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No. 1. — Lyell v. Kennedy, 8 App. Cas. 219, 220.

Mitford, Pl. Ch. These authorities carry the case as far as is necessary; but if not, Order XXXI. extends the right to discovery beyond the old practice in equity. It is said that the Orders affect procedure only and not rights, but the question whether evidence can be got by interrogatories before trial is one of proce

dure. In common-law actions of ejectment interroga[* 220] tories were allowed, and by sect. 21 of the * Judicature

Act, 1875, all forms of procedure are to continue in force. The plaintiff can ask anything relevant to his own case, anything which he could ask the defendant in the witness-box in Court. Moreover, he can ask what case the defendant is going to make against him at the trial, e. g., whether he is going to deny that the plaintiff is heir, or to set up some other heir. Eade v. Jacobs, 3 Ex. D. 337; Towne v. Cocks, L. R., 9 Ex. 45, 43 L. J. Ex. 41; Sketchley v. Conolly, 11 W. R. (Q. B.) 573; Harland v. Emerson, 8 Bli. (N. S.) 62, 83. As to discovery of documents : since the decision of the Court of Appeal in this case the Court of Appeal in Daniel v. Ford, W. N. (1882), p. 165, W..N. (1883) p. 27, 47 L. T. 575, has held that no affidavit of documents can be required from a defendant in such an action, but the authorities are all the other way; it is enough to cite Ferrier v. Atwool, 12 Jur. (N. S.) Ch. 365; Attorney-General v. Gaskill, 20 Ch. D. 519, 526; Felkin v. Lord Herbert, 30 L. J. Ch. 798; Minet v. Morgan, L. R., 8 Ch. 361, 365, 42 L. J. Ch. 627; Attorney-General v. Corporation of London, 2 Mac. & G. 247, 19 L. J. Ch. 314, 319; Balguy v. Broadhurst, 1 Sim. (N. S.) 111, 20 L. J. Ch. 55; Wright v. Vernon, 1 Drew. 344, 22 L. J. Ch. 447; Goodall v. Little, 1 Sim. (N. S.) 155, 161, 20 L. J. Ch. 132; Greenwood v. Greenwood, 6 W. R. (Ch.) 119; Nolan v. Shannon, 1 Molloy, 169; Saull v. Browne, L. R., 17 Eq. 402, 43 L. J. Ch. 568; Harris v. Harris, 3 Hare, 452, 13 L. J. Ch. 349; Jenkins v. Bushby, 35 L J. Ch. 401; New British, &c. Company v. Peed, 3 C. P. D. 196. The plain tiff may inspect the defendant's title-deeds if the recitals help the plaintiff to make out his own case. Coster v. Baring, 2 Com. Law Rep. 811.

[The arguments and authorities on both sides as to what particular interrogatories were allowable, and to what extent they must be answered; as to what documents were privileged from inspection; and as to the effect of the Statute of Limitations; are omitted, the House not having determined these questions.]


No. 1. — Lyell v. Kennedy, 8 App. Cas. 220, 221.

Feb. 27, March 1, 2. Horton Smith, Q. C., and 0. L. Clare, for the respondent:

The decisions below were right. This is only a commonlaw * action of ejectment with sundry statements designed [* 221] to evade the Statute of Limitations. The plaintiff's conveyance was after the twelve years had run, and was a mere purchase of a pretended title. In a simple ejectment the plaintiff could not before the Judicature Act and therefore cannot now claim discovery. The common-law practice must prevail, for this action could not before the Judicature Act have been brought in equity. In equity there was no right to discovery; and therefore none under the Common Law Procedure Act, 1854: Horton v. Bott, 2 H. & N. 249, 26 L. J. Ex. 267. In Flitcroft v. Fletcher, 11 Ex. 543, 25 L. J. Ex. 94, discovery was allowed to a defendant in ejectment, but in Edwards v. Wakefield, 6 E. & B. 469, that decision was doubted, and was eventually overruled. Stoate v. Rew, 14 C. B. (N. S.) 209, 32 L. J. C. P. 160; Pearson v. Turner, 16 C. B. (N. S.) 157, 33 L. J. C. P. 224; Wallen v. Forrestt, L. R., 7 Q. B. 243, 41 L. J. Q. B. 96; Finney v. For. wood, L. R., 1 Ex. 6, 35 L. J. Ex. 42. On grounds of public policy the defendant ought not to be obliged to help the plaintiff to turn him out; a plaintiff in ejectment must recover by the strength of his own title alone. The cases cited contra do not establish the propositions contended for. In Coster v. Baring, 2 Com. Law Rep. 811, no decision was given, the parties having compromised. In Sketchley v. Conolly, 11 W. R. (Q. B.) 573, the interrogatory allowed was, “Is some one else the real defendant ?” In Towne v. Cocks, L. R., 9 Ex. 45, 43 L. J. Ex. 41, the decision was wrong; and the case was not thoroughly argued. Moreover tithes are an exception to the general rule, and come within the jurisdiction of equity : see Bellwood v. Wetherell, 1 Y. & C. Ex. 211. Eade v. Jacobs, 3 Ex. D. 337, 47 L. J. Ex. 74, was a case of landlord and tenant; and its real effect is explained in AttorneyGeneral v. Gaskill, 20 Ch. D. 529, 51 L J. Ch. 870. No case exists where a bill of discovery lay merely in support of an action of ejectment at common law. In the cases cited, for some reason such as loss of title-deeds, fraud, or the like, the plaintiff was obliged to come to equity and then he got such discovery as equity allowed. In Attorney-General v. Du Plessis, Parker, 146, the bill was for relief. In Brown v. Wales, L. R., 15 Eq. 146,

No. 1. — Lyell v. Kennedy, 8 App. Cas. 222, 223.

[* 222] collusion was * alleged; the present objection was not

taken, and it was a case of landlord and tenant, wbich stands on a different footing. In Rumbold v. Forteath, 3 K. & J. 44, 748, and Harland v. Emerson, 8 Bli. (N. S.) 62, there were outstanding legal estates, and an allegation that the plaintiff could not proceed at law and must come to equity. In Wright v. Vernon, 1 Drew. 344, there was an outstanding term. Not only is there no authority in favour of the appellant, but there are authorities to the contrary effect. The rule laid down in 1 Maddock's Ch. Pr. 3rd ed. p. 276, is that “ The title of an heir is a legal one, nor is he, it seems, entitled to discovery, unless there are incumbrances standing in the way, which the Court would remove to enable him to assert his legal right. He cites Tanner v. Morse, in Trin. T. 7 G. II. (Unreported), and Lady Shaftesbury v. Arrowsmith, 4 Ves. 66 (4 R. R. 181). To the same effect are Mutloe v. Smith, 3 Anst. 709 (4 R. R. 854); Crouch v. Hickin, 1 Keen, 385, 390, 391 ; Armitage v. Wadsworth, 1 Madd. 189; Pennington v. Beechey, 2 S. & S. 282. In Drake v. Drake, 3 Hare, 523, the application failed; so in Bennett v. Glossop, 3 Hare, 578. The decision, in Crow v. Tyrrell, 2 Madd. 397, 402, went on fraud. There must always have been some equitable ground for the discovery sought, and here there is none. The books of practice do not carry the case further than the cases already discussed, and the rest of the appellant's authorities have no bearing on the matter. The Judicature Act, 1873, sect. 25, does not alter the rule of public policy above stated, and Order xxxi. only relates to procedure and does not affect rights. The Chancery Consolidated Order xv. rule 4, is still in operation, and the defendant may decline answering interrogatories to which he might demur, as he might to these under the old practice. In any case the defendant is not bound to make a “full and sufficient affidavit” in answer, as asked for by the summons. Seton on Decrees, ed. 1877, p. 141. As to the documents, the counter-part agreements shall be produced, and this is all the plaintiff is entitled to.

The House took time for consideration. [* 223]

* March 19. EARL OF SELBORNE, L. C. :

My Lords, the action in this case (brought in the Chancery Division of the High Court of Justice) is to recover possession of real estate in England, with mesne profits, by a legal title. The plaintiff exhibited interrogatories, in the ordinary course, to

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obtain discovery from the defendant of certain matters which (as I understand them) are all relevant to the plaintiff's, and not to the defendant's case. To these interrogatories (with an exception, which I need not more particularly mention) the defendant has in effect refused to give any answer; and in that refusal he has been upheld by the judgments of Vice-Chancellor Bacon and the Court of Appeal.

I should be very sorry to encourage appeals to your Lordships' House from interlocutory orders upon interrogatories raising no question of principle. But this appeal does raise an important question of principle.

The decision of the Court of Appeal, as understood by both parties, proceeded upon the general ground that a plaintiff in ejectment, claiming by a legal title, is entitled to no discovery, even of matters relevant to his (the plaintiff's) own case, from the defendant in possession. It was held (I think correctly) that the right of discovery under the present rules of the Supreme Court is not in principle more extensive than it formerly was in the Court of Chancery; and the plaintiff's counsel was challenged to produce authorities in support of the right of a plaintiff, in an action of ejectment at law, to file and obtain an answer to a bill of discovery in equity. This, as I understand, he was not at that time prepared to do; and it seems to have been concluded that the settled course of practice in equity was against the existence of such a right, and that this practice was founded upon principles which are, indeed, altogether beyond question; viz., that a plaintiff in ejectment at law must succeed (if at all) by the strength of his own title, and that it is against public policy to assist him in searching into the evidences of the defendant's title. Reference was also made to a case at law of Horton v. Bott, 2 H. & N. 249; 26 L. J. Ex. 267, in which a discovery of matters relevant only to the defendant's title was very properly refused. It does not, however, appear to me to follow * from those princi- [* 224] ples, or from the case of Horton v. Bott, that a plaintiff in an action of ejectment, suing upon a legal title, ought to be denied that discovery of matters within the defendant's knowledge, and tending to support, not the defendant's but the plaintiff's case, to which a plaintiff at law would be entitled in any other kind of action.

In the argument before your Lordships the appellant's counsel

· No. 1. — Lyell y. Kennedy, 8 App. Cas. 224, 225.

produced a series of authorities which if they had been cited in the Court of Appeal might not improbably have satisfied that Court (as I believe they have satisfied all your Lordships) that bills of discovery in aid of the title of plaintiffs at law, in actions of ejectment, were neither unknown to the Court of Chancery nor excluded by any rule or practice of that Court; on the contrary, that they were dealt with in the same manner and on the same principles as similar bills in other cases.

If there had been such a course of practice as that supposed, it must have been familiar to the leading writers on the law of discovery, — Sir James Wigram and Mr. Hare. There is, however, , no trace of it in the learned treatises of either of those authors. What they say is inconsistent with it.

Mr. Hare's work was published in 1836, before that of Sir James Wigram, by whom it is much commended.

He says (page 198): " That which has been said of the action of ejectment” (quoting Lord MANSFIELD's words in 4 Burrow, 2487, “ The plaintiff cannot recover but upon the strength of his own title," &c.)“ seems not less applicable to every suit seeking to change the right and the possession of property. " A case has been put of an ejectment brought against a party in possession who cannot, by filing a bill against the plaintiff in the action, compel a discovery of his title-deeds by merely” (I may observe that in Mr. Hare's book the word“ merely." is in italics)“ alleging that they would show that he had no title. The defendant is left to sustain his case or defend his possession as

. The purposes of justice are accomplished in affording to the plaintiff all the evidence that tends to establish affirmatively the facts upon which he insists. Sir James Wigram (2nd edition, 1840, page 14) lays down

what he calls“ the two cardinal rules in the law of dis[* 225] covery,” as * follows: “First, the right, as a general prop

osition, of every plaintiff to a discovery of the evidences which relate to his case; and, secondly, the privilege of every defendant to withhold a discovery of the evidences which exclu. sively relate to his own.” In the several “ propositions " founded on these two cardinal rules, which he proceeds to formulate, and to the elucidation of which the rest of his treatise is devoted, his language is equally large; and the exceptions from and qualifications of those rules and propositions which he examines in detail at pages 79–120 do not touch the present question. He states

he may

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