m. ii OlDrnpU Mm ^rlinol library iHaraljall lEqitttg (Eallcrttott (6tft of Ti. 3). iHarsl]aU, iC.ffi. 1. 1B94 l-UKNLLL UNIVERSITY LIBRARY 924 084 263 544 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084263544 A TEEATISE ON THE LAW OF DISCOVERY. WILLIAM WILLIAMSON KEER, OF LINCOLN S INN, BARRISTER-AT-LAW. LONDON: WILLIAM MAXWELL & SON, 29, FLEET STREET, E.C. ^afa §ook8tlkrs anb ^nblislj^rs. HODGES, FOSTER, & CO., AND E. PONSONBY, DUBLIN; THACKEB, SPINK, & CO., CALCUTTA ; CHARLES F. MAXWELL, MELBOURNE. 1870. LONDON ; BRADBURY, EVAN3, AND CO., PRINTER3, WHITEFRIARS SUMMARY OF CONTENTS. PAGE Table of Cases Cited via PART I. DISCOTEET AND PEODTJCTION OF DOCUMENTS IN EQUITY. CHAPTER I. General Considerations — Jurisdiction, &o. &c. . . . . 1 — 13 CHAPTER 11. Extent and Limits of Discovery in cases where the Jurisdic- tion is not in controversy ...... 14 — 45 CHAPTER III. Mode of Obtaining Discovery and Production of Documents . 46 — 82 CHAPTER IV. Pleading and Parties in Bills for Discovery .... 83 — 95 Section 1.— Pleading 83—88 Section 2.— Parties 89—95 CHAPTER V. Principles on which the Court acts on an Application for Discovery or the Production of Documents ., . . 96—116 iy SUMMARY OF CONTENTS. CHAPTEE VI. PAGH Grounds for Objecting to Discovery and the Production of ^^^_^^g Documents .■.■*'" " ' 117 148 Section 1.— Privileged Communications . . . ii< iio Section 2.— Objection that the Discovery asked for may subiect the Party to Penalty or Forfeiture . ... • • • 149-160 Section 3.— Objection that the Discovery is im- material 160-17O Section 4.— Objection that the Discoveiy or Docu- ments relate exclusively to his ovra case or title 171—176 CHAPTEE VII. Modes of objecting to Discovery 1 T^ 207 Section 1.— By Demurrer 177—184 Section 2.— By Plea 184—195 Section 3.— By Answer 195—202 Section 4. — Conseciuences of a Defendant omitting to avail himself of the appropriate Modes of Objecting to Discovery . . . 202—206 Section 5. — By Disclaimer 207 CHAPTEE VIII. Sufficiency of Answer or AfSdavit of Documents . . . 208 — 228 CHAPTEE IX. Costs of Discovery 229—231 PAET II. DISCOVEET AND PEODTJGTION OP DOCUMENTS AT LAW. CHAPTEE I. Infection of Instruments at Law under the Equitable Juris- diction of the Court 232—245 SUMMARY OF CONTENTS. CHAPTER II. PAGE Inspection of Documents under 1-t & 15 Vict. c. 99, s. 6 . . 246 — 256 CHAPTER III. Discovery under the Common Law Procedure Act, 1854, 17 & 18 Yict. c. 125 257—276 Section 1. — Discovery of Documents . . . . 257 — 260 Section 2. — Discovery by Interrogatories . . . 260 — 276 PAET III. INSPECTION OF PEOPEETY. •■ ■ CHAPTER I. Inspection in Equity 277 — 282 CHAPTER II. Inspection at Law 283 — 285 General Index 287 TABLE OF CASES. Acoml) V. Landed Estates Co., 221 Adair v. Simpson, 275 Adams v. Bany, 136, 137 V. Pisher, 39, 43, 51, 83, 101, 102, 105, 164, 205, 228 V. Lloyd, 255, 273, 274 Addison «. Walker, 22 African Co. v. Parish, 158 Agar V. Bective, 208, 209 ■ V. Eegent's Canal Co., 160, 205, 226 Aireyp. Hall, 109, 111 Albretott v. Sussman, 177, 185 Alcock V. Gill, 55, 56, 62 Allan V. Oopeland, 178 Allfrey V. Allfrey, 218 Alsager v. Johnson, 228 Ambury v. Jones, 85, 87 Amhnrst v. Eing, 210, 212 Ajnies v. Kelsey, 284 Anderson v. Stamp, 218 Andrew v. PeU, 238 Andrews v. Lupton, 86 Angell V. Angell, 86, 178 V. Westcombe, 85, 87. Anglo- Austrian Bank, Be, 66 Anon., 93, 149, 217, 218, 230 V. Harrison, 203, 206 Archer v. Little, 180 Armitage v. Wadsworth, 86, 88, 178 Arundel (Mayor of) v. Holmes, 234 Aston V. Lord Exeter, 86, 88 Aston's Case, 199 Atkinson v. Posbroke, 261, 262, 268, 269, 275 Atkyns v. Wright, 43, 51, 60, 105 Att.-Gen. v. Berkeley, 30, 142 V. Berrj', 14, 30, 100 Att.-Gen. v. Brown, 152, 178, 183, 184 V. Burch, 231 V. Chambers, 278, 282 ■ V. Clapham, 66, 67 V. Conroy, 153, 154 V. Corporation of Lon- don, 15, 19, 28, 33, 34, 35, 94, 104, 176 V. Daly, 153, 154 ■ V. Duplessis, 156 V. East Dereham Ex- change Co., 93 V. East Eetford, 38, 220 V. Elliott, 280, 281 V. Ellison, 28, 171 V. Lambe, 32, 39, 43, 57, 102, 173 V. Lucas, 149, 150, 155, 182, 183, 195, 198 V. Mercers' Co., 221 D. Eees, 211, 217 V. Eickards, 218 V. Eoss, 83 V. Strutt, 172 V. Thompson, 16, 19, 26, 28, 33, 56, 84, 96, 97, 98, 99, 103, 101, 165, 166, 173, 174 Attwood V. Small, 89 Atwool «. Perrier, 160 Ayres v. Levy, 70 B. Baddeley v. Curwen, 202 Bailey v. Dunkerley, 64 Baker v. Bramah, 85 V. Lane, 270 VIH TABLE OF CASES. Baker v. London and South Wes- tern Bail. Co., 145, 146, 253 V. MeUish, 86, 177 Balch V. Symes, 26, 99, 126 Balguy V. Broadhurst, 200, 210 Balls V. Margrave, 23, 90, 112 Bally V. Kenrick, 161, 217 V. Williams, 218, 227, 228 Bannafrjine v. Leader, 171, 200, 209 Banner v. England, 15, 81 V. Jackson, 124 Baring v. Prinsep, 230 Barker v. Dacie, 177 V. Bay, 86 Barlow v. Bailey, 277, 278, 281 Barnard v. Hunter, 53, 54, 58 Barned's Banking Co., Re, 95, 97 Bamett v. Hooper, 259 V. Noble, 59 Barron v. Grillard, 93 Barry v. Crosskey, 9 V. Harrison, 219, 228 Bartlett v. Lewis, 199, 252, 262, 268, 269, 270 Bartley v. Bartley, 76 Bassford v. Blakesley, 98, 99 Bate e. Bate, 54, 55 Bateman, Ex parte, 66 Bates V. Christ's College, 202, 203 Bayley v. Cass, 107 V. Griffiths, 34, 263, 267, 268 Beadon v. King, 100, 102, 133, 134, 140, 197 Beale v. Bird, 232 Beaufort (Duke of) v. Taylor, 59 Beaumont v. Beaumont, 22S Beavan i. Cook, 169, 215 Beers'. Ward, 119 Bell V. Johnson, 26 Bellwood V. Wetherell, 18, 34 Eelsham v. Harrison, 39, 141 Bennett v. Glossop, 19, 20 V. Griffiths, 283 Bennitt v. Whitehouse, 277, 278, 281, 282 Bent 1). Young, 10 Bentinck v. Willink, 21, 164 Benyon «. Nettlefold, 3, 8, 86, 150, 158, 183 Beresford (Lady) v. Driver, 97 Berwick (Mayor of) v. Murray, 75 BetheU v. Casson, 38 Bettison v. Farringdon, 62 Betts V. Menzies, 146 Beynon v. Morris, 15 Bickford v. D'Arcy, 199, 270 Bird V. Malzy, 273 Birmingham, &c. EaU. Co. v. White, 233, 238 Blakesley v. Pegg, 73 Blakey ii. Porter, 234, 244 Bleckley v. Eymer, 14, 160, 161, 182, 185 Blenkinsopp v. Blenkinsopp, 70, 103, 119, 125,. 126, 127 Bligh V. Berson, 18, 37, 56, 96, 107 229 Blight V. Goodliff, 264 Blogg V. Keat, 234, 243 Bluuk V. Galsworthy, 133, 140, 229 1). Gompertz, 234. 243 Blyth V. L'Estrange, 266 Boldero v. Saunders, 215 Bolton V. Corporation of Liverpool, 18, 19, 28, 29, 120, 135, 138, 172 Bonardet f. Taylor, 74, 75, 76 Bond V. Northover, 94 Boteler v. AlHngton, 149, 157 BovDl V. Cowan, 38, 68, 108, 201 V. Moore, 279 v. Smith, 21 Bowden v. Allen, 269, 270 Bowes u.Fernie, 61, 62, 70, 99, 100 Boyd V. Petrie, 32, 59, 72, 73, 140, 173, 197 Boyse v. Cokell, 67 Brancker v. Carne, 50 Brandon v. Sands, 86 Bray v. Pinch, 259 Brazier v. Mytton, 1 3 Bridgewater v. De Winton, 15, 22, 27, 96, 160, 210, 215, 227 British Empire Shipping Co. v. Soames, 10, 15, 19, 248 Brookes v. Boucher, 225, 226 Brown v. Foster, 123 D. Lockhart, 21 v. Moore, 279 -. — V. Oakshott, 137 V. Pearson, 2, 14, 66, 98, 229 -■ V. Perkins, 112, 125 V. Thornton, 4, 229 Browning v. Aylwin, 237 Brownsword v. Edwards, 149 Brunswick (Duke of) v. Duke of Cambridge, 215, 217 Buchanan v. Hodgson, 17 Bugden v. South, 30, 104 V. Tylee, 30, 106 TABLE OF CASES. IX Bulkeley v. Dunbar, 207 Bull V. Clarke, 252, 256 BuUook V. Biohardson, 48 Bunbury v. , 230 V. Bunbury, 130, 144 Bunn V. Bunn, 154 Burbidge v. Bobinson, 69, 113 Burrell v. Nicholson, 32, 96 Burton v. Neville, 20 V. Eobertson, 179, 184 Burton and Saddlers' Co., Me, 244 Busbnell v. Busbnell, 197 Bute (Marquis of) v. Glamorgan- sliire Canal Co., 68, 73, 105, 164, 166, 171, 173, 176 (Marquis of) v. Lewis, 189, 215 Butterworth v. Bailey, 87, 229 Byoroft v. Sibel, 22 Byde v. Masterman, 228 Caldecott, Ex parte, 23 Galley v. Eicbards, 122, 135, 229 Cameron's Coalbrookdale Co., Ee, 110, 119, 127 Campbell, £x parte, 121, 122, 123, 127, 196 Cannock v. Jaunoey, 22, 27, 96, 97, 99 Cardale v. Watkins, 83, 161, 180 Carew v. Davies, 73, 263 V. White, 71 Carlisle (Corporation of) v. Wilson, 87 Carpmael v. Powis, 118, 119, 122, 127, 129, 144, 182 Carter v. Goetze, 16, 203 Cart-wright «. Green, 6, 149, 150, 152, 182 ■;;. Hateley, 204 Caton V. Lewis, 61, 62, 71 Catt V. Tourle, 53, 65 Chadwiok v. Broad wood, 180 V. Chadwick, 3, 154, 161, 169, 203, 206 Chaffers ». Day, 205 V. Woolmer, 221 Chamberlain v. Knapp, 181 Chanceyw. Fenhoulet, 149, 155, 156 Chant V. Brown, 126, 127, 128, 130, 133, 141 Chaplin v. Young, 56 Charlton v. Coombes, 125, 126, 182 Charnock v. Lumley, 243, 245 Chartered Bank of India v. Eich, 131, 145, 248, 253, 255, 262 Chauncey v. Tahourden, 149, 155, 156 Chervet v. Jones, 4 Chestei- V. Wortley, 271, 276 Chetwind v. Marnell, 233 Chetwynd v. Lindon, 149, 151 Chichester v. Lord Donegal, 22, 31, 97, 98, 203, 204 Chidwick v. Prebble, 57 Chilton 'V. Campbell, 9 Cholmondelej' v. Clinton, 87, 88, 95, 180, 181 Christian v. Taylor, 213, 222, 224 Christopherson v. Lotinga, 259 Churton v. Frewen, 2, 44, 71, 101, 120, 130, 131, 140 Olagett V. IPhilipps, 135 Clapham v. White, 100 Claridge v. Hoare, 149, 150, 186 Clayton v. Lord WinchUsea, 190, 191, 192 Cleave v. Jones, 119 Clegg V. Edmonson, 19, 160, 161, 168, 172, 198, 203, 205, 206 Clifford V. Taylor, 246 Clinch V. Financial Corporation, 37 Cocks V. Nash, 234, 242, 244 Codrington v. Codrington, 160 Collins V. Yates, 251 ColUs V, Swayne, 177 Colls V. Stewart, 172 Colman v. Trueman, 144, 146, 250 V. West Hartlepool, &c.. Harbour Co., 13, 76, 78 Colyer v. Colyer, 109 Combe v. City of London, 2 ■ V. Corporation of London, 14, 33, 100, 102, 136, 172, 173, 174, 209, 220, 222 Compton V. Lord Grey, 181 Contract Corporation, Me, 66 Cook V. Marsh, 116 Cooke V. Turner, 149, 150, 156 Cookson V. Ellison, 204 Gorki;. Wilcock, 189 Cossey v. London and Brighton EaU. Co., 146, 248 Coster V. Baring, 249, 253 Coventry v. Bentley, 229, 230 Cowan V. Philipps, 180 Cox V. Beckett, 259 TABLE OF GASES. Cridland v. De Mauley, 108 Crisp V. Platel, 98 Crofts V. Peaoh, 283 Cromaok V. Heathcoate, 118 Croomes v. Harrison, 275, 276 Crosse v. Bedingfleld, 4, 88 Orossley v. Dixon, 49 - — V. Stewart, 164, 167 Crow V. TyrreU, 86, 87, 88, 190 Cull V. Ingles, 225, 226 Culverhouse v. Alexander, 215 Curd V. Curd, 69, 70 Curling V. Perring, 130 Cm-zon V. De La Zouch, 198, 205 Cutts V. Pickering, 121 D. Darner v. Lord Portarlington, 55 Daniel v. Bishop, 215, 217 V. Bond, 14, 15, 253, 258 Darthez v. Lee, 83, 84 Dartmouth. (Mayor, &c., of) v. Holdsworth, 196, 197 Daubigny v. Davallon, 185 Davenport v. Jepson, 279, 280 Davey v. Pemberton, 256 Davies v. Waters, 118 Davis V. Cripps, 228 ■ V. Lord Dysart, 31 v. Parry, 26, 99, 125 V. Eeid, 153 Daw V. Eley, 21 Dawson v. PiUing, 185, 187 Deare v. Att.-Gen., 178 Deeks v. Bailey, 93 De La Eue v, Dickinson, 164, 206 Del Ponte v. De Tastet, 218 Dendy v. Cross, 22, 98 Denis v. Eoohussen, 46, 217 Dent V. Dent, 66 Denys v. Looock, 190, 193 Derby (Lord) v. Duke of Atbole, 10 Derby Bank v. Lumsden, 267 Desborougb v. Ourlewis, 85 • V. Eawlins, 121, 122, 123, 124, 195, 196, 204 Devaynes v. Eobiiison, 30, 137 Devenoge v. Bouverie, 234, 239 Dipple V. Oorles, 68, 172 Dixon V. Eraser, 169, 171 Dobree v. Nicholson, 207 Dobson V. Eichardson, 262, 264, 272 Doe V. Andrews, 124 V. Lord Hertford, 124, 127, 144 Doe V. Langford, 244, 253 V. Eoe, 242 dem Child v. Eoe, 232, 234, !;. Eoss, 110 V. SHght, 234, 244 Donegal (Lord) v. Stewart, 20D Doolm 1). Dixon, 275 Dormer v. Fortesoue, 88 Dos Santos v. Frietas, 163 Drake v. Symes, 46, 215, 217, 223 Draper v. Manchester, Sheflleld, and Lincolnshire Eail. Co., 75, 76, 78 Dummer v. Corporation of Chip- penham, 89, 90, 93, 154, 178 Dunoombe «. Davis, 23, 27, 161, 171, 173, 176, 203, 215 Dundas v. Blake, 39 Dunn V. Coates, 9 V. Dunn, 81 Dwyer v. CoUins, 118, 123 E. Earp V. Lloyd, 33, 47, 69, 214, 215 Easey v. Webster, 215 East India Co. v. Evans, 7 V. Kynaston, 279 Edmonds v. Foley, 22, 31, 107 Edmunds v. Greenwood, 268, 270, 271 Edwards v. Jones, 56, 104, 173 V. Wakefield, 262, 265, 271 Eglinton (Lord) v. Lamb, 15, 101, 109, 222 Ellice v. Eoupell, 3, 83, 86, 193 Ellwarid V. M'Donnell, 115, 221 Elstob V. Houeywill, 276 Emerson v. Harland, 191 Emmet v. Aylet, 84 Ennor v. Barwell, 279, 282 Enthoven v. Cobb, 142 Evan V. Corporation of Avon, 178 Evans v. Delegal, 237 V. Harris, 189 V. Louis, 259 • V. Eichard, 3, 52 Ewing V. Osbaldistone, 150 F. Faithful, Be, 110 Falmouth (Lord) v. Moss, 133 Farquharson v. Balfour, 37, 56, 74, 107, 215, 216 TABLE OF CASES. XI Farrer v. HutcliinsoB, 14, 26, 70, 106, 227, 22S Fatilder v. Stuart, 4S PeaYer v. WilUams, 126, 141 Pelkin v. Lord Herbert, 19, 24, 25, 69, 131, 174, 200 Fencott v. Clarke, 109, 126 Penton v. Hughes, 89, 90 V. Queen's Ferry Co., 26 Feuwick v. Eeed, 89, 94 Fergusson v. Cooinbes, 251 Fernandez, Ex parte, 198 Ferrier v. Atwool, 101, 174, 175 Few V. Guppy, 107, 115, 116 Field 11. Beaumont, 12, 88 Finch. 11. Finch, 149 Finlay v. Lindsay, 247 Finney v. Forward, 265, 267 Fiott V. MuUins, 65 Firkins v. Lowe, 18, 171, 173, 229 Fisher v. Price, 159, 202 Fitzgerald v. Bult, 230 Flanagan v. WiUiams, 151, 213 Fleming v. St. John, 182, 183 Flight V. Eobinson, 2, 106, 122, 133, 134, 141 Flitcroft V. Fletcher, 20, 260, 266 Plockton V. Peake, 74 Foley V. HiU, 188, 189 Pollett V. Jeflferyes, 38, 125, 126, 127 Forbes v. Tanner, 14, 66, 104, 160, 161, 226, 229 Ford V. De Pontes, 31, 128, 135, 142, 143 V. Dolphin, 107 V. Tennant, 120, 122, 123, 125 Forman v. Nevill, 37 Forshaw v. Lewis, 258, 260 Fountain v. Young, 122 Fox V. Jones, 238 FoxweU V. Webster, 161, 164, 165, 167, 168, 225 Francis v. WigzeU, 93, 163 Franco v. Meyer, 59 Freeman v. Butler, 22, 23 V. Fairlie, 74, 111 French ». Maccale, 158 Frietas v. Dos Santos, 87, 178 Fuller V. Ligram, 9, 10 G. Galsworthy v. Norman, 247, 253 Gandee v. Stansfield, 26 Gardner v. Dangerfleld, 69, 73 V. London, Chatham, and Dover Bail. Co., 15 Garland v. Scott, 134, 140 Garle ii. Eobinson, 34, 229, 266 Gartside v. Outram, 125, 151, 213 Garwood v. Curteis, 51 Gaskell v. Chambers, 3, 113, 127 Geary v. Buxton, 276 Gerard v. Penswick, 68, 70, 98 Gibbon v. Strathmore, 182, 195 Gibbons v. Waterloo Bridge Co., 93, 152 Gibbs i). Boss, 25, 143, 145 Gibson v. Hewett, 22, 23 Gilbert v. Lewis, 90. 91, 92, 94, 125 Gill V. Eyton, 21, 27, 98 Glasoottii. Copper Mines Co., 32, 93 Glassington v. Thwaites, 207 Glegg V. Legh, 18, 20, 181 Glengall (Lord) v. Edwards, 158, 215, 217 V. Fraser, 16, 96, 123, 161, 211, 213, 214 Glover v. Hall, 20, 43, 44, 83, 96, 102, 103, 172 Glyn i;. Caulfield, 113, 114, 130, 133, 134, 140, 144, 146 V. Houston, 6, 149, 150, 152, 154, 160, 183 Godfrey v. Turner, 88 Goldsmidt v. Marryatt, 237 Gomm V. PaiTott, 181, 186, 247 Gompertz v. Best, 227 GoodaUv. Little, 101, 104, 122, 124, 130, 134, 146 Goodohap V. Weaving, 109 GoodHff V. Puller, 234 Goodman v. Holroyd, 34, 262, 263, 267, 268 Gordon v. Shaw, 216 Gore V. Bowser, 122, 123 Gough V. Offley, 112 Qi'aham v. Coape, 207 Grane v. Cooper, 73, 74 Green v. Pledger, 4 V. Snead, 218 v. Weaver, 154, 159 Greenlaw 1). King, 2, 122, 133, 144 Greenough v. Gaskell, 2, 117, 119, 121, 126, 133, 140, 196 Greenwood v. Greenwood, 26, 31, 61, 62, 70, 97, 99, 100, 101, 161, 172, 173, 174 V. Eothwell, 21, 98 Xll TABLE OF CASES. Qregson, Re, 110 Gresley v. Moualev, 97, 101, 112, 125, 129, 161, 174 Griffin V. Smythe, 244 Griffitla V. Davies, 123 Groves V. Groves, 73, 74 H. Haldane v. Bokford, 57, 66 Halli). ConneU, 16, 113 V. Hoddesdon, 86 Halliday v. Temple, 55 Hambrook v. Smith, 3, 14, 28, 48, 97, 102, 104, 155, 164, 170 Hampson ». Hampson, 121, 144 Hanslip v. Kitten, 65, 66 Harding v. Pingey, 46 Hardman v. Ellames, 19, 28, 39, 40, 42, 43, 61, 190, 191 Hardwick «. Wright, 66 Harford v. Eees, 55, 103, 215 Harland v. Emerson, 190 Harris v. Aldrit, 242 V. Collett, 9 V. Harris, 17, 100, 166, 171, 174, 187, 188, 189, 191 Harrison v. Southcote, 149, 157 Hart V. Montefiore, 66 Harvey v. Clayton, 118 Haverfield v. Pyman, 56, 99 Hawkins v. Carr, 190 1). Gathercole, 138 Heeman v. Midland, 56 Heming v. Dingwall, 231 Hercy v. Ferrers, 23, 102, 112, 171, 174 Herrings. Clobery, 117, 119, 120 Hersohfield v. Clarke, 259, 274 Heslop V. Bank of England, 91 Hewart v. Semple, 230 Hewett V. Webb, 259, 260 Hewitt «. Hewitt, 193 V. Pigott, 239 Hibberson v. Fielding, 229, 230 Higginson v. Blockley, 48 Hildyard v. Oressey, 87j 194 V. Smith, 233 Hill V. Gomme, 39 V. Great Western Rail. Co., 238, 249, 256, 260 V. Philp, 15, 250, 256 Hinde v. Skelton, 187 Hindman v. Taylor, 180, 186 Hoare v. Wilson, 45 Hodgkin v. Longden, 177, 178 Hodle V. Healey, 177 Hodgson V. Warden, 234 Hoffman v. PostiU, 36, 48, 50, 160, 162, 220 Holding V. Barton, 218 Holland v. Fox, 284 Holmes v. Baddeley, 134, 136 Honeywood v. Selwin, 149, 183 Hony V. Hony, 194 Hook V. Dorman, 88 Hooper v. Gumm, 38, 69, 73, 74, 120, 130, 141, 144, 146, 197 Hopee. Liddell, 3, 110 Hopkinson v. Lord Burleigh, 38, 72 Horton v. Bott, 262, 266 Houghton V. Barnett, 60 V. London and County Assui-anceOo., 249, 253, 256,260 How V. Hase, 91, 179 Howard v. Eobiuson, 14, 19, 22, 26, 42, 165, 171, 229 Howe V. M'Kernan, 167, 203 Hudson V. Qrenfell, 47 Hue V. Eichards, 104, 161, 169 Hughes V. Biddulph, 70, 130, 135 V. Garnons, 135 Hunt B. Elmes, 20, 44, 172 V. Hewitt, 33, 244, 247, 249, 251, 252, 253, 254, 255 V. Penrice, 187, 190 Hunter v. Capron, 68 Hustler v. Freeland, 274 Hylton V. Morgan, 86 Imperial Mei-cantile Credit Asso- ciation V. Whitham, 51 Ligilby v. Shafto, 9, 11, 19, 20, 34, 84, 99, 172 Inman v. Jenkins, 268, 269, 270 V. Whitely, 60, 220 Ivy V. Kekewiok, 20, 182 Jackson v. Benson, 153, 182 V. Strong, 87 V. Ward, 184, 185 Jacobs V. Goodman, 206 James v. Barns, 275 V. Herriott, 85 V. Sadgrove, 178 TABLE OF CASES. XIU Janson v. Solarte, 14, 163 Jenkins v. Bushby, 14, 19, 29, 32, 33, 69, 70, 100, 101 Jenkyns v. Bushby, 135, 136, 146 Jenner v. Morris, 81 Jermy v. Best, 86 Jerraid v. Saunders, 181, 189 Jessel V. Millingen, 234, 241 Jevens v. Harridge, 232 Jodrell V. Slaney, 47, 48, 163, 215 Johnston v. Todd, 115 V. Tucker, 22 Joint Stock Discount Co., Be, 76 Jones V. Davis, 189, 190 V. Green, 158 V. Hargreaves, 255 V. Jones, 19, 22, 26, 27, 29, 86, 88, 97, 178 V. Lewis, 55 V. Maund, 178 V. Palmer, 234, 237 V. Pratt, 275 V. Pugh, 118, 119, 160, 195, 205 V. Wiggins, 212, 217 Jourdain v. Palmer, 262, 263, 265, 272 Kay V. Hargreaves, 161 KeUock V. Home and Colonial As- surance Co., 237, 240 KeUy V. Wyman, 15, 215 Kemp V. King, 110 Kennedy v. George, 74 V. Green, 33, 99 V. Wakefield, 66 Kerr v. Gillespie, 144 V. Eew, 89, 90, 91 KettleweU v. Dyson, 266 Kidger v. Worswick, 53 King V. Burr, 7, 180 V. Heming, 184, 185 V. King, 244 V. Eossett, 87, 178 V. Teale, 219 Engsford v. Great Western. Rail. Co., 259 Knight V. Lord Waterford, 43, 44, 45 Kynaston v. East India Co., 277, 278, 279 Lacharme v. Quartz Miaing Co., 258 Lafone v. Falkland Islands Co. , 50, 54, 61, 62, 67, 71, 80, 130, 131, 135, 141, 220 Lamb V. Danby, 79, 116 . V. Orton, 44, 53, 55, 56, 136, 141 Lambert v. Eogers, 23, 31, 107, 112 Lancashire Cotton Spinning Co. v. Greatorex, 238 Lancaster v. Evors, 105, 202, 203, 204 Land Credit Co. of Ireland, Be, 123 Lander v. Weston, 226 Lane v. Paul, 57 Latimer v. Neate, 44, 96, 103 Law V. Indisputable Life Policy Co., 52, 53 Lawrence v. CampbeU, 118, 119, 120, 130, 133 V. Hooker, 241 Lazarus v. Mozley, 60, 61, 63, 222 Lee V. Hamerton, 39 - V. Read, 149, 150, 154, 158, 182, 186, 198 Leech v. Trollope, 181 Leigh V. Birch, 201, 203, 217 Lempriere v. Rutt, 9 Lempster v. Lord Pomfret, 87 Leonard v. Leonard, 205 Le Texier v. Margravine of Ans- pach, 89, 90, 93 Lett V. Paxry, 160, 164, 165 Lewis V. Davis, 22 Marsh, 278 V. Pennington, 122, 125, 179, 195, 196 Ley V. Barlow, 238, 242, 243 Liddell v. Norton, 107 Lincoln v. Wright, 218 Lind V. Isle of Wight Perry Co., 19, 29, 33, 68, 103, 229 Lindsay v. Gladstone, 76, 77, 78 Lingen v. Simpson, 96, 97 Lipscombe v. Bateman, 215 Litchfield (Lord) v. Bond, 160, 183 Llewellyn v. Baddeley, 24, 34, 69 Lloyd V. Adams, 9 V. Lander, 91 V. Purves, 68, 172 V. Wait, 27 Lookett V. Cary, 22, 110 TABLE OF CASES. Lookett V. Lockett, 163, 213, 224, 225 • Loker v. EoUe, 29, 177 London (Mayor, &c., of) v. Ains- ley, 149 (Mayor, &o., of) v. Levy, 84, 149, 164 Assurance Co. v. Hankey, 230 Gaslight Co. v. Vestry of Chelsea, 249, 253 Lonsdale (Lord) v. Curwen, 278, 280 V. Heaton, 123 Lopez V. Deacon, 37, 106, 108, 113, 229 Lousada v. Templer, 85, 87, 88 Lovell V. Galloway, 8, 9, 230 Lowe V. "Williams, 218, 219, 228 Lowndes v. Taylor, 92 Lucas v. Evans, 155 Luscombe v. Steer, 71 Luxemburg Eail. Co. v. Magnay, 170, 203, 206 M. Macaulay v. Shakell, 7, 154 Maccallum o. Turton, 149, 150, 152, 154 Macclesfield (Lord) v. Davis, 7 M'Eadzen v. Mayor of Liverpool, 261, 262, 264, 269, 270 M'Garel v. Moon, 47, 214 M'Gregori^.East India Co., 187, 191 M'Hardy v. Hitchcock, 103, 229 M'Intosh V. Great Western Eail. Co., 40, 41, 54, 55, 67, 211, 212 M'Intyre v. ConneU, 178, 183 M'Kenna v. Chester and Holyhead Eail. Co., 276 M'Kewan v. Eolt, 261 M-MaTion v. EUis, 271 M'Morris V. Elliott, 228 Macrae v. Smith, 66 M'Veagh, Be, 66, 68 Maden v. Veevers, 31, 102, 174, 197 Madrid Bank v. Bayley, 261 Major V. Arnot, 14 Maiepeace v. Eogers, 9 Manby v. Bewioke, 55, 56, 63, 65, 172, 222, 227 Mansell v. Eeeny, 28, 47, 52, 60, 69, 96, 99, 101, 104, 160, 164, 166, 171, 191, 192, 193, 206 161, 68, Manser v. Dfx, 120, 134, 138, 139, 140, 141 Mant V. Scott, 162, 180 Mark's Trust Deed, Be, 24 Marriott v. Anchor Eeversionary Society, 130 Marsh v. Keith, 47, 118, 119, 120, 121, 122, 161, 162, 195, 196, 201, 202 V. Sibbald, 115, 116 Marshall v. Mellersh, 218, 219 V. Sladden, 89 Martin v. Heming, 275, 276 V. Nicholls, 12 Martineau v. Cox, 106, 115 Mason v. Murray, 153 V. Wakoman, 202 V. Wythe, 261 Maund v. Allies, 73 May V. Hawkins, 271, 275 Mazzaredo v. Maitland, 14, 203, 217 Meadows v. Kirkman, 284 MelKsh V. Eichardson, 85, 178 Mendes v. Barnard, 84 Mendizabel v. Machado, 185 Mertens v. Haigh, 50, 51, 54, 73, 74, 75, 96, 99 Metcalfe v. Hervey, 184 Metropolitan Saloon Omnibus Co. v. Hawkins, 7, 252, 270 Mioklethwaite v. Moor, 18, 55 Miller v. Gow, 4 Milligan v. Mitchell, 55 Mills V. Campbell, 85, 86, 183 Minet v. Morgan, 97, 104, 105, 165 Mitchell V. Koeoker, 149, 182 Molesworth v. Howard, 202 MoUett V. Enequist, 9 Montague v. Dudman, 6 Moor V. Eoberts, 261, 265, 273 Morgan v. Seaward, 279 V. Shaw, 122 Mornington (Earl of ^ v. Keane, 81 (Earl of) V. Morning- ton, 41, 61, 126, 135 Morrell v. Wootten, 108 Morrice v. Swabey, 37, 69, 74 Morris v. BetheU, 271, 272 V. Duke of Norfolk, 10 ■ V. Parr, 275, 276 Morrow v. Saunders, 244 Mountford v. Taylor, 12, 15, 215 Mountnorris (Lord) u. Lord Dun- gannon, 19 Moxhay v. Trederwick, 141 TABLE OF CASES. XV Muckleston v. Brown, 46, 177 Mun-ay v. Walter, 36, 37, 106, 108, 114 N. Naghten r. Midland Great Western Eail. Co., 276 Neale v. Swind, 232, 235 Neate v. Latimer, 27, 28 V. Duke of Marlborougli, 208, 211 Neesom v. Clarkson, 26, 33, 99 Nelini v. Newton, 205 Nelson v. Ponsford, 212 Newall V. Electric Telegraph Co., 56, 59, 65 Newland b. Steer, 66 Newton v. Beresford, 101, 140 V. Chaplin, 118 v. Dimes, 96, 212, 213, 215, 217 Nias V. Northern and Eastern Eail. Co., 120, 134, 140, 197 NichoU V. Jones, 45, 60, 61, 62, 68, 69, 141, 253 Noble V. Garland, 85, 86, 230 Noel V. Noel, 61, 62, 67 V. Ward, 87 North V. Hnber, 107 Norway v. Eowe, 228 O. O'ConneU v. Barry, 262 Okenham v. Esdaile, 207 Oliver v. Haywood, 149 Ord V. Eawcett, 70, 74, 104, 105, 112, 164, 166, 213 Orme v. Campbell, 149 Osbom V. London Docks Co., 198, 260, 271 Ovey V. Leighton, 204 Owen V. Nickson, 23, 26, 44, 83, 234, 236, 239, 243, 244 Oxlade v. North Eastern Eail. Co., 275 P. Paddon v. Winch, 134 Padley v. Lincoln Waterworks Co., 147, 161, 201, 202, 205 Page V. Ward, 134 Paine & Langton, Ex parte, 111 Palmer v. Wright, 108, 109 Parker v. Alcock, 1 88 V. Pail-He, 219, 220, 228 V. Pord, 87 Parkhm-stu. Lowten, 119, 120, 149, 150, 151, 153 Parkinson v. Chambers, 47, 52, 59, 189 Parsons v. Eobertson, 69, 70 Partridge, i!x parte, 244 Patch V. Ward, 22, 27, 125, 128 Patent Type Poimding Co. v. Lloyd, 284, 285 V. Wal- ter, 280, 282, 285 Patrick v. BlackweU, 215, 217 Paxton V. Douglas, 150 Pearce v. Creswick, 4 Peai-se v. Pearse, 119, 120, 121, 134, 138, 139, 140 Pearson v. Turner, 266 Peck V. Nolan, 264 Peile V. Stoddart, 17, 52, 172, 174, 200, 209, 210 Penarth Harbour Co. v. Cardiff Waterworks Co., 40, 243 Penfold V. Nunn, 55 Penkethman v. White, 38, 72 Pennell v. Lord Dysart, 31 Penney v. Goode, 36, 104, 114, 115, 222 Pennington v. Beeohey, 189 Penruddock v. Hammond, 200, 210 Pepper v. Chambers, 252 V. HenzeU, 92 Peppiatt V. Smith, 265, 273 Percival v. Blower, 90 Perry v. Turpiu, 47, 62 Phelan v. Hamilton, 39 Phelps V. Olive, 60 V. Prew, 118, 124 Philipps 11. Caney, 206 . V. Evans, 26, 27, 39, 43 V. Holmer, 30, 114, 125, 129, 142 V. Lewin, 274 V. Prentice, 218 Pickering v. Noyes, 234 V. Eigby, 55 Piffaid V. Beeby, 62, 63 Piggott V. Anglo-American Tele- graph Co., 281, 282 Pilkington v. Himsworth, 27, 73 Pindar V. Smith, 116 XVI TABLE OF CASES. Plunkett V. Cavendish, 192 V. Lewis, 81 PoM V. TouBg, 262 Ponsford v. Swaine, 147 PortarKngton v. Soulby, 189, 204 Portmore (Lord) v. Goring, 235 Portugal (Queen of) v. Glyn, 89, 90, 91 Potter V. WaUer, 19, 20, 31, 149, 215 Powell V. Bradbuiy, 240 Pratt V. GosweU, 239 Prentice v. Philipps, 73, 74 Preston v. Oarr, 25, 34, 78, 140 Price V. Harrison, 233, 234, 236, 243, 244 V. James, 177 Prichard v. Murray, 226 Prioleau v. United States, 94 Pritchard v. Foulkes, 125, 143 Pritchett v. Smart, 232, 233, 240, 241 Protector v. Lord Lumley, 12 Protheroe v. Norman, 11 Provident Assurance Co. v. M'lner- heny, 266 Pulleil V. Smith, 226 Purcell V. Macnamara, 100 Pye V. Butterfleld, 149, 153, 262, 271 Q. Quin V. Batcliffe, 60 E. Eadoliflfe v. Fursman, 138 Eamsbotham v. Cooper, 245 V. Senior, 45, 119, 127 Sanger v. Great Western EaU. Co., 93 Rapson V. Cubitt, 26, 30, 45 EatcUffe v. Bleasby, 240 Eawson V. Samuel, 73, 74, 84, 227 Eayuer v. Allhusen, 247 V. Eitson, 237, 249 Eeade v. Woodrofife, 118, 165, 169, 196, 203, 217 Eeg. V. Boyes, 163, 198, 199 V. Charlesworth, 154 V. Garbett, 149, 150, 198 Eeid V. Oolmta, 244 V. Langlois, 36, 37, 55, 59, 106, 108, 130, 144, 146 Eenard v. Levinstein, 15, 167 Eennison v. Ashley, 29 Ee-w V. Hutchins, 263, 271, 273 Eex V. Ambergate, &c., EaU. Co., 7 V. Watkinson, 123 EeyneU v. Sprye, 30, 56, 125, 126, 142 Eeynolds v. Godlee, 66, 72, 113, 134, 140, 142 Ehodes v. Hayne, 229, 230 Eiccard v. Inclosure Commissioners, 247, 249, 251, 253, 256 Eice V. Gordon, 151 Eichards v. Cole, 157 V. Jackson, 138, 140 V. Watkins, 66, 61, 65 Eichardson v. Hastings, 72, 106, 113 Eickards v. Att.-Gen., 162 Eidgway v. Newstead, 64 Eigbjr V. Eigby, 102, 174 Eippin V. Dolman, 98 Eishton v. Grissell, 215 Eoberts v. Allatt, 153 V. Lloyd, 73, 74 Eobertson v. Lubbock, 84, 187 ■». Shewell, 106, 113 Eobinson v. Kitchin, 158, 159 V. Lamond, 210, 227 V. WaU, 231 Eobson V. Lord Brougham, 219 V. Crawley, 272, 274 V. FHght, 170 Eochdale Canal Co. v. King, 52, • 54, 69, 67, 68 Eoche B. Morgell, 188, 190 Eodick V. Gandell, 92, 109 Eogers v. Turner, 255 Eose V. Gannell, 85, 86 Boss V. Gibbs, 25, 143, 145 Eothwell ». King, 117 Eowe V. Howden, 240 V. Teed, 169, 206 V. Tonkin, 184 Eoyds V. Fryer, 218 Eumbold v, Forteath, 19, 20, 29, 60, 63 Eundle v. Beaumont, 240 Eussell V. Cowley, 279 V. Jackson, 118, 120, 125, 127, 129, 130, 133, 134 Eyves v. Eyves, 177 TABLE OF CASES. XVll s. Salisbury (Earl of) v. Cecil, 111 Salmon v. Dean, 193 Sampson v. Swettenham, 18 Sanders v. King, 188, 190, 191 Sandford v. Eemington, 124 Sangosa v. East India Co., 183 Saunders v. Saunders, 91, 179 Sawyer v. Birclimore, 123, 124 Scott V. Broadwood, 187 ■». Miller, 149, 150, 154, 200, 210 V. Walker, 34, 247, 249, 250, 251, 253, 254 V. Wheeler, 55 V. Zygomala, 274 Selby V. Eraser, 59 Senliouse v. Earl, 181 Senior v. Prichard, 9 Severn v. Pletclier, 87 Shadwell v. ShadweU, 233, 234, 244, 247 Shaftesbury (Lady) v. Arrowsmith, 19, 29 ShaUcross v. Weaver, 97 Sbaw V. Bank of England, 284 V. Ching, 206 V. Holmes, 238, 242 V. Price, 87 V. Sbaw, 31 Sheffield Canal Co. v. Sheffield and Eotherham Canal Co., 62, 70 Shepard v. Brown, 9 Shepherd v. Morris, 55 Short V. Mercier, 149, 150, 198, 199 Sibbald v. BaiUie, 190 V. Lowrie, 50 Sidebottom v. Adkins, 149, 198 Simmons v. Lord Eannaird, 229 Simpson v. Brown, 25, 132, 137 V. Chapman, 47, 160 V. Charlesworth, 160 Singer Manufacturing Co. v. Wil- son, 279, 281 Sketohley v. Conolly, 267 Skrine v. Powell, 230 Slack V. Evans, 218, 220 Sloane v. Heathfield, 7 Sloman v. Kelly, 157, 158, 203, 215 Small V. Attwood, 163 Smith V. Barker, 223, 224 V. Barnes, 14, 27 V. Duke of Beaufort, 19, 28, 32, 51, 96, 100, 101, 102, 171, 172 Smith V. Dowling, 103 ■ V. East Lidia Co., 148 V. Fox, 180, 187 V. Great Western Eail. Co., 276, 284 V. Hurst, 15 V. Massie, 69 V. Duke of Northumberland, 83 V. Eead, 156, 157 V. Sidney, 113 V. Stone, 79 V. Winter, 241 Sneider v. Mangino, 252 Snowdon v. Metropolitan Eail. Co., 68 Somerville v. Mackay, 51, 104, 203 Southall V. , 149, 150, 153 Southampton Steam Boat Co. v. Eawlins, 46 South Eastern Eail. Co. v. Sub- marine Telegraph Co., 85, 229 South Essex Co., i?e. Ill South Sea Co. iJ.'Bumsteed, 158 Southwell V. Thompson, 30 Spain (King of) «. Hullett, 94 Sparke v. Montiiou, 39 Spenceley v. Sehulenburg, 122, 123 Stainton v. Chadwick, 28, 96, 165, 166 Steadman v. Arden, 232, 236, 238, 242, 243, 244 Steele v. Stewart, 131 "stern v. Sevastopulo, 268, 269 Stevens v. Mayor of Berwick, 234 Stewart v. Smith, 264 Stillwell V. Euck, 256 Stoate V. Eew, 265, 266 Stone V. Strange, 243, 244, 2S», 254 Storey •«. Lord George Lennox, 2, 3, 8, 24, 52, 99, 100, 101, 140, 141, 172, 196 Stratford v. Hogan, 205 Street v. Brown, 235 V. Eigby, 10 Strode v. Blaokbume, 29 Stroud V. Deacon, 181 Stuart V. Lord Bute, 221 Suffolk (Lord) v. Green, 184 Summerfield v. Pritchard, 76 Sutherland i). Sutherland, 19, 28, 104, 217 Sutton V. Lord Scarborough, 184 Swabey v. Sutton, 28, 97, 161, 164, 202, 203, 205, 206 Swansea Eail. Co. v. Budd, 77 b XVIU TABLE OF CASES. Sweet V. Hunter, 106, 204 V. Southcote, 181 Swinborne v. Nelson, 98, 164, 167, 203, 206 T. Tagg w. South Devon Eail Co., 72 Talbot V. Marsbfield, 30, 31, 69, 70, 74, 137 Taylor v. Orompton, 7 V. Foster, 130 V. Heming, 55 V. Milner, 204, 206 V. Osborne, 241 V. Eundell, 36, 37, 74, 106, 109, 211, 217, 220, 221 V. Salmon, 77 V. Sbeppard, 79 Tebbutt V. Pabner, 239 Teed v. Oari'utliers, 207 Telford v. Euskin, 112, 213, 227, 228 Temperley v. Willett, 252 Tetley v. Easton, 271 Thol V. Leask, 263, 274 Tenob v. Cheese, 228 Thomas v. Dunn, 233, 241, 244 V. Morgan, 105 V. Eawlings, 121, 195 V. Secretary of State for India, 137 V. Tyler, 180 Thompson v. Dunn, 225, 226 V. Talk, 133, 134, 136 V. Eobson, 259 V. Teuton, 58, 68 Thorpe i). Macaulay, 7, 149, 150, 183 ThreUfall v. Webster, 233 Thring ». Edgar, 190, 192 Tipping V. Clarke, 15, 56, 60, 61, 215, 216 Tipping V. Coates, 133 Tobyn, Be, 39 Todd I). Gee, 177, 178, 184 Tomlinson v. Lymer, 18 Tonge V. Stakey, 191 Tooth V. Dean and Chapter of Can- terbury, 181 Toulmin v. Copeland, 15 Travis v. Collins, 235 Trinity House (Corporation of) v. Burge, 153 Tugwell I). Hooper, 125 Tupling V. Ward, 268, 269, 274 Turner v. Burkinshaw, 55 Tumey v. Bayley, 16, 96, 104, 160, 165 Turquand v. Wright, 1 18 Twentyman v. Barnes, 72 Twizell V. Allen, 237 Two SioUies (King of) v. Wilcox, 114, 150, 151, 153 Tyler v. Drayton, 52, 228 U. Underwood v. Secretary of State for India, 56, 136, 137 United States v. M'Eae, 153, 157, 185, 186 V. Wagner, 94 Unsworth v. Woodcock, 3, 51, 104 Uxbridge (Lord) v. Staveland, 149, 153 V. Vaughan v. Aldridge, 7 V. Fitzgerald, 86 Vent V. Paoey, 135 Vidi V. Smith, 284 Villeboisnet v. Tobin, 268, 2'^0, 271 Volants. Soyer, 118, 119 W. Wadeer v. East India Co., 78, 148, 198 Wagstaff «. Bryan, 219 Wales (Princess of) v. Lord Liver- pool, 51, 54, 55, 56, 105, 233 Walker v. Corke, 81 V. Fletcher, 278, 279, 280 V. Kennedy, 50, 64, 69, 67 V. Wildman, 129 Walsh V. Trevanion, 182 Walsham v. Stainton, 44, 46, 89, 130, 131, 141, 197, 227, 228 Walsingham (Lord) v. Goodiioke, 119, 133, 134, 135, 137, 138, 139, 140 Warde v. Warde, 134, 143, 144 Warden v. Peddington, 65 Warrick v. Queen's CoUege, 45, 71, 104, 106, 147, 167, 203 Warwick v. Queen's Colleee, 141, 147 Wasney v. Tempest, 172 Waters v. Lord Shaftsbury, 149 TABLE OF CASES. XIX "Watsoa V. Parker, SS Watts ('. Penny, 231 AVebster i: Tkrellfall, 160 "Webster v. Webster, 184, 187 Weeks v. Argent, 123, 12-1 V. Stourton, 22 Welford v. Staintborpe, 39 Wellington v. MTntosb, 10 Wentwortb v. Lloyd, 120 Westfield v. Skipwitb, 231 Westminster, &c., Colliery Co. i-. Clayton, 56, 61, 62, 65, 70 Wbaley v. Brancker, 277, 2S2 Wharton v. Wharton, 215, 217 Wbateley v. Cra-wford, 273 ■». Crowter, 263, 265 Wheat V. Graham, 79 Wheatley©. Williams, 118 Whiffen v. Haxtwrigbt, 16 V/hitbourne v. Pettifer, 239 "UTiitbread v. Gurney, 146 Whitchurch v. Golduig, 88 Y\Tiite V. Storey, 283 V. Watts, 260 V. Williams, 223 "Whiting V. Eush, 93, 207 "Whitmore c. Thornton, 11, 12 "Whittington v. Burgoyne, 152 "Whitworth v. Davis, 89, 91 Wich V. Parker, 217 Wilkinson v. L'Eaugier, 158 WiUett V. Thiselton, 65 Williams v. Farington, 153, 205 V. Prince of Wales Co., 72, 73, 77, 81 V. Steward, 178 V. Trye, 150 Wilmot «. Maccabe, 7, 84 Wilson V. Bates, 57 V. Porster, 20, 181 V. Hammonds, 190 V. EastaU, 117, 119, 122, 128, 133 Wimburn v. Lloyd, 165 Winchester, Bishop of, v. Bowker, 98 Wing V. Harvey, 53 Wolverhampton Waterworks Co., V. Hawksford, 274 Wood, Re, 15 V. Hitchings, 85, 160, 205 D. Morewood, 239 Woodcock V King, 229 V. Worthington, 235 Woodhatch v. Freelafid, 59, 109, 211 Woodroffe v. Daniel, 74, 214 Woods V. Woods, 30, 100, 106, 137 WooUey v. North London iiail. Co., 145, 247, 248, 253, 258 V. Pole, 144, 145, 146, 248, 259, 260 Woolmer v. Devereux, 233, 243, 244 Wools V. Walley, 153 Wright V. Chard, 202 V. Goodlake, 264 V. Morrey, 233, 244 V. Pitt, 55, 56, 61, 62 V. Vernon, 25, 29, 44, 104, 160 Wrottesley v. Bendish, 156, 205 Wroughton v. Barclay, 109 Wych V. Meal, 93 Wynne v. Humberstone, 30, 66, 134 York V. Fiy, 190 Young V. "White, 187, 193 Z. Zarifi c. Thornton, 274 Zambaco v. Cassavetti, 48 Zychliaski v. Maltby, 262, 264, 271 A TEEATISE ON THE LAW OF DISCOVEEY. PAET I. discovj:ry and production of documents in equity. CHAPTER I. GENERAL CONSIDERATIONS— JUEISDICTIOU", &c., &c. The jurisdiction of the Court of Chancery to compel '^^^p- I- a defendant in a suit to discover and set forth upon Jurisdic- tion, oath every fact and circumstance within his knowledge, information, and belig^material to the case of the plain- tiff, is part of the original and proper office of the court. There is no branch of the jurisdiction of more extensive application, and there is none which, when kept within due bounds, is more conducive to the interests of justice. According to the general rule which prevails in Courts of ^i^a* is . discovery. Equity, every defendant is bound to discover all the facts within his knowledge, and to produce all documents in his possession which are material to the case of the plain- tiff. However disagreeable it may be to make the dis- closure, however contrary to his own personal interests, however fatal to the claim upon which he may have B 2 DISCOVERY. Chap. I. insisted, he is required and compelled, under the most solemn sanction, to set forth all he knows, beUeves, and thinks in relation to the matter in question. The plain- tiff being subject to the like obligations on the requisition of the defendant, the greatest security which the nature of the case is supposed to admit of is afforded for the discovery of all relevant truth, and by means of such discovery the Court of Chancery has always proved to be of transcendent utility in the administration of justice (a). The principle upon which the court has always acted is to promote and compel the disclosure of the whole truth relevant to the matters in question, and every exception requires a sufficient and distinct justification. It need not be observed what risks attend all attempts to ad- minister justice in cases where relevant truth is concealed, and how important it must be to diminish those risks, and that if there be any cases in which, for predominant reasons, parties ought to be permitted or be held privi- leged to conceal relevant truth, those cases ought to be strictly defined and strictly limited by authority (&). The discoveiy which a Court of Equity enforces is not con- fined to a discovery of facts resting merely in the knowledge of the party from whom discovery is sought, but extends also to deeds, papers, and writings of every description in his possession or power which may help to make out the case of the party seeking the discovery. The party from whom discovery is required is bound to produce (as part of the discovery, he is required to make and complete (a) Flight v. RoUnson, 8 Beav. T. King, 1 Beav. 137 ; Churton 34, per Lord Langdale; see v. Freioen, 2 Dr. & Sm. 393; Oreenough v. Oasleell, 1 M. & K. Sroum y. Pearsmi, 9 Jur. N. S. 100 ; Combe v. Citj/ of London, 79] . 4 Y & 0. 155 ; Sioret/ v. Lord (h) Flight y. Bobinson, 8 Beav. O. Lennox, 1 Ke. 350 ; Greenlaw 34. DISCOVERY. ; his answer, which would otherwise be imperfect) all the Chap. I. papers which he admits to be in his possession and to relate to the matters in question (c). In compelling a party to a suit to give discovery, the court merely administers to the ends of justice without pronouncing any decision upon the rights of the parties (d). All it does is to possess the party who appears to have a right of the evidence which is necessary to make his right available (e). The discovery is given, either because the party seeking it cannot otherwise prove the facts, or in aid of proof, or to avoid expense (/). The jurisdiction of the Court of Chancery in com- DiscoTery pelling discovery is not limited to cases in which the OTooeedings entire proceedings in a suit are in equity, but will be ^" °^^^ exercised to assist the administration of justice where a suit respecting a civil right has been instituted in some other court, and discovery is necessary in order to enable the party seeking; the discovery to sustain his case, and in order to enable the court in which the trial is to be had duly to perform its duty (g). The court does not, upon a bill of discovery in aid of proceedings in another court, interfere with the rights of the parties. It merely gives the discovery, and leaves the parties to make the best use of the discovery they can. The court will not, on (c) Evans v. Richard, 1 Sw. of the suit; Hope v. Liddell, 7 7 ; Unsworth v. Woodcock, 3 D. M. & O. 338 ; GasJcell v. Madd. 432 ; Storey v. JOord G. Chambers, 26 Beav. 303. Lennox, 1 Ke. 350; Eambrook {d) Mitf. PL 172. V. Smith, 17 Sim. 215. There (e) 2 Fonb. Eq. 487. is a clear distinction between (/) 2 Atk. 241 ; 2 Ves. 492 ; cases in which the production Chadwick v. Ohadwick, 22 L. J. of documents is sought for the Ch. 330. purpose of discovery, and oases (g) See Benyon v. Nettlefold, in which the delivering up of 3 Mao. & G. 103; Ellice v. documents alleged to be im- iJowpc??, 32Beav. 311. properly withheld is the object B 2 4 DISCOVERT. Chap. I. granting discovery, interfere so as to relieve the plaintiff in equity from the necessity of doing that which he is by law bound to do in the court in which the discovery is to be made use of, or give him a benefit beyond that which he is entitled to derive from the answer (h). Eight to The necessity a party may be under, from the very nature does°no7 of a given transaction, to come into equity for discovery, itri^hUo ^^ * circumstance to be regarded in considering the juris- relief. diction of the court to give relief in the same case ; but the necessity of coming into equity for discovery does not necessarily carry with it the right to relief (i). Against The discovery obtained by a bill in equity is only avail- cove^ can ^^^® against the answering defendant. It cannot be read be used. g^g. evidence against a co-defendant, unless he refers to it by his answer as correct, or is so connected with the answer- ing party as to be bound under the ordinary rules of law Whether by his declarations or admissions (/«). Although in a cause can be read Seeking relief in equity the plaintifif may, perhaps, be the'answ™ entitled to read documents obtained from the defendant's answer, apart from the body of the answer (T) ; at law he can only read them as part of his answer, and will thereby have the benefit of the explanation he has there given (m). Discovery The Roman law provided similar means by the oath of Eoman ° t^© parties, and by a bill of discovery to obtain due proofs ^*^' of the material facts in controversy between the parties. There seem to have been originally three modes adopted for this purpose. One was, upon a due act of summons, (A) Brown v. Thornton, 1 M. v. Pledger, 3 Ha. 165. & 0. 248. (Z) Miller v. Gow, 1 T. & 0. (i) Pearce v. Creawich, 2 Ha, C. 0. 56. 286, (m) Brown v. Thornton, 1 M. {h) Mitf. PI. 223 ; Chervet v. & 0. 243 ; Miller y. Gow, 1 Y, Jmrn, 6 Madd. 267 ; Crosse v, & 0. 0. 0. 56. BedingfieU, 12 Sim. 35; Green DISCOVERT. I to require the party without oath to make a statement or Chap. I. confession generally relative to the matter in controversy. Another was, to require him to answer, before the proper judge, to certain interrogatories propounded in the form of distinct articles which the judge might in his discretion order him to answer upon oath. The third was to require the adverse party to answer upon oath as to the fact in controversy, the party applying for the answer consenting to take the answer so given upon oath as truth. On this account it was called the decisive or decisory oath ; and it admitted of no countervailing and contradictory evidence. In the two' other former cases other proofs were admis- sible (n). Ubicunque judicem cequitas movent, ceque oporiere fien interrogationem, duhium non est (o). Vo- luit Prcetor adstringere eu7n, qui convenitur ex sua in judicio responsioTie, ut vel confitendo vel mentiendo sese oneret (p). In the Roman law, bills of discovery were called actiones ad exhibendum when they related to the pro- duction of things, or deeds, or documents in which an- other person had an interest (q). When they required the answer of the party on oath to interrogatories, they were called actiones interrogatorice (r). It seems that originally interrogatory actions might be propounded at any time before suit brought by any party having any interest. But we are informed in the Digest that in the time of Justinian they had become obsolete, and inter- rogatories were propounded only in cases of litigation. Interrogatoriis autem actionibus hodie non utimur quia Tiemo cogitur ante judicium de suo jure aliquod (n) 1 Domat.B. 1, tit. 6, s. 5, (2) Poth. Pand. Lib. 10, tit. art. 4, 5. 4, n. 1 to 7 ; id. n. 8 to 30. (0) Dig. Lib. 11, tit. 1, 1. 21. (r) Poth. Pand. Lib. 11, tit. {p) Dig. Lib. 11, tit. 1, 1. 4. 1, n. 1 to 24, and note (2). 6 DISCOVERY. Ciap. I. respondere. Ideoque minus frequentantur et in desue- tudinem abierunt. Bed tantwmrrvodo ad probationes litigatoribus sufficiunt ea quce ex adversa parte expressa fuerint apud judices vel in Jicereditatibus vel in aliis rebus quae in causis vertuntur (s). The Roman law also required that the party seeking a discovery of facts should have a legal capacity to sustain himself in court, and that the discovery should be in respect of some right of action (^). It is not, however, necessary to trace out the analogies of the Roman law on this subject. Enough has been said to show the probable origin of the like pro- ceedings in Courts of Equity (u). In what Discovery can only be had in aid of proceedings which coverfcan I'^late to civil rights. " A bill of discovery," said Lord be had. Hardwicke, " lies here in aid of some proceeding in this court in order to deliver the party from the necessity of procuring evidence, or to aid the proceedings 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 information, or to aid the defence to it " (cc). A bill of discovery in aid of an action at law cannot, accordingly, be entertained where the whole object of the bill is to obtain discovery of matters which would, if established, subject the defendant to penal consequences, nor, it seems, where the discovery is sought in aid of an action for a mere per- sonal tort (y). But if a party chooses to treat the matter as a civil injury, and not as an indictable offence, and goes into (s) Poth. Pand. Lib. 11, n. (a;) Montague v. Ikidman, 2 24; Dig. Lib. 11, tit. 1, 1. 1, Ves. 397; see CartwrigU v. art. 1. Oreen, 8 Ves. 405. if) Poth. Pand. Lib. 11, tit. {y) Qlyn v. Houston, 1 Ee, 1, n. 13, 15. 337. (u) Story, Eq. Jur. 1486. DISCOVERY. 7 a court of law for recompense by way of damages, it is Chap. I. no objection to a bill of discovery that the matter in question might have been the subject of an indictment or information. In a case accordingly where an action for damages has been brought against the author of a libel, he may, it would seem, be permitted, in particular cases, to maintain a bill of discovery in support of a plea of jus- tification {£), but, as a general rule, a person who ventures to publish a libel or utter slander should be in a condition to justify his conduct, and not come to the court to ask for assistance to get up proof in favour of his case (a). A shareholder, accordingly, in a joint-stock company, was held not entitled to an inspection of their books for the purpose of proving a plea of justification in an action against him for a libel imputing insolvency to the com- pany (6). It is no objection that the discovery be sought in aid of actions which sound in tort(c). Bills may also be brought for discovery in aid of or in defence to actions if trespass (cZ) and trover (e) ; and, in general, there seems to be no civil right the trial of which will not be aided by a bill of discovery (/). Discovery will not be given to the plaintiff at law in aid of an action which is contrary to public policy (g). A party, however, who is sued at law {z) Macaulay v. ScMkell, 1 {d) Taylors. Crompton, 'Qxmh. Bligh. N. S. 126 ; see Wilmot v. 95. Maccahe, 4 Sim. 265. (e) 1 Vem. 308 ; Shane v. (a) Metropolitan Saloon Omni- Eeathfield, Bunb. 18 ; Lord hus Co. V. Hawkins, 4 H. & N. . Macclesfield v. Davis, 3 V. & B. 150; see TJwrpe v. Macaulay, 5 IS, per Lord Eldon. Madd. 230. (/) See Vawghan v. Aldridge, (6) Metropolitan Saloon Omni- Porrest, 42 ; Reg. v. Ambergate, his Co. V. Sawkinn, 4 H. & N. Greenwood v, Bothwdl, ib. 22 EXTENT AND LIMITS .Chap. 11. It makes no difference in the application of the rule that the mortgage has been made under a power reserved in a settlement (/c). Nor can a mortgagee be called upon to state over which part of the estate his mortgage extends, as that would be stating the contents of his title-deeds (l). Although as between cestui que trust and trustee, or a person in the situation of a trustee, the cestui que trust is entitled to the production of title-deeds or other docu- ments, as of course ; yet the moment the trustee acquires the character of mortgagee, the right to production ceases, unless upon the offer to pay the mortgage-debt (m). So, also, although as a general rule a tenant in common is bound to produce the deeds for the inspection of another tenant in common, if one tenant in common mortgages his share of the estate to another tenant in common, and deposits the deeds with him, the mortgagee cannot be compelled to produce the deeds (n). So, also, if a tenant in common has sold his share of the estate, and has taken a mortgage of the share from the purchaser the party with whom he was formerly tenant in common 291 ; 13 L. J. Cli. 226 ; Gihson davit of document to be de- V. Rewett, 9 Beav. 293 ; Bendy livered to him, he should give V. Gross, 11 Beav. 91 : Jones v. previous notice to that eflfect to Jones, Kay, App. 6 ; Cannock the mortgagee, and it must be V. Jawncey, 1 Drew. 507 ; Lewis at his own expense ; Weeks v. V. Davis, 17 Jur. 253; Howard Stourton, 11 Jux. N. S. 278. V. RoUnson, 4 Drew. 526; {h) Chichester v. Lord Done- Sridgewater v. De Winton, 33 gal, L. R. 5 Oh. App. 497. The L. J. Oh. 238 ; Freeman v. same argument appHes to drafts Butler, 33 Beav. 289 ; Lockett v. and copies of deeds ; Bycro/t v. Gary, 10 Jur. N. S. 144; Batch Silel, 1 W. R. 96. V. Ward, L. E. 1 Eq. 436 ; (I) Addison v. Walke.r, 4 T. & Chichester v. Lord Donegal, ib. 0. 447. 5 Ch. App. 497. If the mort- (m) Johnston v. Tucker, 11 gagor intending to redeem Jur. 383. under the usual decree in a {n) EdimndY. Foley, m'RQ&Y. foreclosure suit requires an affi.-. 283. OF DISCOVERY. 2g has no right to call on him to show his mortgagor's Chap. 11. title (o). In Patch V. Ward {p), Stuart, V.-C, said that the rule that a mortgagee is not bound to produce his title-deeds, does not extend to the mortgage-deed itself, and that a mortgagee is always bound to produce the mortgage-deed for the inspection of the mortgagor, on the ground that the mortgage-deed is as much evidence of the mortgagor's title to redeem as it is of the mortgagee's estate {q). In Mercy v. Ferrers (r), a person who had mortgaged the estate and delivered the title-deeds to the mortgagee, but retaiued copies of the title-deeds, was ordered to pro- duce them at the instance of a party who claimed an interest in the estate against him, although the mort- gagees were not parties to the suit. Though a mortgagee who submits to be redeemed cannot be called upon to produce the mortgage and title-deeds, except on payment of the monies due on the mortgage, he must produce all accounts and vouchers in his possession relating to the mortgage (s). Production of a mortgage-deed may, however, be en- production forced in bankruptcy (t). So, also, the Court has power, °* """T*" ■■ under the Bankruptcy Act, 1861, s. 197, to order the pro- enforced in duction of a mortgage-deed. In a case, accordingly, where ruptcy. a creditor of a debtor, who had executed a registered deed, not passing any property, but containing a covenant to pay debts by instalments, summoned another creditor to be examined, and called upon him to produce a mortgage- (o) Lamlert v. Rogers, 2 Mer. (r) 4 Beav. 97. 490. Comp. Balls v. Margrave, («) Oihson v. Rewett, 9 Beav. 4 Beav. 119. 293; Freeman v. Butler, 33 (p) L. E. 1 Eq. 436. Beav. 289. See Owerav. Niekson, {q) See Buncombe v. Bavis, 1 3 El. & El. 602. Ha. 189; Wigram on Discov. (<) Ex parte Caldecott, Mont. 244, 287. 65. 24 EXTENT AND LIMITS Chap. II. deed which he held as part of the debtor's property, pro- duction was ordered (u). l)iscovery Documents, which have come into existence since the — a dTC™"* dispute between the parties has commenced, having re- ment ference to the dispute, are not necessarily protected exclusiTely from discovery, only because they might disclose the own 0^ ^ evidence to be given by the party from whom production is required (x). But if the Court is satisfied that the particular document, production of which is sought, stands in the same situation as one relating exclu- sively to the defendant's case, an order for its pro- duction will not be made (y). A survey, accordingly, or valuation of the property to which the question in the cause related, and described by the defendant as consisting of his evidence and supporting his case, and not that of the plaintiff, and made with a view to the defence in the suit, was held entitled to protection, as being a minute of the evidence which the defendant had procured since the dispute arose, for the purpose of his defence (0). " I could not," said Wigi-am, V.-C. (a), " order the production of this document without deciding that the plaintiff may require a discovery from the de- fendant of the particulars of the evidence to be given by each of his witnesses ; a decision which it would be diffi- cult to reconcile with the principle that each party has a right to know his opponent's case, but not the evidence on which that case is supported. I consider the valuation as being a minute furnished by a witness of the evidence he wUl give, and the defendant pledges his oath that it con- (m) Be Marie's Trust Deed, 30 L. J. Oh. 798. L. E. 1 Oh. App. 429. (y) Lhwellyn v. Baddeley, 1 (cb) Storey v. Lord G. Lennox, Ha. 532. 1 M. & 0. 534; Llewellyn v. (z) lb. Baddeley, IKa,. 532, perWigiam, (a) lb. V.-O. ; Felkin v. Lord BerberU OF DISCOVERY. 2o sists of his evidence, and supports the averments he has Chap. IL made in his answer. I give no opinion as to what the decision would have been if the plaintiff, by probing the conscience of the defendant, had elicited from him an admission that the valuation in question negatived the defendant's case. I decide only that, upon the evidence now before me, this particular document stands in the same situation as those which relate exclusively to the defendant's case. My impression during the argument of Storey v. Lord George Lennox was, that Lord Cottenham considered the privilege of a document in a case like this to depend in principle upon the purposes for which, and the circumstances under which, it was obtained, and not exclusively upon the character of the person who might actually obtain it " (6). So, also, copies of a supposed pedigree made for the use of counsel in a particular pro- ceeding, not as an admission of pedigree, but made merely for the purpose of informing counsel what was the repre- sentation of the defendant as to his own and the plaintiff's pedigree, was held not liable to be produced (c). So, also, where a solicitor writes letters for the purposes of the suit, and solely for the purpose of conducting it on behalf of his client, and obtains answers in reply, his client is not bound to produce them (d). So, also, communications be- tween a man and a non-professional agent employed in anticipation of litigation, and with a view to the prosecu- tion of a claim or a defence to a claim to the matter in dispute, are privileged from production (e). So, also, in a case where a bill was filed against the assignees of a bank- (l) See Preston v. Carr, IT. (d) Simpson v. Brown, 33 & J. 175 ; Felkin v. Lord Her- Beav. 482. bert, 30 L. J. Ch. 798. (e) Cfibhs v. Boss, L. E. 8 Eq. (c) Wright v. Vernon, 1 Drew. 522. 350. 26 EXTENT AND LIMITS Chap. 11. Documents impeached on the ground of fraud not pi-otected from pro- duction. In what cases mort- gagee bound to produce mortga^ rupt, to establish a charge on the assets of the bankrupt, and the assignees caused the plaintiff to be examined be- fore the Court of Bankruptcy in respect of the matter, it was held that they were not bound to produce office copies of the examination, on the ground that it was evidence in support of their defence (/). Though a party cannot be required to produce deeds or documents which are exclusively evidences of his own title, the case is different if a transaction be impeached on the ground of fraud. If a deed or agreement is impeached on the ground of fraud, and the production of the deed or agreement may be material in determining the question at issue in the suit, its production will be ordered, if a proper case be made out (cf). If a title-deed in the pos- session of a party be impeached, all the subsequent docu- ments which depend upon and proceed from it may be required to be produced as well as the deed itself QC). Although a mortgagee cannot, as a general rule, be required to produce the mortgage-deed before payment of the monies due on the security, the case is different if a special case be made out by the mortgagee (i). If, for example, there is a dispute as to the amount of the monies due on the mortgage security, and the mortgagor alleges that the deed has been falsified, and that a larger sum has been inserted in it than he has received or intended to (/) OandeeY. Stansfield, 4D. & J. 1 ; see Sapson y. Gubitt, 7 Jur. 77 ; Fenton y. Quee/n's Ferry, &c. Co., 38 L. J. Ch. 263. Comp. Sell v. Johnson, 1 J. & H. 682. (jr) Balch Y. Symes, T. & E. 87 ; Davis Y. Parry, 27 L. J. Ch. 294 ; Greenwood y. Greenwood, 6 W. E. 119. See Farrer v. ffutchinaon, 3 T. & 0.- 692; Neesom y. GlarJcson, 2 Ha. 166; C. P. 0. 93; Att.-Gen. y. Thompson, 8 Ha. 113, infra. {h) Jones r. Jones, Kay, App. 6 ; Gresley y. Mousley, 2 K. & J. 288. See Balch v. Symes, T. & E. 87. , (i) Philipps Y. Evans, 2 T. & C. 0. 0. 647 ; Howard v. Rolnn- son, 4 Drew. 626. See Owen v. Nickscm, 3 El. & El. 602. OF DISCOVERY. 27 receive, or if the mortgage-deed be impeached on the ■ctap. II. ground of fraud, the mortgagor is entitled to production of the mortgage-deed, and to discovery respecting it, before payment of the monies due on the mortgage (]S). So, also, if a mortgagee denies the title of the mortgagor claiming to redeem (J), or if the mortgagor alleges that the monies due on the mortgage have been paid off {m), production of the deed will be ordered for the purpose of trying the question at issue. If the mortgage has been paid off, the payment of the mortgage-money prevents the mortgagee from saying that he has a right to withhold production. He cannot be allowed, on the allegation that he is still a creditor, to withhold production (n). It is only when the matter as to which he is inten'o- Party has a. gated, or the documents which he has in his possession or gjj^j^ ^°gf power, are exclusivelv relevant to his own case that a ™™''y ^ ■^ •^ may help party has a right to withhold discovery. If the matters as to make to which he is interrogated, or the documents which he has in his possession or power, may support or help to make out the case of the party who requires discovery, and prove that as well as the case of the party from whom discovery is required, the discovery must be given. Though a party has no right to the discovery of matters, papers, or documents that exclusively evidence the title of the party from whom discovery is required to the (/c) Neate v. Latimer, 2 T. & 6. See Buncombe v. Davis, 1 0. 262, per Lord Abinger ; 'Sa,. 189; Lloyd y. Wait, 12 Sim. Philipps Y. Evans, 2 Y. & 0. 0. 103 ; Smith v. Barnes, L. E. 1 C. 647 ; Jones v. Jones, Kay, Eq. 65. App. 6; Bridgewatery. De Win- (m) Pilhington v. Himsworth, ton, 33 L. J. Ch. 238 ; Smith v. 1 T. & 0. 617 ; Jones v. Jones, Barnes, L. E. 1 Eq. 65 ; Patch Kay, App. 6. T. Ward, ib. 436. See Gill v. («) Cannock v. Jauncey, 1 Eyton, 7 Beav. 155. Drew. 507. (Z) Jones v. Jones, Kay, App. 28 EXTENT AND LIMITS Chap. II. matter in question, he has a right to the disclosure of matters and the production of documents which not only- help to make out the right and title of the party from whom discovery is required, but also help to make out the case of the party who requires discovery (o). The right of a party to discovery in support of his own case and title is not repelled, because by exercising that equitable right his adversary may be compelled to disclose the evidence in support of his own case and title. If the direct and immediate object of the discovery is not to compel a dis- closure of the evidence on which his adversary relies, although such an effect may be incidental to or conse- quential to the discovery, but the immediate purpose and object is to prove matters which he has an interest in establishing, he has a right to discovery notwithstanding it may produce to his adversary the consequences which he alleges (p). Though a party is not bound to produce his title-deeds for the inspection of his opponent, the case is different if the party seeking production has an equal interest in them with the holder. In such case he has an equal right to their production (q). A tenant in tail, accordingly, who has been barred by a recovery, though not entitled to see the deed by which the estate tail has been defeated (r), is entitled to see the deed by which the estate tail was created, although it is the foundation of (o) Smith V. Duke of Beaufort, ( p) Stainton v. Chadwick, 3 1 Ha. 520; 1 Ph. 219; Hard- Mao. & G. 585. man v. Ellames, 2 M. & K. 756 ; (g) Neate v. Latimer, 2 T. & Att.-Qen. v. Thompson, 8 Ha. 0. 262; Bolton Y. Corporation of 113; Sutherland v. Sutherland, 'Liverpool, 3 Sim. 480; 1 M. & 17 Beav. 209; Att.-Oen. v. Cor- K. 91; Att.-Gen. v. Ellison, 4 poratim, of London, 2 Mac. & G. Sim. 240; Eambrook v. Smith, 260; Mansell y. Feeny, 2 J. & 17 Sim. 214; Swdby y. Eutton, H. 323 ; Swaby v. Button, 1 H. 1 H. & M. 516. & M. 516. (r) Supra, p. 20. OF DISCOVERY. 29 his adversary's title as well as his own (s). So also in a ctap- H- suit for discovery in aid of an action of ejectment, the heir at law is entitled to the production of all such parts of deeds and writings as tend to shew or relate to the pedigree of the plaintiff (t). So also a party who claims as tenant in tail under a vnll, may call for the production of all documents in the possession of the defendant who claims as tenant in fee under the same will, which tend to prove his pedigree, the question at issue in the case being one of pure construction of the will (u). So also if a party is impeded in the recovery of his property at law merely by reason of his inability to identify it in con- sequence of confusion of boundaries, a Court of Equity will assist him by compelling a discovery of what are the boundaries, the names of the tenants, &c. (x). When land belonging to one person is held by another person, together with his own land, it is the duty of the latter to keep the boundaries distinct, so that the lessor may know what the property is. If the lands become confused, the party who has been the cause of that confusion is bound, if necessary, to produce any evidence in his possession, inclusive of his own title deeds, to elucidate the matter, but he is not subject to that necessity unless the fact could not be (s) Lady Shafteshury v. Ar- Jenkins v. Busliby, 35 L. J. Oh. rmomiUh, 4 Yes. 66 ; Bolton v. 400. See Lind v. Isle of Wight Cmporation of Liverpool, 1 M. & Ferry Co., 8 W. E. 540. The K. 91 ; Sumhuld v. Forteath, 3 pawnee of a bailee must dis- K. & J. 750. cover so as to enable the owner («) Sumbold V. Forteath, ib. to bring an action; Strode v. See Rennison v. Ashley, 2 Ves. Blackhurne, 3 Yes. 225. A iun. 462. customary heir may be entitled (m) Wright r. Vernon, 1 Bre-w. to a discovery of the fact whetber 344_ there any are unsurrendered (x) Loker v. Bolle, 3 Yes. 4; copyholds; Jones t. Jones, 3 Strode v. Blackhurne, ib. 225 ; Mer. 174. so EXTENT AND LIMITS f^ap. II. otherwise proved (3/). A person who is admitted to have had an interest or a cestui que trust under a vohintary settlement, and who claims to have still an interest under it, may require the production of the deed of trust and the other deeds depending thereon, in order to ascertain whether his interest really exists, though the trustee alleges that his original interest has been revoked by an appointment under a permanent power (2). Production Upon the same principle deeds, documents, and papers, mentnii ^^ which parties have a common interest, must be pro- which duced on the application of either of them. When parties, parties ^ ^ _ _ '■ have a accordingly, have a common interest in a suit, either party interest, has a right to know what has been done in the suit, and to see the documents in the suit (a). If the opinion of counsel has been taken as well for the plaintiff as the defendant, either party is entitled to the production of it if a dispute arises between them (6). So also a cestui que trust has a right to call for the production of documents in the hands of his trustee which relate to the matters of the trust (c). If the trustee has taken counsel's opinion to guide him in the execution of his trust, or on behalf of the trust estate, he must produce the case and opinion in a suit instituted by the cestui que trust against him {d). In a case where trustees had taken counsel's opinion as to whether they should exercise a discretionary power to advance part of their trust funds for the benefit of some of {y) Southwell v. Thompson, 6 (c) Att.-Gen. v. Berri/, 2 Coll. L. J. Oh. N. S. 196. 33. (z) Bugden y. Tyke, 21 Beav. {d ) Woods v. Woods, 4 Ha. 546 ; Bugdm v. South, 26 L. J. 84 ; Devayne v. Bobertson, 20 Ch. 425. Beav. 42 ; Wynne v. ffam- (a) Beynell v. Sprye, 10 Beav. berstme, 27 Beav. 421 ; on ap- 56. See Bapson v. CuMU, 7 peal, 32 L. T. 307; Talbot v. Jul-. 77. Marshfield, 2 Dr. & Sm. 549. (6) Att.-Oen. v. Berkeley, 2 J. SeePhilHppsY. Holmer, 15 W. E. & W. 291. 578. OF DISCOVERY. 31 cestuis qiie trustent, and others of the cestui que trustent Chap. II. filed a bill to restraiu them from exercising such discre- tion; it was held, on motion for production of the case and opinion, that all the cestuis que trustent had a right to inspection and production (e). So also in a suit by residuary legatees against the per- sonal representatives of a testator, all the documents must be produced, because from the very relation of the legatees to the testator they have a right to such production (/). Upon the same principle, as between two persons re- spectively admitting themselves to be tenants in common ■with each other, the court wiU order the production of the title deeds of the estate in the hands of either of them for the inspection of the other (g). In a clear case between a remainderman and a tenant for life, the remainderman is entitled to have the title deeds produced, for the purpose of enabling him to make the most he can by the sale of his inheritance as of that which belongs to him (h). But if his title is not clear, the court will not incidentally decide iu favour of the remainderman's title to an estate in a suit merely for the production of title deeds (i). In Ford v. FontesXJ), when a husband and wife had got a divorce by collusion, it was held, on bill filed by the representatives of the husband, that the representatives of the wife were bound to produce the correspondence of the wife and her solicitors and agents relating to the divorce, (e) Talbot v. Marshfield, 2 Dr. Deg. & Sm. 410. & Sm. 549. (A) Davis v. Lord Dysart, 20 (/) Greenwood v. Greenwood, Beav. 405; OTiicliester v. Lord 6 W. E. 119. Donegal, L. E. 4, Oh. App. 419 ; [g) Lambert v. Rogers, 2 Mer. see Shaw v. Shaw, 12 Pri. 163. 490 ; Maden v. Veevers, 7 Beav. {i) Pennell v. Lord Dysart, 27 489 ; Edmmds v. Foley, 30 Beav. Beav. 542. 283. Comp. Potter v. Waller, 2 U) ^ W. E. 299. 82 EXTENT AND LIMITS Chap. II. as it was for the joint and mutual benefit of both parties ; and there was no real contest between husband and wife. Production The rule that a party must give discovery and produce o/dom- ^ documents in his possession or power, if the discovery or T^mT" *^® documents may help to make out the case of the party his own -who requires discovery, applies to cases where the dis- covery or the documents help to make out the case of the party who requires discovery, by impeaching the title or destroying the claim of the party who is required to give the discovery (k). In Burrell v. Nicholson (V), the bill was for discovery in aid of an action to tiy whether the plaintiff's house was within the limits of a certain parish, and therefore liable as such to parochial rates, the defend- ants being the parish officers and the vestry-clerk of the parish. The court ordered the production of the rate- books and other documents, although containing evidence of the defendant's title upon the ground that the question was one of boundary, and the documents in question might afford negative evidence of the plaintiff's title by showing that his house was not within the parish in ques- tion (m). So also in Smith v. Duke of Beaufort (n), where the question was, whether the defendant was bound to produce documents tending to prove that a custom or claim to dues demanded by him had varied at different periods as to the quantity of toll and in other respects, and thereby to impeach its legal existence and validity. The defence was that the documents were the defendant's title-deeds and evidenced his right to the duty in ques- tion ; but the documents were ordered to be produced, {k) Olascott T. Copper Miner's (m) 3 K. & J. 552, per Lord Co., 11 Sim. 305; Jenkins v. Hatherley; see Att. - Ge7i. y» BusKby, 35 L. J. Ch. 400 ; Botjd Lamhe, 3 T. & 0. 162. V. Pelrie, 17 W. E. 903. {n) 1 Ha. 507 ; 1 Ph. 209. {I) 1 M. & K. 681. OF DISCOVERY. 33 upon the ground that they did not exclusively evidence Chap. II. the defendant's title, but that by showing the variations in the amount of toll or custom alleged by the bill to have taken place at different periods, they tended to disprove the defendant's title (o). So also in a case of disputed boundaries, when the question at issue was whether a piece of land was or was not identical with another piece of land, the plaintiff maintaining the negative and the defendant the affirmative, it was held that the plaintiff was entitled to a production of whatever documents re- lating to the matters in issue might aid him in establishing his negative averment, notwithstanding such documents might also evidence the defendant's title {f). So also in a case where the question was whether certain land and mines belonged to the plaintiff or the defendant, and the question was one of boundary, the defendant was ordered to produce documents relating to the matters in issue (g). The same principle applies where the bill seeks to impeach a document, and alleges that its invalidity would appear upon inspection. In such a case inspection before the hearing will be permitted unless the answer sufficiently displaces the charge (r). Though a party is not entitled to a discovery of the Plaintiff documents or proofs by which the case of his adversary is seeking to be established, the plaintiff, in a bill seeking relief, entiUed to is entitled to a discovery from the defendant of what the » djsoof ery •' _ of tne case case is on which he relies, and how he makes it out (s). of the defendant, (o) 3 E. & J. 553, per Lord (5) Jenkins v. Bmhhy, 35 L. Hatherley ; see Conibe v. Corpo- J. Oh. 400. ratim of London, 15 L. J. Oh. {r) Kennedy v. Oreen, 6 Sim. 83 ; Hunt v. Hewitt, 7 Exch. 7 ; Neesom v. ClarJcson, 2 Ha. 243. 166. See Att.-Oen. v. Thompson, . (p) Earp v. Lloyd, 3 K. & J. 8 Ha. 114. 549, see Lind v. Ish of Wight (s) Att.-Oen. v. Corporation of Ferry Co., 8 W. E. 540. London, 1 Mac. & G. 258; In- 34 EXTENT AND LIMITS Chap. II. He is entitled not only to a discovery of that wliich con- stitutes his own original title, but also to a discovery of everything which may enable him to defeat the title which he anticipates will be set up against him. If a defence may be set up against him which he cannot anti- cipate, or if there is reason to apprehend that the de- fendant will not put some matter in issue which may constitute his defence, or if he wishes for more informa- tion about it than he thinks he is likely to get without putting such a question, he has a right to ask what the defence is (t). It is not enough for the defendant to deny the plaintiff's title, and to assert his own, but he must also show how he derives his right ; must show, in short, that he has a title which, if proved, would displace that of the plaintiff (w). The common rules of pleading make it necessary that the defendant should so state his case that the plaintiff may know with certainty what case he has to meet, so that he shall be secure against surprise (x). In a case where a contest having arisen between the Crown and the Corporation of London for the purpose of determining their respective rights in the soil and bed of the Thames, a bill was filed on the part of the Crown, - in which it was alleged that no charter given by the Crown to the Corporation contained any grant of the soil to the Corporation, and an interrogatory was founded on the allegation ; it was held, that the Ciown had a right to gilhy v. Shafto, 33 Beav. 41. See 41. See Scott v. Walk^, 2 E. & Preston v. Carr, 1 Y. & J. 179 ; B. 560 ; Bayley v. Griffitlis, l.H. Lkwellyn v. Baddeley, 1 Ha. & 0. 429 ; Goodman y. Hol/royd, 532 ; Qarh v. Bohinson, 3 Jur. 15 0. B. N. S. 839. N. S. 633. [u) Att.-Oen. y. Corporation (0 AU.-Oen. v. Corporation o/ion(fore, 2 Mac. & G. 258. of London, 2 Mac. & G. 258; (x) Ingilby y. Shafto, 33Bea,Y. Bellwood V. Wetherell, 1 T. & 0. 41. 216 ; Ingilby v. Shafto, 33 Beav. OF DISCOVERY. 35 a discovery of what those charters did or did not contain, Chap. II. so far as it constituted the title of the Crown. It was also held, that the Crown was entitled to ask under what title the Corporation claimed the property which the Crown asserted to be still vested in it {y), and whether certain acts of ownership done by the Corporation were referable to their claim of title, or to their power and authority as conservators of the river (0). A party cannot protect himself from discovery on the Party ground of disclosing the evidence of his own title where -spitiihoid he has in point of fact set up no title, but merely nega- discovery tives the title of the party who seeks production. If the ground of T . . T 1 • • -disclosing party against whom production is sought has in point 01 his own fact set up no title, but merely negatives the title of^^^jj^^^^ the party asking for production, he cannot escape pro- **•=* f ^* "P duction on the ground that the documents only evidence his own case (a). If a party has not set up an adverse title, he cannot protect himself by the rule that a man is not compellable to make a discovery relating to his own title, because that must be founded upon his having set up some title. There must be some legal foundation for his title before a party is to be at liberty on that ground to protect himself from discovery. He cannot do so under an idea of that being his own title which is merely in fact a negation of the title of his adversary (6). It would seem to have been the opinion of Shadwell I'^fendant ■^ entitled to V.-C, from his observations in Lowndes v. Bavies (c), discovery under the old practice, that a plaintiff seeking relief was tiff of liis subject, on a cross bill being filed against him, to a more "^^^'"^ inquisitorial jurisdiction in respect of discovery than a {y) Att.-Oen. v. GorporaUon o/' ZoKtiow, 2 Mac. & G. 261. o/Limdon, 2 Mac. & G. 262, 263. (i) lb. 265. (z) lb. (c) 6 Sim. 468. (a) Att.-Gen. v. Corporation 1) 2 36 EXTENT AND LIMITS Gliap. II. defendant against whom relief was sought ; or, in other words, that a party seeking to enforce his rights sub- mitted, by so doing, to have his title inquired into, in a manner more rigid than that which was sanctioned by the court in the ordinary course of its jurisdiction. But "Wigram, V.-C, was of opinion that the party who sought relief was, when himself made defendant in a cross suit, entitled to precisely the same privileges as the defendant in the original suit, with respect to the evidences of his own title only (d). Under the new practice, however, by way of inter- rogatories, a defendant may ask any question tending to destroy the plaintiff's claim (e). Production Although a party is entitled to the production of docu- ments not ments in the possession or power of his adversary, which ordered un- jQ^y help to make out his case, he cannot have production 16SS uil6 possession unless the documents are in the exclusive possession of gjya his adversary. If it appears that a document is not in the exclusive possession of the party from whom pro- duction is required, but is in the possession of somebody else, jointly with him, who is not before the court, the court will not order him to produce it ; and that for two reasons ; one is, that a party will not be ordered to do that which he cannot or may not be able to do ; the other is, that another party, not present, has an interest in the document which the court cannot deal with (/). It must, however, be remembered that where possession, for the purpose of production, is spoken of, that is to say, a right and power to deal with it, actual corporeal possession is {d) Wigram on Discov. 291. 112 ; Seid v. Langlois, 1 Mac. & (e) Eoffmam v. Postill, L. E. G. 636; Burlidge v. RoUnson, 2 4 Oil. App. 672, infra, p. 50. Mao. & G. 246 ; Penn^^. Goode, (/) Mmray y. Walter, Or. & 1 Drew. 474. Seefuither, infra. Ph. 124 ; Taylor v. Bundell, lb. OF DISCOVERY. 37 not meant, but legal possession, in respect of which the Chap. II. party is authorised to deal with the property in question. Although documents may be corporeally in the actual possession of a party, there can be no production unless they are in his sole legal possession (gr). The possession of an agent being in law the possession of the principal, documents in the possession of an agent are considered to be in the exclusive possession of the principal Qi). But there cannot be production if the agent, in whose hands the document is, is the agent in respect of the document, not only for the party against whom pro- duction is prayed, but also for other parties who have a joint interest in it, and are not before the court (i). The rule, that where a party has joint possession of a Party document with somebody else who is not before the court, not in production will not be ordered, does not apply to the case ^^^ "^^^® of discovery, in which the only question is whether, as "^ * '^'"'^- between the plaintiff and defendant, the plaintiff is en- give dis- titled to an answer to the question he asks ; for if he is, the defendant is bound to answer it satisfactorily, or at least to show that he has done so as far as his means of information will permit. If a party is required, at the suit of a person entitled to ask it, to give discovery as to matters contained in books, documents, &c., &c., he is not entitled to withhold discovery on the gi-ound that there are other persons interested in the matter, but must give all the information in his power as to such documents as he has partial possession of, and make discovery of their contents, so far as they are material (k). (g) Reid v. Langlois, 1 Mac. 500. & G. 636. See Formanr. Mvill, {i) Murray v. Walter, Or. & 14 L. J. Oh. 3.3. Ph. 124. See further, infra, (h) Farguharson v. Balfour, T. {h) Taylor v. Rundell, Or. & &E. 190; ^Z'irA v. 5er-807i, 7 Pri. Ph. 112; Lopez v. Deacon, 6 205 ; Morric, v. Swaby, 2 Beav. Beav. 258 ; Clinch v. Financial S8 EXTENT AND LIMITS Chap. II. A defendant who avers to the best of his belief, and Party not sets out documents in his possession, is not bound to prXcel include documents and to furnish information which he tST* ^^^^'^^ himself obtain, except by enforcing at his own cost can only a Covenant for production against a third party who holds enforcing the documents under a covenant to produce them to the for°OT^"* defendant for the purpose of defending and manifesting duction tig title. Where a defendant holds a covenant for the against i ■ /■ i a third production of deeds for the maintenance and manifesta- ^ ^' tion of his own title, he is not bound, in answer to inter- rogatories, to set out such deeds in a suit the object of which is to show that a disputed piece of land is not com- prised in the defendant's title. The covenant was not entered into for any such purpose as to compel the cove- nantor to produce the deeds for the benefit of any third person who might question the extent of the land claimed to be conveyed by them (I). Party in If a defendant has in his possession letters written to possession ■, . ■, of letters him by a person not a party to the suit, and which are produce" admitted to be material, the court may compel him to produce them, even though they were marked " private and confidential," and though the writer objected to the production (m). " The writer," said Lord Cairns (to), " is supposed to intend that the receiver may use it for any lawful purpose, and it has been held that publication is not a lawful purpose. But if there is a lawful purpose for which a letter can be used, it is the production of it in a court of justice for the furtherance of the ends of justice " (o). Corporation, L. E. 2 Eq. 271 ; (l) Bethdl v. Casson, 1 H. & BoviU v. Oowan, 15 W. E. 608. M. 807. See Att.-Gen. v. East Retford, 2 (m) Eopkinson v. Lord Bvr- M. & K. 35 ; Hooper v. Oumm, high, L. E. 2 Oh. App 447 2 J. & H. 602. Oomp. Follett v. {n) lb. Jefferyes, 1 Sim. N. S. 16. (o) PenketJiTnan v. WhUe, 2 W. them. OF DISCOVERY. 39 A party may, by neglect of the rules of pleading, concede Chap. II. to his adversary a right to a discovery to which he would How not otherwise have been entitled. In Hardman v. M- S^f raief lames (p), it was held that when a defendant in his "* pleading may give a answer sets forth or states shortly, or in part, the effect or plaintiff a purport of a document, which is evidence only of his own Sscove^y case, and for the sake of gi-eater certainty refers to the ^° "^^"^ document when produced, he by force of that reference ^°} other- makes the document part of his answer, so as to entitle been en- the plaintiff to have it produced upon motion, although *'* ® ' without the reference the document would have been privileged (g). In this Treatise on Discovery, Vice-Chan- cellor Wigi-am'(i'), after a long and careful consideration of the question, dissents from the judgment in Hardman V. ElUmies. He admits that words of reference to a docu- ment, partially stated in the pleadings, may be most material in deteitoining upon the whole record, whether the plaintiff has such an interest in it as entitles him to call for its production ; but is of opinion that the mere reference partially stated in the answer, should not conclu- sively decide the plaintiff's right to production, irrespective of the nature of the instrument, or what may otherwise appear on the whole record. In Adams v. Fisher (s), how- ever. Lord Cottenham said, with reference to the criticism of Wigram, V.-C, on Hardman v. Ellames: "It was E. 380; Lee v. Eanvmerion, 12 Lambe, 3 Y. & 0. 170; Welford W. E. 975, where the report of v. Stainthorpe, 2 Beav. 587 ; * a medical officer being material, Hill v. Gomme, 6 L. J. Ch., was ordered to be produced, N. S. 258 ; Philippa v. Evans, 2 thougli confidential. See Re To- T. & 0. 0. 0. 647 ; Belsham v. h/n, 7 It. Ch. 81, as to the Harrison, 15 L. J. Ch. 438; production of messages by an Phelwn v. Hamilton, 9 Ir. Eq. Electric Telegraph Company. 264; Dundas v. Blake, 10 Ir, (p) 2M. &K:. 732. Eq. 260. {q) See Sparhe v. Moniriou, 1 [r) Pp. 295—304. Y. & C. 10 Mt.-Ocu. V. (s) 3 M. & 0. 548. 40 EXTENT AND LIMITS ^^v- H- certainly no new decision, and I was very much surprised to hear any one treat it as such, and when I came to look into the doctrine laid down in the books, I felt no doubt upon the subject. When a party has thought proper to put his defence upon a particular document, he himself having introduced and put it forward, he cannot be per- mitted to make any representation of it, however un- founded, which he pleases ; but the plaintiff is entitled to see whether the defendant has rightly stated it, not because the plaintiff has an interest in it. The principle is, that a defendant shall not avail himself of that mode of con- cealing his defend " (t). In MacJcintosh v. Great Western Railway Co. (u), accordingly Lord Cottenham adhered to the principle of his judgment in Hardman v. Mlames, and held that documents had been by a general reference so incorporated with the answer as to render it obligatory on the defendants to produce them, altHbugh, if it had not been for the general reference, making the documents part of the answer, they would have been exempted from dis- covery. The defendants there stated in the beginning- of their answer, that they could not answer further than as appeared therein, and in the various documents which were set forth in the schedule, and which they offered to produce. In the latter part of the answer, they admitted the possession of various documents, but insisted that some of them were privileged communications, and that they were, therefore, not bound to produce them, but it was held that they were bound to produce them, although they would have been privileged but for the statements in the answer. "In Hardmian v. Mlames," said Lord (i) See, as to tte rule at Waterworks Co., 7 C. B. N. S. common law where a party 826, infra. rests his defence on a document ; («.) 1 Mac. & G. "3, fenarth Harbour Co, v. Cardiff OF DISCOVERY. 41 Cottenham, " I said, that as this party has refei-red to the Chap. II. documents and partly set it out, he cannot afterwards tell the plaintiff he shall not see it. He is not bound to take the defendant's construction of ther document. If the defendant uses it at all, the plaintiff is entitled to know- that it was stated properly. If the defendant had set out any one of the documents and said, that ' except as therein mentioned, he did not know,' the plaintiff would clearly be entitled to see the document A statement of the defendant that he cannot answer except by reference to the documents which he refers to as part of the answer, and offers to produce, throws on him the obligation to produce them." In Mornington v. Mornington («), the defendant was interrogated as to the instructions given to her solicitor for a deed, which was impeached by the biU, and also, as to communications between herself or any persons on her behalf, and any persons acting on behalf of a third party. In her answer, she ignored " save as herein, and in the schedule hereto appears." By a sub- sequent clause as to documents generally, she claimed privilege for letters written by, and to her solicitor ; but in other parts of the schedule, as to which privilege was not claimed, were other documents which might satisfy the description of communications with third parties. It was held by Lord Hatherley, that the form of the answer was no bar to the privilege claimed : and semble, that even if there had bsen no documents mentioned in the schedule, free from the claim of privilege, to answer the description of the communications with third parties en- quired after, this would only be a ground for exceptions, and not for production of the documents as to which privilege was claimed. " In MacJdntosh v. Great Western Railway Co." said Lord Hatherley (y), " the answer of (a)) 2 J. & H. 703. {^J) lb. 42 EXTENT AND LIMITS Chap. II. the company contained an offer to produce the documents. It was impossible, therefore, to except, and the plaintiff, in fact, accepted the offer and claimed production, notwith- standing privilege was set up as to part of the documents by a subsequent clause of the answer. Here all that is said is : ' something may be found in certain privileged documents, but beyond that I can give no answer.' The defendant clearly cannot insist on the protection given to certain documents to relieve himself from answering fully, but this argument, however good on exceptions, is not available on a motion for production of privileged docu- ments. No difficulty would have arisen but for the reference it contains to communications, other than the instructions and letters to her solicitor as to a deed. If the answer had been confined to the instructions, no difEculty would have arisen. The difficulty arises from the fact that she was interrogated not only as to previous instructions to her solicitor, but also as to all communications between herself and any persons acting on her behalf, and' any persons acting on behalf of the plaintiff." In Howard v. Robinson {z), Kindersley, V.-C, expressed his disapproval of the judgment in Hardman v. Mlames. The plaintiff there had stated that the document in question was in the possession of the defendant, who admitted it to be in his possession, and to be to the effect stated in the bill, but craved leave to refer to it for greater certainty. Kin- dersley, V.-C, held, that the plaintiff was not entitled to production before the hearing. " If the putting the words of reference in the answer," he said (a), " would give the plaintiff a right of inspection, it appears to me it would be in the case where the deed is mentioned by the plaintiff^ and the defendant admits it, and refers to it, and z) 4 Drew. 526. (a) lb. 527. OF DISCOVERY. 43 not in the case where the defendant," as in Hardman v. Chap. II. Ellames, "sets up his own deed." But Lord Cottenham, in referring to Rardman v. Ellames in a subsequent case, Adams v. Fisher (b), says, " that decision is misunder- stood if it is supposed to decide that there is the right where the plaintiff mentions the deed." He says expressly, " all that it decides is that when the defendant sets up his own deed and refers to it, he must produce it." I am bound to say I do not follow the reasoning, though if this were that very case, I might be bound by the decision. But this, on the contrary, is the very case that Lord Cottenham says he did not mean to decide. This, there- fore, not being Hardman v. Ellames, it does not come within Lord Cottenham's decision." The judgment in Hardman v. Ellames, it may be ob- served, is merely to the effect that if a defendant states in his answer what the plaintiff has not referred to ; viz., that he has a deed which not only does not support, but de- stroys, the plaintiff's right, the plaintiff has a right to production (c). The mere reference by a party to a document relating Mere exclusively to his own title (d), or the mere statement in tj, ^ doou- an answer of the substance of a document, the contents of ™™* ™ , statement which the defendant is not bound to discover, does not of sub- make him liable to produce the document itself (e). But document as to documents the contents of which the defendant is dLt^doea bound to disclose, the plaintiff is not bound to be content p"* ™ake *■ . him liable with the defendant's statement of such contents, but is to produce; entitled to see the documents themselves (/). In a case, J".^* "e^f"^- tin not (6) 3 M. & 0. 549. (/) KniyU v. Lord Water- (c) 4 Drew. 526, per 'Eindeva- ford, 2 Y. & C. 29; Att.-Gen. ley, V.-C. V. Lamhe, 3 Y. & 0. 170; {d) Athymy. Wright, \^ Yea. Philipps v. Evans, 2 Y. & 0. 211. 0. 0. 647. (e) aiover v. EaU, 2 Ph. 484. 44 EXTENT AND LIMITS C^v- II- accordingly, where a bill was filed by a judgment creditor bound to seeking payment out of pi'operty which the defendant had defendant's assigned to another, impeaching the assignment, but offer- o^^dTra- ^^S to pay what the assignee might have advanced upon mentwhich the assignments, and the pleadings showed that the as- he is liable . -i j.t, i. j.i, i • to produce, signment was only a mortgage security, so tnat tne pJam- tiff established an interest in the documents, the court held, that the plaintiff was not bound to rest satisfied with the defendant's statement as to the contents of the docu- ments, but was entitled to the production of them (g). Documents If a party to a suit be in possession of documents which mrict ^^^ publici juris, his adversaiy has a right to call for their production. A pedigree, accordingly, obtained from the Heralds' College must be produced. It is no objection that it was produced at the expense of the party in whose possession it is (h). So, also, extracts from parish registers obtained by the party in whose possession they are for the purpose of showing his pedigree, which was in a great measure the same as that of his adversary, and intended to be used by him in an action of ejectment, were ordered to be produced (i). So, also, copies or extracts from, or references to, ancient documents or records in a public registry must be produced (A). So, also, an answer after it has been filed (l), a copy of an answer, or a brief of answer (m), are puhlici juris, and must be produced. So, also, must briefs of counsel be produced, so far as they are (g) Latimer v. Neate, 4 01. & 344. Fin. 570, explained by Glover {k) Churton v. Frewen, 2 Dr. v. Hall, 2 Ph. 490. See Hunt & Sm. 393. v. Elmes, 27 Beav. 62 ; Owen v. [1) Wahham v. Stainton, 2 II. Mckson, 3 EU. & EU. 602. & M. 1. See Knight v. Lord {h} Wright v. Vernon, 1 Drew. Waterfm-d, 2 Y. & 0. 42. 344. See 3 Sim. 480 ; Churton (m) Lamh v. Orton, 22 L. J. V. Frewen, 2 Dr. & Sm. 393. Oh. 713. («■) Wright V. Verrwn, 1 Drew. OF DISCOVERY. 45 copies of matters publid juris {n). Counsel's indorse- Chap. II. ment on a brief is puhlici ju7'is, and must be produced. So, also, notes made by a short-hand writer employed by one of the parties were ordered to be produced, so far as they merely described what took place in open court (o). Postmarks on letters are, it would seem, publici juris (p). So, also, are the court rolls of a manor (q). (ji) JVahham v. Stainton, 2 {q) Warrick v. Queen's College, H. & M. 1. L. E. 3 Eq. 683. See Knight v. (o) NichoU T. Jmes, 2 H. «Sb Lord Waterford, 2 T. & 0. 42. M. 588. Comp. Bapson t. See, as to costs, fees, &o., on Cubitt, 7 Jur, 77. production of Court Eolls, {p) Ramsbotham v. Senior, L. Hoare v. Wilson, L. E. 4 Eq. 1. E. 8 Eq. 578. tories. CHAPTER III. MODE OF OBTAIKING DISCOVERY AND THE PRODUCTION OF DOCUMENTS. Chap. IIL A. PLAINTIFF who requires discovery from a defendant Interroga- niust file and deliver to the defendant interrogatories within the time prescribed by the rules of the court {a), for a defendant is not bound to answer any charge or statement in the bill, unless specially and particularly interrogated thereto (b). If the plaintiff does not, within the time prescribed by the rules of the court, file and deliver interrogatories, he cannot, on amending his bill and filing interrogatories within the time prescribed after such amendment, require an answer except as to the amendments (c). The inter- rogatories must be filed within the time fixed by the rules of the court, notwithstanding that the bill has been de- murred to (cZ). Under the present practice the inten-ogatories are not required to be, as formerly, a Hteral echo of the bill (e). It is enough if there be a sufficient allegation in the biU (a) Ord. XI. 2, 3, see Morg. see Drake v. Byrnes, 2 D. P. Ch. Ord. 432. See, as to form & J. 81 ; Denia v. Bochussen, 4 of interrogatories, Ord. XI. I, Jnr. N. S. 298. Morg. Oh. Ord. App. 3. {d) Harding y. Pingey, 10 (6) 15 & 16 Vict. 86, s. 12; Jur. N. S. 874. Ord. XV. 3. (e) MucMeston v. Brown, 6 (c) Southampton Steam Boat Ves. 52. Co. Y. Bawlim, 12 W. E. 285; INTERROGATORIES. 47 on which to ground the interrogatory, and that the ques- Chap. III. tion be pertinent and material to the reUef sought by the bill (/)• It is not necessary to introduce into the bill allegations suggesting imaginary facts, in order to found an interrogatory. Where an interrogatoiy relates to matter which is pertinent and may be material to the case made by the bill, and which the plaintiff has no means of knowing except by interrogating the defendant, and where the interrogatory is founded on the general allegations of the bill, the defendant is bound to answer, although the interrogatory is not founded on a specific allegation (g). Where, accordingly, a bill charged the existence of a mortgage known to the plaintiff, but did not charge that there were others, an interrogatory " whether there were others " was held to be correct (h). So, also, where the bill alleged that land had been con- veyed to one Smith, and an interrogatory founded on the allegation inquired whether " it was not conveyed to Smith or to some other and what person or persons," it was held that the interrogatory was correct in form (i). A defendant may be interrogated as to books or papers in his possession relating to the matters in question in the suit, though there is no allegation in the bill that he has any (k). Interrogatories must be constructed with reference to the questions raised between the parties upon the record, else they are irrelevant (J). They must be confined to the (/) JodrdH. Slaneij, lOBeav. (i) Earp v. Lloyd, 4 K & J. 230; Simpson v. Chapman, 20 60. L. J. Ch. 89 ; Marsh v. Keith, (k) Perry v. Turpin, Kay, 1 Dr. & Sm. 347 ; Hudson v. App. 49 ; Parldnson v. Cham- Qrmfell, 3 Giff. 388; M'Oarel hers, 1 K. & J. 72; Manaell v. V. Moon, L. R. 10 Eq. 22. Ferny, 2 J. & H. 318. {g) M'Garel v. Moon, ib. (l) Jodrell y. Slaney, 10 Bear. (7») Marsh v. Keith, 1 Dr. & 230. See Simpson v. Chapman, Sm. 347. 20 L. J. Ch. 89. 48 INTEEROGATOEIES. Chap. III. substantive case made by the bill. The plaintifif cannot extend his interrogatories in such a manner as to com- pel a discovery of a distinct matter not included in the case (m). InteiTogatories must be limited to questions of fact. In determining, however, whether a question is one of fact, and therefore to be answered, it makes no difference that it is asked with reference to a written document. Where, accordingly, in a suit for the infringement of a patent, the defendant, in order to prove that there was no novelty in the plaintiff's patent, interrogated the plaintiff as to the inventions described in the specifications of previous patents, and asked him to show in what respects they differed from his, it was held that the plaintiff was bound to answer them (n). A variety of questions may be founded on a single charge if they are relevant to it (o). A single substantive charge of a specific fact — payment of money, for example — is sufficient to entitle the plain- tiff to gi-ound upon it all questions as to the circum- stances, when, where, &c., &c., it was paid, which may be material to establish the substantive charge (p). An interrogatory may embrace several questions {q). Interroga- Under the former practice, the only mode in which a defendant, defendant could obtain discoveiy from a plaintiff, was by filing a cross bill of discovery ; but, under the present practice, a defendant in any suit, but, in suits which he is (m) Bullock V. Bichardson, 11 Ves. 373, 375; Dan. Ch. Pi-. 442. (m) Hoffman v. PosUll, L. E. 4 Ch. App. 672. (o) Mitf. PI. 51 ; FauUer v. Stuart, 11 Ves. 296, 301 ; Jodrell V. Slaiiey, 10 Beav. 230. {p) Mitf. PL 54; Faulder y. Stuart, 11 Ves. 301. {q) Jodrell v. Slaney, 10 Beav. 225; Hamhrooh y. Smith, 17 Sim. 213 ; Higginaon v. Bleckley, 1 Jut. N. B. 1104. See Zam- baco V. Cassavetti, 38 L. J. Ch. 503. See further, as to inter- rogatories, Dan. Ch. Pr. 438— 445. INTEEEOGATOEIES. 49 required to answer, not until he has put in a sufficient Chap. III. answer, may, without filing a cross bill of discovery, file interrogatories for the examination of the plaintiff (r). These interrogatories should be filed in the Record and Writ Clerk's Office, and be delivered to the plaintiff or his solicitor in the same manner as inten-ogatories for the examination of a defendant (s). A concise statement of the subjects on which discovery is sought must be pre- fixed thereto (t). The plaintiff is bound to answer the interrogatories in like manner as if they had been founded on a bill of discovery filed by the defendant against the plaintiff on the day when such interrogatories were filed, and as if the defendant to such bill of discovery had on the same day duly appeared (w), and the plaintiff must file his answer and get such answer printed, and furnish printed copies thereof in the same manner as a defend- ant is required to do with respect to his answer (x). The practice of the court with reference to excepting to answers for insufficiency, or for scandal, extends and is applicable to answers put in to such interrogatories ; but in determining the materiality or relevancy of any such answer, or of any exception thereto, the court has regard to the statements contained in the original bill, and in the answer which may have been put in thereto by the defen- dant exhibiting the interrogatories (y). (r) 15 & 16 Vict. c. 86, s. 19. put in, if he states that the (s) lb. See, as to form of amendment is important for interrogatories, 3 Dan. Ch. Pr. the piirpose of making out his 1610; Braith. 39, 40. case; Crossley v. Dixon, L. E. {<) 15 & 16 Vict. c. 86, s. 19. 6 Eq. 332. See, as to form, 3 Dan. Oh. («) 15 & 16 Vict. c. 86, s. 19 ; Pr.' 1610; Braith. 3!i. A de- Dan. Ch. Pr. 1412. feiidant may obtain leave to (x) Ord. 6th March, 1860, r. amend his concise statement 11 ; Dan. Ch. Pr. 1413. with interrogatories after the {y) 15 & 16 Vict. c. 86, s. 19. answer of the plaintiff has been See, as to practice for excep- 50 INTEEROGATOEIES. Chap. III. An answer being considered as sufficient until it is successfully excepted to (z), a defendant may file inter- rogatories as soon as he has filed his answer (a). But if exceptions for insufficiency are filed to his answer, he cannot compel an answer from the plaintiff until the ex- piration of twenty-eight days from the time when his answer is found or deemed sufficient (6). If the excep- tions are ordered to stand over till the hearing, and are ^ neither allowed or disallowed, the defendant cannot, with- out special leave, file interrogatories (c). A defendant may file interrogatories after notice of motion for decree has been given, and the plaintiff has filed his affidavits, and proceedings in the suit wiU be stayed until the plaintiff has answered, unless there has been excessive delay (d). Interrogatories for the examination of a plaintiff are on a different footing from those for the examination of a defendant, in this respect, that a plaintiff is not entitled to a discovery of the defendant's case, but a defendant may ask any questions tending to destroy the plaintiff's claim (e). Where, accordingly, the case of the defendant is that the plaintiff's patent is invalid, everything that is material to show that is part of the defendant's case, and he is entitled to discovery as to all matters of fact which are or may be material to his case (/). If the plaintiff, in a patent suit, has sufficiently set out in his bill the tions, Dan. Oh. Pr. 701—716. (6) Dan. Oh. Pr. 1413. See, as to exceptions for scan- (c) Mertens v. Haigh, 1 J. & dal, id. 324-331, 701. H. 231. (z) Dan. Ch. Pr. 726. {d) BrMicher v. Carne, L. E. [a) Sibhald v. Lowrie, cited 2 2 Eq. 610. K. & J. 277. See La/one v. (e) Hoffman v. Postill, L. E. Falkland Islands Go., 2 E. & J. 4 Ch. App. 672. 276; Walker v. Kennedy, 3 Jur. (/) lb. N. S. 481. MODE OF OBTAINING PRODUCTION OF DOCUMENTS. 51 particulars of the infringement of which he complains, the Chap. III. defendant should not require him by interrogatory to state ' the particulars on which he relies (g). A plaintiff may lose his right to priority to an answer, as against a cross bill, and probably as against a concise statement by amending his bill (h) ; and the plaintiff's right of priority to an answer is only reserved in cases where he files interrogatories within the proper time. Therefore when the plaintiff had not filed any interroga- tories within the proper time, a defendant filing a cross bill and interrogatories, was held entitled to have his cross bill answered before he put in an answer to interrogatories subsequently filed by the original plaintiff (i). When a company or corporation aggregate is plaintiff, the defendant cannot file interrogatories for the examina- tion of its officers, if they are not parties to the suit (Je). The right of the plaintiff to obtain a knowledge of the Mode of contents of documents in the defendant's possession, was pr^'ugyon formerly exercised by the bill being so framed as to call °^ "1""="" meuts. upon the defendant to set forth the short contents of the deeds in question, or to produce them. If then, upon the coming in of the answer, the defendant admitted the possession of certain deeds, and described them so that they could be identified, the court, unless sufficient dis- closure had been made of their contents by the answer, would have ordered them to be produced (I). The expense (o) lb. W Athyns v. Wright, 14 Vea. (A) Dan. Cli. Pr. 367. See 211. See Princess of Wales v. Mertens v. Eaigh, 1 J. & H. Lord Liverpool, 1 Sw. 123; 231. Somerville v. Maclcay, 16 Ves. (i) Garwood -f. Curteis,\2'W. 387; Unsworth v. Woodcoch, 3 g 509. Madd.432; Hardmany.Ellames, {k) Imperial Mercantile Credit 2 M. &. K. 758 ; Adams v. Fisher, Association y. Whitham, L. E. 3 M. c& 0. 546; Smtth v. Dulce 3 Eq. 89. of Beaufort, 1 Ha. 524. u 2 S2 MODE OF OBTAINING .Chap. III. of setting out the contents of the deeds in the answer in some respects modified the practice, and it became the custom for the plaintiff to charge generally in the bill that the defendant had deeds and documents relating to the matters mentioned in the biU in his possession, and that by the contents of such deeds and documents if the same were produced the truth of the plaintiff's case would appear. Upon this charge interrogatories more or .less searching, according to the nature of the case, were usually founded ; so as to extort from the defendant an admission of the possession of the required documents ; and if such admission were obtained, it became competent for the plaintiff to apply for an order that the defendant might produce the required documents (m). Under the present practice, however, it is not necessary to insert a charge as to documents in the bill as a founda- tion for an interrogatory concerning them (n) ; nor is it necessary that there should be an interrogatory as to documents (o) ; or that the defendant should admit the possession of documents in his answer before production can be obtained (p). The court may, under the provi- sions of 15 & 16 Vict. c. 86, s. 18, upon the application of the plaintiff in any suit, whether the defendant may or may not (q) have been required to answer the bill, or may or may not have been interrogated as to the possession of (m) BeUiaon v. Farringdon, 3 Feeny, 2 J. & H. 318. P. W. 363 ; Evans v. Bichard, 1 (o) Law v. Indisputable Life Sw.1; Tyler Y. Drayton, 2 Sim, Policy Co., 10 Ha. App. 20; & St. 309 ; Storey v. L(yrd Q. Piffard v. Beehy, L. ■ E. 1 Eq'. Lennox, 1 Ke. 350; Peile v. 623. Btoddwrt, 1 Mac. & G. 195; {p) Bochdale Canal Co. v. Mansell v. Feeny, 2 J. & H. 318. King, 15 Beav. 11. («) Perry Y. Turpin, Kay, {q) See Parkinson y. Chambers, App. 49 ; Parkinson v. Cham- 1 K. & J. 72. lers, IK. & J. 72 ; Mansell v. PRODUCTION OF DOCUMENTS. 53 documents, make an order for the production by any de- Chap. III. fendant upon oath (r), of such of the documents in his possession or power relating to the ma.tters in question in the suit as the court shall think right, and the court may deal with such documents when produced in such manner as shall seem just (s). Though it is no longer necessaiy that there should be an interrogatory as to documents, there may be one. It is better, however, that there should be no such interroga- tory. If there be such an interrogatory, the defendant need not answer it, except by saying that he is ready and willing to make the usual affidavit as to documents. If he says he is ready and willing to make such an affidavit, no exception on the ground of his not having answered the interrogatory will be allowed ; but if the defendant thinks proper to answer it, and professing to answer it, answers it insufficiently, the plaintiff has a right to except. It makes no difference whether the exception as to documents is a single exception or is included among others (^). It is not sufiScient, however, in answering an interrogatory as to a particular document, to refer the plaintiff to the general affidavit of documents filed in the cause (u). Under the former practice, if discovery from the plain- How tiff concerning the contents of documents was necessary may obtaiu to a defendant for the purpose of enabling him to com- duction plete his defence to the case sought to be established ^^^°™- against him, he could in general only obtain such dis- (r) See Wing v. Harvey, 1 We Life, Policy Co., 10 Ha. App. Sm. & G. App. 11. 20; Colyer v. Colyer, 9 W. K. («) Seeiomiv. Orton, IDrew. 452; Barnard v. Hunter, 1 Jur. 414 ; Barnard v. Hunter, 1 Jur. N. S. 1065 ; Kidger v. Worsivick, N. S. 1065. 5 Jiir. N. S. 37. («) Piffard V. Beely, L. E. 1 («) Catt v. Towrle, 18 W. Eq. 623. See Law v. Indisjputa- E. 966. '54 MODE OF OBTAINING .Chap. III. covery by means of a cross bill (x). Upon such a bill being filed, the plaintiff in the original suit in his cha- racter of defendant to the cross bill, became liable to the application of the same rules concerning the production of documents as a defendant in any other cause {y). The legislature, however, with the view of giving a de- fendant, without the more costly process of a bill of dis- coveiy, the means of obtaining at a moderate expense the production of documents in the possession of the plaintiff which relate to the matters in question in the suit (z), declared by 15 & 16 Vict. c. 86, s. 20, that the court may, upon the application of the defendant in any suit (but in cases where the defendant is required to answer the plain- tiff's bill, not until he has put in a full and sufficient answer to the bill (a), unless the court shall make any order to the contrary (&) ), make an order for the- production by the plaintiff in such suit on oath of such of the docu- ments in his possession and power relating to the matters in question in the suit, as the court shall think right (c), and the court may deal with such documents when pro- duced in such manner as shall appear just (d). A defendant who is not required to answer the bill, but has obtained leave to put in a voluntary answer, may obtain under the section an order for production before putting in his answer (e) ; but if he is required to answer (a;) See Princess of Wales v. Walker v. Kennedy, 3 Jur. N. Lord Liverpool, 1 Sw. 123 ; Bate S. 481 ; Mertens v. Haigh, 1 T. Bate, 7 Beav. 537. J. & H. 233. [y) Dan. Cli. Pr. 1659, supra, (6) See Wallcer v. Kennedy, 3 P- 36. Jur. N. S. 481. (z) See M'Intosh v. Oreat (c) See M'IntoshY. Great West- Western Bailway Co., 1 Sm. & G. ern Railway Co., 1 Sm. & G. 9. 9 ; BocMale Canal Co. v. King, 15 (i) See Barnard v. ffumter, 1 Beav. 11. Jur. N. S. 1065. (a) See La/one v. Falkland (e) Bailey v. Bunherley, 27 L. Islands Co., 2 K & J. 276; J. Ch. 816. PEODUCTION OF DOCUMENTS. 6.> the bill, it is not the practice of the court to allow inspec- Chap. III. tion of documents by a defendant until he has filed his answer. If the court were to compel the plaintiff to pro- duce the evidence on which he founds his charge before the defendant puts in his answer, the defendant would be enabled to shape his defence according to the evidence which he knows to be in the plaintiff's possession (/). In one or two cases, under special circumstances, time has been given to the defendant to answer till documents were produced {g) ; but such is not the ordinary practice of the court (h). The mere fact of a document being stated in the bill does not enable the defendant to compel its pro- duction before putting in his answer (i). A motion for the production of documents must be Application founded on the answer or the affidavit of the party against auction whom the application is made. To entitle a party to o™"^^;^. move for the production of documents, there must be an^ionsinthe answer or admission upon the oath of the party against whom the affidavit. application is made that the documents are in his posses- sion, custody or power (Jc), and that they are relevant to (/) Halliday v. Temple, 8 D. M. & G. 99 ; Turner v. Burkin- shaw, 4 Giff. 399. {g) Princess of Wales v. Lord Liverpool, 1 Sw. 114, 3 Sw. 567 Jones Y. Lewis, 2 Sim. & St. 242 Shepherds. Morris, 1 Beav. 179 Taylor v. Heming, 4 Beav. 237 See Pickering v. Bighy, IS Ves 484 ; Micklethwaite v. Moor, i Mer. 296, but see Pen/old v Nunn, 5 Sim. 409; Milligan v Mitchell, 6 Sim. 191 ; Darner V' Lord Portarlington, 15 Sim 383. (h) See Bate v. Bate, 7 Beav (j) Halliday v. Temple, 8 D. M. & G. 96. {h) Lamb v. Orton, 1 Drew. 414 ; Beid v. Langlois, 1 Mac. & G. 636 ; M'Intosh v. Great West- ern Bailway Co., 22 L. J. Oh. 182 ; Manly v. Bewiche, 8 D. M. & G. 470. See Harford y. Bees, 15 Jiir. 663; Wright v. Pitt, L. E. 3 Ch. App. 810; Alcock V. Gill, 21 L. T. N. S. 705. An order for production of docu- m.ents cannot be made against an executor on admissions in his testator's answer, Scott v. WJieeler, 12 Beav. 366. Where a defendant by his answer ad- 56 MODE OF OBTAINING .^^v- ni. the cage made by the bill (I). The principle of the courfi is that the party moving for production must be satisfied with what the conscience of his adversary allows him to swear (m). The party from whom production is required cannot be cross-examined on his answer or affidavit (n), nor can evidence be introduced to contradict it (o). If the plaintiff amends his bill, and thereby alters the issue, production will not be ordered upon an admission of rele- vancy made previously to the amendment (p). It is also necessary, in order to obtain an order for the produc- tion of a document, that the document, production of which is sought, should be properly described in the answer or affidavit of the party from whom production is required ; for, unless the document is described, the court cannot know whether its order is complied with or not (q). Party A plaintiff though in contempt may compel a full and proper answer, and the production of documents relating mitted that at a time past he (o) Edwards v. Jones, 1 Ph. had a certain deed in his pos- 505 ; Reynell v. Sprye, 1 D. M. session, it was held not a suffl- & G. 656 ; Lamh v. Orton, 1 cient admission in the answer to Drew. 414 ; Richards v. Wathins, warrant an order for production, 6 Jur. N. S. 168; Westminster as he did not admit that the &c. &c. Colliery Oo.y. Clayton, 12 deed was then in his possession, W. R. 123 ; Underwood v. Secre- ■ Heeman v. Midland, 4 Madd. tary of State for India, 35 L, J. 391. Oh. 545; Wright v. Pitt, L. E. (l) Bligh V. Berson, 7 Pri. 205. 3 Ch. App. 810. Comp. Chaplin Haverfield v. Pyman, 2 Ph. 204. \. Young, cited 35 L. J. Ch. See further, infra. 645. (ot) Farquharson v. Balfour, (p) Haverfield v. Pyman, 2 Ph. T. &E. 204. 202; Att.-Cm. v. Thmnson, 8 {n) Manly -v. Benmche,%T).yi. Ha. 118; Reynell v. Sprye, 11 & G. 470. See Newall v. Tde- Beav. 618. graph, &c. dec. Co., L. R. 2 Eq. {g) Atkyns v. Wright, 14 Ves. 756; Wright v. Pitt, id., 3 Ch. 213; Princess of Wales v. Lord App, 810; Alcock v. Oill, 21 L. Liverpool, 1 Sw. 114; Tipping v. T. N. S. 705. Clarke, 2 Ha. 391, infra, p. 60. though in PRODUCTION OF DOCUMENTS. 57 to the matters in issue and admitted by the answer of the Chap. III. defendant to be in his possession (?'). So also a defendant, contempt although in contempt for not having made an affidavit discovery. of documents, is entitled to an order that the plaintiff should make an affidavit of documents ; but it will be ordered that the affidavit and production by the plaintiff shall be after ^the affidavit and production by the de- fendant (s). A plaintiff does not waive the application for production Amend- by obtaining, in the interval between the service of the bill not a summons and the day of hearing, an order to amend his an'Jppii^a. bill (u) ; and where an application for the production of *i™ ^°'^, documents is made upon the answer, it does not operate Motion for as an admission of the sufficiency of the answer, so that production . . . ""^ ^^ the plaintiff may, after such an application, still file ex- admission , . , ., of sufEci- CeptlOnS (X). ency of If the application is founded on the answer, the common *°^'"'<"'- order directs, either that the admitted documents be left application with the Record and Writ Clerk, and that the plaintiff, t-^^P™''"''" his solicitors and agents be at liberty to inspect them, and take copies at his expense (y), or else that, without being so left, they be at liberty to inspect and take copies of the documents at the office of the defendant's solicitor or other convenient place {z). If, however, the application is made without reference Order for to the answer, the common order directs the party within l^ toTora- a limited time to file an affidavit, stating what documents ™ents. he has or has had in his possession or power relating to (r) Wilson v. Bates, 3 M. & C. (x) Lane v. Paul, 3 Beav. 66. 197; Att.-Qen. v. Lamhe, 3 Y. {jy) See, as to form of order, 6 C. 162. Set. on Deer. 1040, 1. (s) Haldane y. Echford, L. E. (z) See, as to form of order, 7 Eq. 425. Set. on Deer. 1040, 2. See also (m) Chidwicky. Freblle, 6 Beav. infra, p. 74, 264, 58 MODE OF OBTAINING Chap. III. the matters in question, and either to leave with the Record and Writ Clerk such of the documents admitted by him as he may not by the affidavit object to produce ;. in which case leave to inspect and take copies is given to the opposite party (a), or else that the opposite party be at liberty to make such inspection and take such copies at the office of the defendant's solicitor or other specified place (b). The summons is, therefore, framed according to the form of order which the applicant seeks to obtain (c). Practice Where the application is founded on the answer, it must motion for be shown, from an office copy of the answer and schedules ?s™o^ded thereto, if any, that the plaintiff is entitled to the pro- on the duction or inspection he claims, unless the application is answer, '■ ... . . assented to ; but no answer is ordinarily required in sup- port of an application for an affidavit of documents and consequential production (d). Order for If the plaintiff has interrogated the defendant as to to^doCTi- ^ documents, but such interrogatory has not been answered, ments i^e may obtain, on summons, the common order for an ■where party has affidavit, and production or inspection, on condition that swered. he accepts the affidavit as an answer to the interrogatory, in so far as it may be an answer thereto, and the order will be worded accordingly (e). Mode of The application for productioa of documents or for the for prodnc- affidavit as to documents is made by summons in cham- tion of ]^gj.g ^y ^^ ^^^ must be served on the opposite party in the (a) See, as to form of order, (/) 15 & 16 Vict. c. 80, s. 26; Set. on Deer. 1040, 3. Thompson v. Teuton, 9 Ha. App. (&) See, as to form of order, 49; Barnard v. Hunter, 1 Jur. Set. on Deer. 1041, 4. N. S. 1065. See, as to form of (c) See, as to forms of sum- summons, 3 Dan. Ch. Pr. 1818 mons, 3 Dan. Oh. Pr. 1818— —1822. When a person not a 1822. party to the suit has a document {d) Dan. Oh. Pr. 1661. in his possession, production of («) lb. supra, p. 53. which is required, he must- be PRODUCTION OF DOCUMENTS. 59 usual maimer (g). No affidavit is necessary in support of Chap. III. the application (h), and delay on the part of the applicant documenia in making the appHcation does not affect his right (i), ^ *^^*J^* unless there be unreasonable delay (A). ments. There is no objection to include in one summons appli- cations against several defendants, though* represented by different solicitors ; and though production of documents admitted by the answer is sought from some of them, and an affidavit from others (I). The form of the affidavit as to documents to be made Affidavit in answer to the common order, is settled by Schedule 3 ments. to the Regulations of August 8th, 1857 (jri) ; it should be adhered to, and should be only varied in so far as may be necessary to meet the special circumstances of the case (n). If the affidavit is not framed in the usual form, the court will look on it with a certain amount of suspicion, unless a reason can be shown for such departure from the common form (o). All the parties required by the order to make the affi- davit should join in making it, unless there be some spe- cial reason to the contrary (p). A party, whether bound to produce documents or not, Must be must make the usual affidavit as to documents. The "* ® served with, a subpoena duces Set. on Deer. 1041, 5 ; 1042, tecum, to produce it ; Bamett v. 6. NoUe, IJ. & W. 227; 8elby v. (m) See, as to fonnMorg. Ch. Frazer, 5 W. E. 341. Ord. App. 59; 3 Dan. Ch. Pr. (g) Dan. Oh. Pr. 1074. 1824. (h) Rochdale Canal Co. v. («) Woodhatch v. Freeland, 11 King, 15 Beav. 11. "W. E. 398 ; Newall v. Telegraph, (i) lb. ; Parkinson v. Cham- &c. &c., Co., L. E. 2 Eq. 762 ; hers, 1 K. & J. 72. See Duke of Blox. 1. Beaufort v. Taylor, 2 Ha. 245. (o) Woodhatch v. Freeland, 11 (k) Franco v. Meyer, 2 H. & W. E. 398 ; Boyd v. Petrie, 17 M. 42. See Beid v. Langlois, 1 W. E. 903 ; 20 L. T. N. S. 935. Mac. & G. 640. {p) Walker v. Kennedy, 5 W. (l) Dan. Ch. Pr. 1660. See E. 396. 60 MODE OF OBTAINING Cliap. III. question of liability to produce documents is distinct froni whether a the question of the sufificiency of the affidavit, as to docu- bound'to i^ients. If it is possible that the documents in his pos- produoe or Ression may in any way assist the case of the party who seeks production, the usual affidavit as to documents must be made (5). Al"ter it has been made, the question as to the production will then arise (r). Extension ^ party must file his affidavit as to documents within of time for ... making the time limited by the order, unless he obtains an exten- sion of time. An extension of time for making the affi- davit may be obtained upon summons at chambers, which must be served on the sohcitor of the party who requires production (s). The order, if made, is drawn up at cham- bers, and entered in the usual way. affidavit'"^ The answer, or affidavit as to documents, must specify must the particulars and describe the documents in such a way describe the docu- as to enable the court to make an order for production. If the terms in which they are described are too uncertain to found an order for production, the description is in- sufficient (t). An order will not be made for the produc- tion of documents described as " a bundle of papers or a pile of correspondence " (u). If the documents, when produced, do not correspond with the description in the answer or affidavit, an order that further discovery should be made may be obtained. (2) EumhoU v. Forteath, 3 K. 391 ; Bumbold v. Forteath, 3 E. & J. 44 ; Lazarus v. Mozley, o & J. 44 ; Lazarus v. Mozley, Jur. N. S. 1119; Quia Y. Rat- Jur. N. S. 1119; Mansell v. diffe, 6 Jur. N. S. 1327. Feeny, 2 J. & H. 323. See Atkyns (»•) lb. V. Wright, 14 Ves. 211 ; Houghton (s) Dan. Cli. Pr. 16G2. See v. Barneit, 20 L. J. Oh. 444. as to form of suramons for fur- (tj) Phelps v. Olive, 4 L. J. ther time, 3 Dan. Oh. Pr. 1823. Ch. N. S. 167 ; 4 Beav. 548 n. ; (t) Lnman v. Whitley, 4 Beav. Nieholl v. Jones, 2 H. & M. 548; Tipping v. Clarke, 2 Ha. 595. ments. PRODUCTION OF DOCUMENTS. 61 ■SO as to enable the partj' seeking production to obtain the Chap. III. production of the identical documents (v). Every objection that would lie to the suflBciency of an Sufficiency answer under the old practice, now applies to the affidavit ency of made under the present practice (^<;). If the affidavit is *^T^'t" inconsistent with the answer, or if the party making the affidavit has made on oath some admission which discredits or is inconsistent with his affidavit, his affidavit is proved by himself to be insufficient (x). Where, accordingly, the court is satisfied upon the pleadings that the party has in his possession documents which he has omitted to dis- close (y), or is claiming to protect documents which he ought to produce (s), the court will either require him to make a further affidavit, although the first may be suffi- cient in point of form (a), or will order him to produce the documents which he improperly claims to protect (b). At the hearing of the application the judge will, if necessaiy, inspect the documents himself, and determine whether any of them should be produced (c). If the party who has made an affidavit as to documents (i') Tijpping v. Clarice, 2 Ha. (a) Richards v. Wath'ns, 6 388. Jut- N. S. 168 ; Nod v. Noel, 1 («;) Lazarus v. Mozley, 5 Jur. D. J. & S. 468 ; Westminster N. S. 1119. "^c. &c. Colliery Co. v. Clayton, [x) Bowes v. FemiBy 3 M. & 12 W. E. 123. C. 632 ; Wright v. Pitt, L. E- 3 (i) Oreenwood v. Greenwood, 6 Ch. App. 809; Westminster, &c. W. E. 119; Lafone v. Falkland &c.. Colliery Co. v. Clayton, 12 Islands Co., 27 L. J. Ch. 25; W. E. 123. Nicholl v. Jones, 2 H. & M. (v) Noel V. Noel, 1 D. J. & S. 591. See, as to form of order, 468 ; Wright v. Fitt, L. E. 3 Set. on Deer. 1042. Ch. App. 810. (c) Caton v. Lewis, 22 L. J. (z) Bowes V. Fernie, 3 M. & 0. Ch. 946 ; Lafone v. Falkland 632; Caton v. Lewis, 22 L. J. Islands Co., 27 L. J. Ch. 25; Ch. 946; BichardsY. Wathins, 6 Nicholl y. Jones, 2 H. & M. Jut. N. S. 168 ; see Mornington 595. V. Mornington, 2 J. & H. 703. 62 MODE OF OBTAINING Chap. III. which is technically sulBBcient, deny that there are other documents in his possession, and there is nothing on the pleadings to show that he has them, the mere probabi- lity of his having such documents is not sufficient for the court to require him to make a further affidavit (d). The statements of the party on oath as to the possession or the relevancy of documents or of parts of documents which he claims to protect, cannot, if sufficiently expli- cit, be disregarded by the court, however open to sus- picion they may be. The statements in the answer or affidavit, though open to the strongest suspicion of in- correctness, or even perjury, must nevertheless, for the purpose of a motion founded on it, be assumed to be true. The answer or affidavit of the party in this stage is quite conclusive (e). If the affidavit is inconsistent with the answer, or the court is satisfied upon the pleadings that documents re- lating to the matters in issue are omitted, or that the party is claiming to protect documents which he ought to produce, a further summons may be taken out, re- quiring him to state whether he has a particular docu- ment or class of documents in his possession (/), or, as the case may be, requiring him to produce the documents which he improperly claims to protect (g). (d) Wright v. Pitt, L. E. 3 N. E. 111. See, as to form of Ch. App. 810. See Alcock v. summons for affidavit as to pos- Oill, 21 L. T. N. S. 705. session of a specified document, (e) Bowes v. Fernie, 3 M. & 3 Dan. Oil. Pr. 1829. 0. 632; Sheffield Canal Co. v. {g) Falkland Islands Co. v. She^ffidd and Bofheram Canal La/one, 27 L. J. Ch. 25 ; Qreen- Co., 1 Ph. 484 ; Wright v. Pitt, wood v. Greenwood, 6 "W. E. L. E. 3 Oh. App. 810. Comp. 119; Nicholl v. Jones, 2 H. & Caton V. Lewis, 22 L. J. Ch. M. 595. See, as to form of 946. summons for production of do- (/) Noel V. Noel, 1 D. J. & cument which party objects to S. 468 ; Westminster, ■) Oardjier v. Bangerfield, 5 (a;) Blox. 46. Beav. 389. ly) Par'tons v. Robertson, 2 70 MODE OF OBTAINING Chap. Ill, ting the party to conceal such parts of the documents as do not relate to the subject of the suit (6), or as come within the rule of privilege (c). Although a party is entitled to seal up such portions of documents as are privileged, he must produce the whole of the documents in their integrity. He has no right to mutilate or remove any of the documents. The re- sponsibility of the sealing up or unsealing rests with the court (cf). Summons Although liberty to seal up may have been given by thesnffi- order, or has been claimed by affidavit, the party who thTaffi" seeks production may apply at chambers to consider the davit in sufficiency of the affidavit of sealing up, and for inspection of the concealed passages. Even though there may be grounds of suspicion that the party has sealed up matter that ought to have been disclosed, his affidavit is conclusive (e). If, however, the affidavit contains statements at variance with each other, or if the document itself shows a discrepancy in the state- ments made, it would be consistent with the rules of the court to get at the truth by compelling the party to give discovery (/). In a case where a party in his affidavit as (J) Oerard v. Painswich, 1 Deor. 1043. See, as to tte costs Sw. 633 ; Curd v. Curd, I Ha. of the application, Talbot v. 274; 6 Jur. 307; Ord v. Faw- Marshfield, L. E. 1 Eq. 8. cett, 19 L. J. Ch. 487 ; Jenkins {d) Ayres v. Levy, 19 L. T. v. Bushhy, 35 L. J. Ch. 400 ; N. S. 8. See, as to the mutila- Talbot V. Marshfield, L. E. 1 tion of documents, Farrer v. Ect. 8. Hutchinson, 3 T. & 0. 701. (c) See Hughes v. Biddulph, 4 (e) Bowes v. Fernie, 3 M. & 0. Euss. 192 ; Parsons v. Bohert- 632 ; Sheffield Canal Co. v. Shef- son, 2 Keen, 605 ; Blenhinsopp v. field & Motherham Canal Co., 1 BlenUnsopp, 10 Beav. 143. See, Ph. 484. as to form of summons for leave (/ ) Bowes v. Fernie, 3 M. & to seal up, 3 Dan. Oh. Pr. 1830. 0. 636 ; Greenwood v. Greenwood, See, as to form of order. Set. on 6 W. E. 119. See Westminster, PRODUCTION OF DOCUMENTS. 71 to documents had set out two clauses of an agreement, Chap. Ill, and stated that these two. clauses alone assisted the case of his adversary, or related to the matters in question in the cause, Stuart, V.-C, being of opinion that these clauses were not intelligible without reference to the rest of the agreement, ordered production of the whole agree- ment (^r). If the answer or affidavit contains statements at vari- ance with each other, or if the document shows a discre- pancy in the statements, the court will, if necessary, unseal the documents and examine them, in order to see whether the applicant is entitled to see the parts sealed up (h). In a case where the portions of a document which the party seeking production had a right to inspect, were so mixed up with the portions which he had no right to inspect, that it would be hardly possible to exhibit the one portion without disclosing the other, production was refused (i). In another case, however, where memoranda, the production of which the plaintiff was entitled to, were contained in the same book, with other matters to a dis- covery of which the plaintiff was not entitled, and they could not be separated or sealed up, it was held, that the defendant must suffer the inconvenience of his own act, and produce the whole (k) ; " as he has," said Lord Lang- dale (I), " imprudently mixed his private matters with the partnership transactions, it is his duty to separate them ; &c. &c., Colliery Co. v. Clay- but see Luscomhe v. Steer, 37 L. ton, 12 W. E. 123; Warrick r. J. Oh. 119. Queen's College, L. E. 3 Eq. 683. («') Churton v. Frewen, 2 Dr. (g) Luscwnbe y. Steer, 37 L. & Sm. 393. J. Ch. 119. (^) Carew v. White, 5 Bear. (A) Caton v. Lewis, 22 L. J. 172. Ch. 946 ; La/one v. Falkland [l) lb. Islands Co., 27 L. J. Ch. 25; 72 MODE OF OBTAINING Chap. III. Documents produced under authority of court may not be made use of except under au- thority of court. In what cases pro- duction may be had of docu- ments to be exa- mined by intended "witnesses. and if he cdnnot, he must necessarily suffer the incon-' venience arising from his own act." A party who has obtained inspection and production of documents under an order of the court, has no right to make public the information so obtained, and will, if necessary, be restrained by injunction from so doing (m) ; nor will he be permitted to make use of the information for purposes collateral to the suit (%). Where documents have been produced in obedience to an order of the court, the court has a right to say to the person who has obtained production, that they shall not be made use of except under the authority of the court (o). The mere circumstance, however, of a party having ob- tained a document for a specific and limited purpose, would not entitle him to have it protected, on the ground of an implied confidence that it should not be used for any other purpose {p). Production has been ordered of documents admitted by a party to be in his possession which had been delivered to him by a third party, upon the undertaking not to part with,them to any one else {q). An application before decree to have documents pro- duced for inspection by intended witnesses, is a special application, and is only to be made on special grounds (r). If there is grave reason to suspect that deeds are not genuine, an order will be made for their inspection by (m) Williams v. Prince of Wales Co., 23 Beav. 338. , («) Richardson v. Hastings, 7 Beav. 355. See Tagg v. South Devon Railway, 12 Beav. 151. (o) Richardson v. Hastings, 7 Beav. 355 ; Williams v. Prince of Wales Co., 23 Beav. 338; Reynolds v. Oodlee, 4 K. & J. 88; HopJcinsonY. Lord Burleigh, L. E. 2 Ch. App. 447. (p) Reynolds v. Godlee, 4 K. & J. 88. {q) PenJeethman v. White, 2 W. E. 380. (r) BoydY. Petrie, L. E. 3 Ch. App. 818. See Tioentyman v. Barnes, 2 Deg. & Sm. 225. PRODUCTION OF DOCUMENTS. 73 witnesses (s) ; but where a party does not dispute the Chap. III. genuineness of a document, but merely says that it is material and necessary for his defence that it should be produced for the inspection of his witnesses, production will not be ordered {t). Where any documents are ordered to be left or depo- Mode of sited, whether for safe custody or for the purpose of any documents. inquiry in chambers, the same are to be left or deposited in the Record and Writ Clerk's Office, and are subject to such directions as may be given for the production thereof (u) ; and it would appear that it is not the course of the court to order production at any other place, except upon the consent of the party in whose possession they are (x). Upon the consent, however, of such party, the com-t will frequently order production at some other place; for the sake of convenience (y) ; and when he states that the documents or books are in constant use in his busi- ness, and cannot be taken out of his possession without great inconvenience to his business, the court will give credit to the statement, and order that they be produced at the place of business at which they are in use {z), or at (s) Groves v. Oroves, Kay, L. J. Ch. N. S. "74 ; Prentice v. App. 19 ; Blakeshy v. Pegg, 20 Philipps, 2 Ha. 154. L. T. N. S. 57. (z) Orane v. Cooper, 4 M. & (<) Crroves v. Oroves, 2 "W. E. 0. 263 ; Gardner v. Dangerfield, 86 ; Boyd v. Petrie, L. E. 3 Ch. 5 Beav. 389 ; Marquis of Bute v. App. 818. Com. Pilkington v. Glamorganshire Canal Co., 1 Ph. Himsivorth, 1 T. & C. 617. 684 ; Prentice v. Philipps, 2 Ha. («) Ord. XLII. 3 ; see Ord. I. 152 ; Careio v. Davies, 21 Beav. 35. See, as to form of order, 213; Williamsy. Prince of Wales Set. on Deer. 1040. Co., 23 Beav. 338; Mertens v. {x) Maund v. Allies, 4 M. & Haigh, Johns. 735; Hooper v. 0. 507. See Carew v. Davies, Gumm, 2 J. & H. 602. See, as 21 Beav. 213; but see Eoberts to form of order, Mertens v. V. £%rf, 7L. J. Ch. N. S. 115. Haigh, Johns. 738; Set. on (2/) See Eawsmi v. Samuel, 8 Deer. 1040. 74 MODE OF OBTAINING Deposit at office of party's solicitor. Chap. Ill, some third place, if it would cause inconvenience to the party who applies for production to inspect them there (a). If a satisfactory inspection cannot be had there, an order may be obtained for deposit in the usual way (&). In ordinary cases the court now usually orders pro- duction at the place of business of the party's solicitor (c), and where an order for production at the solicitor's office has once been made, production at the same place will, in the absence of special circumstances, be directed by all subsequent orders (d). As an order for production at the place of business of the solicitor of a party, is an indulgence, and is made for the party's convenience, the court wiU not allow the soli- citor to make any charge for the inspection (e) ; and where, at the request of the applicant, the solicitor makes any copies he may require and is entitled to take, he is only entitled to the usual law-stationer's charges (/). The same rule appUes as to the production of books, whether in England or abroad (g). If documents are out of England, time will be given to the party in possession to answer or produce them, but it is not a reason why he should not answer Qi). In Freeman v. Fairlie (i) the Production of tooks vaich are abroad. (a) Talhot v. Marskfield, 11 Svi. N. S. 901. See Sawson v. Samuel, 8 L. J. Cli. N. S. 74. (6) Grane v. Cooper, 4 M. & C. 263. See Prentice v. Philipps, 2 Ha. 152 ; Mertens v. Haigh, Jolms. 735. (c) Ord V. Fawcett, 19 L. J. Oh. 487 ; Groves v. Groves, 2 "W. E. 86; Bonardet v. Taylor, 1 J. 6 H. 383. See Roherts v. Lloyd, 7 L. J. Oh. N. S. 115. See, as to form of order, Set. on Deor. 1040-1042. {d) Groves v. Groves, 2 W. E. 86. See Raioson v. Samuel, 8 L. J. Oh. N. S. 74. (e) Woodroffe v. Daniel, 10 Sim. 126 ; FlocMon v. PeaU, 12 W. E. 1023. ( / ) Kennedy v. George, 6 W. E. 218. See Prentice y. Philipps, 2 Ha. 152. (jr) Hooper v. Gumm, 2 J. & H. 602. (A) Farquharson v. Balfour, T. & E. 190 ; Taylor v. Bundell, Or. & Ph. 113 ; Morrice v. Swdby, 2 Beav. 500. (i) 3 Mer. 44. PRODUCTION OF DOCUMENTS. 75 defendant said he had got the deeds, but that they were Chap. ill. in the East Indies, and he therefore omitted to set them out in the schedule to his answer ; but it was held, that the proper course was to move to extend the time to answer, in order to enable him to schedule the deeds (k). Where documents ordered to be produced are in a foreign country, the party required to produce them must show, not only that it would be difficult to obtain them, but that he has tried and failed (I). If the court is satisfied that production in the ordinary Order way may be attended with damage to the party in whose production possession the documents are, and that an order for in- ™ *''® ^ ordinary spection is sufficient for the purposes of justice, inspection way might will be ordered, but not production (m). Where, for ex- dal. ample, the defendant by his answer denied the title of the plaintiff to certain money deposited with a bank, but ad- mitted the possession of a document which gave the de- fendant control over that money, it was held, on a motion for the production of the document, that the plaintiff was only entitled to inspect it and take copies, and not to deprive the defendant of his control over the money by having the document deposited in the usual way (n). The order directs production to the party, his solicitors Who may and agents (o). By the word " solicitors " is meant his documents solicitors in the cause; and by the word "agents" is ^'"/p^ °'''^^'' understood his general agents or his agents acting in the duction. cause, and not a special agent employed for the particular purpose of inspecting the documents (p). A managing {k) 16 'Jur. 586, per Turner, (o) Set. on Deer. 1040—1012. jj j_ (p) Draper v. Manchester, (I) Mertens T. Haigh, 11 W. Sheffield, and Lincolnshire Rail- E. 792. way Co., 3 D. F. & J. 27 ; (to) Mayor of Berwick v. Bonardet v. Taylor, 1 J. & H. Murray, 1 Mac. & Gr. 530. 386. (n) lb. 76 MODE OF OBTAINING Chap. III. clerk of the party might be an agent for the purposes of inspection {q), but the order does not authorise production to a professional accountant or agent employed for the particular purpose (r), or to a co-defendant (s), or to a non-profes.sional relative, though alleged to be the only person conversant with the accounts (i). Upon a proper case, however, being made out, an order for the inspection of documents by a professional accoun- tant will be made. The mere allegation that accounts are complicated, is not a ground as of course for the appointment of a professional accountant ; but in a case where the accounts were very voluminous and compli- cated, and some of the documents were in a foreign lan- guage, an order was made for a professional accountant to inspect them (u). An accountant who has a personal interest in the cause, will not be appointed to inspect documents (x). In re Joint Stock Discount Go. (y), an accountant was allowed to inspect the books of a com- pany in course of being wound up on behalf of the share- holders, on certain conditions, without any special fact being stated as a ground for the order ; and where the issue depended in a great measure upon the state of the originals of certain engineering plans and documents, and the party deposed that he was not possessed of any en- gineering knowledge, and that an inspection of the docu- ments would be txseless to him without the aid and assistance of an engineer, the order for production and (q) Bonardet v. Taylor, 1 J. & (u) Bonardet v. Taylor, 1 J. H. 386. See Lindsay y. Glad- & H. 386. See Coleman v. West stone, L. E. 9 Eq. 132. Hartlepool Harbour Co., 5 L. T. (r) lb. N. S. 266. (s) Bartley v. Bartley, 1 Drew. (x) Drapsr v. Sheffield, &e. 233. * ^°''^- ments. producing the documents (x). If, however, the documents have been ordered to be left at the Record and Writ Clerk's Office, no affidavit of default in making the deposit will be required, as that will sufficiently appear from the office books (y). Where the plaintiff was shown a docu- ment, inspection of which was refused until counsel's opinion had been taken whether it was privileged, and subsequently the defendant declared that he had lost it, an attachment was ordered to issue (2:). Where the purpose for which the documents have been Delivery deposited is satisfied, and discovery has been obtained, the documenta person who has produced them has a right to have them P^jx^u^^^ back (a), subject to the discretion of the court to retain spection. them, if it sees that they may be further required in the course of the cause or at the hearing (b). An order, how- ever, is necessary, which may be obtained on motion or summons with notice, or by consent on petition of course party to conduct lumself in a (a) Dunn v. Dunn, 3 Drew, decorous manner; Williams v. 18 ; 7 D. M. & G. 25. See Princeof Wales Co., 23'Bea,Y. 338. Plunkett v. Lewis, 6 Ha. 66; (m) Dan. Ch. Pr. 938, 1680. Banner v. England, 9 L. T. See, as to power of sequestra- N. S. 698 ; Jenner v. Morris, tors to seize documents, ib. 951 ; L. E. 1 Ch. App. 603. No lieu and as to enforcing an affidavit for costs attaches in favour of as to documents, ib. 1663. the solicitor of the next friend {x) Braithw. Pr. 505. See, of au infant plaintiff who has as to form of attachment and repudiated the suit upon any affidavits, 3 Dan. Ch. Pr. 1836, deed brought in merely for the 1837. purpose of discovery; Dimn v. {y) Braithw. Pr. 171. Dunn, 3 Drew. 18; 7 D. M. & (z) Lord Mominffton v. Keane, G. 25. 4 W. E. 793- (^) ^' ^^ Walker v. Corke, 82 MODE OF OBTAINING PRODtTCTION OF DOCXXMENTS. Chap. Ill, at the EoUs (c). A copy of the order, or so much thereof as directs the delivery out with a receipt signed by the person to whom the dehvery out is directed to be made and witnessed, must be left, and the original order must be produced at the Record and Writ Clerk's Office at the time the application for the delivery out is made (d). 3 T. & 0. 277, documents were ordered to be retained in Court for a reasonable time, in order to see whether the plaintifif would not take criminal pro- ceedings in respect of them against the defendant, (c) Braithw. Pr. 507. See, as to form of order. Set. on Deer. 1062. See, as to form of notice of motion, summons, or peti- tion, 3 Dan. Ch. Pr. 1832. (d) Braithw. 507. See, as to form of receipt, 3 Dan. Ch. Pr. 1834. CHAPTER IV. PLEADING AND PARTIES IN BILLS FOR DISCOVERY. Section I. — Pleading. A PARTY who comes to the court for discoveiy must Chap. IV. allege such a title as will entitle him to what he asks. It must appear on the pleadings that he has an interest in the subject to which the required discovery relates, and such an interest as entitles him to call upon the defen- dant for the discovery (a), or for the production of docu- ments (h). In order to entitle himself to discovery only, the plaintiff must show a title to sue the defendant in some other court, or that he is actually involved in litigation with the defendant, or is liable to be so, and must also show that the discovery prayed is material to support or defend the suit. If he does not show this, he shows no title to the discovery (c). A bill for discovery only should allege that the discovery is sought in aid of some proceed- ing either pending or contemplated. If the purpose for which the discovery is sought is not stated in, or does not appear on the face of, the bill, the bill is demuiTable (d). (a) Mitf. PL 177, 178, 222; p. 102. Barthiz v. Lee, 2 T. & 0. 13. (c) Mitf. Pi. 227. (&) G-lover v. Hall, 2 Ph. 484. {d) Cardale v. WathinB, 5 See Smith v. Duke of Northum- Madd. 18; Att.-Qen. v. Boss, 8 herland, 1 Cox, 363; Adams v. Pri. 205; Ellice v. Boupell, 32 Fuher, 3 M. & C. 546 ; Owen v. Beav. 307. Nickson, 3 El. & EL 608, infra, 2 o* PLEADING. Chap. lY. If the proceeding in aid of which discovery is sought has not been commenced, the bill should aver that it is the intention of the plaintiff to commence proceedings {e). It is common in bills of discovery only to introduce the averment that the action cannot be maintained without the discovery prayed (/). Bill of dls- If a plaintiff in equity files a simple bill of discovery in to get ad- aid of, or as a defence to, an action at law, he is not justi- documents ^^^ ™ coming here for the purpose of merely getting the at law. defendant to admit documents to save himself the trouble of procuring them (gr). Bill of The fact that the bill states an imperfect title cannot be di s covcrv stating an urged as a reason for not giving discovery material to the titk! ^° ^^^® which the plaintiff relies on Qi). More dis- More discovery will not be granted than can, according covery not ^^ ^j^g frame of the bill, be given. If a plaintiff comes giTen than _ > a r can accord- and asks discovery as to some particular point, and ob- form of the tains all the documents relating to that point, he cannot riyen^ have a discovery as to all other points to which any docu- ments in the possession of the defendant may happen to relate {%). But leave may be given to file a supplemental bill of discovery (Ic). Bill for -A- plaintiff has no right at the same time to maintain a reH? bill for specific relief, and add to that a prayer for dis- (e) Mayor, &c. &c. of London brought against him. V. Levy, 8 Ves. 404. See (/) See Bolertson v. Lubbock, Darthez v. Lee, 2 Y. & 0. 13 ; 4 Sim. 180. Wilmot V. Maccabe, 4 Sim. 266. {g) Ingilby v. Shafio, 33 Beav. See cases of bills of discovery in. 38. aid of actions at law before (/») Att.-Oen, v. Thompson, 8 actions brought, Mendes y. Ha. 119. Barnard, 2 Dick. 654 ; Emmet (i) Few v. Owppy, 1 M. & C. Y. Aylet, cited ib. See Wilmot 504. See Bawsrni v. Samuel, 9 V. Maccale, 4 Sim. 265, for biU Sim. 442 ; 8 L. J. Ch. N. S. 74. of discovery filed by the pub- (7c) Few v. Ouppy, 1 M. & 0. lisher of a libel before action 504. PLEADING. 80 CO very on a matter which is quite distinct from that Chap. IV. specific relief (?). A bill, for example, for a receiver should not pending litigation as to probate ought not to seek dis- auOTvery CO very in reference to the merits in the litigation (m). distinct If specific relief is prayed in addition to discovery in aid specific of a defence to an action at law, the defendant is not bound to give any further discovery than is incidental to the relief sought by the bill (n). Under the old practice, the bill always contained a Allegation charge as to documents ; but, under the present practice, ments. it is not necessary to insert a charge as to documents in the bill as a foundation for an interrogatory concerning them (0). If, however, the production of a specific docu- ment is required, an allegation respecting it should be inserted in the bill (jp). If a prayer for general relief is found in a bill which in Bill for Other respects is for discovery only, it converts the bill oX^g^o^jd into a bill for relief (a). So, also, a bill is a bill for relief, "o* contain -" . a prayer if it prays that the defendant may abide such order and for relief, decree as the court may think proper (r). But if the bill merely prays that the defendant may abide by such order as the court may think proper, without the word " decree," it is not a bill for relief (s). A prayer for a commission to examine witnesses (t), or What are not prayers for relief. (?) Wood-7.Eitchings,3'Bea,Y. {r) Rose v. Oannell, 3 Atk. 5]0. 439; Mellish v. Richardson, 12 (m) rb. Pri. 536 ; Amhury v. Jones, {n) Desborough v. Curlewis, 3 Younge, 200 ; James v. Her- Y. & C. 175. I'iott, 6 Sim. 428. (0) Supra, p. 52. See, as to (s) Baker v. Bramah, 7 Sim. interrogatories, supra, pp. 46— 17 ; South-Eastern Rail. Co. v. gj_ Submarine Telegraph Co., 18 ( p) See supra, pp. 53, 65. Beav. 430. (2) Amlmryy. J"one«, Younge, (<) Noble v. Garland, 19 Ves. 200 ; Angell v. Westambe, 6 Sim. 376 ; Loiisada v. Tempter, 2 21 Euss. 561 ; Mills v. Campbell, 86 PLEADING. Chap. IV. that the testimony of witnesses may be perpetuated («), or for an injunction restraining proceedings at law until discovery be made {x), may be added to a bill of discovery, and does not convert it into a bill for relief. What are -^ prayer for an injunction to restrain the defendant reS^f^ *" ^■'^°™ setting up outstanding terms on the trial of an ejectment, cannot be introduced into a bill of discovery, without changing its character and subjecting it to the rules applicable to suits for relief {y). A prayer for the delivery of deeds makes the bill a bill for relief (2:) ; but a prayer that the defendant may set forth a list of deeds, and that they may be placed in the hands of the clerk in court for inspection, is incidental to the discovery, and does not convert the bill into a bill for relief (a). There is, however, a class of cases where a prayer for the production and inspection of deeds, is a prayer for relief But this is not an exception to the general rule, for the rule only applies to bills of discovery properly so called, and which are entertained merely to aid some judicial inquiry. If a party comes into equity 2 T. & 0. 389 ; EUice v. Roupell, jun. 614 ; Mills v. Camphell, 2 32 Beav. 312. Y. & 0. 389 ; Bmyon v. NeUle- (m) Hall v. Eoddesdon, 2 P. fold, 3 Mao. & G. 97 ; but W. 162 ; Bose v. Oannell, 3 Atk. comp. Andrews v. Lupton, 13 439; Vaughan v. Fitzgerald, 1 L. J. Oh. 201. Sch. & Lef. 316; Mlice v. {y) Hylto7i y. Morgan, 6 Yes. Roupell, 32 Beav. 312; but see 296; Balcer v. Mellish, 10 Ves. v. Angell, 1 Sim. & St. 549 ; Jones v. Jones, 3 Mer. 83, in wHoli, however, there 172; JermyY. Best, IBua.. Z15; was a prayer for general relief. Armitage v. Wadsworth, 1 Madd. See, as to distinction between 193. bills for discovery and bills to (z) Aston v. Lord Exeter, 6 perpetuate testimony, EUice v. Ves. 290. Roupell, 32 Beav. 311. (a) Crow v. Tyrrell, 2 Madd. (a;) Nolle v. Garland, 19 Ves. 408 ; Barker v. Ray, 5 Madd. 376 ; Brandon v. Sands, 2 Ves. 65, PLEADING. 87' therefore, seeking the inspection of deeds, not as discovery Ohap. IV. in aid of any judicial inquiry, 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 purpose of disposing of their interests under them (b) • The bUl thus depends upon the title to the relief sought. It is a necessary part of the order upon bills of dis- covery that the deeds or papers which are incorporated in the answer may be produced as evidence at the trial (c). If a biU for discovery prays for costs against the defen- dant, it will be a bill for relief as well as discovery (d). So, also, a prayer for an account renders the bill a bill for relief (e). The court will not, except under special circum- Amend- stances(/), permit a bill of discovery to be amended, „£ ^iseoyery by adding a prayer for relief (g) ; nor, on the other hand, ^^^f^^^ can a bill for relief be converted into a bill of discovery, relief; by striking out the prayer for relief Qi). out pra/er^ for relief ; (b) Noel V. Ward, 1 Madd. 2 Euss. 565 ; Severn v. Fletcher; 322 ; Shaw v. Shaw, 12 Pri. 5 Sim. 457. 163. See Lord Lempster v. (g) Butterworth v. Bailey, 15 Lord Pom/ret, Amb. 154 ; Dick. Ves. 358 ; Jackson v. Strong, 13 238. Pri- 494 ; M'Clell. 245 ; Frietaa (c) 6 Ves. 289 ; 13 Ves. 243 ; v. Bos Santos, 1 T. & J. 577 ; 15 Vea. 188 ; 3 Madd. 486. Parker v. Ford, 1 OoU. 506. (rZ) Morg. &Dav.on Costs, 148. (A) Gholmondeky v. Clinton, 2 (e) Cwporation of Carlisle v. V.&B. 113; Frietasy. Bos San- Wilson, 13 Ves. 276 ; Frietas v. tos, 1 Y. & J. 577 ; King v. Bos Santos, 1 Y. & J. 576. Bossett, 2 Y. & J. 36 ; Am, (/) Hildywrd v. Cressey, 3 v. Jones, Younge, 200; but Atk. 303 ; Crow y. Tyrrell, 2 see Angell v. Westcomb, 6 Sim. Madd. 409 ; Lousada v. Templer, 30. 88 PLEADING. Chap. IV, The court will not permit a bill of discovery to be by adding amended, by adding parties as plaintiffs (i). parties. j£ ^-^^ ^j^j^ ^ ^^^ possession of deeds and writings of possession which the plaintiff prays possession, depends on the vali- &c. de-' ^^^Y "^f liis ^itle to the property to which they relate, and th"^^rd't ^® ^® ^'^^ ^^ possession of that property, and the evidence of the title of his title to it is in his own power and does not depend property to on the production of the deeds or writings of which he relate titk V^^J^ ^he delivery, he must establish his title to tlie pro- to property pertv at law before he can come into a Court of Equitv at lawmust -^ -^ _ _ t. j be first for delivery of the deeds and writings (k). lished. -^ I'll! seeking discovery of deeds or writings sometimes In what prays relief founded on the deeds and writings of which davit must the discovery is sought. If the relief so prayed be such to^bil"^^^ as might be obtained at law, if the deeds or wi-itings were seeking ijj the custody of the plaintiff, he must annex to his bill discoTery of deeds an affidavit that they are not in his custody or power, and ing reiiS' that he knows not where they are, unless they are in the *°"h'd* d " ^^^^^ °f til® defendant (l) ; but a bill of discovery merely, or which only prays the delivery of deeds or writings or equitable relief grounded on them, does not require such an affidavit (m). (i) Cliolmondeky v. Clinton, 2 ing field, 12 Sim. 40 ; Watson v. Mer. 74; but see Zousada v. Parker, 2 Ph. 5. See, as to Templer, 2 Eiass. 565. form of affidavit, 3 Dan. Ch. [k) Mitf. PI. 66 ; Jones v. Pr. 1614. Jones, 3 Mer. 170 ; Armitage v. (m) Mitf. PI. 66 ; Godfrey v. Wadsworth, 1 Madd. 193 ; Crow Turner, 1 Vem. 247 ; WMt- V. Tyrrell, 3 Madd. 179 ; Field church v. Oolding, 2 P. W. 541 ; V. Beaumont, 1 Sw. 209. Dormer v. Fortescue, 3 Atk. {I) 1 Ves. 344; Hook v. Dor- 132; Aston v. Lord Exeter, 6 man, 1 Sim. & St. 230 ; Mitf. Ves. 288. PI. 66 ; but see Crosse v. Bed- PARTIES. 89 Section II. — Parties. Chap. rv. A person who has no interest, and is a mere witness, against whom there can be no relief, ought not to be a party to a bill for relief and discovery. The general rule is, that persons standing in a situation' in which all that the court can demand is their testimony in a cause be- tween plaintiff and defendant, are not to be made parties. If it appear that the plaintiff has no title to relief against a particular defendant, he has no title to call upon him for discovery (a). A bill of discovery will not lie against a mere witness. The superior advantage of discovery by answer, particularly as to the production of papers, is not sufficient to make an exception to the rule that discovery will not lie against a mere witness (b). In particular cases where bills have been filed to impeach a transaction on the ground of fraud, persons who have by their conduct implicated themselves in the transaction may be made parties for the purpose of discovery, though they are not interested in the subject of the suit. To prevent a de- murrer, however, in such cases, there should be a prayer in the bill that they be ordered to pay costs (c). A solicitor, accordingly, who is implicated in a case of fraud, may be made a party to a bill seeking relief in respect of that fraud merely for the purpose of discovery, (a) Fenton v. Hughes, 7 Ves. taidc v. Beed, 1 Mer. 114. See 288 ; Dummer v. Corporation of Wahham v. Stainton, 1 H. & Chippenham, liYes. 252; Whit- M. 337. See, as to making worth v. Davis, 1 V. & B. 550. persons against whom fraud is fh) Kerr v. Rew, 5 M. & 0. alleged, parties for the purpose 164; Queen of Portitgal v. Olyn, of discovery, and praying costs 7 01. & Pin. 486. against theia, Attwood v. Small, (c) Le Texier v. Margravine 6 01. & Fin. 352 ; Marshall v. of Anspach, 15 Ves. 164; Fen- Sladden, TKa,. ^2%. 90 PARTIES. Chap. IV. though he have no interest in the cause, the only relief asked against him being that he be ordered to pay costs (cT). So, also, arbitrators whose award is impeached on the ground of misconduct, may be made parties for the pur- pose of obtaining discovery, though they have no in- terest (e). The same rule applies where the bill is for discovery merely in aid of proceedings in another court. Bills of discovery in aid of the defence to an action at law being permitted for the purpose of obtaining from the antagonist at law the discovery of matters which, being admitted by him, may aid the defence, and not for the purpose of procuring evidence, a bill of discovery will not lie against a mere witness (/). The mere allegation that a party is interested in the subject matter of litigation, is not a ground for making him defendant to a bill of discovery (g). Person not ^ ^jiu of discoveiT in aid of a defence to an action at a party to . , . , . the record law Cannot be sustamed against a person who is not a shoBldnot V^^^J to the record at law, although he may be interested be made a j^ ^jjg subject of the action (h). In a case, accordingly, where an action was brought by the agent of a foreign sovereign on bills of exchange, it was held that the accep- tors of the bills could not make the sovereign a party to a bill of discovery in aid of their defence to such action (i). So, also, in a case where an action was brought against underwiiters on a policy of insurance, it was held that (d) Le Texier v. Margravine of 288 ; Kerr v. Mew, 5 M. & 0, Anspach, 15 Yes. 164; Percival 164; Queen of Portugal y. Olyn, V. Blower, 1 L. J. Oh. 1 ; Gilbert 7 01. & Fin. 487. V. Lewis, 1 D. J. & 8. 51. (g) lb. (e) Dummer v. Corporation of {h) Queen of Portugal -v. Qlyn, Chippenham, 14 Yes. 252 ; Mitf. 7 01. & Fin. 487. PI- 224. (i) lb. See Balls v. Mar- (/) Fenton v. Hughes, 7 Ves. grace, 3 Beav. 448. PARTIES. 91 they could not make a person, not a party to the record Chap. IV. at law, a party to a bill for discovery against the plaintiff at law, though it was alleged in the bill that the policy was effected by the plaintiff at law as agent for such person (fc). The case of the lessor of the plaintiff in ejectment being compelled to answer a bill of discovery, is no authority against the rule, for he is considered in all respects as a party to the record (J). The rule that a person who has got no interest, and Corpora- . . tiou not a against whom no relief is prayed, cannot be made a party party to a bUl for discoveiy, applies to the case of corporations, interested. A plaintiff cannot make a defendant a corporation, in whom he shows no liability, and against whom he prays no rehef, merely for the purpose of discovery (m). If a Corporation has an interest, it may be made a party to a bill of discovery, and may be required to give a hst of its books (n). The case of a bankrupt is not an exception to the Wien general rule that persons, standing in a situation in which j^" ^^^ all that the court can demand is their testimony, ought P^*^- not to be made parties. A bankrupt made a party to a bill touching his estate may demur to the relief, all his estate being transferred to his assignees (o). A bankrupt, however, who, antecedently to his baiLkruptcy, has been engaged in a fraudulent transaction, whereby he has acquired property, may be made a party to a bill of dis- covery, even although the property has been transferred by law to his assignees (j>). But then the bill must be (k) Kerr v. JRew, 5 M. & C. («) lb. ; Heshp v. Bank of 164. England, 6 Sim. 192. {I) Quern of Portugal v. Olj/n, (o) Mitf. PI. 186 ; Whitworth 7 CI. & Pin. 490. v. Davis, 1 V. & B. 550. (to) Saunders v. Saunders, 3 {p) Lloyd y. Lander, 5 MaM. Drew. 387. See How v. Ease, 290 ; Mitf. PI. 187 ; Gilbert v. 5 Madd. 19. Lewis, 1 D. J. & S. 50. 92 PARTIES. Chap. IV. coii.structed for the express purpose of obtaining that dis- covery from the bankrupt. If the discovery sought from the bankrupt is sought merely as incidental to relief, then he, not being a necessary party in respect of that relief, may demur to the portion of the bill seeking it, and therefore to the discovery which is sought merely as inci- dental to it. The delivery up of documents which the bankrupt only holds for his assignees is not relief in respect of which it is necessary to make him a party (q). If the bankrupt could with propriety be made a party to a bill in respect of the allegation that he has deeds in his pos- session, the only discovery that could be required from him would ha,ve been an answer to the enquiiy, whether the deeds are or are not in his possession (r). In Pepper V. Henzell (s), it was held, that the secretary of a mutual insurance association who was also manager, and had the power of drawing upon the members for their contribu- tion to losses, might, notwithstanding his bankruptcy, after bill filed, be called on to discover who are the mem- bers of the association. Officer ota An exception to the rule, that a party who has no corporation •.,.,, -, • ^i should be a interest m the subject matter ot the suit cannot be made Burtf ™ ^ defendant to a bill of discovery, exists in the case of a against Corporation. As a corporation can answer no otherwise corpora- . tion, than under their common seal, and therefore, though they answer falsely, there is no remedy against them for perjury, it is the practice when a discovery of the entries in the books of a corporation, or of any acts done by the coi-poration, is required, to make their secre- (g) Oilhert v. Lewis, 1 D. J. & as to Ms accounts, in aid of his S. 50. defence against a. creditor who (r) lb., 51. See Hodick v. sues him at law; Lowndes v. &andeU, 10 Beav. 270. A bank- Taylor, 1 Madd. 424. rupt may file a bill of discovery (s) 2 H. & M. 488. PARTIES. 93 tary, or book-keeper, or other oflficer a defendant for Chap. IV. the purpose of discovery {t). An individual member of a corporation may be made a party for the purpose of dis- covery (u). Production of documents on oath cannot be obtained from the secretary of a company, who has not been made a party to the bill against the company (x). A married woman is not a proper party to a bill of Married • 1 1 n 1 T woman. discovery as a witness against her husband. In a case where a bill was filed against a married woman and her husband, charging that the former had acted as agent to the latter, and had possessed herself of vouchers for re- ceipts and payments by the plaintiff, and that many of the payments rested in the personal knowledge of the defendants, and praying relief against the husband, and discovery only against the wife ; a demurrer on the part of the wife was allowed {y). So also, where a bill for discovery was filed against a married woman and her husband in aid of an action for a debt on her account, a demurrer on the part of the wife was allowed (0). If a wife, however, be charged with fraud or complicity with her husband, she is bound to answer fuUy. Whether her evidence may ultimately be made evidence in the cause, is another question (a). It is improper, generally, to make an attorney party to Attorney. («) Anon., 1 Vein. 117; Wych on Deer. 1042, 7. V. Meal, 3 P. W. 310 ; Bummer [u] Bummer v. Corporation of V. Corporation of Chippenham, Chippenham, 14 Ves. 254. 14 Ves. 254; Oihhons v. Water- {x) Att.-Oen. y. East Bereham loo Bridge Co., 5 Pri. 493 ; Glaa- Corn Exchange Co., 5 W. R. 486. coU V. Copper Miners' Co., 11 {y) Le Texier y. Margravine of Sim. 303; Ranger v. Great Anspach, 15 Ves. 154. See Western Bail Co., 4 D. & J. 75 ; Francis v. Wigzell, 1 Madd. 259. BeeJcs v. Bailey, 21 L. T. N. S. (z) Barron v. Orillard, 3 V. 581. See, as to form of sum- & B. 165. mens, 3 Dan. Oh. Pr. 1820. {a) Whiting v. Rush, 2 Y. & See, as to form of order, Set. C. 552. 94 PARTIES. Chap. IV. a bill seeking a discovery and production of title deeds, merely because he has them in his custody ; for the possession of the attorney is the possession of the client ; but cases may arise to render such a proceeding advisable, as if the solicitor withholds the deeds in his possession and will not deliver them to his client on his applying for them, and in such a case, it would seem that the relief sought by a prayer for delivery, wiU support the bill against such defendant (b). Crown. In -(jiie matter of discovery, the crown and a subject litigating, are precisely on the same footing as ordinary parties (c). The Attorney-General is not, however, re- quired to make discovery on oath (d). Foreign A foreign sovereign prince (e), or a sovereign foreign. prince'or State adopting the republican form of government (/), state. suing in the courts of this country, must, like an ordinary suitor, answer cross bill on oath. A sovereign foreign state adopting the republican form of government, and recognized by the government of this country, if suing in the courts of this countiy, is not bound to join as co-plaintiff any officer of the government upon whom process may be served, and who noay be called upon to give discovery on a cross bill (g). Official Under a winding-up in a contest between the company in winding- and an alleged contributory, the official liquidator is in up contest, ^^g same position as if on a bill filed against the com- pany he had been made a defendant for the purpose of (&) Fenwick v. Heed, 1 Mer. (e) King of Spain v. EuUett, 117, 123. SeeBondY.NoHhover, 1 01. & Fin. 333. 1 T. & 0. 221; Oilbert v. Lewis, (/) JPrioleau v. United States, 1 D. J. & S. 51. L. E. 2 Eq. 664 ; United States (c) AU.-Oen. v. Corporation v. Wagner, ib. ; 2 Oh. App. 582. of London, 2 Mac. & Or. 258. {g) United States v. Wagner, {d) Prioleau v. United States, L, E. 2 Oh. App. 582. L. E. 2 Eq. 664. PARTIES. 95 discovery. He is, therefore, bound by the same rules as Chap. IV. to answering questions and producing documents, and is entitled to the same privilege as such a defendant would be (h). Objections for want of pai'ties cannot be raised on ex- Objection „.• i j.i_ / •\ for want of ceptions to the answer (^). parties. In a case where a bill of discovery was filed in aid of Amend- an ejectment at law, and the bill was met by a plea, ^^(Sng^ denying the title at law of the plaintiff, the court would P^i^i^s. not allow the bill to be amended by adding parties {k). {h) Be Bamed's Banking Co., {k) Ghdlmondeley v. Clinton, 2 L. E. 2 Ch. App. 350. Mer. 74, (i) Cr. & Ph. 113. CHAPTER V. \ \ PEINCIPLES ON "WHICH THE COURT ACTS ON AN APPLI- "^ CATION FOR DISCOVERY OR THE PRODUCTION OF DOCUMENTS. Chap. Y. On motion for the production of documents, or on ex- ceptions to the answer, the court will not express any opinion on the merits of the case, but merely deals with the case as it appears on the pleadings (a). It has only to consider the case made by the pleadings in order to see how far the discovery required may be material to the relief prayed, or how far the documents, production of which is sought, may assist the party who makes the application in making out his case at the hearing. If the court is satisfied upon the pleadings that the discovery required is material to the relief, or that the contents of a document may assist the party who applies for its pro- duction in obtaining a decree at the hearing, the dis- covery must be given, and the documents must be pro- duced, unless a special cause can be shown for exemption from the operation of the ordinaiy rule (&). If the court (a) Lingen v. Simpson, 6 1 Ha. 519 ; OlenyaU v. Frazer, Madd. 290; Bimrell v. Nichol- 2 Ha. 106; Att.-Gen. v. TJwmp- eora, 1 M. & K. 681 ; Cannock y. son, 8 Ha. 112; Sfainton v. Jauncey, 1 Drew. 507; Turney Ghadwick, 3 Mac. & G. 682; V. Bayley, 33 L. J. Oh. 500. Newton v. Dimes, 3 Jur. N. S. (J) Bligh V. Beraon, 7 Pri. 583; Mamell v. Feeny, 2 J. & 205; Latimer v. Neate, 4 01. & H. 320; Mertms v. Eaigh, 11 Fin. 570; Glover v. Hall, 2 Ph. W. E. 792; Bridgewater v. De iS-i; Smith Y. Duke of Beaufoi-t, Winton, 33 L. J. Oh. 239. DISCOVERT AND THE PRODUCTION OF DOCUMENTS. 97 shall be of opinion that it is possible the plaintiff may at Chap. V. the hearing be entitled to the decree or any portion of the relief he asks, he has a right to the production of any instrument which may assist him in making out his case (c). Though the defendant may deny the allegations of the bill, the court will, if it is satisfied upon the plead- ings that there is a question to be tried upon which the documents in the possession of the defendant- may furnish evidence on behalf of the plaintiff, assume, for the pur- poses of the application, the truth of the allegations in the biU, and order production (d). A motion for production will be refused where the Production order on the motion would be equivalent to a decree in ^^^^^^^ favour of the plaintiff. Thus where the whole object of "rder would . te eqmva- the suit was that the plaintiff might be declared entitled lent to a to a copy of a certain book for the purposes of his trade, a motion for the production of the book was refused, on the ground that the application sought an anticipated decree (e). In a case, however, where a suit was insti- tuted for the delivery up of documents, it was held that it was necessary that they should be produced for the purpose of ascertaining whether they were of such a character that the plaintiff was entitled to have them delivered up at the hearing of the cause (/). Tie obligation of a defendant Ha. 113; Shallcroas v. Weaver, to answer is a different thing 2 H. & Tw. 231 ; Jones v. Jmies, from the question whether his Kay, App. 6 ; Oresley v. Mausley, answer is admissible evidence 2 K. & J. 292 ; Swabey v. Sutton, when the cause comes to a 1 H. & M. 514 ; Minef v. hearing; Be BmrmcPs Banking Morgan, 18 W. E. 1016. See Co., L. E. 2 Ch. App. 350. Chichester v. Lord Donegal, L. (c) EamibrooTc v. Smith, 17 E. 4 Ch. App. 419. Sim. 215; Cannock Y. Jauncey, I {e) Lingen y. Simpson, 6 Modi. Drew. 507 ; Oreenwood v. Oreen- 290. wood, 6 W. E. 119. (/) Lady Beresford v. Driver, {d) Att.-Oen. v. Thompson, 8 14 Beav. 392: 16 Beav. 134; 98 DISCOVERT Chap. V. Production will only be granted where required for Production some purpose in the cause, and not for any collateral ordered for P^^rpose. In a case, accordingly, where there had been some pur- g, decree in the cause on further directions, and no further pose m the cause. reference to take the accounts, an order for production after the decree on further directions was discharged {g). Motion for _A. motion for the production of papers is analogous in production . . , . , analogous principle to exceptions to an answer, as being the process tionTto ' °^ *^® court for compelling the defendant to perfect his answer. answer ; but the court will in many cases compel a defen- dant to~^nswer direct questions, the answer to which the court may be less ready to allow a plaintiff to seek by ransacking the papers of his opponent Qi). Course of If a deed or agreement is impeached on the ground of a deed is fraud, the mere allegation of fraud is not sufficient to impeached entitle the plaintiff to an order for production, A plain- tiff cannot, by affecting to impeach a deed or agreement, acquire a right to see it, if the grounds of impeachment are displaced by the answer (%). On the other hand, to entitle the plaintiff to the production of a deed or agree- ment which is impeached on the ground of fraud, it is not necessary that the defendant should admit that there has been fraud. The court will look to the circumstances of each case. If the court is satisfied upon the plead- ings that there are circumstances in the case which show that the plaintiff is fairly entitled to have the matter Bishop of Winchester sr. Bowher, Ha. 116. Comp. Swinhorne v. 29 Beav. 480. See Gerard v. Nelson, 16 Bear. 425 ; Glegg v. Penswick, 1 Sw. 633 ; Brown Edmumson, 22 Beay. 137. V. Pearson, 9 Jur. N. S. 791 ; (i) Bassford v. BlahesTey, 6 Chichester v. Lord Donegal, L. Beav. 131 ; Gill v. Eyton, 7 E. 4 Oh. App. 419. Beav. 155 ; Greenwood v. Roth- (g) Mippin y. Dolman, 2 W. well, ib. 291 : 13 L. J. Oh. 226 ; E- 432. Crisp y. Platel, 8 Beav. 62 ; {h) Att.-Oen. v. Thompson, 8 Dendy y. Cross, 11 Beav. 91. AJSTD THE PRODUCTION OF DOCUMENTS. 99 inquired into, and that the production of the deed or Ch^'P- '^- agreement may be material in proving the allegations in the bill, an order will be made for the production, though the fraud is denied by the answer (k). 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 it should be declared a nuUity (I). An order wiU not be made for the production of a Order not document unless there is -an admission in the answer or production affidavit of the party against whom the application is ^g^^'^^sg made that the document is in his possession or power, on admis- . . -11 1 sions in and that it is of a nature to entitle the party who makes the answer the application to call for its production (m). There must °J^^ it iJin be an admission of the relevancv of the document to the ^^ V^' •^ ^ session or case made by the biU (n), for unless the document is power ; relevant, there can be no ground for its production. The ^^^ '^ ^ ^ ' '^^ ■*■ relevant to court accepts the statements on oath of a party as to the matter what documents, or parts of documents, in his possession or under his control, are relevant to the case made by the bill (o). The suspicion that he may have stated facts incorrectly or untruly in his answer or affidavit, is not a sufficient reason for the court to disregard or reject those statements on a motion founded on the answer or {k) Bassfard v. Blakesley, 6 for production of documents. Beav. 131 ; Kennedy v. Oreen, 6 {I) Batch v. Symes, T. & E. Sim. 6 ; Neesom v. Clarhson, 2 92. Jur. 43, cited 2 Ha. 168 ; AU.- (m) Storey v. Lord O. Lennox, Oen. V. Thompson, 8 Ha. 113; 1 M. & C. 534; supra, p. 55. Cannock r. Jamicey, 1 Drew. (m) Haverfield v. Pyman, 2 506 ; Davis v. Parry, 27 L. J. Ph. 208 ; supra, pp. 55, 56. Ch. 294 ; Greenwood v. Oreen- (o) Bowes v. Fernie, 3 M. & wood, 6 W. E. 119. See Mertens 0. 637; Manaell v. Ferny, 2 J. V. Haigh, 11 W. E. 792, where & H. 324; Ingilby v. Shafto, 33 the bill contained charges of Beav. 42. fraud, and the defendant moved H 2 100 DISCOVERY ^^P- "^^ affidavit (p). The court accepts the oath of a party as to what documents are relevant, unless it is clear from the nature of the suit, or the character of the documents, that the documents are relevant, notwithstanding his denial (g), or unless, with respect to a particular document, the party has made inconsistent statements. If, with respect to a particular document, he has made inconsistent or contra- dictory statements, the party who moves upon the answer or affidavit may adopt and act upon that which is most in his favour (r). A party If a partv admits in his answer or affidavit, as to docu- who admits -^.j^--'^^ t he has ments, that he has in his possession or power, documents Ms^ession °^ papers which relate to the subject matter of the bill, a document te is bound to produce them, unless he can show that he and that it . . ^ is relevant is entitled to be protected against the operation of the is iDound to , . ^ / \ produce it. ordmary rule (s). An admission, in general terms, that the documents or papers ia his possession are relevant to the plaintiff's case throws upon the defendant who makes the admission the onus of excusing himself from producing them. The ad- mission taken alone will priTnd facie entitle the plaintiif to inspect them (t). It is not enough for him to say that they will not help to make out the case of the plaintiff. A party cannot protect himself from producing documents which he has admitted to be relevant to the subject (p) OlaphamY. White, 8 Ves. («) Storey y. Lord Q. Lennox, 36 ; Bowes v. Fernie, 3 M. & C. 1 M. & 0. 535 ; Smith v. Duke 637; Pwrcell y. Macnamara, of Beaufort, 1 Ha. 520: 1 Ph. Wigr. oa Discov. 241. 219; Woods v. Woods, 4 Ha. {q) Bowes v. JFernie, 3 M. & 84; Harris v. Harris, ib. 184; 0. 637; Att.-Oen. v. Berry, 2 Combe v. Corporation of London, Coll. 33. See Greenwood v. 15 L. J. Oh. 83 ; Beadon v. Greenwood, Q'W.'R.WQ; supra. King, 17 Sim. 37; Jenkins v. pp. 66, 62. Bushhy, 35 L. J. Ch. 400. {r) Bowes v. Fmm, 3 M. & (<) Smithy. Luke of Beaufort, 0. 637 ; supra, pp. 61, 62. Ha. 520 : 1 Ph. 219. AND THE PRODUCTION OF DOCUMENTS. ' " 101 matter of the bill, by swearing that they will not help Chap. Y. his adversary in proving his case at the hearing. If the relevancy of documents is once admitted, the court will not accept the assertion of the defendant as to whether or not they wiU help to establish the plaintiff's case. The plaintiff has a right to see the documents, in order to form his own opinion and judge for himself whether or not they will help in making out his case (u). It is not necessary in order to entitle a party to the '^^a* amounts production of documents that there should be any direct to an ad- admission by his adversary of the relevancy of rlocuments ^e^^le" in his possessioiL It is enough that the court should be ■^^"''y "*^ '■ ° _ documents. able to make it out by implication. The description of the documents themselves in the answer, or the affidavit of documents, may be in many cases a sufficient ad- mission of their relevancy (x). So, also, a passage in the body of the answer referring to the schedule may amount to an admission (?/). So, also if documents are scheduled, it will as a general rule be assumed that they are relevant in some way to the matters in question in the suit (z). If the relevancy of the document is neither admitted nor denied, the court will for the purposes of the motion, assume the statement in the bill to be true. The mere admission, however, by a party of the rele- Production . . , , 1 not ordered vancy of documents m his possession or power to the case except (u) Ih. ; Newton v. Beresford, Mousley, 2 K. & J. 291. Tounge, 381 ; OoodaU v. Litth, {y) Storey v. Lord George Len- 1 Sim. N. S. 161 ; Oresley v. nnx, 1 M. & C. 534. Mousley, 2 K. & J. 288 ; Man- (z) Oreemuood v. Greenwood, 6 sell V. Feeny, 2 J. & H. 320 ; W. E. 119; Lord Eglinton v. Jenkins v. Sushby, 35 L. J. Ch. Lamb, So L. J. Oil. 113 ; Chur- 400; Ferrier v. Atwool, 12 Jur. ion v. Frewen, 13 W. E. 490. N. S. 365. See Adams v. Fisher, 3 M. & 0. (a;) Stmey v. L(yrd G. Lennox, 549 ; Smith v. Duhe of Beaufort, 1 M. & C. 534 : Oresley v. 1 Ha. 624. 102 DISCOVERY ^^^P- "^^ made by the bill does not entitle his adversary to call for party their production. A party cannot call for the production applying ^ j. ./ i r, • + j. has an of documents unless he can show that he has an interest a dmu- ^° in the documents the production of which he seeks (a), ment. gy ^.]^g ^^^.^ « interest," however, an interest in the nature of property is not meant. It is sufficient that he be so far interested in the document as to stand in need of its production for the legitimate pffrpose of the litigation in which he is engaged with his adversary, for the purposes of the suit. He must show that it is or may be evidence which m^-y piofe or lead to, or assist in proving his case at the hearing of the cause, and this interest he must make out from the answer or affidavit of his adversary. It must be shown that the document is of a character that it will give, or may give, a discovery of the case, without proof of which the plaintiff cannot have a decree (6). In a case, accordingly, where the respective titles alleged by the plaintiff and defendant were antagonistic — the plaintiff claiming the reversion in land alleged to be in the posses- sion of the defendant as lessee, and the defendant claiming to be entitled in fee to such lands, but admitting that he derived his title under a person alleged by the plaintiff to have been lessee only, and that the parcels mentioned in the deed under which he claimed, in some respects, although not wholly, con-esponded with the parcels de- scribed in the demise to such alleged lessee ; it was held, that the plaintiff was entitled to a discovery of such (a) Adams v. Fisher, 3 M. & Beaufort, 1 Ph. 219 ; Righy v. C. 549 ; Glover v. Hall, 2 Ph. Bighy, 15 Sim. 91 ; Beadon v. 484. King, 17 Sim. 37 ; Hamlrooh v. (J) 8 Ha. 112, per Wigram, Bmith, ib. 216; Comle y. Cor- V. C. See Hercy t. Ferrers, 4 poration of London, 15 L. J. Ch. Beav. 97; Maden v. Veevers, 7 83; Ati.-Oen. v. Lambe, 17 L. Beav. 489 ; Smith v. Buhe of J. Oh. 154. AND THE PRODUCTION OF DOCUMENTS. 103 parcels, and to a discovery of so much of the purchase Cliap. V. deed as described them (c). So, also, in a case where a bill was filed by a judgment creditor, seeking payment out of property which the defendant had assigned to another, impeaching the assignment, but offering to pay what the assignee might have advanced upon the assign- ment, and the pleadings showed that the assignment was only a mortgage security,- so that the plaintiff had esta- blished an interest in the documents ; it was held, that the plaintiff was entitled to a production of them(cZ). If, however, from the nature of the documents the produc- tion of which is sought, there is gi'ound for inference, notwithstanding their relevancy, that the party who makes the application has no interest, production will not be ordered. When, accordingly, the bill alleged that a party who was equitably entitled for life to a long term of years, with a general power of appointment over the residue of the term, had by a certain deed assigned only the Kfe interest to the party under whom the defendant claimed, but the defendant alleged that it had passed the whole term to the party under whom he claimed, and denied that it contained any evidence as to the title of the plaintiff; the court, in the absence of any evidence to show an interest in the deed on the part of the plaintiff, would not order its production (e). If it clearly appears that the documents, though relevant to the matters in the bill, are not material to the case of the party who requires production (/), or that they are not necessary or material (c) AU.-Oen. v. Thompson, 8 (e) Olover v. Eall, 2 Ph. 484. Ha. 106. See Lind v. lale of See Blenkinsopp v. BlenJcinsopp, Wight Ferry Co., 8 W. E. 540. ib. 607. [d) Latimer v. Neate, 4 01. & (/) Smithr. Bowling, 10 Jur. Pin. 570. See Olover v. Sail, 2 63 ; M'Hardy v. Hitchcock, 1 1 Ph. 490. Beav. 77; Harford y. Bees, 15 lot DISCOVERY Chap- Y. to the question to be decided at the hearing (fif), produce ' tion will not be ordered. If the plaintiff's title is posi- tively disputed by the defendant, and the documents would not in any way assist the plaintiff in any relief he is to ask at the hearing, the court may not only not compel production, but may not require a schedule of them Qi). A defendant will not be required to set forth a list of documents in his possession which relate ex- clusively to his own title {%). But, even though it may be doubtful whether the documents, if set out in a schedule, would advance the case of the party who requires pro- duction, he has a right to have such of them set out as relate to his case Qc). Party who A party who admits the relevancy of documents in his reiCTMicy possession to the matters in dispute cannot escape pro- of docu- duction by setting: up a defence which denies the whole ments m j a ^ his posses- title of the party who makes the application (f). ' But escape pro- when the title and interest of the party who makes the duction by application are denied, those documents only which are denying ^^ '^ the title of necessary and material to the question to be decided at the appli- cant, the hearing, wiU. be ordered to be produced (m). Jur. 663 ; Mansell v. Fteny, 2 3 Madd. 432 ; Hue v. Eichards, 2 J. & H. 323 ; Forbes v. Tanner, Beav. 307 ; Edwards v. Jones, 1 9 Jut. N. S. 455. Ph. 501 ; OrdY. Fawcett, 14 Jur. {g) Turney v. Bayley, 33 L. J. 456 ; Att.-Oen. v. Corporation Oh. 600. See Eambrooh v. of London, 2 Mao. & Q-. 247, Smith, 17 Sim. 215. 256 ; Qoodall v. Little, 1 Sim. {h) Hamlrook y. Smith, 17 N. S. 151, 161; Bugden v. Sim. 215; Wright y. Verrum, 1 South, 3 Jur. N. S. 783; War- Dre-w. 350. rich v. Queen's College, L. E. 3 (i) Sutherland y. Sutherland, Eq. 683 ; Minet y. Morgan, 18 17 Beav. 209. W. E. 1015. {k) Penney y. Ooode, 18 L. T. {m) Turney v. Bayley, 33 L. 217. J. Oh. 500. See Att.-Gen. v. (l) SomerviHe v. Mackay, 16 Thompson, 8 Ha. 113; Qoodall Yes. 382; Unsworthy. Maddock, v. Little, 1 Sim. N. S. 161; AND THE PRODUCTION OF DOCUMENTS. 105 The rule, that a party who admits the relevancy of G^ap. V. documents in his possession to the matters in dispute, is bound to produce them, although he denies that they will prove the plaintiff's title, has been considered to have been impugned by the case of Adarns v. Fisher (n) ; but the ground of Lord Cottenham's decision in that case, appears to have been, that it was evident from the nature of the documents the production of which was required, that they were not material for the purposes of the decree (o). The court will not make an order for production, unless Production the party from whom production is sought describe the unless documents in his answer or some schedule to it, or in his ^o^^™™* ' be de- affidavit as to documents, for unless the document be scribed. described, the court cannot know whether its order is complied with or not (p). A book admitted to be in the defendant's possession If docu- must be produced, though the answer admits the fact in admitted reference to which the production is required. The ^J ^e^^Ws plaintiff has a right to the production of all papers possession, admitted to be in the defendant's possession which con- produce it, tain anything material to the plaintiff's case. The *jj^^|^ *^! defendant's admission in his answer of the fact to be ""ts the fact in established by means of the papers, does not take away reference , . , , , to which the right {q). production If the defendant admits the possession of documents, ^^ ^i^^^ed. and upon inspection it appears that the documents have produce been mutilated, or that some of the leaves have been cut J^^^^^ ™* documents, Wan-icJc v. Queen's College, L. Cli. 487. E. 3 Eq. 683 ; Minet v. Morgan, {p) Athyns v. Wright, 14 Ves. 18 W. E. 1015. 213 ; Princess of Wales v. Lord (m) 3 M. & C. 526. Liverpool, 1 Sw. 114; supra, (o) Bute V. Glamorganshire pp. 66, 60. Canal Co., 1 Ph. 685, per Lord (g) Thomas y. Morgan, 3 L. J. Lyndhnrst ; Lancaster v. Evors, Ch. 157. ib. 352 ; Ord v. Fawcett, 19 L. J. 106 DISCOVERY ^•^P- '^- out, and he, on being called to account for it, in his answer sets forth that he has not got the omitted leaves, but does not swear in such a manner as to show that they are not in his power, custody, or possession, he admits the possession of them, and is bound to produce them. If he does not say that he has no knowledge of the existence of the leaves, or where they are, he must produce them (r). Production Although it is admitted that the documents in the of privi- possession of a party relate to the matters in question in leged com- ^]^g gyj|. ^^^ j^ jg ^^^ denied that they may be material munica- ' •' •' tions. to the case of the party who seeks production, the party in whose possession they are, will be protected from pro- ducing them, if he show by his answer or affidavit as to documents, that they are privileged communications (s), or that the production of them may expose him to pains, penalties, or forfeiture (t). Party not If it appear, from the answer or affidavit of a party, OTodiTce*" *^^* ^ document is not in his exclusive legal possession, documents but is in the legal possession of somebody else, jointly inexclusiTe with him, who is not a proper party to the suit, or who, of ftem!" if ^ proper party to the suit, is not before the court, production will not be ordered (u). The interest of a person not a party to the suit, and who cannot be made a party to it, in a document, will deprive the party who makes the application of his right to have it produced, although, as against parties to the suit, he was clearly (r) Farrer v. Hutchinson, 3 807 ; Martineau v. Cox, 2 Y. & Y. & 0. 704. C. 638 ; Richardson v. Hastings, («) Flight V. Robinson, 8 Beav. 7 Beav. 354 ; Michardson v. 33 ; Woods v. Woods, 4 Ha. 85. Shewell, 15 Beav. 277 ; Beid r. (t) Infra. Langhis, 1 Mac. & G. 636; {u) Murray v. Walter, Or. & Bugden v. Tylee, 21 Beav. 545 ; Ph. 124; Taylor v. Rundell, ib. Warrick v. Queen's College, L. 112; Lopez v. Deacon, 6 Beav. E. 4 Eq. 254; supra, p. 36. 258; Sweet v. Hunter, 9 Jur. AND THE PRODUCTION OF DOCUMENTS. 107 entitled to production. In a case, accordingly, where Chap. Y. documents were in the possession of trustees, production of them was not ordered in the absence of the cestuis que trustent (cc). So, also, the absence of the mortgagor has been held a sufficient reason for not ordering the pro- duction of the mortgage deed by the mortgagee (y). So, also, in a case where, prior to the institution of the suit, the defendant had deposited the deeds with a third party who claimed a lien on them which he was unable to satisfy, production was not ordered (z). So, also, an exe- cutor was not ordered to produce certain drafts of his testator which, at the time of the application, were in the possession of the bankers on whom they had been drawn (a). If a party, by his answer or affidavit, admits a docu- ment to be in the hands of his solicitor or agent, he is bound to produce it, for the possession of an agent is in law the possession of the principal (b) ; but if it appear that the party in whose hands a document is, is the agent not only for the party against whom the order is prayed, but also for other parties who have a joint in- terest in it, and are either not before the court, or, if before the court, have not made any admission upon [x] Few V. Guppif, 13 Beav. interest; JFew v. Ouppy, 13 461 ; Ford v. Dolphin, 1 Drew. Beav. 471. 222. When, howeTer, an action ( y) Lamhert v. Rogers, 2 at law is brought by a trustee Mer. 490 ; Edmonds y. Foley, by the direction and for the 30 Beav. 283. benefit of the cestuis que trustent, (z) North v. Htiber, 29 Beav. the trastee is bound, if a bill 437. See Liddell v. Norton, of discovery in defence to the Kay, App. 11. action be instituted against (o) Bayley v. Cass, 10 W. E. him, to produce all the docu- 370. ments in his possession to the (i) Farquharson v. Balfour, same extent as if he had not T. & E. 190; Bligh v. Berson, 7 only the legal but the beneficial Pri. 205. 108 DISCOVERT Chap. Y. which an order could possibly be made, the court will not make an order for production (c). In Walburn v. Ingilby (d), the documents were not in the possession of the party, but were in the possession of the solicitor upon whom the order was made, that solicitor being deemed to be the common agent of the party to the suit, and other parties not before the court, and who opposed the production ; the order was professed to be made upon the principle that the court has a right to give the plaintiff whatever access the defendant would be en- titled to ; but in Murray v. Walter (e), Lord Cottenham observed that there must have been some peculiarity in the case which does not appear in the report ; and he refused to order the defendant to produce documents in the possession of the treasurer of a partnership, who was the agent of the defendant and the other partners in such partnership (/). Nor has a plaintiff, in a contest with a defendant, any right to the production of documents belonging to a person whom the defendant has employed as agent. The plaintiff cannot, as against parties whom the defen- dant has employed as agents, get an order for the pro- duction of documents which, though in the corporeal possession of the defendant, the parties whom he has employed as agents have a joint interest in, unless he brings all parties before the court, and shows an equity against all (g). One member, accordingly, of a firm of (c) Murray v. WaUer, Or. & 608. Ph. 124 ; Lopez v. Deacrni, 6 {d) 1 M. & K. 61. Beav. 254 ; Palmer v. Wright, (c) Or. & Ph. 124. lOBeav. 237; Beid y. LangJms, (/) 3 Mac. & G. 471, per 1 Mac. & G. 636 ; Cridland v. Lord Truro. De Mauley, 13 Jur. 442. See {g) Beid v. Langlms, 1 Mac. Morrell v. Wootten, 13 Beav. & G. 636. 106 ; Bovill v. Cmvan, 15 W. R. AND THE PRODUCTION OF DOCUMENTS. 109 two partners who were employed as agents by the plain- *^*'^p- ^- tiff, was not ordered to produce documents belonging to the partnership, though in his actual possession, on the ground that it appeared from the answer that the other partner, who was not before the court, had a distinct interest in them (Ji). So, also, in a case where an agent employed to manage an estate had, in the usual course of business, entered his accounts in books which also related to other estates, and these books were admitted by the answer of the defendant to be in his possession, it was held, that the plaintiff was not entitled to the production of them (i). So, also, the books of a solicitor employed by a trustee to receive the rents of his trust estate are not documents which the trustee has in the custody of his solicitor or agent, although they contain accounts of rents received by the trustee (k). If documents belonging to a defendant are in the hands Documents of a solicitor who claims a lien upon them, he cannot a solicitor refuse to produce them, on the gi'ound that the solicitor ^y^^'*™^ claims his lien and wiU not produce them. The court will order production, taking care, however, to give the defendant sufficient time to obtain the delivery of the documents. The course is for the party to obtain an extension of time to put in his answer, which extension of time will be from time to time prolpnged, until the party can pay off or procure a waiver of the lien (l). (7j) lb. (?) Ooodcliap v. Weaving, 16 (■j) Aire;/ v. Ball, 2 Deg. & Jur. 586. See Taylor v. Run- Sm. 489; Colyer v. Colyer, 30 dell, Or. & Ph. 113; Fencott^. L. J. Ch. 408. Clarke, 6 Sim. 8 ; Rodich v. {h) Lord Eglinton v. Lamh, Oandell, 10 Beav. 270. Oomp. 35 L. J. Ch. 113. See Wood- Palmer v. Wright, ib. 234; hatch V. Freeland, 11 W. E. Wroughton, v. Barclay, 11 Jur. 398. 274. 110 DISCOVERT Chap. Y. Where a solicitor is served with a suhpcena duces tecum to produce a document in his possession belonging to a client, he cannot, if the party requiring production be a third party, insist on his lien as a ground for withhold- ing production (m). But where the party requiring pro- duction is the person against whom the lien is claimed, he may insist on his lien as a ground for withholding production until the lien is satisfied {n). In LocJcett v. Cary (o), however, it was held that a solicitor, defendant to a suit, cannot refuse to produce documents belonging to his clients, on the ground that he has a lien upon them, and that the party seeking inspection claimed under his clients. Although a solicitor who discharges himself cannot set up a lien for costs as a reason for not delivering up papers necessary to enable his client to proceed with pending matters in the litigation to which they relate ; yet a solicitor who has been discharged by a client may set up such lien, and will not be ordered to produce or delivei; up to the cHent the papers on which he claims the lien, although his not doing so will embarrass the client in prosecuting or defending his claim (25). Under the old Winding-up Acts, a solicitor would not, on the application of the official manager, have been ordered to produce any documents belonging to the com- pany upon which he claimed a lien, because it was simply the case of a client seeking production against his solicitor without having paid his solicitor's bill But it was equally beyond doubt that the solicitor would have been ordered (m) Hope V. Liddell, 7 D. M. 102 ; Re Gregson, 26 Beav. 87. & G. 338 ; Cameron's Coal- (oj 10 Jur. N. S. 144. breokdak Co., 25 Beav. 1. (p) Be Faithfull, L. E. 6 Eq. («) Kemp V. King, 2 Moo. & 325. E. 437 ; Doe v. Boss, 7 M. &.W. AND THE PRODUCTION OF DOCUMENTS. Ill to produce them on a subpcena duces tecum obtained by a chap. V. creditor or a third pai-ty (g). Under the present Winding-up Act, 25 & 26 Vict. c. 89, s. 115, the soUcitor of a company may be compelled, on summons obtained by the official liquidator in the wind- ing-up of a company, to produce documents relative to the company, without prejudice to his Hen for costs. The Act leaves it in the discretion of the judge (r). The party summoned, however, when he attends for examina- tion, is in the same position as an ordinary witness when served with a subpoena duces tecwm, and may take any objection open to him as to the inspection of books (s). If a defendant who is bound to keep separate accounts Cases in improperly mixes them up with his own accounts, so that paries will they cannot be severed, he must produce the whole (t). ^® ordered •' . . *° produce Thus where an executor has mixed up accounts relating documents to the executorship with those of his own trading concern, others are he cannot, in a suit against him by his cestui que trust, interested, protect himself from producing the original books in which any part of the accounts may be inserted (u). If the executor be carrying on business with a partner in trade, and the partner permit him to mix the accounts, it is no objection to an order for production that the partner has an interest in the books. The case is all the stronger in favour of production if the executor has adnutted that he has lent to the trading concern part of the trust property, and that they have been dealing with it (x). (q) Be South, Essex, &c. &c. 1 Cox, 277 ; Freeman v. Fairlie, Co., ex p. Paine & Langton, 3 Mer. 29. Comp. Airey v. L. E. 4 Ch. App. 216. Ball, 2 Deg. & Sm. 489. (j.\ lb. (u) Freeman v. Fairlie, 3 Mer. («) Be Smith, Knight & Co., 29. ib. 421. W lb. 43. (i) Earl of Salisbury v. Cecil, 112 DISCOVERT Cihap. Y. Trustees and executors who have invested their testa- tor's assets in mortgage securities, cannot, if defendants m an administration suit, resist the production of the title deeds of the mortgage securities to the persons interested in the mortgage monies, on the ground that the mort- gagors object to the production and are not before the court (j/). Nor can the assignee of a lease, against whom a bill of discovery has been filed in aid of an action at law on the covenants in the lease, object to the production of the lease and assignment, by saying that he holds the pro- perty by way of security, and that the persons entitled to the equity of redemption are not before the court {z). If a party is in possession of documents on his own account only, and he owes no duty to other persons in respect of them, the mere fact that the documents are important to their interests will not protect them from production (a). So, also, in a suit for an account of a partnership between two solicitors, it was held to be no objection to an application for the production of docu- ments that the clients of the fiim had an interest in them (6). Parties Where a co-defendant has an interest in the documents interest in Scheduled, he should be served with a summons to pro- shouldTe^ duce (c). In a case where two defendants had admitted served. \]^q possession of documents, and one of them died, it .was held that a motion for production against the survivor could not be mabitained in the absence of the representatives {y) Oough v. Qffley, 5 Deg. & (6) Brown v. Perhins, 2 Ha. Sm. 653. 540. See Ord v. Fawcett, 19 (z) BdlU v. Margrave, 4 Beav. L. J. Ch. 487 ; Telford v. Bus- 119. Comp. Lambert v. Bogers, kin, 1 Dr. & Sm. 148. 2 Mer. 489. (c) Oresley y. MousI^, 2 K. & (a) Hercy y. Ferrers, 4 Beav. J. 288. 97. AND THE PRODUCTION OF DOCUMENTS. 113" of the deceased defendant (d). So, also, where A. and B., Ciap. V. by their joint answer, admitted certain documents to be in the possession of A., it was held that B. must be served as well as A. with notice for production (e). So, also, in a case where one of several defendants, hj his answer, admitted the possession of documents, but it appeared that, since *his answer, he had deposited them with one of his co-defendants, a motion for their pro- duction, in the absence of the co-defendant, was re- fused (/). Upon motion on behalf of a defendant in a suit for production by the plaintiff of a document of which the plaintiff had obtained production by an order against his co-defendant, the court refused to make the order in the absence of the latter (g). If parties intei'ested in documents, being also proper parties to the suit, have been served, and do not appear, an order for production may be made {h). If the court is satisfied that the defendants sufficiently Production represent all the parties interested in the documents, ^hen production of which is sought, for the purposes of the po^eggjo" litigation, and are in the actual possession of them, anofd"™- ments order for production will be made (i). Where, accord- represent ingly, the defendants, members of a partnership firm or ^u pa'rtles^ body, sufficiently represented the whole of the partners interested. or shareholders for all the purposes of the litigation, and were in the actual possession of the documents, the pro- (d) Rohertscm v. Shewell, 15 (h) Oashell v. Chamhers, 26 Beav. 277. Beav. 303. (e) SmitJi Y. Sidney, 6 Jur. (i) Olyn v. Caulfield, 3 Mac. 432. & G. 472. See Hcdl v. Cmnell, (/) BurUdge v. BoUnson, 2 3 T. & C. 707 ; Lopez v. Deacon, Mao. & G. 244. 6 Beav. 254 ; Richardson v. (f/) Reijnolds v. Oodlee, 4 K. & Hastings, 7 Beav. 355. J. 88. 114 DISCOVERY Chap. V. duction of which was sought, an order for production was ' made (Jc). So, also, in a case where the legatees were numerous, the personal representatives were held to repre- sent them sufficiently to authorise the court to grant pro- duction of documents {l). Agent Though an agent will not be ordered to produce docu- produce ° ments which he holds on behalf of "his principal in the Mh^r^n absence of his principal, the case is different, if the parties law the from whom production is sought have either ceased to be the party agents for any one, or have become, in construction of the^appli- ^^^> agents for the party seeking production (m). Where, cation. accordingly, during a revolution in Sicily, the revolu- tionary government sent parties to this country who were natives of Sicily, and afterwards remitted to them monies which had been contributed by parties in Sicily, with directions to purchase vessels therewith, and the defen- dants applied the monies accordingly ; the lawful sove- reign of Sicily, after he had re-established his authority, having filed a bill claiming the ehip which still remained in London, the defendants were ordered to deliver up documents in their possession relating to the matters in the bill, on the ground that they had either ceased to be agents for any one, or had become agents or trustees for the plaintiff (n). Production -^ i* is not the course of the court to order a party not ordered ^q ^q ^j^g^^ which he cannot or may not be able to do (o), unless ■' ^ ' party can an Order for production of documents wUl not be made obey the . . , - ^ . . ... order. against parties who have ceased to be m a position m which they have control over the documents, and power (7c) Olyn v. Caulfield, 3 Mac. (m) King of Two Sicilies v. & G. 472. Oomp. Penney v. Wilcox, \ Sim. N. S. 320. Ooode, 1 Drew. 474. («) lb. {I) Fhilijops V. Holmer, 15 W. (o) Murray v. Walter, Or. & E. 578. Ph. 124 ; supra, p. 36. ANB THE PRODUCTION OF DOCUMENTS. 115 to obey the order (p). In a case where a defendant who Chap. V. had admitted documents to be in the possession of his solicitor, stated, on being required to set forth a schedule of them, that his solicitor had made a diligent search for them, but could not find them, as they had been mis- placed or mislaid in the solicitor's office, and that, there- fore, he could not make a schedule of them, the answer was held sufficient (q). So, also, the court would not order a partner, resident in England, of a house cariying on business abroad, to set forth a schedule of documents relating to, and in the custody of, the foreign house, on the ground that even if the schedule was given, it could not enforce production (?■). On directing an issue, the court will order the parties *^"''='^ f°'^ . ... production to produce at the trial all documents in their possession, on direct- custody, or power which the opposing parties may require, ''S^^'^®' or which the court may think necessary for a complete investigation (s). If such order does not form part of the original order directing the issue, it may be obtained afterwards upon motion (t). It seems, however, that such an order cannot be made, unless all the parties to the issue are also parties to the record (u). The rule as to producing papers on an issue directed by the Court of Chancery is, that all papers and documents which the court conceives will be useful at the trial must be pro- duced. Upon this principle, the court will order docu- ments which are in the possession of another defendant to be produced at the trial of the issue (x), even (p) Penney v. Ooode, 1 Drew. 461. Set. on Deer. 980, 981. 474. [t) Marsh v. Sihhald, 2 V. & (2) Ellwand v. M'Donnell, 8 B. 375. Beav. 20. (*0 Johnston v. Todd, 3 Beav. (r) Martineau v. Cox, 2 Y. & 222. 0_ 638. (»') Marsh v. Sihhald, 2 V. & (s) Marsh v. Sihhald, 2 V. & B. 375. B. 375 ; Fewy. Ouppy, 13 Beav. 116 DISCOVERT AND THE PRODUCTION OF DOCUMENTS. ^a,p. Y. though such defendant declines to be a party to the issue (2/). It may be remarked that the ordinary order for the production of books, papers, and writings -will not be sufficient to compel their production at the trial ; such production must be specially ordered, and usually forms part of the order directing the issue ; and where that is not the case, a special application on motion must be made to the court (z), or at chambers (a). Where the court has directed an issue, with directions for production of papers, a biU of discovery cannot be filed without leaye of the court (b). If the trial at law is not directed by the court, an order for the production of documents, in aid of the trial at law, is limited to the documents referred to by the answer of the particular defendant (c). {y) Pindar v. Smith, 6 Madd. (6) Cooh v. Marsh, 18 Ves. 48. 209. See Few v. Ouppy, 1 M. (z) Marsh v. Siblald, 2 V. & & 0. 507. 375. (c) Marsh v. Sibbald, 2 V. & (a) Set. on Deer. 981 ; Lamh B. 375 ; Few v. Guppy, 13 V. Danby, 9 W. E. 765. Beav. 472. CHAPTER VI. GROUNDS FOR OBJECTING TO DISCOVERY AND THE PRODUCTION OF DOCUMENTS. Section I. — Privileged Communications. A legal adviser, whether a counsel, solicitor, or attor- Chap. vr. ney, who is employed professionally by a client to transact professional business, may not disclose matters of profes- sional confidence. When a legal adviser is employed professionally by a client to transact professional business, all communications which pass between them in the course of, and for the purpose of, that business, are, so far as the legal adviser is concerned, privileged communications. If touching matters that come within the ordinary scope of professional employment, a legal adviser receives a com- munication from a clieat in the transaction of his busi- ness ; or if in the course of this employment he commits to paper matters which he knows only through his pro- fessional relation to the client, or obtains knowledge of the contents of deeds or documents which have been en- trusted to him professionally by his client, and which he is acquainted with only by virtue of professional con- fidence, he is not only justified in withholding a disclosure of such matters, but is bound to withhold it, and will not be compelled to disclose the information or produce the papers or documents either as party or witness («). If a (a) Wilson V. Rastall, 4 T. E. 22 In. ; Oreenough v. Gaslcell, ] 759; EothweU v. Ki7ic/, 2 Sw. M. & K. 100; Herring v. Clo- 118 PROFESSIONAL PRIVILEGK. Chap. VI. document be exhibited to an attorney in pursuance of a confidential communication with his client, all that appears on the face of such document is part of the confidential communication (b). Communications between a client and an attorney are privileged, though the attor- ney happens to refuse the employment (c). Where an attorney holds a document for a client, he cannot be com- pelled to produce it by a person who has an equal interest in it with his client (d). The rale equally applies though the attorney be em- ployed in the character either of a scrivener to raise money (e), or of a conveyancer to draw deeds of con- veyance (/). It extends, in fact, to all communications between a solicitor and his client relating to matters within the ordinary scope of a solicitor's duty (g), and the sale of an estate being one of such matters, a solicitor is not at liberty to disclose what had passed in conversa- tion with the client, either relative to the amount of the bidding to be reserved upon the sale of an estate in which he had been concerned for him, or to other matters con- nected with such sale (h). Nor can a solicitor be com- pelled to disclose the names of his clients (i). The privilege which attaches to communications he- bert/, 1 Ph. 92 ; Jones v. Pugh, {d ) Newton v. Chaplin, 10 0. ib. 96 ; Davies v. Waters, 9 M. & B. 356. W. 612; Riuaell v. Jackson., 9 (e) TurquandY. Knight, 2 M. Ha. 390 ; Dwyer v. Collins, 7 & W. 100, per Lord Abinger ; Exch. 646 ; Volant v. Soyer, 13 Harvey v. Clayton, 2 Sw. 221 n. C. B. 233; Lawrence v. Camp- (/) Cromack v. Heathcoate, 2 lell, 4 Drew. 487 ; Marsh v. Bro. & B. 6. Keith, 1 Dr. & Sm. 347. {g) Jones v. Pugh, 1 Ph. 96 ; (5) Wheatley v. Williams, 1 Carpmael v. Powis, 1 Ph. 687. M. & W. 533. Comp. Phelps v. (7i) Ib. Preiv, 3 E. & B. 430; infra, (?!) Harvey v. Clayton, 2 Sw. p. 124 n, 221m.; Jones v. Pugh, 1 Ph. 96. (c) Cromach v. Heathcoate, 2 Comp. Reade v. Woodroffe, 24 Bro. & B. 6. Beav. 425. PROFESSIONAL PRIVILEGE. 119 tween a professional legal adviser and a client is the Clap. VI. privilege of the client, and not the privilege of the legal adviser (k). If the circumstances of the case are such that the client can have no privilege, the legal adviser can have none (T). In general it is the legal adviser who insists on the privilege of the client, and it is his duty to do so, but it is competent to the client to take the objection (m). The privilege, where the legal adviser is himself inter- rogated, is not limited to cases where the communications were made either during or in relation to an actual or even an expected litigation. It is sufficient if they have passed between a client and his legal adviser as profes- sional communications in a professional capacity (n). The foundation of the rule which protects from dis- Founda- closure confidential communications between a client and ^^^°^ his le^al adviser, is not, said Lord Brougham, in Green- ^ *° P™- . . fessional ough V. Gashell (o), " on account of any particular im- privilege. portance which the law attributes to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administra- {k) Wilson V. Bastall, 4 T. E. (m) Cleave v. Jones, 1 Exch. 759 ; ParMurst v. Lowten, 2 428. See JBeer v. Ward, Jac. Sw. 215; Herring v. Glolery, 1 80; Carpmaely. Poiois, 9 Beav. Ph. 92 ; Jones v. Pugh, ib. 96 ; 16. Blerihintopp v. Blenkinsopp, 2 (n) Greenough v. OasJcell, 1 Ph. 607 ; Lawrence v. Campbell, M. & K. 100 ; Serring v. Clo- 4 Dre-w. 489 ; Volant v. Soyer, hery, 1 Ph. 92 ; Carpmael v. 13 0. B. 233 ; Marsh v. Keith, 1 Powis, 9 Beav, 16 ; Lord Wal- Dr. & Sm. 347. gingham, v. Qoodriclce, 3 Ha. (l) Cameron's CoalbrooJcdale 124, per Wigram, V. 0. ; Pearse Co., 25 Beav. 1 ; Bamsbotham v. v. Pearse, 1 Deg. & Sm. 25, per Senior, L. E. 8 Eq. 575. See Knight Bruce, L. J. ; Lawrence Blenhinsopp V. Blenhins ^ ' _ solicitor IS the fraud has been concocted between the solicitor and party to a his client, or whether a transaction between solicitor and chent is impeached by the client or his representatives on the ground of fraud (b). In a case where a solicitor was [v] Brown y. Perhins, 2 Ha. Russell v. Jackson, 9 Ha. 392; 540. Dweis v. Parry, 27 L. J. Oh. [x) lb. 294 ; Oresley v. Mousley, 2 E. & {y) TitgweU v. Hooper, 10 J. 288 ; Gilbert v. Lewis, 1 D. J. Beav. 350. See Pritchard v. & S. 49, 50 ; Philipps v. Holraer, Fmdhes, 1 0. P. C. 14. 15 W. E. 578 ; Lewis v. Pen- (z) Taylor on Evid. 811. nington, 29 L. J. Ch. 672; {a) Ford v. Tennant, 32 Beav. Charlton v. Coombs, 4 Giff. 380 ; 167, per Lord Ilomilly. Patch v. Ward, L. E, 1 Eq. 436. (6) Beynell v. Sprye, 10 Beav. See Blenldnsopp v. Blenkinsopp, 56; 11 Beav. 618; Follett v. 10 Beav. 281; Oartside y. Out- Jefferyes, 1 Sim. N. S. 15; ra™, 26 L. J. Ch. 113. 126 PROFESSIONAL PRIVILEGE. Chap. VI. charged with having been party to a fraud committed by a deceased client, of whom there was no personal repre- sentative, he was ordered to produce all documents re- lating to the transaction, whether his own or those of his deceased client (c). If a deed between solicitor and client is impeached on the ground of fraud, the solicitor caimot resist production on the ground of lien (d). The mere allegation of fraud is not sufficient to induce the court to break through the general rule (e). In order to take the case out of the ordinary rule as to privilege, there must be some specific charge in the bill connecting the discoveiy sought with the fraudulent act complained of. It is essential that the act complained of should on the face of the bill appear to be a fraud (/). If there is nothing in the bill which charges the solicitor with the fraud in respect of which relief is sought, or any passage which connects him with the fraud, he cannot be required to give discovery (g). If there is no averment in the bill that the solicitor took any part in the fraud, and all that is alleged with respect to him is that he was instructed to prepare a deed and did prepare it, it is not enough (h). Noprivi- The same considerations which prevent any privilege lege as to fj.QjQ attaching to communications between solicitor and conmnini- o cations for client, where the solicitor is party to a fraud, apply to the an illegal . . , ,. . ... purpose, case of Communications between solicitor and client as to (c) Weaver v. Williams, 11 See Blenhinsopp v. BlenJcinsopp, Jur. N. S. 902. 10 Beav. 281 ; Chant v. Brown, {d) Balch V. Byrnes, T. & E. 7 Ha. 79 ; 9 Ha. 790. 87. See Fencott v. OlarJce, 6 (g) Charlton v. Coomls, 4 Giff. Sim. 8 ; supra, p. 99. 380. (e) OreenoughY. Oasleell, 1 M. {h) Mornington v. Morning- & K. 100 ; Reynell v. Sprye, 11 ton, 2 J. & H. 703. See Beav. 618 ; supra, p. 98. Oreenough v. Gaskell, 1 M. & K. (/) Folletf V. Jefferyes, 13 100. Jur. 972; 1 Sim. N. S. 16. PROFESSIONAL PEIVILEGE. 127 the best means of evading the law. The existence of an Chap. VI. illegal purpose ■will prevent any privilege attaching to the communications between them, for it cannot be said to be part of a solicitor's duty to advise his client as to the means of evading the law (i). Upon similar considerations a solicitor is not at liberty directly or indirectly to conceal any fact which will enable the court to discover the residence of its wards, although the knowledge of such fact may have been communicated to him by his client in the course of his professional em- ployment (k). When, therefore, the mother of wards of court had absconded with the wards, her solicitor was ordered to produce the envelopes of letters which he had received from her with the object of discovering her resi- dence from the post-marks (f). A client may waive the privilege ; if a solicitor has Client may documents in his possession which have been entiTisted to privaege. him by a client, and the client does not object to their production, the solicitor cannot claim the privilege, but is bound to produce them (m). The solicitor himself, how- ever, cannot waive the privilege without the consent of his client, to whom the documents belong (n). Though a client may waive the privilege, he can only do so in so far as his own interest is concerned (o) ; if more parties than one are interested in the privilege, the consent of one of (i) Russell V. Jackson, 9 Ha. h'lisopp, 2 Ph. 608; Cameron! a 392, per Turner, L. J. See Coallrookdale Co., 25 Beav. 1 ; Follett V. Jefferyes, 1 Sim. N. S. Oaskell v. Chambers, 26 Beav. 16. 303. (A) Bamshotham v. Senior, L. (») Cameron's CoalhrooMah E. 8 Eq. 575. Co., 25 Beav. 1. (Z) lb. Comp. ex parte Camp- (o) Doe v. Lord Hertford, 19 hell, 18 W. E. 1057. L. J. Q,. B. 527 ; CJiant v. (m) Carpmael v. Powis, 9 Brown, 7 Ha. 87. Beav. 16; Bleitkinsopp v. Blen- 128 .PROFESSIONAL PRIVILEGE. Chap. VI. them to waive the privilege will not deprive the ofhers? of the benefit of it (p). PriTilege The privilege never ceases at any period of time ; where> ceases, a man has acquired his information in the course of his professional employment, his mouth is closed for ever (g), unless he has the permission of his client to speak, and it is immaterial whether the client be a party to the suit or not. It is not, perhaps, too much to say of the rule that, unless, the client waives the benefit of it, courts of justice are bound to consider confidential communications (falling nor is it within the rule) as if thej' never had been made (r). The the^f^t ^^ privilege is not affected by the circumstance that the pro- that the fessional adviser has acquired an interest in the property solicitor . . . r r j acquires to which such Communications related (s). When, how- an interest . t , i j.t_ t *j. in the pro- G'^sr, a mortgagor and mortgagee employ the same solicitor perty. ^]jq ultimately becomes transferee of the right previously acquired by the mortgagee, he cannot set up a professional privilege as if he had acted confidentially for one only of the parties ; neither can he resist production of the deeds as if he were in the position merely of a third party. When a solicitor employed professionally by mortgagor and mortgagee subsequently takes a transfer of the mort- gage and forecloses ; in a suit by the mortgagor to open the judgment decree, the solicitor is bound to produce all documents, &c., possessed by him as such solicitor (t). PriTilege The privilege does not terminate with the death of the t*rai°''*t client, but devolves upon those who claim under him (u). ■with death It belongs equally to parties claiming under the client as of client . .... , , . ,. . , agamst parties claiming adversely to him. It is, however, {p) Chant V. Brown, ib. 9 Ha, (s) lb. 790. («) Patch V. Ward, L. E. 1 {q) Wilson v. Rastall, 4 T. E. Eq. 436. 759; Chant y. Brown, 7 Ha. (m) Chant t. Brown, 7 Ha. 86. 87; 9 Ha. 790. See Ford v. (r) Cha7it V. Brown, ib. De Pontes, 5 Jur. N. S. 993. PROFESSIONAL PRIVILEGE. 129 cotifined to cases where the rights and interests of the Chap. VI. client, or of those claiminar under him, come into conflict ^^^ ^^' ^ _ _ volves on with the adverse claims of third parties, and does not those who apply as between different parties, all of whom claim i^[^_ under the client, as, for instance, between the executors of a client and his next of kin who contest the validity of his will. The protection of the client being the principle on which the rule as to privilege is founded, the founda- tion on which the rule proceeds is wanting in the case of testamentary dispositions by a client as between different parties, all of whom claim under him. The disclosure in such cases can affect no right or interest of the client. It cannot be said to be for the protection of the client that evidence should be rejected, the effect of which would be to prove a trust created by him and to destroy a claim to take beneficially by parties who have accepted the trust. The privilege does not belong to the executors as against the next of kin, but following the legal interest is subject to the trusts and incidents to which the legal interest is subject (x). In a case accordingly, where a testator had given the residue of his estate to his executors absolutely, and a bill was filed by the next of kin against the exe- cutors, alleging that the gift was made to them upon a secret trast for the foundation of a school, communications which had passed between the testator and his solicitor were ordered to be produced (y). The protection which the law throws round communi- Privilege . . IT 1 J ii 1 extends to cations between solicitor and client extends to them, when commu- had through the medium of an agent, as far as it would ^g^^*^™ extend to them if had with the principal (z). Communi- solicitor (x) Russell v. Jackson, 9 Ha. [y] Biissell v. Jackson, 9 Ha. 391, 394. See Oresley v. Mous- 390. ley, 2 K. & J. 288 ; Philipps v. (z) Walker v. Wildman, 6 Holmer 15 W. E. 578. Madd. 47 ; Garpmael v. Powis, 130 PROFESSIONAL PRIVILEGE. Chap. VI. cations between a man and his agent for the puirpose of and client being communicated by the agent to his legal adviser, are agent^*'*" privileged. To justify the privilege, it is not necessary that there should be any necessity of employing an agent (a). If a man employs an agent merely as a channel of communication with his legal adviser, letters between himself and the agent, and between the agent •and the legal adviser, are privileged (6). Cases to The protection which the law throws around commu- whichthe uJcations between client and solicitor, attaches also to privilege extends, communications passing between a country and town solicitor, or between a solicitor and an attorney acting within a local jurisdiction, such as the Lord Mayor's Court, where the one is employed by the other as solicitor for the purposes of the business to which the commtmica- .tions relate (c). So, also, does it attach to communications between a Scotch solicitor and law agent practising in London (though not admitted an English sohcitor) and ^ his client residing in Scotland (d). The same rule in respect of privilege which applies to the solicitor, applies also to his clerk (e), and to an unpro- fessional agent employed by him in getting up evidence for the purpose of the suit (/). In a case where a plain- 9 Beav. 16; Beid v. Langlois, I Sim. N. S. 163. Mac. & Gr. 637 ; Russell v. Jack- {d) Lawrence v. OampbeU, 4 son, 9 Ha. 390 ; Olyn v. Caul- Drew. 489. See Bunbury v. fitld, 3 Mac. & Q. 473. See Bunbury, 2 Beav. 173, where the Marriott v. Anchor Reversionary question was as to an opinion Society, 3 Giff. 307. by DutcK counsel. (a) Reid v. Langlois, 1 Mac. (e) Taylor v. Fasten; 2 0. & &G. 638; Russell v. Jackson, 9 P. 195; Chant T. Brown, 9 Ha. Ha. 390. 793 ; Churton v. Frewen, 2 Dr. (6) Hooper v. Oumm, 2 J. & & Sm. 393. H. 607. (/) Curling v. Ferring, 2 M. (c) Hughes v. Biddulph, 4 & K". 380 ; La/one v. Falkland EusB. ISO; Ooodall -v. Little, 1 Islands Co., i'K. & 3. ZQ; Wal- PROFESSIONAL PRIVILEGE. 131 tiff had", at the instance of his solicitors, sent out a person Chap. Vi. to India for the purpose of collecting evidence in the pending suit, it was held that letters written by the agent, either to the plaintiff or to his solicitors, on the subject of the evidence, should be regarded as privi- leged communications (gf). So, also, it was held by Lord Hatherley, that answers to inquiries addressed by the defendants to their agents in the Falkland Islands, by direction of their solicitor, for the purpose of procuring evidence in support of the defendants' case, were within the. rule as to protection (h). " The true test," he said {i), " is not whether the person who is at a distance, and com- municates the information in question, is the agent of the solicitor or the agent of the defendant, and sent out by him ; but, whether such person, in transmitting that in- formation, was discharging a duty which properly devolved upon the solicitor, and which would have been performed by the solicitor, if the circumstances of the case had admitted of his performing it in person." In ChuHon V. Frewen (Jc) it was held by Kindersley, V.-C, that the case of a skilled interpreter and translator of ancient documents, employed by the solicitor to draw up a report for the purposes of a suit, because he could not do the work so effectually himself, stands on the same footing as the case of the solicitor and his clerk. So, also, it was held, in Walsham v. Stainton (1), that the reports of an accountant employed by the defendant's solicitor to investigate books of account with reference to the matters in dispute, are privileged from production. shamy. Stainton, 2 H. & M. 1. {h) LafoneY. Falkland Islands See Felkin y. Herbert, 30 L. J. Co., 4 K. & J. 37. Ch. 798. (»') lb- {g) Steele y. Stewart, 1 Ph. {Jc) 2 Dr. & Sm. 393. 471. See Chartered Bank of {I) 2 H. & M. 1. India y. Rich, 4 B. & S. 82. 132 PEOFESSIONAL PRIVILEGE. Chap. Yi. " The principle," said Lord Hatlierley (m), " is well estai- blished, that where a person has occasion to employ a solicitor, and the solicitor, in order to enable himself to advise on the matter, calls in some other person to assist him and to give his opinion, such communications are as much privileged as if they came from the solicitor him- self. A party to a cause is entitled to the fullest means of communicating with his legal advisers and obtaining their advice, and the same freedom of communication must exist between the solicitor and the persons whom he may require 'to call as witnesses in the case. There is no distinction in principle between accounts prepared by an accountant employed by a solicitor for that purpose, and those prepared by the solicitor himself." The same principle applies to the case of letters passing between a solicitor and a third party in reference to the matter in dispute, some of which had been written in anticipation of, and the rest during, the proceedings in the suit (ti). "In all cases," said Lord Romilly (o), "in which a solicitor writes letters for the pui-poses of the suit, and solely for the purpose of conducting it on behalf of his client, and obtains answers in reply, his client is not bound to produce them. A solicitor is bound to conduct a suit in the best manner he can, and to get the best information he is able. He must necessarily, in the performance of his duties, make inquiries, and he is en- titled to write to any person for that purpose ; and he is not bound, at the instance of the other side, to produce his own letters, or the answers to them." Privffige The privilege of exemption from discovery is limited to th^'cLe*" *^® ^^®® °^ professional legal advisers. The protection of legal does not extend to matters communicated to other per- advisers. ■■■ (m) 2 H. & M. 1. Beav. 482. («) Simpson v. Brown, 33 (o) lb. PROFESSIONAL PRIVILEGE. 133 sons, though such commixnications were made under terms Chap. TI. of the closest confidence. Clergymen, medical advisers, parents, stewards, agents, and persons in the most con- fidential relation are bound to disclose communications made to them (p). The rule is confined to the case of professional legal advisers, because the exigencies of man- kind require it, but do not require that persons should have that species of communication with persons who are not in that capacity (g). The privilege of a client, where he himself is the party Pririlege interrogated, to withhold discovery of communications client ia which have passed between him and his professional legal gated™' adviser, is not co-extensive with that of the legal ad- viser (r). The general rule is, that communications and statements made by a client to his solicitor touching the matter in dispute before any suit has been, instituted, are not entitled to production (s). A party liable to give discovery at the suit of another cannot, by communicating "the matters of such discovery to his solicitor for the pur- pose of getting advice, on the ground of' that communica.- tion only, excuse himself from giving the discovery, which otherwise he would have been bound to give (i). Nor can he withhold the production of letters between his solicitor and a third party, having reference to the matter at issue (p) Wilson V. Mastall, 4 T. E. field, 3 Mae. & G. 474, per Lord 759; Lord Falmouth Y. Moss, 11 Truro. Pri. 455 ; Greenlaw v. King, 1 (r) Greenlaw v. King, 1 Beav. Beav. 14:5, per Lord Langdale; 137; Thompsons. Falk, 1 Drew. Flight V. Sobinson, 8 Beav. 22; 26. Tippins V. Ooates, 6 Ha. 21 ; (s) Lord Walsingham v. Good- Eussell V. Jackson, 9 Ha. 391, ricke, 3 Ha. 122; Bluckr. Gah- per Turner, L. J. worthy, 2 Giff. 456. (2) Lawrence v. Campbell, 4 (<) Chant v. Brown, 7 Ha. Drew. 489, per Kindersley, 79; Beadon v. King, 17 Sim. V.-O. See Greenough v. Gaskell, 34. 1 M. & K. 100 ; Ghjn v. Caul- 134! .PROFESSIONAL PRIVILEGE. Chap. YI. in the suit, but which had not been written in contem- plation of legal proceedings, or after the dispute had arisen (u). Knight Bruce, L. J., in Pearse v. Pearse (x), and Kin- dersley, V.-C, in Thompson v. Falk (y), said that they "were at a loss to perceive any substantial diflference in point of reason or convenience between the liability of the client and that of his counsel or solicitor, to disclose the client's communications made in confidence professionally to either ; and to understand why a client, when inter- rogated, has a less privilege than he has through his solicitor when the same questions are put to them respec- tively ; but they both admitted that if the rule was to be altered, it must be done by a higher authority (z). A client, however, is exempted from liability to discover all communications between himself and his counsel or solicitor pending litigation, or after the commencement of a dispute ending in litigation, which relate to the matter in dispute between the parties. Communications made before litigation, but in contemplation of, and with refer- ence to, a litigation which was expected, and afterwards arose, are as privileged as communications after litigation commenced, if they relate to the matters in dispute (a). To entitle confidential communications between a client («) Fage v. Ward, 17 W. E. ricfe, 3 Ha. 124, per 'Wigram, 433; Paddon v. Winch, L. E. 9 V.-C; Holmes v. Baddeley, 1 Eq. 666. Ph. 480 ; FUght v. Bobinson, 8 \x) 1 De G-. & Sm. 26. Beav. 22; Beadon v. King, 17 (y) 1 Drew. 26. Sim. 34; GoodallY. Little, I Sim. (?) See also Manser v. Dix, 1 N. S. 163 ; Russell v. Jackson, 9 K. & J. 460, per Lord Hather- Ha. 390 ; Warde v. Warde, 3 ley. Mac. & G. 366 ; Glyn v. Caul- {a) Garland v. Scott, 3 Sim. /e?i,ib. 463; Wynne Y.Euraber- 397 ; Nias v. Northern and stone, 27 Beav. 421. See Bey- Eastern Sail. Co., 3 M. & 0. nolds v. Oodlee, 4 K. & J. 88. 357 ; Lord Walsinyham v. Good- PROFESSIONAL PRIVILEGE. 135 and his legal adviser to protection from discovery, it is Chap. YL not necessary that they should have been made in con- templation of the suit ; it is suiEcient if they relate to, and were made in the course of, the dispute which is the subject of the suit (b). In a case where it appeared on the face of the pleadings that a contest had previously existed as to matters in- timately mixed up with the transaction which the bill sought to set aside, communications which had passed between the defendant and his solicitor, though anterior to the date of the transaction, were held privileged, as having taken place with reference to the matters in which further litigation was contemplated (c). So, also, in a case where, in the interval between the date of a will and the death of the testator, communications having reference to the vahdity of the wiU. had passed between one of the parties to the suit and his professional adviser, and it was objected that they could not have taken place in contem- plation of a suit, Lord Romilly held, nevertheless, that they came within the rule of privilege, as there were good reasons for supposing litigation would take place after the death of the testator (cf). Communications between solicitor and client after the dispute between the parties followed by litigation, but not in contemplation of, or with reference to, that litigation, come also within the rule of privilege (e). The privilege (6) ClageU v. Philipps, 2 T. & Beav. 401. C. 0. 0. 82 ; La/one v. Falkland (e) Bolton v. Corporation of Islands Go., 27 L. J. Oh. 25; Liverpool, 3 Sim. 467; 1 M. & Jenkyns v. Btmhhy, L. E. 2 Eq. K. 88 ; Hughes v. Biddulph, i g47_ Euss. 190; Vent v. Pacey, ib. (c) Mornington Y. Mornington, 193; Glagett y. Philipps, 2 Y. 2 J. & H. 703. See Ford v. & C. 0. C. 82; Lord Walsing- De Pontes, 5 Jur. N. S. 993. Mm v. Qoodricke, 3 Ha. 129 ; (d ) Galley v. Bichards, 19 Hughes v. Garnoiis, 6 Beav. 352. 136 PEOFESSIONAL PEIVILEGE. ghap. TI. is not limited to the cause there contemplated or depend- ing, but extends to any subsequent litigation with the same or any other parties (/). Letters, accordingly, written, or cases stated, for the opinion of counsel by a party or his solicitor, with a view to a suit then in con- templation, are -privileged from production, not only in that suit, but in any subsequent litigation with third parties respecting the same subject matter, and involving the question to which such letters and cases relate (gr). The material question is, whether the litigation in the one suit relates to the same matters at issue, and refers to the assertion of the same right with reference to the position of the parties, as the litigation in the other suit Qi). In JenJcyns v. Bushby (i), a case for the opinion of counsel with reference to a litigation whicli had arisen between the defendant's predecessor in title and a different defendant with respect to the same property as that which was the subject of dispute between the present plaintiff and defendant was held privileged, where it appeared that at the time the dispute between the defendant's predecessor in title and the plaintiff had arisen. The privilege of a client to protection from discovery of communications which have passed between himself and his legal adviser applies to the case where a client has in his possession, or power, letters which have passed between his solicitor and a third party, referring to the subject (/) Holmes v. Baddeley, 1 Ch. 713; Undenvood v. Secre- Pt. 480. tary of State for India, 35 L. J. {g) lb. ; Comhe v. Corporation Ch. 645. of London, 1 T. & 0. 0. 0. 650 ; (A) ThompsouY. Folk, 1 Drew. Adams v. Barry, 2 T. & 0. C. 27, per Kiudersley, V.-O. C. 167 ; Lamhr. Orton, 212 L. J. (i) L. E. 2 Eq. 547. PROFESSIONAL PEIVILEGK. 137 matter in dispute, some of which had been written in Chap. VI. anticipation of, and the rest pending, the suit (/c). The rule that a client is protected from liability to dis- cover communications between himself and his counsel or solicitor pending litigation, or after the commencement of litigation, applies to cases of dispute between trustee and cestui que trust. Cases and opinions of counsel, taken by a trustee in his own defence against a suit instituted against him by the cestui que trust, are privileged from production (I), although the trustee himself is not person- ally interested (m). Opinions taken by a trustee in reference to a contest with a cestui que trust are not liable to production in a similar contest with another cestui que tnist (n). So, also, on the other hand, where an opinion of counsel has been taken by a cestui que trust after the dispute has arisen which is the subject of the cause, and it was taken for the guidance of the cestui que trust in respect of that very dispute, the opinion taken under such circumstances is privileged from production, and the trustee cannot call on the cestui que trust for its production (o). In Zot'c? WalsinghaTYi v. Goodricke (p), the question arose whether written communications, passing between solicitor and client before any dispute had arisen between the parties to the suit, though with reference to the very subject in respect of which that dispute had subsequently arisen, came within the rule of privilege. Wigram, V.-C, {k) Simpson v. Brown, 33 (n) Underwood v. Secretary of Bear. 482. State for India, 35 L. J. Ch. (1) Brown v. Oakshott, 12 545. Beav. 252 ; Devaynes v. Bobinson, (o) Woods v. Woods, 4 Ha. 20 Beav. 42 ; Talbot v. Marsh- 81 ; Adams v. Barry, 2 Y. & 0. fieU, 2 Dr. & Sm. 549. 0. C. 167. (m) Thomas v. Secretary of {p) 3 Ha. 122. State for India, 18 W. E. 312. 138 PROFESSIONAL PRIVILEGE. Chap. VL said that had the matter been res integra he should not have hesitated to decide in favour of the privilege, but that he was bound by the case of Radcliffe v. Fursman (q) to decide against the privilege, except in so far as the letters contained legal advice and opinions (7'). Radcliffe v. Fursman was decided at a time when the subject of professional confidence was not developed to the same extent as it is at the pi-esent day (s) ; but although that case has been disapproved of by almost every judge under whose notice it has been brought, yet being a judgment of the House of Lords, there is no alternative but submission to what it has decided, till the Legislature shall think fit to interfere, or the question shall arise in a suit of sufficient importance to warrant a second appeal to the House of Lords {f). In Pearse v. Pearse (u), indeed. Knight Bruce, L. J., attempted to show that the proposition stated above was not established either by Radcliffe v. Fursman or by Richards v. Jackson (x), which last case has often been cited as a decision by Lord Eldon in accordance with the rule supposed to have been laid down by the House of Lords ; and he contended that both the judg- ments may be explained on the supposition, that the communications held not privileged in each case were not communications which the client made to his solicitor on his sole and exclusive behalf and for his single and separate interest, but were communications made by him as trustee in the one case, and as co-partner in the other ; ' [q] 2 Bro. P. 0. 514. Lord Wahingliam v. Ooodricke, (r) See Hawkins v. Oatliercole, 3 Ha. 127 ; Pearse v. Pearse, 1 1 Sim: N. S. loO. De G. & Sm." 19; Manser v. . (s) 3 Ha. 127, per Wigi-am, Dix, 1 K. & J. 460. .V.-O. (m) 1 De a. & Sm. 19. (i) See Bolton v. Corporation {x) 18 Ves. 472. of Liverpool, 1 M. & K. 91 ; "PROFESSIONAL PRIVILEGE. 139 and he expressed himself as of opinion that if a man with Chap. VL relation to his own private and exclusive interests merely, upon a point on which he owes no fiduciary duty to another, lays a statement before counsel for his pro- fessional advice, he ought not to be compelled afterwards to disclose it, although at the time no suit or dispute was in existence. " What," said Knight Bruce, L. J., in Pearse v. Pearse (y), " for the purpose of discovery is the distinction in point of reason, or principle, or justice, or convenience between communications between a client and his counsel or solicitor after the commencement of a dis- pute which ends in litigation, and those which differ from them in this, that they precede instead of following the actual arising, not of a cause for dispute, but of a dispute, I cannot perceive (z)." In Manser v. Dix (a), Lord Hatherley drew a distinction between cases where communications had passed between a man and his legal adviser before any dispute was appre- hended, and cases where such communications had tal^en place in apprehension of a dispute, though before any dispute had actually taken place, and held that instruc- tions to counsel for draft of an agreement for purchase were protected, there being at the time an apprehension as to a dispute. " The distinction," he said, " between Lord Walsingham v. Goodricke and this case is, that in that case the whole question was not a question on the title, but whether there had been a contest or not, and the documents passed at a time when no one was apprehending any dispute, and the contract had not been concluded; but in this case the consultations were between a man and his solicitor as to a proposed conveyance to him in (y) 1 De G. & Sm. 27. ley. (z) See also Manser v. Dix, 1 (a) 1 K. & J. 460. K. & J. 453, j/'-r Lord Hather- 140 PROFESSIONAL PBIVILEGE. Chap. VI. order to make himself quite secure. It was from a general apprehensioti against the whole world and in order to secure himself, and the doubts and fears suggested are just those which this Court ought to protect him from having to disclose. In this case there was an apprehension of a dispute, though there was no actual dispute existing. Here, where the dispute has been against all possible claimants who may hereafter dispute the title, I hold these documents privileged " (6). So, also, it was laid down by the Lords Justices in Boyd v. Petrie (c), that communications between a man and his solicitor with reference to a litigation that was to be feared, or to a possible dispute or a diflficulty which might arise, came within the rule of privilege. Cases for CasBs prepared on behalf of a client for the opinion of the opinion ^ ^ ■ c ' i , ' r ^ , • of counsel counsel and copies oi instructions tor counsel are not in a are not in a j^Qj.g favourable position with respect to privilege than honourable other documents (d). than other Communications, however, from a professional legal ocumen s. g^^yjggj. ^^ jjjy dJent are protected from disclosure in so Client pro- • i i i • tected from far as they contain legal advice and opinions, though made legaiTdvice ^'^^S ^""-^^ litem motam (e). " Parties," said Lord Cotten- ^^^ . ham, in Ifias v. Northern and Eastern Railway Co. (f), opinion, ^ \J /' (5) See Reynolds v. Oodlee, 4 2 Giff. 453. E. & J. 88. (e) Richards v. Jackson, 18 (n) 17 W. E. 903; 20 L. T. Vea. 474; Garland v. Scott, 3 935. Sim. 397 ; Preston v. Carr, 1 T. (d) Richards v. Jackson, 18 & J. 175; Storey y. Lord George Ves. 474 ; Preston v. Carr, 1 Y. Lennox, 1 Eeen, 350 ; Olyn v. & J. 175; Newton y. Berrisford, Caulfield, 3 Mao. & G. 474; Younge, 378; Greenough v. Manser \. Dix, IK. & J. 453; Gaskell, 1 M. & K. 100; Lord Plucky. Galsworthy, 2 GiS. ioS ; ham v. Goodricke, 3 Ha. Churton v. Frewen, 2 Dr. & Sm. 129 ; Pearse v. Pearse, 1 De G. 393. & Sm. 12; Beadon v. King, 17 (/) 3 M. & C. 356. Sim. 37 ; Bluck v. Galsworthy, PROFESSIONAL PRIVILEGE. 141 " are to be at liberty to communicate with their pro- Chap. Yl. fessional advisers with respect to matters which become the subject of litigation without restriction and without the liability of being afterwards called upon to produce or discover what they shall have communicated " (g). TJpou the same principle, di-afts prepared or settled by counsel are protected from disclosure (A). So, also, are drafts of pleadings and observations, notes or marks made upon briefs by counsel (i). So, also, are instructions given to counsel, whether by indorsement on his brief or by notes or observations within (Jc). Upon the same principle, a party will not be ordered to produce his solicitor's books, whether letter-books, journals, ledger, &c. (J), or the bill of costs of his solicitor (m). So, also, memoranda and notes made by the solicitor of a party for their own use are privileged (n). In a case where two actions at law had been brought by different plaintiffs against the same defendant in re- spect of similar transactions, and the attorney of the plaintiff in one action had lent to the attorney of the plaintiff in the other a case and opinion with permission to copy them, and a copy had 'accordingly been made, it was held, that the defendant at law was not entitled, on filing a bill of discovery against the plaintiff at law to whom the {g) See Storey v. Lord Oeorge 588. Lennox, 1 Keen. 356 ; La/one v. {h) Nicholl v. Jones, ib. See Falkland Islands Co., 4 K & J. Moxhay v. TrederwicJc, 9 Jui-. 36; Hooper v. Gumm, 2 J. & 343. JI. 605. (0 Flight v. Rohinson, 8 Beav. (h) Belsham v. Harrison, 15 39. L. J. Ch. 438 ; Laml v. Orton, (m) Cliant v. Brown, 9 Ha. 22 L. J. Ct. 713; Manser v. 794. Comjp. Flight y. Eobinson, Bix, 1 K. & J. 453 ; Feaver v. 8 Beav. 39. Williams, 11 Jur. N. S. 902. («) Warwick v. Queen's Col- (t) Walsham v. Stainton, 2 H. lege, 36 L. J. Ch. 506. & M. 1; Nicholl V. Jones, ib. 142 PROFESSIONAL PEIVILEGK7 Chap, vt; loan had been made to have the copy produced, although no express understanding had been come to when the document was lent as to its non-communication (o). " The just and inevitable inference is," said Knight Bruce, L. J. {p), " that the communication was made in confi- dence for the limited and restricted purpose of assisting him in that claim, which was for every substantial pur- pose common with that of the party whose soUcitor lent it to him." Opinions Professional opinions, however, given partly for the partly'fOT benefit of the party requiring protection are not privi- th^^^E^* leged (9'). If a solicitor be employed on behalf of both requiring parties to a suit, either of them has a right to call for the are not ' production of the opinions of counsel which have been ^" ^^^ ■ taken in the suit (r). So also when a solicitor employed by a testator in the preparation of his will takes the opinion of counsel, parties who take benefit under the will are entitled to require the cases and opinions (s). So also where a professional man prepares a mortgage deed on behalf of mortgagor and mortgagee, and before a «uit by mortgagor to set aside the mortgage is present at interviews between mortgagor and mortgagee, as to the construction of the deed and the rights of both parties under it, and during these interviews is not present in the character of professional adviser exclusively of either of the parties, and the litigation is commenced after the last of the interviews at which he was present, none of the communications between him and the mortgagee antece- dent to the last interview are privileged from production (o) Enthovm v. Cobh, 5 De Gr. (r) AU.-Gen. v. Berkeley, 2 J. & Sm. 595; 2 D. M. & G. 632. ,& W. 294 ; Beynell v. Sprye, 10 {p) lb. Beav. 54. {q) Reynolds v. Oodlee, 4 K. & (s) Phillips v. Holmer, 15 W. J. 88. See Ford v, De Pontes, 5 E. 578. o Jur. N. S. 993. PROFESSIONAL PEIVILEGE 143 to the mortgagor in the suit to set aside the deed (t). So Chap. VI. also confidential communication between a solicitor and client, are not privileged in a case to carry into effect an in- denture for the benefit of the client's creditors, the solicitor having taken upon himself the office of trustee under the indenture (u). When a solicitor is employed jointly on be- half of two parties having distinct interests, to act for and on behalf of both in effecting a common purpose, either of the parties is entitled, if a dispute afterwards arises be- tween them, to an inspection of documents referring to the matters in issue which existed before any dispute arose (x) ; if, for example, a party having a charge on an estate, and the party on whose estate the charge is im- posed selling the estate employ the same solicitor, in stating the case for the opinion of counsel and obtaining that opinion, the solicitor is their joint solicitor, and either party may call for a production of the documents, if a dis- pute afterwards arises between them in respect of the matters at issue. If the court is satisfied upon the cir- cumstances appearing on the face of the bill that the case was prepared and submitted to counsel on behalf of both parties, the denial of the defendant is not sufficient to have the documents protected (y). The circumstance that the party having the charge may choose to rely on the advice of the same solicitor as the party selling the estate is not sufficient to entitle him to a production of docu- ments refeiTing to the matter in issue, which existed be- fore the dispute arose. It must appear that the same solicitor was employed on behalf of both parties in effect- (*) GMs v. Eoss, L. E. 8 Eq. N. S. 27 ; 3 Mac. & G. 369. 522. (2/) Warde v. Warde, 1 Sim. (m) Pritchard v. Foulhea, 1 0. N. S. 27 ; 3 Mac. & G. 369. p. 0. 14. See Ford v. De Pontes, 5 Jur. {x) Warde v. Warde, l Sim. N. S. 993. 144 PRIVILEGED COMMUNICATIONS. Chap. VI. ing a common purpose (z). Where, however, husband and wife have distinct interests, and the wife is induced in dealing with those interests to act under the advice of an attorney employed and paid by the husband, the attorney must be deemed to act as the attorney of both husband and wife, and each of them has a right to call for the pi-oduction of, and to have full inspection, of all documents that may come into the possession of the attorney during such employment, relating to the transactions and to the advice given to the wife (a). No privilege attaches to communications, however con- fidential they may be, passing between a party and his agent, even after the dispute may have arisen, and in contemplation of litigation (6), unless they have been made to the agent either by the party for the purpose of being communicated to his legal adviser in his professional capacity (c), or by the legal adviser for the purpose of being communicated to the party (d). The mere fact of the agent employed being an attorney cannot give a privi- lege which would not otherwise exist (e). Where a report or communication is made by an agent or servant in the ordinary course of his duty, and for the information of his master upon the subject to which it relates, without reference to any litigation begun or con- Privilege does not extend to commu- nications with an agent. (z) Warde t. Warde, 1 Sim. N. S. 26. (o) lb. ; 3 Mac. & G. 367, per Lord Tmio. {b) Garpmael T. JPowis, 1 Ph. 687 ; Oreenlaw v. King, 1 Beav. 145 ; Bunlury v. Bunbury, 2 Beav. 173 ; Kerr v. Gillespie, 7 Beav. 572 ; Reid v. Langhis, 1 Mac. & G. 638 ; Glyn v. Caul- field, 3 Mac. & G. 473 ; Hamp- son v. Hampson, 26 L. J. Oh. 612; Hooper v. Oumm, 2 J. & H. 607. See Oolman v. True- man, 3 H. & M. 878 ; Woolley v. Pole, 14 0. B. N. S. 538. (c) Beid V. Langlois, 1 Mac. & G. 639; Hooper v. Oumm, 2 J. & H. 607. (d ) Hooper v. Qvmvm, ib. (e) Doe V. Lord Hertfmrd, 19 L. J. Q,. B. 527 ; Hampson v. Hampson, 26 L. J. Oh. 612. PRIVILEGED COMMUNICATIONS. 145 templated, it must be produced, whether made before or Chap. vi. after litigation has been commenced, and whether it contains matters of fact or mere opinions (/). Communications, however, with an unprofessional lay unless it ' agent in anticipation of litigation, and with a view to the refeeMe prosecution of a claim, or a defence to a claim, to the *? ^^^s^- tion. matters in dispute, are protected from production. Infor- mation procured through an agent relative to litigation, and with a view to it, is as much protected on principle as if it was procured through a solicitor, for it is in reality the litigant party who conducts the litigation, though he conducts it through a solicitor (g). So, also, communica- tions between a litigant party and his agent for the pui-pose of getting up a case which he intends to prove in a court of justice, are privileged from production (h). So,^ also, a report or communication made by an agent or servant to his principal or his master confidentially, and for the purpose of assisting him to establish his claim or defence in an existing or threatened litigation, and not merely made in the ordinary course of his duty, is privileged from production (i). So, also, in a case where the defendants, in order to ascertain whether or not they ought to resist or yield to a claim by the plaintiff for damages for pei"sonal injuries alleged to have been sus- tained by him in an accident on the defendants' line of railway, sent their medical officer, before litigation com- menced or was formally threatened, to report to them upon (/) Woolley v. North London London Railway Co., L. E. 4 Railway Co., L. E. 4 C. P. 609. 0. P. 613, supra, p. 25. See Baker v. L -^ -^ _ _ for exemp- bill, and the plaintiff is the person who is entitled to tiou fails. the advantage of the penalty, or of the forfeiture to which the defendant would render himself liable by making the discovery (a) ; or if in any other way the reason of the rule as to exemption from discovery fails, the party interrogated is bound to answer (b). (t) United States -v. M'Bae,lj . (a) Lord Uxbridrje v. Stave - E. 3 Ch. App. 79. land, 1 Ves. 56 ; Mason v. Mur- (m) King of Two Sicilies v. ray, cit. 3 Bro. 0. C. 38 ; Att.- Wilcox, 1 Sim. N. S. 329. Oen. v. Daly, Hay. & J. 379; {x) See United States v. Att.-Oen. v. Oonroy, 2 Jon. 796. M'Bae, L. E. 3 Ch. App. 79. See Jackson v. Benson, 1 T. & (y) Williams v. Farringtm, 3 J. 32; United States v. M'Bae, Bro. C. C. 38 ; Parhhurst v. L. E. 4 Eq. 327. If the plain- Lowten, 1 Mar. 400, per Lord tiff should proceed at law for Eldon ; Boberts r. Allatt, M. & penalties upon the discovery M. 192, per Lord Tenterden; which he has thus obtained, Ccn-pcrratim of Trinity Souse v. his waiver is a ground for an Surge, 2 Sim. 411 ; Davis v. injunction. Wools v. Walley, 1 Beid, 5 Sim. 448. See Southall Anst. 100 ; Jackson v. Benson, V. -1—, Younge, 315. 1 T. & J. 32. {z)Reg.v. Boyes, IB. &S. 311. (6) Corjjoration of Trinity lo4 OBJECTIONS TO DISCOVERY. Chap. VI. Distinction between cases where the whole gist of the suit is to convict a man in a penalty and where the answer may only lead to the effect of subjecting a man to a penalty. No exemp- tion from discovery where there is fraud. Party may by statute be bound to answer notwith- standing penalties. A distinction must be drawn between cases where the answer of a man may only lead to the effect of subjecting him to a penalty, and cases where the whole gist and object of the suit is to convict a man in a penalty. If the whole gist and object of the suit is to convict a man in a penalty, incidental discovery cannot be had ; but if such is not the object of the suit, every question the answer to which may lead to the effect of subjecting a man to a penalty is not objectionable (c). The privilege of a party to withhold discovery of matters which may subject him to a criminal charge, or to pains and penalties, is subject to a modification in the case of fraud. If a case of fraud be made to appear, a party cannot claim exemption from discovery on the mere ground that his answer may afford evidence against him upon an indictment for the fraud (d), unless there be an indictment actually pending, or, at all events, a reasonable probability that one will be preferred (e). It is not the course of the court to allow the provisions of Statute 13 Eliz. c. 5, to create a defence for resisting discovery (/). The Legislature has in some cases expressly provided that parties to transactions rendered illegal by Statute shall be compelled to answer bills in equity for the dis- covery of such transactions ; in such cases, therefore, the House V. Barge, 2 Sim. 411 ; Beg. V. Charleswortk, 2 Post, & Fin. 326 ; Scott v. Miller, Johns. 226. See Att -Oen. y. Daly, Hay. & J. 379; AU.-Gen. v. Cmiroy, 2 Jon. 796. (c) Green v. Weaver, 1 Sim. 430 ; Ohjn v. Houston, 1 Ke. 337 ; Chadiuick v. Chadwick, 22 L. J. Ch. 330. See Att.-Gen. v. Daly, Hay. & J. 379; Att.-Gen. V. Conroy, 2 Jon. 796. id) Green v. Weaver, 1 Sim. 430; Chadwick v. Chadwick, 22 L. J. Ch. 330. See Mayor &c. &c. of London v. Levy, 8 Ves. 403 ; Macaulay v. Shakell, 1 Bligh, N. S. 122. (e) Macallum v. Turton, 2 Y. & J. 183 ; LeeY. Bead, oBeav. 385. See Dummer v. Corporation of Bedford, 14 Ves. 245, 251. (/) Bunn V. Bmw, 12 W. K. 561. OBJECTIONS TO DISCOVERY. 155 defendant cannot protect himself from, the discovery re- Chap. Vi. quired, on the ground that it will render him liable to the penalties imposed by the Statute itself. Thus trustees and other persons who are liable to a criminal prosecution for the fraudulent misapplication of monies entrusted to them are, nevertheless, bound to give discovery in answer to a bill in equity (g). So, also, a person infringing a trade mark, though liable to prosecution, must give dis- covery in equity {h). The rule that a man may object to give discovery when Distinction . . between it might subject him to a forfeiture, or something in the the forfei- nature of a forfeiture, does not apply to a case in which interest^" the discovery sought is merely as to whether an event has ^?4 ^ 'l""" happened, on the happening of which an estate in the limitation, possession of the party from whom discovery is sought was to determine. A man who is in possession of an estate which was only to endure till the happening of a certain event, and then to go over, cannot refuse to disclose whether that event has happened upon the hap- pening of which the estate was to determine (i). Where, for instance, an estate is limited to a woman during her widowhood, and then over, she is bound to discover whether or not she has married (Jc). But if the effect of discovery would be a forfeiture of that which would be otherwise absolutely in the defendant, discovery will not be compelled (I). In a case, accordingly, where a legacy was given to a woman on her marriage, with a .condition that if she married without the consent of the trustees (g) 24 & 25 Vict. c. 96, ss. 260. See Ohauncey v. Tahourden, >jg 8g_ 2 Atk. 393; Chancey v. Fen- (h) 25 &26 Vict. c. 88. s. 11. hould, 2 Ves. 265. (i) Hambrooh v. Smith, 17 [1) Chancey v. Fenhoulet, 2 Sim. 216. See Pye v. Butter- Ves. 265 ; Att.-Gen, v. Lucas, 2 fidd, 5 B. & S. 837. Ua. 569 ; Pye v. Butterficld, 5 (A-) Lucas V. Kt:a)is, ■" xUk. B. & S. 837. 156 OBJECTIONS TO DISCOVERT. Chap. VI. under the will, the legacy was to be forfeited, and a bill was filed against the legatee for a discovery whether any marriage had taken place, in which it was alleged she had married without consent. Lord Hardwicke allowed the demurrer, as she could not answer to the marriage without showing at the same time that it was without consent (m). In a case of this nature, where the husband and wife put in separate answers under an order for that purpose, and the husband by his answer admitted the marriage without consent, but the wife omitted to do so, Lord Talbot, upon exception being taken to her answer, said that he could not reconcile himself -to compelling a wife to confess that by which she might forfeit all she had in the world, and held the answer to be sufficient (%). Distinction Though a defendant will not be compelled to give dis- forieftm-e covery where the effect of the discoveiy would be a for- ofan feiture of that which would be otherwise absolutely in interest and the him, the case is different if the effect of the discovery a -wrongfiil would be to show that the defendant is disqualified from possession. ];ia,ving any interest or title. If a bill seek a discovery of facts which would show that the defendant never had any interest in the property which he wrongfully retains, he cannot be permitted .to set up the loss of possession which the proof of these facts would occasion, as a ground for withholding discovery. It was held, accordingly, in a case where an information was filed by the Attorney- General on behalf of the Crown, alleging that the defen- dant was an alien, and claiming his real estate, and calling for discovery and production of deeds and papers, that the defendant was bound to answer (o). (m) Ohancey v. Fenhoulet, 2 P. W. 236, 239. Ves. 265, 8. C, nom. Ghauncey (o) AU.-Cren. v. Duplessis, 1 V. Tahourden, 2 Atk. 392. See Bro. P. 0. 420 ; Smith v. Bead, CooheY. Turner, 14 Sim. 218. 1 Atk. 527. [n) WroUesley v. Bendish, 3 OBJECTIONS TO DISCOVERT. 157 A distinction appears. to exist in this respect between Chap. vi. incapacities which are the result of the general principles where per- of law, and those which are imposed by the legislature by q^sjifiea- way of penalty or forfeiture ; thus, before the repeal of ^i°^ '^ ''' the Statutes imposing disabilities upon persons professing of a for- the Popish religion (p), it was held that a defendant was not obliged to discover whether he was a papist or not (q). Upon the same principle it was held, that where, a bill sought a discovery whether a clergyman had been pre- sented to a second living, which avoided the first under stat. 21 Hen. VIII., a demurrer to the discovery of that fact would lie, because the incapacity of holding the first living incurred by the acceptance of the second, was in the nature of a penalty imposed by the statute (r). Where Avhat is called a penalty is in reality stipulated Distinction damages, a party must give discovery. Thus where a penalty and lessee covenanted not to dig loam, sand, or gi-avel except damages, for the purpose of building on the land demised, with a proviso that if he should dig any of those articles for any other purpose he should pay the lessor twenty shillings a cartload, and he afterwards dug great quantities of each article ; upon a bill of discovery of the quantities, waiving any advantage of possible forfeiture of the term, a de- murrer of the lessee because the discovery would subject him to a payment by way of penalty was overruled (s). So also if a tenant covenants to pay an additional rent in case he shall do certain acts, though such additional rent be in some passage of the lease designated as a penalty, he must give discovery of the breaches of covenant, if the {p) II & 12 Will. III. c. 4, Atk. 453, 458. See Sloman v. g. 4. Kelly, 4 T. & C. 169 ; United {q) Smith v. Read, 1 Atk. States v. M'Bae, L. E. 4 Eq. 526 ; Harrison v. Southcote, ib. 327. 528 ; 2 Ves. 389, 395. (s) Richards v. Oole, Mitf. on (r) Boteler v. Allington, 3 PI. 232. 158 OBJECTIONS TO DISCOVEtlY. . Chap. TI. monies payable in the event of the acts being done which he had covenanted not to do, are in the nature of stipu- lated damages and not a penalty (t). Upon the same principle also if servants to a company bind themselves to pay a specified sum in case of a breach of the regula- tions of their service, they cannot protect themselves from answering as to breaches («). No exemp- Cases in which forfeiture is only a collateral question tion from jjj^g^ jjg distinguished from cases in which forfeiture would discovery ° if forfei- be the direct result of the discovery. If no peaal conse- ture is only . ■•■ ■• i i i t a collateral quences are immediately attached to the discovery, the mere ques ion. £^^^ ^£ ^-^^ party from whom the discovery is required being incapacitated from recovering on a security at law, if he gives the discovery, will not protect him from giving the discovery (x). A party, for instance, who brings an action at law upon a bill of exchange, or a bond, is not protected from giving discovery to show whether the consideration for that security was such as to render it void (y). Party may A man may by expressly covenanting to answer exclude anting to himself from the benefit of the rule exempting him from answer or discovery on the ground that an answer might criminate even by '' _^ _ ° his conduct him or expose him to penalties and forfeitures (z). He eluded may contract so as to incur the obligation to make the fit°of rnle' discoveiy of all the facts relative to that contract, although exempting ^j^q eflfect of that discovery may inadvertently subject him giving to pecuniary penalties (a). A man, indeed, without ex- discovery. (<) Jones v. Oreen, 3 Y. & J. son y. L'Eaugier, ih., 366; Benyon 298. See French v. Macale, 2 v. Nettkfold, 3 Mac. & G. 103. Dr. & War. 276. (z) South Sea Co. v. Bumsteed, (m) African Co. v. Parish, 2 Mose. 74: lEq. Ca. Ab. 77. pi. 16. Vern. 244. (a) 1 Sim. 430, per Sir A. (x) Sloman v. Kelly, 4 T. & Hart, V.-O. ; Bohrnson v. C. 169. .Kitchin, 25 L. J. Ch. 356, per (y) lb. ; Lord Glengall v. Ed- Lord Eomilly ; but see Lee v. wards, 2 Y. & C. 125 ; Wilkin- Beed, 5 Beav. 385. OBJECTIONS TO DISCOVERY. 159 pressly covenantiag to answer, may by the effect of his Chap. Yl. own acts exclude himself from the benefit of the rule. The solemnity of the seal does not make an obligation to discover more obligatory in a Court of Equity than the moral obligation resulting from the relation of principal and agent, where the one reposes and the other accepts the confidence reposed (b). It has been held accordingly that a broker in the city of London if sued by his em- ployer for an account, is not entitled to be protected or relieved from the ordinary necessity or obligation of giving discovery on the ground that he was not duly authorised to act as a broker, and has therefore by having done so become liable to be compelled to pay pecuniary penalties to the Corporation of London (c) ; and that a broker in the city of London must answer a bill of discovery in aid of an action at law brought against him by his employer for misconduct, although the discovery might subject him to the penalty of a bond given by him to the corporation on his admission for the faithful discharge of his official duties (d). If some of the matters as to which he is interrogated Party can- not refuse are lawful and part unlawful, a party cannot refuse to give to answer discovery as to the lawful matters by alleging that some matters of the matters are unlawful (e). As to interrogatories J'^ alleging txiSjIj some which are distinct and independent from the criminal of the (liscovGrv mattei'S, he is bound to answer. But if a plaintiff seeks might sub- discovery of matters which might subject the defendant to jfenalt^s*'' pains, penalties, or forfeiture, and also seeks legitimate discovery, it is his duty to separate the matters to which he is entitled to an answer from those which he cannot (6) 1 Sim. 430, per Sir A. {d) Oreen v. Weavir, 1 Sim. Hart. 430. (^c) Sohinsony. Kitchen, SDeG. (e) Fisher v. Price, 11 Beay. M. & S. 88. 199. 160 MATERIALITY OF DISCOVERT. Chap. VI. legally call upon the defendant to discover. If the matters in respect of which discovery may be legitimately asked for, and which the defendant is bound to give, are so mixed up with other matters, or so connected with them either by way of inference or by way of exclusion, that they might lead to a disclosure which might subject the defendant to pains, penalties, or forfeiture, he is not bound to answer any part of it (/). Where the whole object of the bill is to procure evidence of matters which, if esta- blished, would have subjected a defendant to a criminal charge, the interrogatories that apply to matters not di- rectly criminatory are not to be considered as indif- ferent (g). Section III. — Objection that the Discovert is Immaterial. If the matter as to which discovery is sought can in no degree assist the party who requires discovery in obtain- ing a decree at the hearing, the discovery is immaterial and need not be given (a). As the object of a Court of Equity in compelling 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 (/) Lord Lichfield \. Bond, 6 Drew. 350; Bleckley v. Rymer, Beav. 93. 4 Drew. 251 ; Mansell v. Feeny, {g) Glyn v. Houston, 1 Ke. 329. 2 J. & B . 324 ; Forbes v. Tanner, {a) AgarY. Begent's Canal Co., 9 Jur. N. S. 455; 11 W. E. Coop. 212, 214; Webster v. 414 ; iett v. Parry, 1 H. & M. Threllfall, 2 Sim. & St. 190; 517; Bridgewater v. De Winton, Codrington v. Codrington, 3 Sim. 9 L. T. N. S. 568 ; Twrney v. 621; JToorfv. fiiicAmjrs, 3Beav. Bayley, 33 L. J. Ch. 500; At- 504 ; Jmes v. Pugh, 1 Ph. 96 ; wool v. Ferrier, 14 W. E. 1014 ; Clegg v. Edmonson, 22 Beav. Simpson-v. Charlesworth, 14:11.11. 139 ; Simpson v. Chapman, 15 N. S. 699 ; Hoffman v. Postill, Jur. 714 Wright v. Vernm, 1 L. E. 4 Ch. App! 673. MATERIALITY OF DISCOVERT. 161 to the relief pi-ayed by the bill, or to some other suit cimp. vi. actually instituted or intended to be instituted (6). In determining whether a question or a document is material Test of mate- or not, the court looks to the case as it stands on the riality. pleadings. The case made and the relief prayed by the bill are the only tests, by reference to which the question of materiality can be tried by the court (c). The question of materiality is one which the court must look at with reference to the constitution of the suit and the chai-acter of the proceedings (d). The court will assume that the relief prayed wiU be given at the hearing for the purpose of testing the materiality of the question asked (e). The test of the materiality of a fact alleged by a party is the service it would be to him in proving his case, if admitted or answered in the affirmative by his adversary (/). If the matter as to which discoveiy is sought may be directly or indirectly material for arriving at a decision, the dis- covery is material and must be given (g). In a case, accordingly, where it appeared that a knowledge of all the circumstances of the case might be necessary to enable the court to construe an agreement, the discovery of such circumstances was held to be material (h). It is, however, (J) Mitf. PI. 221. See Car- Foxivell v. Kehster, 2 Dr. & Sm. dale v. JVatkins, 5 Madd. 18. 256 ; Swabeij v. Sutton, 1 H. & (c) Wigram on Discov. 169. M. 516. See ffue V. -Ki'cAorrfs, 2 Beav. 307 ; (/) Cliadwich v. Chadwick, Forbes v. Tanner, 1 X. E. 464 ; 22 L. J. Ch. 330. See Salli/ v. Marsh v. Keith, 1 Dr. & Sm. Eenrich, 13 Pri. 291. 348. [g) Bleckley v. Bymer, 4 Drew. {d) Kay v. Hargreaves, 14 L. 251. See MazzaredoY. Maitland, T. N. S. 281. 3 Madd. 70 ; Lord Oengall v. {e) DuncombeY. Davis, WL.S. Fraser, 2 Ha. 105; Padley v. Ch. 22. See OresleyY. Jlousley, Lincoln Waterworks Co., 2 Mac. 2 K. & J. 288; Greenwood y. & G. 68 ; Marsh y. Keith, 1 Dr. Greenwood, 6 W. E. 119; Hue & Sm. 348. V. Richards, 2 Beav. 306 ; Clegg (A) Bhdley v. Bymer, 4 Drew. v. Edmonson, 22 Beav. 142; 251. 162 MATERIALITY OF DISCOVERT, Chap. VI. difficult for the court, at this stage of the proceedings, to determine what proposition will be material to the case of one or other of the parties. A certain latitude must, therefore, always be allowed in seeking discovery (i). With respect to the objection of immateriality, it must be under- stood that a party can only be required to answer as to facts. To matters of law or inferences of law drawn from the facts, he need not answer. A question, however, is not the less one of fact because in mentioning the subject- matter in question, the person administering the inter- rogatory refers to a written document (Jc). A discovery may be material to the plaintiff's general case if made by one of the defendants, which would be wholly irrelevant if made by another : in such cases the defendant from whom the discovery is immaterial is not obliged to make it, and in general a defendant is only obliged to answer such of the interrogatories as are necessary to enable the plaintiff to obtain a complete decree against him individually. Where, however, the defendant is involved in the whole case and in that sense relief is asked against him, he must answer, though the interrogatory might seem to be imma- terial to the relief asked against him (f). When it is said that the defendant must answer fully all facts material to the case of the plaintiff, it must be understood to mean the case of the plaintiff as it is about to go to trial The plaintiff, in other words, has a right to discovery for the purposes of the case iipon which the parties are about to go to trial. No mode of defence to which the defendant can resort will have the effect of depriving the plaintiff of the benefit of such discovery. It is the right of the plain- (i) Hoffman v. PosUll, L. E. [h) Hoffman v. PostiU, L. E. 4 Oh. App. 678, per Selwyn, 4 Ch. App. 673. L. J. See Mant v. Scott, 3 Pri. (l) Marsh v. Keith, 1 Dr. & 477; Richards y. Att.-Ocn., 12 Sm. 348. 01. & Fin. 37. MATERIALITY OF DISCOVERY. 163 tiff in equity in all cases, whatever the form of the defence Chap. VI. may be, to have each question in the cause as it comes on for trial tried upon a full answer, express or implied, to eveiy part of the bill (m). In determining whether particular discovery is material or not, the court exercises a discretion in refusing to en- force it when it is remote in its bearings upon the real point in issue, and would be an oppressive inquisition. A defen- ^ dant will not be required to answer questions of fact unless they be reasonably material. It is not sufficient to show that somehow or other they may be connected with the case, for if such connection be remote, so that the discovery will be oppressive, it will be refused {n). Where, for example, the bill charged an executor with mixing his testator's money with his own, and called on him to set out a monthly account of his banker's balance with an account of his own property, debts and liabilities, discovery was not enforced (o). So also although an underwriter has a right to discovery of every thing relating to the particular trans- action in dispute, the court will not sanction an inquisi- torial discovery (p). So also where a bill for specific per- formance was filed against a husband and wife, and a dis- covery was sought as to the separate property of the wife, the court would not sanction it (g). The case of Small v. Attwood (r) may also be referred to as evidencing an unwillingness in the court to sanction an inquisitorial discovery (s). In cases where particular discoveiy has been sought of DiseoTery , . , 1 ,..«,, . of matters matters m which the plamtin has no mterest, but as conse- in -wMch plaintiff (to) Wigram on Discov. 190. C. 137. (re) See Lockett v. Lockett, L. {q) Francis v. Wigsell, 1 Madd. E. 4 Ch. App. 336. 260. (o) Dos Santos v. Frietas ; (r) Wigram on Discov. 169. Wigram on Discov. 165. (s) See Jodrell v. Slaney, 10 {p) Janson v. Solarte, 2 Y. & Beav. 229. M 2 164 MATEEIALITY OF DISCOVERT. Chap. Yi. quential to the establishment of a right which is disputed, has no the court has not compelled the discovery, on the ground of imt '^*con- ^*® immateriality to the question to be tried at the hearing, sequential Jq Adams V. Fisher (t), Lord Cottenham would not en- to the ^ ' establish- force the production of documents, because it was evident right which f^om the nature of the documents the production of which is^dispnted, ^g^g required, that they would not assist in establishing cases re- the plaintiff's equity, but were merely consequent on fused as.. immate- it (u). bo also in a case where the defendant denied the fact of infringement of a patent, it was held that the plaintiff was not entitled, before the fact of infringement was established, to require the defendant to set forth an account of the machinery used by him, and the articles made and sold, and the profits resulting from the sale, because it was evident that the result of the account would not affect the question to be tried at the hear- ing (a;). So also Lord Hatherley refused to compel a defen- dant to a bill alleging a partnership, to set out an account of profits where the alleged partnership was denied, because a mere account of profits could not affect the question, whether or not the alleged partnership existed (y). " The plaintiff," he said (z), " is entitled to all such discovery as is necessary to enable him to make out his case at the hearing. If he should fail in that, any account of the profits of the business would become useless and improper, (<) 3 M. & 0. 526. 3 K. & J. 388 ; Swabeyy. Sutton, {u) Marquis of Bute v. Oloi- 1 H. & M. 516 ; Lett v. Parry, morgansJdre Canal Co., 1 Ph. ib., 517. Comp. Crossley v. 685, per Lord Lyndlmrst. See Stewart, 1 N. E. 426 ; Foxwell SentincJcY. Willink, cit. Wigram v. Webster, 2 Dr. & Sm. 256; on Disoov. 121 ; Swinlorne v. 3 N. E. 104 ; Swdbey v. Sutton, Nelson, 16 Beav. 430 ; Ord v. 12 W. E. 124. Fawcett, 19 L. J. Ck 487; (y) Mamell y. Feeny, 2 J. & Bamhrook v. Smith, 17 Sim. H. 323. 215. (z) Ib. (a)) De La Rue v. Dickenson, MATERIALITY OF DISCOVERT. 165 and it would he unjust to the defendant to compel Chap. VI. him to disclose such particulars to a person who, in the event supposed, would have no interest in the dis- covery " (a). But though a defendant may in particular cases resist DiscoTery discovery of the evidence of the extent or amount of the ^Mch may plaintiff's demand, until the plaintiff's right and title has Jlpi^f^f™^ been established, the case is different if the matters in tiff's rigW to sue is respect of which discoveiy is sought might be evidence matsrial. in support of the plaintiff's right to sue. The reasoning on which discovery cannot be had of matters in which the plaintiff has no interest, but as consequential to the esta- blishment of a right which is disputed, and which can have no possible bearing on the issue to be tried at the hearing, does not apply to cases where the discovery is required for the proof of the right which the defendant denies. If the court finds on the pleadings, that although the title and interest of the plaintiff are denied, the question as to the existence of such title and interest is a question to be tried, upon which the required dis- covery might furnish evidence on behalf of the plaintiff, the plaintiff is entitled to the discovery and the production of documents necessary or material to establish his case on such trial (b). Where the right to maintain the suit is the very question to be tried, and the production of the documents is required with a view to the evidence, and for the purpose of establishing the right, it is not enough to say that until the right to maintain the suit should be {a) See Att.-Gen. v. Thomp- v. Ohadwich, 3 Mac. & G. 582 ; son, 8 Ha. 115; Lett v. Parry, Howard v. Bobinsnn, 4 Drew. 1 H. & M. 517. Comp. Foxwell 526 ; Reade v. Woodrooffe, 24 T. Webster, 2 Dr. & 8m. 256. Beav. 424 ; Turney v. (J) Att.-Gen. v. Thompson, 8 33 L. J. Cli. 500 ; Minet v. Mor- Ha. 114, 115; Wimburn v. jraw, 18 W. E. 1015, Lloyd, 12 L. J. Oil. 92 ; Siainton 166 MATERIALITY OF DISCOVERY. Qhap. Yl. established, the court ought not to order the production of the documents (c). In a case, accordingly, where the plaintiff and defendant respectively deduced their titles from the heir at law of A., who died equitably entitled to certain premises, the legal estate in which was outstanding, and the bill alleged that the defendant had obtained the conveyance of the legal estate to himself as heir-at-law of A. by false and fraudulent means, it was held that the plaintiff was en- titled to a discovery of the circumstances under which the defendant had obtained possession of the legal estate, although the defendant denied the title of the plaintiff (cZ). So, also, if the right to call for an account is the funda- mental point in dispute, and it appear that the contents of the account would assist in proving the plaintiff's case, the discovery must be given (e). So, also, where the entries in the trade books of a defend9,nt might show the infringernent by him of an alleged custom for the benefit of the plaintiff, the court ordered the production of the trade books for the inspection of the plaintiff, and before the existence of the custom had been established, notwithstanding the existence of the custom was denied by the answer of the defendant (/). So, also, in a case ■\vhere a bill was filed by a party who alleged himseff to be a freehold tenant of a manor, against the lord, to esta- blish his customary rights over commons in the manor, and the defendant denied both the title of the plaintiff and the alleged custom, it was held that the lord could not avoid disclosing the court rolls, or prevent an exami- (c) Lord Bute v. Olartiorgan- 179; Att.-Gen. v. Thompson, 8 shire Oanal Co., 1 Ph. 684, per Ha. 115 ; Mansell v. Ferny, 2 J. Lord Lyndhurst, & H. 317. (d) Staintmi v. Chadwick, 3 (/) Ord v. Fawcett, 19 L. J. Mac. & G. 582. Oh. 487. (p) Harris v. Harris, 4 Ha. MATERIALITY OF DISCOVERY. 167 nation of them, by an assertion that they do not show the Chap. VI. title of the plaintiff, when the title of the plaintiff consists of his being tenant of the manor, and the question was what, by the custom of the manor, were the rights of tenants of the manor over the waste lands (g). So, also, in a suit to restrain the infringement of a patent, if the court is satisfied that the required discovery may show or tend to show the fact of infringement, the discovery is material (h). The defendant may, accord- ingly, though he denies infringement, be required to set out the names and addresses of his customers (i) ; or, of persons from whom he has received sums of money as royalties in respect of goods manufactured by such persons in infringement of the plaintiff's right, though such per- sons may reside abroad (k) ; or to give particulars of the articles or machines manufactured, used, or sold by him, together with the price of the articles (l), the profits made on the sales, and other particulars (m). He may also be required to disclose whether he uses in his process the materials mentioned in the plaintiff's specification, whether he adds anything else, and whether such addi- tions (if any) make any difference in the process ; but he is not bound to disclose the nature and quantities of the additions (n). Though the court has in some cases refused, on the Discovery ground of immateriality, to compel discovery of matters ^^ n^e^ in which the plaintiff has no interest, but as consequential *° *^®. . (g) Warrick v. Queen's Col- (l) Svnriborne v. Nelson, 16 lege, L. E. 3 Eq. 684. Beav. 416 ; B ' o o to part of been filed ; and it is doubtful whether in such a case he tiU with- . , , , out answer- may put m a demurrer to part and a voluntary answer as rest. ^ to the rest (g'). But after the time for filing interrogatories has expired, if none have been filed, the defendant may demur to part without answering the rest (r.). Demurrer Under the former practice, if a defendant answered any part of the bill to which he had demurred, the demurrer was overruled (s) ; but under the present practice no demurrer shall be held bad and overruled at argument only because the answer of the defendant extends to some part of the same matter as is covered by the demuiTer {f). and an- swer. Section II. — By Plea. If a bill is for discovery and relief, a plea which is good as to the relief is good as to tte discovery also (a), unless in so far as an answer in support of the plea is required (6). (p) Metcalfe v. Hervey, 1 Ves. (s) Mitf. PI. 248. 248 ; Lord Suffolk v. Green, 1 («) Ord. XIV. 9. Atk. 450; Todd v. Gee, 17 Ves. (a) Sutton v. Lord Scarlo- 273, 277 ; Att.-Oen. v. Brown, 1 rough, 9 Ves. 75 ; King v. Sw. 304. Heming, 9 Sim. 59. (q) Roiue V. Tonkin, L. E. 1 (6) TVehster v. Webster, 1 Sm. Eq. 9. & G. 493 ; Jackson v. Ward, 18 (r) Burton v. Bohertson, 1 J. "W. E. 973, infra, p. 187. & H. 38. BY PLEA. 185 A plea, however, may be bad as to the relief, but good as Chap. Vll, to the discovery (c). If the defendant on the face of his bill pleads to the relief only, he professes he will give the discoveiy (d). If the bill omits a material fact, and the case of the Plea that » 'iiscovsrv is defendant is that that fact shows the discovery to be imma- immaterial. terial, the defendant may protect himself by plea from giving the discovery (e). If the biU is for discovery only, a plea will lie on the Plea of ground that the plaintiff is not entitled to sue by reason interest of of any personal disability, or has no interest in the subject, pl^™*iff- or no interest which entitles him to call on the defendant for a discovery, if the disability or want of interest is not apparent on the face of the bill (/). A defendant, it has been said, may plead that the plaintiff is outlawed or excommunicated, thereby travers- ing the right of the plaintiff to call for a discovery (g). A defendant may also plead that the plaintiff is an alien enemy, thereby traversing the right of the plaintiff to call for a discovery {h). If, however, the plaintiff in equity be the defendant at law, and he seeks a discovery in aid of his defence, the plea of alien enemy will not hold in such a case, upon the principle that if an alien may be sued at law, as he would be allowed process to compel the attendance of his witnesses, so he should have a discovery for the same pui-pose (i). So, also, a plea will lie to a bill of discovery only, on the Plea of want of equity, (c) United States v. Macrae, Mendizabel v. Machado, 1 Sim. L. K. 3 Ct. App. 79. 68 ; Dawson y. Pilling, 17 L. J. {d) King v. Heming, 9 Sim. Ch. 394. 59 ; Jackson v. Ward, 18 W. (g) Beames PI. 254. ^ 973_ (h) Dauhigny v. Davallon, 2 (e) BlecUeij v. Rymer, 4 Drew. Anst. 462. 251 _ (i) Alhretchty. Sussman, 2 V. (/) Mitf. PI. 177, 329. See & B. ;J2S. 186 BY plea; Chap. VII. Plea of "want of interest of defendant. Plea that defendant is not bound to give dis- covery. Plea of matters ■which would be a defence at law. ground that the plaintiff's case is not such as to entitle a Court of Equity to assume a jurisdiction to compel a discovery in his favour (k) ■ or on the ground that the defendant has no interest in the subject to entitle the plaintiff to institute a suit against him, even for the pur- pose of discovery only, as, for instance, where he is merely a witness (I). A plea will also lie to a bill of discovery only, on the ground that the situation of the defendant renders it im- proper for a Court of Equity to compel a discovery (m) ; because, 1st, the discovery may subject him to pains, penalties, or forfeiture, or to something in the nature of a forfeiture (n) ; 2nd, because it would betray the con- fidence reposed in him as counsel, attorney, or arbitra- tor (o) ; 3rd, because he is a purchaser for value without notice of the plaintiff's title (p). Where the plaintiff in his bill alleges a sufficient case at law, it has been doubted to what extent discovery can be resisted by pleading matters which would be a defence at law. In Hindman v. Taylor (g), it was said that where the bill was filed for discovery leading to relief at law, the defendant could not plead matter in law to the discovery which would be a bar to the relief there. It is, however, now settled that a party applying to a Court of Equity for discovery, in aid of an action in which the defendant may by plea show that the plaintiff is not entitled to recover, may raise the defence by plea in equity. The justice of the case requires that the defence to (k) Mitf. PI. 327. (?) lb. 328, supra, p. 89. (m) Mitf. PI. 330. (re) Claridge v. Soare, 14 Ves. 59; Lee v. Mead, 5 Beav. 385; United States t. M'Eae, L. R. 4 Eq. 327. (o) Mitf. PL 330, supra, pp. 16, 117, et seq. (p) Mitf. PI. 331 ; Oomm v. FarroU, 3 C. B. N. S. 47, supra, p. 181. (2) 2 Bro. C. 0. 7. BY PLEA. 187 the discovery should be open to the defendant in Chap. Til. equity (r). If no interrogatories are filed, the defendant need only Statements -in plea. aver the tacts necessary to render the plea a complete equitable bar to the case made by the bill, and need not put in any answer in support of his plea (s). But if interrogatories are filed, the plea must be sup- In what ported by an answer to the matters as to which the defen- answer'in dant is interrogated, and which, if admitted, might tend support of "plGSi IS or be evidence to invalidate the plea (f). necessary. The reason for requiring an answer to the matters as. to which the defendant is interrogated, is, that a mere gene- ral averment is in such cases equivocal ; it might be only a legal conclusion which the defendant conceives may be drawn from the actual facts, or which he undertakes to draw from those facts. Now the court does not trust a party to draw for himself a conclusion of law, but the court requires to know the facts upon which it is founded, that it may consider whether the premises justify the conclusion ; not to try whether the plea is true (which is the business of the hearing, not of the argument), but to try whether it substantially meets the case made by the plaintiff (h,). If the bill admits the existence of a legal bar, but When . 11. • T • re equitable alleges some equitable circumstances to avoid its enect, circum- and interrogates as to those circumstances, it is not enough aliened to for the defendant to plead the legal bar ; he must ac- defeat a (r) Smith v. Fox, 6 Ha. 391. 489. See Macgregory. East India Co., {t) Hunt v. Penrice, 17 Beav. 2 Sim. 453; Mobertson v. Lub- 531; Young v. White, ib. 632. bock, 4 Sim. 161, 172,>/Sco« v. See Hinde v. Skelton, 2 H. & M. Broadwood, 2 Coll. 447. 690. " (g) Dan. Oh. Pr. 566 ; Daw- (m) Harris v. Harris, 3 Ha. son V. Pilling, 17 L. J. Oh. 394 ; 453. Webster v. Webster, 1 Sm. & G. 188 BY PLEA. Cliap. Vir. compaDy Ms plea with a distinct answer and discovery as answer in *» every circumstance as to which he is interrogated, the support of admission of which may tend to invalidate the plea. plea la ... necessary. Cases of this class are those in which pleas are put in to bills brought in to impeach a decree on the ground of fraud used in obtaining it (a;) ; to avoid the effect of a judgment of a court of ordinary jurisdiction {y) ; to set aside a release (0) ; or an award {a) ; or to open a stated account (6). In all these cases the bill admits the existence of a fact which, if taken alone, would be conclusive against the plaintiff, and then proceeds to state specific gi'ounds why it should not have that effect, and the defendant, if interrogated, must answer the interrogatories as to these specific grounds (c). The same rule applies where the bill, without expressly admitting or suggesting the exist- ence of a legal or equitable bar, either by direct statement or by way of pretence alleges and interrogiates as to facts which are inconsistent with it, for the purpose of antici- pating and avoiding such a defence, if set up {d). Where a bill charges matters which, if true, would destroy an anticipated legal bar, the defendant cannot plead the legal bar without fuUy negativing those matters (e). He must meet the allegations in the bill which if tnie would "show that the bar ought not to prevail ; otherwise, the court would be deciding upon the legal bar without the ad- vantage of the defendant's oath as to whether there was not something in the case which would make the legal (a;) Mitf. PI. 285. See Foley (b) lb. V. Hill, 3 M. & 0. 481 ; Harris (c) Dan. Cli. Pr. 567. V. Harris, 3 Ha. 452. (d) Dan. Ch. Pr. 567. See (2/) Mitf. PL 298, 299. Eoche yj^orgell, 2 Soh. & Lef. (z) Sanders v. King, 6 Madd. 721. 64, per Sir J. Leach ; Parker v. (e) Foley y. HiU, 3 M. & C. ^Zcoc;fc, IT. & J. 432. 475. (a) Mitf. PI. 303. BY PLEA. 189 bar inoperative (/).'^;Where, for example, the plaintiff, Ciiap. Vil. for the purpose of avoiding the effect of a plea of the Statute of Limitations which he anticipates will be set up, alleges and interrogates as to the existence of facts which would, if admitted, go to prove a subsequent acknowledgment of a debt, or a payment of interest, sufficient to take the case out of the Statute of Limita- tions ; the defendant must support his plea by an answer and discovery as to the facts as to which he is interrogated which would be evidence of an acknowledgment (gr). So, also, where the plaintiff, in order to avoid the effect of a plea of purchase for valuable consideration without notice, which he anticipates will be set up, alleges and interrogates as to facts, the admission of which would be evidence to show that the defendant had notice of the plaintiff's title, the defendant must accompany his plea by an answer as to such facts (h). So, also, where a bill was filed for the specific performance of an agreement, to which, if not in writing, the Statute of Frauds would have been a bar, and several collateral facts were alleged and interrogated to as evidence of the agreement having been in writing, it was held that the plea of the statute must be accompanied by an answer as to these collateral facts (i). The rule applies to cases where the interrogatories are founded on matters stated in the bill, which, if true, would negative the plea, and whether such matter is (/) Foley V. Sill, 3 M. & 0. {h) Jerrard v. Saunders, 2 475. See Marquis of Bute v. Ves. 187 ; Fortarlington v. Lewis, 16 L. T. N. S. 82. Soulby, 6 Sim. 356. See Pen- [g) Cork v. Wilcock, 5 Madd. nington v. Beechey, 2 Sim. & St. 330 ; Foley v. Hill, 3 M. & 0. 282 ; Harris v. Harris, 3 Ha. 475; Harris v. Harris, 3 Ha. 452, _pe?- Wigram, V.-O. 452, per Wigram, V.-O. ; Par- (i) Evav^ v. Harris, 2 V. & kinsm v. Chambers, 1 K. & J. B. 36i. See Jones v. Davis, 16 72. ' Ves. 262. 190 BY PLEA. Chap. VII. stated incidentally or in anticipation of an expected de- fence (j). The rule that allegations which if true would disprove the plea must be answered, if interrogatories founded on them are put to the defendant, applies to pleas which are affirmative in form, though they may be negative in substance (k). Answer in In the case of negative pleas, the mle is that where a ne^tiTe" defendant puts in a plea which has the effect of negativing P'^' the plaintiff's title, he need not accompany it with an answer as to any of the facts upon which that title depends, unless discovery is specially sought by the bill, and he is required to answer interrogatories as to such facts (I). If, however, this is done (m), or if the allegations in the bill and the interrogatories taken together show that the plaintiff is seeking discovery to which he is entitled (n), the defendant is bound to accompany his plea with an answer. If the plaintiff in his biU, besides setting forth his title, alleges collateral circumstances or evidence of that title, a plea negativing the title does not protect the defendant from answering as to those circumstances. The plaintiff has a right to discovery by answer iu support of the plea as to those circumstances which if admitted would exclude the validity of the plea (o). When, accord- ingly, a bill was filed for a partnership account, and (/) Crow V. Tyrrel, 2 Madd. 61 ; Torh v. Fry, ib. 65. 397, 409 ; Sihbald v. Baillie, 1 5 («) Wilson v. Hammonds, L. Ves. 185 ; Roche v. Morgell, 2 E. 8 Bq. 324. Sch. & Lef. 721 ; Jones v. Davis, (o) Jones v. Davis, 16 Ves. 16 Ves. 265 ; Hunt v. Penrice, 264 ; Sanders v. King, 6 Madd. 17 Beav. 525 ; Dan. Oh. Pr. 569. 64 ; Thring v. Edgar, 2 Sim. & See Hawkins v. Carr, 6 B. & S. St. 280 ; Hardman v. Ellames, 5 998 ; L. E. 1 Q. B. 89. Sim. 640 ; 2 M. & K. 743 ; (k) Earland v. Emerson, 8 Denys v. Locodk, 3 M. & C. 231 ; Bligh. 62. Clayton v. Lord WincJielsea, 3 [l) Thring v. Edgar, 2 Sim. Y. & 0. 432 ; Wilson v. Ham- & St. 281 ; Dan. Oh. Pr. 569. mmds, L. E. 8 Eq. 323. (m) Sanders v. King, 6 Madd. BY PLEA. 191 seeking discovery as to the circumstances specially chai-ged Chap. vil. in the bill as evidence of the partnership, it was held that a plea of no partnership was defective in substance if not accompanied by an answer, and discovery as to such circumstances (p). So, also, if a bill alleges certain matters, and aJso alleges that the defendant has in his possession documents which would prove them, a plea traversing the matters charged in the bill is not sufficient, if it does not also deny the possession of the docu- ments (q). If the bill states any facts which are inconsistent with In what the defendant's plea, and interrogatories are filed asking pj^a must whether the defendant has in his possession documents ^ '^i'™^- ^ pamed by relating to the subject matter of the suit, the plea must an answer be accompanied by a discovery of the documents in the ments. possession of the defendant (r). Where, for example, a bill was filed by persons claiming an estate as heirs ex parte maternd, and the defendant pleaded that another person was heir ex parte paternd, the court overruled the plea, because it did not answer as to a correspondence by which it was charged in the bill that the defendant had admitted the plaintiff's title (s). If, however, no fact is stated in the bill to avoid the effect of the plea, the defendant need not answer any interrogatories as to the possession of documents (t). The rule that an interrogatory asking the defendant Rule as to whether he has documents in his possession from which ^™™the^ {p) Sanders v. King, 6 Madd. Sim. 490, 492. See Hardman v. 64; Harris v. Harris, 3 Ha. Ellames, 5 Sim. 640; 2 M. & 450 ; Mansell v. Feeny, 2 J. & K. 744 ; Tonge v. Stakey, 2 Jur. H. 320. 44 ; Harris v. Harris, 3 Ha. {q) Clayton v. Loi-d Winchil- ioo. sea, 3 T. & C. 683. (C) Dan. Cli. Pr. 572. See (r) Dan. Ch. Pr. 573. M'Oregor v. East India Co., 2 (s) Emerson v. Harland, 3 Sim. 455. 192 BY PLEA. Chap. VII. the matters stated in the bill would appear must be bill mis- answered, whenever there are facts stated in the bill effect of which are inconsistent with the plea, does not apply to ^^^'^- cases where the bill mis-states the effect of deeds which form the substance of the plea and are stated in it (u). Kuie as to lu the case of negative pleas, if a plaintiff indicates by as to d^ocu- ^^® interrogatories that he requires an answer as to docu- ments in ments alleged to be in the defendant's possession in proof negative of his title, the defendant must make the discovery ; thus, if the interrogatories ask whether the defendant has in his possession documents from which the truth of the matter stated in the bill would appear, he must, if he negative the plaintiff's title by his plea, accompany his plea by an answer as to the documents (x). Where, on the other hand, the interrogatories ask whether the documents are in the possession of the defendant, but do not ask whether from such documents the truth of the matters in the bill would appear, they need not, it would seem, be answered (y). Answer An answer accompanying a plea should not extend to extend to ^^cts not charged as evidence to rebut the matter of the facts not TplesiCz). Though the answer should not extend to facts cnarged as -"^ ^ ' ° e-ridence which are covered by the plea, a defendant is bound, if to rebut the plea, interrogated, to answer all collateral facts not covered by wMch are *'^® P^®^ W- Where facts have been charged inconsistent covered by ^ith the plea itself, negativing a negative plea by antici- pation, as it were, and thus supporting the plaintiff's title, the traversing those averments, and thereby supporting the plea, does not overrule the plea (&). (m) Plunhett v. Cavendish, 1 Dan. Oh. Pr. 574. B. & M. 718 ; Dan. Oh. Pr. {y) Dan. Oh. Pr. lb. 573. (z) Thring y. Edgar, 2 Sim. & {x) Clayton v. Loev. S%W, 1 Dowl. 163; N. S. 684, per WiUes, J.; 8 Blv-ck V. Gompertz, 7 Exch. 70 ; 0. B. N. 8. 629, per Williams, J. Doe d. Child y. Roe, 1 E. & B. {p) Pickering v. Noyes, 1 B. & 279 ; Shadwell v. Shadwell, 6 0. 262 ; 2 Dowl. & E. 386. See 0. B. N. S. 689 ; Price v. Hodgson v. Warden., 1 Dowl. & Harrison, 8 C. B. N. S. 633, L. 286. OF DOCUMENTS AT LAW. 235 The rule that a party who has an instrument in his Chap. I. possession on which an action, or the defence to an action, is founded shall be compelled to produce it, does not apply if it appear that at the time when the agreement was made there were two parts interchangeably exe- cuted (q). In Street v. Brown (r), where two parts of an indenture were supposed to have been interchangeably executed, and the part of which the master of the char- tered vessel had the custody was lost at sea with the ■ship, the court would not compel the charterer being sued thereon to grant inspection and a copy of the other part, for the purpose of the plaintiff's declaring with greater certainty. So, also, in a case where two parts of a lease were interchangeably executed, and the part in the possession of the plaintiff was lost, the court would not interfere to compel the defendant to permit the plain- tiff to inspect and copy the part which was in his posses- sion (s). The court will only make an order for the inspection and copy of an instrument where the party who holds it may be considered as a trustee for the party seeking the copy, which the tenant could not be where the landlord originally had the counterpart (t). Where the object was merely to have the instrument stamped, it mattered not formerly that the party had had a counterpart or duplicate, if he bad lost it, as such an application was different from an application to inspect and take a copy (u). Applications for this purpose are now, however, unnecessary, by reason of the Common Law Procedure Act, 1854, s. 29, which permits documents to be stamped at the trial. (g) Travis v. Collins, 2 Or. & (<) Lord Portmore v. Goring, J. 627. 4 Bing. 152. (r) 6 Tauat. 302. (m) Neale y, Swind, 2 Cr. & (s) Woodcock V. Worthington, J. 278. 2 Y. & J. 4. 236. INSPECTION Qhap, I, The rule that inspection will be granted of an instfu- Party seek- ment On which an action or the defence to an action is tiMi'm^T' founded, where there is but one copy of it, on the prin- ^terest in ^^^^^ *^^* *^® person holding it holds it as quasi trustee the docu- for the party seeking inspection, has been extended so as ment, and , . , i i i • i p there must to include every case where there is but one copy oi an copy of iT^ instrument on which an action or the defence to an action is founded, and the party seeking to inspect is a party to the instrument either in fact or in interest (v). Where there is only one copy of an instrument on which an action or the defence to an action is founded, and each party has an interest in that instrument, the court has power to order an inspection of that instrument (x). If both parties to an action have an interest in a document, and it appears that an inspection of it is material to the prosecution of an action, inspection will be granted (y). Where, for example, the defendant had given a written authority to another to announce to the holders of the notes of a certain bank that he would support the bank with a given sum of money, and the plaintiff claimed as the holder of some of the notes which he had forborne to present for payment on the faith of such notice, he was holden entitled to have the instrument produced to be stamped, as being a party claiming an interest therein (z). So, also, in ejectment for forfeiture by breach of the covenants in a lease, a party not denied to be in lawful possession was allowed inspection of the lease, though it did not appear how he was in possession under it (a). (u) Price v. Harrison, 8 0. B. M. & W. 588, per Alderson, B. N. S. 634, per Williams, J. ; (z) Bateman v. Philipps, 4 Owen Y. Nicksm, 3 EL & El. Taunt. 157. 607. (a) Doe d. Child v. Boe, 1 (x) Boe d. Child Y. Boe, 1 E. & E. & B. 279. See Doe v. Lang- B. 284. ford, 21 L. J. Q. B. 217. (»/) Sfeadman v. Arden, 16 OF DOCtTMENTS AT LAW. ,237 So, also, an agent will be compelled to grant inspection Chap. i. of his books to his principal (6). So, also, in an action against a sworn broker of the city of London for negli- gence in making a contract, the court has compelled him to produce his books, in order to enable the plaintiff to inspect and take a copy of the contract (c). So, also, an attorney having brought an action for his bill of costs, which was defended by the client on the ground of negligence, he was ordered to give to the defen- dant a copy of a case with the opinion of counsel thereon (which had been procured for the defendant by the plain- tiff as his attorney) at the defendant's expense, or to deliver up the case itself on being paid the costs which the plaintiff claimed in respect of siich case and opinion (d). In actions on policies of insurance, it is usual to require the plaintiff to deliver to the assurer on affidavit copies of aU letters, papers, &c., &c., in his possession in any way relating to the subject of the policy (e). In one case where the action was brought by the owner of a ship against the proprietor of goods on board for contribution in respect of a general average, the defendant was allowed to inspect and take copies of the statement of the general average loss, but not of the documents from which it was drawn up (/). In actions by allottees of shares against provisional committee men to recover deposits, the plaintiff was (6) Jmes V. Palmer, 4 Dowl. B & S. 888. 44g_ (/) Twizell v. AUen, 5 M. & (c) Browning v. Jylwin, 7 W. 337. See as to what in- B. & C. 204. spection of documents is allow- {d) Evans v. Delegal, 4 Dowl. able in an action on a policy of 3Y4. marine insurance, Kelloch t. (e) GoUschmidt v. Marryatt, 1 Home and Colonial Insurance Camp. 562 ; Rayner v. Ritson, 6 Co., 12 Jur. N. S. 663. 238 INSPECTION Chap. I. allowed to inspect and take copies of the subscribers' agreement and parliamentary contract {g) ; and in an action by a secretary of a company against a provisional committeeman for salary, the defendant was allowed to inspect and take copies from the minute book containing resolutions referred to in the plaintiff's particulars Qi). So, also, a railway company has been compelled to grant inspection of all their minutes relating to the em- ployment of a servant in an action by him for wrongful dismissal (i). So, also, the trustees under a composition deed, framed under sec. 192 of the Bankruptcy Act, 1861, have been compelled to grant inspection to a creditor of the assents to the deed (fc). So, also, a company suing an alleged shareholder for calls have been compelled to grant inspection to him of the registry of shares, allotment and agenda books in the possession of the company (Q. So, also, in an action against a marshal for an escape of a party who had been committed on a habeas corpus, the defendant was ordered to give a copy of the habeas to enable the plaintiff to frame his declaration (m). An annuity deed, of which there was no countei^part, was placed in the hands of R. as agent for grantor and grantee. R. received the annuity for the grantee. The grantor redeemed the annuity by paying the amount of the purchase money to R., who, without express authority from the grantee, delivered the deed to the grantor to be cancelled. R. having absconded without paying the (g) Sieadman v. Arden, 13 0. P. 251. M. & W. 587 ; Ley v. Barlow, (1) Lcmcaahire Cotton Spinning 1 Exoh. 800. Co. V. Qreatorex, 14 L. T. N. S. (A) Shaw V. Holmes, 3 0. B. 290 ; contra, Birmingham, &c. 952. cfcc. Railway Co. v. White, 1 (i) Hilly. Great Western Bail- Q. B. 282. way Co., 10 C. B. N. S. 148. (m) Fox v. Jones. 7 B. & C. [k) Andrew v. Pell, L. E. 2 732. OP DOCUMENTS AT LAW. 239 grantee, and the grantee having sued the grantor for Chap. I. arrears, it was held, that he was entitled to call for an inspection of the deed {n). So, also, in an action of detinue for a deed by the trustees of the marriage settlement of a woman, who were also her executors, against an equitable mortgagee who was in possession of the deed, the plaintiffs were held entitled to have production of a memorandum of a specified date signed by her, agreeing that the deed should remain in the custody of the equitable mortgagee till repayment of the monies advanced by him (o). In a case where the plaintiff, assignee of A., who had become bankrupt, sued B. in respect of certain contracts alleged to have been entered into by A. with the plaintiff on the joint account of A. and B., the court allowed B. to inspect books of A. in the hands of the plaintiff as his assignee, in order that he might discover what the alleged contracts were {p). Where a party has, on the former trial, produced a document as evidence, the other is entitled to an inspec- tion of it where a new trial has been granted (g), but not for the purpose of moving for a new trial (r). Where a party has exhibited a paper relating to the matter in question instead of annexing it to an affidavit made in the case, he must give his adversary a copy of the paper (s). Inspection of an instrument will not be gi-anted, unless Inspection . not granted the person seeking to enforce production has a direct where an interest is not shown. («) Devenoge v. Bouverle, 8 (5) Hewitt v. PigoU, 7 Bing. Bing. 1. 400. (0) Owen V. Nicksm, 3 El. & (r) Woody. Morewood, dBowl. El. 607. See as to practice in 44; Pratt v. Ooswell, 9 C. B. equity, supra, pp. 21, 22. N. S. 706. (p) Whitbourne v. Pettifer, i (a) Tebbutt y. Palmer, TDowl. M. & So. 182. 674. 240 INSPECTION Chap. I. interest in the instrument (f). In Ratcliffe v. Bleasby (u), the plaintiff and defendant being about to enter into part- nership together, a draft of an agreement was prepared by defendant's attorney, which having been perused and approved of by plaintiff's attorney, was engrossed and executed by defendant, but was not executed by plaintiff. The plaintiff afterwards brought an action against de- fendant for breach of the agreement for the partnership, and applied for leave to inspect and copy the draft and deed. The court refused the application as to the deed, on the ground, that the plaintiff not having executed, had no interest in it ; but they allowed it as to the draft, the plaintiff having an interest in that. So also in a case where the action was for breach of an agreement to employ the plaintiff on a newspaper, and the defence was that he had lent himself to the insertion of a garbled report of proceedings in a court of justice ; inspection of the report was refused (x). So also, where an action was brought by the owner of a ship against a broker employed by him to procure a cargo, the court refused to give plaintiff leave to inspect and take a copy of a letter received by the defendant from a correspondent abroad so far as it related to plaintiff's ship, although the defendant acted as such broker at the time (y). Nor in an action against the charterer of a ship for freight and demurrage was he allowed to inspect the log-book (z). And in an action by indorsee, a sworn broker, against the acceptor of a bill, which defendant alleged to have been an accom- modation bill, and to have been indorsed for differences (f) Powell v. Bradbury, 4 {y) Howe v. Mowden, 4 Bing. .0. B. 542, per Lord Truro ; 539, n. PritcJiett v. Smart, 7 0. B. 628. (z) Bundle v. Beaumont, 4 («) 3 Bing. 148. Bing. 537. Comp. Kellocle v. (x) Powell V. Bradbury, 4 Home and Colonial Insurance 0. B. 541. Co., 12 Jur. N. S. 653. OF DOCUMENTS AT LAW. 241 in stock-jobbing transactions, inspection of the plaintiff's Chap. I. books was refused (a), So where the plaintiff founded his application upon an affidavit, in which he stated that the agreement which he expected the defendant would set up, was, if it bore the name of the plaintiff, a forgery ; it was refused (6). Again, where in trover for a horse and har- ness, the defence was that they had been sold under a distress for rent against a third party, and it appeared that such party had signed an agreement allowing the defendant to keep in possession after the five days, the plaintiff was not allowed to have a copy and inspection of that agreement (c). So where the plaintiff had been non-suited in an action against the defendants as partners by reason that the partnership agi-eement, when produced at his instance on the trial was not stamped, the court held, that as he was not a party to the instrument, he had no right to have it produced to be stamped (fZ). So also, where an action on certain biUs of exchange was brought against a defendant, who pleaded that he was liable, if at all, as a surety only, it was held that he was not entitled to the inspection of a deed in the plaintiff's possession, by which it was suggested time had been given to the piincipal debtor, but to which deed the surety was no party (e). Where the instrument is in the possession of a third Inspection ordcrsd party, who has a legal right to hold it, as in this case, a -wiien in- subpcena duces tecum may and must be resorted to in ^'^j^g' order to enforce its production at the trial, the court will l^^nds of ... third not in ordinary cases hear an application against that parties. (a) Pritchett v. Smart, 7 0. B. (c) Lawrence v. Eooker, 5 625. Bing. 6. (6) Jessel v. MilUngen, 1 M. & {d) Taylor v. Oshorne, cited Sc. 605 ; contra, if it liad been 4 Taunt. 159. the document sued on; Thomas (e) Smith v. Winter, 3 M. & V. Dunn, 6 M. & G. 274. W. 309. B 242 INSPECTION '^I'^P- L party to allow an inspection or give a copy (/) ; but where a notice to produce would be the proper course, and would entitle the party giving it to prove the matter by secondary evidence, then the courts have the juris- diction spoken of (g). There are cases, however, in which, where the third party claims under the other party, the courts have ordered an inspection. Thus, in ejectment against a tenant for forfeiture by breach of covenant in a lease, no counterpart having been executed, the mortgagee of the lease was ordered to allow the lessor to inspect and take a copy of it, though it was objected that the object was to defeat the mortgagee's security Qi). So also, when the deed on which the plaintifif sued had been taken from him under a charge of felony, the magistrate who gi'anted the warrant was ordered to give him a copy (i). Inspection If the documents are in the custody of the party, in- ments spection will be ordered, though other persons not parties though ' *° ^^^ action have also an interest in them (k). persons Thus, in an action for salary by a secretary against a to the provisional committeeman of a company, the defendant was interested, allowed to inspect the minute-book, the court not being satisfied that it was not in the plaintiff's control (l) ; and in an action by an allottee of shares against a member of a provisional committee, the plaintiff was allowed in- spection of the subscribers' agreement, and the par- Hamentaiy contract in the hands of the solicitor of the company (m). (/) Cocks V. Nash, 9 Bing. 229. 723. {k) Contra in equity, supra, (g) Lush. Pr. 837. pp. 36, 37, 106, 108. {h) Doe V. Boe, 1 M. & W. (Z) Shaw v. Holmes, 3 C. B. 207, sed quoere Lush. Pr, 837 ; 952. see, as to practice in equity, (m) Sfeadman v. Arden, 15 supra, p. 21. M. & W. 587; Ley v. Barlow, (i) Harris v. Aldrit, 2 Oh. 1 Exch. 800. OF DOCUMENTS AT LAW. 243 If the document is not under the control of the party, Chap. I. an order for inspection will not be naade (n) ; but the lien inspection of the party's attorney is no answer to an application for ^°^o°g„f'^^^'* inspection (o). ments be mi 1 • 1 1-1 • ^"^ under i he rule with respect to the right to inspection is not control of confined to instruments inter partes ; it extends to bills, ^^ ^' Lien of notes, and other securities (p) : and, in general, wherever solicitor a document is relied on in a pleading, the opposite party toingpeJ. is entitled to inspection (g). Thus, where the action was *'™- for money had and received on the sale of a book under documents an agreement to share profits, the court allowed the de- ™.speotion fendant to inspect and take a copy of the agreement upon ordered. which the action was founded, though the agreement was not declared on (?•). So also, where by reason of the Statute of Frauds the plaintiff cannot prove his decla- ration without producing an agreement in writing, such written agreement is virtually declared on, and the de- fendant is entitled to inspect it (s). So also, where the defendant pleaded the want of an agreement in writing under the Statute of Frauds, and the plaintiff rephed that there was such an agreement, the defendant was held entitled to see it (f). Nor is it necessary that an instrument inter partes should have been executed by the opposite party. Where the plaintiff sought to recover damages for the breach of an agreement to take him into partnership, the defendant (m) Steadman v. Arden, 15 N. S. 816; Price v. Harrison, M. & W. 587. 8 G. B. N. S. 617 ; Owen v. (o) Ley V. Barlow, 1 Exoh. Nickaon, 3 El. & El. 607. 801. See as to practice in (r) Charnnck v. Lvmley, 5 Sc. equity, supra, pp^ 109, 110. 438. {p) Woolmer v. Devereux, 2 (s) Price v. Earrison, 8 0. B. M. &G. 758; Bluch-7. Oompertz, N. S. 617; Stone v. Stramge, 3 7 Exch. 70. H. & 0. 541. (g) Peiiarth Ha/rlour Go. v. (<) Blogg y, Kent, 6 Bing. 614. Cardiff Waterworks Co., 7 0. B. R 2 24!4 INSPECTION ciiap. I. was ordered to give him inspection and a copy of the partnership deed, which was ia his po'ssession, and which had been executed by the plaintifif, but not by him (u). Mode of The party should apply in the first instance at aMaTit°"' Chambers {x), and the summons should be supported by an affidavit that an action or other proceeding is pend- ing (y), and making out a primd facie case that the opposite party is in possession of, or has under his control, a particular instrument or document which he holds as trustee for him, so as to entitle him to inspection (z) ; and stating that he has no copy or counterpart {a) ; that he cannot proceed safely without it (6) ; and such other facts as bring the case within the rule (c). No special ground for inspection need be shown (d). Costs. The expense of the inspection and copy must be borne by the party applying, but he is not in general required to pay the costs of the application, at least when he has sought inspection, &c., beforehand and been refused (e). Time of The application cannot be made before action brought (/), application. {u) Morrow v. Saunders, 1 J. Q. B. 217 ; Owen v. Mch- Bro. & B. 318. See Steadmcm v. smi, 3 El. & El. 607 ; Price v. Arden, 15 M. & W. 587. Harrison, 8 0. B. N. 8. 618. {x) Thomas v. Dunn, 6 M. & (6) Owen v. Nicksm, 3 El. & Q. 274. El. 607 ; Price v. Harrison, 8 0. {y) See Hunt v. Hewitt, 7 B. N. S. 618 ; Stone v. Strange, Exot. 243. 3 H. & 0. 541. (z) lb.; Cocks V. Nash, 9 (c) lb. Bing, 725; Hoey. Langford, 21 (d) Woolmer v. Devereux, 2 L. J. Q. B. 217 ; Wright v. Mor- M. & G. 758. rey, 11 Excb. 209; Shadwelly. (e) Beid v. Coleman, 2 Or. & Shadwell, 6 0. B. N. S. 689; M.456; King y. King, i'ia.uvA. Stone v. Strange, 3 H. & 0. 666 ; Blahey v. Porter, 1 Taunt. 641. 386. (a) Doe V. Slight, 1 Dowl. 163; (/) Ex parte Partridge, 1 H. Orijln V. Smyihe, 8 Dowl. 492 ; & W. 380 ; Be Burton and Sad- Morrow v. Saunders, 1 Bro. & lers' Co., 31 L. J. Q. B. 62. B. 318; Doe v. Langford, 21 L. OF DOCUMENTS AT LAW. 245 whicli, if it be not made till after plea, the rule or order Chap. I. will be no stay of proceedings ((/). Under an order to produce letters and give copies, it Ertracta is sufficient to give extracts of such parts as are relevant sufficient. to the subject matter of the action, if the party in whose possession they are wUl make an affidavit that the residue of their contents does not relate to the subject matter of the action (h). {g) Chamock v. Lumley, 5 So. 167 ; BamshoUam v. Cooper, 2 438 ; Lush. Pr. 840. Cli. 231. (A) Cliffords . Taylor, 1 Taunt. CHAPTEK II. INSPECTION OF DOCUMENTS TTNDEE 14 & 15 VICT. c. 99. caiap. n. The power of the Courts of Common Law to grant inspection has been much enlarged hy 14 & 15 Vict., c. 99, s. 6, which, while leaving the original common law power unaffected {a), enables them in all proceedings before them to order inspection, where a discovery might have been obtained in equity. The section enacts, that whenever any action or other legal proceedings may be pending in any of the Courts of Common Law, such court, and each of the judges thereof respectively may, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the applica- tion to inspect all documents in the custody or control of such opposite party, relating to such action or other legal proceeding, and if necessary to take examined copies of the same in all cases in which a discovery might be ob- tained by a bill in equity, at the instance of the party so making the application. The statute does not give the Courts of Common Law a power to call upon a party to discover what documents he has in his possession relating to the matters in issue. The only power given is a power to compel a party to the action to produce to his opponent for inspection and copy, all such documents in his custody, or under his control, as are material and relevant to the case upon which the (a) See Hunt v. Hewitt, 7 Exoh. 242. INSPECTION OF DOCUMENTS AT LAW. 247 applicant relies (&). A party is not entitled by alleging Chap. II. that his opponent is in possession of documents material to the issue, to call on him to answer by affidavit whether he have any such documents in his possession, and, if any, to specify what they are (c). To entitle a party to the inspection of documents under the statute, the case must, moreover, be one in which a bill of discovery could be maintained in equity (d). If the case is one in which discovery might have been ob- tained in equity, upon proper steps being taken, inspec- tion can be granted (e). The right to the inspection of documents under the Party can- statute, like the right to the production of documents in inspection equity (/), is accordingly limited to the inspection of such ^g^'J™' documents as tend to make out the case of the party who which ... , , 11- relate ex- makes the application, and does not extend to the mspec- clusively tion of documents which relate exclusively to the case of ^^ ^^ ^^^ his adversary, or which merely make out or support the adversary. case of his adversary, without furthering or advancing his own case (g). In a case, accordingly, where an action was brought against a person who had been manager of a branch bank of the plaintiff, for alleged breaches of agree- ment relating to the management, the Court of Queen's Bench refused to allow him to inspect a correspondence between the officers of the company after the dispute (6) Hunt V. Hewitt, 7 Exch. (e) Biccard v. Indosure Com- 245; Rayner v. AUhusen, 2 L. missioners, 4 E. & B. 338; M. & P. 605; 21 L. J. Q. B. Woolley v. North London Bail- 68; Galsworthy v. Norman, 21 way Co., L. E. 4 0. P. 612 ; L. J. Q. B. 70. per Smith, J. (c) Gahworthy v. Norman, (/) Supra, pp. 18—25. ib. ; Bayner v. AUhusen, ib., 68. (g) Hunt v. Hewitt, 7 Excb. (d) Hunt v. Hewitt, 7 Exoh. 244 ; Scott v. Wallcer, 2 E. & B. 242 ; Galsworthy v. Norman, 21 560; Bhadwell v. Shadwell, 6 0. L. J. a. B. 70; Gomm v. Far- B. N. S. 689. See Finlay v. roU, 3 0. B. N. S. 47. Lindsay, 7 Ir. 0. L. 1 (libel). 248 INSPECTION <^tiap. II. had arisen, consisting of inquiries respecting the alleged breaches of duty, and answers thereto, and specifying the evidence which could be adduced {h). So, also, where an action on a fire pfllicy, the defence set up was that the accounts delivered by the plaintiff were fraudulent, the court, while allowing inspection of communications be- tween the company and their agent at the time of effect- ing the policy, and between the company and the other companies who shared the risk as to the value of the pro- perty, refused to allow inspection of the report of the company's officers as to the result of their examination of the debris and salvage (i). So, also, in a case where an action was brought against a railway company for damages for a personal injury sustained by a passenger on the rail- way, it was held that he was not entitled to an inspection of a report made to a servant of the company by a scien- tific man, consulted by the company with reference to the cause of the accident, on the ground that it was a document procured by the defendants for the purpose of assisting them in their defence to the action (k). So, also, the court would not allow a plaintiff in an action to have an inspection of documents in the possession of the de- fendants, upon which they had made out their charge for work done (T). Eight of Though a party has no right to inspect documents that inspection exclusively evidence the title of his adversary, he has a all docu- right to inspect all documents in the possession or power ™H h h 1 °^ ^^® adversary which tend to make out his own case. (h) Chartered Bank of India\. See Cossey y . London and Brigh- Bich, 4 B. & S. 73; supra, p. ton Bailway Co., ib. ; 5 0. P. 145. 146 ; supra, pp. 145, 146. (i) Woolley v. Pole, 14 C. B. (Q British Empire Shipping N. S. 538. Co., 5 W. E. 489. See S. C. in {k) Woolley v. North London equity, ib., 813. Bailway Co., L. R. 4 0. P. 602. OF DOCUMENTS AT LAW. 249 It is no objection to an order for the inspection of a Chap. 11. document in the possession of a party that its production to make will disclose his case, provided it be satisfactorily shown °"* '"^ that it also supports the case of the "party who applies for inspection (m). Thus in an action for goods sold and delivered, the plaintiff would be entitled to inspect any entries in the defendant's books relating to the receipt or to the weighing or measuring of those goods (n) ; and where a plaintiff brought an action against a company for a wrongful dismissal, he was allowed inspection of the resolutions, and all entries and minutes relating to the engagement (o). So, also, in a case where an action was brought for gas supplied under a certain agi'eement, and the defendants denied that the quantity and quality of the gas supplied was in accordance with the agreement, it was held that the plaintiffs were entitled to inspection of certain documents, showing the result of experi- ments made by the engineer of the defendants which the plaintiffs alleged would show that they had performed their agreement (p). So, also, where to an action for not accepting goods, the defendant pleaded fi'aud, and a judge at chambers made an order for the inspection of corre- spondence between the plaintiff and the consignor of the goods, between them and their brokers after the contract and the breach, which the defendant alleged would show that at the time the alleged misrepresentations were (to) Supra, pp. 27, 28 ; Hunt Willes, J. V. EewiU, 1 Bxch. 244 ; Scott, (o) Hill v. Great Western V. Walker, 2 B. & B. 555; Cos- Railway Co., 10 0. B. N. S. 148; ter V. Baring, 2 0. L. K. 813 ; Houghton v. London and County Biccard v. Indosure Gmnmis- Assurance Co., 17 0. B. N. aimers, 4 E. «& B. 338 ; London S. 80. Oas Light Co. v. Vestry of CM- (p) Londm Gas Light Co. v. sea, 6 0. B. N. S. 411 ; Bayner Vestry ofCheUea, 6 0. B. N. S. V. Bitson, 6 B. & S. 888, 411. (n) 6 0. B. N. S. 424, per 250 INSPECTION ^^'P- ^l- made the plaintiff knew them to be untrue, the court refused to set aside the order (q). So, also, in an action against the keeper of a lunatic asylum for improper treatment, inspection was ordered of such parts of the books directed by statute to be kept as related to the plaintiff's case, and also of the defendant's licence, and the medical certificate under which the plaintiff was con- fined, and of all letters relating to the plaintiff, written by plaintiff's wife, or by the Commissioners of Lunacy to the defendant (r). Biglitof T]je rule that a party is entitled to the inspection of a party . . to inspect documents in the possession or power of his adversary, which may which are relevant and material to his case, applies to c^'e b^ cases where the documents help to make out his case by defeating impeaching the title, or defeating the case of the party of his in whose possession they are (s). Where, accordingly, on a feigned issue to try whether the plaintiffs had such an interest in a manor as entitled them to object to the ia- closure of certain lands within, it, the case of the defen- dants was, that in 1800 one L., through whom the plain- tiffs claimed, had, by an agreement, not under seal, agreed to an allotment of 151 acres in lieu of his interest in the waste, that the agreement was acted on, and that the plaintiffs still enjoyed the allotment, it was held, that the defendants were entitled to an inspection of the con- veyance of the manor to L. before 1800, and of the sub- sequent conveyances through which the plaintiff took, of the agreements and of leases made subsequently to 1800 of the alleged allotment, and of entries relating thereto, on the ground that the conveyances would show that L. was in 1800 lord of the manor, and that they might show (g) Colman v. True/man, 3 H. (s) Supra, pp. 32, 33 ; Scott & N. 871. V. Walker, 2 E. & B. 555. (r) mn V. PMlp, 7 Exch. 232. OF DOCUMENTg AT LAW. 251 what were the parcels before and since, and that the leases Chap. II. would show acts of ownership over the 151 acres (t). So, also, where to an actiop tP recover a deed, the defendant pleaded a general lien for work done by him as attorney of the plaintiff ; and the plaintiff denied the lien, and said that he believed entries would be found in certain books of the defendant showing that the party charged was not the plaintiff but another, inspection was ordered of such entries in certain books of the defendant as related to items of the lien («). So, also, where the defendant who was sued for work done denied that the work was done, and alleged that if any was done, the charge made for it was excessive, and that it was done on the credit of another party, he was allowed to inspect the plaintiff's books containing entries relating to the work (x). In an action for libel charging the plaintiff with dis- honesty in omitting to pay to defendants monies received by him wMst in their employment, the defendants having pleaded justification, the plaintiff was allowed an inspec- tion of accounts furnished by him to the defendants of monies received by him, of entries of such monies in their books, and of letters written by him to defendants while in their employment, so far as such matter related to the acts of dishonesty charged (y). But in a later case where a company brought an action of libel against a share- holder of the company, who had imputed insolvency to the company, and the defendant pleaded a justification, it was held, that he was not entitled to an inspection of the books of the company for the purpose of proving his plea of justification on the gi-ound that a person publish- (<) Riccard v. Incloau/re Com- (a;) Evnt v. HewiU, 7 Exoh. missioners, 4 E. & B. 329. 236. (m) Scott V. WalUr, 2 E. & (j/) Collim, v. Yates, 27 L. J. B. 555. See Ferguaami v. Exci. 150. Coomhes, 3 F. & F. 87. 252 INSPECTION Chap, II. Inspection not ordered, unless the application be bond fide. Inspection ordered, though ■whole title of appli- cant be denied. Affidavits. ing a libel ought to be prepared to prove it, and ought not to be allowed to ransack the books of the party libelled in order to see if he can find in them a justifica- tion {z). The power of ordering inspection of documents will not be exercised except for the purpose of assisting a hond fide suit. If the court is not satisfied that inspection is sought for the purpose of suit in which it is sought, but there is reason to believe that it is sought for the pur- poses of another suit to which the person against whom inspection is sought is not a party, inspection will be refused (a). Inspection may be ordered though the party against whom the application is made deny the whole title of the party applying. In Bull v. Clarke (b), where the defen- dant claimed a set-off for commission upon sales to per- sons introduced by him, he was allowed to inspect the plaintiff's books, althoiigh he swore that there never had been any agreement whatever with the defendant as to commission. The ground upon which the case proceeded may have been that the court were of opinion that the entries allowed to be inspected bore upon the very question in dispute ; viz., commission or no commis- sion (c). The afiBdavit in support of the application should show that an action or other proceeding is pending, and should state, not on a mere suggestion (d), but circumstances (z) Metropolitan Saloon Om- nibus Co. V. HawJcins, 4 H. & N. 146 ; but see Bartlett v. Lewis, 12 0. B. N. S. 263, per WiUes, J. (a) Temperley v. WilkU, 6 B. &B. 381. (i) IS 0. B. N. S. 851. (c) See as to the practice in Equity in such cases, supra, pp. 104, 105, 165. {d) Pepper v. Chambers, 1 Exch. 226 ; Sneider v. Mangino, ib., 229; Etmt y. HewiU, ib., 242. OF DOCUMENTS AT LAW. 253 sufficient to satisfy the court or judge that there are in Chap. II. the possession, or under the control, of the opposite party- certain documents, and that those relate to such action or other proceeding (e). It is enough if the application raises a reasonable presumption that the document sought to be inspected is in the possession of the opposite party (/), and is relevant to the case on which the applicant relies {g). The party seeking for inspection is not bound to show that the document would be conclusive in his favour. It is enough if it be relevant to support his case (A,). If, indeed, the document in question has a proximate tendency to advance the case of the party who makes the application, inspection wiU be ordered, though it may not be strictly evidence in itself (i). The practice of the court and of the judge at chambers has been to inquire what, from the nature of things and of the facts in the particular case, would tend to further the ends of justice, and looking at all the circumstances, and exercising a sound and rational discretion to order the inspection of those documents which appear to be material to the case of the party applying (k). The affidavit must further show that the applicant (e) Hunt v. Hewitt, ib. Woolley v. North London Rail- (/) Doe v. Lanrjford, 21 L. way Co., L. E. 4 0. P. 604. J. Q. B. 217. See Coster v. (i) Daniel v. Sond, 9 0. B. N. Baring, 2 0. L. E. 812; London S. 716; Houghton t. London, Oas Light Co. v. Vestry of Chel- &c., &c.. Assurance Co., 17 0. sea, 6 C. B. N. S. 411 ; Stone v. B. N. S. 82 ; Baker v. London Strange, 3 H. & C. 541. and South Western Railway Co., {g) Galsworthy v. Norman, 21 8 B. & S. 649 ; Woolley v. North L. J. Qi. B. 70. See Stone v. London Railway Co., L. E. 4 0. Strange, 3 H. & 0. 541. P. 604. See Nicholl v. Jones, (h) Scott v. Walker, 2 E. & B. 2 H. & M. 593. 561; Coster v. Baring, 2 0. & (k) Chartered Bank of Lndia E. 812; Riccard v. Inclosure \. Rich, 4: B. & 8. 82, perBl&ck- Commissionera, 4 E. & B. 335 ; bum, J. 254 INSPECTION ^^P- ^- would, by a bill of discovery, be able to obtain pro- duction of tbe documents. The party applying, being in the same situation as a plaintiff in equity, must, by affidavit, show, first, what is the nature of the suit and of the question to be tried in it, and it seems also that he should depose in his affidavit to his having just ground to maintain or defend it ; secondly^ the affidavit ought to state, with sufficient distinctness, the reason of the appli- cation and the nature of the documents, in order that it may appear to the court or judge that the documents are asked for the purpose of enabling the party applying to support his case, not to find a flaw in the case of the opponent, and also that the opponent may admit or deny the possession of them (Z). In determining whether the grounds urged in support of the application are sufficiently specific, the court must be guided by the circumstances of each particular case, especially by the means which the party has of being more specific (m). Though the affidavit of the party is not very specific, if reasonable grounds are furnished for believing that what the inquiry seeks is not the nature of the defendant's case, but the evidence material for the plaintiff's case, the inspection may be granted (n). Affidavits The party from whom inspection is required may answer the affidavit of the party who makes the application, by swearing that he has no such documents in his possession or power as alleged in the affidavit, or that the documents in his possession or power relate exclusively to his own case, or that he is, for any sufficient reason, privileged from producing them, or he may submit to show part, covering the remainder on affidavit, that the part con- {l) Hunt V. HewiU, 7 Exch. (m) Scott v. Walker, 2 E. & 242. See Stme v. Strange, 3 B. 661. H. & C. 541. (n) lb. OF DOCUMENTS AT LA.W. 255 cealed does not in any way relate to the case of the party Chap. II. who makes the appUcation (o). The court is not bound by the denial of the party at whose hands inspection is sought that the documents relate to the case of his adver- sary ; but if they can collect from the materials before them that the documents, although they relate to the matters iu dispute, are not relevant in the sense of tending to establish the case of the party who asks for inspection, they will not order it (p). The answer upon oath of a party that the documents in his possession relate exclusively to his own title, and do not show any title iu his adversary, is conclusive, unless the court is satisfied, from the materials before it, that the party who makes the application has an interest in the docu- ments (q). The application for inspection may be made either to Mode and the court or to a judge in chambers ; it should in general application. be made, in the first instance, to the latter (r). It may be made before issue joined (s) ; but in one case an appli- cation by defendant, before declaration to inspect a mort- gage deed, was refused (t). The order should specify the time and place at which Place of -. .. Ti -p.. liii inspection. the mspection is to take place, it is m general at the office of the attorney of the party who is in possession of the documents (u). On ordeiing inspection leave will be given to the party Leave 11 given to in whose possession the documents are, to seal up such seal up. (o) Hunt T. Hewitt, 7 Exch. (s) Rogers v. Turner, 21 L. J. 244. Exoh. 8. [p) ChaHered Bank of India (<) Jones v. Hargreaves, 29 v. Rich, 4 B. & S. 80. L. J. Exch. 368. (2) Adams v. Lloyd, 3 H. & («) Rogers y. Turner, 21 L. J. N. 351. See as to the practice Exch. 8. See as to the practice in Equity, supra, pp. 173, 174. in Equity, supra, pp. 73, 74. (r) Lush. Vr. 847. 256 INSPECTION OF DOCUMENTS AT LAW. Chap. IL paxts of the documeats as are not relevant to the case of the party who obtains the order (x). Copies. In an action for libel contained in various letters, the defendant was allowed to take fac simile copies of the letters by " photograph or otherwise " (y). Costs. The costs of inspection are paid by the party seeking it (z), and the costs of the application are sometimes costs in the cause (a). There is not, however, any general rule to that effect (6). The court may, in its discretion, order the costs of the application and inspection, to be in any court costs in the cause of the party called upon to grant inspection (c). (cc) Biccard v. Inclosure Com- B. N. S. 628. missioners, 4 E. & B. 340 ; Hill (z) Hill v. Philp, 7 Bxch. V. Great Western Railway Co., 10 232; Davey v. Pemberton, 11 0. 0. B. N. S. 148 ; Bull v. Clarke, B. N. S. 628. 15 0. B. N. 8. 851 ; Houghton (a) lb. v. London and Coionty Assurance ( b) Stillwell v. Btich, 4 H. & Co., 17 C. B. N. S. 82. See as N. 468. to the practice in Equity, supra, (c) lb. ; Davey v. Pemberton, pp. 68-70. 11 C. B. N. S. 628. («/) Davey y. Pemberton, 11 0. CHAPTER III. DISCOVERY UNDER THE COMMON LAW PROCEDURE ACT, 17 & 18 VICT. c. 125. Section I. — Discovery of Documents. The Courts of Common Law had not, under 14 & 15 chap. in. Vict., c. 99, s. 6, a power to call upon a party to discover upon oath what documents he had in his possession, or under his control, relating to the matters in issue (a). This power was given them by the Common Law Procedure Act, 17 & 18 Vict. c. 125, s. 50, which declares that upon the application of either party to any cause or other civil proceeding in any of the supeiior courts, upon an affidavit by such party of his belief that any document, to the pro- duction of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be lawful for the court or judge to order that the party against whom such application is made, or if such party is a body corporate, that some officer to be named by such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power, relating to the matters in dis- pute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so on what ground) to the production of such as are in his or their possession or power ; and upon such affidavit (a) Supra, p. 246. 258 INSPECTION Chap. III. being made the court or judge may make such further order thereon as shall be just. The effect of s. 50 is to enable the Courts of Common Law to make a party disclose what documents he has, and what he knows as to the custody of such as are not in his own power, and such order is to be made thereon as shall be just (h). It may have been intended by the Legislature that the Courts of Common Law should exer- cise a greater discretion even than the Courts of Equity had (c) ; but there can be no doubt that they have now as full and extensive a jurisdiction in matters of discovery as is exercised in Chancery (d). In Daniel v. Bond (e), where an action was brought by the consignee of goods against a shipowner for unseaworthiness of the vessel, the plaintiff was held entitled to inspection of surveys of the ship, a general average statement, the shipwright's bill for repairs, the captain's protest, and the log-book, although formerly inspection of such documents was confined to actions against underwriters. If it appear that a member of a corporation has possession of a document, inspection of which is sought, the court has as much power to order him, or a party connected with the corporation, to allow an inspection, as it has to order the attorney, secretary, or other officer of the corporation, to produce documents for inspection (/). Mode and The application which should in general be at Cham- appiioation ^^^^ ™^y ^® made by a defendant before plea (g). The application must be supported by an affidavit of the pai'ty applying, and the court cannot, except under very excep- {h) Woolhy V. Niyrth London (e) 9 0. B. N. S. 722. Railway Co., L. E. 4 0. P. 612. (/) Lacharme v. Quartz Mi- (c) Daniel v. Bond, 9 0. B. ning Co., 1 H. & 0. 137. N. S. 723. [g) Forshaw v. Lewis, 10 {d) Woolley "v. North London Exch. 712. Railway Co., L. E. 4 0. P. 612. OF DOCUMENTS AT LAW. 259 tional circumstances, dispense with it. An affidavit by an Chap. III. attorney for a party abroad has been held not suffi- Affidavit. cient {h). But where it appeared that the plaintiff was in Australia, and that his wife was carrying on the action by his authority, the affidavit of the wife and her attorney was admitted in lieu of that of the party himself (i). So also, if the party seeking discovery is a corporation aggre- gate, the affidavit may be made by their attorney, as they would otherwise be deprived of the benefit of the statute (Jc). To entitle a party to discoveiy under this section, he Affidavit. must show by affidavit that his adversary is in possession of some one document to the production of which he is entitled(Z). A mere suggestion, or statement of belief, that his adversary is in possession of some document which may help to make out his case is not sufficient (in). The affidavit must state or show reasonable grounds for the belief that some specific document, which the applicant has a right to inspect, is in the possession of the opposite party (n). The affidavit should identify the particular or specific document which the party claims the right to in- spect, or should at least show its existence (o). It is enough, however, if the affidavit be reasonably sufficient. If, accordingly, the affidavit relates to documents which must in the ordinaiy course of business exist, it is suffi- cient. In an action, for example, by the servant of a {g) Herschfield v. Clarke, 11 (m) lb. Bewetf v. Webb, 2 Exch. 712; Christopherson v. JwcN. 8. 1189; Bray r. Finch, Lotinga, 15 C. B. N. S. 809. 1 H. & N. 468 ; Woolley v. Pole, (i) Barnett v. Hooper, 1 F. & 14 0. B. N. S. 538 ; Cox v. Y. 467. Bockett, 18 0. B. N. S. 241. {Jc) Kingsfvrd v. Great Western (re) lb. Thompson v. Robson, Railway Co., 16 0. B. N. S. 2 H. & N. 412. 761. (o) lb. Bray v. Finch, 1 H. & {I) Evans v. Louis, L. E. 1 N. 468; Woolley y. Pole, 110. -B. C.'P. 656. N. S. 538. s 2 260 INTERROGATORIES AT LAW. Ctap. III. corporation against a corporation for wrongfully dis- missing him, an affidavit that the defendants have in their custody, or under their control, certain books which contain entries relating to his appointment and employ- ment, was held sufficient {p). If the affidavit is insuffi- cient in not sufficiently describing a particular document, the defect might be remedied by an affidavit from his attorney (5) ; but it cannot, semble, be cured by reliance upon the affidavits produced in answer to the motion (r). It is no answer to the application that the opposite party is privileged from producing the document ; that ground should be insisted on in the affidavit made in obedience to the rule or order (s) : nor is it absolutely necessary that the applicant should be entitled to the pro- duction for the purpose of discovery, the words being " for discovery or otherwise " (t). -Section II. — Discovert by Interrogatories. By the Common Law Procedure Act, 17 & 18 Vict. c. 125, s. 51, it is declared that in aU. causes (u) in any of the superior courts by order of the court or judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them, by leave of the (p) Houghton v. London and Exch. 712. County Assurance Co., 17 0. B. [t] Oshom v. London Bocks N. S. 82. See Sill v. Great Co., 10 Exch. 702, per Lord Western Railway Co., 10 0. B. Wensleydale. N. S. 148. (m) Interpleader, Wliite v. (2) Eewett V. Well, 2 Jur. WaUs, 12 0. B. N. S. 267 ; and N. S. 1189. ejectment, Flitcroft v. Fletcher, (r) Woolley v. Pols, 14 0. B. 1 1 Exch. 543, are causes coming N. S. 538. -within the clause. (s) Forshaw v. Lewis, 10 INTERROGATORIES AT LAW. 261 court or a judge, may, at any other time, deliver to the Chap. III. opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matters) interrogatories in writing upon any matter as to which discovery may be sought, and require such part}', or in the case of a body corporate, any of the ofEcers of such body corporate (x), ■ivithin ten days, to answer the questions in writing by affidavit to be sworn and filed in the ordinary way. In exercising the jurisdiction to administer interroga- tories, the court will take care to exercise it only in favour of a party who really has a case, but is obliged to resort to the other side to enable him to make out his case. The court will not allow merely fishing interroga- tories in order to enable a party to ascertain whether he has a case (y). Where, however, either party to a suit has a case, but the materials for proving it are not in his power or under his control, but in the possession of his adversary, he may interrogate his adversary in order to establish his own case (z). In administering justice in matters of discovery under the Common Law Procedure Act, the courts of common law are governed generally by the principles on which (x) A public officer suing on was made are " officers " within behalf of a banking company the clause; Madrid Bank v. carrying on business in co- Bayley, 8 B. & S. 29 ; L. E. partnership under 7 Geo. IV. 2 Q. B. 39. ^e& also M'Fadzeny. c. 46, is within the clause; Mayor, &c. &c. of Liverpool, M'Kewan v. RoH, 4 H. & N. L. E. 3 Exoh. 279, where, in an 738. A clerk to commissioners action against a corporation, the in an action against him for town clerk was interrogated. negUgence by the commis- {y) Atkinson v. Fosbroke, 7 sioners, though only a nominal B. & S. 622 ; L. E. 1 Q. B. defendant, is withLa the clause ; 631. Mason Y. Wythe, 3 F. & F. 153. (z) Moor v. Boleris, 2 0. B. Directors of a company at the N. S. 671. time when a winding-up order 262 INTEEEOGATOEIES AT LAW. Chap. Ill, tjjig branch of jurisprudence is administered in courts of equity where the law as to discovery has grown up and been matured (a). But the courts of common law admi- nister justice in this matter by analogy to their own pro- ceedings, and are not confined within the same limits or bound by the same rules which regulate the practice of the Court of Chancery in the case of discovery (6). There are cases in which a court of law will allow interrogatories where the Court of Chancery would not allow a biU of discovery (c). Courts of equity, for instance, would not grant discovery in aid of a personal tort, whereas courts of common law wiU allow interrogatories in such an action (d). Interroga- Interrogatories may be delivered to a plaintiff though a torieatoa - . , , . ° plaintiff a foreigner and out of the jurisdiction (e). and'oat of '^^^ right of a party to discovery by means of interro- the juns- gatories at common law, is, like the right to discovery in Party may equity, limited to a discovery of matters which tend to interrogate make out the case of the interrogating party. If a party ters which has a case to make out, he may ask any questions, the to make answers to which will advance his own case, though they may also bring out the case of his adversary. A party may administer interrogatories for the purpose of obtain- ing a discovery, if the interrogatories are such that the (a) Horton v. Botf, 2 H. & N. Richardson, 9 B. & S. 516. 253 ; Edwards v. Wakefidd, 6 (c) Pye v. Butterfidd, 5 B. & E. & B. 468 ; Pye v. ButterjkU, S. 836. 5 B. & S. 837 ; Jourdain v. (d) lb. Zychlinski v. Malthy, Palmer, L. E. 1 Exch. 106. 10 0. B. N. S. 838 ; Atkinson v. (b) Bartlett v. Lewis, 12 0. B. Fosbroke, 7 B. & S. 623 ; L. E. N. S. 262 ; Goodman v. Holroyd, 1 Q. B. 631 ; M'Fadzen v. 15 0. B. N. S. 844 ; Chartered Mayor, &c. &c. of Liverpool, Bank of India v. Mich, 4 B. & L. E. 3 Exch. 279; O'Connell-v. S. 82, per Blackburn, J. ; PycY. Barry, Ir. E. 2 0. L. 648. Butterfidd, 5 B. & 8. 838, per (e) Pohl v. Toung, 25 L. J. Crompton, J. ; Dobson v. Q. B. 23. out h case. INTERROGATORIES AT LAW. 263 answers may be reasonably expected to discover matters Chap. III. which will advance the case of the interrogating party, though the answers may also disclose the case of the interrogated party (/). Where interrogatories relate as much to the case of one party as to that of the other, the party interrogated is bound to answer them, although the answers may disprove his case (g). Thus, in an action against a broker, interrogatories ask- ing whether he acted as principal or agent in the transaction in question, and if as agent the name of his principal, were allowed (h). So, also, in an action against a land surveyor for negligence in estimating the value of an estate, he may be interrogated as to what steps he took to estimate the value of the estate (i). So, also, in an action against an attorney for negligence in the conduct of a defeace to an action on a bond, he may be interrogated as to whether he had made enquiry concerning the circumstances under which the bond was obtained and the consideration for the same (k). So, also, in an action for commission upon the sale of goods, it was held, that the defendant was entitled to discovery respecting matters negativing the plaintiff's claim (I). So, also, in an. action for malicious prosecution on a charge of obtaining money under false pretences, the pretences being that the plaintiff had dis- bursed certain monies for defendant's wife, the defendant was allowed to interrogate respecting money transactions of plaintiff with defendant's wife, and the circumstances (/) Whateley v. Crowter, 5 dain v. Palmer, 4 H. & 0. 177. E. &B. 711. See as to practice {h) Thol v. LeasJc, 10 Exch. in equity, supra, pp. 27, 28 ; see 704. as to inspection of documents at (i) Whateley v. Crowter, 5 law, supra, p. 248. E. & B. 709. {g) Goodman v. Eolroyd, 15 {h) Carew v. Davies, ib. C. B. N. S. 839 ; Bayley v. {I) Hew v. HutcUns, 10 0. B. Griffiths, 1 H. & C. 429 ; Jour- N. S. 829. 264 INTERROGATORIES AT LAW. Cliap. m. under which he introduced himself to her (m). So, alsOj in an action for the infringement of copyright, the defen^ dant, who admitted the infringement, was allowed to interrogate the plaintiff as to the damage he had sus- tained, so as to enable him to pay the real amount into court, the only question being the amount of damage sus- tained (n). So, also, in an action for damages for false and fraudulent representations on the sale of a business, and to recover back the sum paid, interrogatories as to the representations made were allowed to be adminis- tered to the defendant (o). So, also, in an action for malicious prosecution on a charge of stealing books, the court allowed interrogatories requiring the plaintiff to state whether or not certain books described were in his possession, and when, where, and for whom he bought them, and the price he paid for them(p). So, also, in an action for breach of an agreement to deliver iip bills of exchange of a certain company, the court allowed the defendant to administer interrogatories to the plaintiff as to the solvency of the company and the amount of damage which he had sustained by reason of the non-delivery of the bills (g). So, also, in an action for malicious arrest and false imprisonment brought against a municipal cor- poration, plaintiff was allowed to interrogate the town clerk whether he caused the plaintiff to be arrested, and by what authority he did so (r). (m) ZycUinski v. Malfby, 10 B. & S. 516; L. E. 3 Q. B. C. B. N. S. 838. 778. (m) Wright v. Ooodlake, 3 H. (r) M'Fadzen v. Mayor, &c. & C. 540. Comp. Jourdain v. &c. of Liverpool, L. E. 3 Bxch. Palmer, 4 H. & 0. 171. 279. See as to what interro- (o) Blight v. Ooodliff, 18 0. B. gatories may be delivered to an N. S. 757. executor who has pleaded plene {p) Stewart v. Smith, L. E. administravit. Peck v. Nolan, 14 2 0. P. 293. It. C. L. App. 32. (q) Dohson v. Richardson, 9 INTERROGATORIES AT LAW. 265 A party will not, however, be permitted to interrogate Chap. III. as to matters which relate exclusively to the case of his Party may adversary. He may not interrogate his adversary as to ^°l^^Z' the manner in which he intends to shape his case, or *" matters as to the evidence by which he intends to support it (s). delate ex- Though a party may interrogate as to matters which will f^t^fL^ advance his own case, the court will not allow interroga- °^, '^'^ , ° aciTersary. tones the tendency of which is to discover how the other party intends to shape his case, without furthering any case which the interrogating party has set up (t). Thus, in Edwards v. Wakefield (u), an action of trover for bills by assignees of a bankrupt, interrogatories asking the plaintiffs the case they intended to set up at the trial, and on what ground they claimed the bills, whether as having been received after notice of bankruptcy, or as haviug been given by way of fraudulent preference, or on any other and on what ground, were disallowed, although the defendants swore that they did not know what acts of bankruptcy were relied on, nor how they would be made liable. So also, in an action for injury to the plaintiff, by the alleged negligence of the defendant, the court would not allow interrogatories to be administered to the plain- tiff as to the circumstances under which the accident happened, the extent of injuiy, the medical attendance, and the charges for it (x). So also, where an application was made at Chambers to allow a railway company to interrogate a person injured on their railway as to his age, (s) Whatdey v. Crowter, 6 to practice in equity, pp.18— 26; E. & B. 711 ; Edwards v. Wake- see also as to inspection of docu- field, 6 E. & B. 462 ; Stoate v. ments at law, supra, p. 247. Bew, 14 C. B. N. S. 209 ; (<) Moor v. Boberts, 2 0. B. Peppiatt v. Smith, 3 H. & 0. N. S. 671. 129 ; Finney v. Forward, 4 H. & (m) 6 E. & B. 462. ,0. 33 ; Jmrdain v. Palmer, ib. [x) Peppiatt v. Smith, 3 H. & 175 ; L. E. 1 Exch. 105. See as C. 129. 266 INTEKEOGATORIES AT LAW. Chap. III. In what case defen- dant in ejectment may inter- plaintiff as to his title. Plaintiff in ejectment may not interrogate defendant as to his title. profession, income, his movements after the accident, the doctors whom he consulted, the nurse who attended him, and every circumstance connected with his case, the judge would not sanction the proposed interrogatories {y). In ejectment, however, if brought against a person who has been long in possession of the premises sought to be recovered by one who is an utter stranger to him, and of whose title he is wholly ignorant, the defendant will be allowed to deliver interrogatories to the plaintiff as to the character in which he sues, and the title on which he relies, or the pedigree which he sets up (0) ; but, as a general rule, a defendant in ejectment cannot be per- mitted to interrogate the plaintiff as to the title which he sets up, unless his affidavit discloses special circum- stances which satisfy the court or judge that justice requires it («). Though a defendant in ejectment may be allowed to inten-ogate the plaintiff as to the character in which he sues, and the nature of the evidence on which he relies, the case is different with the plaintiff in ejectment. A plaintiff in ejectment who claims as heir-at-law, has no right to interrogate the person in possession of the land as to what his title is (6). There is a difference between exhibiting interrogatories to a man who seeks to disturb another in possession, and exhibiting them to a man who is in possession, and is defending that possession (c). The plaintiff in ejectment, however, has a right to interrogate [y) 4 H. & 0. 175, per Martin, B. (z) FlUcToft V. Fletcher, U Exch.. 643 ; Kettlewell v. Dyson, 9 B. & S. 300. See Garle v. Bohinson, 3 Jur. N. S. 633. (a) Stoate v. Sew, 14 0. B. N. S. 209 ; Pearson v. Turner, 16 0. B. N. S. 160; Provident Assurance Co. v. M'Inerheny, IS W. E. 683. (5) Eorton v. Bott, 2 H. & N. 249. See Blyth v. L'Estramge, 3 P. & F. 154. (c) Ketthwell v. Dyson, 9 B. & S. 300. INTERROGATORIES AT LAW. 267 the defendant, in order to discover whether he be the real Chap. III. defendant or not ; and if it appear that he is the nominal defendant only, the claimant has a right to ask who the real defendant is (_d). The rule that a defendant in ejectment may, in special In wtat . 11--/Y. 11 -i-i ^^^^ defen- cases, interrogate the plamtin as to the character m which dant in he sues, and the nature of the evidence on which he interrogate relies (e), will not be extended to other actions besides plaintiff as to his ejectment (/). The defendant in an action of trover, for title. example, will not be allowed to interrogate the plaintiff as to the nature of the title by which he claims the goods (g). But when, in an action of trover, the defendant admits a prima fade title on the part of the plaintiff, the defendant may interrogate the plaintiff as to matters which may show a defence to the action, by showing that a fraud has been committed on him under circumstances which may preclude the plaintiff from relying on his primA facie title Qi). Though a party is not entitled to a discovery from his Plaintiff adversary, of the manner in which he intends to establish interrogate his case, or to the evidence which relates exclusively to his ^^*™t^f case, a plaintiff is entitled to a discovery from the de- nature of . , , . , his case. fendant of the nature of the case on which he rehes ; he Ls entitled not only to the discovery of that which con- stitutes his title, but also to a discovery of everything which may enable him to defeat the title which is expected to be set up against him {i). He has a right to know what facts the defendant intends to prove in order to meet them {h). Hence, where the defence was a com- (d) Sketchley v. Oonolly, 11 (») Goodman v. Eolrmjd, 15 yf -^ g.^3 0. B. N. S. 839; Bayley v. W Supra, p. 266. GriJitH 1 Jl. & C. iSi. See as (/) Finney v. Fonvard, L. E. to the practice in equity, supra, lExch. 6; 4H. &0. 33. pp. 33, 34. , ^ j^_ {k) Bayley v. Griffiths, IH. & (A) Derby Bank v. Limsden, 0. 434. L. E. 5 0. P. 107. 268 INTERROGATORIES AT LAW. Chap, m. position deed under the Bankruptcy Act, 1861, the plain- tiff was allowed to interrogate the defendant upon various circumstances as to the parties suggesting the deed, the trustees, its execution by him and them, and the manner by which its execution by the creditors was obtained, for the purpose of showing that it was fraudulently ob- tained (I). So also, it was held, in Goodman v. Hol- royd {th), to he no objection to interrogatories, that the answers, if in the affirmative, would show that the execu- tion of a deed upon which the defence was founded, was obtained by fraud. So also, where an action was brought for the recovery of a debt, and the defendant pleaded his discharge under the Bankruptcy Act, the plaintiff was allowed to administer interrogatories for the puipose of showing that the bankruptcy of the defendant was a fraudulent bankruptcy, and that the certificate obtained under it was no bar (n). Allowance The court or judge exercises a general discretionary of inter- .,_. . ./nt'^i-i rogatories power m allowing interrogatories (o). It is lor the judge discretion ^* chambers to exercise his discretion as to whether there of the court is a sufficient ground for allowing them to be put, regard being had to the circumstances of each particular case and the nature of the proposed interrogatories ; and the court will not interfere unless it is satisfied that that dis- cretion has been exercised improperly (jp). In the exercise of its discretion in allowing interroga- tories, the court is bound to see that no scandalous or impertinent questions are put. The rule as to interro- (Z) Bayley v. Griffiths, 1 H. & C. B. N. S. 737 ; Atkinson v. 0. 434. Fosh-nke, 7 B. & S. 623. (m) 15 0. B. N. S. 839. (p) Edmunds v. Chreenwood, (m) Bartlett v. Lewis, 12 0. B. L. E. 4 C. P. 73 ; Vilkhoisnet v. N. S. 249. ToUn, ib. 189 ; Inman v. Jen- (o) TupUng v. Ward, 6 H. & kins, 39 L. J. C. P. 258. N. 749 ; Stern v. Sevastopuh, 14 INTERROGATORIES AT LAW. 269 gatories is to allow all questions to be put that are Chap. III. material, botid fide, and not scandalous. If the court is satisfied that the questions are put Tnald fide, or with a vexatious or improper purpose, it will not allow them. But if that is not the case, the party interrogated should be bound on his oath to say that he believes his answer will be evidence against him in such a way that he is protected from answering (g). The court will not, as a general rule, allow inter- rogatories where the action is for slander, and the effect of the interrogatories is to make the defendant admit that he used the slanderous words imputed to him (r). But if a special case be made out, interrogatories will be allowed to be administered in cases of slander. In a case, for instance, where it was clearly shown that the plaintiff had a good cause of action for slander, but had no means of ascertaining the precise terms in which the slander was uttered, except by extracting them from the defendant himself, interrogatories were permitted to be administered to him (s). In Tupling v. Ward (t), an action of libel, the court, in the exercise of its discretion, and under the peculiar circumstances of the case (u), disallowed interrogatories, asking defendant, who was the publisher, whether he knew the composer, and who he was, and whether the defendant was indemnified, &c., &c. In other cases, how- ever, interrogatories asking a defendant whether he has published the libel have been allowed (x) ; and where the (g) M'Fadzm v. Mayor, &c. 631. &c. of Liverpool, L. E. 3 Exch. it) 6 H. & N. 749. 279. (m) See Bartlelt v. Lewis, 12 (r) ^tern v. Sevasfopuh, 14 0. B. N. S. 263, per WiUes, J. 0. B. N. S. 737. W inman v. Jenkins, 39 L. J. (a) Atkinson v. Fosbrooke, 7 G.'B.'ibi; Bowdeny. Alhn,\h., B. & S. 623 ; L. E. 1 Q. B. Exch. 217. 270 INTERROGATORIES AT LAW. Chap. III. real question between the parties in such action is not the publication, but the truth, of the libel, the allowance of the question is proper (i/). Interroga- It is no ground of objection to interrogatories that the lowed, answers, if given in the affirmative, would make the party answOT ' ^ interrogated liable to a criminal prosecution, though it mayincri- may be a good ground for his refusing to answer them (z). render If the interrogatories are put bond fide for the purpose of to fOT-'* ^ discovery, and are relevant to the matter in issue, they feiture. may, in the discretion of the court or judge at chambers, be allowed, although the answers to them may tend to incriminate the party answering (if answered in one way), leaving to such party the option of refusing to answer on that ground. But where such interrogatories are sought to be put, the court or the judge at chambers will require a stronger case for allowing them than is requisite in ordinary cases, and such interrogatories will not be allowed on the common affidavit only, but some special circum- stances must be laid before the judge, by affidavit or otherwise, to induce him to order them (a). If it appear that the interrogatories are not put bond fide for the pur- pose of obtaining information in the action, but are put with the ulterior object of showing that the party inter- rogated has committed a criminal offence, the court wUl, in the exercise of its discretion, disallow them (6). {y) Inman Y. Jenkins, 39 Ti. J. Liverpool, ib., 3 Exoh. 280; 0. P. 258 ; but comp. Metro- Bowden v. Allen, 39 L. J. Exch. politan Saloon Omnibus Go. v. 217. Hawkins, 4 H.* & N. 150, supra, (a) Vilhhoisnet v. Tdbin, L. E. p. 7. 4 C. P. 189, 191 ; Inman v. (z) Osborn v. London Dock Jenkins, 39 L. J. C. P. 259. Co., 10 Exch. 698 ; Baiilett v. See Edmunds v. Greenwood, ib., Lewis, 12 C. B. N. S. 249; 75. Bickford v. Darcy, 4 H. & .0. (5) Baker v. Lane, 3^ H. & 541 ; L. E. 1 Exoh. 356 ; 0. 552 ; Bickford v. Darcy, 4 M'Fadzen v. Mayor, &c. &c. of H. & 0. 541 ; L. E. 1 Excb. 356 ; INTERROGATORIES AT LAW. 271 In one case (c) interrogatories were allowed, though Chap. III. the answers might render the party interrogated liable to a forfeiture ; but in other cases (d) interrogatories have not been allowed, which would subject him to a for- feiture. If, however, the interrogatories have been allowed, and he swears that the answers might subject him to a forfeiture, he will not be required to answer further (e). In an action for the infringement of a patent, it is no ground for refusing interrogatories that the answer of the defendant may expose his customers to actions (/). The interrogatories should be confined to such matters interroga- as are relevant to the case set up, and would be evidence ^jeTonfined in the action (g). The court will not allow inteiTOgatories *° matters unless it sees clearly that the answers are or may be to the material (h). Thus, in an action for commission upon a particular contract between defendants and A., the de- fendants were not allowed to ask respecting the terms of other contracts entered into with them by the plaintiff, either for A. or for other persons (i) ; and in an action against A. and B., as acceptors of a bill of exchange, A., having pleaded that it was accepted by B. in the partnership name of A. and B., in fraud of A., and for other than partnership purposes, inteiTogatories asking whether A. was ever in partnership with B., and inquiring generally into the proceedings of the partnership, were Edmunds v. Greenwood, ib., 4 149-160. C. P. 75; Villeboisnet v. Tobin, (/) Tetley y. Eaaton, 18 0. B. ib., 189. 643. (c) Ohestery.W(xrtley,\T C."&. {g) Edwards v. Wakejield, 6 410. E. & B. 468. (d) May Y. Eawkins, nBx.ch. {h) Morris v. Bethell, L. E. 213 ; Fye v. BuUerfield, 6 B. & 4 0. P. 766, per Brett, J. g goo (i) Rew V. Hwtchins, 10 C. B. (e) Pye T. BuUerfield, 5 B. & N. S. 829. See ZychUnski v. S. 829 ; M'Mahon v. Ellis, 10 Maltby, ib. 838. Ir. C. L. 120 ; supra, pp. 272 INTERROGATORIES AT LAW. Chap. III. disallowed (k). So, also, where, to an action on a bill of exchange, the case of the defendant was that his alleged signature was a forgery, the court refused to allow the plaintiff to interrogate the defendant as to whether he had not, on a former occasion, authorised his bankers to pay a bill drawn and accepted in precisely the same manner as the bill which was the subject of the action, there being no allegation on the part of the plaintiff that he had discounted the bill on the faith of its being the genuine acceptance of the defendant (l). Interrogatories are not considered relevant unless they relate to the substance of the action. The interrogatories must be ad rem with reference to the action in which it is sought to deliver them, and not with reference to a matter not raised by the pleadings (m). Thus, in an action for the breach of an agreement to pay the stamp duty on letters patent, whereby they became void, and the plaintiff lost the profits thereof, the court refused to allow the defendant to administer interrogatories to the plaintiff for the purpose of showing that the letters patent were of no value (n). The inter- rogatories were refused in that case, on the ground that they were only relevant for the purpose of taking an account between the parties (o). To what The object of interrogatories, it must be remembered (^), interroga- J^^ ^0 give the interrogating party information upon mat- tones must ^gj,g peculiarly within the knowledge of the other party, fined. and which may assist him in establishing his case, and not, as in equity, to try the case upon admission by the {k) Rohson v. Crawley, 2 H. & H. & 0. 177 ; L. E. 1 Exch. 102. N. 766. (n) lb. (I) Morris v. JBethell, L. E. (o) Ddbson v. Richardson, 9 4 0. P. 766. B. & S. 518, per Lush, J. {m) Jourdain v. Palmer, 4 (p) Supra, p. 260. INTERROGATORIES AT LAW. 273 other, nor to break down the case set up by him (g) ; Chap. III. hence matters of law should not be asked by him (r) ; and though for the purpose of discovery within these limits the interrogated party is in the position of a witness, yet he is so only for that purpose (s). Therefore, though in- ten-ogatories asking the plaintiff respecting conversations relating to the subject-matter of the action between him and a servant or agent of the defendant were allowed (t) ; yet, in another case, interrogatories upon matters known to the interrogated party only through his agents, and equally within the knowledge of the agent of the other, were disallowed {u). So, interrogatories upon matters of mere cross-examination wiU not be allowed (x), nor inter- rogatories for the purpose of contradicting a written in- strument (y). It is the practice to allow an interrogatory as to docu- Interroga- ments in the possession of the party interrogated, which to docu- relate to the case of the interrogating party (z). In Mew V. Hutchins (a), an interrogatory asking whether the plaintiff had had a correspondence relating to the subject- matter in dispute, and asking for the dates and names of the places and the correspondents, was allowed. But if a party, who is interrogated, admits that he has docu- ments in his possession relating to the matters in dis- pute, he cannot be required to set out the contents of (q) Lush. Pr. 855. {x) Bew v. ffutchim, 10 0. B. (V) See WhateUy v. Crawford, N. S. 829 ; PeppiaU v. Smith, 25 L. J. Q. B. 165, per Lord 3 H. & 0. 132. Campbell; see also supra, p. {y) Moor v. Roleris, 2 0. B. 162, as to practice in eqiiity. N. S. 671. («) Lusli. Pr. 856. (z) Lush. Pr. 856. See ({) Bew V. Hutchins, 10 0. B. Adams v. Lloyd, 3 H. & N. N. S. 829. 351. (u) Bird V. Malzy, 1 0. B. (a) 10 0. B. N. S. 829. N. S. 308. ments. 274 INTERROGATORIES AT LAW. Chap. m. Form of interroga- tories. Mode of applica- tion for leave to deliver interroga- tories. Time of applica- tion. the documents (6). Application for inspection must be made under sec. 50 (c). If, however, a primd facie case is shown that a document is lost, interrogatories as to its contents will be allowed (d). If a party admits the posses- sion of documents, but states that they relate exclusively to his own case, he will not be compelled to give a descrip- tion of them (e). The interrogatories should be concise and simple in form (/), and comply with the rules above laid down ; for if they are unnecessarily prolix, or go into irrelevant mat- ter, they may, on the application for leave to deliver them, be disallowed altogether, although some may be free from objection (g). They should be entitled in the court and cause, and be numbered consecutively (h). The application for leave to deliver interrogatories may be made either to the court or to a judge in chambers, but it should in general be made to the latter (i) ; if made to the court, the rule is nisi only (k), and the court will only determine the principle, leaving the form and the par- ticular interrogatories to be settled at chambers (I). A copy of the proposed interrogatories, with the rule nisi or summons, should be served on the opposite party (m). Unless under special circumstances, application for leave to deliver interrogatories should not be made by the (b) Herschfleld v. Clarice, 11 Exch. 712 ; Scott v. Zygomata, 4 E. & B. 483. (c) Ibi Supra, p. 257. (d ) Wolverhampton Water- worJcs Co. V. Eawksford, 5 0. B. N. S. 703. (e) Adams v. Lloyd, 3 H. & N. 351. See as to practice in equity, supra, pp. 171-175. (/) Euatler v. Freeland, 2 N. E. 396. {g) Bobson v. Crawly, 2 H. & N. 766; Tupling v. Ward, 6 H. & N. 753 ; Philiiipa v. Lewin, 34 L. J. Exch. 37. (A) Lush. Pr. 857. \i) Lush. Pr. 857. (&) Thol v. Leaak, 10 Exch. 704. {I) Zarifiy. Thornton, 26 L. J. Exch. 214. (to) Lush. Pr. 857. INTEREOGATOEIES AT LAW. 275 plaintiff before declaration (n), or by the defendant before Chap. iii. plea (o) ; but it may be made by either party at any subsequent time without any special circumstances being shown (p). The application for such order should be made upon an Affidavit. affidavit of the party proposing to interrogate, and his attorney or agent, or in the case of a body corporate, of theii- attorney or agent, stating that the deponents or deponent believe or believes that the party proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause from the discovery which he seeks, that there is a good cause of action or defence upon the merits, and if the application be made on the part of the defendant, that the discovery is not sought for the purposes of delay; provided that, where it shall happen from unavoidable circumstances that the plaintiff or de- fendant cannot join in such affidavit (q), the court may, if they or he shall think fit, upon affidavit of such circum- stances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit (r). If a party sues or defends in person, an affidavit by him alone will be suffi- cient (s). If the application be made by the plaintiff, he must swear that he has a good cause of action on the merits (t) ; and if made by him before declaration, the (?j) Croomes v. Harrison, 5 held " unavoidable ciroum- E. & B. 984 ; Jones v. Pratt, stances," Adair v. Simpson, Ir. 6 H. & N. 697 ; Morris v. Parr, Eep. 1 0. L. 577. 6 B. & 8. 204 ; Atkinson v. (r) 17 & 18 Vict. c. 125, s. 52. FoshroJce, 7 B. & S. 618. (s) Oxlade v. North- Eastern (o) Martin v. Hemming, 10 Railway Co., 12 0. B. N. S. Exch. 478. QeeMwrisy.Parr, 350. 6B &S 204 {t) May Y. Hawkins, WEsLoh., (p) James v. Bams, 17 0. B. 210; Dooliii v. Dixon, 16 W. E. 596. ''96. (a) See, as to what were not .276 INTERROGATORIES AT LAW. Chap. Ill, affidavit should show what is the cause of action in order that the court or judge may determine as to the relevancy of the proposed interrogatories (u). If made by the de- fendant before plea, the special circumstances under which the application is made should be brought before the court by affidavit (x). The costs are in the discretion of the court or judge making the order ; if the order is silent as to costs, costs will not be allowed as costs in the cause for the interro- gating party, though he is successful (y). The answers should not be general, but should apply specifically to each interrogatory (z). The party answering may set up any matter which privileges him from answer- ing, but he cannot, by a denial of the case of the other party, escape answering any interrogatories which are relevant to the case (a). If either party omit without just cause sufficiently to answer the interrogatories, he is guilty of a contempt of court, and may be proceeded against by attachment (b). Costs. Answers. Attach- ment for want of answer. (m) Oroomea v. Harrison, 5 E. & B. 984. See Morris v. Parr, 6 B. c& S. 204. (a;) Martin T. Hemming, 10 Exch. 478 ; Naghten v. Midland Great Western Bailway Co., 8 Ir. 0. L. App. 55 ; M'Kenna v. Chester and Holyhead Bailway Co., ib. 26. {y) Smith v. Oreat Western Railway Co., 6 E. & B, 405. See also Elstot v. Honeyioill, 20 L. T. N. S. 227. (z) Chester -f. Wortley, 18 C. B. 239. (a) Oeary v. Buxton, 29 L. J. Exch. 280. See further on the subject, Lush. Pr. 858. (i) 17 & 18 Vict. c. 125, S.51. See Lush. Pr. 858. PAKT m. INSPECTION OF PROPERTY. CHAPTER I. INSPECTION IN EQUITY. The jurisdiction of the Court of Chancery in discovery ^^'^v- J^- is not limited to a discovery of matters within the know- ledge or papers in the possession of a party to the suit. The court will, on a proper case being made out, and where the interests of justice require it, order a party to the suit to permit an inspection of his real or personal property by the party making the application, or by com- petent persons employed on his behalf. If without in- spection the justice of the case cannot be attained, the court has authority to order inspection, taking care to impose as little inconvenience as possible on the party on whom the order is made (a). The purpose of inspec- tion is to inform the conscience of the court, and enable it to do justice between the parties (b). The foundation of the right to inspection is the necessity that the party (a) Kynaston v. East India E. 783. Co., 3 Sw. 265, per Lord Kldon ; (6) 3 Sw. 261 , per Lord Eldon ; Bennitt v. Whiiehouse, 28 Beav. Whaley v. Brancker, 10 Jur. N. 122; Barlow y. Bailey, 18 W. S. 535, per Kindersley, V. C. 278 INSPECTION ^''^P- ^- who makes the application should be allowed what he asks in order to prove his case (c). Inspection If a person is making use of his property to the injury of his neighbour, the latter is entitled to an inspection in order to ascertain the extent of the injury (d). The owner of a mine, for example, is often unable to obtain clear and satisfactory proof that his neighbour is tres- passing on his mine, though he may have fair presump- tive evidence of the fact. The court will, in such cases, upon a fair primd facie case being made out, order the owner of the adjoining mine to permit an inspection of his mine to be made by proper persons named on behalf of the plaintiff (e). In Lewis v. Marsh (/), the defen- dants, lessees of a coal mine which was entered and worked by means of a shaft in an adjoining mine belong- ing to defendants, were ordered to grant inspection to the lessors, who had filed a bill for an account against them, alleging that they had worked more coal than they were entitled to do under the lease, and had not left adequate supports, as they had stipulated to do in the lease. Inspection The Owner of a patent is often unable to obtain clear of loaclil* 1 • ^ nery. and satisfactory proof that his patent is being infringed, though he may have fair presumptive evidence of the fact. In such cases a court of equity will, upon a fair primd facie case being made out, order the defendant to a,Uow an entry into his premises by proper persons named on behalf of the plaintiff for the purpose of ascertaining by inspection whether his machinery is an infringe- (c) EynasUm v. East India Bailey, 18 W. E. 783. Co., 3 Sw. 262; Lewisy. Marsh, (e) lb.; LordLonsdakY.Cur- 8 Ha. 99 ; BenniU v. Wliite- win, 3 Bligh, 168, n. ; Walker v. house, 28 Beav. 122. Fletcher, ib. 172, n. ; Att.-Gm. {d) BenniU v. Whitehoti^e, 28 v. Chamhers, 12 Beav. 159. Beav, 122. Comp. Barlow v. (/) 8 Ha. 97. OF PROPERTY. 279 ment (g). Where the defendant deals in machines which Chap. I. are, as is alleged by plaintiff, an infringement of his patent, the order will not go to direct him to allow an inspection of all machines in his stock, but will direct him to verify on affidavit the several kinds of machines that he has sold or exposed for sale, and to produce one machine of each class for inspection Qi). Where it is necessary a similar inspection will be ordered to be made of the plaintiff's premises and machi- nery by persons named on behalf of the defendant (i). So, also, in Ennor v. Barwell (k), where a bill was filed Inspection to restrain the defendants from intercepting the flow of houses,' &c. water to the plaintiff's mine, the plaintiffs were held entitled to an inspection. In East India Co. v. Kynaston (T), where the respon- dent, an impropriate rector, had, by decree of the court, been found to be entitled to the tithes according to the value of warehouses in London occupied by the appellant, and which had never been rented, the court made an order upon the appellant to permit inspection for the purpose of ascertaining the value. So, also, where a man has a right to receive a certain sum in the pound on the value of trees, the court has ordered inspection ; so, in the case of a commission on diamonds, inspection would be ordered of the diamonds. So, in the partition of a house, the tenant having a right (g) Brown v. Moore, 3 BUgh, N. E. 505. 178, n. ; Bovill v. Moore, 2 Coop. (i) Walker y. Fletcher, 3 Bligh, C. C. 56, n.; Morgan y. Seaward, 178, n. ; Bussdl v. Cowley, 1 1 Webs. 169 ; Btissell v. Cowley, Wets. 459; Davenport v. Jepson, ib. 458. See, as to the form of 1 N. E. 308. See, as to form of the order, Davenport v. Jepson, order, Davenport v. Jepson, ib. 1 N. E. 308. (^) 1 D. F. & J. 529. {h) Stngpr Manufacturing Go. (l) 3 Bligh, 153. V. Wilson, 13 W. E. 560; 5 280 INSPECTION ^''^P- J- to the exclusive possession of it during a term, the court would, on a bill for partition, order an entry for the purpose of determining in what manner the house could be divided, or what must be paid for owelty of partition (m). Removal of The court will, as ancillary to the power to order tions to inspection, order the removal, when necessary, of obstruc- mspection. ^jg^g ^q ^j^g inspection. In Lord Lonsdale v. Curwen (n), the defendant had worked his own mine so as by rubbish, &c., to obstruct the passage to the spot where inspection was sought. An order was made that the viewers should inspect the mine, and that the defendant should remove the obstruction. So, also, in Walker v. Fletcher (o), the defendants had in working their own mines, either boiid fide to keep out the water, or colourably to prevent the inspection, erected framed dams or barriers, the effect of which was to drown the part of the mine where it was alleged that the encroachment had taken place. The order made was that the defendant should remove the framed dams and barriers as the viewers should direct, and that the viewers were to cause the same to be removed, unless they should be of opinion that the collieries would be thereby destroyed. Sample. The court has also jurisdiction on motion to order a defendant to deliver up samples for the purpose of analysis. Thus, where the plaintiffs were the owners of a patent for type-founding, and the defendant was a printer who used type alleged to be colourable imitations of the type patented by the plaintiffs, the defenda^t was ordered to deliver up a sample for the purposes of analysis (p). (m) 3 Sw. 264, per Lord {p) Patent Type Founding Co. Eldon. See, also, Att.-Oen. y. v. Walter, Jolms. 727. See, for Elliott, 1 Pr. 377. a, form of the order, Davenport (n) 3 Bligli, 168, n. V. Jepson, 1 N. K. 308. (o) lb. 172, n. OF PROPERTY. 281 On an application for inspection the court is bound to Chap. i. exercise a proper discretion (g), and must look at the inspection nature of the suit, the purposes for which it is sought, and & ^t^f^i, ■whether the case is such that the court is authorised in cretion of interfering with the property of the party against whom the application is made (r). The application will not be granted unless the court is satisfied that there really is a case to be tried at the hearing of the cause, and that the inspection asked is of material importance to the case of the party making the application as made out by his evidence (s). In a case where the plaintiff filed a bill to restrain a nuisance, and applied for liberty to inspect the defendant's works, to ascertain the particular products used in the manufacture of chemicals which occasioned the nuisance, a motion for inspection was refused, on the ground that the proof of the nuisance might be obtained from external sources, without entering on the defendant's property (t). If the court is satisfied that there is really a case to be tried at the hearing of the cause, and that the inspection asked is of material importance to the case of the party who makes the application, inspection is almost a matter of course {u). If a fair primd facie case be made out that a party is trespassing on the rights of another, and that an inspection is material for the purposes of the cause, the mere denial that he has committed or is committing a trespass goes for nothing (x). He must (?) Piggott Y. Anglo-Amtrican Telegraph Co., 19 L. T. N. S. 46, Telegraph Co., 19 L. T. N. S. per Giffard, L. J. 46. See Att.-Gen. v. Elliott, 1 {t) Barlow v. Bailey, 18 W. Pr. 377. E- 783. (r) Barlow v. Bailey, 18 W. (m) See Siriger Manufacturing E. 763. Hee Att.-aen. t. EllioU, Co. y. Wilson, 13 W. E. 560. 1 Pr. 377. (^) Bennitt v. Whitehouse, 28 (s) Piggott v. Anglo- Arnericari, Beav. 122. 282 INSPECTION OF PEOPEETT. Chap. I. show positively that no injury has been done {y), or at least that injury will be done to him by his being com- pelled to submit to the inspection (z). Inspection An order for inspection may be made on an interlocutory motion. application (a). But it is not according to the course of the court to make, upon interlocutory application before the hearing, an order authorising a man to, break up the soil of another for the purpose of inspection (6). In a case where Stuart, V.-C, had, on interlocutory application, made an order in which he had directed that the plaintiff should bfe at liberty to cut trenches in the defendant's ground, in order to ascertain the geological formation of the ground, the Lords Justices were of opinion that the order was too extensive (6). Inspection An Order to inspect may be granted at the same time sanfe time ^ ^^ interim order for an injunction, but if an under- sis injimc- taking is offered, and time is asked to answer affidavits tion. ... an inspection will not be ordered adversely on the motion for an injunction. But if no affidavits be filed by the defendant before the time appointed, an inspection will, upon the renewal of the application, be ordered upon the undertaking of the plaintiff to answer such damage as the court will award (c). Effect of Laches sufficient to defeat the right to an interlocutory ac es. injunction is no bar to an order in the same matter for inspection or sample {d). Costs. The costs of inspection must be borne by the party obtaining it (e). {y) Bennitt v. Whitehouse, 28 (6) Ennor y, BarweU, ib. Beav. 122. (c) Whaley v. Branckar, 10 (z) Piggott v. Anglo- Atnerican Jur. N. S. 535 ; 12 W. E. 695. TeUgraph Co., 19 L. T. N. S. [d) Patent Type Founding Co. 46. V. Walter, Johns. 730. (a) Att.-Oen. v. Chambers, 12 (e) Bennitt v. Whitelumse, 28 Beav. 159 ; Ennor v. BarweU, 1 Beav. 122. D. F. & J. 628. CHAPTEE IT. INSPECTION AT LAAV. The courts of common law have, by the Common Law ^^^^- ^^- Procedure Act (17 & 18 Vict. c. 125), been empowered to Under J. ,. -i-,,^„, . „, . Common order mspection. By the o8th section of that statute it Law Pro- is declared, that either party to an action shall be at """^""^ ^°*' liberty to apply to the court or a judge for a rule, or order for the inspection, by the jury or himself, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute. In granting an order under the section, the court wiU take care to impose as little inconvenience as possible on the party to whom the order is made ; and will, when necessary, require the party who makes the application to complete the inspection within a certain time, and give security to repair all damages and reinstate the premises (a). The section gives as ancillary to the power to order inspection, the same power to order removal of obstacles, with a view to inspection, which is exercised by courts of equity, as ancillary to their power of ordering in- spection (b). Thus, in an action for encroachment on the plaintiffs mine, the defendant was ordered to allow him to (a) See BenneU v. Griffiths, 3 (5) B,tnnat v. Oriffitha, 3 EI. El. & El. 467 ; White v. Storey, & El. 467. 43L. T. 91. 284 INSPECTION Chap. 11. make a drift-way through a wall at the end of defendant's mine, which prevented him from ascertaining whether or not the defendant had encroached upon his mine (c). The costs are in the discretion of the court or judge making the order (d); if no order is made as to them, they are not costs in the cause for the party who gets inspection, though he is successful (e). Inspection The jurisdiction to order an inspection in patent cases " ^^ " was conferred on the courts of common law by the 15 & 16 Vict. c. 83, s. 42 (/). The Act gives the same power to common law courts as was previously possessed only by courts of equity (g). An application for inspection under the statute may be obtained before declaration (h). Affidavit. An application for inspection should be supported by an affidavit, that inspection is material and really wanted for the pui-pose of the cause (i). If made by the plaintiff, the affidavit should show that the thing complained of exists, and that there is reasonable ground for believing that it is an infringement {k). It should also show what the patent is for, that the court may judge of the necessity of the inspection (F). Sample, It has been held that a court of common law is not {c) Bennett Y. Griffiths, 3M. & {i) lb. ; Shaw v. Bank of El 467, supra, p. 280. England, ib. Exch. 26, 210 ; (d) 17 & 18 Vict. c. 125, Meadows v. Kirhman, 29 L. J. s. 57. Exch. 205 ; Patent Type Found- (e). Smith Y. Great Western ing Co. v. Lloyd, 5 H. & N. Railway Co., 6 E. & B. 407. 192. {/) See Vidi v. Smith, 3 E. & (/c) Shaw v. Bank of England, B. 969. 22 L. J. Exch. 26, 210 ; Batent {g) Holland v. Fox, 3 E. & B. Type Founding Co. v. Lloyd, 5 983 ; Batent Type Founding Co. H. & N. 192. V. Lloyd, 5 H. & N. 199. (l) Meadows v. Kirhman, 29 {h) Amies Y. Kelsey, 22 L. J. L. J. Exch. 205. a. B. 84.- OF PROPERTY. 285 empowered by the clause to order a sample to be delivered Chap. II. up for the purposes of analysis (■m). But the judgment seems to have been founded on the assumption that a court of equity would not have made such an order (n). The Act provides for applications by the defendant ; in Applica- a case betoi-e the Act the court refused to order the fendant plaintiff to produce a specimen, on the ground that that would have been compelling him to disclose his own evidence (o). (to) Patent Type Founding Co., Y27, supra, p. 280. T. Llmjd, 5 H. & N. 201. (o) Crofts y. Peach, 1 Webs. (n) But see Patent Type 268. Founding Co. T. Walter, Johns, INDEX. ACCOUNTS how must be set out in answer, 223 — 228. by executor, 226. ACTION AT LAW, discovery in aid of or defence to, 8. bill of discovery before bringing, 84. ADMISSIONS IN ANSWER, application for production founded on, 55, 99, 100. of relevancy of documents, 101. afladavit admissible to qualify, as to documents, 69, 70. Ai'FIDAVIT. SeeAiriDAViT as to Documents. Answer. admissible to qualify admissions as to possession, relevancy, &c., of documents, 69, 70. for inspection of documents at law, 244, 252, 253, 254. for discovery of documents at law, 259. for inspection of property at law, 284. AFFIDAVIT AS TO DOCUMENTS, application for, made at chambers, 58. how made, 58, 39. form of, 59. order for, 57, 58. party whether bound to produce or not must make, 59, 60. by whom made in case of a coi-poration, 92, 221. extension of time for making, 60. must describe the documents, 60. sufficiency and insufficiency of, 61, 62, summons to consider, 62, 63, 64. further, required if it be insufficient, 61. further, not required, if it be technically sufficient, 62, 64. unless on amending biU, 64, 63. or filing concise statement, 65. 288 INDEX. "SfFIDAYIT AS TO DOCUMENTS— conWnuei. statements in, as to relevancy, &c., of documents, as a general rule, conclusive, 62. objections to production should be stated in, 68. cross-examination on, not allowed, 56. evidence not admitted to contradict, 56. ordered at any stage of tbe cause, 65, 66. cannot be required from next friend, 66. sufficiency of, depends on exigency of order, 222. AGENT, documents in hands of, are in power of principal for purpose of production, 37, 107. unless agent is agent for other parties also in respect of them, 37, 107, 108. not ordered to produce documents in absence of principal, 114. except in special cases, 114. communications with or by agent are not privileged communica- tions, 144. unless made in reference to Ktigation, 25, 130, 131, 132, 145, 146. or unless the agent is the mere channel of com- munication with legal adviser, 130, 144, 146. in what cases a party who is bound to answer must m.ake enquiries from his, 211, 212. AGREEMENT, party may by, deprive himself of his right to discovery, 16. or of his right to object to discovery, 158, 159. ALIENAGE, bin to discover, 156. ALIEN ENEMY, plea of, 185. to bUl of discovery in aid of defence, 185. AMENDMENT OF BILL, by adding prayer for relief, 87. striking out prayer for relief, 87. adding plaintiff, 88. adding parties, 95. not a waiver of application for production, 57. INDEX. 289 ANSWEE, right of priority to, as between plaintiff and defendant, 51. plaintiff may lose right to priority to, by amending bill, 51. production of documents not obtained by defendant until he has filed, 55. voluntary, by defendant, 54, 217. party must, as to knowledge, information and belief, 208, 209, 210, 211. in what cases party bound to make inquiry where he has no knowledge, :211, 212. party not bound to, as to his own recent acts, 212. as to matters equally accessible to the interro- gating party, 213. party not bound to, unless interrogated, 214. may contain wlnt, 214. to interrogatories, 214, 215, 216, 217. in amended biLL, 217. in general terms, when sufficient, 216, 217. sufficiency and insufficiency of, as to documents, 61, 62. reference to documents in, 220. as to possession of documents when abroad, 215, 216. where documents are numerous, 222. where party is required to set out intricate or voluminous accounts, 222, 223, 224, 225. sufficiency of, where a balance-sheet of accounts or abridged account is given, 225, 226, 227. party bound to inspect and, as to contents of documents in his possession or power, 220, 221. statement of contents of documents on faith of information derived from others is not sufficient, 221, 222. defendant required to set out documents in his, need not do so, 220. m.ode of answering interrogatories as to dooimients, 53. impertinence in, 218, 219, 220. schedules to, 227, 228. objection to production of documents should be stated in, 68. of party who objects to discovery on the ground of professional confidence, 195, 196, 197. on the ground that it may subject him to pains or penalties, 198, 199. on the ground that the discovery sought is of matters which relate exclusively to his own case or title, 171 — 176, 200. on the ground of joint ownership of other parties in documents, 201. V 290 INDEX. ANSWEB^{continued). party may by, object to discoyery tbougb the objection appears on the face oftbebiU, 201. defendant may by, decline answering any interrogatory from ■whicb he might have protected himself by demurrer, 201, 202. party mnst, notwithstanding answer may tend to degrade his character, 150, 151. must be full when defendant submits to answer, 202, 203, 204. even though he be improperly made a party to the biU, 204. except answer may tend to criminate or expose him to penalties, 205. or would be a disclosure of matters of professional confidence, 205. or would be a disclosure of evidence relating exclu- sively to his own case or title, 205. or where discovery would be immaterial, 205, 206. in support of plea where necessary, 187, 188, 189, 190. as to documents accompanying plea, 191, 192. to what facts, in support of plea should extend, 192. extending to parts of matter covered by plea, 193. in support of plea must be full and clear, 193, 194. in subsidium, 194. party cannot be cross-examined on admission in, 66. evidence not admissible to contradict, 56. suflEciency of, not admitted by application for production of documents, 57. effect of no, is to traverse plaintiff's case, 218. except in particular cases, 218. whether documents can be read apart from, 4. after being filed is publici juris, 44. copy of, 44. brief of, 44. AEBITEATION, discovery in aid of, 10. STommons for production of documents in, 66. AEBITEATOES, where proper parties, 90, 147. how far protected from discovery, 147. ATTACHMENT, for not making af&davit of documents, 63, 64. for not answering interrogatories at law, 276. INDEX. 291 ATTOENET. See Solicitob. ATTOBNEY-GENEBAL, not bound to give discovery on oath, 94. BAILEE, discovery of goods pawned by, 29. BANKBTJPT, should not be a party, 91, 92. unless he be charged with fraud, 91, 92. may file a bUl of discovery in defence to action at law by creditor, 92. BILL OF DISCOVEBY, distinction between, and bill for relief, 11. in aid of or defence to action at law, 7, 8, 9. in aid of compulsory arbitration, 10. in aid of proceedings before Privy Council, 10. in aid of proceedings before Probate Court, 10. in aid of proceedings in a foreign court, 10. in aid of other jurisdictions, 10. does not lie in aid of action for personal tort, 6. does not lie where the whole object of bill is to subject defendant to penal consequences, 6, 152. in defence to action at law cannot be filed by a person not a party to the record at law, 90. cannot be filed by alien enemy, 185. pleading, 83, et seq. parties to, 89, et seq. want of parties not an objection to, 183. stating an imperfect title, 84. need not contain allegation as to documents, 85. unless a specific document is required, 85. should not contain prayer for relief, 85, 86, 87. affidavit when annexed to, 88. amendment of, by adding plaintiff or prayer for relief irregular, 87, 88. extent of discovery to be had on, 84. by Crown to discover birth-place of alleged alien, 156. leave of court required for, after order for issue with production of documents, 116. demurrer to, 177, et seq. pleas to, 184, et seq. not brought to a hearing, 229. u 2 292 INDEX. BILL OP BISGOTESY— [continued). not dismissible for want of prosecution, 229. costs of, 229, 230, 231. BOOKS, See Documents. BOUNDAEIES, discovery in. case of confusion of, 29. production of books in case of disputed, 33. CASES, for opinion of counsel, 140. CHAEACTEE, discovery of matters reflecting on, must be given, 151. CIVIL EiaHTS, proceedings on, aided by discovery, 6, 7. COMPANY. See CoRPOEATiosr. CONCISE STATEMENT, amendment of, after answer of plaintiflT, 49. further affidavit of documents obtained on filing, 65. CONPIDENTIAL COMMUNICATION. See Privileged CoMMrxi- CATIONS. PeOFESSIONAIj COHTrDENCE. CONSIGNEE, discovery from owner of vessel by, 15, 258. CONSIGNOE, discovery from owner of vessel by, 15. CONTEMPT, plaintiff in, may compel a full answer and production of docu- ments, 56. defendant in, is entitled to an order for an affidavit as to documents, 57. in not making affidavit as to documents, 63, 64. in not answering interrogatories at law, 276. COPIES, under order for production of documents, party may take, 13, 77, 78. of documents are evidence at the hearing, 78. INDEX. 293 GOFIES— (continued). of documents produced, charges for, 74, 78. of libel to be taken by photography, 256. COPYEIGHT, discovery in suit for infringement of, 15, 264. COEPOKATION, of&cer should be made party in suit for discovery against, 92, 93. member of, may be made party in suit for discovery against, 93. officer of, cannot be interrogated unless he is made a pai-ty, 51. production of documents on oath cannot be obtained from officer of, unless he is made a party, 93. must answer matters which a private party might have declined to answer, 151. not having an interest should not be made a party, 91. officer of, if made a pax-ty, must answer as to contents of docu- ments of the corporation, 221. cannot avoid giving discovery by resigning his office, 221. COSTS, of discovery, 229, 230, 231. of cross-bill of discovery, 231. of discovery and inspection at law, 244, 256, 276. when to be prayed against parties not interested in the subject of the suit, 89. prayer for, makes bill a bill for relief, 87. COUNSEL. See Professional Confidence. cases prepared for opinion of, 140. opinion of, privileged from production, 140, 141. drafts prepared and settled by, are privileged, 141. drafts of pleadings, &c., by, are privileged, 141. instructions, «&c., given to, are privileged, 141. briefs of, and indorsement of, on brief, how inr puMici Juris, 44. COUET POLLS OF A MANOR, axe publici juru, 45. COUETS, discovery in aid of proceedings in other, 3, 8, 9, 10. foreign, 10. COVENANT, party may by, deprive himself of his right to discovery, 16. of his right to object to discovery, 158, 159. 294 INDEX. CEOSS-BILL OP DISOOVEET, not in general resorted to, 48, 54. necessary where defendant before decree wishes production of documents from co-defendant, 66. costs of, 231. CEOWN, must give discovery, 94. not, however, on oath, 94. CUSTOMAET HEIE, entitled to what discovery, 29. DAMAGES, interrogatories at law to ascertain, 264. DECEEE, bin for discovery must not pray a, 85. DEEDS. See DocroMENTS, Title Deeds. DEFENDANT, letters from one, to another, not privileged, 146. except in particular cases, 146. party having no interest should not be made, 89, 90, 91. except in particular cases, 89, 91. submitting to answer must answer fuUy, 202, 203, 204. even though he has been made improperly a party, 204. exceptions to rule, 205, 206. discovery how obtained by, 48, 49, 50. seeMng production of documents from co-defendant before decree must file cross-bill, 66. DEMUEEEE, to relief extends to discovery, 177, 178. good as to discovery may be bad as to relief, 178. for want of interest of plaintiff, 179. of defendant, 179. on ground that action will not lie, 179, 180. although action be maintainable, 180. on the ground that court will not assume jurisdiction, 179. that defendant has in conscience as good a title as plaintiff, 181. of want of privity of title, 181. of immateriality of discovery, 182. INDEX. 295 DEMUESEE— (co«