belonged to and were the property of the said Martha Pryce, under and through whom the plaintiffs claimed ; and she, being indebted to one Jonathan Nickson in certain sums of money which he had before then lent and advanced to her, agreed with the said Jonathan Nickson that he should have and hold the said title deeds, papers, parchments and writings as a security, by way of equitable mortgage, to secure the repayment of the said sums of money; and the said Jonathan Nickson thereupon, then and thenceforth, until and at the time of his death as hereinafter mentioned, had and held the said title deeds, papers, parchments and writings, for the purpose and upon the terms aforesaid, the said sums of money during all that time remaining and being unpaid. And the defendants further say that the said Jonathan Nickson afterwards died, and by his last will and testament in writing, duly made and published, appointed the defendants executrixes of his said last will and testament, who, after the death of the said Jonathan Nickson, duly proved the said last will and testament; whereupon the said title deeds, papers, parchments and writings came into, and thence until and at the time of the said detention thereof in the declaration mentioned were, and still are, in the possession of the defendants, as executrixes aforesaid, for the purpose and upon the terms aforesaid, the said sums of money then and still remaining and being unpaid; wherefore the defendants detained and still detain the said title deeds, papers, parchments and writings, for the cause aforesaid, which is the detention in the declaration mentioned. It appeared from the affidavits that the plaintiffs were the trustees under a settlement made, on the marriage 1861. OWEN V. NICKSON. 1861. OWEN V. NICKSON. of John Lewis with Martha Pryce, by lease and release, on 30th August and 2nd September, 1839. The plaintiffs believed that Jonathan Nickson died about 13th May, 1846. The said Martha Pryce, then Martha Lewis, appointed the plaintiffs trustees under the said settlement, and granted, assigned and transferred the trust property to them as such trustees, and also appointed them executors of her will. The plaintiffs obtained leave to deliver interrogatories to the defendants, of which the following only is material. "Have you, or has either of you, or your solicitor, or any other person for you, in your or their possession, power, or control, any memorandum signed by the said Martha Lewis, or any person on her behalf, relating to the mortgage or deposit of any such deeds, papers, writings or documents with Jonathan Nickson, late of Wem, in the county of Salop, an attorney or solicitor ?" To which the defendants answered as follows: "We believe our solicitor has in his possession a memorandum, bearing date 6th July, 1836, signed by Martha Pryce, agreeing that all her writings and instruments should remain in the hands or custody of the said Jonathan Nickson until repayment of the moneys advanced by him to her, and also all interest in respect thereof; and we believe that such moneys, with arrears of interest thereon, remain unpaid." The plaintiffs made an affidavit that they were entirely ignorant of the said memorandum; that they had no means of ascertaining anything of its contents; and that it was material and necessary, in order to prosecute the action, that they should have inspection of it. 1 Phipson now shewed cause. First, the plaintiffs are not entitled to inspect the memorandum of deposit, of 6th July, 1836. Browne v. Lockhart (a) shews that, in equity, a mortgagee is not bound to produce his mortgage deed to the devisee of the mortgaged estate, until payment of principal and interest; notwithstanding the devisee may be ignorant of the amount of the interest, the time of payment, and all the other particulars of the security. The present plaintiffs fail to shew that their own case will be either made out or materially supported by inspection of the memorandum. [Crompton J. They may be entitled to inspect it on the ground that the defendants' plea in effect sets it up as an answer to the action. In Price v. Harrison (b) Williams J. says, "Wherever the instrument is declared on the rule is fully established, since the passing of The Common Law Procedure Act, 1852, that the defendant is entitled to inspection in the nature of oyer, not only where the instrument declared on is a deed under seal, but also in the case of contracts not under seal." "It may now be considered as fully established in all the Courts that the right to inspect extends to any writing, whether under seal or not, which is relied on by the other side as the foundation of his claim or defence."] Scott v. Walker (c) shews the limits within which a party is entitled to inspection of documents in the possession of the opposite party; namely, that such inspection may be granted for the purpose of obtaining any evidence necessary to support the original case of the party applying, or to meet that of the other side; but not for the purpose of obtaining information shewing how the case of the other side will be supported. The plaintiffs, here, do not shew by their (a) 10 Sim. 420. VOL. III. (b) 8 C. B. N. S. 617. 634. (e) 2 E. & B. 555. 2 R E. & E. 1861. OWEN V. NICKSON. affidavit how the memorandum will support their own case, or meet that of the defendants. In Adams v. Lloyd (a) the Court of Exchequer held that, if a party interrogated under sect. 51 of The Common Law Procedure Act, 1854, as to whether he has in his possession any deeds or writings relating to lands in dispute, answers on oath that he has, but that such deeds relate exclusively to his own title to the lands, and do not shew any title in the opposite party, he cannot be compelled to state the contents of the deeds, or to describe them, his oath as to their effect being conclusive. Pollock C. B., in giving judgment, said (b), “The question is, whether the plaintiff is bound to produce his title deeds. To compel him to do so would introduce a new rule, which certainly was never intended by this Act of Parliament, and would render a title deed of no more importance than a bill of exchange or any other written document. I think that a man's title deed is still protected unless it tends to prove the case of the opposite party; if it does not, it is irrelevant. The recent changes in the law have made no alteration in that respect." And Watson B. (c): "The authorities are clear, that a person is not entitled in equity to a discovery of title deeds unless they contain evidence of his own title." Secondly, the plaintiffs fail to shew any ground for asking the defendants for particulars of the alleged lien or mortgage. In order to entitle themselves to such particulars, the plaintiffs are bound to shew that the mortgage debt has been paid, and nothing remains due; but their affidavits do not even state that any part of the debt has been paid. (a) 3 H. & N. 351. (6) 3 H. § N. 364. (c) 3 H. & N. 367. Manisty, contrà.-The plaintiffs are entitled to inspect the memorandum; if on no other ground, under the well known rule stated by Williams J. in Price v. Harrison (a), that where a plaintiff founds his declaration, or a defendant his plea, upon a document in writing, whether or not it be under seal, the opposite party has a right to see that document. [Wightman J. Your case is stronger than was that of the defendant in Price v. Harrison (a), who was allowed to inspect a number of his own letters written to the plaintiff, of which he had not kept copies. Here, the plaintiffs ask for inspection of a single document, and one in which they probably have as great an interest as the defendants.] (He was then stopped.) (COCKBURN C. J. was absent.) WIGHTMAN J. It appears to me that there is nothing in the decision in Scott v. Walker (b) to affect the present plaintiffs' right to the inspection for which they ask. No doubt, a plaintiff is not entitled to inspect a document which makes out the defendant's case solely; but here there is only one document, and both plaintiffs and defendants have an interest in it. The holder of a document in which another person is interested may be deemed a trustee of it for that other, within the old rule that inspection is to be granted of documents in the possession of the opposite party as trustee for the party asking for the inspection. As to the particulars, also, of the defendants' lien or mortgage, I see no reason why the plaintiffs should not have them. (a) 8 C. B. N. S. 617. 634. (b) 2 E. & B. 555. 1861. OWEN V. NICKSON. |