PRODUCTION AND INSPECTION OF DOCUMENTS UNDER 14 & 15 VICT. c. 99, AND 17 & 18 VICT. c. 125. I. PRACTICE WITH RESPECT TO OYER AND IN- to Inspection 15 Vict. c. BEFORE the passing of the Act for the Amendment Practice as of the Law of Evidence, 1851, (14 & 15 Vict. c. 99,) before 14 & there existed but two modes by which a party to 99. an action at law could obtain an inspection of documents relating to the cause in the hands of his adversary. One, which was available only in the case of a deed, was by demand of oyer; a proceeding in which whenever one party to a cause made profert-that is, alleged in his pleading that he showed the deed in Court,-his opponent was entitled to demand oyer; that is, in theory, to hear the deed read, practically to have a copy of it. The other mode, which was not confined to instruments under seal, but extended to all documents under certain circumstances, was by applying, pending an action, to the equitable jurisdiction of the Court for an order to inspect. H. B 2 Oyer. Inspection at Law. PRACTICE BEFORE 14 & 15 VICT. C. 99. In many cases neither of the above-mentioned modes of obtaining inspection was sufficient to give to a party satisfactory information with respect to written instruments material to his claim or defence. With respect to oyer, it could be obtained only when the opposite party made profert of a deed in his pleadings, which he was only bound to do in certain cases; and now by the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76, s. 55), the practice of profert and oyer is abolished (a). An order to inspect documents could, according to the old practice of the Courts, be obtained only in a very limited number of cases; as where one party could be considered as holding a document as agent or trustee of the party seeking inspection, or where the applicant was a party to a written contract of which but one part was executed (b), or where one part had been lost or destroyed (c). It (a) See Stephen on Pleading, c. 2, s. 7, r. 7; 2 Wm. Saund. 62 b., n. (5); 1 Wm. Saund. 9 b.; Dangerfield v. Thomas, 9 A. & E. 292; Thriscutt v. Martin, 3 Exch. 454. (b) Devenoge v. Bouverie, 8 Bing. 1; Blogg v. Kent, 6 Bing. 614. See also Bluck v. Gompertz, 7 Exch. 67. Upon an application made since the 14 & 15 Vict. c. 99, the Court of Exchequer compelled the plaintiff to produce for the defendant's inspection a guarantee upon which the action was brought, but of which the defendant had no copy. The Court in this case expressly stated that the power to compel the production of a written instrument, under these circumstances, existed independently of the above statute. The Court of Queen's Bench also acted upon this view in Doe d. Child v. Roe, 1 E. & B. 279; and Doe d. Avery v. Langford, 1 B. C. C. 37. In Webb v. Atkins, 23 L. J., C. P., 96, the Court of Common Pleas, acting under its common law jurisdiction, ordered that a plaintiff executor should not proceed until he had taken out probate and given notice thereof to the defendant. (c) Street v. Brown, 6 Taunt. 302. was also usually considered necessary that the party applying should be a party to the instrument which he sought to inspect (d); and although a trial was sometimes postponed for the purpose of enabling a party to take proceedings in equity, yet whenever an application to the Courts of Law was in the nature of a bill for discovery, they invariably refused to grant inspection (e). The insufficiency of both these methods of obtaining inspection has long been acknowledged (ƒ), and has at length been supplied. (d) Smith v. Winter, 3 M. & W. 309. (e) Goodliff v. Fuller, 14 M. & W. 4; Shaw v. Holmes, 3 C. B. 952; Ley v. Barlow, 1 Exch. 800. (f) Blackstone, in his Commentaries, regrets the want in Courts of Law" of a compulsory power for the production of books and papers belonging to the parties. In the hands of third persons," he observes, "they can generally be obtained by rule of Court, or by adding a clause of requisition to the writ of subpoena. But, in mercantile transactions especially, the sight of the party's own books is frequently decisive; as, the day book of a trader, where the transaction was recently entered, as really understood at the time, though subsequent events may tempt him to give it a different colour." (3 Blackst. Comm. 382.) The Common Law Commissioners, who sat under the commission, issued in 1829, remarked on the expense and delay occasioned by the necessity of suitors at law proceeding in equity for discovery; and also on the fact, that as the rule of law requires that if any part of a defendant's answer be read against him, he may insist that the whole shall be read, the matter contained in the answer can very seldom be offered in evidence with any benefit to his adversary, and they proposed, that a plaintiff after declaration, and a defendant after plea, should be allowed to deliver interrogatories for the discovery of both facts and documents material to the support and defence of the suit, to be answered by the oath of the adverse party. (See Second Report of Common Law Commissioners, 1839, pp. 20, 21.) In the First Report of the more recent Common Law Commission (30th June, 1851,) the Commissioners recom mended the abolition of profert, as unnecessary, and tending to lengthen pleadings; and after remarking, that in the case of instruments not under seal profert is unnecessary, they add, "There can be no good reason for placing them on a different footing, for there is no more need to set forth a writing under seal than a writing not under seal; there is as much reason for giving inspection and copy of one as of the other. Whether a party be entitled to such in Courts of Common Law is always a question of much doubt; and, except in policy cases, these Courts exercise a very uncertain jurisdiction on the subject. We think, that whenever inspection of any document can be had by bill of discovery, it should be obtainable in any Court of Common Law where the suit is pending, and we have recommended that provision should be made to that effect." (See p. 25 of First Report.) See also the remarks made upon this subject in page 34 of the Second Report of the same Commission (30th April, 1853). II. RIGHT TO INSPECTION OF DOCUMENTS UNDER 14 & 15 VICT. c. 99, AND EXTENDED PRO- c. 99, and 17 125. By section 6 of the 14 & 15 Vict. c. 99, "An Act 14 & 15 Vict. to amend the Law of Evidence," it is enacted, that & 18 Vict. c. "whenever any action or other legal proceeding shall henceforth be pending in any of the superior Courts of Common Law at Westminster or Dublin, or the Court of Common Pleas for the county palatine of Lancaster, or the Court of Pleas for the county of Durham, such Court and each of the Judges thereof may respectively (a), on application made for such purpose by either of the liti (a) The operation of this section is confined to the superior Courts of Common Law, and does not affect the County Courts. The inspection of documents in these Courts is regulated by Rule 65 of the Rules of Practice (1851), which provides, that "Where in any action, the defendant is desirous of inspecting any deed, bond or other instrument under seal, or any written contract or other instrument, in which he has an interest, and which shall be in the possession, power or control of the plaintiff, the defendant may, within five days from the service of the summons to appear, give notice by prepaid post letter, or otherwise, that he desires to inspect such instrument at any place to be appointed by the plaintiff, and the plaintiff shall appoint a place accordingly; and if the plaintiff shall neglect or refuse to appoint such place, or to allow the defendant or his attorney to inspect it within three days after receiving such notice, the Judge may, in his discretion, on the day of hearing, adjourn the cause for the purpose of such inspection, and make such order as to costs as he shall think fit." |