No. 1.- Lyell v. Kennedy, 8 App. Cas. 225, 226.

"

expressly (page 122) that the expression every plaintiff" is meant by him to include a plaintiff at law, who files a bill for discovery only in equity, as well as a plaintiff in equity who seeks relief.

Examples of bills for discovery only, in aid of actions of ejectment brought in Courts of law, are found in Crow v. Tyrell, 2 Madd. 397, Wright v. Plumptre, 3 Madd. 481, Pennington v. Beechey, 2 S. & S. 282, Drake v. Drake, 3 Hare, 523, Bennett v. Glossop, 3 Hare, 578, and Brown v. Wales, L. R., 15 Eq. 147, cases which came (all but one of them, on demurrer or plea) before Sir JOHN LEACH, Sir JAMES WIGRAM, and Sir JOHN WICKENS. In four of those cases the demurrer or plea was overruled, and it was held that discovery must be given; in another, a plea of purchase for valuable consideration without notice (as to which see Wigram, Discovery, 2nd ed. pp. 81 and 82) was allowed. The sixth came before the Court, after a full answer, upon a motion for the production of deeds, which was refused because the deeds appeared by the pleadings to be evidence of the defendants' title only, and for no other reason. In none of those cases was there the least trace of any objection, in principle, to such a bill of discovery. In one of them (Drake v. Drake) Sir JAMES WIGRAM said: "This is a mere bill of discovery in aid of an ejectment. . . The allegation" (of the plea), " if true, is not in law a bar to the action, and if the plaintiff is entitled to the relief he seeks at law, he is primâ facie entitled to discovery also. If the plaintiff is entitled to recovery at law, his right to discovery is, primâ facie, incident to his right to the relief; and the defendant can no

more refuse to give discovery in such a case than he [226] could refuse to answer a bill for relief in this Court, where the right to the relief in equity could not be controverted." Butterworth v. Bailey, 15 Ves. 358, is another case of a bill of discovery only, in aid of an ejectment at law, which came before Lord ELDON, after a full answer, upon a motion to amend by adding a prayer for relief; which motion was refused, but upon grounds not implying any doubt that the bill, as it stood, was proper according to the course of the Court.

In Hylton v. Morgan, 6 Ves. 294, the bill was not for discov ery only, but also prayed that the defendant to the action of ejectment might be restrained from setting up outstanding terms. Lord ELDON refused an interlocutory motion for an injunction, saying,

No. 1. Lyell v. Kennedy, 8 App. Cas. 226, 227.

"There are two ways of proceeding. You may get a discovery in aid of ejectment; but, if you will have equitable relief to aid the trial of your right at law, you must have that relief upon a decretal order prior to the trial at law." Jones v. Jones, 3 Mer. 170, was a case in which the plaintiff, stating in his bill a legal title to land, on which he was about to proceed at law, asked relief, to which a demurrer was allowed. Sir WILLIAM GRANT said: "If this had been a bill merely for discovery, there are several parts of it to which an answer must undoubtedly have been given.'

It was admitted by the learned counsel for the respondent that discovery in aid of an ejectment at law might always be obtained by a bill praying relief, even if the relief were only to prevent the setting up of outstanding terms. It is unnecessary to consider whether the present action, in a Court which can give both discovery and relief, may not (for this purpose) be equivalent to a bill praying relief; because the right to discovery really rested upon the same principles, whether relief was prayed or not, and whether there was or was not any special equity beyond that which was, in all cases alike, the foundation of the right to discovery. Upon this point, Sir James Wigram's authority may again be referred to. He states (pages 5 and 6) that the distinction between bills of discovery and bills for relief, "so far as principle is concerned, has no real existence. . . . The right of [* 227] * discovery is, in both cases, founded upon one and the same principle." (See also page 122 of the same work.)

I am, therefore, of opinion that the general ground on which the judgment appealed from appears to have proceeded, cannot be maintained; and that, unless the whole matters inquired into by the interrogatories, which the defendant has not answered, are irrelevant to the plaintiff's case about to come on for trial," in the words of Sir James Wigram's second Proposition (Wigram, Discovery, p. 15), the defendant must make some sufficient answer to those matters.

The plaintiff claims by conveyance from alleged co-heiresses of Ann Duncan, who died in 1859, being at the time of her death entitled to and seised of the land sought to be recovered in the action, as the defendant admits. The plaintiff will have to prove at the trial that the persons through whom he claims were in fact the heirs of Ann Duncan. In aid of that part of his case, he has addressed to the defendant, by his 20th and 21st interrogatories,

No. 1.-Lyell v. Kennedy, 8 App. Cas. 227, 228.

a series of questions which are certainly not irrelevant. The defendant by his answer, has claimed privilege for any information which he may possess on the subject of those questions, but he has not, to my mind, answered with the particularity and distinctness necessary to reduce the discovery, which he so declines to give, to matters clearly within the privilege which he claims.

If the plaintiff succeeds in establishing the fact of heirship, it will also be necessary for him, at the trial, to repel the defence of the Statute of Limitations, the action having been brought more than twelve years after Ann Duncan's death. Most of the special averments in the statement of claim, and the interrogatories founded on them, have for their object to repel that defence; and, if they are proved in fact (the heirship being also proved), the question will have to be determined at the trial whether they are sufficient for that purpose in law. Unless their insufficiency is so manifest as to make it certain that they raise no question proper for determination at the trial (whatever the facts may then turn out to be), the plaintiff ought to be at liberty to prove this part of his case by all proper means, discovery included.

The case, so set up by the plaintiff, amounts in substance to this, that the possession which the defendant has had of Ann *Duncan's estate from the time of her death was obtained, [* 228] and retained, by means of the assumption by him of a fiduciary character towards her heirs, whoever they might be; and that he has from time to time made admissions to that effect, acknowledging himself to be accountable on that footing, sometimes by writing under his hand, and sometimes on oath, including two letters addressed by him to the plaintiff himself, though before the plaintiff had any title.

The plaintiff, as I understand his pleading, claims the benefit of the fiduciary relation so alleged to have been undertaken by the defendant; and he will, doubtless, at the trial insist that when he commenced his action he was entitled to, and did, affirm and ratify, and that the defendant was estopped from denying, that fiduciary relation. I express no opinion on the question whether this case, if established, will be sufficient in law to repel the defence of the Statute of Limitations; but I think it raises a question proper to be determined at the trial upon such facts as the plaintiff may then be able to prove, and not proper to be prejudged by an interlocutory order upon interrogatories at this stage of the action.

No. 1. Lyell v. Kennedy, 8 App. Cas. 228, 229.

The defendant, therefore, must answer the interrogatories relevant to that portion of the plaintiff's case. It is no sufficient objection that the plaintiff may have, and to some extent (on his own showing) has other means of proving the facts inquired after. Admissions of the facts by the defendant might simplify the proof and materially diminish the expense of trial. Of the interrogatories in detail (of which I cannot approve the length) no more need now be said than that I think they ought generally to be answered in substance, subject to any privilege against particular discovery which the defendant may be entitled to claim.

*

A subordinate question arose upon a summons for the production of certain documents admitted by the defendant's affidavit of documents, filed on the 4th of November, 1881, to be in his possession or power, as to some of which he appears to have intended to claim privilege under the doctrine of Clagett v. Phillips, 2 Y. & C. C. C. 86, Pearse v. Pearse, 1 De G. & S. 12, and other well-known authorities; while as to others he probably [* 229] intended to object to their production as not being relevant or material to any question to be determined at the trial; though (if the plaintiff should succeed at the trial) they may then become relevant to the consequential account. On comparing the third paragraph of the affidavit, in which protection is claimed for those documents, with the body of the second part of the first schedule in which they are described, the description does not appear to me to agree, as it ought to do, with the claim of privilege. But I think that the respondent ought to be permitted to remove this difficulty, which now stands in his way, by a further and better affidavit, if he is able to do so; which, as to some at least of the documents described in the latter portion of the sched ule, appears to be extremely doubtful.

What I propose to your Lordships is, to reverse the orders appealed from, and to remit this case to the Court below, with a declaration that the respondent ought to put in a further and better answer to the appellant's interrogatories, and also to file a further and better affidavit as to all the documents which he objects to produce. The respondent ought, I think, to pay the costs here, and the costs of the summonses in both the Courts below, whatever may be the result of the action.

My Lords, at the conclusion of the arguments in this case,

I

No. 1.-Lyell v. Kennedy, 8 App. Cas. 229, 230.

was of opinion, with all your Lordships, that the cases cited at the bar for the appellant completely displaced the reasons assigned for their judgment by the Court of Appeal.

The case has been so fully considered in the judgments of your Lordships, which I have had the advantage of perusing, that I shall content myself with saying that the judgment proposed by the LORD CHANCELLOR appears to me to be just in principle and in strict accordance with the settled practice of the Equity Courts. Lord BRAMWELL:

My Lords, I agree in the conclusion that has been arrived at by those who have preceded me, and in their reasons. But the respect which is due to learned Judges make me think it desirable to show that I have formed an opinion for myself. And I wish also to call attention to the principle which [* 230] ought to govern this case, and which, except by Lord Jus

tice BRETT, seems to have been lost sight of.

As a general rule a party to a suit in the Superior Courts has, to support his own case, a right to discovery from his opponent. This must be because the law supposes that the ends of justice will be furthered thereby. But it is said that the case of a plaintiff seeking to recover land is an exception to this rule. I cannot agree. Such an exception can only exist because justice in such suits would not be furthered by such discovery, or because it is not desirable it should be. It seems to me impossible to say the former. The truth will be got at by the same means in suits to recover land as in other suits. We are driven therefore to the only other reason, viz., that in such suits it is not desirable that justice should be furthered thereby, which is impossible. Why should it not? Why not by all the means by which it is furthered in other suits? It was said by my brother BRETT that public policy is opposed to it. Why? It is said that the plaintiff in such a suit recovers on the strength of his own title. Supposing that was true in such suits and in them only, why should he not be at liberty, in order to establish that title, to use the procedure, as in all other suits to prove facts? But the truth is, a plaintiff always, if he recovers, does so on the strength of his own title. If the action is for the detention of a chattel, the plaintiff must show a title to it. If on a bill of exchange, he must show the defendant is a party, and so on. I see no reason in principle for the defendant's contention.