only documents in their possession relating to the matters in dispute in this action were those of which a list was given under the following heads: First, bills of lading. Secondly, letters from the consignors (a native Indian firm) *and invoices. Thirdly, letters to the consignors. Fourthly, correspondence with Drake, the broker, including letters to and from him and the plaintiffs, but all dated in January, 1858. The affidavit also stated that in the contract wherein the goods were described as "about 2,810 bags sugar" it was expressly stipulated that, "should the quality prove inferior to fair average native Madras, a fair allowance to be made to the buyers, as also for any damaged:" the question of quality and allowance to be settled by Drake and the defendant Rouse. That on the arrival of the sugar it was inspected and allowances claimed by Rouse for inferiority of quality and damage, amounting to 6901., which were assented to by Drake. That the deponents object to the production of any or either of the above-mentioned documents-First, because they believe that the application is for the purpose of fishing out evidence in support of defences which are unjust, and which they believe to be groundless and a mere afterthought and not bonâ fide. Secondly, because such documents in no wise tend to prove or support either of the defences set up. Thirdly, because, after the settlement of the question of quality and allowance, it is not open to the defendants to set up those defences. Fourthly, because the said documents are not documents to the production of which the defendants are entitled for the purpose of discovery or otherwise. Fifthly, because they were not received, nor (with certain specified exceptions) written until after the contract was entered into. Sixthly, (as to certain of the documents) because they were not written until after the defendants claimed to repudiate the contract; and (as to those written by us) were written for our own protection in consequence of such repudiation; and (as to all) the contents. are of a confidential nature, and they are in the nature of privileged communications. Seventhly, because they are not evidence against us in the present action. On the 3rd August, ERLE, J., made an order that the defendants be at liberty to inspect and take copies of the documents mentioned in the above affidavit. Crouch, in the present Term, obtained a rule nisi to rescind or vary that order; against which Lush and Blackburn now showed cause; [and Crouch was heard in support of the rule. The following cases were cited in argument: Goodall v. Little (1), Glyn v. Caulfeild (2), Whitbread v. Gurney (3), The Princess of Wales v. The Earl of Liverpool (4), Bassford v. Blakesley (5), Llewellyn v. Badeley (6), Storey v. Lord George Lennox (7), Greenlaw v. King (8)]. POLLOCK, C. B.: The rule must be discharged. It asks to set aside or vary the order of my brother ERLE for the inspection of documents which the defendants admit are in their possession; and the question is, not whether my brother ERLE had power to make the order, but whether he made it with due discretion with reference to the facts before him. I think that we ought not, either with reference to the facts or authorities, to set aside the order. Whether upon every occasion when fraud is charged whatever has passed between the parties must be produced, is a matter as to which we need lay down no rule. It certainly appears that statements by the parties to their solicitor, and the opinions of counsel, have in modern times been considered confidential. Curling v. Perring (9), which was a motion for the production of correspondence between the solicitor of the defendants and a person not a party to the suit, has no bearing on this case. It would be monstrous if an attorney could not write to a stranger for information respecting the suit without being liable to have his correspondence called for. The simple answer is, that he is an attorney and has acquired his knowledge of certain facts in that character. But certainly the correspondence amongst the parties themselves, or between them and their agent, has been ordered to be produced; and if there was no authority for it, I should be so disposed to act. In my opinion, there is no reasonable ground for any distinction between such correspondence before the contract and after the alleged breach of contract. It may be most material after the complaint is made, to see that it is honestly made in the language of a man who has committed no fraud, or whether, as alleged in this case, there was a wish. to pass off an article called "jaggerly cane" for native Madras sugar. In equity, a defendant may obtain an inspection down to the time when his answer is filed, and there is no reason why the same rule should not apply here. I think that the (1) 89 R. R. 56, 60 (1 Sim. N. S. 155, 161). (2) 87 R. R. 146 (3 Mac. & G. 463). (6) 58 R. R. 174 (1 Hare, 527). (7) 43 R. R. 248 (1 My. & Cr. 525; (8) 49 R. R. 310 (1 Beav. 137). COLMAN v. TRUEMAN. [ *879 ] 1858. Νου. 25. 1858. order of my brother ERLE was correct, and that we ought not to interfere to set it aside. BRAMWELL, B.: I am also of opinion that the rule ought to be discharged. Assuming that my brother ERLE had power to make the order, I cannot say that he has exercised an improper discretion. WATSON, B.: I am of the same opinion. The defendants might have filed a bill in equity for a discovery, and this application is in lieu of it. The affidavits of the defendants state certain frauds by which it is alleged they were deceived, and all the evidence asked for is in support of that charge. The plaintiffs do not deny that the documents asked for are relevant to the subject in dispute, but Mr. Crouch says that in our discretion we ought not to confirm the order. I cannot, however, think that my brother ERLE was wrong in making it. Looking at the documents, I can see that they are relevant and may be *most material for the defendants' case. It often happened that a party failed to support his case for want of an inspection of documents, and now a court of law is empowered to do what formerly a court of equity alone could have done. In my opinion, we ought not, either with reference to the decisions in equity or the circumstances of the case, to set aside the order. If the plaintiffs have committed a fraud, and have written on the subject amongst themselves or to their agents, there is no reason why the correspondence should not be produced. My judgment proceeds on this ground, that my brother ERLE has properly exercised his discretion. WALTON v. BROWN. Rule discharged. (3 H. & N. 879-884; S. C. 28 L. J. Ex. 38.) [Obsolete practice.] IN THE EXCHEQUER CHAMBER. MORRIS v. THE RHYDYDEFED COLLIERY CO. (3 H. & N. 885-891; S. C. 28 L. J. Ex. 119; 5 Jur. N. S. 339; 7 W. R. 95.) [Reported ante, p. 808.] HOLMES v. KIDD (1). (3 H. & N. 891-894; S. C. 28 L. J. Ex. 112; 5 Jur. N. S. 295; 7 W. R. 108.) To a declaration by indorsee against acceptor of a bill of exchange for 3007., the defendant pleaded, as to 2721. 2s. 7d., that before the indorsement or acceptance he applied to the drawer to advance him 3007. which the drawer agreed to do on his depositing certain canvas with him and accepting the bill; the drawer to have power of selling the canvas and applying the proceeds in payment of the bill if not paid by the defendant when due; that the bill was accepted and the canvas deposited on the terms aforesaid; that after the bill was due the drawer sold the canvas and received the proceeds, 2721. 2s. 7d., and holds the same; and that the bill was indorsed by the drawer to the plaintiff after it became due and subject to the equity of the proceeds of the sale of the canvas being applied to the payment of the bill, and without value: Held, by the Court of Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the plea was good. DECLARATION by indorsee against acceptors of a bill of exchange for 300l., drawn by one Caleb Watson. Plea. As to 2721. 2s. 7d., parcel of the amount of the bill in the declaration mentioned, that before the indorsement or acceptance of the bill the defendants applied to the said Caleb Watson to advance them the sum of 300l., which C. Watson agreed to do upon the terms of the defendants accepting the bill and depositing with him a policy of insurance on the life of the defendant W. Kidd and certain canvas of the defendants of the value, to wit, of 400l., as a security for the due payment by the defendants of the said bill; the said drawer of the said bill to have power of selling the said canvas and applying the proceeds of such sale in payment of the amount due on the said bill, if the same was not paid by the defendants when due: that the said bill was accepted and the said *policy and canvas deposited upon the terms aforesaid, and that after the said bill was due the said drawer sold the canvas and realized by such sale 2727. 2s. 7d., and still retains and holds the same sum: that the bill was indorsed by the said drawer to the plaintiff, after the same was overdue and subject to the equity of the proceeds of the sale of the said canvas being applied to the payment and satisfaction of the said bill, and without any value or consideration having ever been given by the plaintiff for the said indorsement. Demurrer and joinder. Judgment having been given for the defendants on the demurrer to this plea in the Court below, the plaintiff assigned error. Atherton argued for the plaintiff (2): The effect of the agreement was to give to the drawer an (1) In re Overend, Ex parte Swan (1868) L. R. 6 Eq. 344, 360, 18 L. T. 230; Bills of Exchange Act, 1882, s. 36 (2). R.R.-VOL. CXVII. (2) Before Erle, J., Williams, J., Crompton, J., Crowder, J., and Willes, J. 65 1858. Dec. 1. [ 891 ] [ *892] option to sell the canvas and pay himself at any time while he continued the holder of the bill. At the moment of the indorsement a perfect title vested in the indorsee. That could not be affected by anything which the drawer might do after the bill left his hands. After the indorsement the drawer could not take the proceeds of the canvas in payment of the bill. The statement in the plea that the bill was indorsed without value is not material (1). The only consequence of that is that the indorsee took it subject to the equities attaching to the bill. (WILLES, J.: The bill was subject to the equity that upon the sale of the canvas the consideration was at an end.) upon. * Brett, who appeared to support the plea, was not called ERLE, J.: We are all of opinion that the plea is good, and therefore the judgment must be affirmed. On the drawing of the bill there was an agreement that the canvas should be a security in the hands of the drawer, and if sold the proceeds should be applied in payment of the bill, if not paid by the defendants when due. The drawer held the bill till it was overdue, when he indorsed it without value to the plaintiff, and afterwards sold the canvas and held the proceeds to be applied to the payment of the bill. The question is, whether the receipt of the money by the drawer is a bar to this action. The plaintiff took the bill subject to the equities affecting it. In the hands of the drawer the right to sue was defeasible; when he sold the canvas it was defeated, and the plaintiff took the bill subject to that contingency. WILLIAMS, J.: I am of the same opinion. I agree that, when it is said that Upon the concoction of this bill it was agreed that it was not to be paid if the canvas was sold. That agreement directly affects the bill and was part of the consideration for it. The case therefore differs from that of a right of set-off against the indorser (2), which is merely a personal right not affecting (1) See Sturtevant v. Ford, 61 R. R. 483, 486 (4 Man. & G. 101, 106). (2) See Oulds v. Harrison, 102 R. R. 717 (10 Ex. 572). |