No. 3.

Re Emma Jane Hinchliffe (a lunatic), 64 L. J. Ch. 76, 77.

The lunatic died in 1893, leaving a will by which she appointed Mr. Edward Roberts Smith her executor, and he was added as a defendant to the action by an order of the 15th of February, 1894. It was stated in the evidence that he was a brother of the defendant and disapproved of the action.

On the 6th of April, 1894, an order was made by the Master, on the application of the executor, for the delivery of the lunatic's papers, and that, on the committee undertaking to give them up, a sum of £250 stock, part of the lunatic's estate, should remain in Court to answer any claim against her in respect of the costs of the action.

The lunatic's papers, including a copy of the affidavit, were accordingly delivered up to Mr. Smith, with the exception of certain transcripts of accounts, copies of various affidavits, office copies of accounts, and other documents which the committee claimed to keep as her vouchers for the payment she had made. She declined to hand over the exhibits used on the application to make the lunatic a co-plaintiff.

At the trial of the action on the 30th of November, 1892, certain allegations against the defendant were withdrawn, and all costs were reserved. The defendant threatened to ask for an order that the plaintiffs should pay the whole of the costs, or at least those caused by these allegations. Mr. Smith desired to have the lunatic's estate freed from all liability in respect of the action, and he also proposed to impeach the committee's account. He took out a summons on the 29th of June, 1894, asking that Mrs. Fereday might be ordered to give him inspection of the exhibits and to produce the other documents in dispute.

On the 25th of July Master Bulwer, and on the 9th of August

KAY, L. J., in chambers, refused to make the order. Mr. [* 77] Smith then obtained special leave to apply * to the Court by way of appeal for an order that the committee should, within seven days from the date of such order, produce on oath to him, or to his solicitors, the case for the opinion of counsel and the opinion thereon exhibited to her affidavit, and that he or his solicitors might be at liberty to take extracts from or copies of the said case and opinion, and that the committee might be ordered to deliver up on oath to him all papers and documents in any way relating to the estate of Emma Jane Hinchliffe, or to the dealings of the committee therewith, or to her management thereof as such

No. 3.

- Re Emma Jane Hinchliffe (a lunatic), 64 L. J. Ch. 77.

committee, and that she might be ordered to pay the cost of the application.

H. Terrell, for the executor. We are entitled to inspection of the exhibits. They form parts of affidavits filed on behalf of the lunatic as well as on behalf of the committee. At all events, the lunatic's rights have been affected by them. She has become liable for the costs of the action, and we want to get rid of that liability. We also ask for production of the other documents. The Court has jurisdiction to make such an order, and could do so even after the discharge of the committee. In re Ferrior, 37 L. J. Ch. 569; L. R., 3 Ch. 175, and In re Smyth (a lunatic), 15 Ch. D. 286.

Willis Bund, for the committee. The case and opinion of counsel relate solely to my title, and I am not bound to produce them. Webster v. Whewall, 49 L. J. Ch. 704; 15 Ch. D. 120. If this were a question arising in the action they might have a right to inspect them. But if they applied in the action for inspection, it would be held that these exhibits were privileged. The applicant is himself a defendant. He was made a defendant because he

refused to continue the action. Now he is trying to do in lunacy what he could not do in the action. If the lunatic herself had become sane after the commencement of the action she could only have seen these exhibits if she had been willing to continue the proceedings. She would not have been entitled to inspect them simply in order to defeat the action. The application to join her as a plaintiff was not made in the action; it was an ex parte application in lunacy. She could not have seen these documents if the Master had acted on them without any affidavit.

[THE LORD CHANCELLOR (Lord HERSCHELL). I am not sure of that; the order affects her rights materially. But you have chosen to bring these documents before the Court. You made an affidavit referring to them for the purposes of your own rights, but you used it to affect another person's rights. The Court has acted on them, and any person affected must have a right to see them as against the person who filed them.]

The Court was acting for her, and she cannot repudiate what it has done. Therefore she cannot see the grounds on which it acted. These are my own documents, not hers. Further, I contend that the lunacy has come to an end, and there is no jurisdiction in the Court to make an order in lunacy for the inspection of private documents.

No. 3. - Re Emma Jane Hinchliffe (a lunatic), 64 L. J. Ch. 77, 78.

[SMITH, L. J., referred to Rules of the Supreme Court, Order XXXI., rule 15.]

The other documents will be essential to my case if the executor seeks to impeach my accounts. At all events, I am entitled to keep them till I am finally discharged.

H. Terrel, in reply.

THE LORD CHANCELLOR (Lord HERSCHELL). This is an application in the lunacy of Emma Jane Hinchliffe, who is now dead, for an order that her executor should have inspection of a case and opinion referred to in terms, to which I will allude presently, and made exhibits to an affidavit of her committee filed on the 6th of January, 1891. The committee was a sister of the lunatic, and there was also a third sister, who, like the committee, was sane. The committee and the sane sister entertained the view that the trustees of certain property in which they were interested together with the lunatic had dealt improperly in relation to it,

and they contemplated taking proceedings against those [* 78] trustees. *They desired to join the lunatic as a plaintiff,

and they applied to the Court in the lunacy for an order to join her as a co-plaintiff with themselves. The joinder of the lunatic as a co-plaintiff in the action would obviously affect her rights, as it might subject her to liability for the costs of it. In order to obtain the consent of the Master to their application, the committee made an affidavit in which she said that she had taken the opinion of counsel, as she and her sisters were interested in the question of the liability of the trustees; and the affidavit states that the case and opinion "are annexed hereto, and marked with the" letters C and D respectively. On that affidavit the Master granted leave to join the lunatic as a plaintiff, and by so doing necessarily affected her rights. The lunatic is now dead, and this affidavit, being an affidavit in the lunacy, has been handed over by the committee to the executor of the lunatic. The executor, being in possession of the affidavit, sees that the Court was induced to make the order by the production of the documents annexed to the affidavit. He seeks production of those exhibits, and the committee resists that on the grounds that these documents were the property not of the lunatic, but of her committee, and Lord Justice KAY seems to have been of the same opinion. It is also suggested that the documents in question were privileged. I think that really the questions of property and privilege have nothing

to do with this application. The documents may be the property of the committee, prepared and taken for her own satisfaction. It may be that, being her property, production of them could not have been ordered in the action. But she chooses to bring them before the Court herself as part of her affidavit, in order to make the Court act in a manner which may prejudice the lunatic's rights. I cannot, in the absence of authority, see any right on the part of the committee by which the lunatic if she had become sane, or her executor if she were dead, could be refused inspection of these documents, which form as much part of the affidavit as if they had been actually annexed to and filed with it. For these reasons I think it is impossible to hold that the committee is entitled to refuse inspection of these documents.

The other part of the application is that the committee should be ordered to hand over certain documents said to be the property of the lunatic. These documents consist of drafts and copy accounts. The committee has not yet received her final and absolute discharge. The executor avowedly desires to inspect the accounts with a view to impeaching the conduct of the committee. It may be that, when she is absolutely discharged, if the committee insists on retaining property of the lunatic which she has obtained. as committee, the Court may have power to interfere as suggested by Lord Justice ROLT in In re Ferrior, but the time has not come for that, even if there is such a power in the Court. Therefore, I think no order ought to be made on the second part of the motion, and there ought to be no costs of the application.

LINDLEY, L. J. I agree. I think that the application for inspection of the case and the opinion of counsel said to be annexed to the affidavit does not turn upon questions of property or privilege. It is only a matter of convenience that exhibits are not lodged in the Master's office with the affidavit. In my opinion, any one who has a right to see an affidavit has also a right to see an exhibit referred to in the affidavit just as if it were annexed to the affidavit. That is all I need say on the first point. As to the second point, I do not think it is the general practice to make orders in lunacy to deliver up documents. The reason why parties produce them is that an action would lie against them if they did not. I do not say that the Court has no jurisdiction to make such orders, but that it is not usual. I agree that this part of the application is premature, and that there should be no costs.

SMITH, L. J. It appears to me that when a person makes an affidavit and says that he refers to a document marked with the letter A, it is just the same as if he had copied it into the [*79] affidavit, and that it is only made an exhibit to save expense. Therefore, any person entitled to see the affidavit is entitled to see the exhibit also. On the second point I have nothing to add.

ENGLISH NOTES.

In Tebbut v. Ambler (1839), 3 Jur. 435, 7 Dowl. P. C. 674, it was held that if a paper is used as an exhibit in connexion with an affidavit, but is not annexed thereto, the party against whom it is exhibited is entitled to have a copy in the same manner as if it were filed. But in the later case of Devonport v. Jones (1840), 8 Dowl. P. C. 497, 4 Jur. 720, the Court refused to compel a party who, in the course of an inquiry before the master, had made exhibits in connexion with an affidavit, to give copies of such exhibits to his opponent after the conclusion of the inquiry. Parties are not bound to take office copies of exhibits. Hawkyard or Hawks v. Stocks (1845), 2 D. & L. 936, 9 Jur. 451.

Documents referred to in an affidavit and exhibited ought, according to strict practice, to be handed in with the affidavits and remain in Court until the matter in respect of which the affidavits are sworn has been disposed of. Attenborough v. Clark (1857), 2 H. & N. 588.

It may here be observed that documents specifically mentioned in answers to interrogatories are "documents referred to in an affidavit in the cause, " within R. S. C. 1883, Ord. xxxi. r. 15, and must be produced for inspection without a further application for discovery or a further deposit of £5. Moore v. Peachey (1891) 1891, 2 Q. B. 707, 65 L. T. 750, 39 W. R. 592.

No. 4.- ELDER v. CARTER, EX PARTE SLIDE AND SPUR GOLD MINING COMPANY.

(c. a. 1890.)

RULE.

THE Court has no jurisdiction to order a person not a party to the proceedings to produce a document belonging to him, unless the parties to the proceedings are entitled to the production of the document for the purpose of justice at the moment the order is made; e. g.,

for the purpose