The rest of the court concurring, BULL and Another v. CLARKE. Jan. 30. Upon a motion for an inspection of the plaintiffs' books, which the defendant alleged to be necessary for the purpose of establishing a set-off in respect of commission which he claimed on sales effected by the plaintiffs through his introduction,-The court granted the rule, although the plaintiffs swore that there was no agreement to allow the defendant any commission: but held that the plaintiffs were entitled to seal up all those parts of the books which they pledged their oath that the defendant had no interest in. THIS was an action for goods sold and delivered. The defendant pleaded a set-off in respect of commission upon sales of wines and spirits to persons introduced to the plaintiff's by him, pursuant to an alleged agreement. The defendant, in order to enable him to make out his claim for commission, obtained an order "to inspect and take extracts from the plaintiffs' ledgers." He accordingly attended at the counting-house of the plaintiffs on the 19th of December last, and, a ledger being produced, he went through a great portion of the index, and selected therefrom the names of a number of persons, and claimed to inspect the accounts of such persons, some of which he was allowed to inspect, it being admitted that those customers had been intro*852] duced by him, but others of which accounts the plaintiffs refused to allow him to inspect, alleging that some of them had been wholly contracted prior to 1853 (at which time the alleged agreement to allow the defendant commission was first entered into), that others of them had partly been contracted prior to 1853 and partly since, and that the defendant had not introduced the customers; and as to the remainder, that, although contracted subsequently to 1853, the defendant had not introduced the customers, and therefore was not entitled to inspect those accounts at all. On the 24th of December, a summons was taken out, calling upon the plaintiffs to show cause why the defendant should not have a further and better inspection of their ledgers, pursuant to the former order. On this summons coming on for a hearing, the learned judge referred the matter to the court. T. Salter, on a former day, accordingly obtained a rule nisi for a better inspection. In the affidavit produced in support of the motion, the defendant stated that he claimed to have introduced to the plaintiffs all the persons whose names were mentioned in a list annexed, and several others; and that he claimed commission upon the accounts of all such persons, and that whether the same were contracted prior or subsequently to the year 1853, as by his agreement with the plaintiffs he was to have such commission not only upon future but past accounts. J. Brown now showed cause, upon affidavits denying, that, in the year 1853, or at any other time, it was agreed between the plaintiffs and the defendant that the plaintiffs should pay the defendant a commission of 57. per cent., or any other commission, upon all or *any goods which the plaintiffs might thereafter supply in the way of their trade through the defendant's agency and upon *853] . his introduction or otherwise; and that the defendant had been. allowed to inspect and take extracts from all accounts entered in the plaintiffs' ledgers that would in any way assist him in proving his case; and that the accounts entered in such ledgers which the plaintiffs had refused to allow the defendant to inspect and take extracts from, related to matters in which the defendant had no interest, and as to which he had no right to inquire. The defendant is bound by the answer which the plaintiffs have given in their affidavit. This is the rule in equity, which, though it does not absolutely bind, will materially influence the judgment of this In The Sheffield Canal Company v. The Sheffield and Rotherham Railway Company, 1 Phill. R. 484, under the usual order for the production of books, &c., with liberty to seal up on affidavit such parts as did not relate to the matters in question, the defendants had produced a book with certain pages sealed up, and had made the required affidavit. The plaintiffs afterwards, on an affidavit of facts leading strongly to the inference that one of the pages sealed up did relate to the question in dispute, moved that the defendants might produce the book unsealed: but the motion was refused, although the defendants declined to answer the plaintiff's affidavit. In Wigram on Discovery, § 5, it is said: "The exercise of a jurisdiction of this nature cannot be otherwise than pregnant with danger to the interests of those against whom it may be enforced, unless careful provision were made for guarding against its abuse." In § 317, the learned author says: "The great difficulty which the court is sometimes under in refusing to make an order for the production of documents, arises from the consideration that it is giving final effect to the oath of the defendant (the interested party) upon the plain*[854 tiff's right to discovery,-a difficulty which is increased by the observation, that, from the nature of documentary evidence, the defendant may be swearing to that which is rather matter of law than of fact, or at least a mixed question of law and fact. The whole of the plaintiff's case may hinge upon a point like this. On the other hand, it must be observed, that, in refusing to make an order for the production of a document, a court of equity deprives the plaintiff of no evidence to which the law entitles him, and which he can obtain without the aid of a court of equity. A court of equity professes to do no more than add to that evidence which the plaintiff can obtain without its assistance such admissions as he may obtain by the examination of the defendant upon oath. Nor is this technical view of the case unsupported by more general reasoning. The bill may be filed, not to prove a case known or even believed to be true, but to elicit discovery for the chance of what may appear from the defendant's answer and an inspection of his papers. Now, it has been shown, that, in some cases, there is no form of pleading by which a defendant can by demurrer or plea protect himself from all discovery, however false the bill may be. The difficulty suggested is, therefore, strictly unavoidable. The oath of the defendant must be received or the defendant must be without the means of a defence which in truth belongs to him, a proposition too absurd for argument." This principle is further exemplified by the case of Adams v. Fisher, 3 Mylne & Cr. 526, referred to in Wigram, § 153. There the plaintiff, as personal C. B. N. S., VOL. XV.—32 representative of a deceased testator, stated by his bill that the defendant Fisher had acted as his solicitor, and had, in that character, received various sums of money on account of the testator's estate for which he had not accounted, and that he had in his pos*855] session books and papers relating to the testator's estate, and called for a schedule and production of such books and papers, and also prayed an account. The defendant admitted collecting the estate of the testator, and the possession of books and papers relating to the estate, and set out a schedule of them, but insisted that he was not the plaintiff's solicitor, but the solicitor of Fisher, who was the person employed by the plaintiff to collect the estate, and that he was accountable to Fisher only, and not to the plaintiff. Upon a motion for the production of the documents in the schedule, the Lord Chancellor (Lord Cottenham) refused the motion. In the course of the argument, he said,-"Suppose a bill is filed by a person claiming to be a creditor or legatee, or in any other assumed character, and the defendant denies that the plaintiff is what he is alleged to be, but states, on the contrary, that he is a perfect stranger, and denies, in short, everything on which the plaintiff proceeds, but, not having protected himself by plea, he is obliged to answer,-is the plaintiff, as a matter of course, to ask for all the documents in the possession of the defendant which relate to any of the matters introduced in the bill? I only want to know how far you carry the principle,-whether, as a mere matter of course, documents which, if the defendant's allegation is true, have nothing to do with proving the case made by the bill, are to be produced for the plaintiff's inspection. If a bill is filed by a person as a creditor, and he asks for all the title-deeds of the real estate, is the plaintiff entitled to see the title-deeds of a person's estate because he calls himself a creditor, which the defendant denies that he is?" And, in giving judgment, his Lordship says: "Here the defendant has denied the plaintiff's interest: he has on the record stated that *which, as it stands, in my opinion excludes *856] the plaintiff from instituting the suit against him. As long as that stands, I think the plaintiff is not entitled to see the documents." [WILLIAMS, J.-Do you deny the right of the defendant to look at the ledger to ascertain (the thing being disputed) whether or not A. B.'s account began prior to 1853 ?] It is submitted that the defendant can have no right to inspect that which the plaintiffs aver on oath to be a thing in which the defendant has no interest and which cannot therefore form part of his case. The mischief done by granting inspection of that which the party is not entitled to inspect cannot be undone. There is every reason, therefore, why the answer of his opponent upon oath should bind him. T. Salter, in support of his rule.-The plaintiffs have no right to decide by their oath that which is the issue for the jury. ERLE, C. J.-I think the defendant is entitled to inspect all the accounts in which he is interested subsequently to 1852. The plaintiffs may seal up all that they pledge their oath that the defendant has no concern with. Rule absolute. The rest of the court concurring, END OF HILARY TERM. ADDITIONAL CASES FROM CONTEMPORANEOUS REPORTS. IN THE HOUSE OF LORDS. HENRY LORD BISHOP OF EXETER and J. H. COATES June 26, 27, 1866. March 3, 1868.(a) The Canons of 1603 have not been allowed and received so as to form part of the law of England, and bind the laity as well as elergy (Middleton v. Crofts, 2 Atk. 650, 2 Str. 1056, confirmed). But even if binding on the clergy,—then, The 39th Canon of 1603 applies only to the institution of a presentee to a benefice. The 48th Canon of 1603 does not apply to a presentee to a benefice, but does apply to a person seeking to be admitted as curate to an existing incumbent. The right of a patron to present to a benefice is a legal right, subject in its exercise to the bishop's right to examine into the fitness of the presentee, and to reject him for sufficient ground. A clerk who has held preferment in one bishopric is not, on being presented to a living in another bishopric, bound, as a condition precedent to his examination on the question of fitness, to produce letters cestimonial and commendatory from his former bishop. In quare impedit, upon a rejection of the patron's presentee, the bishop's plea must state not only that the presentee is not a fit person, but also in what respect he is not fit, and state it in such a manner as will enable the patron to take issue on the objection, and a proper tribunal to judge of its soundness. An allegation in the plea that the bishop had good reason to believe that the presentee had been guilty of an attempt to commit simony is not sufficient : Semble, that a plea alleging presentation by the bishop as on a lapse must allege notice to the patron of the circumstances under which the bishop would so claim to present. THIS was an appeal against a decision of the Court of Exchequer Chamber, which had confirmed a previous judgment of the Court of Common Pleas. Mr. Marshall was the patron of the rectory of Tregony, in Cornwall, in the diocese of Exeter. He was also a clergyman, and had himself been the incumbent of that rectory, but resigned it on the 3d of August, 1857, and on the 9th of January, 1858, presented thereto John Reid, Clerk, a clergyman who had previously held a living in (a) Law Rep. H. of L. (3 Eng. & Ir. App.) 17. the diocese of Manchester. On the 16th of January, Mr. Reid personally applied to the Bishop of Exeter for admission and institution to the rectory of Tregony, and then produced to the Bishop the following paper:-"To the Right Rev. Henry Lord Bishop of Exeter. We whose names are hereunder written testify and make known that the Rev. John Reid, M. A., Clerk, formerly of St. John's College Cambridge, and late of the rectory of Claughton, in the county of Lancaster, presented to the rectory of Tregony with the vicarage of Cuby annexed, in the county of Cornwall, in your Lordship's diocese, hath been personally known to us for the space of three years last past, that we have had opportunities of observing his conduct, that during the whole of that time we verily believe that he lived piously, soberly, and honestly, nor have we heard anything to the contrary thereof, nor hath he at any time, so far as we know or believe, held, written, or taught anything contrary to the doctrine or discipline of the United Church of England and Ireland. And, moreover, we believe him in our consciences to be, as to his moral conduct, a person worthy to be admitted to the said benefice. In witness, &c. W. B. GRENSIDE. M. A., Vicar of Melling, county of Lancaster. This paper was accompanied by the following certificate from the Bishop of Manchester:-"The subscribers are beneficed in the diocese of Manchester. Mr. Reid was long non-resident on his benefice, but I know no reason why he should be legally hindered from being allowed to take other duty. J. P. MANCHESTER." The Bishop of Exeter informed Mr. Reid at that time that he (the bishop) required other and farther testimony from the Bishop of Manchester, according to the ecclesiastical laws, of Mr. Reid's honest conversation, and ability, and his conformity to these laws. A correspondence ensued between the Bishops of Exeter and Manchester and the brother-in-law of Mr. Reid. No other testimony was ever presented to the Bishop of Exeter, and on the 1st of March, 1858, the living having been vacant upwards of six months, the Bishop of Exeter collated, as upon a lapse, the Rev. Mr. Borwell tc the living. It did not appear that any notice of his intention to do so had been given to Mr. Marshall, the patron. In December, 1858, Mr. Marshall brought Quare Impedit against the Bishop of Exeter and Mr. Borwell. The defendants joined in pleading. Mr. Borwell pleaded that he was parson impersonate of the said church by the collation of the bishop. The bishop pleaded that he did not claim anything in the said church except as Ordinary. The pleadings then alleged that Reid brought testimony from the bishop of the diocese of Manchester, "which he, the Bishop of Exeter, held not to be, and which was not, sufficient testimony, according to the ecclesiastical laws of England, of the said John Reid's honest conversation, ability, and conformity to the ecclesiastical laws of England, or such testimony as he (the Bishop of Exeter) was bound and ought, by the laws ecclesiastical of England, to require, and have, and receive from the bishop of the said diocese whence the said John Reid had come, and in which he had so as aforesaid lately held a |