satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection."

Rule 21. "If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court or a judge for an order to that effect, and an order may be made accordingly."

The principles embodied in these rules do not differ very materially from those embodied in 15 & 16 Vict. c. 86, s. 18, which regulated the practice in the Court of Chancery, and 14 & 15 Vict. c. 99, s. 6, and 17 & 18 Vict. c. 125 (Common Law Procedure Act, 1854), s. 50, which regulated the practice of the courts of common law. The decisions on these acts are, therefore, still of practical importance, but it must be borne in mind that now, when there is any conflict between the rules of law and equity with reference to the same matter, the rules of equity are to prevail; but this, though true of rules of legal principle, is not considered to be true

of mere rules of practice, as to which the more convenient practice will be adopted (c).

In the first place, then, it has been held that all documents are primâ facie producible, but that production of privileged documents cannot be enforced (d); and although a party has a right to the production of all documents that relate to his own case alone, or to his case conjointly with that of his adversary, he has no right to the production of documents that are irrelevant to the issue, or that relate exclusively to the title of his adversary (e); but it will not be sufficient merely to allege that the documents relate exclusively to the title of the party resisting production, if that conclusion is opposed to the character of the documents. Knight Bruce, V.-C., in Combe v. Corporation of London (f), said:-"If it be, with distinctness and positiveness, stated in an answer that a document forms or supports the defendant's title and is intended to be or may be used by him in evidence accordingly, and does not contain anything impeaching his defence or forming or supporting the plaintiff's title or the plaintiff's case, that document is, I conceive, protected from production, unless the court sees upon the answer itself that the defendant erroneously represents or misconceives its nature;

(c) Newbiggin Gas Co. v. Armstrong, L. R., 13 Ch. D. 310; 49 L. J., Ch. 231; 28 W. R. 217.

(d) Clegg v. Edmondson, 22 Beav. 125, 167.

vide supra, Part I. Chap. VII.

As to privilege,

(e) Ingilby v. Shafto, 33 Beav. 31; cf. Minet v. Morgan, L. R.,

8 Ch. 361; 42 L. J., Ch. 627; 21 W. R. 467.

(f) 1 Y. & Coll. C. C. 631.

but where it is consistent with the answer that the document may form the plaintiff's title or part of it, may contain matter supporting the plaintiff's title or the plaintiff's case, or may contain matter impeaching the defence, then I apprehend the document is not protected; nor I apprehend is it protected if the character ascribed to it by the defendant is not averred by him with a reasonable and sufficient degree of positiveness and distinctness" (g). It has been held that a defendant can only avoid production of documents, the possession and relevancy of which he admits, by giving a reason for alleging that the production is unnecessary for the decision of the issue, or that the discovery would be injurious to himself (h). The court will accept the oath of a litigant whether documents are relevant or not, but the other party is entitled to the production of all relevant documents except such as the court can clearly see to have no bearing on the issue (i). Every document which will throw any light on the case is primâ facie relevant, and will, therefore, be open to inspection (); and relevant documents for this purpose are not simply those which would be evidence to prove or disprove any matter or question in the action, but they include every document which may (although not necessarily must) either directly or

(9) Approved in Attorney-General v. Emerson, L. R., 10 Q. B. D. 191; 52 L. J., Q. B. 67; 31 W. R. 191.

(h) Hough v. Garrett, 44 L. J., Ch. 365.

(i) Mansell v. Feeney, 2 J. & H. 320.

(k) Per Blackburn, J., Hutchinson v. Glover, L. R., 1 Q. B. D. 141; 45 L. J., Q. B. 12; 24 W. R. 186.

indirectly enable either party to advance his own case or to damage the case of his adversary (7).

The right to deal with documents will warrant an order for their production; and therefore a party will be ordered to produce documents in the possession of his agent or of his solicitor, whose ordinary lien is no defence to production (m). Where the documents are in the possession of an agent for the party against whom the application is made jointly with other persons, no order to produce will be made, but the party will be compelled to discover by answer any knowledge he may be able to obtain by inspecting such documents. A fortiori these principles apply to cases where the documents sought are in the possession of the party jointly with others. Lord Cottenham, in Taylor v. Rundell (n), said: "It is true that the rule of court, adopted from necessity, with reference to the production of documents, is, that if a defendant has a joint possession of a document with somebody else who is not before the court the court will not order him to produce it, and that for two reasons: one is, that a party will not be ordered to do that which he cannot or may not be able to do; the other is, that another party not present has an interest in the document which the court cannot deal with. But that rule does not apply to dis

(1) Per Brett, L. J., Compagnie Financière du Pacifique v. Peruvian Guano Co., L. R., 11 Q. B. D. 63; 52 L. J., Q. B. 185; 30 W. R. 395.

(m) Hope v. Liddell, 20 Beav. 438.

(n) Cr. & Ph. 124; cf. Clench v. Financial Corporation, L. R., 2 Eq. 271.

covery, in which the only question is, whether as between the plaintiff and the defendant the plaintiff is entitled to an answer to the question he asks; for if he is, the defendant is bound to answer it satisfactorily, or, at least, show the court that he has done so as far as his means of information will permit." When privilege is claimed on this ground the party claiming it must show enough to satisfy the court what the nature of the joint ownership is (0). The mere fact that a person not before the court has an interest in documents is no ground for resisting production (p); but where a defendant in a suit relating to transactions in which he was engaged on his own account had made entries of such transactions in the books of a partnership, it was held that he could not be compelled to produce such books without the consent of his co-partner, and that the plaintiff should interrogate him so as to compel him to set forth the entries, and then enforce production of the originals at the hearing by serving a subpœna duces tecum on the co-partner (q).

A mortgagee cannot (except as hereinafter mentioned) be compelled to produce his security (including title deeds deposited with him) except on payment of his principal, interest and costs (r); nor, if

(0) Bovill v. Cowan, L. R., 5 Ch. 495; 18 W. R. 533.

(p) Kettlewell v. Barstow, L. R., 7 Ch. 693; 41 L. J., Ch. 718; 20 W. R. 917.

(9) Hadley v. M'Dougall, L. R., 7 Ch. 312; 41 L. J., Ch. 504; 20 W. R. 393.

(r) Chichester v. Marquis of Donegal, L. R., 5 Ch. 502; 39 L. J., Ch. 694; 18 W. R. 531.