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versary by affidavit to admit or deny whether he has the custody of certain documents, with respect to the nature of the documents and the relation which they bear to the cause they must still be such as he would be entitled to the production of, under sect. 6 of the 14 & 15 Vict. c. 99 (j).

Distinction

Inspection.

It is necessary here to notice a distinction, which, between Disaccording to the rules and practice followed by the covery and Courts of Equity, exists between the right of a plaintiff to discovery, as used in the limited sense of inspection, and his right to discovery in the more extended sense of requiring his adversary to admit or deny the possession of documents, and in consequence of which, cases often occur in which the defendant is compelled to admit or deny the possession of certain documents, and even to describe and give a list of them, where, nevertheless, upon grounds set up in the answer, he is protected from producing them upon a motion for production. Thus, it a well known rule, that the right of a plaintiff to discovery, as used in the sense of inspection, is limited to such material facts as relate to the plaintiff's case, and does not extend to evidence which relates exclusively to the defendant's case (k); notwithstanding this, however, a plaintiff is entitled to a discovery, in the sense of a description, of the case on which a defendant relies (1); though not of the evidence of the title under which he claims (m). So where a bill is filed to obtain discovery of deeds, the plaintiff may com

Ante, p. 10.

(k) Wigram on Discovery, Proposition 3. See post, p. 15. (1) Redes. Plead. 9.

(m) Ib. 191.

pel the defendant to describe them in his answer, and say whether they are in his possession; while to entitle him to an order for production, the plaintiff must not only show that the deeds are in the possession of the defendant, but that they are of such a nature as to entitle the plaintiff to an inspection (n). The rule, so far as it affects the discovery of a defendant's case, cannot be better illustrated than by referring to the case of The AttorneyGeneral v. The Corporation of London (0), the substance of which is as follows. An information was filed by the Attorney-General on behalf of the Crown against the Corporation of London, stating that they held from the Crown the office of Bailiff, or Conservator of the River Thames, but that they also claimed to be owners of the bed or soil of the river, which the information alleged to be in the Crown; and that the corporation had lately granted licences to embank parts of the river, to the prejudice of the navigation; and seeking to have the right of the Crown to the bed and soil of the river declared, and to have the corporation restrained from granting such licences, and also to have the embankments put an end to. The corporation by their answer denied the title of the Crown, and set up a prescriptive right in themselves to the ownership of the bed and soil of the river; but they declined to discover the charters and other documents in their

(n) Storey v. Lord George Lennox, Adams v. Fisher, 3 Myl. & Cr. 526. Simpson, 6 Madd. 290.

Myl. & Cr. 525; See also Lingen v.

(o) 12 Beav. 8; S. C. 13 Jur. 374; 14 Jur. 205.

possession, alleging that they intended to use them as evidence of their title at the hearing. The Master found their answer insufficient, upon the ground that they had not set out the charters on which they rested their title to be owners of the shore as well as conservators of the river. The Master of the Rolls, upon the case coming before him upon exceptions by the corporation to the Master's report, held, that having regard to the fiduciary relation in which the corporation stood to the Crown as conservators of the river, and to the prima facie right of the Crown to the bed and soil of navigable rivers, the corporation were bound to discover (p) the charters and documents in question. The case having been argued before the Lord-Chancellor upon appeal, the order of the Master of the Rolls was affirmed, and it was held, that a plaintiff has in all cases a right to the discovery of the case on which the defendant relies, and of the manner in which he intends to support it; that is, the defendant must state such a title as, if proved, would show that he is entitled, but he is not to be called upon to discover the evidence by which his title is proved: and, therefore, that in the case before the Court, the defendants, being asked to discover under or by what charter, or letters patent, or other grant, they claimed to be entitled, they were bound to answer whether they claimed under a charter, &c., or not. In the course of the judgment the Lord-Chancellor, after citing Lord Redesdale's authority for the position that "the

(p) i. e. disclose the existence of them, not allow the inspection of them.

plaintiff has a right to the discovery of the case on which the defendant relies, but not of the proofs," continued, "he has a right to know what it is that the defendant relies upon, in order that he may meet and prepare himself to encounter such defence; but he has no right to say, 'How do you make out your case? How do you prove it? What is your evidence?"" In another part of his judgment his lordship added,—the defendant "must show how he derives his right to the property; in short, he must show that he has a title, which, if proved, would show that he is entitled, and that the plaintiff is not. It does not follow from that, however, that the plaintiff is entitled to see the documents by which that title is proved. On the contrary, the authorities show that he is not."

Sufficient having been said to illustrate the distinction previously alluded to and its importance, it may now be dismissed with the remark, that in future, except where a case is governed by general principles applicable to both classes of discovery, whenever discovery in equity is spoken of for the purpose of applying the rules relating thereto to proceedings for inspection in Courts of Law, a production of documents for inspection is intended, and not merely a discovery which is satisfied by their description and a statement in whose possession they are; and the subject having been thus narrowed, we may proceed to consider some of those rules of equity by which the Courts of Common Law must be guided in exercising their newly acquired power.

III. RIGHT OF DISCOVERY LIMITED TO MATERIAL
FACTS RELATING TO PLAINTIFF'S CASE,
AND DOES NOT EXTEND TO EVIDENCE
WHICH RELATES ONLY TO DEFENDANT'S

CASE.

must have

Document he

In order to entitle himself to a discovery in equity, Applicant it must clearly appear that the plaintiff has a title interest in to the discovery which he seeks; or, in other seeks for. words, that he has an interest in the subject-matter to which the discovery is attached, capable and proper to be vindicated in some judicial tribunal (a); thus, where a plaintiff claiming under a will asked for a discovery, and it appeared upon the face of the will, which was set out in the bill, that the plaintiff had no title, a demurrer was allowed (b). So, where discovery was sought for in equity by a plaintiff in an action at law against an attorney for negligence. It appearing by the bill that the cause of action had not arisen within six years before suit, the Court allowed a demurrer to the bill on this

154;

(a) Story's Eq. Jurisd. s. 149; Redes. Plead. p. Buden v. Dore, 2 Ves. sen. 445; Ivy v. Kekewick, 2 Ves. 679. (b) Brownsword v. Edwards, 2 Ves. sen. 243. (This was a case where discovery was sought in order to obtain a statement of facts, and not for the inspection of documents, but it is obvious, that, where the former cannot be obtained, neither can the latter, which differs only in form, it being more convenient than requiring a defendant to state the contents of the document at length in his answer. The same remark will apply to several cases which will be cited hereafter.)

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