*671]

*MOOR v. ROBERTS and Another. June 8.

The court will not allow interrogatories (under the 17 & 18 Vict. c. 125, s. 51) the tendency of which is to discover how the plaintiff intends to shape his case, without furthering any case which the defendant has to set up.

Neither will interrogatories be allowed for the purpose of contradicting a written document.

THIS was an action against the defendants for breach of an undertaking to pay any deficiency which might arise on the sale of certain premises.

The declaration stated that one William Kirby was desirous of borrowing the sum of 12007. upon mortgage of certain land, with the houses, messuages, and buildings thereon erected, and known as Nos. 12, 13, 14, 15, Russell Terrace, Holland Road, in the county of Surrey, and it was proposed and intended that interest should be payable on the said principal sum of 1200l. at the rate of, to wit, 57. per cent. per annum, and that the mortgage-deed to be executed should express that such interest should be payable, and should also contain all necessary and usual powers of sale upon default; that thereupon, in consideration that the plaintiff and one George Mallows, since deceased, at the request of the defendants, would advance to the said W. Kirby the said sum of 12001. upon such mortgage as aforesaid, the defendants undertook and promised the plaintiff and the said G. Mallows, that if, after any sale of the said premises so to be mortgaged duly made under the said powers of sale to be contained in the said mortgage-deed, the purchasemoney should not be sufficient to satisfy the aforesaid sum of 12007., and all interest, costs, charges, and expenses which might be then due in respect of the said mortgage, they would immediately thereafter make good and pay to the plaintiff and the said G. Mallows such deficiency, whether the same should be occasioned by any defect in the title to the said premises, or otherwise howsoever: Averment, that the plaintiff and the said G. Mallows did accordingly advance to *672] the said W. Kirby the said sum of 12007. as aforesaid, on mortgage of the said premises, and that a mortgage-deed containing, among other things, a provision as to the payment of such interest as aforesaid, and also such power of sale as aforesaid, was duly executed and delivered by the said W. Kirby to him the plaintiff and the said G. Mallows, and that afterwards default was made by the said W. Kirby, to wit, in not paying the said principal sum and interest, according to the terms of the said mortgage-deed, whereby the said powers of sale became exercisable, and were thereupon duly exercised by the plaintiff, who had survived the said G. Mallows, accordingly, and the said premises included in the said mortgage and powers of sale were duly and properly sold in virtue thereof; and that, upon the said sale, the purchase-money of the said property was not sufficient to satisfy the said sum of 12001. and a further sum of 2507. then due in respect of the said

mortgage for interest, costs, charges, and expenses, and that there was a deficiency thereon to the amount of 8007.; and that the plaintiff and the said G. Mallows, before his death, and the plaintiff since the death of the said G. Mallows, respectively, did all things, and all things were done and happened, to entitle him the plaintiff to have the said sum of 8007. made good and paid to him, as the survivor of the said G. Mallows, but that the defendants had not paid the same, &c.

The defendants, on the 27th of May, pursuant to an order of Crowder, J., of the 26th, pleaded,-first, that they did not undertake or promise in manner and form as in the declaration alleged,-secondly, that it was not proposed and intended as in the declaration alleged,thirdly, that the plaintiff and the said G. Mallows did not advance to the said W. Kirby the said sum of 12007. as in the declaration alleged,fourthly, that a *mortgage-deed was not executed and delivered as in the declaration alleged,-fifthly, that the said powers of [*673 sale did not become exercisable, nor were they exercised, as in the declaration alleged,-sixthly, that the said premises were not sold as alleged, seventhly, that there was not a deficiency upon the said sale, as in the declaration alleged.

The defendants had previously, viz., on the 25th of May, taken out a summons calling on the plaintiff to show cause why they should not be at liberty to deliver to him the following interrogatories, pursuant to the 51st section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125:

"1. Are you the plaintiff in this action, and is the same brought with your authority and on your behalf? and when and whom did you instruct to bring the same?

2. Did you and George Mallows (since deceased) advance the 12007. alleged to be advanced by you and George Mallows to William Kirby? and did you advance the same out of your own moneys or how otherwise? and when and how did you pay the same?

"3. Were you not as a banker, or was not your firm as bankers or otherwise, or was either of you, in the habit of lending to one F. H., of &c., various sums of money? and was not the alleged 12007. stated to be advanced to William Kirby part of such sums lent to the said F. H. by you? and were not your names made use of in trust for him? and are you or were you not guarantied by the said F. H.? State fully.

4. Was not the said F. H. in the habit of putting out money on mortgage or by way of loan for you and the said G. Mallows, or one of you, on his own guarantee, and at his discretion? and was not the said 12007. so advanced by you and the said G. Mallows in that manner, or how otherwise? State fully.

5. Had you and the said G. Mallows, or either of you, any

interest whatever in the said mortgage-debt and premises, beyond [*674

that of permitting your names to be used nominally or as a trustee for

the said F. H. or any other party, or whom? or what interest had you and have you therein? State fully.

6. Have you not since the date of the alleged mortgage of the 15th of January, 1847, aforesaid, assigned all your right, title, and interest in the said mortgage-debt and interest? If so, to whom and when did you assign the same? State fully.

"7. Have you not been released from all claim in respect of the said mortgage-debt and premises? When was such release executed, and by whom given? State fully.

8. Was not the guarantee mentioned in the declaration intended, according to the true intent and meaning of the parties thereto, to have continued only till such time as certain buildings should be completed on the said land in the declaration mentioned? And were not the said buildings so completed several years since? State when they were so completed.

9. Was it not the intention of the parties to the said guarantee that the said sum of 12007. should be repaid at a period not exceeding three years after the advance thereof, and that the said guarantee should only remain in force during such period of three years? And has not the said period of three years long since expired? and when?

10. Did you, and when and how, authorize a sale of the said mortgaged premises? and, if so, what reserved price did you place thereon? When did the sale take place? By and to whom, and in what manner? And what was the amount of the purchase-money? And has the same, or what part thereof, been, and when, paid to you?

11. What is the balance of the principal money *due to you? *675] And how and in what manner is it made out? How much for interest, and how much for costs, charges, and expenses? And when and to whom did you pay the same costs, charges, and expenses?

12. Is not the contract for the sale of the said premises still depending and incomplete, and subject to further negotiation and inquiry? And is such contract of sale in writing? And how, when, and between what parties was the same made? And in whose possession is the same?"

Upon the hearing of the summons on the 26th of May, the learned judge made an order disallowing the interrogatories, with costs.

Rochfort Clarke, on a former day in this term, obtained a rule calling upon the plaintiff to show cause why that order should not be rescinded, and why the defendants should not be at liberty to deliver the said interrogatories, &c.

Griffits now showed cause.-The proposed interrogatories are not such as ought to be allowed. The rule on this subject is well laid down by Lord Campbell, in Whateley v. Crowter, 5 Ellis & B. 709 (E. C. L. R. vol. 85), where he says- Under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 51, a party may administer inter

rogatories for the purpose of obtaining a discovery, if the interrogatories are such that the answers may be reasonably expected to discover matters which will advance the case of the interrogating party, though the answers may also disclose what is the case of the interrogated party. The object of the enactment was, to obviate what was a scandal to the law, viz., the necessity of commencing a fresh suit in a court of equity for the purpose of obtaining discovery in aid of an action at law. To effectuate this, it is enacted, that, by leave of the [*676 court or a judge, a party to a suit may deliver interrogatories in writing upon any matter as to which discovery may be sought.' What is the interpretation to be put upon that? I think it is too wide an interpretation to say, as seems to have been said by Alderson, B., in the case cited in the Exchequer,(a) that every question may be asked on interrogatories which might be asked if the party were a witness at the trial. I think the interrogatories must be confined to matters which might be discovered by a bill of discovery in equity. I adopt the rule in the very terms used by Sir James Wigram :(6) The right of a plaintiff in equity to the benefit of the defendant's oath, is limited to a discovery of such material facts as relate to the plaintiff's case, and does not extend to a discovery of the manner in which the defendant's case is to be established, or to evidence which relates exclusively to his case.' You may inquire into all that is material to your own case, though it should be in common with that of your adversary; but you may not inquire into what is exclusively his case." Again, in Edwards v. Wakefield, 6 Ellis & B. 462 (E. C. L. R. vol. 88), the same learned judge says: "This was an action of trover by the assignees of a bankrupt, to recover property alleged to form part of the bankrupt's estate and the proposed interrogatories were for the purpose of compelling the plaintiffs to state upon oath what act or acts of bankruptcy they intended to rely upon in support of the title of the assignees. We think that the application is not authorized by the enactment in question. We are disposed to think that the section now under our consideration is intended to apply to cases only where the matters inquired into would be evidence in the cause, and *that it was [*677 not intended thereby to give one party the power of asking the other how he intends to shape his case. Such an inquiry is a mode of requiring particulars on oath without the party being obliged afterwards to confine himself to the particulars. When the justice of the case requires such particulars to be given, the courts have generally the means of compelling them to be given under such provisions as are reasonable. We think that we ought, at all events, to hold that the discovery, under the 51st section, is limited, by the words upon any matter as to which discovery may be sought,' to the cases where a dis(a) Osborne v. The London Dock Company, 10 Exch. 698, 702.† (b) Wigram on Discovery, 2d edit. 261.

N. S., VOL. II.-29

covery would be given in equity: and we think that the proposed questions clearly fall within the rule that a party is not to make a fishing application as to the manner in which his adversary intends to shape his case, and as to the evidence by which he intends to support it." "We were much pressed with the recent case of Flitcroft v. Fletcher, 11 Exch. 543.† If the court there meant to decide that the defendant may always ask the plaintiff to declare on oath how he means to shape his case, we are not prepared to assent to it; and we should not feel ourselves bound by a decision of this nature, to the same extent as where a decision can be reviewed on error, even if the case were precisely in point." The interrogatories here proposed are open to all the objections above suggested: they are either inquiries as to matters not relevant to the cause, or directed to information which the defendant has by the ordinary practice of the court other means of obtaining, or to that which is exclusively the plaintiff's case. The second, tenth, and twelfth interrogatories relate exclusively to matters which the plaintiff would be bound to prove in support of his case: the third, fourth, fifth, seventh, and ninth have no application to any of the issues in the cause: the sixth can only be for the *purpose of *678] founding an application for security for costs: the eighth goes only to a denial of the guarantee in terms: and the eleventh is addressed to the damages, which do not form a proper matter for interrogatories.

R. Clarke, in support of his rule.-In Edwards v. Wakefield, 6 Ellis & B. 462 (E. C. L. R. vol. 88), the whole of the proposed interrogatories tended solely to an inquiry into the plaintiff's case. But, in Whateley v. Crowter, 5 Ellis & B. 709 (E. C. L. R. vol. 85), the court of Queen's Bench distinctly recognise the right of a party to administer interrogatories in support of his own case, even though the answers may at the same time disclose the case of his adversary. It is enough, according to the case of Croomes v. Morrison, 5 Ellis & B. 984 (E. C. L. R. vol. 85), if the court are satisfied that the interrogatories are pertinent. [COCKBURN, C. J.-Can you be permitted to ask the plaintiff what is the real nature of his case?] If any of the interrogatories proposed are such as the plaintiff ought not to answer, he may decline to answer them on that ground. [COCKBURN, C. J.-If this had been an application to a court of equity for a discovery, would they have granted what you now ask?] The true rule in the court of equity undoubtedly is as stated in the passage cited by Lord Campbell from Wigram on Discovery. [COCKBURN, C. J.-Is it not limited to this,— that, having a case, you seek to extract from your adversary the means of proving it? Here, you are seeking to discover what is the plain. tiff's case. What is the case which you wish to establish?] That the defendants did not enter into the contract stated in the declaration. [CRESSWELL, J.-That is in writing: it will speak for itself.] The