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make order for further
158 16Vict. hearing of such motion (2); and if such motion shall c. 86. be made after an answer filed in the cause,
the swer shall, for the purposes of the motion, be treated as an affidavit.
() See 22—27th Orders, 7th August, 1852.
XVI. Upon any such motion for a decree or derefuse or grant such cretal order it shall be discretionary with the court motion, or
to grant or refuse the motion, or to make an order
giving such directions for or with respect to the Rrosecution, further prosecution of the suit as the circumstances
of the case may require, and to make such order as to costs as it may think right.
XVII. The practice of excepting to bills, anexcepting to
swers, and other proceedings in the said court, for bills, answers, &c. impertinence, shall be and the same is hereby abofor imperti lished: provided always, that it shall be lawful for
the court to direct the costs occasioned by any imProviso as to pertinent matter introduced into any proceeding in
the said court to be paid by the party introducing the same, upon application being made to the court for that purpose (a).
(a) See 30th Order, 7th August, 1852.
XVIII. It shall be lawful for the court, upon order defend- 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 any defendant, upon oath, of such of the documents in his possession or power relating to matters in question in the suit, as the court shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just (b).
(b) The judges sitting at chambers are to dispose of applications for the production of documents. (15 & 16 Vict. c. 80, s. 26.) The practice hitherto has been for the plaintiff to charge generally in his bill, that the defendant has deeds and documents relating to the matters in question in his possession. Upon this charge interrogatories, more or less searching, according to the nature of the case, were usually introduced so as to extort from the defendant a clear admission o
ant to produce documents, &c. on oath.
Production of documents.
the possession of the required documents. If such an admis- 158 16Vict. sion was obtained, it was then competent for the plaintiff to apply to the court by motion, that the defendant might produce and leave with the clerk pf records and writs the required documents. (Dan. Ch. Pr. 1662, 2nd ed. ; see Wigram on Discovery, 200, 2nd ed.) The general rule was, that the plaintiff must be able to read from the answer an admission that the documents for the production of which the motion is made, were in the defendant's possession (Darwin v. Clarke, 8 Ves. 158 ; Erskine v. Bize, 2 Cox, 226,) at the time when the motion was made, (Heeman v. Midland, 4 Madd. 391,) and that the documents are of a nature to entitle the plaintiff to an inspection of them. The admission of possession could not be established by affidavit, (Burnett v. Noble, 1 Jac. & W. 227,) although a plaintiff was allowed, upon a motion of this kind, to verify, by affidavit, documents neither admitted nor denied by the answer, which tended to establish the plaintiff's right to production. (Addis v. Campbell, 1 Beav. 261; Story Lord George Lennoi, 1 My. & Cr. 534.) On a motion for production of documents, it is for the plaintiff to show from the admissions in the answer that the documents relate to the contents of the bill as it stands when the motion is made. And, therefore, where after an answer admitting possession of certain documents relating to the matters mentioned in the bill, or some of them, the plaintiff amended his bill by striking out part of it, and then moved upon that answer, the motion was refused. (Haverfield v. Pyman, 2 Phill. C. C. 202.) If the documents are in the hands of an agent of the defendant, against whom a motion for production is made, the principle of the court is, that the possession of the defendant's agent is the possession of the defendant himself. (Murray v. Walter, 1 Cr. & Ph. 125; Morrice v. Swaby, 2 Beav. 500.) In the case of an agent withholding papers belonging to his principal, the statement of such a wrongful act is not a sufficient excuse for non-production, although the court, in ordering production, would allow the party time to compel the delivery from the person wrongfully retaining them. (Taylor v. Rundell, 1 Phill. C. C. 225; 11 Sim. 391.) A party ordered to produce papers which are in the hands of his solicitor, must pay his bill of costs, if he cannot otherwise procure them. (Ex purte Shaw, Jac. 272.). But the person in whose custody the documents are must hold them exclusively for the defendant, against whom the motion is made, for, according to Lord Cottenham, C., generally speaking, and primâ facie, it is not necessary to make an attorney a party to a bill seeking a discovery and production of title deeds, merely because he has them in his custody, because the possession of the attorney is the possession of the client; but cases may arise to render such a proceeding advisable if he withholds the deeds in his possession, and will not deliver them to his client on his applying for them. (Fenwick v. Reed, 1 Mer. 123. See Adams v. Fisher, My. & C. 526 ;
158 16Vict. Latimer v. Neate, 4 Cl. & Fin. 570 ; Glover v. Hall, 2 Phill.
C. C. 484; Peele v. Stoddart, 1 Mac. & G. 192; 1 Hall & T. 207; Hardman v. Ellames, 2 My. & K. 732; M‘Intosh v. Great Western Railway Company, 1. Mac. & G. 73; Attorney-General v. Corporation of London, 2 Mac. & G. 247 ; 2 Hall & T. 1; Shallcross v. Weaver, 2 Hall & T. 231.) On the subject of production of documents, the rule of the court adopted from necessity is, that if a defendant has a joint possession of a document with somebody 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. (Taylor v. Rundell, 1 Cr. & Ph. 111; Reed v. Langlois, 1 Mac. & G. 627; 2 Hall & T. 59.) The defendant, by his answer, stated that certain books relating to a concern, in which the plaintiff claimed to be a partner with the defendant, were in the possession of the treasurer of the concern, on behalf of the several shareholders in it, many of whom were not parties to the suit, it was held that the defendant could not be ordered to produce the books in question. (Murray v. Walter, Cr. & Phill. 114.)
XIX. It shall be lawful for any defendant in any suit, whether commenced by bill or by claim, but
in suits commenced by bill which the defendant is gatories for required to answer, not until after he shall have of plaintiff. put in a sufficient answer to the bill, and without
filing any cross bill of discovery, to file in the record office of the said court interrogatories for the examination of the plaintiff, to which shall be prefixed a concise statement of the subjects on which a discovery is sought, and to deliver a copy of such interrogatories to the plaintiff or his solicitor; and such plaintiff shall be bound to answer such interrogatories, in like manner as if the same had been contained in a bill of discovery filed by the defendant against him on the day when such interrogatories shall have been filed, and as if the defendant to such bill of discovery had on the same day duly appeared; and the practice of the court with reference to excepting to answers for insufficiency (c), or for scandal (d), shall extend and be applicable to answers put in to such interrogatories; provided that in determining the materiality or relevancy of any such answer, or of any exception thereto, the court is to have regard, in suits com
menced by bill, to the statements contained in the 158 16Vict. original bill, and in the answer which may have been put in thereto by the defendant exhibiting such interrogatories for the examination of the plaintiff, and in suits commenced by claim, to the statements therein, and in any
affidavits which may have been filed either in support thereof or in opposition thereto: provided also, that a defendant, Defendant if he shall think fit so to do, may exhibit a cross a cross bill bill of discovery against the plaintiff, instead of instead of
filing interfiling interrogatories for his examination (e).
rogatories. (C) Exceptions to an answer for insufficiency must be in Exceptions writing and properly entitled. (Williams v. Davies, 1 Sim. & for insuffi
ciency. S. 426 ; Earl of Lichfield v. Bond, 5 Beav. 513; Bradstock v. Whalley, 6 Beav. 61.) Where a plaintiff complains that a particular interrogatory in his bill has not been answered, he must state the interrogatory in the terms of it (Hodgson v. Butterfield, 2 Sim. & S. 236); although it is not necessary that the exception should follow the very words of the interrogatory. (Brown v. Keating, 2 Beav. 581.) Exceptions for insufficiency must be signed by counsel (Yates v. Hardy, Jac. 223), and engrossed upon paper and endorsed with the name and address of the solicitor. (20th Order, October, 1842.) The solicitor of the party taking exceptions for scandal or insufficiency, shall leave such exceptions at the record and writs clerks' office to be filed, and shall, on the same day, give notice of the filing thereof to the solicitor for the adverse party, or to the adverse party himself, if he acts in person. (24th Order, October, 1842.) After the filing of a defendant's answer, the plaintiff has six weeks within which he may file exceptions thereto for insufficiency. If he does not file exceptions within six weeks, such answer, on the expiration of the six weeks, is to be deemed sufficient. (8th Order, 2nd November, 1850, and see other Orders of the same date ; Dan. Ch. Pr. 725—739, 2nd ed.; Smith's Handbook Ch. Pr. 228—240.)
(a) Scandal consists in the allegation of anything, either in Scandal. a bill, answer or other pleading, which is unbecoming the dignity of the court to hear, or is contrary to good manners, or which charges some person with a crime not necessary to be shown in the cause (Pr. Reg. 383); to which may be added, any unnecessary allegation bearing cruelly upon the moral character of an individual is also scandalous. (Ex parte Simpson, 15 Ves. 476 ; Coffin v. Cooper, 6 Ves. 514; Dan. Ch. Pr. 381, 2nd ed.) Nothing relevant will be deemed scandalous, and anything which may influence the judgment in the suit is not irrelevant. (Lord St. John v. Lady St. John, 11 Ves. 526, see p. 539.) În a bill by the testator's son and heir-atlaw impeaching a will, on the ground of undue influence ex
.158 16Vict, ercised by a female defendant over the testator's mind, an
allegation that she, at a time specified, was discovered to have engaged in a criminal connection with the testator, and that she openly cohabited with him as if she had been his wife, was not scandalous. (Anon., 1 My. & C. 78; see Everett v. Prythergch, 12 Sim. 363.) No pleading or other matter depending before the court is to be set down for hearing for scandal unless exceptions are taken in writing and signed by counsel, describing the particular passages which are alleged to be scandalous. (23rd Order, 2nd November, 1850.) Where any person or party, having filed exceptions to any pleading or other matter depending before the court for scandal, does not set the same down for hearing within six days after the filing thereof, such exceptions are to be considered as abandoned, and the person or party by whom such exceptions were filed is to pay to the opposite party such costs as may have been incurred by such party in respect of such exceptions. (24th Order, 2nd November, 1850.) Upon the production of an order, made upon its being held that any pleading or other matter depending before the court is scandalous, the officer having the custody or charge of such pleading or other matter is to expunge from such pleading or other matter such parts thereof as the court has held to be scandalous, and thereupon the person or party requiring such scandalous matter to be expunged, is to pay to the officer expunging the same fee as on the like occasion has heretofore been paid. (25th Order, 2nd November, 1850.)
(e) It frequently happens that a defendant to a bill in equity is advised to become himself a plaintiff in what is called a cross-bill. He may require from the plaintiff in the original suit admissions of facts or the production of documents necessary for his defence. The original case may be founded on a deed or instrument which he may be entitled to have set aside for fraud or error; or he may, on other grounds, according to the case made by him, be entitled not merely to resist the plaintiff's demand, but to have a decree giving him relief in respect of the property or transactions the subject of the original suit. He is not, however, able to obtain any such discovery or production of documents, or any such relief, without a cross-bill, and in the cross suit the proceedings are similar to those in an original suit. Evidence is frequently required in such cross suit. In some cases witnesses are examined in both suits, and the same interrogatories which are administered in the one suit, are sometimes administered over again to the same witnesses in the other, and the duplicate depositions, not only occasion, in the first instance, greatly increased expense, but, by swelling the copies and briefs, very much enhance the costs in all the subsequent stages of the litigation. (Report of Chancery Commissioners, 1852, pp. 10, 11; see Smith's Handbook Ch. Pr. 496—499; Mitf. PT. 97-100, 5th ed.; Richards v. Bayly, 1 Jones & L. 120 ; England v. Curling, 8 Beav. 129.) Upon