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more than twenty years before action, the executor need not make inquiry of the solicitor or banker to his testator respecting the dealings of the testator with the moneys, if the inquiry will not obviously result in obtaining information with respect to which the executor is interrogated. Alliott v. Smith (1895), 1895, 2 Ch. 111, 64 L.J. Ch. 684, 72 L. T. 789, 43 W. R. 597.

Questions which go merely to the credit of a witness and might be put in cross-examination are irrelevant. Kennedy v. Dodson (January 17, 1895), 1895, 1 Ch. 334, 64 L. J. Ch. 257, 72 L. T. 172, 43 W. R. 259 ; Allhausen v. Labouchere (1877), 3 Q. B. D. 654, 47 L. J. Q. B. 819, 39 L. T. 207, 27 W. R. 12.

Interrogatories as to the amount of damages are relevant, though they may not be allowed until the question in the action has been tried. Fennessey v. Clark (1887), 37 Ch.D. 184, 57 L. J. Ch. 398, 58 L. T. 289; Marriott v. Chamberlain (1886), 17 Q. B. D. 154, 55 L. J. Q. B. 448, 54 L. T. 714, 34 W. R. 783. From Clarke v. Bennett (1884), 32 W. R. 550, however, it would seem that they are only admissible where the defendant does not directly traverse the plaintiff's claim, but has either paid money into Court or can show that the damages claimed are primâ facie extortionate.

A party has a right to exhibit interrogatories for the purpose of obtaining from the opposite party an admission which will make it unnecessary for him to enter into evidence of the facts admitted. Attorney General v. Gaskill (1882), 20 Ch. D. 519, 51 L. J. Ch. 870, 40 L. T. 180, 30 W. R. 558.

Ord. 31, r. 1 provides that interrogatories which do not relate to the matters in question in the cause are to be deemed irrelevant notwithstanding that they might be admissible in cross-examination. It has been held that an interrogatory asking in substance whether the defendant bad not been in such a position that he must know whether the allegations in the statement of claim were true or false, does not relate to any matter in question in the cause within the meaning of this rule. In re Morgan, Owen v. Morgan (1888), 39 Ch.D. 316, 60 L. T. 71, 37 W. R. 243.

Interrogatories should not be scandalous. They are not scandalous, though they tend to criminate the party interrogated, if they are material to the case of the party interrogating. Fisher v. Owen (1878), 8 Ch. D. 645, 47 L. J. Ch. 681, 38 L. T. 577, 26 W. R. 581.

In actions for the recovery of land there never was any doubt that a party claiming by an equitable title was entitled to the same discovery as in other actions. An erroneous opinion had, however, gained ground that a party relying upon a legal title was not entitled to such discovery. The argument of (one regrets to say) the late Mr. MacClymont in Lyell

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

v. Kennedy (the principal case No. 1) of which the judgment of the learned lords are mainly an echo, will long be remembered as one which for acuteness and research may be matched with the classic speeches of Sugden. It not only cut the ground from under the judgments of the MASTER OF THE Rolls and the other Judges of the Court of Appeal, but it effectually destroyed the belief or prejudice as to the sacred rights of a defendant in possession of land which was at that time generally shared by members of the legal profession. It is to be noted, however, that the Court will still exercise special care that such a defendant be not harassed by vague and fishing applications for discovery. See Philipps v. Philipps (1878), 4 Q. B. D. 127, 48 L. J. Q. B. 135, 39 L. T. 556, 27 W. R. 436.

If the Court is satisfied that the right to discovery depends upon the deterinination of some question in dispute in the cause, it may order that such question be determined first. Ord. 31, r. 20. Thus in an action claiming an account of profits made by the defendants as agents of the plaintiffs, where the defendants denied the agency, the Court declined to order production of the invoices of goods sold by third parties to the defendants and resold by them to the plaintiffs until after the trial of the question of agency.

Verminck v. Edwards (1880), 29 W. R. 189. See also Fennessey v. Clark, supra; Parker v. Wells (1881), 18 Ch.D. 477, 45 L. T. 517, 30 W. R. 392.

But in an action for misapplying the interest of trust moneys, it was held that the defendant must answer as to the amount of interest that he had received, as it would enable the Court to make an immediate decree for payment if the plaintiff established the trust. In re Morgan, Owen v. Morgan (1888), 39 Ch.D. 311, 60 L. T. 71, 37 W. R. 243. And in a suit for infringement of a patent, discovery of the defendant's processes ought not to be postponed under the above rule until the validity of the patent has been established. Benno Jaffé Lanolin Fabrik v. Richardson (1893), 62 L. J. Ch. 710, 68 L. T. 404, 41 W. R. 534.

By rule 6 of Order 31 any objection to answering interrogatories on the ground that they are scandalous or irrelevant or not bonâ fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

By rule 7 any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous. It has been held that this rule deals with two cases, viz. (1) where the interrogatories are in themselves unobjectionable, but by reason of the circumstances of the case it would be unreasonable or vexatious to call upon the party to answer; (2) where the interrogatories are in themselves


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

objectionable by reason of being prolix, oppressive, unnecessary, or scandalous. In the first case all or any of the interrogatories may be set aside by a judge's order; in the second all or any may be struck out. Oppenheim v. Sheffield (1892), 1893, 1 Q. B. 5, 62 L. J. Q. B. 167, 67 L. T. 606, 41 W. R. 65. When a party objects to answer on any of the grounds mentioned in the rule, he may apply for an order and cannot be required to take his objection in his affidavit in answer. lb. The fact that leave has been obtained to administer interrogatories is not a bar to an application under either part of the rule. Ib. If the judge considers a set of interrogatories to be as a whole prolix, oppressive, or unnecessary, he has power to strike them all out, though some of them may be unobjectionable.

By rule 13 of the Order, an affidavit to be made by a party against whom an order for production of documents (under r. 12) has been made, shall specify which, if any, of the documents therein mentioned he objects to produce.


The remedy of Discovery by Bill is nearly obsolete in this country. The matter of Discovery and Production of Documents is regulated by statute in the great majority of the United States. A reference to these may be found in 2 Am. & Eng. Cyc. of Law, pp. 207, 208. Under the Codes, Discovery is effected by order of Court instead of bill.

Both principal cases are cited in 1 Pomeroy's Equity Jurisprudence, pp. 248, 252. This excellent author thus states the rule in question : “ The fundamental rule on this subject is, that the plaintiff's right to a discovery does not extend to all facts which may be material to the issue, but is confined to facts which are material to his own title or cause of action; it does not enable him to pry into the defendant's case, or find out the evidence by which that case will be supported. The plaintiff is entitled to a disclosure of the defendant's title, and to know what his defence is, but not to a statement of the evidence on which the defendant relies to support it.” Citing Hoppock's Er'rs. v. United, &c. R. Co., 27 New Jersey Equity, 286; French v. Rainey, 2 Tennessee Chancery, 641; Richardson v. Mattison, 5 Bissell (U. S. Circ. Ct.), 31 ; Kearny v. Jeffries, 48 Mississippi, 343; Heath v. Erie R. Co., 9 Blatchford (U. S. Circ. Ct.), 316; Cullison v. Bossom, 1 Maryland Chancery, 95; Phillips v. Prevost, 4 Johnson Chancery (New York), 205; King v. Ray, 11 Paige (New York Chancery), 235; Brooks v. Byam, 1 Story (U. S. Circ. Ct.), 296– 301 (STORY, J.); Haskell v. Haskell, 3 Cushing (Mass.), 540; Bethell v. Casson, 1 Heming & Miller, 806. See Strong v. Strong, 1 Abbott Practice Rep. (N. S.) 233; Bellows v. Stone, 18 New Hampshire, 465. Story lays down the same rule (Equity Pleading, sect. 572).

Lyell v. Kennedy is cited in a very recent work, Merwin on Equity Pleading, sect. 854, citing also Peck v. Ashley, 12 Metcalf (Mass.), 478.

The rule that discovery as to the defendant's case will not be granted does

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


not prevail in Massachusetts, and a bill for discovery solely as to the defendant's title is there upheld, “ without impugning the English rule.” Adams v. Porter, 1 Cushing, 170; Haskell v. Haskell, 3 ibid. 540. The Court however claim that the Statutes warrant a broader construction than the English doctrine furnishes.

In New York it is held that the Court may compel a discovery of the defendant's documentary evidence. Seligman v. Real Estate Trust Co., 20 Abbott's New Cases, 210. This is founded on Powers v. Elmendorf, 4 Howard Practice Rep. 60, where it was deemed that the omission from the Code of Procedure of the former statutory provision restricting discovery to cases within the principles and practice of the Court of Chancery indicated an intention to extend the power to the discovery of the defendant's evidence; and the Court observed : “ The power thus conferred upon the Court is, in my judg. ment, better adapted to attain the ends of justice than the more restricted power it before possessed. I can see no good reason why a party should be perunitted to withhold from the knowledge of his adversary documentary evidence affecting the merits of the controversy, only to surprise him by its production at the trial. Unless for soine satisfactory reason to be made apparent to the Court, each party ought to be required, when it is desired, to disclose to the other any books, papers, and documents within his power which may contain evidence pertinent to the issue to be tried. If the evidence thus disclosed should be conclusive upon the issue, the parties may be saved the expense of a trial, – and if not, they will come to the trial upon equal terms, each prepared, so far as the evidence within his reach will enable him to do so, to maintain his side of the controversy. This I believe to have been the intention of the Legislature, and this I regard as the true construction of their enactment on this subject.”

The general rules of Discovery are well stated in Price v. Tyson, 3 Bland Chancery (Maryland), 392; 22 Am. Dec. 279; Skinner v. Judson, 8 Connecticut, 528; 21 Am. Dec. 691.

The effect of the Statutes permitting parties to be witnesses upon the right to Discovery is discussed in note, 55 Am. Dec. 79, Tennessee, Alabama, West Virginia, and Mississippi holding that the right still exists, and Missouri, Iowa, Pennsylvania, South Carolina, and Michigan the contrary. See Merwin on Equity Pleading, sect. 857.

The remedy was applied recently in respect to lost written instruments. Lancy v. Randlett, 80 Maine, 169; 6 Am. St. Rep. 169; and to production of documents, in Arnold v. Pawluxet V. W. Co., 18 Rhode Island, 189; 19 Law. yers' Rep. Annotated, 602; Post v. Toledo, 8c. R. Co., 144 Massachusetts, 341 ; 59 Am. Rep. 86.


No. 3.

Re Emma Jane Hinchliffe (a lunatic), 64 L. J. Ch. 76. — Rule.




Any person entitled to inspect and take copies of an affidavit has a similar right as to the exhibits referred to in it.

Re Emma Jane Hinchliffe (a lunatic).
64 L. J. Ch. 76-79 (s. c. 1895, 1 Ch. 117; 71 L. T. 532; 43 W. R. 82).

Discovery. Affidavit. - Exhibit. The committee of a lunatic obtained an order giving her liberty to [76] make the lunatic a co-plaintiff with herself in an action. The order was based on an affidavit by the committee, which exhibited a case for the opinion of counsel and his opinion thereon. The affidavit was filed, but the exhibits were retained by the committee. The lunatic died before the action was decided, and her executor desired to have all documents affectivg her handed over to him, and also to have inspec ion of the exhibits : Held, that any person entitled to see an affidavit was entitled to see exhibits referred to therein ; that the rights of the lunatic had been affected by the affidavit, and the committee must produce the exhibits for inspection; but that the committee was entitled to retain documents in the nature of vouchers until she was discharged.


Emma Jane Hinchliffe was a person of unsound mind, and her sister, Mrs. Fereday, was her committee. Mrs. Hinchliffe was entitled under the will of her father, James Roberts, to one-fifth of certain property, and Mrs. Fereday and another sister were entitled to other two-fifths. Mrs. Fereday desired to commence proceeding for the administration of the trusts of the will, and on the 21st of January, 1891, she, as committee, obtained leave to make Mrs. Hinchliffe a co-plaintiff. This application was supported by an affidavit made by Mrs. Fereday which exhibited a case laid before counsel and his opinion thereon, and referred to them as annexed thereto. The affidavits were filed in due course, but the exhibits, according to what was stated to be the present practice, were retained by the committee. The writ in the action Fereday v. Jesson was issued on the 26th of January, 1891. Mrs. Hinchliffe was made one of the original plaintiffs, the other two being her sisters, and the trustee of the will was defendant.

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