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Courts only in such cases as those in which Courts of Equity compel an inspection by means of a bill of discovery, or under the summary procedure constituted by the Chancery Procedure Amendment Act, 15 & 16 Vict. c. 86, ss. 18, 20. Since the discretion of the common law judges is evidently intended by the Legislature to be guided, in cases of inspection, by strictly equitable principles, it is desirable that these sections should be considered by the common law practitioner.
The 15 & 16 Vict. c. 86, s. 18, enacts 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 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.
Section 20. 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.
2. A party to an action at law had, before the statute, and still has, an equitable right, by way of bill of discovery, to inspect all documents relating to his own case alone, or to his own case conjointly with that of his adversary. He has a right to a discovery of everything bearing on his own case, or which he has reason to expect will be set up against it; but at this point the distinction is finely drawn that he has no right to a discovery of documents which belong exclusively to his opponent's case, or which are immaterial
1 Wigram on Discovery, §§ 127 to 147.
to the issue.1 The Equity Courts refuse to entertain a bill of discovery, where the evidence is sought to support a criminal charge, or where it would expose a party to a criminal prosecution or penalty.2
3. A common law judge will consider these and similar equitable principles before he will grant an order for inspection, and will hold the substantial question to be, whether the applicant would be entitled to it in a Court of Equity. An affidavit in support of the application must also show a reasonable probability that the applicant requires the documents to complete his own case; and it must allege, at least, a distinct belief that they are in the custody, or in some way under the control, of the adverse party.3 The application will be refused if it appear to be of a fishing nature, or if it appear to be a pretext for delay, or merely to discover the case of the adverse party. the last cited case, to detinue for a deed the defendant pleaded lien as an attorney; and the plaintiff, on an affidavit that he had not retained the defendant, and that the costs were due from a third party, was allowed to inspect the entries in the defendant's books as to costs claimed. So, in an action for work done, the defendant, on an affidavit that the work was not done, and that, if done, the charge was exorbitant, was allowed to inspect the entries in the plaintiff's books relating to the work.5 So it is held that an affidavit must state more than a probable necessity that the applicant will require the documents.6 As to mate
riality of documents, see annexed cases. In ejectment, the documents must relate to the title.8
3 Hunt v. Hewett, 7 Exch. 243; and 21 L. J. 210, Exch.
4 Scott v. Walker, 2 E. & B. 560, per Lord Campbell.
5 Hunt v. Hewett, suprà.
Pepper v. Hill, 21 L. J. 81, C. P.
7 Sneider v. Mangino, 21 L. J. 121, Exch.; Riccard v. Inclosure Commissioners, &c. 24 L. J. 49, Q. B.
8 Doe v. Langford, 21 L. J. 217, Q. B.
Where the application is to inspect documents which are partly material and partly immaterial to the applicant's case, inspection will be granted of such of the documents only as are material to the applicant's case.1
Even before the late statutes, the courts exercised a certain power of granting an inspection where the document was clearly material to the cause; and therefore the legislature, in giving the Common Law Courts equitable powers of granting inspection, must be taken merely to have extended, and not to have created, the jurisdiction. But the statute may also be taken to be declaratory of the common law in this respect; and, henceforward, the latter will be regulated by the principles of the former. Thus, in actions on bills of exchange, promissory notes, policies, and agreements of every description, inspection, which, before the statute, was nearly a matter of course, seems to be now entirely so. It is to be remarked, also, that the Common Law Courts do not, apparently, follow the principles of the Equity Courts in refusing an inspection when it appears to be applied for with an ulterior reference to a criminal charge; but they grant it, notwithstanding a suggestion that the document is forged.2 For a further development of this subject, the practitioner will consult Pollock on Inspection, and Wigram on Discovery; see also Tayl. Evid., part 3, ch. 5.
The County Courts, under the Practice Regulations, Rule 65, have the following power of granting and enforcing inspection :
Where in any action the defendant is desirous of inspecting any deed, bond or other instrument under seal, or any written contract or other instrument, in which he has any interest, and which shall be in the possession, power, or control of the plaintiff, the defendant may, within five days from the service of the summons to appear, give notice by prepaid post letter or otherwise, that he desires to inspect such instrument at any place to be appointed by the plaintiff, and the plaintiff
Erle, J., 1 Bail Ct. Cas. 37.
2 Thomas v. Dunn, 6 M. & G. 274; Rogers v. Turner, 21 L. J 9 Exch.
shall appoint a place accordingly; and if the plaintiff shall neglect or refuse to appoint such place, or to allow the defendant or his attorney to inspect it within three days after receiving such notice, the judge may, in his discretion, on the day of hearing, adjourn the cause, for the purpose of such inspection, and make such order as to costs as he shall think fit.
In the superior courts, where a party to an action claims an inspection or copy of a writing, he should make a demand on the opposite party, and if he require a copy, he should tender the expenses. On refusal, a
summons should be taken out to show cause, before a judge. The judge's order may be reviewed by the court, but it is not usual to apply to the court in the first instance.1
The court will not compel a person, not a party to the suit, to produce a document for inspection,2 unless he has obtained it from a party to the suit, and holds it in the nature of a trust for such party.3 But where such person holds independently, and paramount to the title of the party, he will not be subject to an inspection. Before there can be any foundation for granting an inspection, an action must have been actually commenced, and the document must be one in which both parties are jointly interested.
"Inspection of documents in the custody of an adverse party is only permitted when they are to some extent the property of both parties, as in the case of an agreement of which there is but one copy; then the party who holds it, holds it as a trustee for the other."5
NOTICE TO PRODUCE.
According to the rule that the best evidence must
12 Phill. 191.
2 Cocks v. Nash, 9 Bing. 721.
3 Doe v. Roe, 1 M. & W. 207.
• Tindal, C. J., in Jessell v. Millenger, 1 Moo. & S. 606.
be given, and that secondary evidence is inadmissible until the absence of primary evidence is explained satisfactorily, a party who relies upon a written document must either produce it, or show that he has made every reasonable effort to produce it. In the latter case, if he has been unsuccessful, he may prove the original document, either by a copy, or any other authentic kind of secondary parol evidence. It is a rule that
II. All originals must be accounted for, before secondary evidence can be given of any one.'
This is the universal rule in the case of private, as distinguished from public, writings. Accordingly, if a party ascertain, either by inspection or otherwise, that an original document necessary to his case is in the hands of an adverse party, who will not voluntarily produce it, his first step will be, after obtaining an inspection and a copy, if necessary, to give his adversary notice to produce the original at the trial. If after proof that such notice has been given, and that the original is in the hands of the adverse party, the latter will not produce it, the party requiring it may resort to secondary evidence of it.
Before this can be used, the party tendering it must prove, or raise at least a reasonable presumption, that the original is in the hands of the adverse party, or of a third person in privity with him.2 Slight evidence of this fact will be sufficient, when the document naturally, necessarily, or probably, might be expected to be in the custody, or under the control, of such adverse party. Thus it has been presumed, that a bankruptcy certificate came into the hands of a bankrupt who was proved to have solicited it, and to have
1 Parke, B., Alivon v. Furnival, 1 C. M. & R. 292.
2 Sharpe v. Lamb, 11 A. & E. 805.