fence to the action at law. The defendants, by their answer, admitted that they had in their custody, and relating to the matters mentioned in the bill, divers cases which had been prepared and laid before counsel, in contemplation of the then pending litigation, as also certain grants and deeds, which were the title deeds and documents evidencing their title to the dues in question: the Court held, that the plaintiffs in equity were not entitled to an inspection of such cases or deeds. The Lord Chancellor, in delivering his judgment, laid down the rule as follows:-"I take the principle to be this; a party has a right to the production of deeds sustaining his own title affirmatively; but not of those which are not immediately connected with the support of his own title, and which form part of his adversary's. He cannot call for those which, instead of supporting his title, defeat it by entitling his adversary. Those under which both claim he may have, or those under which he alone claims. Thus, an heir-at-law cannot, in that character, call for the general inspection of deeds in the possession of the devisee. In Lady Shaftesbury v. Arrowsmith (o), Lord Loughborough said, "he could not find any spark of equity for such an application as that;" admitting that the heir in tail (and so he decided) had a right to inspect settlements creating estates in tail general; the party stating himself to be the heir of the body. The plaintiff here does not claim anything positively or affirmatively under

(0) 4 Ves. 66.

the documents in question. He only defends himself against the claims of the corporation, and suggests that the documents evidencing their title may aid his defence. How? By proving his title, he says. But, how can these documents prove his title? only by disclosing some defect in that of the corporation. The description of the documents is, that they rebut or negative the plaintiff's title: they are the corporation's title, and not his, and they are only his negatively, by failing to prove that of the corporation. He rests on the right which he has, in common with all mankind, to be exempt from dues and customs; and he says, 'Prove me liable if you can!' The corporation have certain documents which they say prove his liability. He cannot call for these documents, merely because they may, upon inspection, be found not to prove his liability, and so to help him, and hurt his adversary, whose title they are."

This rule, as acted upon by the Courts of Equity, has been adopted by the Courts of Common Law, in exercising the power of granting inspection now given to them (p). Thus, in an action of ejectment by a reversioner against the assignee of his lessee, who also claimed the fee of a portion of the land sought to be recovered by an independent title, it was held, that the lessor of the plaintiff was not entitled to inspect the conveyance of the freehold to

(p) See the judgment in Hunt v. Hewitt, 7 Exch. 241; Galsworthy v. Norman, 21 L. J., Q. B., 70; Hill v. Philp, 7 Exch. 232; Scott v. Walker, 2 E. & B. 555; S. C. 22 L. J., Q. B., 403.

the defendant, as that deed could not prove the plaintiff's title to any portion of the land sought to be recovered (q).

allowed,

jurious to

When once it appears that the documents relate Inspection to the plaintiff's case within this rule, the defendant though inis bound to allow inspection of them, however dis- Defendant. agreeable it may be to make the disclosure, however contrary to his personal interests, or however fatal to the claim upon which he may have insisted (r). In a recent case, land agents, who had been employed by the plaintiff's testator, were compelled to produce for inspection maps, plans and other documents relating to the plaintiff's estates, which had been made or collected by them in the course of their employments, even although it was alleged that they were made for their own private use and guidance, and that they had not been paid for them by their principal (s).

If a plaintiff is entitled to the production of a document for inspection because it is applicable to his case, his right to discovery cannot be defeated by showing that the same document is evidence of the defendant's title also. In Burrel v. Nicholson (t), upon a bill of discovery in aid of an action to try whether the plaintiff's house was

34.

(q) Doe d. Avery v. Langford, 21 L. J., Q. B., 217.

(r) Per Lord Langdale, M. R., Flight v. Robinson, 8 Beav.

(s) Lady Beresford v. Driver, 14 Beav. 387; S. C. 20 L. J., Chanc., 476. See also a motion between the same parties, 22 L. J., Chanc., 407, where the defendants were directed to deliver up the plans, &c. to the plaintiff.

(t) 1 Myl. & K. 680. See also the remarks of Lord Brougham, in Bolton v. The Corporation of Liverpool, 1 Myl. & K. 91, and of Wigram, V. C., in Smith v. Duke of Beaufort, 1 Hare, 520. The Attorney-General v. Lambe, 3 Y. & C. 162.

Right extends to Plaintiff's case in reply.

within the limits of a certain parish, and therefore liable to the parochial rates, the Court ordered the defendants, the parish officers, to produce for his inspection the rate, account and minute books, orders, and other documents which related to the matter in question, and were admitted by their answer to be in their possession, although they contained evidence of the defendant's title. And if a defendant, who is bound to keep distinct accounts for another, improperly mixes them with his own so that they cannot be severed, he must produce the whole (u). Thus, where an executor has mixed accounts relating to his executorship with those of his own trading concerns, he cannot thereby protect himself from producing the original books in which any part of those accounts may be inserted (x).

When it is said that the right of a plaintiff in equity to discovery is limited to such facts as relate to his own case, it is not intended to limit his discovery to those facts which constitute his title, upon which he relies to found his claim; for the right extends to the whole of the plaintiff's case, whether for the establishment of his own title or claim, or for the purpose of attacking the defendant's case; that is, he is entitled to a discovery of everything which may enable him to defeat the title which it is expected will be set up against him (y). This dis

(u) Wigram on Discovery, s. 326; Hare on Discovery, 245. (x) Freeman v. Fairlie, 3 Mer. 29.

(y) Lord Redesdale has stated this proposition more widely. He says, "A plaintiff is entitled to a discovery of the case on which the defendant relies, and of the manner in which he means to support it." (Redes. Plead. p. 9.) The latter portion of this is objected to by Vice-Chancellor Wigram in his

tinction was very clearly pointed out and recognized by the Lord Chancellor in the recent case of The Attorney-General v. The Corporation of London (2), which has been already mentioned. "If the defendant," says his Lordship, "pleads that a certain deed forms part of his title, and withholds the deed, he cannot be compelled to produce it, because it is the defendant's title, and not the plaintiff's; but if the plaintiff alleges that that deed contains something which would show that the plaintiff is entitled, or support the plaintiff's title, the defendant is bound to answer that question. He may not be bound to produce the deed, if he negatives that ground on which the plaintiff claims the inspection of it; but then, although it is the defendant's title, it is part of the plaintiff's evidence, and may be the most important part of the plaintiff's evidence, who may find in a deed constituting the defendant's title a recognition of that which, if true, would supersede the title set up by this subsequent instrument."

It may appear as if the position last stated and the cases cited in support of it tended to negative, or at least were in conflict with, the proposition that the plaintiff's right to discovery is confined to his own case, and does not extend to the evidence on which the defendant rests his case; but upon examination this will be found not to be so, since

Work on Discovery (see s. 372), as inaccurate, and certainly it cannot be supported to its full extent by decided cases. (See the observations of Lord Cottenham in The Attorney-General v. The Corporation of London, ante, p, 14.)

(x) 12 Beav. 8.

H.

C