Discovery.

Inspection of premises and chattels.

order for taking the oral examination of a party may make, if need be, a special report to the court, touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto; and the court may take such proceedings upon such report as justice may require, and as may be instituted and made in any case of contempt of the court (s. 56). The costs of the proceedings on the oral examination of a party, are in the discretion of the court or judge by whom the rule or order for the examination is made (s. 57).

Connected with the discovery of facts and documents, for obtaining which the procedure I have endeavoured to describe has been provided, is the inspection, by a party or by the jury, of premises or chattels in the possession or under the control of his opponent. There has hitherto been no adequate means whereby this inspection could be obtained.

The Jury Act (6 Geo. IV. c. 50. s. 23) allows a rule for a view by the jury, but confines it to "the place in question." A narrow construction has been put upon this Act. Thus in an action for the value of work done to the defendant's house, the defence being the bad quality of the work, a rule for a view of the house was set aside. The inspection of the work in such a case would obviously have materially assisted the judgment of the jury. So will an inspection in all actions in which the quality or construction of machinery, or the condition or value of goods, are in dispute.

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"Inspection by parties and their witnesses is in

many cases requisite, in order to do equal justice. "The party in whose possession the object sought "to be inspected is, has opportunities of showing "it to any persons, and selecting such only as are "favourable to his own views; other evidence "equally important may be excluded altogether, if

"the opposite party is debarred from obtaining Discovery. "inspection." (Second Report, p. 37.) The Common Law Commissioners, in recommending that an inspection of premises or chattels should be obtainable by a party for himself, the jury, or his witnesses, expressed an opinion "that the con"troversy between the parties might be decided by "the inspection. If the persons inspecting did not "entertain an opinion favourable to the party on "whose behalf they were called, further litigation "would be felt to be useless, and the action might "be settled without further expense."-(Second Report, p. 37.)

The recommendation of the Commissioners has been adopted by the Legislature. Either party to an action may now apply to the court or a judge for a rule or order for the inspection by the jury, or by himself, or by his witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute ; which rule or order may be made upon such terms as to costs and otherwise as such court or judge may direct (s. 58).

CHAPTER IV.-EQUITABLE Defences.

THERE are some cases in which Courts of Law and Courts of Equity apply different rules of right and wrong to the same subject-matter, the most glaring instance of which occurs where a Court of Law is obliged to hold untenable a defence, which a Court of Equity considers valid. A Court of Law must consequently give a judgment in favour of the plaintiff, which a Court of Equity immediately restrains him from enforcing. "Thus "when one of the parties to a deed under seal has “*** entered into some agreement not under "seal, by which another party to the deed would "be absolved from the performance of his cove

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nant, but for the circumstance of its being "under seal (which * * * nullifies in a Court of "Law the defence arising out of such an ** "agreement, and subjects the covenanting party "to a judgment for the damages occasioned by "his breach of covenant, thus left technically "unexcused), a Court of Equity will interpose, "and, disregarding the mere formality of the "seal, will by injunction perpetually prohibit the party, whose * * * agreement but for that for

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mality would have constituted a defence, from "enforcing the judgment which he has obtained, "and which, but for the imperative strictness of "the law, the Common Law Courts would not "have pronounced."

It would be out of place to attempt here any sketch of the long conflict which took place

between the Courts of Law and the Court of Equitable Defences. Chancery, and which came to a climax in the time of Lord Coke and Lord Chancellor Ellesmere. It has long been notorious that the Courts of Common Law did not possess sufficient power to prevent the law, as administered by them, from being made the means of vexation and expense. Whether they have the power now remains to be seen. The Common Law Commissioners recommended that these courts should be empowered to receive equitable defences by way of plea in every case in which the party pleading them would be entitled to relief in equity; and that in cases where such relief in a Court of Equity would be conditional or discretionary, the Courts of Law should have power to give, in a summary way, the same relief against actions pending therein, as might be obtained by resorting to the Court of Chancery. The Legislature has not, however, conceded to the Courts of Law, the summary jurisdiction proposed to be conferred on them, nor has it enabled these courts to repel in all cases inequitable defences, as, for instance, in ejectment, an outstanding legal estate held in trust for the plaintiff. In this action, no doubt, the names of the trustees who are possessed of the term may be inserted as claimants in the writ; and they may thus recover possession of the premises for the real claimant. One very inequitable defence, however, can no longer be set up; for it is specially provided, that in any action on a bill of exchange or other negotiable instrument, the court or a judge may order that the loss of the instrument shall not be set up, provided an indemnity be given against the claims of any other person upon such instrument (s. 87).

Although, however, Parliament has not seen fit to carry out to the fullest extent the recommendations of the Commissioners, it has conferred

C

Equitable
Defences.

on the Courts of Common Law a most extensive equitable jurisdiction.

The defendant (or plaintiff in replevin) in any cause in any of the Superior Courts in which, if judgment were obtained, he would be entitled to relief against such judgment on equitable grounds, may now plead the facts which entitle him to such relief by way of defence (s. 83); and the plaintiff may in like manner reply, in answer to any plea of the defendant, facts which avoid such plea upon equitable grounds (s. 85).*

In case, however, it appears that any such equitable plea or equitable replication cannot be dealt with by a Court of Law so as to do justice between the parties, the court or a judge may order the same to be struck out, on such terms as to costs and otherwise, as to such court or judge may seem reasonable (s. 86).

It would be quite impossible to enumerate, or to attempt even to enumerate, within any reasonable limit, the numerous cases in which a defence on equitable grounds may now be pleaded in an action at law. The mode in which Courts of Equity have afforded relief to suitors against the judgments of a Court of Law has been by injunction, and the rule upon which they have acted has been thus stated by text-writers: "Wherever a party by fraud, accident, or otherwise, has an "advantage by proceeding in a court of ordinary "jurisdiction, which must necessarily make that "court an instrument of injustice, a Court of Equity, to prevent manifest wrong, will interpose by restraining the party whose conscience is

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*Any such matter which, if it arose before or during the time for pleading, would be an answer to the action by way of plea, may, if it arise after the lapse of the period during which it could be pleaded, be set up by way of auditâ querelâ (s. 84).