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discovery, Lord Kenyon, who, it will be recollected, was educated in the Common Law Courts, advising him to sit upon his box of deeds until he received his money. Carried out to its fullest extent, this principle produces in France and other Continental States those exhibitions, so distasteful to English sentiments of justice, of cross-examination of an accused person, which it is to be hoped will never be witnessed in this country.
Civil actions, however, differ from criminal proceedings in this—that they generally involve an affirmative issue, and are not satisfied by answering negatively the question whether or not the Defendant is guilty of a wrong, but are required also to demonstrate whether the Plaintiff is or not entitled to assert against him a right. In the pursuit of such enquiries, it was often manifestly so detrimental to the rights of the Plaintiff to have to proceed without having the testimony of the only person who was cognizant of the facts on which his rights depended, that the Court of Chancery, early in our history, assumed the jurisdiction of compelling its disclosure ; and the Courts of Law recognised the benefit of this practice, and adopted it to some extent, though the Judges were very chary of exercising it in their Courts. Lord Mansfield, indeed, was so strongly inclined to do so, that he said in one case that wherever a Court of Equity would compel discovery, he would; and Mr. Justice Buller once stopped proceedings in an action until the Plaintiff complied with the Defendant's application, that he should afford him certain information known only to himself. But it was soon discovered that Lord Mansfield was promising more than he could perform, and the remedy devised by Mr. Justice Buller was found to be incapable of being practically applied as a general rule, available in all cases. The application for discovery from the opposite party remained one for the exercise of the discretion of the Court, which was used with reluctance, only in very clear cases, and on proof of the existence of the evidence sought for in the possession of the other side, and explanation of the absence of it from the evidence in the possession of the applicant.
Endeavours have been made at various times to clothe the Common Law Courts with a jurisdiction to enforce discovery. The first attempt of the Legislature to counteract the strictness of these Courts in the pursuit of truth, was the 3 & 4 Wm. IV., c. 42, S. 26, by which witnesses who were in the same position as the parties to an action, and for whom the Verdict would be available as evidence, were allowed to give evidence with the proviso that the Verdict should not be admissible for or against them, or any person claiming under them; a proviso afterwards removed by the 6 & 7 Vic. c. 85; which Statute, however, provided that the parties to the Suit, and the husbands and wives of parties, should still be inadmissible as witnesses. This exception was repealed as to the parties to Suits by the 14 & 15 Vic. c. 99, s. 1, in all except criminal cases (s. 3); but it was still decided shortly after the passing of this Act, that the husbands and wives of parties continued incapacitated from giving Evidence, unless they also were parties on the records (Burbat v. Allen, 7 Exch. 609, 21 L.J. Exch. 155; Stapleton v. Croft, 18 Q.B. 367, 21 L.J. Q.B. 247). The 16 & 17 Vic. c. 83, s. I, finally removed this disability except in criminal proceedings, and in proceedings instituted in consequence of adultery (s. 2), and except as to communications made during marriage (s. 3); and the 32 & 33 Vic. c. 68, s. 1, removes the exception of proceedings in consequence of adultery. So that, at length, the power of obtaining discovery from the parties aud their husbands and wives at the trial of a cause, was established by Statute to the fullest extent, and has worked, on the whole, with satisfactory results.
In the meantime, with the object of rendering discovery available before trial, the Common Law Procedure Act, 1851, had provided that parties should be compellable to allow the opposite party to inspect and take copies of all documents in their possession relating to an action in all cases in which discovery might have been obtained in Equity (14 & 15 Vic. c. 99, s. 6). In carrying out this provision, the Courts held that it did not entitle them to compel discovery, but only inspection (Hunt v. Hewitt, 21 L.J. Exch. 210), thus rendering the Act of no avail, except in those comparatively few cases where a party is able to prove that his opponent is in possession of documents likely to aid him ; and when he can do that, he seldom wants more than the right of calling for them at the trial, which he always had. To all the numerous cases in which parties are in the dark, and, therefore, unable to enforce or defend their rights, this Act became inapplicable.
By the Common Law Procedure Act, 1854 (17 and 18 Vic., c. 125, s. 50), it was provided that upon affidavit of either party of his belief that any document, to the production of which he is entitled, is in the possession of the opposite party, such party may be ordered to state on affidavit what documents he has, and whether he has any and what grounds for refusing to produce them. By s. 51 of the same Statute the power of ordering interrogatories was also given upon any matter as to which discovery may be sought, but it was provided that the order was not to be made without affidavit that the applicant was likely to derive material benefit from the desired discovery, so that all the discovery provided by this Statute was confined to cases in which the applicant was in a condition to prove that the opposite party was in possession of the information sought for, and did not entitle him to discover the existence of information or evidence previously unknown to him. On the other hand it was held that the right to deliver interrogatories under this Statute was not limited to cases in which discovery could be obtained in Equity (Martin v. Hemming 24 L.J., E. 3 ; Osborne v. London Dock Co., Ib. 140). “The practice created by this Act,” said Alderson B., in Osborne v. London Dock Co., “is an improvement upon that of Equity relating to discovery.”
It is, however, difficult to perceive in what this improvement consisted, for in all the cases which have been reported upon this Statute, the Court seems to have acted upon the objections which have been entertained by Courts of Equity, and to have besides required evidence by the applicant of the materiality of the document in question as a condition to the exercise of the jurisdiction. This proof involves antecedent knowledge of the existence of such document, and therefore precludes its discovery through the machinery of the Court by a Plaintiff who is in ignorance of it. In such cases discovery was available only in Equity, as before the Act passed. In Equity the Plaintiff was not required to produce any evidence as a condition precedent to his right to discovery. He had but to state his own view of his case in his bill, which was not on oath, and unless the Defendant could shew on demurrer to the bill, or state on oath in his answer, reasons for disentitling the Plaintiff to the required discovery, he was compelled to give it. The only reasons which the Court of Chancery allowed to be sufficient to absolve the Defendant from such discovery were where there is anything in the situation of the Defendant which renders it improper for a Court of Equity to compel discovery, either because the discovery may subject the Defendant to pains or penalties, or because it may subject him to some forfeiture or something in the nature of a forfeiture. A Defendant may also demur to any part of the discovery sought by a bill which is immaterial to the relief prayed; he may likewise protect himself by demurrer from a disclosure of matters which are the subject of professional confidence, or which may lead to a disclosure of his own title in cases where there is not sufficient privity between him and the Plaintiff to warrant the latter in requiring a disclosure of it (see Daniel's Ch. Pr. 517). The Defendant might also make the same objections to discovery in his answer (Ib. 682).
In arriving at this result the Court of Chancery had been led to investigate the principles on which discovery should
be compelled, in numerous cases in which the natural tendency of mankind to avoid giving assistance to an adversary had exhausted all the arts of ingenuity in raising objections and difficulties to defeat the efforts of Plaintiffs to obtain discovery; and it may safely be said that in no branch of practice has more ingenuity been disclosed than in those cases in which Defendants have attempted to support demurrers and exceptions to answers objecting to discovery. These repeated contests also shewed that in point of practice the right of a Plaintiff to discovery was really dependent on a right to be raised by the Defendant ;that is to say that the Plaintiff was primâ facie entitled to it in all cases, and accordingly in the Chancery Improvement Act (15 and 16 Vic., c. 86, s. 18), the necessity for a bill by a Plaintiff stating a case for discovery was abolished, and in every case a Plaintiff was enabled to call upon a Defendant to state on affidavit what documents he had in his possession relating to the matters in question between the parties, and what, if any, objections he had to producing them for the inspection of the Plaintiff, and the Defendant had the same right as against the Plaintiff.
This Statute (the Chancery Improvement Act) was passed two years before the Common Law Procedure Act, 1851, above referred to, and it was evidently the intention of the Legislature to introduce into the Common Law Courts by the latter Statute the same facilities for obtaining discovery which a long course of study and discussion in sharply contested cases had established for the benefit of the Suitors in the Court of Chancery. The observation of Alderson B., in the case of Osborne v. London Dock Co. (ub. sup.), that the practice created by this Act was an improvement upon that of Equity, shews that it was thus understood at first by the Common Law Judges; but an examination of the decisions which have taken place under it seems to shew that it has not had the results anticipated. In the case in which Mr. Baron Alderson made this observation, which seems to