is simply a contradiction of the well-settled rule that the questions which either plaintiff or defendant can ask must be confined to questions which establish their own substantive case, and that they are not entitled to ask questions which relate to the evidence. by which or the manner in which their adversary means to establish his own case. I am quite satisfied that so great a Judge as Lord Justice GIFFARD never intended those words, which seem to have been cited in subsequent cases, as they were in *the case of The Commissioners of Sewers of the City of [* 805] London v. Glasse, as establishing the proposition that the defendant has a larger right of discovery than the plaintiff, to have any such significance. He was only dealing with the case before him, in which the defendant was asking questions to set up that substantive case which he had pleaded by way, no doubt, of destroying the plaintiff's case, but which was a matter that he himself, the defendant, was bound to prove, and therefore as to which he had a perfect right to search the conscience of the plaintiff.

Now I think there is only one other case I need refer to, and that is the case of The Attorney-General v. Gaskill. That was a case which went before the Court of Appeal, where an action was brought by the Attorney-General and the local board to restrain the defendant from building across a public footpath. The defendant denied the existence of any public right of way over the ground. The plaintiff delivered interrogatories as to the existence of a public right of way, and as to what passed in the conversation at the board meeting, and at a conversation between the defendant and the plaintiffs' solicitor before that meeting. The defendant declined. to answer those interrogatories, alleging that as to the right of way he was not bound to answer as to a right which he had denied by his pleadings; and the Court of Appeal, of course, held, as everybody must have held, that that was precisely within the rule as to discovery. The plaintiff was seeking to search the conscience of the defendant, not as to the defendant's case, but as to his own case. He said, "There is a right of way," and he was interrogating the defendant to try and obtain from him admissions that there was such a right of way. That is strictly within the rule as I have read it; and I observe here that, as Lord SELBORNE said in the House of Lords, the late MASTER OF THE ROLLS says, "There appears to have been some misapprehension as to the effect of the

No. 2. Bidder v. Bridges, 54 L. J. Ch. 805, 806.

"

Judicature Acts. They do not alter the rules as to discovery except so far as there are express rules on the subject:" and Lord Justice COTTON somewhat observes on his own judgment in Eade v. Jacobs, "which," he says, "I think has been somewhat misunderstood. In that case the defence had set up a parol agreement which was said to be immaterial, and what I held was this,- that the interrogatories ought to some extent to be limited so as to ask the defendant to give discovery of the substance only of the conversation on which he relied as a defence, and that the person interrogated was not bound to set forth the names of the witnesses or the details of the conversations." And then, taking the language of the judgment, he says that was expressed in this passage of the judgment, "I think that the plaintiff is entitled to a discovery of the facts upon which the defendant relies to establish his case, but not of the evidence which it is proposed to adduce;" and in the rest of the judgment he says, "modifying in some slight way, the interrogatory has reference to what I laid down as the principle of the decision. " I have already observed upon that judgment, and I think what the learned Judge said and decided was only this: You have not pleaded these conversations as strictly as, according to the practice in Chancery, you are bound to plead them, and therefore you are bound to answer this interrogatory to the extent to which it seeks that statement from you which ought to be contained in your pleadings.

Now I turn to the case before me. [His Lordship referred to the statement of claim, and continued:] That is met by a defence which practically amounts to a traverse; but with respect to the property claimed by Nightingale there is a substantive case set up by the defence, that the beerhouse and cottages in the possession of Nightingale have not any land attached thereto or held there with. That seems to me to be a matter as to which an answer should be given, because, though it is a small point, a substantive case is set up by the defendant. Then the defendant says that the rights claimed could only be enjoyed in respect of ancient tenements, and he does not admit that the plaintiffs' alleged tenements are ancient. The interrogatories, which have been very usefully classified by Mr. Hastings for this purpose, ask four questions:

First, are the messuages of which the plaintiffs are in [* 806] * possession ancient messuages; secondly, are there any lands held with the houses of Nightingale (that I have

No. 2. Bidder v. Bridges, 54 L. J. Ch. 806.

dealt with, and that is going to be answered); thirdly, are the tenements in question held of any manor; and fourthly, has there been any user by the plaintiffs or their predecessors in title of these alleged rights over the common?

Now it is obvious that the first, third, and fourth of those matters are matters which the plaintiffs may have to prove to support their case. The interrogatories do not ask, " By what evidence are you going to prove these facts?" but they do ask, "Are these things the fact or not?" Now, what is the materiality of it? The materiality, of course, to the defendant's case is only this, that if he can make out they are not the fact, he will be able to defeat the plaintiffs' case,- that is to say, if he can show from the plaintiffs' admission that the plaintiffs cannot prove these facts as to which he interrogates them, then the plaintiffs will not be able to make out their case. But is that legitimate? It is directly against the rule which I have been citing from Vice-Chancellor Wigram's book. It is not asking discovery in respect of any substantive case of the defendant, but it is asking discovery from the plaintiffs as to the facts on which the plaintiffs must rely to make out their own case; and that, according to the rule laid down. in all the cases which I have referred to, is clearly beyond the limit to which a man can go. It is like looking into the brief. It is like asking: "Now, tell me what are you going to prove at the hearing; I am not asking for your evidence, but I will ask what you are going to prove. Let us put the question thus. Take for example the case of user. User or non-user has no materiality in this action at all, except as a mode by which the plaintiffs will attempt to make out the right they assert. We know very

well that that is the usual manner in which these rights are proved. They may at the trial produce a number of witnesses to show that they and their predecessors in title have always, or have again and again from a time long past, used these rights of common or estovers and whatever else is claimed in respect of these particular tenements. That of course one can guess is probably the line which the evidence will take. Suppose the question had been in this form, "Have you any, and what, evidence to prove acts of user?" it is obvious that no such question as that could be asked. Then leave out the words " and what"-"Have you any evidence to prove acts of user?" Could that question be put? To my mind, clearly not. They have clearly no right to know whether

they have the evidence, any more than to know what the evidence is. Then alter the form of the question again, "Have you or your predecessors in title ever used?" That is only another way of asking what the evidence is; and I refer to the authority which I have cited, and which has the approval of Vice-Chancellor Wigram -the authority of Ivy v. Kekewich - as showing that that is precisely what he cannot ask.

"

The question was, "On what facts do you rely? Set out the births, deaths, marriages, and so on, which are the different steps of your pedigree. The Court held you could not ask a question of that kind at all; that is the mode in which they will make out their case. You have no right to know how they will make out their case. Of course you cannot ask how it is going to be proved; but, further, you cannot ask the fact. It will not do to come here and say, Now I will not ask you by what evidence you can prove the fact, but I will ask you is it a fact or not, that is, can you prove it or not? To my mind that is not admissible. I do not want to rest my decision in this case on a particular part or word of the interrogatory. It has been very fairly indeed put as a question of principle, and the interrogatories have been classified in the particular way which I have mentioned.

**

Another question is, " Are these tenements held of any manor?" That would be a matter important to the plaintiffs' case to prove. How has the defendant a right to come and say, "You cannot prove that these tenements are held as part of any manor, and therefore your case will fail?" That is a matter which, again, is part of the plaintiffs' evidence, which before the trial the defeudant has no right to demand from the plaintiffs. Take again [* 807] the question: " Are these messuages ancient messuages?" If they cannot prove that they are they very likely will fail at the trial, but that question is a part of their case. None of these questions are questions of any substantive case set up by the defendant of confession or avoidance of the plaintiffs' case; and they are not relevant to the defendant's case except as a direct negative of the plaintiffs' case. Therefore they are questions seeking to find out what will be in the plaintiffs' brief at the trial, what sort of evidence they are going to produce, how they are going to make out their case; and for that reason it seems to me they are altogether wrong, and I must disallow the summons, except of course as to the question which Mr. Kekewich admits must be answered.

No. 2.—Bidder v. Bridges, 54 L. J. Ch. 807.

Kekewich. How will your Lordship deal with the costs? The old rule was that the costs were distributed if you succeeded in respect of one and failed as to the others.

KAY, J. I think you had better observe that rule here and distribute the costs. You must pay the costs of the summons as far as it relates to that which you have to answer, and they will pay the costs of the rest, and there must be a set-off.

The defendant Bridges appealed.

Hastings, Q. C., and Kingdon, for the appellant, cited Lyell v. Kennedy, 53 L. J. Ch. 449, 9 App. Cas. 81 (p. 513, ante), Earl De la Warr v. Miles, 50 L. J. Ch. 754, 17 Ch. D. 535, 595, Flight v. Robinson, 8 Beav. 22, 13 L. J. Ch. 425, Grumbrecht v. Parry, 32 W. R. 203, 558; Hoffman v. Postill, Eade v. Jacobs, Wigram on Discovery, p. 66, The Attorney-General v. Gaskill, The Commissioners of Sewers of the City of London v. Glasse, and Saunders v. Jones, 47 L. J. Ch. 440, 7 Ch. D. 435.

Kekewich, Q. C., and P. H. Lawrence, for the respondents.

In the course of the argument for the respondents, the Court intimated that some further part of the interrogatories ought to be answered by the plaintiffs, and suggested an arrangement between the counsel as to what parts ought to be answered. It was thereupon agreed that the Court should act as arbitrators, and settle the interrogatories in the form in which they ought to be answered. The Court did so.

BAGGALLAY, L. J. Counsel in this case have, I think, with great discretion, and certainly to our great relief, placed the Court in the position of arbitrators, and we have endeavoured in what we have done to bear in mind the several authorities which have been cited to us. We think that the interrogatories were too wide; but on the other hand we think that some of them ought to be answered, and we think they should be in the form I shall presently mention. Having regard to the modifications made in the interrogatories, I think the costs here and below should be costs. in the action.

His Lordship then read the interrogatories settled by the Court, as follows:

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,