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be an advanced illustration of the exercise of compulsory discovery in a Common Law Court, the Defendant was allowed to deliver interrogatories, 159 in number, the object of which was to show out of the Plaintiff's own mouth that the Plaintiff, who was suing Defendants for wine lost in their docks, had used fraudulent practices with regard to the wines, and that wines of other persons had been fraudulently substituted for those delivered to the Defendants, and that the Plaintiff was privy to the fraud. In Goodman v. Holroyd (15 C.B. 839) interrogatories were allowed for the purpose of showing that the deed relied on by Defendant was executed by fraud; a primâ facie case shewing that fact having been established on affidavit by the Plaintiff. Thus also interrogatories have been allowed as to the representations made by Defendant on the sale of a business in an action for damages, on the ground that the Plaintiff had been deceived (Blight v. Goodliffe, 18 C.B. 757); and in The Derby Commercial Bank v. Lumsden (39 L.J. C.P. 72), interrogatories were allowed, as to the circumstances under which Plantiff's title to goods sued for accrued, in support of a defence of fraud ; but it was shewn to the satisfaction of the Court “that a fraud must have been committed by some one on the Defendants' side," and the interrogatories were allowed in order to help them “to establish that defence.” In Finney v. Forward (35 L.J. E. 42) no such case being made in support of similar interrogatories they were not allowed.
In all these cases of fraud Equity would undoubtedly grant discovery from the Defendant in aid of a Plaintiff seeking to establish his case without any evidence by him.
On the other hand, a well-known principle on which Courts of Equity have invariably refused such aid, is that the Defendant cannot be made to discover his case, and his assertion that the desired discovery related exclusively to that, has been allowed to be a bar to the relief sought. The rule is stated by Lord Redesdale and Mr. Wigram in the following terms :-“It is a rule of the Court of Chancery
that where the title of the Defendant is not in privity, but inconsistent with the title made by the Plaintiff, the Defendant is not bound to discover the title under which he claims” (Ld. Red. 191); but the right of the Plaintiff to the Defendant's oath is limited to a discovery of such material facts as relate to the Plaintiff's case, and does not extend to a discovery of the manner in which, or of the evidence by means of which, the Defendant's case is to be established, or to any discovery of the Defendent's evidence (see Wigram on Discovery, 90).
The Courts of Common Law have, however, gone very far in granting such discovery in actions of ejectment. Thus, in Hilcroft v. Fletcher (25 L.J. Ex. 94), it was held that interrogatories might be delivered by a Defendant extending to discovery of the Plaintiff's pedigree, and to the manner in which he intended to support it. The interrogatories in this case could scarcely have been answered without disclosing the Evidence on which the Plaintiff intended to rely in support of his case, and, if so, they would clearly go beyond the limit of the rule acted on in Equity; and it is not, therefore, surprising that this case has not been carried further in subsequent cases (See Stoate v. Rew, 32 L.J. C.P. 160; Pearson v. Turner, 33 L.J. C.P. 224, in which such interrogatories were disallowed, on the ground of the insufficiency of the affidavit on which the applications were founded, which was the usual statutory affidavit). In the case of Waller v. Forrest (41 L.J. Q.B. 96), similar interrogatories were disallowed on special affidavits proving the Defendant's case; and it was expressly stated that Hilcroft v. Fletcher (ubi supra), “had been considerably doubted.” The proposed interrogatories were disallowed, on the ground that they proposed “to inquire into the primâ facie title of the Plaintiff for the purpose of enabling the Defendant to find a flaw;" and it was said that “where a man having been in possession, a stranger comes to dispossess him, the Defendant may call for some general information as to the nature of the title
which is to be made against him.” And, accordingly, in the case of Towser v. Cocks (43 L.J. E. 41), interrogatories confined to discovery of the nature of the Plaintiff's title, and the character of it, and not including the means by which he proposed to establish it, were allowed on the usual affidavit.
In other cases than those relating to title in èjectment, the disposition of the Courts of Common Law to compel one party to aid the other in support of his own case, where the existence in his possession of materials applicable to such a purpose can be primâ facie shown, is exemplified by the case of Thot v. Leaske (24 L.J. 142), in which a Plaintiff who was suing defendant for money paid to him as Plaintiff's broker, and, to support his action, had to make out that the Defendant had no authority to act as broker, was allowed to deliver interrogatories for the purpose of discovering whether the Defendant entered into a contract as agent or principal, and if as agent for whom and by what authority, and what books he had containing entries relating to the transaction in question. In more recent cases these decisions have been fully upheld, and interrogatories have been allowed for discovery of particulars of Defendant's infringement of a Plaintiff's patent (Tilley v. Easton, 25 L.J. C.P. 293 ; Jones v. Platt, 31 L.J. 365); of damages sustained (Zarifi v. Thornton, 26 L.J.E. 214; Wright v. Goodlake, 34 L.J.E., 82); and of a libel written by Defendant (Hill v. Campbell, 44 L.J.C.P. 97); and generally that any questions which may be asked of the Defendant in the witness-box may be the subject of previous interrogatories (Zychlinski v. Maltby, 10 C.B. 838).
The Courts have, however, carefully avoided in such cases going beyond the rule acted on in Courts of Equity that matters relating exclusively to the Defendant's case cannot be inquired into by the Plaintiff; they must be common to both cases at least (see Zarifi v. Thornton, ub. sup., Moor v. Roberts, 26 L.J. C.P. 246). The fact that the answers to interrogatories considered in other respects allowable would disclose the Defendant's case has been held in some cases 198
DISCOVERY UNDER THE
DISCOVERY UNDER THE JUDICATURE ACTS.
to be no reason for not allowing such interrogatories (see Whately v. Crawford, 25 L.J. Q.B., 163; Carew v. Davies, ib., 165; Bayley v. Griffiths, 31 L.J.E., 477); but in these cases, and in cases relating to the right of resisting the discovery of incriminating matters, the interrogatories have been allowed without prejudice to the respondent's right to object in his answers to the required discovery, and therefore only amount to an assertion of the right of the interrogating party to the respondent's oath on the subject and not to his right to such discovery.
In reference to discovery of incriminating matters the Common Law Courts have certainly far exceeded the limits within which a Court of Equity would hold itself confined. There can be no question that a bill in Equity would have been demurrable if the facts required to be disclosed under it might subject the party disclosing them to penal consequences (see Story on Eq. Jurisp., s. 1494); this principle was acted on and approved by Sir John Leach in Thorpe v. Macaulay (5 Mad. 229), Lord Eldon in Cartwright v. Green (8 Ves. 465), and Lord Langdale, in Glyn v. Houston (1 Keen 329). The Courts of Law have also recognised the rule that a respondent cannot be compelled to criminate himself by answer or document, but in many cases they have allowed the interrogatories leading to such a result and required the respondent to take the objection on oath in his answers to them. In Whiately v. Crawford (25 L.J. Q.B.,165), Tupling v. Ward (30 L.J.E., 222), Stern v. Sevastopolo (32 L.J. C.P., 260), and Pye v. Butterfield (34 L.J., Q.B., 17) the Court refused to allow the interrogatories to be put on this ground, Martin B. saying “we think that in cases of this kind it would be unfair to submit questions which a party is clearly not bound to answer;” but in Osborne v. London Dock Co. (24 L.J.E., 140); Boyle v. Wiseman (Ib. 160); Collins v. Yates (27 L.J. Ex. 150); Bartlett v. Lewis (31 L.J. C.P. 230); Atkinson v. Fosbrooke (35 L.T. Q.B. 182); McFadyen v. Mayor of Liverpool (37 L.J.E., 193), such interrogatories were allowed. “The Respondent ought to be put on his oath,” says Parke, B., in the first of these cases, “and when he finds any question pinch him he must object to it.” And Earle, C.J., in the fourth case, says, “it is clear that every one of the questions might be put to the party in the witness-box, and if he then chooses to swear that his answers will render him liable to be criminally proceeded against, he may protect himself from the dilemma by declining to answer.” And Willes, J., in the same case, says that “even admitting the interrogatories are put for the purpose of extracting answers which may criminate the party, or of prejudicing him in the eyes of the jury if he declines to answer them, they ought to be allowed."
There are three recent cases in the Common Pleas which illustrate very forcibly the way in which this rule, which could not arise in Equity, operated at law. In Edmunds v. Greenwood (38 L.J.C.P.45); Villesboisnet v. Tobin (ib. 146), the Court of Appeal was called on to decide whether they should reverse an order refusing to allow such interrogatories, and in Ininan v. Jenkins (39 L.J. C.P. 258), the order in question before the same Court allowed the interrogatories. In each of these cases the Court of Appeal declined to interfere with the discretion of the Judge who had made the order appealed from, on the ground that it was a matter for the discretion of the Judge. Montague Smith, J., in the second of these cases, says that “ when interrogatories are bonâ fide put for the purpose of discovery, and are relevant to the matter in issue, they may be allowed though the answers to them may tend to criminate the party answering, but that such interrogatories should not be allowed on the ordinary affidavit, but special circumstances must be proved constituting a strongercase than is requisite in ordinary cases.” Keating, J., in the same case, gives a clue to the sort of case which would be thought special, saying that “ if there is anything giving colour to the supposition that the interrogatories are put for the purpose of a criminal prosecution,