CHAPTER V. ON PRIVATE WRITINGS, INSPECTION, AND NOTICE TO PRODUCE. THE question how far private writings are primary or admissible evidence was examined in the first chapter of the second part of this work. It will be remembered that, generally, personal ex parte statements are never evidence for the party making them; although they are commonly evidence in the nature of an admission against him (a). But, when private writings contain a contract, or otherwise imbody, or are material to the substance of the issue, they are not only admissible, but also, when producible, indispensable evidence. In such cases a party who relies upon them must either produce them, or account satisfactorily for their non-production. But as such writings are frequently in the hands of an adverse party, who will not voluntarily produce them, the first practical question under this head is to consider how he may be compelled, either to produce them, or to permit an inspection, such as, in the event of non-production after notice to produce, will enable a party to give secondary evidence at trial. (a) Brickell v. Hulse, 7 A. & E. 457; cf. Morgan v. Couchman, 14 C. B. 100. 1. In Chancery. Under the old practice production of documents was obtained by a motion in court grounded on admissions in the defendant's answer, but by 15 & 16 Vict. c. 86, s. 18, it is enacted, that "it shall be lawful for the court, upon the application of the plaintiff in any suit in the said court, whether commenced by bill or by claim, and as to a suit commenced by bill, whether the defendant may or may not have been required to answer the bill, or may or may not have been interrogated as to the possession of documents, to make an order for the production by the original defendant upon oath of such of the documents in his possession or power relating to the matters in question in the suit as the court shall think fit; and the court may deal with such documents, when produced, in such manner as shall appear just." And by section 20, that "it shall be lawful for the court, upon the application of any defendant in any suit, whether commenced by bill or by claim,-but as to suits commenced by bill, where the defendant is required to answer the plaintiff's bill, not until after he has put in a full and sufficient answer to the bill, unless the court shall make any order to the contrary,-to make an order for the production, by the plaintiff in such suit, on oath, of such of the documents in his possession or power relating to the matters in question in the suit as the court shall think right; and the court may deal with such documents as shall appear just." Under these sections the production of privileged documents cannot be enforced (b); nor will the defen (b) Clegg v. Edmondson, 22 Beav. 125, 137; as to Privilege, vide supra, pp. 88-110. dant be required to produce documents relating exclusively to his own title (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 by the character of the documents. V.-C. Bruce, in Combe v. Corporation of London (d), 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. But where it is consistent document may form the with the answer that 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." The right to deal with documents will warrant an order for their production. 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 (e). Where the documents are P. (c) Ingilby v. Shafto, 33 Beav. 31. (d) 1 Y. & Coll. C. C. 631. (e) Hope v. Liddell, 20 Beav. 438. U in the possession of an agent for the party against whom the application is made jointly with other persons, no order to produce to 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 (f), 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 discovery, 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." Drafts in the possession of a banker will not be ordered to be produced (g). Letters written to and in the possession of a party to a suit will, if material, be ordered to be produced although marked "private and confidential," and (f) Cr. & Ph. 124; cf. Clench v. Financial Corporation, L. R. 2 Eq 271. (g) Bayley v. Cass, 10 W. R. 370. 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 (h). When documents contain partly privileged or irrelevant matter and partly unprivileged or relevant, the privileged or irrelevant parts may be sealed up on production. Where 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 (i). 2. At Common Law. When a deed or other private document formed the gist of a plea, the defendant was bound to set it out and tender profert; on which the plaintiff claimed oyer, and so became entitled to a sufficient inspection. But it was found that this practice fostered prolixity of pleading; and it was therefore abolished by the Common Law Procedure Act, 1852, s. 55. The inspection of documents in the hands of an adverse party is now obtained and regulated by the 14 & 15 Vict. c. 99, s. 6; and the 17 & 18 Vict. c. 125, s. 50 (Common Law Procedure Act, 1854). The first of these acts and sections is as follows:"Whenever any action or other legal proceeding shall henceforth be pending in any of the superior courts of common law at Westminster or Dublin, or the Court of Common Pleas for the County Palatine (h) Hopkinson v. Lord Burghley, L. R. 2 Ch. App. 447. |