General rules.

Inspection at common law,

where there is reasonable ground to suppose that the discovery, if ordered, may be followed by inspection under the former act, or by "further order" under the concluding provisions of this section (but see Forshaw v. Lewis, 10 Exch. 712); and thus the right to discovery under this section may be considered as something narrower than that recognized in equity, where a defendant may be compelled to discover, in a general way, his intended defence (see Mitford's Pleadings in Chancery; Wigram on Discovery; Attorney-General v. Corporation of London, 12 Beav. 8; Hunt v. Elmes, L. J. 28, Ch. 680, and cases there cited; Gomm, dem. v. Parrott, ten., 3 C. B., N. S. 47).

In order to make a successful application under this section, three leading points must be attended to.

1. The document must be in the "possession or power of the opposite party," and this must be shown with reasonable certainty (Hewett v. Webb, 2 Jur. N. S. 1189, Q. B.; Bray v. Finch, 1 H. & N. 568; and Thompson v. Robson, 2 H. & N. 412). 2. It must relate to "the matters in dispute."

3. It must be a document "to the production of which the applicant is entitled for the purpose of discovery or otherwise."

This is to be so construed, as to limit the right to discovery by that to inspection, as above pointed out; and it may therefore be well to consider in this place the cases in which inspection may be had, 1stly, at common law; 2ndly, under the 14 & 15 Vict. c. 99, s. 6; 3rdly, under special statutes, and circumstances.

1st. It has long been the practice of the courts, in the exercise of their equitable jurisdiction, to grant inspection of any instrument on which the plaintiff seeks to charge the defendant as a party to such instrument (Ratcliffe v. Bleasby, 3 Bing. 148); when only one part of the instrument has been executed, and the party holding it, is consequently trustee for both (Blogg v. Kent, 6 Bing. 614; Devonoge v. Bouverie, 8 Bing. 1: Doe d. ―v. Slight, 1 Dowl. 163; Doe d. Morris v. Roe, 1 M. & W. 207); so where a counterpart has been lost (Street v. Brown, 6 Taunt. 302: see also Woodcock v. Worthington, 2 Y. & J. 4; Neale v. Swind, 2 Cr. & J. 278; Travis v. Collins, 2 Cr. & J. 625). The holder must be a party, or identical with a party, to the action (Doe d. Morris v. Roe, 1 M. & W. 207). He must be in a position to be regarded as a trustee for the party requiring inspection (Ratcliffe v. Bleasby, supra; Cocks v. Nash, 9 Bing. 723): thus an agent has been compelled to grant inspection of books to his principal (Jones v. Palmer, 4 Dowl. 446); an attorney to grant inspection of a case to his client (Evans v. Delegal, 4 Dowl. 374); a member of a provisional committee to grant inspection of the subscribers' agreement to an allottee (Steadman v. Arden, 15 M. & W. 587):

The party requiring inspection must be a party, or make title under a party, to the instrument (Smith v. Winter, 3 M. & W. 309; Lawrence v. Hooker, 5 Bing. 6; Cocks v. Nash, 9 Bing. 723).

Inspection is granted to enable a party to frame his pleading, or to support his action or defence, as the case may be, though the document is not declared upon (Steadman v. Arden, supra); but it is not granted for other purposes.

It is not granted for the purpose of enabling one party to rebut the anticipated case of the other (Hunt v. Hewitt, 7 Exch. 236; Wright v. Morrey, L. J. 24, Ex. 259; and Riccard v. Inclosure Commissioners, L. J. 24, Q. B. 49: and compare British Empire

Company v. Somes, at Law, 5 W. R. 489, Q. B., with S. C. in Chancery, 5 W. R. 813; Shadwell v. Shadwell, L. J. 28, C. P. 315; and London Gas Light Company v. Chelsea (Vestry), L. J. 28, C. P. 275: see also cases infra). It has been refused when sought for as a foundation for a plea in abatement (Beale v. Bird, 2 D. & R. 419), and where sought for the purpose of procuring evidence in another action (Temperley v. Willett, 6 E. & B. 380); also where the object was to discover alleged forgeries (Chetwind v. Marnell, 1 B. & P. 271; Hildyard v. Smith, 1 Bing. 451); to discover insolvency of a company (in which defendant was a member) so as to support a plea of justification in an action of defamation (Met. Saloon Omnibus Company v. Hawkins, 4 H. & N. 146). But see Wolner v. Devereux (9 Dowl. 672), where Tindal, C. J., takes it for granted that a suggestion of forgery, or an allegation that the instrument had been dealt with since it was executed, or the party swearing that he had no recollection of having made a note, would be ground for an inspection. It has been decided that an allegation that the plaintiff procured bills by fraud, is no ground for an application (Threlfall v. Webster, 1 Bing. 161). Inspection has been refused when asked with a view to the discussion of a rule for a new trial (Wood v. Morewood, 9 Dowl. 44); and inspection of a partnership deed, which the plaintiff had refused to execute, was refused to him, in a suit brought by him for breach of the agreement to take him into partnership; as he was no party to the deed (Ratcliff v. Bleasby, supra). So inspection of letters redelivered by the defendant to the plaintiff, and which he alleged contained a release of his promise, was refused; the plaintiff not being a trustee (Goodliff v. Fuller, 14 M. & W. 4). Inspection will be refused where the object is to enforce penalties (see cases on forfeiture infra, and Chauncey v. Tahourden, 2 Atk. 392; Bullock v. Richardson, 11 Ves. 373; and Pritchett v. Smart, L. J. 18, C. P. 11). Where title to land came into question in an action of trespass, inspection was refused (Pickering v. Noyes, 1 B. & C. 262). But a defendant in ejectment, brought upon a forfeiture, has been allowed inspection of the leases under which he claimed (Doe dem. Child v. Roe, 1 E. & B. 279). A plaintiff in ejectment, brought upon a forfeiture strictly so called, would be refused inspection; though otherwise he would seem entitled to it (see Wigram on Discovery, 134; Boteler v. Allington, 3 Atk. 453; and Attorney-General v. Duplessis, 2 Ves. sen. 286; see also Riccard v. Inclosure Commissioners, supra; and Coster v. Baring, 2 C. L. R. 811).

If the document is not under the control of the party, an order will not be made (Liddell v. Norton, L. J. 23, Ch. 169); but the lien of the party's attorney is no answer to an application for inspection (Ley v. Barlow, 1 Exch. 800; see also Ex parte Shaw, Jacob, 272; Rodick v. Gandell, 10 Beav. 270); and where the person entitled to the lien, is willing to allow inspection, the party cannot resist an order, as the privilege of lien can only be taken advantage of by the person entitled to it.

It appears that the abolition of profert and oyer, and the nature of the substituted proceeding, render the judges more liberal in the exercise of this equitable jurisdiction, even if they do not incidentally enlarge it (see per Lord Campbell in Doe d. Child v. Roe, supra; and per Willes, J., in The Penarth Harbour, &c. Company v. Cardiff Waterworks Company, L. J. 29, C. P. 230).

2nd. Inspection under 14 & 15 Vict. c. 99, s. 6; which enacts Inspection "that whenever any action or other legal proceeding shall hence. under 14 & 15

Vict. c. 99, 8. 6.

Affidavit on which to apply.

forth 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 at Lancaster, or the Court of Pleas for the county of Durham, such Court and each of the Judges thereof may respectively, on application made for such purpose by either of the litigants, compel the opposite party to allow the party making the application to inspect all documents in the custody or under the control of such opposite party relating to such action or other legal proceeding, and, if necessary, to take examined copies of the same, or to procure the same to be duly stamped, in all cases in which, previous to the passing of this act, a discovery might have been obtained by filing a bill, or by any other proceeding in a Court of Equity at the instance of the party so making ap. plication as aforesaid to the said Court or Judge."

Very many cases have been decided upon this section, the most important of which still is, Hunt v. Hewett (7 Exch. 236). The power given to the courts is to allow not a discovery, but an inspection of the documents in the custody of the opposite party, with certain restrictions or limitations. Firstly, there must be a suit or other proceeding pending; secondly, the documents must relate to such action, suit or other proceeding; and thirdly, the cases in which inspection is to be granted, must be such as those where inspection could be obtained by filing a bill for discovery in chancery (Hunt v. Hewett, supra; Gomm, dem. v. Parrott, ten., 3 C. B., N. S. 47). A party is not entitled to search the other party's papers with a view of finding out some invalidity in the case put forward by him (Shadwell v. Shadwell, L. J. 28, C. P. 315). He can inspect those papers, and those only, that may support the case on which he himself relies (Rayner v. Collinson, L. J. 21, Q. B. 68; Galsworthy v. Norman, L. J. 21, Q. B. 70; Scott v. Walker, 1 C. L. R. 944; Collins v. Yates, L. J. 27, Ex. 150 [libel]; Reynoldson v. Morton, 36 L. T. 462, Q. B.; Coleman v. Truman, L. J. 28, Ex. 5): but the right to such inspection, when so far established, is not affected by the consideration that the documents also go to make out the case of the party who holds them (Coster v. Baring, 2 C. L. R. 811; London Gas Light Company v. Chelsea Vestry, L. J. 28, C. P. 275).

See also cases cited (pp. 223, 224) supra.

The leading cases in equity, on the subject of discovery and inspection, in addition to others already cited, are Smith v. Duke of Beaufort (1 Hare, 507; 1 Phillips, 209); Bolton v. Corporation of Liverpool (1 M. & K.88; 3 Sim. 487). See also Short v. Mercier (3 Mac. & Gord. 205; Hunt v. Elmes (L. J. 28, Ch. 680); Adams v. Lloyd (6 W. R. 752, Ex.); Lind v. Isle of Wight Ferry Company (8 W. R. 540, Ch., V. C. W.); and Mertens v. Haigh (1 John. 735). The old mode of obtaining inspection ought to be adopted with such alterations as the nature of the case requires. When an inspection is opposed, an affidavit is necessary as to all the disputed facts; and if all are disputed, the affidavit ought to state as sufficient a case, in all respects, to entitle the party to inspect, as would have been necessary to obtain that inspection which the court had before and still has power to grant at common law (Pepper v. Chamber, L. J. 21, Ex. 81). The affidavit ought not only to show that an action is pending; but ought also to state not a mere suggestion, but circumstances sufficient to satisfy the court or judge, that there are in the possession, or under the

See as to applying for inspection, before declaration, Jones v. Hargreaves (L. J. 29, Ex. 368).

control of the opposite party, certain documents, and that these are relevant to such action, and to the case of the party seeking to inspect them (Hunt v. Hewitt, supra). A party is not entitled, by alleging that his opponent has documents in his possession, to call on him to answer by affidavit whether he has any such documents in his possession relating to the matters in question, and, if any, to specify what they are (Rayner v. Allhusen and Galsworthy v. Norman, supra).

The affidavit must state such facts as would enable the applicant, by a bill of discovery, to obtain inspection of the documents. The right of the plaintiff (in equity) is limited firstly, to a discovery confined to a question in the cause; secondly, to such material documents as relate to the proof of the plaintiff's case on the trial. It does not extend to the discovery of the manner in which the defendant's (in equity) case is to be established, or to evidence which relates exclusively to his case. The party applying must show firstly, what is the nature of the suit, and of the question to be tried in it; and he should also depose to his having just ground to maintain or defend it; and, secondly, the affidavit ought to state with sufficient distinctness the reason of the application, and the nature of the documents, in order that it may appear to the court or judge that the documents are asked for, in order to enable the party applying to support his own case, and not merely to find a flaw in the case of his opponent; and also that the opponent may admit or deny the possession of them (Hunt v. Hewitt, supra).

Inspection has been ordered of books kept at a private lunatic asylum under 8 & 9 Vict. c. 100 (Hill v. Philip, 7 Exch. 232; Rack v. Stilwell, 4 H. & N. 468).

3rd. As to inspection of property under C. L. P. A. 1854, Inspection see s. 58, post.

As to inspection under 15 & 16 Vict. c. 83, s. 42 (Patents), see Jones v. Lee (L. J. 25, Ex 241); Patent Type Founding Company v. Walter (8 W. R. 353, Ch.), where refused at law (Patent Type Founding Company v. Lloyd, 5 H. & N. 192); see also Amies v. Kelsey (L. J.22, Q. B. 84); Shaw v. Bank of England (L. J. 22, Ex. 26 and 210); Holland v. Fox (L. J. 23, Q. B. 211 and 537); and Vidi v. Smith (L. J. 23, Q. B. 342).

There are also provisions for inspection contained in statutes regulating companies and other public bodies, which see pro re natá; and, among other cases, Reg. v. Mariquita, &c. Mining Company (L. J. 28, Q. B. 67).

As to inspection of public documents, parochial and corporation books and court rolls, see Chitty's Practice, 10th ed. pt. v, c. xv; and as to the latter, see also R. G., H. T. 1853, r. 31, post.

Upon an order for inspection of documents, a place for inspection should be named. If in an action, the order may be made before issue joined (Roger v. Turner, L. J. 21, Ex. 8); and even before plea (Forshaw v. Lewis, 10 Exch. 712).

The opposite party, upon an application for inspection, may answer the affidavit by swearing that he has no such documents, or that they relate exclusively to his own case, or that he is for sufficient reason privileged from producing them (Hill v. Philip, 7 Exch. 232; Pritchett.v. Smart, Short v. Mercier, and other cases

under other

statutes.

Power to de

interrogatories to opposite party.

cited supra); [as to confidential communications, see Colman v. Trueman (3 H. & N. 871), where, upon a plea of fraud, inspection was ordered of correspondence between plaintiffs and their agents]; or he may submit to show parts covering the remainder, on an affidavit that the part concealed does not in any way relate to the other party's case (Hunt v. Hewitt, supra). But, semble, that privilege from inspection, is not necessarily a sufficient answer to an application for discovery (Forshaw v. Lewis, 10 Exch. 712); sed quære.

The costs of inspection are generally ordered to be paid by the party applying, and the costs of the application to be costs in the cause; but as there is no general rule upon the subject (Stilwell v. Ruck, 4 H. & N. 468), the order should provide for the costs (Smith v. G. W. R. Company, L. J. 25, Q. B. 279); otherwise none can be recovered.

INTERROGATORIES.

51. In all causes in any of the Superior Courts, by liver written order of the court or a judge, the plaintiff may, with the declaration, and the defendant may, with the plea, or either of them by leave* of the court or a judge may, at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate, any of the officers of such body corporate,† within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a judge shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly.

Interrogatories inadmissible.

It appears upon the construction of this section-coupling together the liability "to be examined as a witness upon such matter," with the right to interrogate "upon any matter as to which discovery may be sought"-that such interrogatories are not within the meaning of this section :

1. As seek exclusively for the case of the other side (Carew v. Davies, 5 E. & B. 709; Whately v. Crawford, 5 E. & B. 709; Edwards v. Wakefield, 6 E. & B. 463; Horton v. Bott, 2 H. & N. 249 (ejectment); Moore v. Roberts, 3 C. B., N. S. 671; Adams v.

This is very obscurely framed in practice, leave is invariably required, whether the interrogatories be delivered with the declaration, or with the plea, or "at any other time." Compare s. 52, post. The time of the application is not so material as its other circumstances. See as to time, James v. Barnes, 17 C. B. 596; but semble, that when the application is made at such "other time," the affidavit in support may be required to disclose merits (Martin v. Hemming, 10 Exch. 478; sed quære, see James v. Barnes, supra.

This has been extended to a public officer of a joint stock bank under 7 Geo. 4, c. 46 (M'Kewan, P. O., v. Rolt, 4 H. & N. 738).