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. Chambers, 7 Exch. 226; 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 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, 7 Exch. 226). 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, 2 L. M. & P. 605; and Galsworthy v. Norman, Id. 608).

The affidavit must state such facts as would enable the appli cant, 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, ubi 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; Ruck v. Stilwell, 4 H. & N. 468).

As to inspection of property under C. L. P. A. 1854, see s. 58, (post, pp. 263, 264).

statutes.

As to inspection under 15 & 16 Vict. c. 83, s. 42 (Patents), see Inspection Jones v. Lee (L. J. 25, Ex. 241); Patent Type Founding Company under other v. Walter (John. 727), where refused at law (Patent Type Founding Company v. Lloyd, 5 H. & N. 192; L. J. 29, Ex. 207); 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 (3 E. & B. 977; L. J. 23, Q. B. 211 and 537); and Vidi v. Smith (3 E. & B. 969; 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 nata; and, among other cases, Reg. v. Mariquita, &c. Mining Company (1 E. & E. 289; L. J. 28, Q. B. 67); Meader v. Isle of Wight Ferry Company (9 W. R. 750, Ex. T. T. 1861).

As to inspection of public documents, parochial and corporation books and court rolls, see Chitty's Practice, 12th ed. pt. 5, c. xv.; and as to the latter, see also R. G. H. T. 1853, r. 31, post. As to granting a mandamus at the suit of a member of a corporation to inspect the minutes of the Court of Assistants, when no actual

Practice.

suit, but only a specific dispute, was pending; see In re Burton and The Saddlers' Company (L. J. 31, Q. B. 62).

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 (Rogers v. Turner, L. J. 21, Ex. 8); and even before plea (Forshaw v. Lewis, 10 Exch. 712). Under the common order in Chancery for inspection by "agent," it was held by Stuart, V. C., that an accountant might be employed (Draper v. Manchester Railway Company, L. J. 30, Ch. 95); but see same case on appeal (Id. 236). An accountant may be included in a special order (Bonnardet v. Taylor, 1 John. & H. 383). As to inspection by an expert, e. g., of plans by a surveyor, see Swansea Vale Railway Company v. Budd (L. R. 2 Eq. 274).

In an action against a joint-stock company, the court or judge may order one of the late directors (the company having ceased to carry on business) to give the plaintiff inspection of documents, which are not denied by such director to be in his possession, or under his control (Lacharme v. The Quartz Rock Mariposa Gold Mining Company, 1 H. & C. 131; L. J. 31, Ex. 335, 508).

As to answer by a corporation, see Ranger v. The G. W. R. Company (4 De G. & J. 74; L. J. 28, Ch. 741); also The Attorney-General v. The Mystery of Mercers (9 W. R. 83, W. V. C. M. T. 1860); Clinch v. Financial Corporation (L. R. 2 Eq. 271).

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, 7 C. B. 629; Short v. Mercier, 3 Mac. & G. 205; and other cases cited supra); 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, 7 Exch. 226; Bull v. Clarke, 15 C. B. N. S. 851). The court is not bound by the denial of the party from whom inspection is sought, that the documents relate to the case of his adversary; but if the court can collect from all the materials before them, that the documents do not go to establish the case of the applicant, they will refuse inspection (Chartered Bank of India, &c. v. Rich, 4 B. & S. 73; L. J. 32, Q. B. 300). See also Felkin v. Lord Herbert (L. J. 30, 1 Ch. 798), as to sufficiency of answer to discovery. Semble, that privilege from inspection is not necessarily a sufficient answer to an application for discovery (Forshaw v. Lewis, 10 Exch. 712); sed quære.

Where a clergyman employed persons to act for him as brokers in dealings of a stock-jobbing kind, and in a suit for an account sought a discovery of the dealings between them; it was held, that they could not protect themselves by alleging that the discovery would subject them to the penalties imposed by 57 Geo. 3, c. 40, on persons acting as brokers in the city of London without a licence, it not being stated that the plaintiff was aware of the defendants not being qualified (Robinson v. Kitchen, 8 D. G., Mac. & G. 88).

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. See also Wolley v. Pole, P. O. (14 C. B., N. S. 538; L. J. 32,

C. P. 263); Chartered Bank of India, &c. v. Rich (ubi supra); and Lee v. Hammerton (10 L. T. N. S. 730; V. C. K. T. T. 1864). Communications between attorney and client, though passing through a lay agent of the client reasonably employed in that behalf, have been held to be privileged (Hooper v. Gumm, 2 John. & H. 602); so are the opinions of counsel (Jenkyns v. Bushby, L. R. 2 Eq. 547; Underwood v. Secretary of State for India, L. J. 35, Ch. 545, V. C. W. & L. J. J.; see Walsham v. Stainton 2 H. & M. 1; and Nichol v. Jones, 2 H. & M. 588); so are the reports of an accountant employed by the defendant's solicitor (Walsham v. Stainton, ubi supra).

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, 6 E. & B. 405; L. J. 25, Q. B. 279); otherwise none can be recovered. As to allowing the costs of an expert, see Churton v. Frewen (2 Weekly Notes, 1867, p. 101; 16 L. T., N. S. 171, M. V. C).

INTERROGATORIES.

liver written

tories to opposite party,

51. In all causes* in any of the Superior Courts, by Power to deorder of the court or a judge, the plaintiff may, with interrogathe declaration, and the defendant may, with the plea, or either of them by leavet 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

• Interrogatories may be delivered in interpleader issues, under 1 & 2 Will. 4, c. 58 (White v. Watts, 12 C. B., N. S. 267; L. J. 31, C. P. 381).

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, p. 261). The time of the application is not so material as its other circumstances; but, ordinarily, the application for leave to deliver interrogatories should not be made until after issue joined, when the court or judge is better able to form an opinion as to their relevancy and propriety: see Jones v. Platt (6 H. & N. 697; L. J. 30, Ex. 365); Morris v. Parr (6 B. & S. 203; L. J. 34, Q. B. 95). See also James v. Barnes (17 C. B. 596). 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, ubi supra).

This has been held to extend to the public officer of a joint-stock bank under 7 Geo. 4, c. 46 (M‘Kewan, P. O. v. Rolt, 4 H. & N. 738; L. J. 28, Ex. 380; see also Mason v. Wythe, Clerk to Middle Level Commissioners, 3 F. & F. 153).

Interrogatories not admissible.

Interrogatories admissible.

shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly.

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. Davis, 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); Moor v. Roberts, 2 C. B., N. S. 671; L. J. 26, C. P. 247; Adams v. Lloyd, 3 H. & N. 351; London Gaslight Company v. Chelsea Vestry, 6 C. B., N. S. 411; L. J. 28, C. P. 275; Simpson v. Smith, L. R. 2 C. P. 293); and see a distinction well taken in Thol v. Leask (10 Exch. 704).

2. As are of a merely fishing character (Moor v. Roberts, ubi supra; Atter v. Willison, 7 W. R. 265, Ex. H. T. 1859; Peppiatt v. Smith, 3 H. & C. 129; L. J. 33, Ex. 82).

3. As are not reasonably relevant to the issue (Robson v. Cooke, 2 H. & N. 766). In an action for breach of contract whereby the plaintiff's patent became void, and the defendant had paid money into court, interrogatories as to the amount of damage incurred by the plaintiff were refused as irrelevant (Jourdain v. Palmer, L. R. 1 Ex. 102); but in an action of tort, for pirating copyright, the defendant was allowed to interrogate the plaintiff as to the amount of damage he had sustained so as to guide the defendant as to the amount he might fairly pay into court (Wright v. Goodlake, 3 H. & C. 540; L. J. 34, Ex. 82). In an action for injury caused by negligence, the defendant was not allowed to interrogate the plaintiff as to the amount and circumstances of the injury (Peppiatt v. Smith, ubi supra). But the rule laid down in the last case does not appear to be generally acted on.

4. As are unnecessary, or useless (Bird v. Malzy, 1 C. B., N. S. 308).

5. As seek to establish a forfeiture strictly so called (May v. Hawkins, 11 Exch. 210; L. J. 24, Ex. 309; Horton v. Bott, ubi supra, distinguishing Flitcroft v. Fletcher, L. J. 25, Ex. 94; Pye v. Butterfield, 5 B. & S. 829; L. J. 34, Q. B. 17); and see United States of America v. McRae (L. R. 4 Eq. 327).

6. As seek to contradict a written instrument (Moor v. Roberts, ubi supra).

7. As are privileged upon grounds of public interest (see principle explained in Beatson v. Skene, 8 W. R. 544, Ex. T. T. 1860).

But interrogatories may be admissible:

1. The answers to which may expose other persons to actions (Tetley v. Easton, 18 C. B. 643; L. J. 25, C. P. 293).

2. The answers to which may expose the party interrogated to penalties (Osborn v. London Dock Company, 10 Exch. 698; L. J. 24, Ex. 140; Bickford v. Darcy, L. R. 1 Ex. 354, explaining Baker v. Lane, 3 H. & C. 544; L. J. 34, Ex. 57); although the party interrogated may except upon his answer to the objectionable questions (see Scott v. Miller, 1 John. 220; S. C. L. J. 28, Ch. 584; Bartlett v. Lewis, 12 C. B., N. S. 249; L. J. 31, C. P. 230); but see Tupling v. Ward (6 H. & N. 749; L. J. 30, Ex.

222). See, further, the authorities cited in note to section 25 (ante, p. 234).

3. Where a defendant in ejectment seeks to discover the character in which the plaintiff claims, and the pedigree upon which he relies (Flitcroft v. Fletcher, L. J. 25, Ex. 94). But the Court of Common Pleas has since refused to allow such interrogatories unless the defendant can show from circumstances that he is wholly unacquainted with the plaintiff's title (Stoate v. Rew, 14 C. B., N. S. 209; L. J. 32, C. P. 160; Pearson v. Turner, 16 C. B., N. S. 157; L. J. 33, C. P. 224; Blyth v. L'Estrange, 3 F. & F. 154; and see Ingilby v. Shafto, 33 Beav. 31).

The Court of Exchequer has refused in general to extend the principle acted upon in Flitcroft v. Fletcher (ubi supra), to other actions (Finney v. Forwood, L. R. 1 Ex. 6).

The Court of Queen's Bench allowed a plaintiff in ejectment to interrogate the defendant as to whether he were the real defendant, and if not, as to who was the real defendant (Sketchley v. Conolly, 11 W. R. 573, E. T. 1863).

4. That seek secondary evidence of lost written documents (Wolverhampton Waterworks Company v. Hawksford, 5 C. B., N. S. 703; L. J. 28, C. P. 198); but it should be observed that the answers to these interrogatories were not to be used at the trial unless the loss of the documents in question was proved, so as to allow of secondary evidence being given.

5. That inquire into confidential communications that the party interrogated would not be privileged from disclosing upon oral examination (Thol v. Leask, 10 Exch. 704; Colman v. Trueman, 3 H. & N. 871).

See extent of privileged communications in the case of an attorney discussed by Romilly, M. R. in Ford v. Tennant (32 Beav. 162).

6. That seek to disprove the bona fides of a primâ facie defence (Bayley v. Griffiths, 1 H. & C. 429; L. J. 31, Ex. 477); or to show that the defendant has acted fraudulently (Blight v. Goodcliffe, 18 C. B., N. S. 757).

The courts have a general discretion in the matter of allowing interrogatories (Tupling v. Ward, ubi supra; Stern v. Sevastopulo, 14 C. B., N. S. 738; L. J. 32, C. P. 268, per Erle, C. J.): thus, in an action of slander, the plaintiff was not allowed to interrogate the defendant (Stern v. Sevastopulo, ubi supra), but where otherwise the plaintiff would have been without redress they were allowed (Atkinson v. Fosbrooke, L. R. 1 Q. B. 628); but they have been allowed in actions for malicious prosecution (Zychlinski v. Maltby, 10 C. B., N. S. 838; Stewart v. Smith, L. R. 2 C. P. 293). As to what interrogatories may be delivered to an executor who has pleaded plene administravit; see Peck v. Nolan (14 Ir. C. L. R. App. xxxii. Ex.). The courts will be guided in their discretion by the principles on which Courts of Equity allow discovery, but with the necessary modifications required by the difference of subject-matter (Flitcroft v. Fletcher, Blyth v. L' Estrange, ubi supra; Edwards v. Wakefield, 6 E. & B. 463; Horton v. Bolt, 2 H. & N. 249; L. J. 26, Ex. 267; Adams v. Lloyd, 3 H. & N. 351; L. J. 27, Ex. 499; Pye v. Butterfield, 5 B. & S. 829; Hawkins v. Carr and Parsons v. Carr, L. R. 1 Q. B. 89; Jourdain v. Palmer, L. R. 1 Ex. 102; Bickford v. Darcy, L. R. 1 Ex. 354). See further upon this subject the note to s. 50 (ante, pp. 250256), Wigram on Discovery and Petheram on Interrogatories.