No. 2. - Bidder v. Bridges, 54 L. J. Ch. 799.

enjoyed, and still had and enjoyed, rights of pasture, herbage, and estovers over the whole of Mitcham Common, including the part called Beddington Corner. The plaintiff G. P. Bidder was seized in fee for an estate of inheritance in possession of a freehold mansion-house, with outbuildings and 32 acres of land, situate in the township of Mitcham, and in his own occupation. The plaintiff Nightingale was seized in fee for an estate of inheritance in possession of a freehold messuage used as a beerhouse, and three freehold cottages near thereto, all situate in the parish of Mitcham, and being in the occupation of Nightingale or his tenants. The plaintiffs also alleged that the defendant threatened to inclose, build upon, and appropriate the piece of land called Beddington Corner.

The defendant was lord of the manor of Wallington, and he contended that Beddington Corner formed part of that manor, and that all rights of common over it, if any had ever existed, had been extinguished. He also alleged that the plaintiff Nightin gale's beerhouse and cottages had no land attached thereto or held therewith respectively, and that such rights of common as were claimed could only be enjoyed in respect of lands, and not tenements. He also alleged that the rights of estovers claimed could only be enjoyed in respect of ancient tenements, and he denied that the plaintiffs' tenements were ancient. The remainder of his defence amounted to a direct traverse of the plaintiffs' case. The defendant administered to the plaintiffs the following interrogatories:

1. How long have you, George Parker Bidder and William Henry Nightingale, been respectively proprietors or occupiers of the lands and premises respectively called in your statement of claim "Ravensbury," the "Fountain Beerhouse," and the three cottages, and for what estates or interests, and what is the tenure thereof respectively? Are such respective premises, or were they, or any, and which of them, at, heretofore, and when last, held, or within the limits of any, and what, actual or reputed manors or manor, or subject to any, and what, quit or chief rents or services, and to whom payable or rendered. Set forth which of the manors of Ravensbury, Mitcham, Biggin, and Tamworth, or Vauxhall, extend as you allege over any, and what, parts or part of the land described in your statement of claim as Beddington Corner, and which is in fact Wallington Common but is hereinafter referred to

No. 2. Bidder v. Bridges, 54 L. J. Ch. 799, 800.

as Beddington Corner. Are any, and which, of the messuages held by you respectively ancient messuages, or how otherwise, and when were the same respectively built? Have the said "Fountain" and three cottages respectively any, and what, lands appurtenant thereto or held therewith?

2. Have you, George Parker Bidder and William Henry Nightingale, respectively, or your respective predecessors in title, as proprietors or occupiers of any, and what, lands or tenements in the parish of Mitcham, or under any other alleged title, or in any other capacity, ever either placed, kept, or depastured any, and what, kind of commonable beasts, or any other, and what, animals in or upon, or cut or taken furze or gorse upon or from, or dug or taken gravel, sand, or other materials upon or from, or taken part in any, and what, games or sports in or upon either, any, and what, parts or part in particular of Mitcham Common (but not including Beddington Corner therein), or in or upon any, and what, part or parts in particular of Beddington Corner respectively?

3. If Yea, set forth when, and for how long, and whether or not continuously, or at some, and what, intervals, and when first, and when last, and where, and under what alleged title, you or

your predecessors in title respectively so depastured ani[* 800] mals, or took away furze or gorse, * gravel, sand, or other materials, or took part in games or sports, and whether you or they respectively so depastured animals, or took away gorse, furze, gravel, sand, or other materials, without limit, or subject to any, and what, limit, or did so by any, and what, licence, or in consideration of any, and what, payment, or otherwise, and how and for what purposes you or they respectively applied such gorse, furze, or other materials.

The plaintiffs refused to answer these interrogatories on the ground that they relate exclusively to their own title and did not. tend to support the defendant's case, and that the information which was sought was part of the evidence which they intended to adduce at the trial in support of their own case.

The defendant took out this summons to compel the plaintiffs to answer the interrogatories.

Graham Hastings Q. C., and Kingdon, for the defendant. - For the purposes of argument the interrogatories may be classified as asking four questions,-1. Are the messuages of which the plaintiffs are in possession ancient messuages? 2. Are there any

lands

held with the houses of the plaintiff Nightingale? 3. Are the tenements in question held of any manor? 4. Has there been any user by the plaintiffs or their predecessors in title of the alleged rights over the common? We are entitled to have full and sufficient answers to these interrogatories, inasmuch as they relate to matters material to our case. For example, we clearly have the right to ask whether the plaintiffs' messuages are ancient messuages, because, if not, the rights claimed by the plaintiff's cannot exist. Luttrel's Case, 4 Co. Rep. 86a.

We are entitled to ask upon what facts the plaintiffs rely, but we do not seek to know the evidence which they intend to bring forward. Eade v. Jacobs, 47 L. J. Ex. 74, 3 Ex. D. 335; Lyell v. Kennedy, 52 L. J. 385, 9 App. Cas. 81, 85, 8 App. Cas. 217 (p. 513, ante), and The Attorney-General v. Gaskill, 51 L. J. Ch. 870, 20 Ch. D. 519.

[KAY, J., referred to Bray on Discovery, 446 et seq.]

Our questions may be directed to the rebuttal of the plaintiffs' case as well as to the support of our own, and any question which tends to destroy their case is permissible. A defendant is allowed greater licence in this respect than a plaintiff. Lowndes v. Davies, 6 Sim. 468, and Hoffman v. Postill, L. R., 4 Ch. 673.

[KAY, J., referred to Ivy v. Kekewich, 2 Ves. 679, and said that neither party could claim discovery beyond what was necessary to support his own case. ]

Documents referred to by a plaintiff or defendant in his answer to interrogatories may be called for even though they relate to the evidence which he intends to use. Unless, of course, they are protected by privilege. Storey v. Lennox, 1 Keene, 341, 1 Myl. & Cr. 525, 6 L. J. Ch. 99, and Lyell v. Kennedy, 53 L. J. Ch. 937, 27 Ch. D. 1.

Kekewich, Q. C., and P. H. Lawrence, for the plaintiff's, were only called upon with reference to the second class of interrogatories. They admitted that these must be answered.

KAY, J. This case raises an important question as to the right which a defendant has to exact from a plaintiff discovery by means of interrogatories.

Now, the rule is laid down in a book which has always been considered (and I will give in a moment the reason why I say so) of the highest authority on this subject, the late Vice-Chancellor Wigram's book on Discovery. Proposition 2, on page 15, is as

No. 2. - Bidder v. Bridges, 54 L. J. Ch. 800, 801.

follows: "It is the right, as a general rule, of a plaintiff in equity to exact from the defendant a discovery, upon oath, as to all matters of fact which, being well pleaded in the bill, are material to the plaintiff's case about to come on for trial, and which the defendant does not by his form of pleading admit." Then Proposition 3 is this: "The right of a plaintiff in equity to the benefit of the defendant's oath is limited to a discovery of such [* 801] material facts as relate to the plaintiff's case, * and does not extend to a discovery of the manner in which the defendant's case is to be exclusively established"- that is one thing -" or to evidence which relates exclusively to his case." There are two things which a plaintiff may not require discovery of from the defendant. One is the manner in which the defendant's case is to be established, and the other is the evidence which relates exclusively to that case. Now I turn to page 288, and there, after a very careful examination of a good many authorities, it is stated in placitum 375, "The preceding cases must establish, if authority can establish, the original privilege of a defendant to withhold discovery appertaining to his own case alone, and the absence of all original right in the plaintiff to call for such dis covery; and from those cases it will be seen that the privilege of the defendant is the same whether he is defendant in an original suit in which relief is sought, or is plaintiff in that suit and is made defendant to a cross-bill for the purpose of discovery." Then in the note are a number of cases which are referred to in the preceding placita which I have examined, and which seem entirely to support that statement.

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I said that the authority of that book stands as high at this day as it ever did, and I have the highest possible warrant for saying that, because in Lyell v. Kennedy, in the House of Lords, Lord SELBORNE says, "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." That is one proposition. Then, at pages 224 and 225, he reads the propositions which I have just read from ViceChancellor Wigram's book, referring to them as the two cardinal rules on the law of discovery, and referring to that book as being, what I have always considered it to be, a book of the highest possible authority upon these questions of practice in equity. Therefore I must take the rule to be the same in the case of a defendant

seeking discovery now, as it would have been in the case of a defendant seeking discovery by a cross-bill under the former practice in equity; and that rule is in the words which I have read from the book of Sir James Wigram.

Now it is objected to that, that there are certain cases which establish a difference. But first of all, before I consider them, I will refer to the mode in which Vice-Chancellor WIGRAM establishes these propositions, and to certain authorities to which he refers which seem to me very much indeed in point in this present case. It is quite plain, according to those authorities, that if a defendant meets the case of a plaintiff who is seeking to establish some title, whether it be to land or anything else, by a mere direct negative, that would not entitle the defendant under the old practice to file a cross-bill and endeavour by interrogatories in that cross-bill to make out how the plaintiff's case was to be established, or to discover evidence which related exclusively to his case; and it cannot be said that because the defendant meets the plaintiff's case with a direct negative, therefore the evidence which the plaintiff will adduce in support of his own case relates also to the defendant's case in such sense as to entitle the defendant, who only pleads a direct negative, to examine that evidence.

Now, to go at once to the cases from which dicta are cited which are supposed to contravene that rule, I will take the case of Eade v. Jacobs. It is very important before the dictum is read to see what the case of Eade v. Jacobs is: "The plaintiffs, as administrators of Isaac Eade, sought to recover possession of certain hereditaments for breach of a covenant contained in a lease.' Pausing there, the affirmative case would be to prove that he had committed a breach of covenant. One of the breaches relied on was "that the defendant had during the term made certain alterations in and additions to the demised hereditaments without the consent in writing of the lessor. The defendant pleaded that the alterations and additions were made with the consent and authority of the intestate.' Suppose that case came to trial, the case of the plaintiff is, "You have committed a breach of covenant;" the defendant confesses and avoids. He says, "Yes, I have; that is, it would have been a breach of covenant but for this, that I obtained the consent of the lessor." That is not the plaintiff's case; it is the defendant's case; and the plaintiff interrogated to know at what date or dates were the [*802]