Nos. 1, 2. Lyell v. Kennedy; Bidder v. Bridges. — Notes.

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 any time heretofore, and when last, held, held of, or situate within the limits of any, and what, actual or reputed manors or manor? Set forth which of the manors of Mitcham, Ravensbury, 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 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 and held therewith?

[* 808]

*2. Have you, George P. Bidder and William Henry Nightingale, respectively, as proprietors or occupiers of any, and what, land or tenements in the parish of Mitcham, ever 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 the instances with dates, and whenever the same were by any, and what, licence, or in consideration of any, and what, payment, and how and for what purposes you or they respectively applied any such gorse, furze, or other materials.

ENGLISH NOTES.

As to the right to production of title-deeds generally see also Nos. 17 & 18 of " Deed " and notes, 8 R. C. 712-728.

While in Chancery a party had always extensive powers of enforcing discovery, at Common Law he had originally only certain restricted rights of obtaining inspection of documents.

Under 14 & 15 Vict. c. 99, and 17 & 18 Vict. c. 125 (The Common Law Procedure Act, 1854), the Common Law Courts acquired a large jurisdiction as to discovery, differing however from that which existed in Chancery.

The practice in all the Divisions of the High Court of Justice is

Nos. 1, 2. Lyell v. Kennedy; Bidder v. Bridges.- Notes.

now regulated mainly by the Judicature Acts, and the Orders and Rules thereunder.

These Acts "make an alteration of procedure merely, and not an alteration of the law." Per JESSEL, M. R., in Lyell v. Kennedy (1882), 20 Ch. D., at p. 489, and see also Hemmings v. Williamson (1883), 10 Q. B. D. 459.

Where no other provision is made by the Acts or rules, the former procedure and practice remains in force. Ord. 72, r. 2; Wilson v. Church (1878), 9 Ch. D. 552, 39 L. T. 413, 26 W. R. 735.

Where the practice in Chancery conflicts with that at Common Law the former is to prevail. Judicature Act, 1873, s. 25, subs. 11; Bustros v. White (1876), 1 Q. B. D. 423, 426, 45 L. J. Q. B. 642, 34 L. T. 835, 24 W. R. 721; Blockow v. Fisher (1882), 10 Q. B. D. 161, 166, 52 L. J. Q. B. 12, 47 L. T. 724, 31 W. R. 235; Anderson v. Bank of British Columbia (1876), 2 Ch. D. 644, 45 L. J. Ch. 449, 35 L. T. 76, 24 W. R. 624.

A party is entitled to discovery of his adversaries' case or of the material facts upon which that case depends. Attorney-General v. Gaskill (1882), 20 Ch. D. 519, 51 L. J. Ch. 870, 46 L. T. 180, 30 W. R. 558; Marriott v. Chamberlain (1886), 17 Q. B. D. 154, 55 L. J. Q. B. 448, 54 L. T. 714, 34 W. R. 783; Blockow v. Fisher (supra).

But he is not entitled to a knowledge of the evidence by which his opponent intends to prove his case. Bidder v. Bridges (principal case No. 2, supra); Benbow v. Low (1880), 16 Ch. D. 93, 50 L. J. Ch. 35, 44 L. T. 119, 29 W. R. 265, and many older authorities, for example, Plummer v. May (1750), 1 Ves. 426; Bligh v. Benson (1819), 7 Price, 205, at p. 207.

A party is sometimes required to disclose information in the nature of particulars. For example, where the defendant in an action for wrongful dismissal alleged acts of misconduct against the plaintiff, it was held that he must specify such acts. Saunders v. Jones (1877), 7 Ch. D. 435, 47 L. J. Ch. 440, 37 L. T. 769, 26 W. R. 226. A plaintiff was held bound to state his grounds for alleging that a certain mine was worthless, and to set out particularly certain papers by which he alleged that he had been induced to take shares therein. Ashley v. Taylor (1878), 38 L. T. 44. In an action for dissolution of partnership, the plaintiff, having alleged improper conduct on the part of the defendant, was held bound to set forth the particulars and circumstances of such conduct. Lyon v. Tweddell (1879), 13 Ch. D. 375. In an action for libels contained in a newspaper and pamphlet the defendants were required to answer as to the extent of the circulation of these publications. Parnell v. Walter (1890), 24 Q. B. D. 441, 59 L. J. Q. B. 125, 62 L. T.

75, 38 W. R. 270.

Where the licensee under a patent was sued for an account and

Nos. 1, 2.

-

Lyell v. Kennedy; Bidder v. Bridges. - Notes.

royalties, of which patent the defendant denied user and alleged that the process was a secret of his own, it was held that the defendant must answer fully detailed questions as to his process, so long as he did not disclose his secret, and must also answer an inquiry as to the names of some of his customers. Ashworth v. Roberts (July 19, 1890), 45 Ch. D. 623, 60 L. J. Ch. 27, 63 L. T. 160, 39 W. R. 170. But in an action to restrain defendants from selling their goods as those of the plaintiffs', an interrogatory requiring the plaintiffs to set forth the quantities of goods sold by them, distinguishing the quantities sold in each year, was disallowed as being directed to details of the plaintiffs' evidence. Benbow v. Low (1880), 16 Ch. D. 93, 50 L. J. Ch. 35, 44 L. T. 119, 29 W. R. 265. As to particulars of infringement of a patent, see Moseley v. Victoria Rubber Co. (1886), 55 L. T. 482. In an action for dimin ishing the water in a river, the plaintiffs, being asked to give a list of the days between certain dates on which they had been injured by the withdrawal of the water, were held entitled to answer that they were unable to specify the days. Rasbotham v. Shropshire Union Railway & Canal Co. (1883), 24 Ch. D. 110, 48 L. T. 902, 32 W. R. 117. And where the defendant in a libel action was asked whether she had written a letter containing the alleged libellous statements, and replied that to the best of her recollection she never wrote those statements, that she had no copy of the letter, and could not recollect the exact statements therein, it was held that her answer was sufficient. Dalrymple v. Leslie (1881), 8 Q. B. D. 5, 51 L. J. Q. B. 61, 45 L. T. 478, 30 W. R. 105.

Where the name or address of a person is material it must be disclosed. Thus in an action for libel in respect of a statement by the defendant that the plaintiff had fabricated a story to the effect that he had seen a copy of a circular, which he alleged had been sent out by the defendant, in the hands of a certain person; that copies of it were in the possession of other persons; and that his informant was a solicitor: the plaintiff was held bound to discover the names and addresses of these persons as being material to the plea of justification. Marriott v. Chamberlain (1886), 17 Q. B. D. 154, 55 L. J. Q. B. 448, 54 L. T. 714, 34 W. R. 783. In an action to restrain infringement of a trade-mark, the defendant was held entitled to discovery of the names of "divers persons" alleged in the statement of claim to have been induced to purchase the defendant's goods as the plaintiff's. Humphries v. Taylor (1888), 39 Ch. D. 693, 59 L. T. 177, 37 W. R. 192. In a patent action it was held that the defendant must disclose the names and addresses of the persons by whom prior user was alleged to have been made. Birch v. Mather (1883), 22 Ch. D. 629, 52 L. J. Ch. 292, 31 W. R. 362. Where the plaintiff claimed for work and labour in

Nos. 1, 2. Lyell v. Kennedy; Bidder v. Bridges. — Notes.

making a model windlass the defendant was required to give the names of judges who had awarded it a prize at an exhibition. Hall v. Liardet (1883), W. N. (1883) 175. And see Ashworth v. Roberts (1890),

supra.

On the other hand interrogatories were disallowed as to the persons in whose presence an alleged verbal consent to a breach of contract was given, Eade v. Jacobs (1877), 3 Ex. D. 335, 47 L. J. Ex. 74, 37 L. T. 621, 26 W. R. 159; and as to the persons in whose presence one of the parties was alleged to have misconducted himself. Lyon v. Tweddell (1879), 13 Ch. D. 375; Johns v. James (1879), 13 Ch. D. 370. In an action for libel contained in a private letter, the plaintiff cannot interrogate the defendant as to the persons from whom he received the information contained in the letter. Mackenzie v. Steinkoff (1890), 54 Justice of the Peace, 327. And generally it may be said that the names of a party's witnesses need not be disclosed unless they happen to be material facts. Marriott v. Chamberlain (supra).

Where a conversation happens to be material to the issue, a party may be required to state the substance of it. Eade v. Jacobs (1877), 3 Ex. D. 335, 47 L. J. Ex. 74, 37 L. T. 621, 26 W. R. 159.

Where the question is whether a party has a title to land, he must disclose his alleged title. Bidder v. Bridges (principal case No. 2 supra); Cayley v. Sandycroft Brick, &c. Co. (1885), 33 W. R. 577. But a party whose case is not that he has a title, but that the opposite party has none, cannot be questioned as to his title. Eyre v. Rodgers (1891), 40 W. R. 137; Cromwell v. Swail (1885), 1 Times Rep. 474; Lyell v. Kennedy (principal case No. 1, supra).

own case.

The rule is the same as regards production of documents; a party will not be compelled to disclose those which evidence exclusively his See Budden v. Wilkinson (July 14, 1893), 1893, 2 Q. B. 432, 63 L. J. Q. B. 32, 69 L. T. 427, 41 W. R. 657; Bewicke v. Graham (1881), 7 Q. B. D. 400, 50 L. J. Q. B. 396, 44 L. T. 371, 29 W. R. 436. He must, however, swear that they evidence his own case and do not support that of his opponent or impeach his own. That assertion will be accepted as sufficient, unless the Court is reasonably certain that the defendant has erroneously represented or misconceived the nature of such documents. See in support of both these statements, Attorney General v. Emmerson (1882), 10 Q. B. D. 191, 52 L. J. Q. B. 67, 48 L. T. 18, 31 W. R. 191; Leslie v. Cave (1887), 56 L. T. 332; Hey v. De la Hey (1886) W. N. (1886) 101.

The right to discovery is not restricted to the facts directly in issue, but extends to facts relevant thereto. See, as to interrogatories, per ESHER, M. R., in Marriott v. Chamberlain, supra, and, as to production of documents Ord. 31, r. 12, providing that a party may apply for an

Nos. 1, 2. Lyell v. Kennedy; Bidder v. Bridges. — Notes.

order directing another party to the cause to discover documents "relating to any matter in question therein," and r. 14 empowering the Court to order production of such documents at any time during the pendency of the cause.

But it is essential that the discovery sought for be relevant to the facts in issue. Kennedy v. Dodson (Jan. 17, 1895) 1895, 1 Ch. 334, 64 L. J. Ch. 257, 72 L. T. 172, 43 W. R. 259; also In re Leigh, Rowcliffe v. Leigh (1877), 6 Ch.D. 256, 37 L. T. 557, 25 W. R. 783; Sheward v. Lonsdale (1879), 5 C. P. D. 47, 28 W. R. 324, affirmed 42 L. T. 172; Blockow v. Young (1880), 42 L. T. 690; Mansfield v. Childer house (1876), 4 Ch.D. 82, 46 L. J. Ch. 30, 35 L. T. 590, 25 W. R. 68 ; Smith v. Berg (1877), 36 L. T. 471, 25 W. R. 606; Meek v. Witherington (1893), 67 L. T. 122.

In a libel action the plaintiff, in order to prove that the defendant was the writer of the letter complained of, may interrogate him as to whether or not he was the writer of another letter addressed to a third person, the question being relevant, inasmuch as it leads up to a matter in issue in the cause. Jones v. Richards (1885), 15 Q. B. D. 439. In a similar action against the proprietor of a newspaper where the defendant admitted the publication of the words, the plaintiff was held not entitled to interrogate as to the name of their writer, unless the identity of such writer was a fact material to some issue in the case. Gibson v Evans (1889), 23 Q. B. D. 384, 58 L. J. Q. B. 612, 61 L. T. 388. In an action for libels contained in a newspaper and pamphlet to the effect that the plaintiff was the author of certain discreditable letters, the only defence being that a sum of 40/ paid into Court by the defendant was enough to satisfy the plaintiff's claim, it was held that interrogatories as to the names of the persons from whom the letters were obtained, what was paid for them, and what steps taken to test the information supplied to the defendants, were not sufficiently relevant or material, but that others as to the extent of the circulation of the newspaper and pamphlet were relevant. Parnell v. Walter (January 11, 1890), 24 Q. B. D. 441, 59 L. J. Q. B. 125, 62 L. T. 75, 38 W. R. 270.

In an action by bailors against bailees, interrogatories by the defendant with a view to showing jus tertii were held irrelevant. Rogers v. Lambert (February 10, 1890), 24 Q. B. D. 573, 59 L. J. Q. B. 259, 62 L. T. 694, 38 W. R. 542.

Interrogatories by the plaintiff in a suit to revoke probate, as to alleged gifts by a testator to the defendant, with a view to making out a case of undue influence, were allowed. In re Holloway, Young v. Holloway (1887), 12 P. D. 167, 56 L. J. P. 81, 57 L. T. 515, 35 W. R. 751. In an action against an executor to recover from the testator's estate moneys paid to the testator, in alleged improper exercise of a power,