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and not merely bonâ fide in aid of the civil action, they ought not to be allowed.” In the first case, Bovill, C.J., says, “the cases in which such interrogatories have been allowed are in cases of malicious prosecution," citing Zychlinski v. Markby (10 C.B. 838), and Stewart v. Smith (2 Notes of Cases); and, in cases of fraud (Bartlett v. Lewis, 31 L.J. C.P. 230, and Osborn v. London Docks Company, 24 L.J. E. 140); that the cases of disallowance are cases of Libel and Slander, and that Stern v. Stevastopulo (ubi supra) is the only case in which they had been allowed in such an action; and, in the third case, which was an action of libel in which the publication was admitted, and the question was the truth of it, he held that an interrogatory as to whether Defendant published the libel should be allowed.

The case of Hill v. Campbell and wife (44 L.J. C.P. 97), , which was an action of libel by a servant against his late mistress on a letter giving his character, is an authority for saying that discovery of such a letter might be had on interrogatories under the 51st Section of the Common Law Procedure Act. The special circumstances in that case were described by Brett, J., as being " that the letter had been acted on prima facie, as if it contained matter defamatory of the Plaintiff, that it was in possession of Defendants, and that Plaintiff could not obtain evidence of its contents except from them, (as to which, see Bird v. Malgey I C.B. N.S. 308). And in the case of Greenfield v. Reay (44 L.J. Q.B. 81), the Court of Queen's Bench held that such an interrogatory was allowable in an action for libel contained in a printed handbill, as there was no printer's name to it, and the Defendant was seen in company of the man who distributed the bills, and fixing up one of them.

This case of Hill v. Campbell (ub. sup.) illustrates an important distinction which has arisen, under the Acts by which the Legislature has endeavoured to enlarge the powers of the Common Law Courts for enforcing discovery, between discovery and inspection. “ The 14 & 15 Vic. c. 99, S. 6,"

says Lord Coleridge in this case, “ gave the Courts power to order inspection in certain cases, limiting those cases by the practice of the Courts of Equity. Between the date of that Statute and the Common Law Procedure Act, 1854, there was wanting the power of discovery to aid that of inspection. The Common Law Procedure Act, 1854, s. 50, gave that power, and also gave an additional power to the Court, namely, upon the affidavit of the party, whether Plaintiff or Defendant, answering the order for discovery, to make such further order thereon as should be just.” The 51st Section gives the power of ordering interrogatories, and the judicial interpretation of the above Statutes has been influenced, as Lord Coleridge observes, by “an endeavour to limit the later Statute by the earlier one, and to contend that as the word "discovery” was used in the latter, its apparently larger powers must be confined to the lesser powers given by the earlier one; and, in spite of occasional expressions to the contrary, a series of cases has decided that under the Common Law Procedure Act of 1854, the power and discretion of the Courts in compelling discovery) are greater and wider than those entrusted to them under the 14 & 15 Vic. c. 99, s. 6, which authorises the Court to order inspection according to whether a Court of Equity would or would not grant discovery."

The view which the Courts of Law have taken of their powers of granting inspection of documents may be gathered from the following cases :-“ First, then, the Common Law Courts have a Common Law power to order inspection of certain documents, but they have no power at Common Law to order discovery. By 14 & 15 Vic. c. 99, s. 6, the power of ordering inspection was enlarged. It is not all documents which may be inspected, but only documents in cases in which previously to the passing of the Act a discovery might have been obtained by filing a bill, or by any other proceedings in Equity.” Per Willes, J., Hill v. Campbell (ubi supra).

In Gomm v. Parratt (26 L.J. C.P. 279), a Plaintiff claiming dower out of property purchased by Defendant without notice, was refused inspection of Defendant's conveyance, on the ground that a Court of Equity would not have granted discovery. In Hunt v. Hewitt (21 L.J. E. 210), inspection was granted of Plaintiff's books to see if there were any entry, and, if any, what price was charged as the value of the work for which the Plaintiff was claiming against the Defendant, whose affidavit in support of the application asserted that the work was not done, and, if so, was charged for exorbitantly. In Stone v. Strange (34 L.J. E. 72), the Court allowed inspection of Defendant's letters to Plaintiff in an action for breach of promise of marriage ; and in Tape v. Lister (40 L.J. Q.B. 87), a similar order was made ; and, notwithstanding some earlier decisions to the contrary, it was laid down in Price v. Harrison (29 L.J. C.P. 335), that where a document is relied on by one side, whether stated in the pleadings or not, the opposite party is entitled to see it, whether he be a party to it or not, and whether he be otherwise interested in it or not: per Willes, J. And, in the same case, Erle, C.J., says, “if there had been a formal agreement between the parties the Defendant would be entitled to see it ; so, also, if letters are evidence of the agreement, though not the agreement itself, in my opinion they clearly fall within the same rule."

In Mahoney v. National Widows Insurance Company (40 L.). C.P. 203), inspection was ordered of confidential reports made at the instance of the Defendants on the insurance under which the Plaintiff in that case claimed, and in Fenner v. London and South-Eastern Railway (41 L.J. Q.B. 313), answers obtained to inquiries instituted by the Defendants were ordered to be produced for the inspection of the Plaintiff; but, in Peppiatt v. Smith (33 L.J. 239), interrogatories as to particulars of injuries suffered by Plaintiff through Defendant's negligence were refused. In Bechervaise y. Great I'estern Railway (40 L.J. C.P. 8), the Plaintiff





was not allowed to interrogate the Defendants as to the cause of the accident which was the subject of the action. And in Turner v. Goulden (43 L.J. C.P. 60), in an action against Defendant for negligence in making a valuation of certain property for the Plaintiff, the latter was allowed to interrogate Defendant as to the basis on which the valuation complained of had been made.

More recent decisions, however, have negatived the right of a Plaintiff to obtain from Defendant discovery or inspection of medical reports upon the Plaintiff's condition, made by direction of the Defendants (Cossey v. London and Birmingham Railway Company, 39 L.J. C.P. 174; Skinner v. Great Northern Railway Company, 43 L.J. E. 150).

In Phillips v. Routh (41 L.J. C.P. 111), the Court refused to allow interrogatories by the Plaintiff as to particulars relating to the cause of action obtained by the Defendant since the commencement of the action ; and, in Allen v. Brogden (43 L.J. C.P. 206), inspection of private confidential letters between the Plaintiffs written before action was refused.

All these cases, it will be seen, are decisions which were made prior to the Judicature Act, and the result of them appears to show that disclosure of reports or letters containing particulars obtained by agents of the parties, whether before or after litigation, was discountenanced by the Common Law Courts, notwithstanding that Courts of Equity would unhesitatingly grant such discovery, and although the Common Law Courts claimed to possess larger powers of discovery than were vested in Courts of Equity. The explanation probably is that the Common Law Courts have always exercised a very wide discretion in cases of discovery, and have not regarded it in any way as a matter of right, but have been influenced in their decisions by the circumstances of each particular case.

Under the Judicature Act, where any distinction exists between Equity and Law, the principles and practice of the former are to prevail (sect. 25). In particular, in reference to inspection and discovery it is provided that any party shall be entitled to inspection of any document mentioned in any pleading or affidavit, on simply giving notice to the party in whose possession the document of which inspection is desired appears to be (ord. 13, r. 15); and any party who desires to ascertain whether his opponent has any documents which may aid him in establishing his case may obtain without affidavit an order as of course for such opponent to state on oath what documents he has or has ever had material to any matter in issue in the action (ord. 13, r. II). This statute introduces in effect the rule which has prevailed in Equity since the statute 15 & 16 Vict. c. 86, and the right of inspection and discovery are now placed upon the same footing in all respects. The defendant or plaintiff may now be compelled in any action, as soon as his opponent has pleaded, to discover what documents he has or has had in his possession, and to give inspection of them, subject to any objection which he may make by his affidavit giving the required discovery (see order 31, r. 13). It is the operation of these enactments of the Judicature Acts which has been considered by the Court of Appeal in the case of Anderson v. The Bank of British Columbia (L.R. 2, Ch. D. 644; 45 L.J., Ch. 419; 35 L.T. 76, 24 W.R. 624) on appeal from a decision of the Chancery Division of the Supreme Court, and in Bustros v. White (L.R. I Q.B.D. 423; 45 L.J., Q.B. 642 ; 34 L.T. 835; 24 W.R. 721) on appeal from the Queen's Bench Division of the Court, and the result is that the principles on which the Courts of Equity have hitherto acted are now adopted for all the Courts.

The question in each of these cases was whether certain information which had been obtained by an agent of one of the parties with a view to the litigation which afterwards ensued was within the rule that a man is not bound to disclose confidential communications between himself and his solicitor, or evidence which he has obtained for the

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