The order of COLERIDGE, J., stated that the interrogatories were to correspond with those in the case of Flitcroft v. Fletcher (1).

Prentice showed cause, in last Easter Term (May 7th): The case of Flitcroft v. Fletcher (1) is an authority for allowing these interrogatories. There it was held that the 51st section of the Common Law Procedure Act, 1854, applies to actions of ejectment, and also that under that section a defendant in ejectment is entitled to interrogate the plaintiff as to the character in which he sues, and the nature of the pedigree on which he relies. The only difference between that case and the present is, that there the defendant sought to interrogate the plaintiff, but that makes that makes no difference in principle.

(MARTIN, B.: Is there *any case in equity where an ejectment having been brought by an heir-at-law against a party in possession, the Court has compelled the defendant to disclose his title ?)

The rule laid down in The Attorney-General v. The Corporation of London (2) is, that a plaintiff is entitled to know what the defendant's case is and how he makes it out, but not to see the proofs by which that case is to be established.

(CHANNELL, B.: The Attorney-General v. The Corporation of London proceeded on peculiar grounds. The defendants were conservators of the river Thames, and they alleged that they were owners of the bed and soil of the river, and the question was whether certain acts of ownership done by them. were referable to their claim of title, or to their power and authority as conservators. So that the Crown was clearly entitled to some discovery, the question being as to its extent.)

The judgment proceeded on the broad ground, that a plaintiff in equity is always entitled to a discovery of the case on which. the defendant relies. The interrogatories ought to be administered, and if they are improper, the defendant may object to

answer them.

Quain, in support of the rule:

The Court are asked to lay down this doctrine, that a person out of possession may bring ejectment and compel the person in possession to give assistance in ejecting himself. Flitcroft v. Fletcher (1) does not go to that extent, for there the discovery was sought by the defendant. That decision however (1) 105 R. R. 637 (11 Ex. 543). (2) 86 R. R. 92 (2 Mac. & G. 247). R.R.-VOL. CXV. 33

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was disapproved of by the Court of Queen's Bench in the case
of Edwards v. Wakefield (1). There Lord CAMPBELL, in deliver-
ing the judgment of the COURT, said, "We were much pressed
with the recent case of Flitcroft v. Fletcher in the Exchequer.
If the Court there meant to decide that the defendant may
always ask the plaintiff to declare on *oath how he means to
shape his case, we are not prepared to assent to it, and we
should not feel ourselves bound, by a decision of this nature,
to the same extent as where a decision can be reviewed on
error, even if the case were precisely in point." Flitcroft v.
Fletcher may perhaps be supported on the ground adverted to
by ALDERSON, B., viz., that "the Court has a general power
to require a person who seeks to disturb the possession of
another to say by what right he does so." Here the plaintiff,
who is out of possession, is seeking to compel the party in
possession to disclose his title. In Bellwood v. Wetherell (2)
Lord ABINGER, C. B., said, "Where a party is in possession
of an estate, and a perfect stranger comes to turn him out,
alleging himself to be the person entitled, it is but reasonable
that the party so attached should have an opportunity of
knowing the plaintiff's case, so far as whether he claims as
heir-at-law-whether he claims under a devise or whether he
alleges any imperfection in the defendant's title-deeds. There
the defendant is taken by surprise, and therefore I can easily
understand in such a case why, not the evidence, but the nature
of the title should be disclosed." To allow these interrogatories
would be to supersede the established rule of law, that a plain-
tiff in ejectment must recover on the strength of his own
title; and it would also be contrary to the rule which prevails
in courts of equity: Wigram on Discovery, p. 285, 2nd ed.
Cur. adv. vult.

The judgment of the COURT was delivered by
BRAMWELL, B.:

This is a rule to set aside an order of my brother COLE-
RIDGE requiring the defendant to answer interrogatories.

The facts deposed to in the affidavits were, that the *plaintiff was the heir-at-law of a person who died in the early part of this century seized in fee of land, which went to his heir, and ultimately to a lady who married and died after having had some children, when her husband took possession and Occupied until his death last year: that after his death the plaintiff brought this action of ejectment, and applied to the professional gentleman, who acted on behalf of the parties (1) 6 El. & Bl. 462. (2) 41 R. R. 242 (1 Y. & C. 206).

now in possession, to know what their title was, and was told that it was under a settlement executed by the lady before mentioned, and the interrogatories ordered to be answered were relative to this alleged deed of settlement and the title of the defendants under it. It was insisted on behalf of the defendants that there was no power to order such interrogatories. The authority is given by the 51st section of the Common Law Procedure Act, 1854, which enacts that interrogatories may be required to be answered upon any matter as to which discovery may be sought. Of course this must mean according to the rules existing in courts of equity. And the question was whether the discovery sought was within those rules.

We may be permitted to say that (perhaps owing to our want of familiarity with the subject) the remark of Lord ABINGER in Bellwood v. Wetherell (1) seems well founded"Upon looking at the cases some of them appear extremely embarrassed and contradictory, and no steady principle is adopted in them." In Wigram on Discovery the rule is thus stated: "The right of a plaintiff in equity to the benefit of the defendant's path is limited to a discovery of such material facts as relate to the plaintiff's case, and does not extend to a discovery of the manner in which the defendant's case is to be established, or to evidence which relates exclusively to his case." Of course this would not include the discovery sought by the plaintiff; but in page 285 of the same book the author *says: "Lord Redesdale, however, in speaking of the purposes for which discovery is given says, the plaintiff may require ‘a discovery of the case on which the defendant relies, and of the manner in which he intends to support it' (2). The first of these propositions that a plaintiff is entitled to a discovery of the case on which the defendant relies, that is, that the plaintiff is entitled to know what the case is, admits of no doubt. The common rules of pleading make it necessary that the defendant should so state his case that the plaintiff may know with certainty what case he has to meet; and on the trial, by observance of these rules, a plaintiff is secure against surprise. It is at the peril of the defendant if his pleadings are defective in this respect (3), but this is quite independent of the law of discovery." The general rule therefore as to discovery seems unqualified by this doctrine of Lord Redesdale's, sanctioned by Sir J. Wigram. But there are other authorities. In Bellwood v. Wetherell (1) Lord ABINGER says, "Now the obvious line to be drawn is this-that though in general the

(1) 41 R. R. 242 (1 Y. & C. 206).
(2) Referring to Redes. Pleading, 9.

(3) Referring to Sidney v. Sidney, 3 P. Wms. 269, &c.

deleppent has no right to the Glemtery of the paintifs title,
yet in era caves he will be entitled to a discovery of the
nature though not of the evidence of that the Xons, where
a party fie a bill as ressor, the defendant may fle a cries-
bul to see whether the plaintif in the original sut is entitled
to has that which he admite may be due to somebody. The
defendant may a.rge that some other person is entitled, and
in such case he may file Lis bill of interpleader. If he does
not go that length, he may suggest that he has had notice
that some other person is entitied paramount to the plaintiff,
or that the plaintiff has parted with his right to the titles:
and in such case, though there is no ground whatever to
*make the party disclose the evidence of his title, still there
is ground to call on the party to discover the nature of his
title, so that the defendant shall not be harassed a second
That would apply to several cases: as for instance, if
the defendant to an original suit had established a modus, and
it then turned out that the plaintiff had parted with his interest,
a person claiming by a paramount title might say that he
was not bound by the decision. It is clear that in such case
the defendant would have a claim to discovery of the nature
of the plaintiff's title, in order to protect himself in that par-
ticular payment." So, in Metcalf v. Hervey (1), Lord HARD-
WICKE says, "The question comes to this, whether any person
in possession of an estate, as tenant or otherwise, may not
bring a bill to discover the title of a person bringing an
ejectment against him, to have it set out and see whether that
title be not in some other. I am of opinion he may, to enable
him to make a defence in ejectment, even considering him as
a wrong doer against everybody." In Glegg v. Legh (2) dis-
covery of even the title was refused. In Lowndes v. Davies (3)
that and more were granted to a person in possession, defen-
dant in a suit in equity and a writ of right, who had filed
a cross-bill; this case however is denied by Sir J. Wigram
in his book on Discovery, p. 290. Flitcroft v. Fletcher (4) was
also a
case where a person in possession sought discovery
of the title or case of the plaintiff suing him. Selby v.
Selby (5) was determined on a point of pleading. The Attorney-
General v. The Corporation of London (6) was also decided on
the particular relation between the plaintiff and defendants.

In the result we find no case in which a plaintiff, as in
*the present case, making a claim, hereby gives himself a right
to call on a person in possession to state by what title he
(1) 1 Ves. Sen. 249.

(2) 4 Madd. 193.

38 R. R. 152 (6 Sim. 468).
105 R. R. 637 (11 Ex. 543).

(5) 4 Br. C. C. 11.

(6) 86 R. R. 92 (12 Beav. 8; affd. 2 Mac. & G. 247).

is so.
On the contrary, the grounds of decision in the cases
cited are inconsistent with such a right.

The case of an heir-at-law claiming against a person deriving title by conveyance from one of the claimant's ancestors must have been of constant and continued occurrence year after year; and the circumstance of no case existing in which such a discovery as that now sought for was obtained is, to our minds, strong to show that there is not a right to it. If such a right existed, it would, in an infinite number of instances, have been of the utmost importance to heirs-at-law to have availed themselves of it. It is impossible not to see that such a right to discovery might have some most pernicious consequences. If it is to be established at all it had better be in a court of equity familiar with these questions. As at present advised we think it does not exist, and consequently make this rule absolute.

HORTON

v.

BOTT.

Rule absolute.

RICARDO v. THE MAIDENHEAD LOCAL

BOARD OF HEALTH.

(2 H. & N. 257-267; S. C. 27 L. J. M. C. 73; 29 L. T. O. S. 165; 5 W. R. 691.) The 103rd section of "The Public Health Act, 1848," provides, that if any person assessed to a rate under that Act fail to pay the same when due, a justice may summon the defaulter to show cause why the rate should not be paid and if no sufficient cause be shown, the justice may cause the same to be levied by distress (1). By section 135 (2), any person who shall think himself aggrieved by any such rate, or by any order, conviction, judgment or determination of or by any matter or thing done by any justice in any case in which the penalty imposed or the sum adjudged shall exceed 208., may appeal to the Court of Quarter Sessions held next after the making of the rate. The Act having been put in force within the borough of M., the local board made three several district rates, and assessed R. in sums amounting to 47. 58. 6d. in respect of premises occupied by him. R. refused to pay the rates on the ground that the greater portion of the premises occupied was not within the borough. He was thereupon summoned before two justices who made an order, whereby, after reciting the refusal to pay the rates, that the parties appeared before them, and having heard the matter of complaint, they adjudged that R. pay the several rates with costs, and that if the several sums be not forthwith paid, that the same be levied by distress. R. appealed against this order to the Court of Quarter Sessions, who quashed the order with costs to be paid by the local board, who thereupon appealed to this Court for a prohibition, on the ground that the appeal to the Sessions would not lie: Held, that as the matter was not free from doubt, the Court ought not to grant a prohibition. Semble: That the "sum adjudged" in the 135th section means the sum in respect of which the adjudication was made; and, therefore, that the order of the justices was a matter or thing done by them in which the sum adjudged exceeded 208. within the meaning of that section.

THIS was a rule calling on the justices of the General Quarter Sessions of the peace for the county of Berks, and Albert distress warrant.

(1) By the corresponding section (s. 256) of the Public Health Act, 1875, the Court is required to make an order for payment before issuing a

(2) See now s. 269 of the Public Health Act, 1875, as amended by s. 32 of the Summary Jurisdiction Act, 1879.

1857. May 22.

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