1852. Doe dem. v. ROE. that he was entirely ignorant of the title of Wright, and had in no way intended to admit it, nor had, to the best of his recollection, done so; except in so far that the summons was taken out in the name of " Wright, tenant of the premises;" and that, when before Erle J., he did not deny that Wright was so, but opposed the order on the ground that the deeds were part of the title of the lessors of the plaintiff. Stammers, in support of his application. The order is not justified by stat. 14 & 15 Vict. c. 99. s. 6. By a bill of discovery, Wright could obtain a discovery of documents which form part of his case; but he could not obtain a discovery of those which form part of the case of the other party; Hare on Discovery, 197; Bolton v. Corporation of Liverpool (a). The two deeds in question form part of the case of the lessors of the plaintiff. [Erle J. I did not act under stat. 14 & 15 Vict. c. 99. Before me, one party stated, and the other did not deny, that Wright was in lawful occupation of one of the houses held under the leases. Under that state of facts I thought he was so far privy to the leases as to be entitled to an order to inspect them under the common law jurisdiction.] He may be in lawful occupation without being in any way a party to the lease. The cases in which the Court at common law will grant an inspection are very few. In Lush's Practice, p. 747, it is said: "The person seeking the production of the instrument must be a party thereto either in fact or in interest." Here Wright is not shewn to be a party to the deed in any way. There is no precedent of an inspection having been ordered in such a case as the present. (a) 3 Sim. 467; 1 Mylne & K. 88. Lord CAMPBELL C. J. I am of opinion that this order was most properly made. I am very far indeed from laying down the rule that a defendant would have a right to inspect the documents if he were a stranger to them. But we are to look at the facts as they appeared before the Judge on the admissions made before him: and, looking at those, it is clear that the order was properly made in exercise of the common law jurisdiction of the Court. It appears to have been admitted before the Judge that the lessors of the plaintiff represent the original lessor of the premises; and that he brought ejectment to recover them on the ground of alleged breaches of the covenants contained in the lease. It was a necessary part of the case for the lessors of the plaintiff that the house held by Wright was held under that lease, and that there was possession of that house by some one who, by payment of rent or otherwise, was so connected with the lease as to be affected by it, and by the breaches of covenant committed in other premises held under that lease. And it was not disputed that the tenant's statement, that he was not an intruder, was true. Substantially then this ejectment is an action brought upon the lease against a person who derives from that lease title to part of the premises. If it were an action of covenant against an assignee, might not the Court order an inspection, supposing it was not made unnecessary by profert? If it might have been done in an action of covenant on the lease to recover damages for a breach of covenant, it may also be done in an action of ejectment brought to turn the tenant out of possession for a breach. Then, if there be power to make such an order, is it not perfectly fair that, if the tenant has no counterpart of the deeds, he should be 1852. Doe dem. V. Roe. 1852. Doe dem. v. ROE. permitted to inspect these deeds, and ascertain what the covenants are, so as to learn whether he ought to defend the ejectment or submit to it? I give no opinion as to whether this order is authorized by stat. 14 & 15 Vict. c. 99. It is authorized by common law. WIGHTMAN J. I also think that this order was properly made under the common law jurisdiction of the Court, and that it is unnecessary to consider whether it might not also be authorized under stat. 14 & 15 Vict. c. 99. The ejectment is brought to recover the houses for a breach of covenant in the lease. In order to recover on that ground, the lessor must in some way connect the tenant with the lease. He must in some way shew that he came in under it, so as to be affected by the breaches of the covenants in it: and before the Judge both parties assume that such is the state of the facts, and that the tenant was not a mere intruder, but came in derivatively from those who held under the lease. That being so, it brings him within the principle of the rule, as stated in Lush's Practice, p. 747. The tenant has a direct interest in the deeds; for they are leases under which he holds. It is sought to turn him out of possession for breaches of what are alleged to be covenants in those deeds. He has no counterpart; and it much concerns him to see these deeds. ERLE J. When there is only one copy of an instrument on which an action is brought, and each party has an interest in that instrument, it is the general rule that the Court will order an inspection of that instrument. I thought that the facts, as admitted before me, brought the case within this principle. The statement on behalf of the tenant, which was not disputed, was, that he took the house from one who had apparent right to let him into possession. Then a declaration in ejectment was served in the name of persons of whom he never heard. He went to inquire what was the reason of this, and was informed that the lessors of the plaintiff were the representatives of the original ground landlord, and that they had a right of entry on account of breaches of covenants contained in the lease. The tenant inquires what covenants, and whether the breaches are alleged to be on his premises. He is informed that the lease comprises 200 houses; that some one, he is not told who, has broken covenants contained in a lease which he never read; and that the lessor of the plaintiff will tell him nothing. It is a rule prescribed by justice, that a defendant ought to have notice what the case made against him is: and it seemed to me that, if ever there was a case in which justice required that there should be an inspection, this was the case. I thought that, if I had jurisdiction to order an inspection, it should be exercised to the full extent; and it seemed to me that the common law jurisdiction of the Court authorized the making of the order. Lord CAMPBELL C. J. added: This common law jurisdiction of the Court is likely in future to be of much greater practical importance than formerly. In a large number of cases to which it would have applied, the necessity for its exercise was superseded by profert. Now that, by stat. 15 & 16 Vict. c. 76. s. 55., the Legislature has abolished profert without providing any substitute, it becomes highly important to lay down the 1852. Doc dem. V. ROE. 1852. Doe dem. V. ROE. rule that, where an action is brought on an instrument, the Court has power to order an inspection of it. Rule refused. Tuesday, November 24th. See Bluck v. Gompertz, 7 Exch. 67. In the Matter of EMANUEL BARTHELEMY and See antè, p. 8. Thursday, November 25th. Stat. 9 G. 4. c. 61. s. 21. subjects per sons licensed to a penalty, on conviction before justices, for any offence against the tenor of the license: the license (Schedule C.) pro The QUEEN against ASHTON. ARCHBOLD, in last Trinity term, obtained a rule calling on James Timmins Chance and Archibald under that Act Kenrick, Esquires, justices for Staffordshire, to shew cause why a certiorari should not issue, to remove into this Court a record of conviction whereby Richard Ashton, licensed victualler, was, on 29th May in this year, convicted by them in the penalty of half a crown, for suffering an alleged unlawful game, called Dominoes, person licensed to be played in his house, against the tenor of his licence. On the ground that such game is not unlawful. The rule was obtained on the affidavit of Ashton, who vides that the "do not know ingly suffer any unlawful games or any gaming what Soever" in the deposed to the fact of his conviction "for suffering an alleged unlawful game, called Dominoes, to be played in inn, &c. An information charged a person li censed, that he his house." That he had taken out, and still held, a did "knowingly suffer a certain unlawful game, to wit the game of Dominoes, to be played" in his house. Held, That the information charged no offence within the section: and, the party having been convicted, the Court granted a certiorari to remove the conviction. |