he purchases the equity of redemption, can he be compelled to produce the conveyance to him (8). Where, however, a mortgagee purchased the equity of redemption from a trustee, with notice of the trust, he was held not entitled to refuse production of the conveyance to him in a suit by cestui que trust for redemption and reconveyance (t). Where a mortgage security is impeached, the security must be produced, although the mere fact of charging a mortgagee with fraud will not entitle a mortgagor to production (u); and this applies to all deeds which are impeached, and not only to mortgages (r). Where a mortgage has been made since the Conveyancing Act, 1881, came into operation, then subsection 1 of section 16 of that act applies, which is as follows:-"A mortgagor, as long as his right to redeem subsists, shall, by virtue of this act, be entitled from time to time, at reasonable times, on his request and at his own cost, and on payment of the mortgagee's costs and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, the documents of title relating to the mortgaged property in the custody or power of the mortgagee.

Letters written to and in the possession of a party to the suit will, if material, be ordered to be produced, although marked "private and confidential,”

(8) Greenwood v. Rothwell, 7 Beav. 291.

(t) Smith v. Barnes, L. R., 1 Eq. 65.

(u) Cf. Republic of Costa Rica v. Erlanger, L. R., 19 Eq. 44; 44 L. J., Ch. 402; 23 W. R. 108.

(x) Bassford v. Blakesley, 6 Beav. 131.

and although the writer objects to their production; but the party claiming their production must enter into an undertaking not to use such letters for any collateral object (y). The mere heading "confidential" cannot protect a document from production (≈). Where documents are confidential, whether so headed or not, it would seem to be the true principle that a primâ facie case for production must be made out to justify the court in ordering production, but wherever fraud is pleaded, all documents which would throw any light on the alleged fraud ought to be produced (a).

When documents contain partly privileged or irrelevant matter and partly unprivileged or relevant, the privileged or irrelevant parts may be sealed up on production. Thus a part of a pedigree was allowed to be sealed up on an affidavit by the defendants that it related to their title and not to the plaintiffs' (b); but when the parts which might be thus concealed are so interspersed with those parts which are producible that sealing up is impossible, it seems that, except in extraordinary cases, no order to produce will be made (c).

(y) Hopkinson v. Lord Burghley, L. R., 2 Ch. 447; 36 L. J., Ch. 605; 15 W. R. 543.

(z) Per Bovill, C. J., Mahoney v. National Widows' Life Insurance Fund, L. R., 6 C. P. 256; 40 L. J., C. P. 205.

(a) Mahoney v. National Widows' Life Insurance Fund, L. R., 6 C. P. 252; 40 L. J., C. P. 203; 19 W. R. 722.

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

(c) Churton v. Frewen, 2 Dr. & Sm. 394.

A defendant has been held entitled to production of documents although in contempt (d).

The order usually made is for the party, his solicitors and agents, to inspect the documents. This form of order has been held to include a confidential agent whose assistance is necessary to carry on the suit, although he was a witness in the cause (e), and the usual rule of the Court of Chancery was that witnesses were not allowed to inspect documents before the hearing (ƒ). When Y. was named in a bill as the agent of the plaintiffs (a foreign republic) in this country, the defendants were required to produce their documents to S., who was stated in the affidavit of the plaintiff's solicitor to be their agent for the purposes of the suit (g). A special order may be made on special grounds for any other person (besides the solicitor or agent of the party) to inspect (). Thus the assistance of surveyors will be allowed in mining actions (h), of scientific persons in patent actions (i), and of accountants when the accounts are complicated (k).

Again, it must be observed that, where the plaintiff's title to relief is denied by the defendant, the

(d) Haldane v. Eckford, L. R., 7 Eq. 425; 38 L. J., Ch. 372; 17 W. R. 570.

(e) Att.-Gen. v. Whitwood Local Board, 40 L. J., Ch. 592; 19 W. R. 1107.

(f) Boyd v. Petrie, L. R., 3 Ch. 818; 17 W. R. 903.

(g) Republic of Costa Rica v. Erlanger, L. R., 19 Eq. 44; 44 L. J., Ch. 402; 23 W. R. 462.

(h) Swansea Railway Co. v. Budd, L. R., 2 Eq. 274.

(i) Bonnardet v. Taylor, 1 J. & H. 386.

(k) Lindsay v. Gladstone, L. R., 9 Eq. 132.

defendant ought not to be compelled to produce all documents, but only those which are necessary or material to the question to be decided at the hearing or trial. This principle was acted upon by the Court of Chancery, and has been substantially adopted in Rule 20 of Order 31 of R. S. C. 1883, and is constantly applied by the High Court (1).

It will be noticed that, as regards documents other than those referred to in pleadings and affidavits, production before trial can only be obtained by means of an order, but that, as regards documents referred to in a party's pleadings or affidavits, his opponent can, under Rule 15, give a notice for their production, and need only apply for an order for production if such notice is disregarded, or not properly complied with. An important question then is, does the term "pleadings or affidavits" in Rule 15 include an affidavit of documents made under Rule 12? This point cannot be considered as finally settled. Seeing that in Rule 18 the same term clearly does not include an affidavit of documents, because the term affidavit of documents is used in contradistinction thereto, it may be supposed that it was not intended to include it in Rule 15, but the practice of the Queen's Bench is to treat affidavits of documents as included in the word "affidavits" in Rule 15, and in the Chancery Division the old form of order is followed, i.e. where an order for an affidavit of documents is made it goes on to order production.

(1) Rowcliffe v. Leigh, L. R., 6 Ch. D. 256; 25 W. R. 783; Verminck v. Edwards, 29 W. R. 189.

All documents coming within Rule 15 must be produced, and an order to inspect them will be made as a matter of course at any stage of the proceedings before the trial, unless good cause to the contrary is shown (); the intention being to give the opposite party the same advantage as if the documents were fully set out in the pleadings (k). Of course the claim of privilege is not lost in respect of a document by mentioning or setting it out in a pleading or affidavit (7); but if it is claimed and the document is not produced it cannot be given in evidence at the trial without the leave of the court or judge, unless it falls within any of the exceptions mentioned in Rule 15. The documents need not be referred to with any particularity to come within the rule, a general reference is quite sufficient (m). The production of copies of documents referred to in pleadings or affidavits cannot be claimed under this rule, but if the documents referred to are copies their production can be enforced (i); and where entries in books are referred to inspection can be had of such entries only, and not of the entire books (i).

A party who has made an affidavit of documents under Rule 12 cannot be cross-examined upon it, nor can evidence be adduced to contradict the allegations therein, but if an affidavit be insufficient a

(i) Quilter v. Heatly, L. R., 22 Ch. D. 42; 31 W. R. 331. (k) Ibid.

(1) Roberts v. Oppenheim, L. R., 26 Ch. D. 724; 32 W. R. 390. (m) Smith v. Harris, 48 L. T., N. S. 868.