litigant to obtain discovery from any person who is not a party to the proceedings. That is what is sought by this application. I have no doubt whatever that that is the true view to take of the rule; and I think, when the authorities, such as they are (and they are very few), are looked at, there is not one which is adverse to that view. MATHEWS, J.'s view, as expressed in the case of Central News Co. v. Eastern News Telegraph Co., W. N. (1884) p. 23, is clear that this rule does in reality no more than incorporate the preceding statutory enactment to which I have referred; and I think that is so, with this exception, that the language is made a little more general, so as to extend it to all proceedings in the High Court.

[* 200]

Now, WATKIN WILLIAMS, J., when the case of the Central News Co. v. Eastern News Telegraph Co., came before the Queen's Bench Division, said, (53 L. J. Q. B. 236), and I think very justly, that if rule 7 did confer this power over perfect strangers, it might be a question whether it was not ultra vires; and I concur in that view. If it is to be so construed as to give any litigant the right to see the books of anybody who is not a party to the litigation, I should say that it would be ultra vires. But I am satisfied that that is not the true construction or meaning of the rule.

There is no other case that I think worth mentioning with refer ence to this matter.

Then it is said that, upon the facts, this company, although not nominally a party to this proceeding, is really so interested in it that there would be no injustice done in this particular case. I think that is so. Without going into the merits, I think it is very likely that, in this particular case, there would not be any particular injustice done. I will assume that; but the principle involved in that line of argument is a dangerous one, and I, for one, cannot be the first to sanction such a proceeding as is contended for. It appears to me that sound principle is entirely against this order. Therefore, the appeal will be allowed, and the order will be discharged.

BOWEN, L. J. I am of the same opinion.

Rule 7 of Order XXXVII., is not intended to enlarge the rights of a litigant to discovery against third persons who have nothing to do with the action, nor to enlarge his rights to production of documents against them. The rule is one of "practice and pro

No. 4. Elder v. Carter, 25 Q. B. D. 200, 201.

cedure," and therefore is, and can only be, a rule which is intended to enlarge the facilities of obtaining production when production is necessary for the purpose of justice.

Now, in the present instance, the production of the document at the present moment cannot be necessary for the purpose of justice. Whoever heard that there was a right on the part of a litigant, at a time when there was no pending motion and no pending trial, to obtain inspection of a document which belongs to a third person, unless indeed in the possible case where *production of such a document was necessary to carry [* 201] out an order which had already been obtained?

The truth is, that no Judge has a right to think the production of such a document fit at this particular time, inasmuch as it is interfering with rights of third parties at a moment when there is no evidence being taken in the cause, and when the presence of the document is not necessary for the purpose of carrying out or completing any order which has been made.

The Common Law Procedure Act, 1854, s. 46, introduced at common law a very valuable means of obtaining production of documents on the hearing of motions and summonses. At common law, the ordinary subpoena was a subpana ad testificandum, and required the witness to be present in Court for the purpose of giving evidence to be used at the trial. The Common Law Procedure Act gave Judges the power of compelling the attendance of witnesses to be examined, and of directing that documents be produced upon the hearing of motions and summonses. Then came rule 7 of Order XXXVII., the object and scope of which (as has always been said with regard to the Judicature Act) is not to increase rights as against third persons, but to give further facilities for enforcing rights which already exist. That rule does, to a certain extent, go further than the Common Law Procedure Act, because it abstains from making it a condition precedent that an order should be made upon the hearing of a motion or a summons. It says that the order may be made " at any stage of the proceedings" whenever production could be compelled at the hearing or trial. I do not think we ought to try to define the cases exhaustively in which production may be proper. It is sufficient to say that I could conceive a case in which production of a document might be proper, though there was no motion or summons pending; for instance, if an order had already been made, and the

No. 4. -Elder v. Carter, 25 Q. B. D. 201, 202. — Notes.

non-production of the document by the third person was a defeating of the rights which had already been declared and a defeating of the order which had already been obtained. But I am as certain as one can be of anything with regard to practice, that it is not intended to enact that at any stage of a proceeding a Judge may make, subject to his discretion, an order on a third person for production of a document which belongs to the third per[*202] son, unless the production of it at that moment is a thing to which the parties are entitled for the purpose of justice; and you are not entitled, for the purpose of justice at any moment during suit, simply because you are a litigant, to see what is in the possession of a third person and to have production of it. Such a thing was never heard of. I do not believe it was ever dreamt of until rule 7 was submitted to the ingenuity of counsel. An attempt has been made to extract out of a rule which has simply got to do with "practice and procedure” in an action, a power of obtaining inspection from a third person outside the action. If such a power existed, it would be most inquisitorial, and might be used for purposes of infinite oppression. In this particular case, I dare say it would work no oppression at all; but we have to construe the rule.

ENGLISH NOTES.

Appeal allowed.

The practice as to the production of documents by persons not parties to the action is now regulated in England by R. S. C. 1883, Ord. xxxvii., r. 7, which empowers the Court or a judge in any cause or matter at any stage of the proceedings to order the attendance of any person for the purpose of producing any writings or other documents named in the order, which the Court or judge may think fit to be produced; provided that no person shall be compelled to produce any writing or document which he could not be compelled to produce at the hearing or trial.

As appears from the ruling case, this provision is not intended to give any new right of discovery against such persons, but merely to facilitate the obtaining of production from them at any stage of the proceedings.

Under this rule, a party may be compelled to produce all such documents as he might be compelled to produce at the hearing or trial. Central News Co. v. Eastern News Telegraph Co.(1884) 53 L. J. Q. B. 236, 50 L. T. 235, 32 W. R. 493. Where the plaintiff's solicitor in a probate action had also acted as solicitor to the testatrix whose will was in dispute, it was held that no order could be made against him under

No. 4. - Elder v. Carter. — Notes.

this rule to produce documents in his possession as solicitor to the testatrix. O'Shea v. Wood (1891) 1891, P. 286, 60 L. J. P. 82, 65 L. T. 30. But in an action against a married woman, the solicitor to the trustees of her settlement was held bound to produce it, she herself not being entitled to object to its production. Bursill v. Tanner (1885), 16 Q. B. D. 1, 55 L. J. Q. B. 53, 53 L. T. 445, 34 W. R. 35. And a conditional order to make discovery of a lease may be made against a tenant of lands ordered to be sold in an action. Webb v. Webb (1891),

27 L. R. Ir. 42.

An order may be made under the above rule of court on an ex parte application, In re Smith, Williams v. Frere (1890) 1891, 1 Ch. 323, 60 L. J. Ch. 328, 64 L. T. 253; and the order when made is equivalent to a subpoena duces tecum. Ib.

The power conferred by the rule will be exercised with great caution, and an order will not be made before trial merely on the ground that the documents contain matter material to the case and that a saving of expense would thereby be effected. Central News Co. v. Eastern News Telegraph Co., supra.

Under this rule the Court has no power to order the inspection of documents as distinct from their production. Straker v. Reynolds (1889), 22 Q. B. D. 262, 58 L. J. Q. B. 180, 60 L. T. 107, 37 W. R. 379, dissenting from Rishdon v. White (1888), 5 Times L. Rep. 59.

A petition for payment out of Court of the purchase-money of certain land was referred to a referee who reported that the petitioners had established their case. During the hearing a witness not a party was asked in cross-examination by respondent's counsel whether he had in his possession any letters relating to the land. He offered to produce a mass of correspondence. Counsel proposed to call for the letters seriatim; but the referee declined to allow this on the ground that it would occupy too much time. Counsel then contended that he was entitled to put in the correspondence en bloc, but was not allowed to do so. There was nothing to show that the letters were material to the point at issue beyond mere suspicion, and no application was made to the referee to adjourn the hearing. A respondent having moved to vary the report on the ground that the referee had improperly rejected the correspondence, the motion was refused. In re Maplin Sands (1894), 71 L. T. 594.

AMERICAN NOTES.

The New York Code of Procedure restricts the right to compel inspection to the case of books or documents in the possession of the opposite party. Adriance v. Sanders, 11 Abbott New Cases, 422. So books of a corporation in possession of the directors may not be subjected to inspection in a suit against the corporation. Boorman v. Atlantic, &c. R. Co., 78 New York, 599.

In Massachusetts it is held that in such case the officer may be joined as defendant and compelled to make discovery. Post v. Toledo, &c. R. Co., 144 Massachusetts, 341; 59 Am. Rep. 86. Pomeroy (1 Equity Jurisprudence, sect. 206), says that documents belonging wholly or in part to a third per son, not a party to the suit, or in his possession and the defendant's jointly, may not be compulsorily produced; citing English cases.

Before the Codes, a third person could not be compelled by order to produce his private papers. A subpœna duces tecum was the proper remedy. Davenbagh v. McKinnie, 5 Cowen (New York), 27; Morley v. Green, 11 Paige (New York Chancery), 240; 42 Am. Dec. 112, citing Ex parte Llewellyn, 8

Jur. 816.

A bill of discovery does not lie against one not interested, and who may be made a witness. Price v. Tyson, 3 Bland Chancery (Maryland), 392; 21 Am. Dec. 691.

DOCUMENTS held by a person in a public capacity as a servant of the State, are privileged from being produced or disclosed in an action, if it appears that the Minister, or Secretary of State, for the Department concerned has on grounds of the public service forbidden the production of the documents.

[509]

Hennessy v. Wright.

21 Q. B. D. 509-523 (s. c. 57 L. J. Q. B. 530; 59 L. T. 323).

Production of Documents. - Privilege. - Affairs of State. An action for libel was brought by the governor of a colony, the alleged libel consisting in a statement made by the defendant in a newspaper that the plaintiff, as governor, had sent to the Secretary of State for the Colonies garbled accounts of certain proceedings in the colonial assembly. The defendant pleaded that the statement was true. On an application for discovery by the defendant the plaintiff in his affidavit specified certain documents to the production of which he objected, as follows: "I have in my custody, but acquired and held by me in my capacity of Her Majesty's Governor of M., and subject to the directions of Her Majesty's Secretary of State for the Colonies, a number of copies of various dispatches, reports, and other communications, with the enclosures referred to therein, which passed either between Her Majesty's Secretary of State for the Colonies and myself as such governor as aforesaid, or between the Royal Com