26 Where Plaintiff's case negative. RIGHT EXTENDS TO PLAINTIFF'S REPLY. the plaintiff can call for the production of documents forming a portion of the defendant's case only when those documents tend substantially to establish his own, and not when their production will only assist negatively, by disclosing some defect in the title of his adversary. In answer to an argument of this nature, it was observed by Alexander, C. B.:-"It has been ingeniously said, that the plaintiff has an interest in the deeds; but the same observation might be said to apply to almost every case. The effect of the argument is this: the plain* tiff says, "if you will produce your deeds, it will appear that you have no title, and I of necessity must have" (a). It is not, however, because the plaintiff's case is of a negative character—that is, because his object is only to defeat a claim of the defendants-that he is not entitled to discovery, provided that which he seeks relates to his case as charged in his bill. Thus, in Smith v. Duke of Beaufort (b), the Duke of Beaufort having brought an action against Smith for certain tolls upon coals raised by him within the Duke's manor, Smith filed a bill of discovery stating his own title to the coals and that by which the Duke claimed, and charged-1. That the Duke had in his possession deeds from which it would appear that the toll taken had varied from time to time. 2. That the custom had been laid differently in legal proceedings by the Duke and others through See also the re (a) Compton v. Earl Grey, 1 Y. & J. 154. marks made by Lord Brougham, in Bolton v. The Corporation of Liverpool, 1 Myl. & K. 92, and ante, p. 19. (b) 1 Hare, 507; 1 Phillips, 209. whom he claimed; and 3, That the amount of it had been the subject of specific contracts made between the owners of the coal and the Duke's predecessors, and alleging generally that the deeds related to the matters mentioned in the bill. The Duke, by his answer, admitted possession of the deeds, and that they were revelant to the plaintiff's case, but stated that they related to his own title and not to the plaintiff's. The Vice-Chancellor held, that the plaintiff was entitled to an inspection, saying: "The fact is that the plaintiff has no case to establish, except a negative of the defendant's claim, and the three points he makes by his bill constitute a case by way of evidence only, leading to that negative." After distinguishing the case from Bolton v. The Corporation of Liverpool, his Honor added; "The bill in this case alleges facts, as being within the knowledge of the defendant, which, if true, will be material evidence for the plaintiff in answer to the defendant's case. Those facts may, for the purpose of the present discussion, be assimilated to a replication (though not strictly such) to the defendant's case. They are strictly the plaintiff's case. The onus of proving that case lies upon the plaintiff, and discovery from the defendant is evidence to which the rules of equity entitle him." Before concluding this portion of the question, it may be useful to warn those who are unacquainted with the proceedings in equity relating to discovery, against a class of cases in which, although an inspection would be precluded by the above rule, it has nevertheless been held that a plaintiff is entitled to the inspection of documents connected with the defendant's case, not because they relate to the plaintiff's case, but because the defendant has referred to them in his answer and so made them part of it (c). As these depend upon a rule of pleading in equity rather than the general law of discovery it is unnecessary to notice them further here. (c) Herbert v. The Dean and Chapter of Westminster, 1 Peere Wms. 773; Bettison v. Farringdon, 3 Ib. 363; Hardman v. Ellames, 2 Myl. & K. 732. See, however, the observations on the latter case in Wigram on Discovery, s. 386, et seq. IV. DISCOVERY CANNOT BE OBTAINED IN AID OF granted only HITHERTO the cases in which a discovery may Discovery be obtained in equity have been considered only in civil Cases. with respect to the general rules of equity, assuming that the case in which the discovery is sought for, and its subject-matter, are such as form no objection to it. It is necessary, however, to notice those cases, in which, First, either from the character of the action in aid of which the discovery is sought, or, Secondly, from the nature of the case, as regards its tendency to render the defendant liable to punishment, penalty or forfeiture, or from the peculiar relation of the parties, it is deemed inequitable to compel it. As to the first of these objections, the Courts of Equity will not entertain a bill for discovery to aid the promotion or defence of any suit which is not purely of a civil character; and if a bill is brought to aid, by a discovery, the prosecution or defence of any proceeding not merely civil in any other Court, as an indictment or information, a Court of Equity will not exercise its jurisdiction to compel a discovery (a). It is no objection, however, to a dis (a) Redes. Plead. 186; Story, Eq. Juris. s. 1494; Hare on Discovery, 116; Wigram on Discovery, s. 10. In Lord Montague v. Dudman, 2 Ves. sen. 398, where a discovery of deeds was sought for, in order to stay proceedings on a man 30 Where Transactions cor rupt. DISCOVERY GRANTED ONLY IN CIVIL CASES. covery that the matter in question might have been the subject of an indictment or information (b), nor that the action, in aid of which it is sought, is of tort. Bills seeking evidence to sustain actions of trover and trespass have been allowed (c), but it has been doubted whether a bill of discovery can be maintained in aid of a mere personal tort (d). The powers given by the Common Law Procedure Act, 1854, are limited expressly to cases in which the applicant for inspection is a party to a "cause or other civil proceeding" (e). Cases have occurred in which the Courts have declined to assist a plaintiff by discovery, where, by their doing so, facts would come to light of so corrupt a nature as to make their disclosure contrary to public policy (ƒ). It is by no means clear, however, whether this in itself is a sufficient damus, issued to compel the plaintiff, as lord of a borough, It is (b) Thorpe v. Macaulay, 5 Madd. 230; Shackell v. Macaulay, 2 Sim. & Stu. 79; S. C. 1 Bligh, N. S. 96; Wilmot v. Maccabe, 4 Sim. 263. (c) Slone v. Heatfield, Bunb. 18; Taylor v. Crompton, Ib. 95. (d) Per Lord Langdale, M. R., in Glynn v. Houston, 1 Keen, 337. (e) 17 & 18 Vict. c. 125, s. 50. (f) King v. Burr, 3 Mer. 693; Wallis v. Duke of Portland, 3 Ves. 494. |