General rules.

matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so, on what grounds) to the production of such as are in his or their possession or power; and, upon such affidavit being made, the court or judge may make such further order thereon as shall be just.

It is essential to distinguish between the right to discovery, and the narrower right to inspection. This section provides primarily for the former; and is in aid of the 14 & 15 Vict. c. 99, s. 6 (see post, p. 252), which enlarged the old common law right to the latter. It would thence seem that an order for discovery should only be made 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, 27 Beav. 62; 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., M. T. 1856; Bray v. Finch, 1 H. & N. 568; Thompson v. Robson, 2 H. & N. 412; Houghton v. London and County Assurance Company, 17 C. B. N. S. 80; and Evans v. Louis, L. R. 1 C. P. 656).

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.

V.

Inspection at It had long been the practice of the courts, in the exercise of common law. their equitable jurisdiction, to grant inspection of any instrument on which the plaintiff sought to charge the defendant as a party to such instrument (Ratcliffe v. Bleasby, 3 Bing. 148), when only one part of the instrument had been executed, and the party holding it, was consequently trustee for both (Blogg v. Kent, 6 Bing. 614; Devonoge v. Bouverie, 8 Bing. 1; Doe d. Slight, 1 Dowl. 163; Doe d. Morris v. Roe, 1 M. & W. 207); so where a counterpart had been lost (Street v. Brown, 6 Taunt. 302); so of letters, where no copies had been kept, and where the action was based upon the letters (Price v. Harrison, 8 C. B., N. S. 617; L. J. 29, C. P. 335; Stone v. Strange, 3 H. & C. 541; L. J. 34, Ex. 72); 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 have been a party, or identical with a party, to the action (Doe d. Morris v. Roe, 1 M. & W. 207). He must have been in a position to be regarded as a trustee for the party requiring inspection (Ratcliffe v. Bleasby, ubi 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); and even to give copies also of alleged private memoranda, which were made by him in the course of his employment (Bishop of Winchester v. Bowker, 29 Beav. 479); but discovery will not be ordered of books which are clearly the private property of the agent (Colyer v. Colyer, L. J. 30, Ch. 408); an attorney has been obliged 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 subscriber's agreement to an allottee (Steadman v. Arden, 15 M. & W. 587); a company suing an alleged shareholder for calls, to grant inspection to him of the registry of shares, allotment and agenda books in the possession of the company (Lancashire Cotton Spinning Company v. Greatorex, 14 L. T. N. S. 290, Ex. E. T. 1866); a railway company to grant inspection of all their minutes relating to the employment of a servant, in an action by him for wrongful dismissal (Hill v. The G. W. Railway Company, 10 C B., N. S. 148); the trustees under a composition deed, framed under s. 192 of the Bankruptcy Act, 1861, to grant inspection to a creditor of the assents to the deed (Andrew v. Pell, L. R. 2 C. P. 251); a shipowner suing an underwriter, to grant inspection of documents in any way relating to the subject-matter of the policy sued on (Rayner v. Ritson, 6 B. & S. 888; L. J. 35, Q. B. 59); see Kellock v. Home and Colonial Insurance Society (12 Jur. N. S. 653. Ex. T. T. 1866), as to what inspection the underwriter is bound to grant in such an action.

As to what inspection a railway company will be ordered to grant in an action against them for negligence causing death, see Baker v. L. & S. W. Railway Company (2 Weekly Notes, 1867, p. 285, Q. B. M. T.; post, p. 254).

Where a judge has made an order for inspection, the courts are very reluctant to interfere with the discretion he has exercised (Lancashire Cotton Spinning Company v. Greatorex, ubi supra).

The party requiring inspection must have been a party, or he must have made 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); and a cause or proceeding must have been commenced (In re Burton and The Saddler's Company, L. J. 31, Q. B. 62).

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

It has been refused when sought for as a foundation for a plea in abatement (Beale v. Bird, D. & R. 419); also where the object was to discover alleged forgeries (Chetwind v. Marnell, 1 B. & P. 271; Hildyard v. Smith, 1 Bing. 451). 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 see Pratt v.

Inspection

under 14 & 15

Vict. c. 99, s. 6.

Goswell, 9 C. B., N. S. 706); 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 (Ratcliffe v. Bleasby, 3 Bing. 148). So inspection of letters re-delivered 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, 7 C. B. 629). 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 d. 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, e. g., in the case of a conditional limitation over of the estate (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, 4 E. & B. 329; L. J. 24, Q. B. 49; Coster v. Baring, 2 C. L. R. 811, C. P. T. T. 1854; and Pye v. Butterfield, 5 B. & S. 829; L. J. 34, Q. B. 17, decided under s. 51, post, p. 257).

If the document is not under the control of the party, an order will not be made (Liddell v. Norton, Kay, Appendix, xi.; 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, 1 E. & B. 279; and per Willes, J., in The Penarth Harbour, &c. Company v. Cardiff Waterworks Company, 7 C. B., N. S. 816; L. J. 29, C. P. 230).

The principles of the common law as to inspection have been enlarged by the 14 & 15 Vict. c. 99, s. 6, and by particular

statutes.

The 14 & 15 Vict. c. 99, s. 6, enacts "that 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 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 application 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. Hewitt (7 Exch. 236; L. J. 21, Ex. 210). The power given to the courts by this enactment, 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, that is to say, they must be materially relevant thereto (Mansell v. Feeney, 2 Johns. & H. 320); and thirdly, the cases in which inspection is to be granted, must be such as those where inspection could be obtained upon a bill for discovery in Chancery (Hunt v. Hewitt, ubi 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, 6 C. B., N. S. 679; L. J. 28, C. P. 315); nor for the purpose of enabling him to rebut the anticipated case of the other party (Hunt v. Hewitt, ubi supra; Wright v. Morrey, 11 Exch. 209; L. J. 24, Ex. 259; and Riccard v. Inclosure Commissioners, 4 E. & B. 329; L. J. 24, Q. B. 49: and compare British Empire Company v. Somes, at Law, 5 W. R. 489, Q B. E. T. 1857, with S. C. in Chancery, 3 K. & J. 433; 5 W. R. 813; Shadwell v. Shadwell, ubi supra; and London Gas Light Company v. Chelsea (Vestry), 6 C. B., N. S. 411; L. J. 28, C. P. 275; Jones v. Hargreaves, L. J. 29, Ex. 368; and as to the time of application, see also cases infra). He can inspect those papers, and those only, that may directly or "indirectly (Daniel v. Bond, 9 C. B. N. S. 716), support the case on which he himself relies ( Rayner v. Allhusen, 2 L. M. & P. 605; L. J. 21, Q. B. 68; Galsworthy v. Norman, 2 L. M. & P. 608; L. J. 21, Q. B. 70; Scott v. Walker, 2 E. & B. 555; Collins v. Yates, L. J. 27, Ex. 150 [libel]; Reynoldson v. Morton, 36 L. T. 462, Q. B. T. T. 1860; 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, C. P. T. T. 1854; London Gas Light Company v. Chelsea Vestry, ubi supra). Inspection has been refused where sought for the purpose of procuring evidence in another action (Temperley v. Willett, 6 E. & B. 380); of dis. covering the 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).

In an action by a consignee of goods against shipowners for damage sustained in consequence of the unseaworthiness of the ship, the Court made an order for the plaintiff to inspect and take copies of certain surveys made on the ship in a foreign port, a general average statement, the shipwright's bill for repairs done to the ship, the captain's protest, and the log-book, as being documents proximately connected with the matter in issue (Daniel v. Bond, 9 C. B., N. S. 716). As to inspection in an action on a policy of marine insurance, see ante, p. 251. In an action for titledeeds: plea, that the title-deeds belonged to P., deceased, under whom the plaintiff claimed, and P., being indebted to N., agreed

Affidavit on which to

apply.

with N. that N. should hold them as a security by way of equitable mortgage; and that N. so held them, the debt remaining unpaid; and that N. died, and appointed defendant his executrix. In answer to interrogatories, the defendant admitted that she had in her possession a memorandum that the deeds should remain in the possession of N. until repayment of the money: held, that the plaintiff was entitled to an inspection of the memorandum; and also to have particulars of the lien relied upon by the defendant (Owen v. Nickson, 3 E. & E. 602; L. J. 30, Q. B. 125). In an action for breach of promise of marriage, the defendant was allowed inspection of the letters he had written to the plaintiff (Stone v. Strange, 3 H. & C. 541, L. J. 34, Ex. 72; Chute v. Blennerhasset, 16 Ir. C. L. R. App. ix. C. P.) In an action under Lord Campbell's Act against a railway company for the negligence of their servants causing death, the defendants pleaded an accord and satisfaction by payment of a sum of money to the deceased; the Court of Queen's Bench upheld a judge's order, giving the plaintiffs liberty to inspect the reports made to the company by a medical man and by a clerk respectively, who had been sent by the company to visit the deceased in relation to the accident. (Baker v. L. & S. W. Railway Company, 2 Weekly Notes, 1867, p. 285, Q. B. M. T.; 16 W. R. 126).

In an action of libel contained in various letters the defendant was allowed to take fac-simile copies of the letters "by photograph or otherwise " (Davey v. Pemberton, 11 C. B. N. S. 628). See also cases cited (ante, pp. 250, 251).

It is impossible to lay down any general rules as to when inspection will be granted, "the whole question appears to be in a state of darkness and confusion" (per Dr. Lushington, The Macgregor Laird, L. R. 1 Ad. & Ecc. 307); all that can be said is that the court or judge when they have the whole facts of the case before them, will use their discretion in allowing or refusing inspection.

As to inspection of copyhold rolls by a tenant, see R. G. H. T. 1853, r. 31, post, and note.

The principal 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. & G. 205); Hunt v. Elmes (27 Beav. 62; L. J. 28, Ch. 680); Adams v. Lloyd (3 H. & N. 351); Lind v. Isle of Wight Ferry Company (8 W. R. 540, V. C. W. T. T. 1860); Quin v. Ratcliff (9 W. R. 65, V. C. S. M. T. 1860); and Mertens v. Haigh (1 John, 735); Clinch v. Financial Corporation (L. R. 2 Eq. 271); Hopkinson v. Lord Burghley (L. R. 2 Ch. 447). A court of equity will, in a proper case, make an order for the inspection by a shareholder or a contributory of the books of a banking company in liquidation, in spite of a secrecy clause in the deed of settlement (In re Birmingham Banking Company, 15 L. T. N. S. 203, M. T. 1866, M. R.)

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

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