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ADAMS

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LLOYD.

EXCHEQUER REPORTS.

you in London on such a day?" and, though apparently a
very simple question, he might have good reason to object
to answer it, knowing that, if he admitted that he was in
London on that day, his admission might complete a chain
of evidence against him which would lead to his conviction.
It is impossible that the Judge can know about that. The
privilege would be worthless if the witness were required
to point out how his answer would tend to criminate him.”
The course of administration of the law in this country
has always been, never to compel a witness to answer a
question which has a tendency to criminate himself. This
is considered so sacred a principle that the right of a plain-
tiff or defendant in a civil suit is taken away by it, however
important the testimony may be, even though it might
establish his title to an estate or interest ever so large.
Doubts have arisen as to the extent to which the privilege
may be carried, and whether there are any limits to the
protection of a witness. The only exception I know of is
this,—where the Judge is perfectly certain that the witness
is trifling with the authority of the Court, and availing
himself of the rule of law to keep back the truth, having
in reality no ground whatever for claiming the privilege,
then the Judge is right in insisting on his answering the
question. But it would be very inconvenient to lay down
as a rule, that the party questioned is bound to go so far as
to satisfy the Judge that the answer to the question might
criminate him. In disclosing the source of danger he
might place himself in peril, and cause the very mischief
which the law meant to prevent. It appears to me there-
fore that the law is as pronounced by Maule, J., in Fisher
v. Ronalds; and, although some doubts may have been ex-
pressed as to the correctness of his view, I do not find any
conflict of decision on the subject. In the case of Fisher
v. Ronalds the other Judges did not state the rule so

broadly; none of them, however dissented from it. Williams, J., gave a judgment quite sufficient for the purposes of the case before him, saying that he thought it abundantly clear that the answer of the witness must have a direct tendency to place him in danger; but he declined saying who is to judge whether that is so. It is impossible to satisfy the Judge without exposing the whole matter; and a man may be placed under such circumstances with respect to the commission of a crime, that if he disclosed them he might be fixed upon by his hearers as a guilty person; so that the rule is not always the shield of the guilty, it is sometimes the protection of the innocent, although very likely it was originally introduced from humane motives, being probably derived from the maxim "nemo tenetur seipsum accusare."

Such being the rule, we are enabled to come to a just conclusion with respect to the proposition which the plaintiff's counsel so ably advocated. That proposition is, that if a plaintiff or defendant has deeds in his possession, and says that they do not relate to the title of the opposite party, but solely to his own, then the opposite party has no right to say, "I should like to be satisfied of the fact myself; I doubt whether you entertain a correct view of the meaning of the documents, or are quite honest in your representation of their nature." If the information respecting them can be obtained, the mischief is done-the opposite party would acquire some knowledge which he is not entitled to. Moreover, the answer might enable some one else to take ceedings, and thus a person might lose his estate. The distinction between title deeds and other things is in a great measure dependant on the dogma which makes every man's house his castle, and attaches such importance to the protection of property in land. The distinction which the law has at all times made between real property and

pro

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ADAMS

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LLOYD.

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ADAMS

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LLOYD.

personal property may in part have arisen from this:-that if a man has land he is considered as holding it under a grant from the Crown; if he has personal property he holds it directly or indirectly by reason of some contract. The rule that a man shall not refuse to answer, because the answer would subject him to a civil suit, has long prevailed; for, though at one time there was considerable difference of opinion on that point, the matter was finally settled by the 46 Geo. 3, c. 37, which established the broad distinction in this respect between civil suits and criminal proceedings.

To apply these remarks to the case now before us:The question is, whether the plaintiff is bound to produce his title deeds. To compel him to do so would introduce a new rule, which certainly was never intended by this act of parliament, and would render a title deed of no more importance than a bill of exchange or any other written document. I think that a man's title deed is still protected unless it tends to prove the case of the opposite party; if it does not, it is irrelevant. The recent changes in the law have made no alteration in that respect. There is a power to call for documents: first, one party may inquire whether the other has in his possession or power any documents relating to the matters in dispute; that means, "Have you any documents which I am entitled to see? If so, state them, and then I will call for them." If the party interrogated says on oath, "I have no such documents; you have no right to know how many deeds I have in my chest, but I swear that I have no documents which relate directly or indirectly to the matters in dispute," then the other party has no right to inquire any further. That is in accordance with the right of search in other cases. After a dissolution of partnership, one of the partners may have in his possession a book which the other wishes to inspect. The latter has a right to see such portions of the book as relate to matters

in which he is concerned; but he has no right to see the

rest.

1

Then the book is produced with those parts sealed up. But how is that determined? By the oath of the party. Such has always appeared to me to be the law, and I think that after this discussion it will no longer be looked upon as uncertain.

MARTIN, B.—I am also of opinion that the rule ought to be discharged. I am glad that this discussion has taken place, for it has afforded much information on a subject somewhat difficult to deal with. My opinion is founded on the consideration that the defendants had no right to put to the plaintiff the questions, the answers to which are complained of; and that these interrogatories ought to have been disallowed, as I think they would have been if put in a bill in equity and demurred to. I think that if the proper questions had been put, the answers here given would have been evasive; but they were not put, and those which were ought not to have been allowed.

The facts are these:-In answer to a declaration in trespass the defendants say, they are entitled to the minerals below the land, the surface of which belongs to the plaintiff: they say further, that their title is derived from a person named Parkes. Now, they had a right to interrogate the plaintiff as to whether he had in his possession any documents which would be evidence that they are entitled to the minerals; and according to the authority of Sir James Wigram, title deeds stand on the same footing in this respect as any other documents. The proper question would be: "Is there anything in the title deeds which you hold of this land, which shews that the minerals do not belong to you; but to me?" The plaintiff would be bound to give a direct answer to that interrogatory. If he said, "I have title deeds relating to the land of

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which I am in possession, but there is nothing in them to shew that you are entitled to the minerals," there would be an end of the matter; according to the authorities, and especially that of Reynell v. Sprye (a), where, although it appeared that the answers were false, Lord Justice Knight Bruce would not depart from the settled practice, but acted on the answers as final, leaving the opposite party to any redress he could find. In the present case, however, the plaintiff is not asked the question he might have been asked, but only whether he has in his possession any deeds relating to the lands in question, which primâ facie means the lands, as distinct from the minerals. As therefore the defendants have not asked directly about the minerals, they cannot complain of the plaintiff having answered evasively a question that was never put. There is, indeed, another question which I think might have been put, and which the plaintiff would have been bound to answer, viz.: "Do you claim under a conveyance from Parkes anterior to that under which we claim?" I am not aware of any other questions which could be put except those two; but certainly the questions which were put were not admissible. The party interrogating ought to put direct questions, and then the other party must answer them; and not put general questions which only bring general answers.

BRAMWELL, B.-I am of the same opinion. I have always thought that the right to administer interrogatories was confined to those matters in respect of which the party might have a discovery, and I do not understand that the defendants' counsel dissent from that; and it is difficult to see what it is they do affirm, and which they say gives them a right to more information in this case. One point (a) 1 De Gex, M'N. & G. 656.