 POSSESSION, 
 
 plea of adverse, 24, n. 
 divestinaf wrongful, 118. 
 joint, of documents, 176. 
 
 when party physically or legally unable to produce, ib. 
 
 proper parties before the court, ib. 
 
 one party dead, 177. 
 
 contents of documents set out, ib, 
 a title against everyone not showing n good title, 189, 218. 
 recent and ancient, 211, 219. 
 plea and demurrer by party in, 236. 
 
 PRACTICE, 
 
 in Chancery, as to answers, 222. 
 
 as to demurrer or plea accompanying answer, 223. 
 
 PRAYERS, 
 
 necessitating a hearing, for relief, 12. 
 
 injunction, 13. 
 
 delivery up of deeds, 14. 
 
 accounts, 15. 
 necessitating no hearing, not for relief, 12. 
 
 examine witnesses abroad, ib. 
 
 perpetuate testimony, 13. 
 
 injunction, ib. 
 
 production of deeds, 14. 
 for general relief, 15. 
 for relief added to bill of discovery, 21. 
 against agent for delivery of deeds, 52. 
 
 for costs, ib. 
 
 PRESUMPTION, 
 
 from claiming privilege of penalty, 103, 129. 
 of confidence, 167. 
 
INDEX. 319 
 
 PRINCIPAL, 
 
 possession of agent possession of, 52, l?^. 
 and agent in cases of fraud, 51. 
 interest in evidence of, 204. 
 
 PRIVATE DEALINGS, 
 
 immateriality before decree, 145. 
 materiality. See Interest. 
 
 PRIVILEGE, 
 
 general allegation of, 35. 
 
 PRIVITY, 
 
 effect of want of, 75. 
 
 not a ground of defence, ih. 
 example of, 76. 
 
 objections to the defence of, 77. 
 if it exists, is a general objection, 78. 
 of title, 188. 
 or between parties, ih. 
 PROCEDURE. See also Rules of Proceduee. 
 answers, 
 
 in equity, before 1852.. 222. 
 in the exchequer, 224. 
 pleadings, 225. 
 
 in equity, 226. 
 at common law, ib. 
 in thehigii court, 227. 
 resistance to discovery, 230. 
 
 by the defence, 232. 
 
 by trying one issue before another, 233. 
 
 by a decision upon questions of law, ib. 
 
 where discovery dependent upon title to relief, 234. 
 
 by demurrer, ib. 
 
 by demurrer and defence to different matters, 235. 
 
 by pleading and demurring to the same matter, ib. 
 
 possessory title, 236. 
 interrogatories, 240. 
 
 answers must be full, ih. 
 
 rule as to delivery, 241. 
 
 form of, ib. 
 
 to coi-poration or partnership, ih. 
 
 objection for scandal or irrelevancy, 242. 
 
 time to answer, ib. 
 
 form of answers, ib. 
 
 objection to answer, 243. 
 
 sufficiency of answer, ib. 
 
 further answer, ib. 
 
 omission to answer, ib. 
 
 u<:e of answers, ib. 
 
 relevancy of, 244. 
 
 trhat answer must contain, 245. 
 
320 INDEX. 
 
 PROCEDURE— coKfenaei. 
 interrogatories — continued. 
 
 attorney-general, 217. 
 
 infants, 24^9. 
 
 where documents in possession of opponent, 250. 
 
 at common law, 252, 
 production .or inspection of documents, 258. 
 
 in equity, ib. 
 
 at common law, 259. 
 
 in the high court, 261. 
 
 discovery at discretion of judge, ib. 
 
 at instance of party, 262. 
 
 inspection of documents referred to, 263, 266. 
 
 notice to produce, 264. 
 
 place of production, ib. 
 
 objection to produce, ib., 270. 
 
 omission to produce, 265. 
 
 reference to documents, 266. 
 
 irrelevancy of part of document, 281. 
 disobedience to orders, 284. 
 costs, 285. 
 
 PROCEEDINGS, 
 
 in aid of which discovery is given, 85. 
 civil, ib. 
 
 whether of contract or fnrt, 86. 
 to justify a libel, 87. 
 in defence of an action on a policy, 86. 
 not given in aid of, 
 
 criminal proceedings, 86. 
 
 actions contrary to public policy, 87. 
 
 immoral contracts, ib. 
 
 PRODUCTION, 
 
 distinguished from inspection, 268. 
 
 where ordered, 259, 268. 
 
 part of discovery, 3. 
 
 when prayer for relief, 14. 
 
 in another court, 17, 18. 
 
 by purchaser for value, 68. 
 
 principles of, 214. 
 
 answer deferred till after production, 250. 
 
 rules in equity as to, 258. 
 
 as to inspection at common law, 260. 
 in the high court, 261. 
 
 at order of judge, ib. 
 
 at instance of party, 262. 
 
 reference to, 263. 
 
 objections to, ib. 
 
 time to require, ib. 
 
 extent of, 264. 
 
INDEX. 32 1 
 
 PRODUCTION— fowft-TOcrf. 
 by defendant, 26*. 
 notice of, ib. 
 
 time, ib. 
 
 place, ib. 
 efiFect of oath of the party witliholding upon, 270. 
 
 denial of relevancy, 271, 273. 
 
 suspicion, 275. 
 
 inconsistency, ib, 
 
 PURCHASER FOR VALUE, 
 plea of, 25, n., 31, 62. 
 principle of protection to, 62. 
 
 its extent, 63. 
 disclosure in plea of. 67. 
 
 deeds of purchase, ib, 
 
 dates, ib. 
 
 parties, ib, 
 
 contents, ib. 
 
 time of execution, 68. 
 
 consideration, ib. 
 
 parcels, ib. 
 production of deeds by, ib. 
 plea to relief or discovery, 71. 
 plea to legal title, ib. 
 
 to equitable title, ib. 
 
 admits want of title, 72. 
 effect of concurrent jurisdiction on plea of, 73. 
 production ordered by, 188, ii., 216. 
 to purchaser, 200, u. 
 
 QUESTIONS OF LAW, trial of, 233. 
 
 EAILWAY ACCIDENTS, communications concerning, 152. 
 
 REAL PROPERTY, evidence in cases of, 217. 
 
 RECEIPTS, production refused of, 187, u. 
 
 RECEIVER, 
 
 prayer for, 10, n., HO, u. 
 accounts of, 144, n. 
 
 REFERENCE TO DOCUMENTS, 
 rule as to production whpre, 18, 264. 
 principles applicable to, 266. 
 
 case of party, ib. 
 
 admission of possession, 267. 
 
 by inadvertence, 269, n. 
 
 for greater certainty, 269. 
 
322 INDEX. 
 
 RELEASE, 
 
 plea of, 24, n. 
 
 bill to set aside, 28. 
 
 RELEVANCY. See Immateriality. 
 
 RELIEF, 
 
 definition of, 11. 
 
 hearing necessary, 12. 
 objections also valid to discovery, 3, 7. 
 
 invalid, ib. 
 appears in the pleadings, 2, 227. 
 discovery incidental to, 7, 8. 
 and discovery incompatible, where, 10. 
 plea to, 11. 
 prayers for, ib. 
 
 special, ib. 
 
 general, 15. 
 
 would support discovery, ib. 
 action for discovery converted into action for, 18 j see also 
 
 Preface, 
 interest of plaintiff in actions for, 37. 
 
 of defendant, 48. 
 
 formal parties, 49. 
 
 against some defendants, discovery against others, 50. 
 
 discovery against party interested, 52. 
 against bankrupt, 59. 
 alternative, 145. 
 
 imnoateriality of discovery sought to, 146. 
 claim for, 227. 
 
 simple, ib. 
 
 alternative, ib, 
 
 general, ib. 
 
 must be inserted in pleadings, ib. 
 
 REMAINDERMAN, interest in evidence, 204. 
 
 REPLEVIN, action of, 221. 
 
 REPLY, statement of. 
 efif'ect of, 232. 
 
 REPRESENTATIVES, interrogatories allowed to, 255. 
 
 RESIGNATION, bond of. 
 penalty for giving, 101, n. 
 
 REVENUE, penalty under laws, 101, n. 
 
 RULE AT COMMON LAW, 
 
 for new trial, no discovery pending, 82. 
 
 RULES OF PROCEDURE. See Orders. 
 as to relief and discovery generally, 2. 
 
INDEX. 323 
 
 RULES OF PROCEDURE— cofiHnaed. 
 as to amendments, 20. 
 uniting causes of action, 53. 
 joinder of parties, ib. 
 
 discovery from corporation partnership, 56. 
 actions by or against married women, 92. 
 parties to actions, 95. 
 as to pleadings, 227. 
 
 interrogatories, 2i0. 
 
 production, 261. 
 costs, 284. 
 motion or summons, 288. 
 
 SCANDAL, 
 
 irrelevancy for, 138. 
 definition of, 242. 
 
 SCRIVENER, confidential communication to, 161, n. 
 
 SEPARATE ESTATE. See Married Woman. 
 
 SET-OFF. See Claim. 
 
 SETTLEMENT, 
 
 opposed to title by descent, 188, n. 
 
 to conveyance, ib. 
 interest as evidence, 202. 
 
 SHAREHOLDER, 
 
 joint possession of document, 176, u. 
 discovery at law from, 254. 
 
 SIMONY, penalty for, 101, u. 
 
 SOLICITOR. 5?e Confidence: Lien. 
 made party for misconduct, 50. 
 
 ordered to pay costs, 51. 
 
 ground of action against, ii. 
 made party for possession of documents, 52. 
 
 generally improper party, ib. 
 act relating to, 109. 
 communications writh clients, 147. 
 
 witnesses, 151. 
 limitations to privilege of confidence, 161. 
 clerk of, ib. 
 Scotch, ih. 
 communication with opposite party, 162, n. 
 
 with strangers, ib. 
 •party not a, 163. 
 
324 INDEX. 
 
 SOLJCnOVtr— continued. 
 accounts produced, 165. 
 clients' address, 167. 
 personally liable, 169, 170. 
 agent, 170. 
 witness, 171. 
 
 defence of, 170, 171. 
 withholding deeds, 173. 
 joint possession by, 176, n. 
 no right to refuse production, 205. 
 deed made in favour of, 215. 
 service on, 284. 
 
 SPOLIATION, general charge of, 35. 
 
 STATEMENT. Sec Claim; Defence. 
 
 STATUTE OF FRAUDS, plea of, 29. 
 
 STATUTE OF LIMITATION, plea of, 29. 
 
 STATUTES, 
 
 21 Hen. 8.. 120. 
 
 32 Hen. 8, c. 2.. 30, 47. 
 
 13 Eliz. c. 5..109. 
 
 27 Eliz c. 5..68. 
 
 29 Car. 2,.;. 3.. 29. 
 
 21 Jac. 1, u. 16..29, 47,230. 
 
 9 Anne, c. 14.. 108. 
 
 rOeo. 2, >;. 8..108, 109. 
 46Geo. 3,^.37. .117. 
 
 4 Geo., 4, e. 76.. 109. 
 
 6&7 Will. 4, u. 71..89. 
 
 6 & 7 Will. 4, c. 76 . . Addenda. 
 
 6& 7 Vict. c. 73.. 109. 
 
 8 & 9 Vict. c. 109. .108. 
 14& 15 Vict. c. 99.. 89, 185. 
 17 & 18 Vict. c. 125. .130, 134. 
 
 23 & 24 Vict. c. 28.. 108. 
 
 24 & 25 Vict. c. 96 . . 109. 
 
 25 & 26 Vict. c. 88.. ii. 
 32 & 33 Vict. c. 71.. 89. 
 
 36 & 37 Vict. ,;. 66, ». 25 (11), 106. 
 
 SUBMISSION to answer matter subjecting to penalty, 116. 
 
 SUBORNATION OF PERJURY, penalty for, 101, n. 
 
 SUFFICIENCY, 
 
 of answer in equity, 17. 
 
 time for objecting to, 18, n. 
 
 of answer, 243. 
 
 of, distinguished from full, answer, 252. 
 
INDEX. 325 
 
 SUMMONS, 
 
 exempted from rules of pleading, 228. 
 objection to sufficiency of answer by, 243. 
 when proper, 288, 2S0. 
 
 TENANT FOR LIFE, committing act of forfeiture, 125. 
 
 TENANT FOR YEARS, 
 implied contract of, 202. 
 interest in evidence, 219. 
 
 TENANT IN TAIL, 
 plea of not, 36. 
 interest in evidence, 204. 
 
 TENANT OF THE FREEHOLD, &c., discovery refused, 1S7. 
 
 TESTS, scientific, allovfed, 217. 
 
 THEATRE, penalty for keeping unlicensed, 101, n. 
 
 TIME, 
 
 immateriality as regards the, 142. 
 
 necessary or consequential discovery, 146. 
 some relief admitted, ib. 
 
 TITHES. 
 
 plea to payment of, 24, n. 
 
 bill for account of, rector against occupier, 52, 191. 
 
 discovery in action for, 188, n., 191, 218, 280. 
 
 of accounts of, 196, n. 
 charge that plaintiff only a portionist of, 209. 
 
 TITLE, 
 
 general allegation of, 35. 
 
 of plaintiff, in action for discovery, 39. 
 
 plea of purchaser for value admits want of, 72. 
 
 immateriality, where denial of, 146. 
 
 materiality of, 142, 145. 
 possessory, 189, 218. 
 mere allegation of no, 190. 
 investigations privileged, 154. 
 of a party to his own evidence, 184. 
 deeds, production refused of, 187, n. 
 inconsistent, 188. 
 privity of, ib, 
 
 TORT, interest in evidence in cases of,' 221. 
 
 TRADE MARK, 
 
 before decree, 145. 
 
326 INDEX. 
 
 TRADESMAN, production of books of, 268. 
 
 TREASURER, 
 
 of company, joint possession by, 176, ". 
 
 TRIAL, 
 
 of issues separately, 233. 
 
 of issues before discovery ordered, 234. 
 
 TROUBLE, immaterial, 246. . 
 
 TROVER, 
 
 actions of, 216, 221. 
 
 TRUSTEE, 
 
 general allegation, 35. 
 
 of charity made defendant for discovery, 50, 57. 
 
 production ordered by, 93. 
 
 vfhen relief sought, 94. 
 
 immateriality, 141. 
 
 privilege must be claimed by, 106. 
 
 privileged documents of, 165. 
 
 possession of, 166. 
 
 opinion when privileged, 168. 
 
 taken by trustee, ib. 
 
 by cestui que trust, ib. 
 interest in evidence, 202, 205. . 
 of unsatisfied terms, 208. 
 joint possession by, 170, u. 
 no personal right to refuse production, 205. 
 
 UNDERTAKING, 
 
 not to use documents produced, 268, n. 
 
 UNDERWRITERS, 
 
 charged with fraud, 116. 
 discovery in actions by, 140, 251. 
 
 UNWILLINGNESS, 
 
 to produce a document, 188. 
 
 USURY, 
 
 penalty for, 101, u. 
 
 VALUATION, 
 
 production refused of, 187, n. 
 
 VERDICT, 
 
 discovery after, 81. 
 where breach of duty, 82. 
 
INDEX. 327 
 
 "WARD, 
 
 penalty in relation to, 101, u. 
 address of, 167. 
 
 WASTE, 
 
 forfeiture for, 102, ii. 
 
 WILL, 
 
 forfeiture on disputing competency to make, 102, n. 
 produced on ground of interest, 196, n. 
 
 WITNESS, 
 
 improper party to an action for discovery, 49, Si. 
 may be proper party for relief, 49. ' 
 reason of rule, 54. 
 
 exceptions, 55. 
 
 officer of corporation or partnership, ib. 
 
 trustees of public charity, ib. 
 
 officer of Bank of England, 58. 
 special objections applicable to a, 98. 
 production by, 267. 
 
 WRITER, 
 
 privileged documents of shorthand, 165. 
 
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 Solicitor. 12mo. 1857. 7s. 6d. 
 
 Petgrave's Code of the La-w of Principal and 
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 (38 & 39 Vic. c. 92), and Treatise thereon, shewing the Alterations 
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 to the carrying out of the Provisions of the Act ; with Handy Eorms 
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 *'Mr. Eutlin devotes entire chapters to the consideration of WiUianas on Eoal Property, 
 
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 —Law Magazine, Fehruary, 1878. 
 
 ''A sensible and useful guide for the legal tyro." — Solicitors' Jownal, April 21, 1877, 
 
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 Mr. Butlin, we thinfe, has distanced all competitors. The volume before us contains 
 
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 and S. WARD, Solicitors. 12mo. 1878. 3s. 
 
 "No articled clerk should be without it." —Law Times, February 17, 1877. 
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 ARTICLES OF ASSOCIATION.— Palmer.— Fi'& "Conveyancing." 
 
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 '* It is a laborious work, a careful work, the work of a lawyer, and, beyoud comparison, 
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 AVERAGE. — Hopkins' Hand-Book on Average. — Third 
 
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 With the Rules, a Copious Index, and a Supplement of Decisions. 
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 BILLS OF EXCHANGE— Chitty on Bills of Exchange 
 and Promissory Notes, with references to 
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 '* The original work is brought down to date, and the latest casss are referred to and 
 
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 ings in the Chancery Division of the High 
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 " Jn the shape in which it now appears we have no doubt this edition will meet with a 
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 decessors." — Law Journal, December 30, 1876. 
 
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 thou^'h not expressly incorporated in the new enactments, are, by implication, left un- 
 touched by them, placed side hy side with the Judicature Acts and Rules of Court. 
 . . . . This new edition will maintain and enhance the high reputatioa deservedly 
 gained by the original vfork."—Law Magazine and Review, February, 1877. 
 
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 CHURCH AND CLERGY.— Phillimore.— Fide"BoclesiastiealLaw." 
 
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 Voet Commentarius ad Pandeetas, Translated 
 
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 By SIR ROLAJSTD KNYVET WILSON, Bart., of Lincoln's Inn, 
 
 Barrister-at-Law. Royal 8vo. 1876. Net \l. Is. 
 
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 1834. 11. is. 
 
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 COMMERCIAL LAW.— Levi's International Commercial 
 La"W. — Being the Principles of Mercantile Law of the following 
 and other Countiiea — viz. : England, Scotland, Ireland, British 
 India, British Colonies, Austria, Belgium, Brazil, Buenos Ayres, Den- 
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 Norway, Portugal, Prussia, Russia, Spain, Sweden, Switzerland, 
 United States, and Wiirtemburg. By LEONE LEVI, Esq., F.S.A., 
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 and Practice of Commerce at King's College, London, &c. Second 
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 ready.) lis. 
 
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 and is, moreover, gifted with the rare power of accurate condensation." — Solicitor^ Jownal. 
 
 ** To more advanced students, and to the practitioner, whether barrister or attoruey, we 
 
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 '* Smith's Manuals of Common Law and Equity must he resorted to as the open sesames 
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 COMMONS AND INCLOSURES.— Chambers' Digest of the 
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 Documents, Bye-Laws, Statutes and Cases. By G-EORG-E P. 
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 With Porms as settled by the Inclosure Commissioners. By G. 
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 COMPANY LAW.— nrfc "Joint Stocks." 
 
 COMPANIES, LIABILITIES OF PROMOTERS OF.— Finlason's 
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 Court of Common Pleas and the Court of Appeal, with the Judg- 
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 COMPANY PRECEDENTS.— Palmer.— Fide "Conveyancing." 
 
 CONSTITUTIONAL LAW.— Bo-wyer's Commentaries on 
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 CONTRACTS, — Addison on Contracts. — Being a Treatise on 
 the Law of Contracts. By C. G. ADDISON, Esq., Author of 
 the "Law of Torts." Seventh Edition. By L. W. CAVE, Esq., one 
 of Her Majesty's Counsel, Recorder of Lincoln. Royal 8vo. 
 
 1875. 1'- 18s- 
 
 "At present this is by far the best book upon the Law of Contract possessed by the 
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 of the Middle Temple, Barrister-at-Law. {In the press. ) 
 
 Pollock's Principles of Contract at Law and in 
 Equity ; being a Treatise on the General Principles relating to the 
 Validity of Agreements, with a special view to the comparison of 
 Law and Equity, and with references to the Indian Contract Act, 
 and occasionally to American and Foreign Law. Second Edition. 
 By FREDERICK POLLOCK, of Liuoobi's Inn, Esq., Barrister-at- 
 Law. (Nearly ready.) 
 The IiOrd Cliief Justice in his judgment in MeiropoUtan Railway Company v. B7'og- 
 Om and others, said. "The law Is well put by Mr. Frederick PoUock in his 
 very able and learned work on Contracts."— Z7ie Times, I'ebraary 19, 1877. 
 " He has sacceeded in writing a boolc on Contracts which the working lawyer will find 
 as nsefnl for reference as any of its predecessors, and which at the same time will ovo 
 the smdent what he will seek for in vain elsewhere, a complete rationale of tbo law. — 
 Law Maqazine and Beviae, August, 1876. .,,..., » i. « -. 
 "Mr Poliock's work onght, in our opinion, to take a high place among treatises of its 
 class The ' fusion of law and equity ' eo far as that fusion is possible, i8 in his pages an 
 accoinplislied fact."— Pan Jfa!i (?oze(<e, March 8, 1876. . . „ ,. 
 
 " A work which in our opinion, shows great ability, a discerning intellect, a compre- 
 hensive mind, and painstaking industry. The book ought to be a success. ' —Law Journal, 
 
 ""ihere is no part of the work that does not please us by the freshness of the style and 
 the ingenuity of the treatment. The author may be congratulated on having achieved a 
 martod success in a field where others before him have written well. "-S^ctoM Jowrnal, 
 
 ^""'smith's Law of Contracts.-By the late J. W. SMITH, 
 Esq. Author of "Leading Oases," &c. Sixth Edition. B. 
 VINCENT T. THOMPSON, Esq., Barrister-at-Law, 8vo. 1874. 16s. 
 
 » • All standard Law Wm'Jcs are Jcept in Stock in law calf and other bindings. 
 
8 STEVENS ANITauNS^ LAW PUBLICATIONS. 
 
 CONVEY ANCING.-Greenwood's Manual of Convey- 
 ancing. — A Manual of the Practice of Conveyancing, showing 
 the present Practice relating to the daily routine of Conveyancing 
 in Solicitors* Offices. To which are added Concise Common Perms 
 and Precedents in Conveyancing ; Conditions of Sale, Conveyances, 
 and all other Assurances in constant use. Fifth Edition. By 
 H. N, CAPEL, B.A., LL.B., Solicitor. Bemy 8vo. 1877. 15s. 
 "The information under these heads is just of that ordinary practical kind which is 
 learned from experience and is not to he gathered from treatises. . . A careiul study 
 of these pages would probably arm a diligent clerk with as much useful knowledge as he 
 ■ might otherwise take years of desultory questioning and observing to acquire." — Solicitors' 
 JournaL 
 
 *' The young solicitor will find this work almost invaluable, while the members of the 
 higher branch of the profession may refer to it with advantage. We have not met with 
 any book that furnishes bo simple a guide to the management of business entrusted to 
 articled cleikB/'Sheffield Post 
 
 Martin's Student's Conveyancer. — A Manual on the 
 
 Principles of Modem Conveyancing, illustrated and enforced by a 
 
 Collection of Precedents, accompanied by detailed Remarks, Part I, 
 
 Purchase Deeds. By THOMAS PKEDEKIC MARTIN, Solicitor. 
 
 DemySvo. 1877. 5s. 6d. 
 
 " We have no doubt that the student will find iu Mr. Martin's treatise a good guide to 
 
 the practical part of conveyancing." — Law Times, June 23, 1877. 
 
 *' It should be placed in the hands of every student." 
 
 Palmer's Company Precedents. — Conveyancing and 
 
 other Forms and Precedents relating to Companies' incorporated 
 
 under the Companies' Acts, 1862 and 1867. Arranged as follows : — 
 
 Agreements, Memoranda of Association, Articles of Association, 
 
 Kesolutions, Notices, Certificates, Provisional Orders of Board of 
 
 Trade, Debentures, Reconstruction, Amalgamation, Petitions, Orders. 
 
 With Copious Notes. By PPANOIS BEAUFORT PALMER, of 
 
 the Inner Temple, Esq., Barrister-at-Law. Demy 8vo. 1877. \l. 5s. 
 
 " There had never, to our knowledge, been any attempt to collect and edit a body of 
 
 Forms and Precedents excluaivelygrelating to the foi'mation, working and winding-up of 
 
 companies. This task Mr. Palmer has taken in hand, and we are glad to say with much 
 
 success .... The information contained in the 650 pages of the volume is rendered 
 
 easily acceseible by a good and full index. The author has evidently not been sparing- of 
 
 labour, and the fruits of his exertions are now before the legal profession in a work of great 
 
 practical utility." — Law Magazine, February, 1878. 
 
 *' To those concerned in getting up companies, the assistance given by Mr, Palmer 
 must be very valuable, because he does not confine himself to bare precedente, but by 
 intelligent and learned commentary lights up, as it were, each step tliat he takes. The 
 volumebeforeusisnot, therefore a book of precedents merely, but, in a greater or less de- 
 gree, a treatise on certain portions of the Companies' Acts of 1862 and 1867. There is an 
 elaborate index, and the work is one which must commend itself to the profession." — 
 Law Times, June 9, 1877. 
 
 "The precedents are as a rule exceedingly well drafted, and adapted to companies for 
 almost every conceivable object. So especially are the forms of memoranda aod articles 
 of association ; and these will be found extremely sei'viceable to the conveyancer. . . 
 All the notes have been elaborated with a thoroughly scientific knowledge of the 
 principles of company law, as well as with copious references to the cases substantiating 
 the principles. ... We venture to predict that his notes will be found of great utility 
 in guiding opinions on many complicated questions of law and practice." — JUiw Journal, 
 June 23, 1877. 
 
 Prideaux's Precedents in Conveyancing.— Witb 
 Dissertations on its Law and Practice. Eighth Edition, By 
 EKEDERICK PKIDEAUX, late Professor of Real and Personal 
 
 Property to the Inns of Court, and JOHN WHITCOMBE, Esqrs., 
 Barristers -at- Law. 2 vols. Royal 8vo. 1876. 3^. 10s, 
 
 "Prideaux has become an indispensable part of the Conveyancer's library The 
 
 new edition has been edited with a care and accuracy of which we can hardly speak too 
 hlf^iily"— Solicitors' Journal, October 14^ 1876. 
 
 " We really can hardly imagine a conveyancer being required to prepare any instru- 
 ment which he will not find sketched out in the work under notice. .... We may 
 al9o be allowed to add our tribute of praise to these Precedents for their conciseness, 
 perspicuity, precision, and perfection of drafting." — Law Journal. September 23, 1876. 
 
 *^* A U standa/)'d Law Worhs arc kept in Stock, in laio calf and other bindings. 
 
119, CHANCEEY LANE, LONDON, W.G. 
 
 CONVICTIONS.— Paley on Summary Convictions.— 
 Eiftk Edition. By H. T. J. MACNAMAEA, Esq., Barrister-at- 
 Law. 8to. 1S66. 11. Is. 
 
 Stone. — Vide "Petty Sessions." 
 
 COPYRICHT.-Pliillips' La^v of CopyrigVit.— The Law of 
 Copyriglit in "Works of Literature and Art, and in the Appli- 
 cation of Designs. With the Statxites relating thereto. By 
 CHARLES PALMEE PHILLIPS, of Lincoln's Inn, Esq,, 
 Barrister-at-Law. 8vo. 1863. 12s. 
 
 " Mr. Phillips' "work is at once an able laiv-book and a lucid treatise, in a popular forms 
 
 on the rights of authors and artiste." — Jurist. 
 
 CORONERS.— Jervis on the Office and Duties of 
 Coroners. — "With Eorms and Precedents. Third Edition. By 
 C. AV. LOVESY, Esq., Puisne Judge, British Guiana. 12mo. 
 1866. 12.'. 
 
 COSTS — Care-w's Precedents of Bills of Costs, for 
 obtaining Grants of Probate and Letters of Administration in the 
 Principal Eegistry of the Court of Probate. 1869. 6s. 
 
 Morgan and Davey's Treatise on Costs in 
 Chancery.— By GEORGE OSBORNE MORGAN, M.P., 
 one of Her Majesty's Counsel, late Stowell Fellow of University 
 CoUege, Oxford, and Eldon Scholar ; and HORACE DAVEY, 
 M.A., one of Her Majesty's Counsel, late Eellow of University 
 College, Oxford, and Eldon Scholar. "With ai Appendix, containing 
 Forms and Precedents of Bills of Costs. 8vo. 1865. 11. Is. 
 
 Morris' Solicitors' Fees and Court Fees, under 
 the Judicature Acts.— "With Copious Index. By "WILLIAM 
 MORRIS, Solicitor. 12mo. 1876. 4s. 
 
 Scott's Costs in the Superior Courts of Com- 
 mon La^A'■, and Probate and Divorce, and in Conveyancing ; 
 also in Bankruptcy (Act of 1869). Proceedings in the Crown Office, 
 on Circuit and at Sessions, and in the County Court, &c. "With an 
 Appendix, containing Costa under Parliamentary Elections Act, 
 1863. By JOHN SCOTT, of the Inner Temple, Esq., Barrister-at- 
 Law. Third Edition. Royal 12mo. 1868-73. 11. is. 
 " Mr Scott's work is well known to the profession. It is an extensive collection of 
 taxed bills of costs in all branches of practice, supplied to him probably by the taxing 
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 tion." — Lavj Times, 
 
 Scott's Costs under the Judicature Acts, 187S 
 and 187S ; containing the " Additional Rules " and Scale of 
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 and Divorce Divisions of the High Court of 
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 WEBSTER, Esq., of the Taxing Office, House of Commons, and of 
 
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 Third Edition. Post 8vo. 1867. 20s. 
 
 ■' The object of this work is to give the scale of costs allowed to Solicitors in relation 
 
 to private bills before Parliament, the conduct of Election Petitions and Appeal Causes, 
 
 and the allowance to Witnesses. The connection of the author with the Taxing OfBce 
 
 of the House of Commons c:ive3 authority to the work."— /Soiicawj' Jmernal. 
 
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10 STEVENS AND SONS' LAW PXJBLICATIONS. 
 
 COUNTr COURTS The Consolidated County Court 
 
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 Pitt-Lewis' County Court Practice. — A Complete 
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 sometime Holder of the Studentships of the Pour Inns of Court. , 
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 CRIMINAL LAW,— Arehbold's Pleading and Evidence 
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 JOHN JEBVIS, Esq. (late Lord Chief Justice of Her Majesty's 
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 Cole on Criminal Informations and Quo "War- 
 ranto. — By W. K. COLE, Esq., Barrister-at-Law. 12mo. 1843. 
 
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 Greaves' Criminal Law Consolidation and 
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 Roscoe's Digest of the Law of Evidence in 
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 Esq., Barrister-at-Law. Royall2mo. 1878. (Justready.) ll.lls.6d, 
 
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 nors.— Eifth Edition. By SAMUEL PRENTICE, Esq., one of 
 Her Majesty's Counsel. 3 vols. Royal 8vo. 1877. U. 15s. 6rf. 
 
 This treatise is so much more ccpious than any other upon all the subjects contained 
 in it, that it affords by far the best means of ac(iuiring a knowledge of the Criminal Law 
 in general, or of any offence in particular ; so that it will be found peculiarly useful as 
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 "'What better Digest of Criminal Law could we possibly hope for than 'Russell on 
 Crimes ?' " — Sir James FUzjames Stephen's Speech on Codification. 
 
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 crireful hand of Mr. Prentice, fully reached the standard attained to by the preceding 
 editions." — LawJoumul^ January 27, 1877. 
 
 " No more trustworthy authority, or more exhaustive expositor than ' Russell ' can be 
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 1876. 
 
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 DECREES.— Seton.— ricfo "Equity." 
 
 DIARY — Lawyer's Companion (The), Diary, and Law 
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 panies, Justices, Merchants, Estate Agents, Auctioneers, &c., &o. 
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 The Diary, printed on JO YNSOJfS paper of supenor quality, 
 
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 compiled specially for the coming year." — Law Journal. 
 
 " The present issue contains all the information which could be looked for iu such a 
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 "The 'Lawyer's Companion' is, indeed, what it is called, for it combines everything 
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 DICTIONARY — Wharton's Law Lexicon.— A Dictionary of 
 Jurisprudence, explaining the Technical Words and Phrases employed 
 in the several Departments of English Law^ including the various 
 Legal Terms used in Commercial Transactions. Together with an 
 Explanatory as well as Literal Translation of the Latin Maxims 
 contained in the Writings of the Ancient and Modem Commentators. 
 Sixth Edition. Enlarged and revised in accordance with the 
 Judicature Acta, by J. SHIE.ESS WILL, of the Middle Temple, 
 Esq. , Barrister-at-Law. Super royal 8vo. 1876. 21. 2s. 
 
 "As a work of reference for the library, the handsome and elaborate edition of 
 ' Wharton's Law Lexicon ' which Mr. Shiress Will has produced, must supersede all former 
 issues of that well-known work." — Law Magazine and Review, August, 1876. 
 
 ** Kg law library is complete without a Law dictionary or law lexicon. To the practi- 
 tioner it is always useful to have at band a book where, in a small compass, he can find 
 an explanation of terms of inJrequent occurrence, or obtain a reference to statutes on 
 most subjects, or to books wherein particular subjects are treated of at full length. To the 
 student it is almost indispensable." [Continued. 
 
 *»* All standard Law WorJcs a/re Tcept in StocJc, in laio calf and other bindings, 
 
 B 2 
 
12 STEVENS AND SONS' LAW PUBLICATIONS. 
 
 DICTIONARY.— Wharton's Law Lexieon—omfmaeii. 
 
 "Wg have simply to notice that the ssme ability and accuracy mark the present 
 edition which were couspicuous in its predecessor. Mr. Will has done all that was ren- 
 dered necessary by the Judicature Acts, in the shape of incorporation and elimination, 
 and has brought the Statute Law down to the date of publication." — Law TimeSy March 4, 
 18Y6, 
 
 " Wharton's perennial Law Lexicon has just been adapted to the new condition of the 
 Law, brought about by the Judicature Act. The task of revision has been ably per- 
 formed by Mr. Shiress Will." — Saturday Review, April 15, 1876. 
 
 DIGESTS.— Bedford.— Fi& "Examination Guides." 
 Chamber's- W& " Public Health." 
 
 Chitty's Equity Index. — Chitty'e Index to aU the Keported 
 Cases, and Statutes, in or relating to the Principles, Pleading, and 
 Practice of Equity and Bankruptcy, in the several Courts of Equity 
 in England and Ireland, the Privy Council, and the House of Lords, 
 from the earliest period. Third Edition. By J. MACAULAY, 
 Esq., Barrister-at-Lavif. i vols. Eoyal 8vo. 1853. 72. 7s. 
 
 Fisher's Digest of the Reported Cases deter- 
 mined in the House of Lords and Privy Council, and in the 
 Courts of Common Law, Divorce, Probate, Admiralty and Bank- 
 ruptcy, from Michaelmas Term, 1756, to Hilary Term, 1870 ; 
 with References to the Statutes and Rules of Court. Founded on 
 the Analytical Digest by Harrison, and adapted to the present 
 practice of the Law. By E. A. EISHBE, Esq., Judge of the 
 County Courts of Bristol and ^ Wells. Five large volumes, royal 
 Svo. 1870. m. 12s. 
 
 {Continued Annually.) 
 ' Mr. Fisher's Digest is a wonderful work. It is a miracle of human industry," — Mr, 
 Justice WiUes. 
 
 " The fact is, that we have already the best of all possible digests. I do not refer merely 
 to the ■works which pass under that title — though, I confess, I think it would be very 
 difficult to improve upon Mr. Fisher's 'Common Law Digest' — I refer te the innumerable 
 text books of every branch of the law. What better digest of crimmal law could we 
 possibly hope for than 'Kussell on Crimes,' and the current Koscoe and Arclibold, to say 
 nothing of the title, ' Criminal Law,* in 'Fisher's Digent'" — Sir James Fitzjanws Stephen^ 
 Q. C.,in his Address totheLaw Amendment SocietvonCodiJkationinlndiaandHngland. Session 
 1872-3. 
 
 Leake. — Vide "Eeal Property.'' 
 
 Notanda Digest in La^w, Equity, Bankruptcy 
 Admiralty, Divorce, and Probate Cases. — By 
 H. TUDOR BODDAM, of the Inner Temple, and HARRY 
 GREENWOOD, of Lincoln's Inn, Esqrs., Barristers-at-Law. The 
 Notanda Digest, from the commencement, October, 1862, to 
 December, 1876. In 1 volume, half-bound. Net, 31. 3s. 
 
 ' Ditto, in 2 volumes, half-bound. Net, SI. 10s. 
 
 Ditto, Third Series, 1873 to 1876 inclusive, half-bound. Net, 11. lis. 6d. 
 
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 Ditto, ditto, for 1878, Plain Copy and Two Indexes, or Adhesive Copy 
 for insertion in Text-Books. Annual Subscription, payable in 
 advance. {No. 1 nmo ready.) Net,2\s. 
 
 *«* The numbers are issued regularly every alternate month. 
 Each number will contain a concise analysis of every case reported 
 in the Law Repwts, Lain Journal, Weehly Reporter, Law Times, and 
 the Irish Law Reports, up to and including the cases contained in the 
 parts for the current month, with references to Text-books, Statutes, 
 and the Law Reports Consolidated Digest. An alphabetical 
 INDEX of the subjects contained in each nfmbbk will form a new 
 feature in this series. 
 
 *f* All standard Law ^7crk^ are kept in Stock, in law calf and otMr bindings. 
 
119, CHANCERY LANE, LONDON, W.C. 13 
 
 DIGESTS.— Confinued. 
 
 Pollock. — Vide "Partnership." 
 
 Roscoe's. — Fide " Criminal L.iw " and "Nisi Prius." 
 
 DISCOVERY.— Hare's Treatise on the Discovery of 
 Evidence. — Second Edition. Adapted to the Procedure in the 
 High Court of Justice, with Addenda, containing all the Reported 
 Cases to the end of 1876. By SHERLOCK HARE, Barrister-at- 
 Law. PositSvo. 1877. 12s. 
 
 " The book is a uselul contributiou to our text-books on praclice The 
 
 eciitor has incorporated his alterations willi the original, so os to spare the reader the 
 labour of combining for himself each statement with its necessary supplement, and the 
 work remains concise and complete." — Solicitors' Journal, February 19, 1876. 
 
 " We have read his work with considerable attention and interest, and we can speak in 
 terms of cordial praise of the manner in which the new procedure has been worked into 
 the old material. Not that the old material has been allowed to remain unimproved. In 
 many instances necessary changes and amendments have been made, evincing a thoi-ough 
 appreciation of- the necessities of the case on the nart of the learned editor. .... 
 All the sections and orders of the new legislation are referred to in the text, a synopsis 
 of recent cases is given, and a good index completes the volume." — Law Tivies, Januarys, 
 1876. 
 
 Seton.— Vide "Equity." 
 
 DIVORCE. — Browne's Treatise on the Principles 
 
 and Practice of the Court for Divorce and 
 
 Matrimonial Causes: — With the Statutes, Rules. Pees, 
 
 and Forms relating thereto. Third Edition. By GEORGE 
 
 BROWNE, Esq., B.A., of the Inner Temple, Barrister-at-Law, 
 
 Recorder of Ludlow. 8vo. 1876. II. 4s. 
 
 " We think this Edition of Mr. Browne's Treatise has been edited witjh commendable 
 
 care. Tliebook, asitnowstands, is a clear, practical, and, so far as we have been able to 
 
 test it, accurate exposiiiou of divorce law and procedure." — Solicitors' Journal, April 22, 187G 
 
 DOMICIL.— Phillimore's (Sir R.) Law of Domicil.— Svo. 
 1847. 
 
 DUTCH LAW.— Vanderlinden's Institutes of the Laws 
 of Holland.— Svo. 1828. 1?. 18s. 
 
 EASEMENTS.— Goddard's Treatise on the Law of 
 
 Easements.— By JOHN LEYBOURN GODDARD, of the 
 
 Middle Temple, Esq., Barrister-at-Law. Second Edition. Demy 
 
 Svo. 1877. , , , . 16s. 
 
 " The book is invaluable : where the cases are silent the author has taken pains to 
 
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 " Nowhere has the subject been treated so exhaustively, and, we may add, so scientm- 
 
 cally, as by Mr. Goddard. We recommend it to the most careful study of the law student 
 
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 "Woolrych.— Fide "Lights." 
 ECCLESIASTICAL. — Finlason's Folkestone Ritual 
 
 Case. The Judgment of the Judicial Committee in the Folkestone 
 
 Ritual Case, with an Historical Introduction and brief Notes. By 
 W F FINLASON, of the Middle Temple, Esq., Barrister-at-Law. 
 8vo. 'l877. ^''*' 2s. 6d. 
 
 Phillimore's (Sir R.) Ecclesiastical Law.— The 
 Ecclesiastical Law of the Chm?oh of England. With Supplement, 
 containing the Statutes and Decisions to end of 1875. By Sie 
 ROBERT PHILLIMORE, D.C.L., Official Principal of the Arches 
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 ELECTIONS.— FitzGerald.— Fide " BaUot." 
 
 Rogers on Elections, Registration, and Election 
 
 Agency. — With an Appendix of Statutes and Eorms. Twelfth 
 
 Edition. By E. S. P. WOLEBESTAN, of the Inner Temple, Esq., 
 
 Barrister-at-Law. 12mo. 1876. 11. lOs'. 
 
 "Tho book maintainB its reputation as a well an'anged magazineof all the authorities on 
 
 the Bnbject." — Law Journal, August 19, 1876. 
 
 *'Mr. Wolferstan has added a new chapter on election agency, which contains a care- 
 ful and valuable digest of the decisions and dicta on this thorny snhject."— Solicitors' 
 Journal, October 28, 1876. 
 
 ENGLAND, LAWS OF,— Bo-wyer.— Fsdc " Constitutional Law." 
 Broom and Hadley.— Fide "Commentaries." 
 Syms' Code of English Law (Prinoiplea and Practice) 
 for handy reference in a Solicitor's office. By F. R. SYMS, Solicitor. 
 12mo. 1870. 16s. 
 
 EQUITY, end Tide CHANCERY. 
 
 Seton's Forms of Decrees, Judgments, and 
 Orders in the High Court of Justice and Courts 
 of Appeal, having especial reference to the Chancery Division, 
 with Practical Notes. Eourth Edition. By E. H. LEACH, Esq., 
 Senior Eegistrar of the Court of Chancery ; F. C A. WILLIAMS, 
 of the Inner Temple, Esq. ; and H. W. MAY, of Lincoln's Inn, 
 Esq., Barristers-at-Law. In 2 vols. Vol.1. EoyalSvo. 1877. 11. lOa. 
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 Interpleader ; Issues ; Referees and Arbitration Keceivers ; Ti-ustees (including 'Tmstees 
 Act) ; Charities ; Orders affecting Solicitors; and Taxation of Bills of Costs, Ac, &e. 
 
 ''Cannot fail to commend itself to practitioners. Nothing need be said as to the 
 value of the work, which is one of settled authority, and -we have only to congratulate 
 the profession upon the fact that this edition comes out under circumstances peculiarly 
 calculated to enhance its value." — Law Times, February 24, 1877. 
 
 •' The imprcBsiou derived from our perusal of the book is that it represents the result 
 of conBcientio us and intelligent labour on the part of the editors, and we think it deserves, 
 and will obtain, the confidence of the profession." — SoUoUors' Journal, April 7, 1877. 
 {Vol. II. in tlie press.) 
 Smith's Manual of Equity Jurisprudence.- 
 A Manual of Equity Jurisprudence for Practitioners and Students, 
 founded on the Works of Story, Spence, and other writers, and on 
 more than a thousand subsequent cases, comprising the Eundamental 
 Principles and the points of Equity usually occurring in General 
 Practice. By JOSIAH W. SMITH, B.C.L., Q.O., Judge of County 
 Courts. Twelfth Edition. 12mo. 1878. (Just ready.) 12s. 6d. 
 " To sum up all in a word, for the student and the jurisconsult, the Manual is the nearest 
 approach to an equity code that the present literature of the law is able to furnish "—Law 
 Timei. 
 " It will be found as useful to the practitioner as to the student."— &>;fc««»'(' Journal 
 " Mr. Smith's Manual has fairly won for itself the position of a standard work."— Jarfaf' 
 " It retains and that deservedly, the reverence of both examiners and students."— 
 Di'. EoLLiT's Lecture on a Course of Beading. 
 
 "There is no disguising the truth ; the proper mode to use this book is to learn its pages 
 by heart. — Law Magazine and Review. ^ 
 
 Smith's (Sidney) Principles of Equity.— 8to. 1856. 
 
 11 6s 
 EVIDENCE.— Archtaold.— Fide " Criminal." 
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 EXECUTORS.— "Williams' Lav^r of Executors and Ad- 
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 Esq., Barrister-at-Law. 2 vols. Koyal 8vo. 1873. Zl. ICs. 
 
 FACTORY ACTS. — Notcutt's Factory and "Workshop 
 J^QtS. — Comprising aU the Laws now in force (including the 
 Act of 1874) for the regulation of Labour in Factories and 
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 FARM, LAW OF.— Addison ; Cooke.— Fwfe "Agricultural Law." 
 
 Dixon's Law of the Farm.— A Treatise on the Law of 
 
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 Inner Temple, Esq., Barrister-at-Law. (/« the press.) 
 
 FIXTURES. -Amos and Ferard on Fixtures.— Second 
 
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 FORMS— Ghitty's Forms. Eleventh Edition. By THOS. CHITTY 
 andTHOS. WILLES CHITTY, Esqrs. (In preparation.) 
 
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 Court of Justice and on Appeal therefrom ; 
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 Holt Scholar of Gray's Inn. (In the press.) 
 
 Moore's Solicitor's Book of Practical Forms.— 
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 HIGHWAYS.-Bateman's General High^A^ay Acts.— 
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 INCLOSURES.— FitZe "Commons." 
 
 INDIAN LAW— Montriou ; the Hindu "Will of BengaL 
 
 With an Introductory Essay, &o. Royal 8vo. 1870. Net, \l. 10«. 
 
 Norton's Leading Cases on the Hindu Law of 
 
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 INFANTS.— Ebsworth's Law of Infants.— A Handy Book 
 of the Law of Infants. By JOHN EBSWOE.TH, Esq., SoUcitor. 
 12mo. 1861. 33. 
 
 Forsyth's Lavsr relating to the Custody of 
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 INJUNCTIONS.— Seton.— 7irfc" Equity." 
 
 INSURANCE.— Arnould on the La-w of Marine Insu- 
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 Barrister-at-Law. 2 vols. Eoyal 8vo. 1877. Zl. 
 
 "As a text book, Arnould is now all the practitioner cau -want, and we congratnlate 
 
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 Hopkins' Manual of Marine Insurance.- 8vo. 
 1867. 18s. 
 
 Lowndes. — Tide "Average." 
 INTERNATIONAL LAW — Amos' Lectures on Inter- 
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 the Inner Temple, Barrister-at-Law ; Professor of Jurisprudence 
 (including International Law) to the Inns of Cour^ ; Professor of 
 Jurisprudence in University College, London. Iloyal8vo. 1874. lOs.Brf. 
 Kent's International Law. — Kent's Commentary on 
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 the present -time. Crown Svo. 1878. (^Just ready.) 10s. 6d. 
 
 " Dr. Abdy has done all Law Students a great service in presenting that portion of 
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 large, diffuse, nor expensive." 
 
 *' Altogether i)r. Abdy has performed his task in a manner worthy of his reputation. 
 His book will be useful not only to Lawyers and Law Students, for whom it was primarily 
 intended, but also for laymen. It is well worth the study of every member of an enlightened 
 .and civilized community." — Solicitors' Journal. 
 *f* All standard Law Works are Icpt in Siocl:, in law calf and other bindings. 
 
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 INTERNATIONAL LPl\N -Continued. 
 
 Levi's International Conamercial Law.— Being the 
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 — viz._ : England, Ireland, Scotland, British India, British Colonies, 
 Austria, Belgium, Brazil, Buenos Ayres, Denmark, ITranoe, Germany, 
 Greece, Hans Towns, Italy, Netherlands, Norway, Portugal, Prussia, 
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 By LEONE LEVI, Esq., P.S.A., E.S.S., of Lincoln's Inn, Barrister- 
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 1863. II 15s. 
 
 Prize Essays on International La>Ar— By A. P. 
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 tion by His ExceHency DON AKTURO DE MARCOARTU, 
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 Vattel's Law of Nations.— By JOSEPH CHITTY, Esq. 
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 Wheaton's Elements of International Law; 
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 and Treaties, bringing the work down to the present time. By 
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 INTESTATE SUCCESSIONS —Colin's Essay on Intestate 
 Successions. — According to the Trench Code. By BAR- 
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 1876. 6s. 
 
 " A very intelligent essay." — 'Law TVnjej, Febniary 24, 1 877. 
 
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 By SiE HENRY THRING, K.C.B., The Parliamentary Counsel. 
 Third Edition. By GERALD A. R. FITZGERALD, of Lincoln's 
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 Oxford. 12mo. 1875. 11. 
 
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 well-known Parliamentary counsel. Sir Henry Thring, is naturally the highest authority 
 
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 JUDGMENTS. — Pask's Judgments, Executions, and 
 Crown Debts. — The Judgments Law Amendment Acts 
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18 STEVENS AND SONS* LAW PUBLICATIONS. 
 
 JUDGMENTS.— Cton*«n««'^. 
 
 Seton.— Fzffe "Equity." 
 JUDICATURE ACTS.— Wilson's Supreme Court of 
 Judicature Acts, Appellate Jurisdiction Act, 
 1876, Rules of Court and Forms. With other Acts, 
 Orders, Rules and Begulations relating to the Supreme Court of 
 Justice. With Practical Notes and a Copious Index, forming a 
 Complete G-uide to the New Peactice. Second Edition. By 
 ARTHUK WILSON, of the Inner Temple, Esq., Barrister-at-Law . 
 (Assisted by HAREY GREENWOOD, of Lincoln's Inn, Barrister- 
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 Royal 12mo. 1878. {pp. 726.) ' 18s. 
 
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 PREFACE TO THE SECOND EDITION. 
 In the present edition, the general arrangement adopted in the former edition ia pre- 
 served. 
 
 The several Acts, Bodies of Rules, Orders in Council, and other authoritative documents 
 issued since the date of the former edition, are printed in the present. The Rules of Court 
 suhsequeut to the Act of 1875 are incorporated with those contained in the Schedule to 
 that Act. 
 
 All the more important decisions upon the construction of the Acta and Rules down to 
 the end of the Michaelmas Sittinga, 1877, will, I believe, be found noticed with some of 
 later date. 
 
 Many minor typographical changes have heen made in this edition, which will, I hope, 
 be found to increase its convenience; in use. Italic type has been used throughout the 
 book to indicate repealed mattei*. 
 
 Ail the Rules of Court, both those in the Schedule and those of later date, have been 
 issued without marginal notes. I have ventured to add short marginal notes to them. 
 
 I cannot too strongly express my obligations to Mr. Biddle, of the Master of the Roll's 
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 revised by him ; and I have throughout received from him very valuable suggestions. He 
 has also relieved me of much labour by revising and annotating the forms annneied to 
 the rules, and in many other ways. 
 
 I wish particularly to notice the Table of Cases, which Mr. Biddle has prepared. The 
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 The Law Reports are commonly cited where the case has appeared in that series. To 
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 The reconstruction of the Index, rendered necessary by the large amount of new 
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 Chancery Bar. 
 
 The Introduction which appeared in the former edition has been omitted in this. 
 That Introduction was intended to assist the reader to become acquainted with a system 
 then wholly new. The system is no longer new or unknown, so that there is not the same 
 necessity for such an introduction. The omission contributes to secure an object which 
 I have throughout had in view, the keeping down the bulk of the book. 
 
 Opinions of the Press on the First Edition : — 
 
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 The result of a very careful examination of Mr. Wilson's book is that it ia executed 
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 and adapting the new practice and procedure." — Solicitors' Journal. 
 
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 JUSTICE OF THE PEACE.-Continued. 
 
 Esq. Vol. III. coutaioing titles " Indictment " to " Promissory 
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 taining titles "Quo Warranto" to "Wreck;" by JOHN BLOSSETT 
 MAULE, Esq., Q.C., Recorder of Leeds. Eive vols. 8to. 1869. 
 
 71. Is. 
 Since the publication in 1845 of the formor Edition of Burn^s Justice of the Peace and 
 Parish Officer the whole range of the Law which Magistrates had to administer has 
 undergone more or less alteration, and, indeed, the time which has elapsed since that 
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 selves : so that to very many of the Gentlemen now composing the body of Justices the 
 Encyclopedic Work of Burn must be, if not entirely unlmown, at least unfamiliar as a 
 book of reference. 
 
 Paley. — Vide "Convictions." 
 
 Stone. — Vide " Petty Sessions." 
 
 JUSTINIAN, INSTITUTES OF.-Cumin.— Fiiic "Civil Law." 
 Greene. — Vide "Roman Law." 
 
 Mears. — Vide "Roman Law.'' 
 Voet.— Tide "CivU Law." 
 
 LAND DRAINAGE.— Thring's Land Drainage Act.— With 
 an Introduction, Practical Notes, an Appendix of Statutes relating 
 to Drainage, and Forms. By THEODORE THRING, Esq., 
 Barrister-at-Law. 12mo. 1861. 7s. 
 
 LAND TAX — Bourdin's Land Tax. — An Exposition of the 
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 LANDLORD AND TENANT.— "Woodfall's Law of Landlord 
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 Propositions, and Tables of certain Customs of the Country. By J. - 
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 LAW, GUIDE TO A Guide to the Law for General 
 
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 LAW tlST —Conlinued. 
 
 cers Practising in England under Certificates obtained in Scotland, 
 &C., &o., and a variety of other useful matters so far as relates to 
 Special Pleaders, Draftsmen, Conveyancers, Solicitors, Proctors and 
 Notaries. Compiled by WILLIAM HENRY COUSINS, of the 
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 LAW REPORTS. — A large Stock of second hand Eeports. Estimates 
 
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 LAWYER'S COMPANION.— 7ic?e "Diary." 
 
 LEADING CASES.— Haynes' Students' Leading Cases 
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 By JOHN ir. HAYNES, Solicitor. Author of "The Student's 
 Statutes." {In the press.) 
 
 LEGACIES. — Roper's Treatise on the Law of Lega- 
 cies.-Eoiu^h Edition. By H. H. WHITE. 2 vols. Royal 8 vo. 
 1847. 3?. 3s. 
 
 LEXICON.— nrfe "Dictionary." 
 
 LICENSING.— Lely and Foulkes' Licensing Acts, 
 1828, 1869, 1872, and 1874; Containing the Law of the 
 Sale of Liquors by Retail and the Management of Licensed Houses ; 
 with Notes to the Acts, a Summary of the Law, and an Appendix 
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 FOULKLES, Esqrs., Barristers-at-Law. Royal 12mo. 1874. 8s. 
 ** Messrs. Lely and Foulkes's plan is to print in full the principal Acts, and to inter- 
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 guishing thera by brackets and marginal notes These notes are usually 
 
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 — Solicitors' Journal. 
 
 LIEN. — Cross' Treatise on the La-w of Lien and 
 Stoppage in Transitu. — 8vo. 1840. 16s. 
 
 LIGHTS — ^Woolrych's Practical Treatise on the La^w 
 of Window Lights.— Second Edition. 12mo. 1864. 6s. 
 LOCAL GOVERNMENT.— Ficfe "PubHc Health." 
 LUNACY. — Elmer's Practice in Lunacy. — The Practice in 
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 Sixth Edition. By JOSEPH ELMER, of the Ofiice of the 
 Masters in Lunacy. Svo. 1877. 21s. 
 
 MAGISTERIAL LAW.— Burn.— Fide " Justice of Peace." 
 Leeming and Cross. — Vide " Quarter Sessions." 
 Paley. — Vide "Convictions." 
 Pritchard. — Vide " Quarter Sessions." 
 Stone. — Vide " Petty Sessions." 
 MAINTENANCE AND CHAMPERTY. — Tapp on Main- 
 tenance and Channperty. — An Inquiry into the present 
 state of the Law of Maintenance and Champerty, principally as 
 affecting Contracts. By WM. JOHN TAPP, of Lincoln's Inn, Esq. , 
 Barrister-at-Law. 12mo. 1861. 4s. 6d. 
 
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 MANDAMUS. — Tapping on Mandamus. — The Law and 
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 both in England and Ireland. Royal 8vo. 1848. 11. Is, 
 
 MARINE INSURANCE — Vide " Insurance." 
 
 MARTIAL LAW — Flnlason's Treatise on Martial Law, 
 as aUowed by the Law of England in time of BebeUion ; with 
 Practical Illustrations drawn from the Official Documents in the 
 Jamaica Case, and the Evidence taken by the Koyal Commission of 
 Enquiry, with Comments Constitutional and Legal. 3y W. E. 
 EINLASON, Esq., Baixister-at-Law. 8vo. 1866. 12s. 
 
 MERCANTILE LAW.— Boyd.— 7icZc "Shipping." 
 
 Brooke. — Vide "Notary."' 
 
 Russell. — Vide "Agency."' 
 
 Smith's Mercantile La^V. — A Compendium of Mercantile 
 Law. By the late JOHN WILLIAM SMITH, Esq. Ninth 
 Edition. By G. M. DOWDESWELL, of the Inner Temple, Esq., 
 one of Her Majesty's Counsel. Eoyal 8vo. 1877. 11. 18s. 
 
 "We can safely say that, to the practising Solicitor, few books will be found more 
 useful than the ninth e'dition of ' Smith's Mercantile Law.'"— iaw Magazine, Nov. 1877. 
 
 Tudor's Selection of Leading Cases on Mercan- 
 tile and Maritime LaAAr.— With Notes. By O. D. TUDOR, 
 Esq., Barrister-at-Law. Second Edition. Royal 8vo. 1868. 11. 18s'. 
 
 METROPOLIS BUILDING ACTS -Woolrych's Metropolis 
 Building Acts, together with such Clauses of the Metropolis 
 Management Acts, 1855 and 1862, and other Acts, as more par- 
 ticularly relate to the Buildings Acts, vrith Notes, Explanatory of 
 the Sections and of the Architectural Terms contained therein 
 Second Edition. By NOEL H. PATERSON, M.A., of the Middle 
 Temple, Esq., Barrister-at-Law. 12mo. 1877. 8s. 6d. 
 
 MINES.— Rogers' La^M' relating to Mines, Minerals, 
 and Quarries in Great Britain and Ireland; 
 
 with a Summary of the Laws of Foreign States and Practical 
 Directions for obtaining Government Grants to work Foreign Mines. 
 Second Edition Enlarged. By ARUNDEL ROGERS, Esq., Bar- 
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 "Most comprelieusive and complete."— iaw Times, June 17, 1876. 
 
 "Although issued as a Second Edition, the work appears to have been almost entirely 
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 work of legal reference."— T7te Minirig Journal, May 18, 1876. 
 
 MORTGAGE.- Coote's Treatise on the La^v of Mort- 
 gage.— Third Edition. Royal 8vo. 1850. JS'et, 11. 
 
 MORTMAIN. — Ra^wlinson's Notes on the Mortmain 
 Acts ; shewing their operation on Gifts, Devises and Bequests for 
 Charitable Uses. Designed for the Use of Solicitors in Adminstra- 
 tion Suits in the Chancery Division of the High Court of Justice 
 By JAMES RAWLINSON, Solicitor. Demy 8vo. 1877. Inter- 
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 MUNICIPAL ELECT IONS.- F^e "Ballot." 
 
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 NAVY. — ThPing's Criminal Law of the Navy, with an 
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 the Rules of Evidence, and an Appendix comprising the Naval 
 Discipline Act and Practical Forms. Second Edition. By 
 THEODORE THRINO, of the Middle Temple, Barrister-at-Law, 
 late Commissioner of Bankruptcy at Liverpool, and C. E. G-IFFORD, 
 Assistant-Paymaster, Royal Navy. 12mo. 1877. (Just ready.) 12s. Qd. 
 "A full series of forms of warrants, minutes, charges, &c., and a good Index, complete 
 the utility of a work whicli should be in the hands of all who have to deal with the regu- 
 lating and governing of the Fleet." — Law Magazine^ February, 1878, 
 
 " In the new edition, the procedure, naval regulations, forms, and all matters con- 
 nected "with the practical administration of the law have been classified and arranged by 
 Mr. Gifford, so that the work is in every way useful, complete, and up to date." — Naval 
 mulMuitai'y Gazette, December 12, 1877. 
 
 NISI PRIUS.— Roscoe's Digest of the Law of Evidence 
 
 on the Trial of Actions at Nisi Prius. — Thirteenth 
 
 Edition. By JOHN DAY, one of Her Majesty's Counsel, and 
 
 MAURICE POWELL, Barrister-at-Law. Royal 12mo. 1875. 
 
 (Bound in one thicJc volume calf or circuit, 5s. 6d., or in two convenient vols. 
 
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 *' The work itself has long ago won a position altogether unique, and in the hands of 
 
 its present editors thei-e is no fear that the position will be lost." — Law Journal, July 10, 1875 
 
 Selwyn's Abridgment of the Law of Nisi 
 Prius.— Thirteenth Edi«on. By DAVID KEANE, Q.C., 
 Recorder of Bedford, ajid CHARLES T. SMITH, M.A., one of the 
 Judges of the Supreme Court of the Cape of G-ood Hope. 2 vols. 
 Royal 8vo. 1869. (Published at 21. 16s.) Net, 11. 
 
 NOT ^fiO^.— Vide "Digests." 
 
 NOTARY. — Brooke's Treatise on the Office and Prac- 
 tice of a Notary of England. — With a full collection of 
 Precedents. Fourth Edition. By LEONE LEVI, Esq., F.S.A., 
 of Lincoln's Inn, Barrister-at-Law. 8vo. 1876. 11. is. 
 
 NUISANCES.— FltzGerald.— Fi(ie "PubUc Health." 
 OATHS. — Braithwaite's Oaths in the Supreme Court 
 of Judicature. — A Manual for the use of Commissioners to 
 Administer Oaths in the Supreme Court of Judicature in England. 
 Part I. containing practical information respecting their Appoint- 
 ment, Designation, Jurisdiction, and Powers ; Part II. comprising a 
 collection of officially recognised Forms of Jurats and Oaths, with 
 Explanatory Observations. By T. W. BRAITHWAITE, of the 
 Record and Writ Clerks' Office. Fcap. Svo. 1876. is. 6d. 
 
 " SpeciaEy useful to Commissioners."— Zaw J/ffg'Ozine, February, 1877. 
 " Thfi work wiU, we doubt not, become the recognized guide of commissioners to ad- 
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 PARTNERSHIP.— Pollock's Digest of the Law of Part- 
 nership. By FREDERICK POLLOCK, of Lincoln's Inn, 
 Esq., Barrister-at-Law. Author of " Principles of Contract-at-Law 
 and in Equity." Demy Svo. 1877. 8s. 6a!. 
 
 *^* The object of this work is to give the substance of the Law 
 of Partnership (excluding Companies) in a concise and definite form. 
 "Of the execution of the work, we can speak in terms of the highest iiraise. The 
 language is simple, concise, and clear ,' and the general propositions may baar compariscn 
 with those of Sir James Stephen." — Law Magazine, February, 1S78. 
 
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 Inner Temple, Esq., Barrister-at-Law. (In the press.) 
 
 Daniell's Chancery Practice. — Sixth Edition. 
 
 Daniells' Forms and Precedents of Proceedings 
 in the Chancery Division of the High Court of 
 Justice and on Appeal therefrom ; with Practical 
 Not es and Observations, forming a complete guide to the Practice of 
 the Chancery Division of the High Court and of the Courts of Appeal. 
 Being the Third Edition of " Daniells' Chancery Eonns." By William 
 Henry Upjohn, Esq., Student and Holt Scholar of Gray's Inn. 
 
 Dixon's Law of the Farm.— Fourth Edition. By Henry 
 Perkins, of the Inner Temple, Esq., Barrister-at-Law. {In the press.) 
 
 Greenwood's Recent Real Property Statutes. 
 Comprising those passed during the years 1874-1877 inclusive ; Con- 
 solidated with the Earlier Statutes thereby amended. With Copious 
 Notes. By Harry Greenwood, M.A., of Ijincoln's Inn, Esq., Barrister- 
 at-Law. {In the press. ) 
 
 Haynes' Students' Leading Cases in Constitutional 
 Law, Common Law, Eeal Property Law, Equity, Probate and 
 Divorce, Bankruptcy, and Criminal Law. By John F. Haynes, Solicitor. 
 
 Lowndes' Law of General Average.— BngUsh and 
 Foreign. Third Edition. By Richard Lowndes. Author of " The 
 Admiralty Law of Collisions at Sea." {In the press.) 
 
 Pitt - Lewis' County Court Practice. — A complete 
 Practice of the County Courts, including Admiralty and Bank- 
 ruptcy, embodying the Act, Rules, Forms, and Costs, with Table of 
 Cases and full Index. By 0. Pitt-Lewis, of the Middle Temple and 
 Western Circuit, Esq., Barrister-at-Law, sometime Holder of the 
 Studentships of the Four Iims of Court. 
 
 Pollock's Principles of Contract at Law and in 
 Equity.' — Second Edition. By Frederick Pollock, of Lincoln's Inn, 
 Esq., Barrister-at-Law. {Nearly ready.) 
 
 Roscoe's Treatise on the Jurisdiction and Practice 
 of the Admiralty Division of the High Court of 
 Justice, and on Appeals therefrom, &e. With an 
 Appendix containing Statutes, Eules as to Fees and Costs, Forms, 
 Precedents of Pleadings and Bills of Costs. By Edward Stanley 
 Roscoe, Esq., Barrister-at-Law, and Northern Circuit. {Nearly ready.) 
 
 Seton's Forms of Decrees, Judgments, and Orders 
 in the High Court of Justice and Courts of 
 Appeal, having especial reference to the Chancery Division. 
 Fourth Edition. With Practical Notes. By R. H. Leach, Esq., 
 Senior Registrar of the Chancery Division of the High Court of 
 Justice, F. G. A. Williams, of the Inner Temple, Esq., and H. W. 
 May, of Lincoln's Inn, Esq., Barristers- at-Law. In 2 vols., royal 
 8vo. ( Vol. II. in the press.) 
 
 STEVENS AND SONS, 119, CHANCEKY LANE, W.C,