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 5
 
 POINTS 
 
 LAW OF DISCOVERY. 
 
 JAMES WIGRAM, ESQ. 
 
 OXK OF IIFR majesty's COUNSEL. 
 
 SECOND EDITION. 
 
 LONDON; 
 
 A. MAXWELL, BELL YARD, LINCOLN'S INN, 
 
 llato Bookseller antJ publisher; 
 
 AND MILLIKEN St SON, GRAFTON STREET, DUBMN. 
 1840.
 
 T 
 
 \^40 
 
 LONDON: 
 
 W. M'DOWALT,, PRINTKR, PEMBERTON ROW, 
 GOUGH SaUARE.
 
 TO 
 THE RIGHT HONORABLE 
 
 JOHN SINGLETON, LORD LYNDHURST, 
 
 THIS WORK 
 
 IS, 
 
 BY HIS PERMISSION, 
 
 RESPECTFULLY INSCRIBED.
 
 ADVERTISEMENT 
 
 SECOND EDITION. 
 
 i HE decisions which, in the first edition of this 
 work, it was principally the object of the author 
 to review, were those in Hindman v. Taylor, 
 Sanders v. King, Thring v. Edgar, Pennington 
 V. Beechey, The Attorney-General v. Ellison, 
 Crowley v. Perkins, and Hardman v. Ellames. 
 Since that edition was published, each of these 
 cases, except The Attorney-General v. Ellison, 
 has been the subject of judicial notice ; and 
 the views of the author respecting them have 
 been confirmed except in the case of Hard- 
 man V. Ellames. With respect to the deci- 
 sion in Hardman v. Ellames, it has been con- 
 firmed by the opinion of the Lord Chancellor, 
 extra-judicially expressed, in the judgment in 
 Adams v. Fisher; but that opinion, as will be 
 seen, was grounded upon reasons differing ma-
 
 VI ADVERTISEMENT TO 
 
 terially from those of the Lords Commissioners, 
 which the author in the first edition had pre- 
 sumed to criticise. With respect to the case 
 of The Attorney-General v. Ellison^ it is over- 
 ruled, in principle, by the decision in Adams v. 
 Fisher, and cannot stand with the cases of 
 Lambert v. Rogers, Grane v. Cooper, and Mur- 
 ray V. Walters; the last two of which cases have 
 been decided since the author's observations upon 
 The Attorney-General v. Ellison were written. 
 
 Since the former edition of this work was 
 published, several cases involving points of great 
 importance have been reported; namely, Adams 
 V. Fisher, before the Lord Chancellor ; Neate v. 
 Latimer, and Pilkington v. Himsworth, in the 
 Exchequer; Carter v. Goetze at the Rolls; and 
 Latimer v. Neate in the House of Lords. Upon 
 each of these cases some observations will be 
 found in the pages which follow. 
 
 For the numerous imperfections which he fears 
 may be detected in his work, the author has no 
 apology to offer but one, which ought, perhaps, 
 to have deterred him from publishing it, — his
 
 THE SECOND EDITION. Vll 
 
 want of sufficient time to give the subject tlie 
 close attention it deserves. He has been in- 
 duced, however, to submit his labours, how- 
 ever imperfect, to the Profession, partly from 
 the consideration that no one need be misled 
 by them, who will take the trouble of examin- 
 ing for himself the authorities upon which the 
 opinions of the author are grounded; and, be- 
 cause he has found that his former observa- 
 tions have been approved by a distinguished 
 foreign jurist («), and that they concur with 
 those of Mr. Hare (6), whose Treatise on the 
 Law of Discovery was strictly contemporaneous 
 with that of the former edition of this work. 
 
 Lincoln's Inn, 
 Ja/n. 11, 1840. 
 
 (a) See Story's Commentaries on Equity Pleadings. 
 
 (1)) In the case of Irvimj v. Thompmn, 9 Simon, 27, the 
 Vice-Chancellor, referring to Mr. Hare's Treatise, said it was 
 an "excellent work."
 
 ADVERTISEMENT 
 
 FIRST EDITION. 
 
 A PRACTICAL TREATISE on the Law of Discover}'^, as 
 administered in Coiuts of equity, has long been a 
 desideratum amongst practitioners in those Courts. 
 This work does not pretend to supply it. The author, 
 in an early period of his professional life, collected 
 together nearly all the reported cases on the subject of 
 Discovery, and extracted therefrom what appeared to 
 be the principles by which the Courts are governed in 
 the administration of this important branch of the 
 law. Having lately had occasion to reconsider the 
 subject, in several of its bearings — with reference to 
 certain modern decisions, to which he found it impos- 
 sible to assent — it occurred to him (and under this 
 impression the following pages have been written,) that 
 an attempt to refer some leading points to their prin- 
 ciples could not be otherwise than acceptable to the 
 Profession, even if the speculations of the author (and 
 such to a great extent he admits his suggestions to be) 
 should be deemed inadmissible. His principal ob-
 
 X ADVERTISEMENT TO THE FIRST EDITION. 
 
 JGct, at the outset, was, an examination of the rules 
 laid down in Hindman v. Taylor, Sanders v. King, 
 Thring v. Edgar, Pennington v. Beechey, The Attorney- 
 General V. Ellison, and Hardman v. Ellames. In pro- 
 secuting this examination he found it necessary to 
 advert with attention to rules of the most elementary 
 character. These (which form the subject of the First 
 Proposition) he has attempted to explain by way of 
 introduction to points of a less ob\dous kind — involved 
 in his objections to the cases referred to. With 
 respect to three of these cases — Sanders v. King, 
 Thring v. Edgar, and Pennington v. Beechey — the au- 
 thor has stopped far short of his original design (see 
 page 164, in pi. 235). Deference to the opinion of 
 the eminent and learned Judge by whom those cases 
 were decided, has deterred him from the labour of 
 following out his own views — until he shall have learnt 
 how far those views are sanctioned by the opinion of 
 the Profession. 
 
 LiNCOLN^s Inn, 
 Jan. 11, 1836.
 
 TABLE OF CONTENTS. 
 
 INTRODUCTORY OBSERVATIONS. 
 
 Caution to the Reader 1 
 
 Common rule — entitling a Plaintiff in Equity to Discovery 
 
 — stated 2 
 
 Danger incident to the Jurisdiction . . . . 2, 3 
 
 The Jurisdiction defended, notwithstanding its danger . 3, 4 
 Danger of perjury — a principle ..... 4 
 
 Jurisdiction exists in suits for civil purposes only . . 5 
 
 Common division of Bills in Equity into two classes — Bills 
 
 for Discovery, and Bills for Relief — not 
 
 founded in principle 5, 
 
 Division of Bill into its integral parts — as distinguished 
 
 from analysis 6, 7 
 
 Analysis of a Bill into its connyonent jiarts — explained . B 
 
 A right understanding of this analysis essential in pleading 8 
 A special case assumed — for the purposes of the present . i) 
 
 treatise i) 
 
 Answer in Equity- consists of two distinct parts : 
 
 1 . A defence ; and 
 
 2. An examination ..... !) — J I 
 Great importance of this distinction . . .12
 
 Xll CONTENTS. 
 
 Objections to Discovery of Three kinds : 
 
 Objections upon merits . . . .12, 13, n. (o) 
 
 Objections upon form «i. . 
 
 Ohjections to " particular discovery" . . . ifj. 
 
 '^ Partictilar discovery " de&ned . . . . .12 
 
 Appropriate modes of objecting to discovery, accord- 
 ing to the nature of the objection . . 13 
 
 Division of the subject of this treatise . . . .14 
 
 1. What discovery a plaintiflFmay exact 
 
 2. By what means a defendant may resist at- 
 
 tempted encroachments 
 
 The two cardinal points in the law of discovery . . 14 
 
 1. The right of a plaintiff to a discovery of the 
 
 evidences of his case 
 
 2. The privilege of a defendant to withhold a dis- 
 
 covery of the evidence exclusively relating to 
 his own 
 Subdivisions of the above points . . . .14 
 
 PROPOSITIONS. 
 
 Proposition I. — The pleadings in a cause and rules of 
 practice, unconnected with the laws of discovery, 
 determine a jn-iori Avhat question or questions in the 
 cause sliall first come on for trial. And the right of 
 a plaintiff to discovery is in all cases confined to the 
 question or (Questions in the cause, which, according 
 to the i)lcadings and practice of the Courts, is or are 
 about to come on for trial 15,17
 
 CONTENTS. XIU 
 
 Proposition II. — It is the right, as a general rule, of a 
 plaintiff in equity to exact from the defendant a dis- 
 covery upon oath as to all matters of fact, which, heing 
 well pleaded in the hill, are material to the plaintiff 's 
 case about to come on for trial, and which the defend- 
 ant does not by his form of pleading admit . 15, 40 
 
 Proposition III. — The right of a plaintiff in equity to 
 the benefit of the defendant's oath, is limited to a dis- 
 covery of such material facts as relate to the " plain- 
 tiff ^s case" and does not extend to a discovery of the 
 manner in which the " defendant's case" is to be 
 exclusively established, or to evidence which relates 
 exclusively to his case ..... 15, 201 
 
 Proposition IV. — Every objection to discovery which is 
 founded upon a denial of the plaintiff 's right of suit, 
 or of his right to proceed wdth it in its existing state, 
 should regularly be taken by demurrer or plea, ac- 
 cording to the circumstances of the case ; — and, where 
 the objection is not so taken, and the defendant 
 answers the bill, he will, in general, be held to have 
 waived the objection, and will be obliged to answer 
 the bill " throughout" 15, .S47 
 
 Proposition V. — Every objection to discovery which is 
 not founded upon a denial of the plaintiff's right of 
 suit, or of his right to proceed with his suit in its ex- 
 isting state, but depends exclusively upon the nature 
 of the discovery sought, may regularly be taken by 
 answer as well as by demurrer or plea. As the mode 
 of taking objections of this nature is thus unfettered 
 by rules of form, a defendant who has not actual)}'- 
 answered an interrogatory or interrogatories to which 
 the objection may apply, cannot, as a general rule, be 
 held to have waived it upon any merely technical 
 grounds ](!, .140
 
 XIV CONTENTS. 
 
 FIRST PROPOSITION. 
 
 Criticism u])on tlio language of the First Proposition . 17 
 
 Summary of objections which may be taken to a l)ill 
 
 in Equity 18 
 
 The same to discovery f)nly 20 
 
 The objections noticed under the First Proposition 
 
 are those of ';«er/?.9 and /or»i only . . .19,20 
 
 Means of objecting to discovery upon merits or form . . 20 
 Demurrer, with its incidents .... 20 
 
 Plea, with its incidents 22—28 
 
 Answer, with its incidents .... 23 — 29 
 Disclaimer 24 
 
 Advantages of a defence by answer instead ol plea 23, n. (^g) 
 
 Discoveiy in each case confined to the question or ques- 
 tions in the cause which the form of pleading 
 
 may raise 25 
 
 Demurrer requires no discovery .... 25 
 
 Plea requires no discovery, unless to try the plea 
 
 itself 2f) 
 
 Answer requires discovery as to all questions in 
 
 the cause 26 
 
 Answer makes no implied admission . . . 26, 27 
 Examples illustrating tlie preceding cases . . 27, 28 
 
 Of discovery applicable as to the amount or extent 
 of a plaintiff's demand, as distinguished from his 
 
 title 28, 29 
 
 Distinction between principal and subordinate or de- 
 pendent points in a cause 29 
 
 General result of the preceding observations . . 30
 
 CONTENTS. XV 
 
 Explanation of the lonmnjn nile that (K'niurver or plea to 
 
 relief ww/w the discovery .... 31 
 
 Defendant who demurs or pleads to relief may give disco- 
 very .... 31 
 
 Q,u. ? whether defendant who demurs or pleads to 
 
 relief may give partial discovery . . . 31 , 32 
 James v. Sadgrove 
 
 Ilmdinan v. Taylor, stated ...... 32 
 
 Observations upon that case 35 
 
 Cases subsequent to Hindman v. Tai/lor : 
 
 Baillie v. Sibbald 38 
 
 Gait V. Oshaldeston 38 
 
 Mendizabel v. Machado .... 39 
 
 Daubigny v. Davallon 41 
 
 Albretcht v. Sussman 41 
 
 McGregor v. The East India Company . . 41 
 RoheHson v. Lubbock . . . . 41, 42 
 
 Hardman v. Ellames 42 
 
 Qu.? Discovery necessary upon «r^?«w«?< of a plea . 43 
 
 SECOND PROPOSITION. 
 
 I'Mrst Proposition restrictive 40 
 
 Second Proposition affirmative 46 
 
 The Second Proposition explained, by a conimentar}^ 
 
 upon its terms 4G, 47 
 
 " It is the right of the plaintiff . " 
 
 The plaintiff's right to discovery, and not the defend- 
 ant's obligation to give it, the convenient form 
 of expressing tlie rule .... 47, 48
 
 XVI CONTENTS. 
 
 " The plaintiff in equity " 4H 
 
 His right tlie same, whatever position he may occupy 
 — as plaintiff or defendant in the cause in aid 
 of which the discovery is wanted . . 48, 4!) 
 
 Or (as a general rule) in what Court that suit is . . 4U 
 Motion by defendant for production of documents in 
 the plaintij^s possession governed by the same 
 
 principles ....... 49 
 
 " It is ^Ae W^//^ of the plaintiff" 50 
 
 Indefeasible character of this right .... 50 
 Defence by plea does not affect it ... 50, 51 
 
 " Plaintiff's case" explained .52—55 
 
 A case made by the Bill 
 
 That case made by the Bill which is about to be the 
 
 subject of trial ib. 
 
 Practical illustrations of the plaintiff's right to disco- 
 very relevant to his own case . . . ib. 
 
 First — Bill and Demurrer 55 
 
 Secondly — Bill and pure affirmative plea . . 55 
 Thirdly — Anomalous Plea — where the truth of the 
 
 plea is admitted by the Bill . . . .57 
 
 Jerrard v. Saunders ..... 58 
 
 Roche V. Morgell . 59 
 
 Fourthly — Defence suggested as pretence, and neither 
 
 admitted nor denied 60 
 
 Fifthly— ^e^aiiYG Plea GO 
 
 Jones V. Davis Gl 
 
 Crow V. Tyrrel G2 
 
 Sanders v. King 62 
 
 Tliring v. Edgar . . . . . . G5 
 
 Sixthly — Anomalous Plea — where the truth of the 
 
 Plea is denied by the bill .... 65 
 
 Evans v. Harris 67 
 
 Ilardman v. Ellames 69 
 
 Emerson v. Harland 70
 
 CONTENTS. XVll 
 
 Seventhly — Affirmative Plea involving a negation of the 
 
 case in the Bill 71 
 
 Emerson v. Harland ..... 72 
 
 Observations ujjon this case . . 74, n. {a) 
 
 Plunkett V. Cavendish 77 
 
 Eighthly — Bill and Answer 78 
 
 " As a general rule " ....... 79 
 
 Exceptions admitted 
 
 Exceptions divided, with reference to Propositions 
 IV. and v., into two classes : 
 1st Class — Exceptions founded upon a denial of 
 
 plaintiff's right of suit. Q,u. ? ... 79 
 2nd Class — Exceptions founded upon objections 
 
 to " particular discovery" ... 79 
 
 First class of Exceptions doubted .... 79 
 
 Second class of Exceptions yjrsf considered . . 79 — 85 
 
 First class of Exceptions examined .... 85 
 
 The point stated 85 
 
 Common form of expressing it . . . .86 
 Criticism upon that fonii of expression . . 8G 
 
 Precise question defined . . . 87 — 89 
 
 Adams v. Fisher, an example of the First class of 
 
 Exceptions 89 
 
 Four courses pf practice suggested with reference to 
 
 the First class of Exceptions .... 91 
 
 First course considered 92 
 
 Second course considered ..... 94 
 
 Adams v. Fisher considered ... 94 
 
 — upon principle .... 94 — 100 
 
 — upon convenience . . . 100 — 110 
 
 — upon authority . . . 100 — 118 
 
 Third and Fourth courses of practice . . .118 
 
 Effect of Adams v. Fisher upon the practice of the 
 
 Court 120 
 
 b
 
 XVIU CONTENTS. 
 
 "The plaintiflF in Equity " seeking discovery . .122 
 Tnimatorial in what Court he seeks relief . . 122 
 Innnutorial, whether pkiiutiff or defendant in the 
 
 Court in which he seeks relief. . . .122 
 Caution with reference to Hindman v. Tai/lm; 
 Lowndes V. Davies, and some other sjiecial 
 cases 122 
 
 " Matters of fact" 
 
 Conclusions of law, though charged in the bill — and 
 
 material — need not be answered . . . 1 2.3 
 
 " Ahont to come on fm' trial." 12.3 
 
 " Well pleaded" 123 
 
 Necessity of specific allegations 'upon which to found 
 
 interrogatories in the Bill. . . .123 
 
 " Certainty" requisite in Bill .... 124 
 
 General scope of Bill " uncertain" . . 124, 125 
 
 East Lidia Compamy v. Henchman 
 
 Cresset v. Mitton 
 
 lij/ves V. Bj/ves 
 
 The Mayor and Commonalty of London v. Levy 
 
 Jones V. Jones 
 
 Barber v. Hunter, cited in Jones v. Jones 
 
 Princess of Wales v. Earl of Liverpool 
 
 Frietas v. Dos Santos .... 
 
 Walburn v. Tnc/ilby .... 
 
 Hardman v. Ellames .... 
 
 Metcalfw. Herrey 
 
 Mendizabel v. Machado .... 
 
 Stanshury v. Arkwright .... 
 
 Particular allegation uncertain 
 
 Further observations upon the words "well pleaded" 135-6 
 Application of certain special rules — respecting pleas 
 
 — to discovery 13G 
 
 Plea must not cover discovery material for trial of 
 
 plea, either upon argument or at the hearing 13G 
 
 125 
 
 . 125 
 
 125 
 
 . 128 
 
 . 129 
 
 129 
 
 . 129 
 
 130 
 
 . 131 
 
 131 
 
 . 131 
 
 181 
 
 . 131 
 
 131—135
 
 CONTENTS. XIX 
 
 Pleader must not give discovery which the plea 
 
 covers . . . . . . .13(5 
 
 Tendency of these two rules ... 1 37 
 Application of the above rules by Sir John Leach in 
 
 Sanders v. Kmg 138 
 
 TJiring v. Edgar 138 
 
 Pennington v. Bcecliey . . . . .140 
 Results of these three cases combined . . 142 
 
 I. Defendant not hmmd to answer allegations 
 
 in bill unless charged " as evidence " . 142 
 
 II. Defendant bound to answer all allegations 
 
 which are so charged .... 142 
 
 III. Defendant not at liberty to answer any 
 allegation unless so charged . . . 142 
 
 The first of these three results contradicted by 
 precedent and subsequent authority, viz. 
 Roche V. Morgell, Jones v. Davis, Cham- 
 berlaync v. Agar, Crow v. Tyrrell, Ar- 
 nold V. Hcaford, Hardman v. Ellames 1 43 
 — objected to in principle .... 144 
 — objected to as a rule of supposed convenience 145 
 
 The second of the above results objected to . 146 
 
 The i^«r(^ result objected to . . . . 146 
 The rule that defendant must not answer 
 what his plea covers — considered, Clan- 
 rickard v. Burk . . . . . 1 47 
 
 Lord Redesdale 147 
 
 Forum Romanum 147 
 
 Beames on Pleas . . . . . 148 
 
 Meaning of " Discovery covercdhy a plea" . .148 
 
 Cover in fact .... 148, 150, n. («) 
 
 Cover ill law 150 
 
 No authority for latter prior to the cases 
 
 under consideration . . 150, n. (a) 
 
 Dcnys v. Locock . . 1 48, 1 49, 1 50, n . ( a ) 
 Clayton v. Earl of Jflnc/ielsea (See Ad- 
 denda) . . 148, 14!), 150, n.(«) 
 /. -2
 
 XX CONTENTS. 
 
 Answer per se — irrespective of its nature — does 
 
 not aftect plea ..... 151 
 
 Application of the preceding observations to 
 
 Thring v. Edgar 152 
 
 Salkeld v. Science . . . . .153 
 
 The objections to the above three results justified 
 by analogy of answer in subsidium of 
 pure affirmative pleas . . . 153, 154 
 
 The question — " What a plea covers 1" . 154, 155 
 
 Suggestions as to the mode of framing a plea, in 
 cases in which the plea to relief cannot 
 exclude all discovery .... 156 
 
 " Material. " 
 
 Material allegations only, i. e. material to " the plain- 
 tiff's case," need he answered . . 157 
 
 Lord Redesdale 158 
 
 &'haftesbu7y v. Arrowsmith .... 159 
 
 Cardale v. WatMns 161 
 
 Lingen v. Simpson . . . . . 161 
 
 Guppj/ v. Few 162 
 
 Stewart v. Lord Nugent ..... 163 
 
 Other cases to the same point .... 163 
 but see 
 
 Attorney-General v. Ellison . . . 164 
 That a mere witness need not answer . . 164 n. (^u) 
 Extent of the obligation of trustees — or other persons 
 
 interested i?ipart only — to answer . 164 
 Right of defendant — when ordered to produce docu- 
 ments — to conceal such parts as are ir- 
 relevant to the matter in hand . 164, 165 
 Materiality of evidence considered with reference to 
 
 its remoteness from the matter in hand 165 
 
 Dos Santos v. Frietas 165 
 
 Francis V. Wigzell . . . . . 168 
 
 Small V. Attwood 168 
 
 Janso^i V. Solarte . . . . . 169
 
 CONTENTS. XXI 
 
 Expediency of framing with care the prayer for spe- 
 cific relief — ^^^th reference to the materi- 
 ality of the allegations in the Bill . 169, 170 
 Saxton V. Davis ..... 170 
 
 The plaintiff '' s case." 
 
 A case made hy the bill 170 
 
 That case made by the bill, which the parties are 
 
 about to bring on to trial . . . 170 
 The last point determined by rules of jileading, 
 independent of the laws of discovery 
 [Supra, Prop. /.] 171 
 
 Suggestions as to pleas which require an answer . 171 
 Division of the cases last referred to. 
 
 1. Where the bill admits the truth of plea — im- 
 
 peaching its legal validity . . . 172 
 
 2. Where the bill impeaches the tnith of the plea 172 
 Answer in support of plea — within the former of 
 
 these cases . . . . .172 
 
 Practical distinction between the above two cases . 173 
 Occasion upon which — and sense in which answer 
 
 is said to support plea . . . 173 
 
 Anomalous character of rule requiring an answer 
 
 to support plea ..... 175 
 Observations upon Hill v. Foley . . 176 — 182 
 
 Answer to support plea need not be technically 
 
 sufficient 182 
 
 Observations upon the rule that a plaintiff, by 
 
 exceptions to the answer, admits the plea 
 
 to be good 183 
 
 Answer which supports the plea not part of the 
 
 defence 185 
 
 Use of averments in plea . . . . . 1 85 
 Lord Eldon's observations upon the rule in Baylcy 
 
 V. Adams 187 
 
 Lord Redesdale's comment upon Lord Eldon's 
 
 judgment in BayJcy v. Adams . . 188
 
 XXll CONTENTS. 
 
 Explanation of the rule suggested . . . . 188,189 
 Practical utility of the rule .... 188 
 
 " Which the defendant does not hy his form of pleading 
 
 admit" 18i) 
 
 Discovery of that which the pleadings admit not rc- 
 
 (iuired 189, 190 
 
 Conclusion from the preceding observations . . . 190 
 
 '' A full Answer." 190 
 
 Definition 
 
 1. Confined to the part or parts of the l)ill upon 
 
 which the plaintiff's right to discovery 
 attaches 191 
 
 2. Answer full, notwithstanding exceptions of second 
 
 class not answered . . . 191, 196 
 — Examples 192 
 
 3. General obligations of defendant who answers a 
 
 bill 196 
 
 4. Limit ujion this general obligation . . 197 
 
 — as to plaintiff's right to call for discovery 
 
 in a specific form . . . . « 197 
 
 5. Meaning of ^^ full answer" with reference to the 
 
 production of documents before the hear- 
 ing 199 
 
 Principle upon which order for the production of do- 
 cuments before the hearing is made . 199 
 Analogous to exceptions to the answer . . . 200 
 Examples proving this principle. 
 
 Marsh v. Sihbald 202 
 
 Evans v. Richards 203 
 
 Unsworth v. Woodcock 204 
 
 The aboj^e princijile supposes the documents to be 
 part of the discovery to which the plain- 
 tiff is entitled 204 
 
 The cases limited accordingly . . , 205 — 208
 
 CONTENTS. XXIU 
 
 Rules of practice, regulating plaintiff's right to pro- 
 duction of documents before the hear- 
 ing 203 
 
 Defendant's admission the only evidence . . 20U 
 Possession of or power over the documents must 
 
 be admitted 209 
 
 Documents must be described in the answer . . 209 
 The plaintiif must sliew/ro»j the answer that he 
 
 has an interest in the documents . 210 
 
 Meaning of the word " interest" as here 
 
 used 2J2 
 
 The Attorney-General V. Ellison, stated . 212 
 Objection to the decision in this case . 213 
 What admission of interest by defendant will 
 
 suffice 215 
 
 Tj/ler V. Drayton furnishes a rule . 21G 
 Admission of relevancy alone sufficient, if nothing 
 
 more be suggested or apjiear , . 210 
 If relevancy of document is admitted, the 
 plaintiff is entitled to judge of their 
 
 effect 2J7 
 
 But if the admission of relevancy be accompa- 
 nied by statements which bring the docu- 
 ments within the exceptions to the Second 
 Proposition — the Court will not order 
 their production . . . . . 217 
 As to necessity for an actual admission of rele- 
 vancy 21H 
 
 Denial of relevancy conclusive against plaintitt"'s 
 
 right to production . . . .219 
 
 General principles regulating the practice of the Court 
 
 in tlic above cases .... 220 
 
 A]»])lication of the above to tluvo special cases . . 220 
 
 1. Alleged partnersliip denied by the answer . 224 
 
 2. Documents relevant to the defence . . . 224
 
 CONTENTS. 
 
 3. Documents impeached by the bill , . 225 
 
 Bedford v. Wildman 225 
 
 Tt/ler V. Drayton 225 
 
 Balcli V. Symes 225 
 
 Kennedy v. Green ..... 225 
 
 Fencott v. Clarke 226 
 
 Neate v. Latimer 227 
 
 Pilkington v. Himsworth .... 229 
 
 Carter v, Goetze 230 
 
 Observations upon the preceding cases . 230 — 237 
 Emerson v. Harland consistent with the last 
 
 observations 237 
 
 Practice of the Court in giving final effect to 
 the defendant's oath upon motions de- 
 fended 237—243 
 
 If relevancy admitted, the plaintiff need not re- 
 quire the defendant to set out the con- 
 tents of the documents .... 243 
 
 Title-deeds not distinguishable in principle from other 
 
 documents 243 
 
 Qu. 1 in practice 1 243 
 
 A plaintiff's right to discovery of a document will 
 not be affected by the circumstance that 
 the same document is evidence of the 
 defendant's title also .... 244 
 And if defendant improperly blends a plaintiff's ac- 
 counts with his own — so that the two 
 cannot be distinguished — he must pro- 
 duce the whole 244 
 
 Plaintiff's right to inspect a document in the defend- 
 ant's hands, may be affected by the cir- 
 cumstance that a third party, not before 
 the Court, has an interest in it . . 244 
 Lambert v. Rogers ...... 246 
 
 Grane v. Cooper ...... 246 
 
 Murrai/ v. Walters 247
 
 CONTENTS. XXV 
 
 Of the plaintiff's right to the production, at the trial 
 of an action, of documents scheduled to 
 
 his answer 247 
 
 Crowley v. Perkins 248 
 
 Angell v. IVestcombe 248 
 
 Broum v. Thornton .... 248, 249 
 
 Princess of Wales v. Earl of Liverpool . . 251 
 The circumstance that a Court of law would order 
 the production of a document stated in 
 the pleadings, not a guide for a Court of 
 
 equity 251 
 
 Princess of Wales v. Earl of Liverpool . . 252 
 Qu. ? whether professional privilege strictly confined 
 to communications between solicitor and 
 
 client 254 
 
 Defendant ordered to produce documents upon trial of 
 
 action by plaintiff against a third party 255 
 
 Taylor V. Slicj)hard 255 
 
 Same point upon trial of an indictment . . 256 
 
 But the plaintiff is not entitled to .the production of 
 documents exclusively relevant to the 
 
 defendant's case 266 
 
 Unless the defendant purports to set out such do- 
 cuments in his answer, and refers to 
 them for greater certainty as to their 
 
 effect 257 
 
 Supposed limits of the last observation . 257 
 Q,u. ? Defendant pretending to give discovery 
 
 which he might have refused . . 257 
 Latimer v. Neate 257 
 
 Argument in Bannatyne v. Leader .... 258 
 Three heads suggested under which discovery given : 
 
 1. Plaintiff has an interest for tiie purposes of 
 
 the suit 258 
 
 2. Defendant refers to a document stated in the 
 
 pleadings ...... 258
 
 XXVI 
 
 CONTENTS. 
 
 J3. PlaintiiV has an intoivst in a tlorunient ijiii'i * 
 
 projjcrty — qu. 'I . . . 258 
 
 A fourth su!?srosted under the head of waiver 
 
 259 
 
 THIRD PROPOSITION. 
 
 State of the question as affected hy the points ah-eady 
 
 
 noticed . 
 
 2G] 
 
 Z)e/e?«ce (generally) upon oath .... 
 
 2G2 
 
 Reasons for requiring the oath . . . . 
 
 2G2 
 
 Policy of the rule which denies to a party a know- 
 
 
 ledge of his opponent's evidence 
 
 2(;5 
 
 Earl of Suffolk V. Howard 
 
 2(;() 
 
 Bettison v. Farringdon 
 
 2G7 
 
 Hodson V. Earl of Warrington . . . . 
 
 2Gy 
 
 Davers v. Davers 
 
 270 
 
 Stroud V. Deacon 
 
 270 
 
 Budcn V. Dore 
 
 271 
 
 Burton v. Neville 
 
 271 
 
 Ivi/ V. Kekewick 
 
 272 
 
 Shaftesbury v. Arrowsmith 
 
 273 
 
 JVorslei/v. Watson 
 
 273 
 
 Princess of Wales v. Earl of Liverpool 
 
 273 
 
 Micklethwaitc v. Moore 
 
 274 
 
 Bligh V. Benson 
 
 275 
 
 Glegg v. Legh 
 
 275 
 
 Tyler V. Drayton 
 
 275 
 
 Sampson v. Swettenham 
 
 276 
 
 Firkins v. Lowe 
 
 277 
 
 Wilson V. Forster 
 
 277 
 
 CompUm V. Earl Grey 
 
 278 
 
 Tomlinson v. Lymer 
 
 278 
 
 Wilson V. Forster 
 
 279 
 
 Bolton \' . The Corporation of Liverpool 
 
 280 
 
 Toothy. The Dean and Chapter of Canterbury 
 
 282 
 
 Bell wood V. Wet her ell 
 
 284
 
 CONTENTS. XXVU 
 
 PilHngton v. Himsworth 28-4 
 
 Knight v. Marquis of Waterford . . . 284 
 
 Lord Redesdale 285 
 
 Other cases referred to 286 
 
 Suggestions as to the case of a mortgagee when required 
 to produce his mortgage-deed before tlie liear- 
 
 ing 287 
 
 Brovrti v. Lockhart, Appendix, infra . . . 307 
 
 The preceding cases considered, with reference to 
 Lowndes v. Davies 
 
 Metcalfe v. Hervey .... 
 Bowman v. Lygon 
 
 Glegg v. Legh ..... 
 Parker v. Legh .... 
 Duke of Bedford v. Macnamara 
 Bell wood V. Wetherell . 
 IV/u/man v. Legh .... 
 Stroud V. Deacon .... 
 Buden v. Dore 
 
 . 289 
 291 
 
 . 293 
 
 293 
 
 . 293 
 
 293 
 
 . 293 
 
 293 
 
 . 293 
 
 293 
 
 Distinction between defence and examination^ as com- 
 ponent parts of an answer, recognised by tlie 
 above authorities 294 
 
 Uardman v, Ellames stated .... 295 
 Dissent from the decision .... 302 
 Point to which tlie dissent applies . 302 — 305 
 
 The decision in Ilardman v. Ellames considei'ed 
 
 — upon principle 305 — 324 
 
 — upon authority .... 324 — 340 
 
 — as matter of practice ,340 
 
 — witli refei-ence to the doctrine of profert . 340 
 — witli reference to the decision in Jones v. 
 
 Lewis ....... 341
 
 -XXVin CONTENTS. 
 
 The Lord Chancellor's reasons for the judgment in 
 Hardman v. Ellames different from those of 
 the Lords Commissioners .... 341 
 The Lord Chancellor's reasons considered . . 342 
 
 The test by which Ilardman v. Ellames should be 
 
 tried 344 
 
 Cases to which the decision is to be confined . . 346 
 
 FOURTH PROPOSITION . . 347 
 
 FIFTH PROPOSITION . . .349 
 
 Latimer v. Neatc 352 
 
 Ewing v. Oshaldeston 3G2 
 
 Hardman v. Ellames 862
 
 TABLE OF CASES. 
 
 ADAMS, Bayley v. 24, 56, 57, 
 
 187 
 Adams v. Fisher, 89, 218, 318 
 Agabey v. Hartwell, 294 
 Agar, Chamberlain v. 143 
 Agar V. The Regent's Canal Com- 
 pany, 164, 193 
 Albertazzi, Costa v. 150 
 Albretcht v. Sussman, 41 
 Alexander, Culverhouse v. 197 
 Allcock V. Barrow, 337 
 AUingham, Cox v. 310 
 Angell V. Westcombe, 156, 248 
 Ark Wright, Stansbury v. 131 
 Ai-nold V. Heaford, 143 
 Arrowsmith, Shaftesbury v. 3, 
 
 133, 159, 239, 268, 272, 281, 
 
 314 
 Aston V. Lord Exeter, 249, 273, 
 
 329 
 Atkyns v. Wright, 201, 210, 270, 
 
 300, 309, 331 
 Attorney-General v. Brown, 81, 
 
 84, 192 
 Attorney-General v. Duplessis, 
 
 81,83 
 Attorney-General v. Ellison, 164, 
 
 210, 212 
 Attorney-General v. Lamli, 244, 
 
 Attorney-General v. The Corpor- 
 ation of Norwich, 109 
 
 Attorney-General v. Whorwood, 
 53,*124 
 
 Attwood V. , 234 
 
 Attwood, Small v. 168 
 
 BAKER V. Booker, 286 
 Baker i\ Mellish, 100 
 Baker v. Prichard, 184 
 Baker v. Whitelock, 265 
 Balch V. Symes, 225 
 Balfour, Farquharson v. 199 
 Baillie v. Sibbald, 38 
 Bannatyne v. Leader, 258 
 Barber v. Hunter, 129, 163 
 Barber, Vansittart i\ 3 
 Barnet v. Noble, 209 
 Barron v. Grillard, 163 
 Barrow, Allcock v. 337 
 Bartholomew's Hospital, St., 
 
 Cock V. 2 
 Bayley v. Adams, 24, 5G, 57, 
 
 187 
 Beckford v. Wildman, 225 
 Beechey, Pennington v. 140 
 Bedford, The Duke of, v. Mac- 
 
 iiauiara, 288
 
 XXX 
 
 TABLE OF CASES. 
 
 Belwood V. Wetherell, 02, 284, 
 
 288, 293 
 Benson, Bligh v. 265, 275 
 Bentinckr. Willinck, 120 
 Beresford, Newton v. 82 
 Best, Jeremy v. 42, 123 
 Bettison v. Farringdon, 267, 278, 
 
 301, 327, 328 
 BickncU, Evans v. 252 
 Biddulph, Hughes v. 82, 209 
 Billing V. Flight, 81 
 Birce v. Bletchley, 285 
 Bize, Erskine v. 209 
 Blaker v. Phepoe, 285 
 Black ett v. Langlands, 77 
 Blake, Duncalf v. 53, 124 
 Bletchley, Birce v. 285 
 Bligh V. Benson, 265, 275 
 Boehm, Seeley v. 198 
 Bolton ». The Corporation of 
 
 Liverpool, 82, 224, 244, 251, 
 
 281, 288 
 Booker v. Baker, 286 
 Bowes V. Fernie, 240 
 Bowman v. Lygon, 293 
 Boyd V. Mills, 184 
 Brazier I'. My tton, 314 
 Brown, Attorney- General v. 81, 
 
 84, 192 
 Brown v. Lockhart, 367 
 Brown v. Newall, 294 
 Brown v. Thornton, 248, 252 
 Browns wood v. Edwards, 57, 81, 
 
 193 
 Buden v. Dore, 133, 197, 271 
 Bullock V. Richardson, 53,81, 124 
 Burge, The Corporation of the 
 
 Trinity House v. 84 
 Burk, Clanricard v. 147 
 Burrell v. Nicholson, 244 
 Burton v. Neville, 271, 274, 299 
 
 CAMPBELL, The East Tndia 
 
 Company ?\ 83 
 Caney, Phelips v. 112 
 Cann ti. Cann, 265 
 Cann, Cann v. 265 
 Canterbury, The Dean and Chap- 
 ter of. Tooth V. 282, 288 
 Cardale v. Watkins, 123, 161 
 Carr, Preston v. 82 
 Carter v. Goetze, 230 
 Cartwright v. Green, 80 
 Cartwright v. Hately, 194 
 Cavendish, Plunkett v. 75 
 Cecil, The Earl of Salisbury v. 
 
 244 
 Chamberlain v. Agar, 143 
 Chamliers v. Thompson, 83 
 Clung, Shaw v. 105, 109, 114 
 Cholmondeley v. Clinton, 37 
 Chippenham, The Corporation of. 
 
 Drummer v. 81 
 Clanrickard v. Burk, 147 
 Clapham v. White, 241 
 Claridge v. Hoare, 58, 81, 83, 193 
 Clark V. Periam, 133, 234 
 Clarke, Darwin v. 209, 300 
 Clarke, Fencott v. 225 
 Clarke v. Turton, 285 
 Clinton, Cholmondeley v. 87 
 Cock V. St. Bartholomew's Hos- 
 pital, 2 
 Compton V. Earl Grey, 278 
 Cookson V. Ellison, 87 
 Cooper, Grane v. 246 
 Corbett v. Hawkins, 194 
 Cork V. Wilcock, 186 
 Cornish, Cowslade v. 265 
 Costa v. Albertazzi, 150 
 Cowslade v. Cornish, 265 
 Cox, Allingham v. 310 
 Cox, Martineau v. 199
 
 TABLE OF CASES. 
 
 XXXI 
 
 Cresset v. Mitton, 125 
 Crow V. Tyrrell, 62 
 Crowley v. Perkins, 248, 250 
 Culverhouse v. Alexander, 197 
 Curzon v. Delazouch, 81, 83, 191 
 
 DARNELL v. Reyney, 184 
 Darwin v. Clarke, 209, 300 
 Daubigney v. Davallon, 41 
 Davallon, Daubigney v. 41 
 Da vers v. Davers, 270, 315 
 Da vers, Davers v. 270, 315 
 Davies, Lowndes v. G, 49, 260, 
 
 289 
 Davis, Jones v. 61, 143, 145 
 Davis, Saxton v. 170 
 Deacon, Stroud v. 133, 197, 270 
 Delazouch, Curzon v. 81, 83, 191 
 Denys v. Locock, 144, 150 
 Desborougli v. Rawlins, 82, 240 
 Dolder v. Lord Hunting-field, 109 
 
 114 
 Donegal (Lord), Stewart v. 112, 
 
 113 
 Dore, Buden t\ 133, 197, 271 
 Dornian, Hook v. 22 
 Dos Santos I'. Frietas, 130, 165 
 Douglas, Paxton v. 81, 83, 192 
 Drayton, Tyler v. 209, 275 
 Drew V. Drew, 63, 156 
 Drew, Drew v. 63, 156 
 Drummer v. The Corporation of 
 
 Liverpool, 81 
 Duncalf r. Blake, 53, 124 
 Duplessis, Attorney- General v. 
 
 81, 83 
 
 EAST INDIA COMPANY, The, 
 ■p. Campbell, 83 
 
 East India Company, The, v. 
 
 Henchman, 125 
 East India Company, The, Mac- 
 
 gregor?'. 41, 163 
 East India Company, The, The 
 
 London Assurance Company 
 
 V. 184 
 Edgar, Tring v. 58, 65, 138, 143, 
 
 150 
 Edwards, Brownswood v. 57, 81, 
 
 193 
 Edwards v. Edwards, 124 
 Edwards, Edwards v. 124 
 Ellames, Hardman v. 42, 75, 124, 
 
 131, 201, 285, 295 
 Ellison, Attorney-General v. 164, 
 
 210, 212 
 Ellison, Cookson v. 87 
 Emerson i\ Harland, 72, 75, 133, 
 
 197 
 Erskine v. Bize, 209 
 Evans??. Bicknell, 252 
 Evans v. Hams, 67 
 Evans v. Richard, 208, 301 
 Ewing V. Osbaldiston, 84, 362 
 Exeter, Lord, Aston v. 249, 273, 
 
 329 
 
 FAIRLIE, Freeman v. 244 
 Farquharson v. Balfour, 199 
 FaiTingdon, Bettison v. 267, 273, 
 
 301, 327, 328 
 Farrington, Williams v. 84 
 Faulder v. Stewart, 109, 197 
 Fencott v. Clarke, 225 
 Fenton v. Hughes, 283 
 Fenwick v. Reed, 82 
 Fernie, Bowes v. 240 
 Few, Guppy V. 162, 245 
 Finch r. Finch, 2, 81, 214
 
 XXXll 
 
 TABLE OF CASES. 
 
 Finch, Finch v. 2, 81, 214 
 Firkins I'. Lowe, 217, 277 
 Fisher, Adams v. 89, 218, 318 
 Fitzgerald i\ Flaherty, 285 
 Flaherty, Fitzgerald v. 285 
 Flight, Billing v. 81 
 Foley V. Hill, 54, 157, 176 
 Forster, Wilson v. 277, 279 
 Francis V. Wigzell, 158, 160 
 Freeman v. Fairlie, 244 
 Frietas v. Dos Santos, 130, 165 
 Fry, Yorke v. 62 
 
 GAIT V. Osbaldiston, 38 
 
 Gale, Gethin v. 106 
 
 Gardiner v. Mason, 217, 837 
 
 Garland v. Scott, 82 
 
 Gaskell, Greenough v. 82, 193 
 
 Gerard v. Penswick, 165 
 
 Gethin v. Gale, 106 
 
 Gibbons v. The Waterloo Bridge 
 
 Company, 81 
 Glegg V. Legh, 275, 288 
 Glyn V. Houston, 5, 79, 83 
 Goderich, Jones v. 36 
 Godfrey, Newman v. 112 
 Goetze, Carter v. 230 
 Goodwin, Jacobs v. 80 
 Gordon v. Gordon, 124, 183, 234, 
 
 285 
 Gordon, Gordon v. 124, 133, 234, 
 
 285 
 Grane v. Cooper, 246 
 Green, Cartwright v. 80 
 Green, Kennedy v. 225 
 Green v. Weaver, 84 
 Greenough v. Gaskell, 82, 193 
 Grey, Earl, Compton v. 278 
 Grillard, Baron v. 163 
 Gunn V. Prior, 103, 110 
 
 Guppy V. Few, 162, 246 
 Gurney, Whitbread v. 82, 249 
 
 HALL V. Maltby, 265, 285 
 
 Hardman v. Ellames, 42, 75, 124, 
 181, 201,285, 295 
 
 Ilarland, Emerson v. 72, 75, 183, 
 197 
 
 Harris, Evans v. 67 
 
 Harrison, v. 117, 194 
 
 Harrison v. Southcote, 80, 193 
 
 Hartwell, Agabey». 294 
 
 Hately, Cartwright v. 194 
 
 Hawkins, Corbett??. 194 
 
 Head, Randall v.lOi 
 
 Heaford, Arnold v. 143 
 
 Healey, Hodle v. 22 
 
 Heeman v. Midland, 209 
 
 Henchman, The East India Com- 
 pany V, 225 
 
 Hendrick, MulhoUand v. 285 
 
 Herbert v. The Dean and Chap- 
 ter of Westminster, 297, 300, 
 325 
 
 Hervey, Metcalf v. 131 
 
 Hill, Foley v. 157, 176 
 
 Himsworth, Pilkington v. 229, 
 251, 284 
 
 Hindman v. Taylor, 6, 22, 32^ 48, 
 69, 123 
 
 Iloare, Claridge v. 58, 81, 83, 
 193 
 
 Hodgkin v. Longden, 31 
 
 llodlc V. Healey, 22 
 
 Hodson V. The Earl of Warring- 
 ton, 269, 301, 815, 327 
 
 Holland, The King v. 266 
 
 Hook V. Dorman, 22 
 
 Hornby Tarlton v. 156 
 
 Houston, Glyn v. 5, 79, 83
 
 TABLE OF CASES. 
 
 XXXUl 
 
 Howard, The Earl of Suffolk v. 
 
 260, 268 
 Hughes V. Biddulph, 82, 209 
 Hughes, Fenton v. 288 
 Hullet, The King of Spain v. 
 
 42 
 Hunter, Barher v. 129, 163 
 Hunter, Law v. 1G3 
 Huntingfield Lord, Bolder v. 109, 
 
 114 
 Hylton V. Morgan, 249, 268, 273 
 
 INGILBY, Walburn v. 181, 240 
 Irving V. Thompson, 164 
 Ivy V. Kekewick, 272 
 
 JACOBS V. Goodwin, 30 
 James v. Sadgrove, 31 , 1 50 
 Janson v. Solarte, 169 
 Jeremy v. Best, 42, 123 
 Jerrard v. Saunders, 58, 174, 186, 
 
 217 
 Johnston v. Johnston, 192 
 Johnston, Johnston v. 192 
 Jones V. Davis, 61, 143, 145 
 Jones V. Godorich, 86 
 Jones V. Jones, 129 
 Jones, Jones v. 129 
 Jones V. Lewis, 49, 841 
 Jones V. Powell, 165 
 Jones V. Purefoy, 265 
 
 KEKEWICK, Ivy v. 272 
 Kemp V. Prior, 109 
 Kennedy v. Green, 225 
 King, The, v. Holland, 266 
 King, Sanders r. 57, 62, 189, 142 
 Knight v. The Marquis of Water- 
 ford, 217, 248,284 
 
 LAMB, Attorney-General v. 244 
 
 Lambert i\ Rogers, 246 
 
 Langlands, Blackett v. 77 
 
 Latimer v. Neate, 227, 231, 288, 
 352 
 
 Latimer, Neate v. 287 
 
 Law V. Hunter, 163 
 
 Leader, Banuatyne v. 258 
 
 Legh, Glegg v. 275, 288 
 
 Legh, Parker v. 288, 298 
 
 Legh, Why man 4'. 133, 298 
 
 Leigh V. Leigh, 42, 128 
 
 Leigh, Leigh v. 42, 123 
 
 Leighton, Ovey v. 82 
 
 Lewis, Jones v. 49, 341 
 
 Lennox, Lord Geo., Stor^^ v. 82, 
 208, 210, 216, 237, 288 
 
 Levy, The Mayor and Common- 
 alty and Citizens of London 
 V. 128 
 
 Lingen t\ Simpson, 161 
 
 Liverpool, Tlie Corporation of 
 Bolton V. 82, 224, 244, 251, 
 280, 288 
 
 Liverpool, The Earl of. The Prin- 
 cess of Wales V. 49, 129, 209, 
 252, 278 
 
 Lloyd V. Passingliam, 81 
 
 Locock, Denys v. 144, 1.50 
 
 Lockhart, Brown v. 367. 
 
 London Assurance Company, The, 
 V. The East India Company, 
 184 
 
 London, The Mayor and Com- 
 monalty and Citizens of, r. 
 Levy, 128 
 
 Longden, Hodgkin v. 31 
 
 Lowe, Firkin v. 217, 277 
 
 Lowndes v. Davis, 6, 49, 260, 
 289 
 
 Lowten, Parkhurst r. 81,82 
 
 Luliliock, Robertson i\ 41
 
 XXXIV 
 
 TABLE OF CASES. 
 
 Lygon, IJowinan v. 21)3 
 L^'mer, Tomlinson v. 278 
 
 MACCALLUM v. Turton, 80 
 
 Miicauley, Thorpe v. 80, 83 
 
 Macgregor i\ The East India Com- 
 pany, 41, 168 
 
 Machado, Mendizabel v. 3G, 39, 
 48 
 
 Mackay, Somerville v. 53, 107, 
 109, 201 
 
 Macintosh, Scott v. 22 
 
 Macnamara, The Duke of Bedford 
 V. 288 
 
 Macnamara, Purcell v. 239 
 
 Maitland, Mazzaredo v. 117, 194 
 
 Maltby, Hall v. 265, 285 
 
 Mant V. Scott, 81, 192 
 
 Marsh v. Sibbald, 202, 301 
 
 Martineau v. Cox, 19!) 
 
 Mason, Gardiner v. 217, 337 
 
 Mayer, Wright v. 82 
 
 Mazzaredo v. Maitland, 117, 194 
 
 Mellish, Baker V. 100 
 
 Mendizabel v. Machado, 36, 39, 48 
 
 Metcalf r. Ilervey, 131 
 
 Micklethwaite v. Moore, 274 
 
 Midland, Heeman v. 209 
 
 Milligan v. Mitchell, 49 
 
 Mills, Boyd v. 184 
 
 Milner, Taylor v. 88, 112, 117, 
 194 
 
 Mitchell, Milligan v. 49 
 
 Mitton, Cresset v. 125 
 
 Montriou, Sparke v. 297 
 
 Moore, Micklethwaite v. 274 
 
 Morgan, Ilylton v. 249, 268, 273 
 
 Morgell, Roche v. 22, 51, 186 
 
 MulhoUand v. Hendrick, 285 
 
 Murray v. Waltere, 247 
 
 Mytton V. Brazier, 314 
 
 NEATE, Latimerv. 89, 227, 231, 
 
 288, 352 
 Neate v. Latimer, 287 
 Neline v. Newton, 81 
 Newman v. Godfrey, 112 
 Newall, Brown v. 294 
 Newman v. Wall is, 110 
 Newton v. Beresford, 82 
 Newton, Neline v. 81 
 Neville, Burton v. 271, 274, 299 
 Nias V. The Northern and Eastern 
 
 Railway Company, 82, 225 
 Nicholson, Burrell v. 244 
 Noble, Baniet v. 209 
 Northern and Eastern Railway 
 
 Company, The, Nias v. 82, 
 
 225 
 Northumberland, The Duke of, 
 
 Smith i\ 210 
 Norwich, The Corporation of, The 
 
 Attorney-General v. 109 
 Nugent, Lord, Stewart v. 65, 163 
 Nunn, Penfold v. 49 
 
 OSBALDISTON, Ewing v. 84 
 Osbaldiston, Gait v. 38 
 Ovey V. Leighton, 82 
 
 PACEY, Vent V. 82 
 Parkers. Whitby, 311 
 Parker v. Legh, 288, 293 
 Parkhurst v. Low ten, 81, 82 
 Parsons i\ Robertson, 209 
 Passingham, Lloyd v. 81 
 Paxton V. Dougks, 81, 83, 192 
 Penfold V. Nunn, 49 
 Pennington v. Beechey, 140 
 Penswick, Gerard v. 165 
 Perkins, Crowley v. 248, 230 
 Periam, Clarke v. 133, 234
 
 TABLE OF CASES. 
 
 XXXV 
 
 Perry, Sidney v. 184 
 Phelips V. Caney, 112 
 Phepoe, Blacker i\ 285 
 Pickering v. Rigby, 49 
 Pigott V. Stace, 184 
 Pilkington v. Ilimsworth, 229, 
 
 2.51, 284 
 Pistor, Wiley v. 149 
 Plumptre, Wright v. 13G 
 Plunkett V. Cavendish, 75 
 Portarlington, The Earl of, r. 
 
 Soulby, 82 
 Portland, The Duke of, Wallis r. 
 
 3,37 
 Powell, Jones v. 165 
 Preston v. Carr, 82 
 Prichard, Baker v. 184 
 Prior, Gunn v. 103, 110 
 Pry or, Kemp v. 109 
 Purcell V. Macnaniara 20!) 
 Purefoy, Jones v. 2G5 
 
 RANDAL V. Head, 104 
 Rawlins, Deshorough v. 82, 240 
 Reed, Fenwick, v. 82 
 Regent's Canal Company, The, 
 
 Agarr. 1G4, 193 
 Reyny, Darnell t\ 184 
 Richards, Evans r. 203, 301 
 Richardson, Bullock r. 53, 81, 
 
 124 
 Rigby, Pickering v. 49 
 Robertson v. Lubbock, 41 
 Robertson, Parsons v. 209 
 Roche V. Morgell, 22, 51, 186 
 Rogers, Lambert v. 246 
 Rowe V. Teed, 81 , 93, 97, 1 09, 1 1 3, 
 
 116 
 Ryves v. Ryves, 125 
 Ryves, Ryves c. 126 
 
 SADGROVE, James v. 31, 150 
 
 Salisbury, The Earl of, v. Cecil, 
 244 
 
 Salkeld v. Science, 137, 153 
 
 Sampson v. Swettenham, 276 
 
 Sanders, Jerrard v. 58, 174, 186, 
 217 
 
 Saunders v. King, 57, 62, 139, 142 
 
 Saxton V. Davis, 1 70 
 
 Scarborough, The Earl of, Sut- 
 ton V. 22 
 
 Science, Salkeld v. 137, 153 
 
 Scott, Garland v. 82 
 
 Scott V. Macintosh, 22 
 
 Scott, Mant v. 81, 192 
 
 Seeley v. Boehm, 198 
 
 Selby V. Selby, 112 
 
 Selby, Selby w. 112 
 
 Shaftonbury v. Arrowsmith, 3, 
 133, 159, 239, 268, 272, 281, 
 314 
 
 Shaw V. Ching, 105, 109, 114 
 
 Shaw, Ex pai-te, 210 
 
 Shaw V. Shaw, 161, 159 
 
 Shaw, Shaw v. 161, 159 
 
 Shepi)ard, Taylor v. 255 
 
 Sibbald, Baillie v. 38 
 
 Sibbald, Marsh i\ 202, 301 
 
 Sidney v. Perry, 184 
 
 Sidney v. Sidney, 285 
 
 Sidney, Sidney v. 285 
 
 Simpson, Lingen v. 161 
 
 Slaney v. Wade, 24, 57 
 
 Small V. Attwood, 168 
 
 Smith r. The Duke of Northum- 
 berland, 210 
 
 Solarte, Janson v. 169 
 
 Somerville v. Mackay, 53, 107, 
 109, 201 
 
 Soulby, The Earl of Portarlington 
 », 82 
 
 Southcote, Harrison v. 80, 193 
 c2
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Spain, Tlio King of", r. HuUet, 
 
 42 
 Sparke v. Montriou, 297 
 Stace, Pigott v. 184 
 Stansl)uiy v. Arkwright, 131 
 Stavoland, Lord Uxbridge v. 81 
 Stewart v. Lord Donegal, 112, 
 
 11.3 
 Stewart v. Lord Nugent, 5o, 1G3 
 Stone V. Yea, 15G 
 Storey v. Lord Geo. Lennox, 82, 
 
 208, 210, 216, 237, 288 
 Strickland, Wood v. .57 
 Stroud r. Deacon, 13.3, 197, 270 
 Stuart, Faulder o. 109, 197 
 Suffolk, The Earl of, v. Howard, 
 
 20(5, 2G8 
 Sussman, Albretclit v. 41 
 Sutton V. The Earl of Scarborough, 
 
 22 
 Sweet V. Young, 10(5 
 Swettenliam, Samijson r. 27(! 
 Symes, Balcli r. 22.5 
 
 TARLTON r. Hornby, 1.5G 
 Taylor, llindman v. (i, 22, 32, 48, 
 
 ' 69, 123 
 Taylor v. Milnor, 88, 112, 117, 
 
 194 
 Taylor v. Sheppard, 2.55 
 Teed, Rowe i\ 81, 9.3, 97, 109, 
 
 11.3, 115 
 Thompson, Chambers v. 83 
 Thoni])son, Irving v. 164 
 Thornton, Brown v. 248, 252 
 Thorpe v. Macauley, 80, 83 
 Tooth V. The Dean & Chapter of 
 
 Canterbury, 282, 288 
 Tomlinson i'. Ljnner, 278 
 Tring r. Edgar, 58, 65, 138, 143, 
 
 150 
 
 Trinity House, Tiie Corporation 
 
 of 'I'hc, V. Bvirge, 84 
 Trotter, Wheeler v. 1.33, 234 
 Turton, Clarke v. 285 
 Turton, Macallum v. 80 
 Tyler v. Drayton, 209, 275 
 Tyrrell, Crow v. 62 
 
 UNSWORTH V. Woodcock, 201, 
 
 204 
 Uxbridge, Lord, v. Staveland, 81 
 
 VANSITTART v. Barber, 3 
 Vent r. Pacey, 82 
 
 WADE, Slaney v. 24, 57 
 Walburn v. Ingilby, 131, 145 
 Wales, The Princess of, v. The 
 
 Earl of Liverpool, 49, 129, 
 
 209, 252, 273 
 Wallis V. The Duke of Portland, 
 
 3,37 
 Wallis, Newman v. 110 
 Walters, Murray v. 247 
 Warrington, The Earl of, Hod- 
 
 son V. 269, 31.5, 327 
 Waterford, The Marquis of, 
 
 Knight V. 217, 243, 284 
 Waterloo Bridge Company, The, 
 
 Gibbons v. 81 
 Watkins, Cardale v. 123, l6l 
 Watkyns i?. Watky ns,l 3.3, 2.34, 285 
 Watkyns, Watkyns v. 133, 234, 
 
 285 
 Watson, Worsley v. 273, 329 
 Weaver, Green v. 84 
 Wetherell, Bcllwood v. 82, 284, 
 
 288, 293 
 Westcombe, Angell v. 156, 248
 
 TABLE OF CASES. 
 
 XXXVll 
 
 Westminster, The Dean and 
 Chapter of, Herbert v. 297, 
 300, 325 
 
 Wheeler v. Trotter, 133, 234 
 
 Whitbread v. Gumey, 82, 249 
 
 Whitby, Parkers. 311 
 
 White V. Williams, 198 
 
 White, Clapham ('. 241 
 
 Whitclock r. Baker, 2Go 
 
 Whorwood, Attorney-General v. 
 53, 124 
 
 Whyman i\ Legh, 183, 293 
 
 Wigzell, Francis v. 158, 168 
 
 Wilcock, Cork v. 18G 
 
 Wildnian, Beckford v. 225 
 
 Wiley V. Pistor, 49 
 
 Willan V. Willan, 2G5 
 
 Willan, Willan v. 265 
 Williams v. Farrington, 84 
 Williams, White v. 198 
 Willinck, Bentinck v. 120 
 Wilson V. Forster, 277, 299 
 Wood V. Strickland, 57 
 Woodcock, Unsworth v. 201, 204 
 Worsley v. Watson, 273, 329 
 Wright, Atkyns v. 201, 210, 270, 
 
 300, 309, 331 
 Wright V. Mayer, 82 
 Wright V. Plumptre, 136 
 
 YEA, Stone, v. 156 
 Yorke v. Fry, 62 
 Young, Sweet v. 106
 
 ERRATA. 
 
 In note (z), p. 74, /or " pi. 284," read " pi. 305—314." 
 Jn note {m), p. 176, for the cases cited in the note, read " Redes. 
 Plead."
 
 ADDENDA. 
 
 The following cases, of which some have been decided, and 
 others have come to the notice of the author since this work 
 went to press, deserve the jjarticular attention of the reader. 
 He is requested to add references to them at the places indicated 
 below. 
 
 In support of the author's observations upon Harland v. 
 Emerson — 
 at pi. 115-120, p. 71-77, refer to Clai/ton v. The Earl of 
 Winchilsea, 3 You. & Coll. 426 
 
 In support of the author's observations upon Thring v. Edgar—' 
 at pi. 219, p. 146, refer to Claf/ton v. TJic Earl of Win- 
 chilsea, 3 You. & Coll. 426 
 
 Privilege of professional communications — 
 
 at pi. 136, p. 82, refer to Greenlaw v. King, 1 Beav. 
 
 137, and Corjwration of Dartinmith v. Iloldsworth, 
 
 Appendix, infra 
 at pi. 137, p. 82, refer to Chreenlaw v. King, 1 Beav, 
 
 137 
 at pi. 327, p. 244, refer to same case 
 at pi. 331, p. 254, refer to same case and to Corporation 
 
 of Dartmouth v. Holdsicorth, appendix, infra
 
 Xl ADDENDA. 
 
 As to tlu- right of a j>liiiiitin' to call upon the defeiKlant, hefore 
 answering, to inspect documents left hy the 
 plaintiff with his clerk in Court — 
 at pi. 283, p. 197, refer to Sheppard v. Morris, 1 Bcav. 
 175 
 As to the right of the defendant to compel the plaintiff to pro- 
 duce a document in his possession stated in the' 
 Bill— 
 at pi. 418, ]). 841, refer to Sheppard v. Morris, supra 
 As to the general liability of a mortgagee to produce his se- 
 curities before payment of his demand — 
 at pi. 312, p. 227, refer to Brown v. Lochhart, Appen- 
 dix, infra 
 at pi. 374, p. 287, refer to same case 
 As to same point, where the mortgagee is plaintiff under a 
 decree for sale — 
 at pi. 312, p. 222, refer to Livescy v. Harding, 1 Beav. 
 
 343 
 at pi. 374, p. 287, refer to same case 
 In support of the author's observations upon the case of Latimer 
 V. Neate — 
 at pi. 312, p. 229, refer to Brown v. Lochhart, Appen- 
 dix, infra 
 at pi. 317, 318, p. 239, 240, refer to same case 
 As to the right of a plaintiff" to verify documents in the bill by 
 affidavit upon a motion for the j)roduction of docu- 
 ments in the answer — 
 at pi. 239, p. 208, refer to Addison v. Campbell, 1 
 Beav. 251
 
 POINTS, &c. 
 
 INTRODUCTORY OBSERVATIONS. 
 
 1. A LIMITED TREATISE On a subject of science is 
 rarely entitled to the confidence of the reader. The 
 language of such a treatise may mislead instead of in- 
 structing him, unless it is so adjusted, as not merely to 
 express and define a given proposition, but also to be 
 (at least) consistent with every proposition which a 
 treatise extending over the entire subject would in- 
 clude. A capacity for doing this supposes the writer 
 to have occupied a position from which he could com- 
 mand a \iew of the entire subject, although part only 
 be brought under that of his reader. The writer of 
 this limited treatise cannot however venture to hope 
 that such has been the position which he has occupied; 
 and he cannot too strongly caution his reader against 
 extending to absent points in the law of discovery 
 those observations which the writer has intended for 
 specific application only. AVith this caution the fol- 
 lowing pages may, it is hoped, be read — if not to 
 advantage — at least without prejudice.
 
 4 INTRODUCTORY OBSERVATIONS. 
 
 2. A bill in equity («) generally requires, and the 
 Court enforces, the answer of the defendant or party 
 complained of upon oath. An answer is thus required 
 and enforced, with a view to furnish an admission of 
 the case made by the bill, cither in aid of proof, or to 
 supply the want of it {b), and to avoid expense (c). 
 
 3. The discovery, which is thus required and en- 
 forced, is not confined to a discovery of facts resting 
 merely in the knowledge of the defendant, but ex- 
 tends, within certain limits, to deeds, papers, and 
 writings in his possession or power {d). 
 
 4. Such is the purpose and general scope of the 
 jurisdiction exercised by Courts of equity in compell- 
 ing discovery. 
 
 5. The exercise of a jurisdiction of this nature can- 
 not be otherwise than pregnant with danger to the in- 
 terests of those against whom it may be enforced, un- 
 less careful provision Avere made for guarding against 
 its abuse. Upon a motion for the production of 
 documents, in the case of Cock v. St. Bartholomew's 
 
 (a) The practice of the Court of Exchequer differs in some 
 few particulars from that in Chancery. It is to the rules of 
 the Court of Chancery that the following pages apply, except 
 where the difference of practice in the two Courts may be inci- 
 dentally noticed. See Hare, 298. 
 
 (6) Redes. Plead, 9. The fourth edition is referred to through- 
 out. 
 
 (c) Id. .306. Fi7ich v. Finch, 2 Ves. sen. 491. 
 
 (d) Common Practice ; Hare, 194, 195, citing Domat.
 
 INTRODUCTORY OBSERVATIONS. d 
 
 Hospital {e), Lord Eldon said: " The Newcastle case is 
 a good lesson upon this subject of production. They 
 produced their charters to satisfy curiosity ; some per- 
 sons got hold of them, and the consequence was, that 
 the corporation lost 7000/. a year." This observa- 
 tion applies to a specific case ; but the mischief at 
 which it points is not confined to cases in specie the 
 same with that which produced it. Similar conse- 
 quences may, in any case, ensue discovery — an observ- 
 ation which, without comment, proves the necessity of 
 placing mider strict regulation the jurisdiction exer- 
 cised by Courts of equity in compelling discovery (/). 
 
 6. The argument which thus arises out of the pos- 
 sibihty of mischief to an innocent party, from a dis- 
 covery improperly enforced — if carried to its extent — 
 would strike at the very foundation of the jurisdiction 
 itself. The argument, however, is not all on one side. 
 Suppose (to put an extreme case) a man wrongfully to 
 possess himself of another's estate, and also of all the 
 evidences of his title to it. No suggestion of possible 
 mischief to an innocent party would support the con- 
 clusion that a Court of equity, rather than exercise a 
 
 (c) 8 Vescy, 141. 
 
 (/) In Shafteshuiy v. Arrowsmith, 4 Ves. 71, Lord Thurlovv 
 says : " Permitting a general sweeping survey into all the deeds 
 of the family would be attended with verj/ great danger and 
 mischief ; and where the person claims as heir of the body, it 
 has been very properly stated, that it may shew a title in another 
 person, if the hitail is not well barred." And see r$ Ves. jun. .501, 
 in Wallis v. The Duke of Portland: Vansittart v. Barber, 9 
 Price, 641 ; Hare, 185, 18(5. 
 
 B 2
 
 4 INTRODUCTORY OBSERVATIONS. 
 
 jurisdiction attended witli such risk, should permit the 
 wrong-doer to T\-ithhokl from the injured party his 
 estate — by withholding the only means of trying his 
 title to it. 
 
 7. Nor is the possibility of mischief of the nature 
 suggested by Lord Eldon, in the case of Cock v. St. 
 Bartholomew's Hospital, the only evil to be appre- 
 hended from the compulsory disclosure of evidence 
 before the hearing of a cause. The danger of perjury, 
 as will hereafter be seen, is the foundation of a settled 
 rule of practice, b}^ m liich the right of a party to disco- 
 very is limited to the evidence necessary to sustain his 
 own case, to the exclusion of that by which the case of 
 his opponent exclusively may be sustained. 
 
 8. To lay down a system of rules, which, in the most 
 complete manner, shall produce the benefits and avoid 
 the mischiefs incident to the jurisdiction in question, 
 has been attempted by Courts of equity; and the object 
 of the following pages is to investigate and explain 
 some of the leading rules by which the exercise of that 
 jurisdiction is regulated in practice. 
 
 9. The limited object thus proposed will enable the 
 reader, in a great degree, to exclude from his attention 
 many important points which would enter largely into 
 a general and systematic treatise on the law of dis- 
 covery ; and it may be convenient here to notice some 
 of these excluded points, with a view to the more pre- 
 cise definition of the questions to which, in the follow-
 
 INTRODUCTORY OBSERVATIONS. O 
 
 ing pages, it is desired that the attention of the reader 
 should be confined. 
 
 10. Thus—" A bill of discovery (says Lord Hard- 
 wicke, sitting in Chancer}^) lies here in aid of some 
 proceedings in this Court, in order to deliver the party 
 from the necessity of procuring evidence, or to aid the 
 proceedings in some suit relative to a civil right in a 
 court of common law [g], as an action; but not to aid the 
 prosecution of an indictment or information, or to aid the 
 defence to it [h] ." The proposition here asserted, — 
 that Courts of equity compel discovery in aid of civil 
 rights only, is subject to very limited qualifications, 
 perhaps to none which may not be referred to waiver 
 or voluntary submission on the part of a defendant (i). 
 The point (however important in itself) may be dis- 
 regarded in the present inquiry, the object of which 
 is not precisely to define in all its parts the jurisdiction 
 exercised by Courts of equity in compelHug discovery, 
 but to examine the regulations under which discovery 
 is enforced, in cases falling within the ascertained and 
 admitted limits of that jurisdiction. 
 
 11. Again — Bills in equity are commonly divided 
 into two kinds, namely, bills of discovery, and bills for 
 
 (g) Of the Courts in aid of which discovery will be given, 
 Hare, 11 <J. 
 
 (h) 2 Vesey, sen. 307, in Lord Montague v. Dudman ; and see 
 ace. Redes. Plead. 180 ; Hare, 110; G!jju v. Hoitston, 1 Keen, 829, 
 Dec. 1830. 
 
 (i) Per Lord Eldon in Macaula^ v. Shackcll, 1 Bligh, N. S.. 
 126, et seq.
 
 6 INTRODUCTORY OBSERVATIONS. 
 
 relief [k). This division, however familiar in practice, 
 may without prejudice, — except with reference to two 
 cases noticed hereafter (/), — be also disregarded by the 
 reader. It suggests a distinction, which, so far as 
 principle is concerned, has no real existence. " Every 
 bill is in reality a bill of discovery {m) ;" and the only 
 difference between the two kinds of bill to which the 
 above division is applied, consists in this : — that in 
 the former, discovery alone is sought by the bill in aid 
 of some distinct proceeding for relief, at law or in 
 equity, by or against the plaintiff; — in the latter, the 
 discovery and relief are sought by one and the same 
 bill. The right of discovery, however, is, in both cases, 
 founded upon one and the same principle; and the dis- 
 tinction between bills of discovery and bills for relief 
 is, in this respect, merely artificial [n) . The accurate 
 mode of expressing this division would be : — bills for 
 discovery only ; and, bills for discovery and relief. 
 
 12. Further: — A class of cases noticed by Lord 
 Redesdale should be attentively considered and distin- 
 guished. " A defendant," says Lord Redesdale, " may 
 demur to one part of a bill, plead to another, answer 
 to another, and disclaim as to another. But all these 
 defences must clearly refer to separate and distinct 
 
 (^) Hare, 1,2; what constitutes a prayer for relief. Hare, 18. 
 
 (/) See the observations on Hindmany. Taylor, infra, pi. 67, 
 68, et seq. ; and upon Lowndes v. Davics, infra, pi. .377, 378, 
 et seq. 
 
 (»») Redes. Plead. 53, 
 
 (n) But see Lowndes v. Davies, infra, pi. 377.
 
 INTRODUCTORY OBSERVATIONS. 7 
 
 parts of the bill (o)." The class of cases here contem- 
 plated by Lord Redesdale may be thus illustrated. — 
 Suppose a bill to pray the conveyance of lands and an 
 account of by-gone rents and profits. Suppose fur- 
 ther, that, as to specific parts of the lands, the defend- 
 ant was a purchaser for value without notice of the 
 plaintiff^s title, and that, as to the residue of the lands, 
 he was aff'ected M-ith such notice. Here the defendant, 
 as to so much of the bill as sought to effect the former 
 part of the estate, might have a good defence ; as to 
 the residue, he might be without defence. Now, each 
 of these two parts of the biU relates to distinct parts of 
 the subject of the suit, and each is, obviously, capable 
 of complete separation from the other, and of being 
 treated as an integral suit. Either part might, indeed, 
 be the subject of a separate suit. The abandonment by 
 the plaintiff of one of these distinct and integral parts 
 of the cause, would not derange or interfere with the 
 effectual prosecution of the other. The division, of 
 wliich an equity cause may thus be susceptible, does 
 not appear to give rise to any observations which can 
 affect the present inquiry. For, where one part of a 
 cause is, in itself, so separate and distinct from all other 
 parts of the same cause, that the rights of the parties 
 as to such part are absolutely independent of and un- 
 connected with the others — though all be properly 
 included in one suit — the circumstance that they are 
 associated together on the same piece of paper, will 
 
 (o) 1 Redes. Plead. 106, 319.
 
 8 INTRODUCTORY OBSERVATIONS. 
 
 not affect that right to discovery as to any given part 
 to which the plaintiff would have been entitled, if it 
 had been actually placed on a separate record. And 
 the present inquiry may be simplified, by assuming, 
 for the purposes of observation and experiment, a case 
 which in its constitution is single, (as not admitting of 
 division in the sense above explained), and the observ- 
 ations which are applied to such assumed simple case 
 will be applicable to each integral part of any cause of 
 a more complex character. 
 
 13. This division of a suit into its integral parts 
 must carefully be distinguished from a process consi- 
 dered hereafter, namely, the analysis or resolution of 
 a suit, which in its constitution is single {j)) into its 
 component parts, — a process which is applicable as 
 much to each of the integral parts into which a suit 
 may be divisible, as to a suit which in its scope is 
 single, so as not to admit of a division of the nature 
 just referred to. Upon a correct understanding of this 
 analysis depend some of the most important points in 
 discovery. The rules of pleading indeed, so far as they 
 enable a defendant, by demurrer or plea, to protect 
 himself against discovery, mainly depend upon it. A 
 detailed examination of the point will be found here- 
 after [q) in the observations on the first proposition 
 which follow. 
 
 14. Other distinctions (which would form important 
 branches of a systematic treatise on the law of disco- 
 
 ip) Supra, pi. 12. (7) Infra, pi. 54, 55, 90.
 
 INTRODUCTORY OBSERVATIONS. 9 
 
 very) will be missed by the learned reader, in his perusal 
 of the following pages. His attention is directed to the 
 fact, in order that he may, once for all, be reminded, 
 that in the following pages he will find only what they 
 profess to contain — " Points in the law of discovery." 
 
 15. For the present, then, a case -will be assumed — 
 1, in which the jurisdiction of the Court over the 
 subject-matter of the suit does not admit of contro- 
 versy ; — 2, in which (except where it is otherwise ex- 
 pressly noticed) the distinction between a bill for dis- 
 covery only and a bill for discovery and relief does not 
 call for observation; — and 3, in which the scope of the 
 cause is single, in the sense in which the word "single" 
 has been explained in a former place (r). 
 
 16. Assuming, then, a simple case of the description 
 just noticed, some further observations may usefully be 
 made by way of introduction to the points about to be 
 investigated. 
 
 17. A right understanding of many, if not of the 
 majority of those points, requires that the attention of 
 the reader should constantly be ahve to a peculiarity 
 which (excluding a defence by demurrer or disclaimer) 
 for the most part distinguishes a defence in equity 
 from a defence at law. At law, a defendant has merely 
 to put upon the record the case upon which he relics ao 
 
 (r) Supra, pi. 12.'
 
 10 INTRODUCTORY OBSERVATIONS. 
 
 an answer (i. c. as his defence) to the plaintiff's claim 
 in the action ; and to this the record containing his 
 defence is confined. In equity, it is otherwise. In 
 equity, as at law, the defendant must not only put 
 upon the record the case which he relies upon as an 
 answer (i. e. as his defence) to the claim made against 
 him, but he is also obliged — in addition to and upon 
 the same record {s) with this defence — to give that dis- 
 covery to Avhich the common rule, already noticed (/), 
 entitles the plaintiff. The word answer, then, as ap- 
 plied to a defence in equity, is a complex term, — em- 
 bracing tw^o things essentially distinguishable from 
 each other: namely, 1. The defence, i. e. the defend- 
 ant's case ; and, 2. The examination of the defendant, 
 consisting of the discovery sought by the bill. Such are 
 the distinct parts of which an answer in equity may 
 be said, in general, to consist. But, in practice the 
 word " answer " is applied, almost indiscriminately, — to 
 the defence, — to the discovery or examination,— to the 
 record which comprises both, — and to that thing which 
 is technically called an answer in suhsidium (as distin- 
 guished from an answer in support) of a plea (m), and 
 
 (s) Hare, 223. — " In the Ecclesiastical Courts," saj^s Mr. 
 Hare, " where the defendant is required to make an answer or 
 discovery upon oath, the answer is wholly distinct from the re- 
 sponsive allegation which contains the defence." It is to be 
 regretted that this division is not made in equity proceedings. 
 The difficulty of finding out the issue in the present mode of 
 pleading is alone a sufficient reason for desiring it. 
 
 (t) Su])ra, pi. 2, 3. 
 
 (m) Infra, pi. 221 ; and see Hare, 30, S. T.
 
 INTRODUCTORY OBSERVATIONS. 11 
 
 whichj though admissible in pleading, is neither an 
 examination nor (properly speaking) a defence. To 
 the general and loose sense in which the word " an- 
 swer" is thus used, without due regard to the es- 
 sential distinctions just pointed out, may be traced 
 much unprofitable argument and much of the confu- 
 sion which appears to exist as to a plaintiff ^s right to 
 discovery. An answer, so far as it is a defence only, 
 and a plea in bar, as will hereafter be seen, stand upon 
 precisely the same footing as to a plaintiff ^s right to 
 discovery. Where the defence is hy plea, the plaintiff 
 is entitled to all such discovery (if any) as may be ne- 
 cessary to try the truth and validity of the defence 
 so made {x) ; and this right, so far as the matter of 
 the plea is concerned, is just as extensive [y) when the. 
 defence is made by plea, as when it is made by answer. 
 In fact, the only difference between the two modes of 
 defence, so far as the right to discovery is concerned, 
 will be found to consist in tliis — that, in the former, 
 (the defence by plea), the point made by the plea is 
 tried in the first instance, and the discovery therefore, in 
 the first instance, is confined to that point j whereas, if 
 
 (a:) As to the right of plaintiff to all such discovery as is 
 necessary for trial of plea, see Hare, 27, 28, 29. 
 
 (j/) Sir John Leach ruled in a case before him, that a defend- 
 ant who pleaded to a I)ill was not at liberty to answer facts in- 
 eompatifde with the truth of the plea, unless they were charged 
 in the bill (in terms) " as evidence." A condition like this, im- 
 posed by rule of Court, would not (if the rule were admitted) 
 limit the plaintirt's right as between him and the defendant. 
 But see this rule considered, infra, pi. 213, et seq.
 
 12 INTKODUCTORY OBSERVATIOiNS. 
 
 the matter of the pica be insisted upon by answer, other 
 points, in the cause, unconnected with the matter of the 
 plea, go to trial simultaneously with that matter, and 
 the discovery therefore is extended to those points also. 
 18. The distinction between that part of the record 
 called an answer which constitutes the defence, and 
 that pai't of it which contains the discovery required 
 by the bill, is of the essence of some of the most im- 
 portant rules in the law of discovery. To a neglect of 
 this distinction ma}'^ be traced the confusion in which 
 some important points in that law have become in- 
 volved. 
 
 19. Where a plaintiff seeks to obtain discovery to 
 which he has no right, or to obtain it by a form of pro- 
 ceeding not in accordance with the practice of the 
 Court, the defendant, as will hereafter be seen, may ob- 
 ject to give the discovery required, and demand the judg- 
 ment of the Court whether he should give it or not. 
 
 20. In addition to objections challenging the plain- 
 tiff's right of suit, or the regularity of the proceed- 
 ing by which he seeks to obtain discovery. Courts 
 of equity in many cases refuse to enforce particular 
 discovery upon objections founded in the nature of the 
 discovery sought, and in that alone ; — as where it would 
 subject the defendant to penalties, — where it is imma- 
 terial, — where it relates exclusively to the defendant's 
 case, — and upon other grounds which will be noticed 
 hereafter.
 
 INTRODUCTORY OBSERVATIONS. 13 
 
 21. As the appropriate mode of taking an objection 
 to discovery varies in many cases with the ground and 
 nature of the objection itself, it is of importance to dis- 
 tinguish between those objections to discovery which] / 
 challenge the plaintiff ^s right of suit, or the regu- 
 larity of the proceeding by which he seeks to obtain it, 
 and those objections to discovery which are grounded / 
 upon the nature of the particular discovery objected' 
 to [z) . It is one thing for a defendant to say, ' I will 
 not answer because you have no title to relief against 
 me at law or in equity, or because you seek it in a 
 manner not warranted by the practice of the Court,^ 
 and another to say, ' I am not bound to make this 
 discovery, even admitting your title were as you have 
 asserted, and your manner of seeking it to be free from 
 all objection.' The fourth and fifth propositions, stated 
 below, are founded upon the above distinction. The 
 fourth, relates to the appropriate mode of objecting to 
 discovery, where the objection is founded upon a denial 
 of the plaintiff's right of suit, or to the manner in 
 
 iz) Objections to discovery may conveniently be classed under 
 three heads: — 1st, Those which are grounded upon merits; — 2nd, 
 Those which refer to the form of proceeding ; — and, .3rd, Those 
 which are grounded upon the nature of the discovery objected to. 
 The first class is described in the following pages, as " objec- 
 tions founded upon a denial of the plaintiff's right of suit." 
 The second as " objections founded upon a denial of the plain- 
 tiff's right to proceed with his suit in its existing state." And 
 the expression " particular discovery " is used to denote the third 
 class of objections. See the " General conclusions" at the end 
 of this work.
 
 14 INTRODUCTORY OBSERVATIONS. 
 
 which he proceeds to obtain it ; and the fifth, relates to 
 the appropriate mode of objecting to discovery, wliere 
 the objection is founded exclusively upon the nature 
 of the discovery itself. 
 
 22. The above general observations being premised, 
 the subject of discovery appears conveniently to divide 
 itself under two heads of inquiry: namely, 1. An in- 
 quiry as to the discovery which a plaintiff may exact ; 
 and, 2. An inquiry into the means by which a defend- 
 ant may protect himself against discovery improperly 
 required. 
 
 23. The first of these heads of inquiry will be found, 
 for the most part, to be involved in what may be justly 
 described as the two cardinal rules in the law of disco- 
 very: namely — 1st, The right, as a general proposition, 
 of every plaintiff to a discovery of the evidences which 
 relate to his case; and, 2nd, The privilege of every 
 defendant to withhold a discovery of the evidences 
 which exclusively relate to his own. The second 
 head of inquiry is of a more technical character, and 
 involves in it two distinct questions : — 1st, The appro- 
 priate mode by which a defendant should object to dis- 
 covery to which the plaintiff may not be entitled; — 
 and, 2nd, The consequences to a defendant of his 
 neglecting the appropriate mode of taking the objec- 
 tion («) . 
 
 (a) See " General conclusions," at the end of this work.
 
 IXTRODUCTORY OBSERVATIONS. 15 
 
 24. The five following propositions will furnish con- 
 clusions sufficient to exhaust the above points of in- 
 quiry, together with the exceptions and qualifications 
 to which they are subject. 
 
 25. Proposition I. The pleadings in a cause and 
 rules of practice, unconnected with the laws of disco- 
 ver}', determine a priori what question or questions in 
 
 the cause shall first come on for trial. And the right a^^-.y^- 
 of a plaintiff to discovery is in all cases confined to the^ ^ 
 question or questions in the cause, which, according 
 to the pleadings and practice of the Courts, is or are 
 about to come on for trial. 
 
 26. Proposition II. It is the right, as a general ^i/ ^A2>-,$7f. 
 rule, of a plaintiff in equity to exact from the defendant 'y -Jo/ 
 
 a discovery upon oath as to all matters of fact which, 7 ' 
 being well pleaded in the bill, are material to the 
 plaintiff ^s case about to come on for trial, and which 
 the defendant does not by his form of pleading admit. 
 
 27. Proposition III. The right of a plaintiff in 
 equity to the benefit of 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 the " defendant's case" is to be 
 exclusively estabhshed, or to evidence which relates 
 exclusively to his case. 
 
 28. Proposition IV. Every objection to discovery 
 which is founded upon a denial of the plaintiff's right 
 of suit, or of his right to proceed with it in its existing
 
 IG INTRODUCTORY OBSERVATIONS. 
 
 state, should regularly be taken by demiu'rer or plea, 
 according to the circumstances of the case ; — and, 
 M'here the objection is not so taken, and the defendant 
 amwers the bill, he will, in general, be held to have 
 waived the objection, and mil be obliged to answer 
 the bill " throughout." 
 
 29. Proposition V. Every objection to discovery 
 which is not founded upon a denial of the plaintiff's 
 right of suit, or of his right to proceed with his suit in 
 its existing state, but depends exclusively upon the 
 nature of the discovery sought (6), may regularly be 
 taken by answer as well as by demurrer or plea. As 
 the mode of taking objections of this nature is thus 
 unfettered by rules of form, a defendant who has not 
 actually answered an interrogatory or interrogatories 
 to which the objection may apply, cannot, as a gene- 
 ral rule, be held to have waived it upon any merely 
 technical ground. 
 
 30. An examination of each of these propositions 
 will now be gone into. 
 
 {b) Supra, pi. 20, 21.
 
 17 
 
 FIRST PROPOSITION. 
 
 The pleadings in a came and rules of practice, un- 
 connected with the laws of discovery, determine a priori 
 what question or questions in the cause shall first come 
 on for trial. And the right of a plaintiff to discovery 
 is in all cases confined to the question or questions 
 in the cause, which, according to the pleadings and 
 practice of the Courts, is or are about to come on for 
 trial. 
 
 31. The language of this proposition is open to cri- 
 ticism. It, apparently, assumes that a cause must 
 involve more questions than one, and that the several 
 questions in a cause maj^ not come on for trial simul- 
 taneously. Neither of these assumptions would be 
 correct. A cause may involve one question only; and 
 where the questions are several, they may all come on 
 for trial simultaneously, although upon such trial they 
 must of necessity be considered by the com't in suc- 
 cession. Cases of this simple kind, however, require 
 no observations wliich arc not included in the in- 
 vestigation of more complex cases, and it has, tliere- 
 forc, been thought more convenient to leave the first 
 proposition open to the criticism which has been 
 pointed at, than, for the sake of mere verbal accuracy, 
 
 c
 
 18 FIKST PROPOSITION. 
 
 to entangle it with qujilifications, which would not 
 tend to elucidate the subject to which the proposition 
 applies. 
 
 32. To proceed^ then, to explain the proposition : — 
 Lord lledesdale in his Pleadings («) has given the fol- 
 lowing summary of objections which may be taken to 
 a bill in Equity: — 
 
 " From what has been observed in a preceding page, 
 it may be collected that the principal grounds of ob- 
 jection to the relief sought by an original Bill" (which 
 can appear on the bill itself, and may therefore be 
 taken advantage of by demurrer) " are these : I. That 
 the subject of the suit is not within the jurisdiction 
 of a Court of equity; II. That some other Court of 
 equity has the proper jurisdiction; III. That the 
 plaintiff is not entitled to sue by reason of some per- 
 sonal disability; IV. That he has no interest in the 
 subject, or no title to institute a suit concerning it; 
 V. That he has no right to call on the defendant con- 
 cerning the subject of the suit; VI. That the defend- 
 ant has not the interest in the subject which can make 
 him liable to the claims of the plaintiff ; VII. That, 
 for some reason founded on the substance of the case, 
 the plaintiff is not entitled to the relief he prays. To 
 these may be added: VIII. The deficiency of the bill 
 to answer the purposes of complete justice; and 
 IX. The impropriety of confounding distinct subjects 
 
 (rt) Redes. Plead, p. 110, Demurrers.
 
 FIRST PROPOSITION. 19 
 
 in the same bill, or of unnecessarily multiplying suits. 
 When the discovery sought by a bill can only be assis- 
 tant to the relief prayed, a ground of demurrer to the 
 rehef will also extend to the discovery; but if the dis- 
 covery may have a further purpose, the plaintiff may 
 be entitled to it, though he has no title to relief. In 
 considering, therefore, these several grounds of demur- 
 rer to relief, such as may and such as cannot extend 
 to discovery likewise, will be distinguished." And 
 in a later page he adds : " It remains, therefore, to 
 consider the objections to a bill which are causes of 
 demurrer to discovery only. These are, I. That the 
 case made by the bill is not such in Avhich a Court of 
 equity assumes a jurisdiction to compel a discovery. 
 II. That the plaintiff has no interest in the subject, or 
 no interest which entitles him to call on the defendant 
 for a discovery. III. That the defendant has no in- 
 terest in the subject, to entitle the plaintiff to institute 
 a suit against him even for the purpose of discovery. 
 IV. Although both plaintiff and defendant may have 
 an interest in the subject, yet that there is not that 
 privity of title between them which gives the plaintiff' 
 a right to the discovery required by his biU. "\^ That 
 the discovery, if obtained, cannot be material; and, 
 VI. That the situation of the defendant renders it 
 improper for a Coui-t of equity to compel a discovery." 
 
 33. Lord Redesdale's treatise contains correspond- 
 ing passages applicable to Pleas. 
 
 34. The objections to discovery suggested by Lord 
 Redcsdale arc of two distinct classes, namely; — 
 
 *
 
 20 riUST PROPOSITION. 
 
 I. Those wliicli deny tlie plaintiff's right of suit. 
 
 II. Those which deuy his right to proceed with it in 
 its existing state. These objections do not include: — 
 
 III. Objections to particiUar discovery founded only 
 on the nature of the discovery sought (Z»). 
 
 35. The observations which follow under this first 
 proposition are confined, and apply exclusively to the 
 two first classes of the objections (c). 
 
 3G. The grounds upon which a defendant may object 
 to give discovery having been determined, convenience, 
 as well as justice, require that where a suit is open, or 
 supposed to be open, to any valid objection to discovery, 
 the defendant should have the means of demanding the 
 judgment of the Court upon it, before he is compelled 
 to give discover}^ to which, if the objection be valid, 
 the plaintiff will have no title. And, accordingly, the 
 ordinary rules of Courts of equity provide the defend- 
 ant with these means. 
 
 37. If the bill be defective or informal, (which are 
 the eighth and ninth points suggested by Lord Redes- 
 dale), and the objection be apparent on the face of the 
 bUl, the defendant may demur. And where a bill is 
 met by this species of defence, the defendant, by the 
 
 {b) Supra, pi. 20, 21 . 
 
 (c) Propositi(jns IV. & V., infra, assert that the objections fall- 
 ing within the two first classes should regularly be taken by 
 demurrer or plea, but that objections of the third class may 
 regularly be taken by answer.
 
 FIRST PROPOSITION. 21 
 
 practice of the Court, is entitled to have the question 
 raised by the demurrer tried in the first instance, before 
 he can be called upon to go into his defence, or give 
 discovery, the right to ■which, this objection, if valid, 
 would render unnecessary or improper. 
 
 38. If the demuiTcr is allowed, that is a decision of 
 the Court that the suit ought not to proceed in its 
 existing state, and regularly the bill is out of Court by 
 the allowance of the demurrer. 
 
 39. If the demuiTer be overruled, nothing is thereby 
 finally decided between the parties, but the defendant 
 is obliged to resort to other modes of defence. 
 
 40. If the biU be not defective or informal, or if the 
 defendant should not be advised to demur to the bill 
 upon either of those grounds, but the bill should, upon 
 the face of it, be open to any other of the objections 
 specified by Lord Redesdale, the defendant may demur, 
 and may assign special grounds for his demurrer, or 
 he may demur generally, and reserve his grounds of 
 demurrer for the argument. In this, as iu the former 
 case, the defendant is entitled to have the judgment of 
 the Court in the first instance, upon the question or 
 questions raised by the demurrer, before the plaintiff 
 can require him to go into any other defence, or give 
 discovery, which the objection raised b}^ the demurrer, 
 if valid, would render unnecessary or improper (cQ. 
 
 {d) It may be stated generally, that a demurrer may extend to 
 all matters in thcliill, the admission of which is compatible with 
 that mode of defence. Redes. Plead. 18.% 18-4: Hare 8. But
 
 22 lailST FllOPOSITION. 
 
 41. If tlic demurrer is allowed, the bill is regularly 
 out of Coiu-t, as in the example first stated. 
 
 42. In this case also, if the demurrer is overruled, 
 nothing is thereby finally decided between the pai'ties, 
 but the defendant is merely throAvn upon liis defence 
 to the suit under some other form of pleading. 
 
 43. If the bill be open to any of the objections stated 
 by Lord Redesdale, but the objection be not apparent 
 upon the face of the bill, the defendant may plead 
 the matter necessary to bring the objection under the 
 view of the Court [e). In this mode of defence also 
 the defendant is entitled to have the plea adjudicated 
 upon in the^r^^ instance (/). A plea, however, differs 
 from a demurrer in many important points connected 
 with the subject under discussion. A demurrer may 
 rest upon several distinct grounds. A plea, regularly, 
 must be confined to one. A demurrer will be disposed 
 of upon one trial, — a plea may require more. A plea, 
 
 a demurrer must not extend to facts, the admission of which is 
 incompatible with the defence. Scott v. Macintosh, 1 Ves. & B. 
 50.S ; Ilodle v. Hcalej/, 1 Vcs. cS: B. 530 ; Crow v. Tyrrcl, 2 Madd. 
 807. This, it may be observed, is a point in the science of 
 pleading rather than in the law of discovery. As to the same 
 point in the case of a plea, see Sutton v. The Earl of Scarborough, 
 I) Ves. 71. 
 
 {c) A plea (in effect) suggests, that the plaintiff has omitted 
 to state in his bill a fact, which, if stated there, would have 
 rendered the bill demurrable. Q,u. Hook v. Dorman, 1 Sim. & 
 Stu. 227. A plea is merely a special answer. Roche v. Morgell, 2 
 Sch. & Lcf. 72.5. 
 
 (/) But see the argument u])un Ilinchnan v. Taylor, infra, 
 pi. fiR, ct seq.
 
 FIRST PROPOSITION, 23 
 
 in order that it may be effectual, must be, 1. good in 
 form; 2. good in substance ; 3. true in fact. The two 
 first of these points are questions of law, and for the 
 purpose of trjang these, the plea must be set down /or 
 arymnent. If, upon argument, the plea is overruled, 
 nothing is thereby finally decided between the parties, 
 but the defendant, as in the case of a demurrer, is 
 thrown upon his defence under some other form of 
 pleading. If the plea, upon argument, is held good in 
 form and substance, the plaintifi" may afterwards take 
 issue upon the truth of the plea. In this case, the 
 cause will go to a hearing, which is a second trial of 
 the defence by plea, but upon a new ground, and the 
 cause will finally be disposed of at that hearing. 
 
 44. If the defendant should not be advised to defend 
 the suit by demurrer or plea, or if his attempt to de- 
 fend himself by either of these forms of pleading should 
 fail upon argument, the defendant must in general 
 answer the bill. Under this form of pleading, every 
 ground of defence in the suit which might have been 
 taken by demurrer or plea m^y, where the relief is 
 in equity, be again insisted on. And that whether 
 the same points have been unsuccessfully taken by 
 demurrer or plea or not, and, at the hearing of the 
 cause, all{g) the grounds of defence will be open to 
 
 {g) This great advantage of a defence by answer over a defence 
 by plea in l)ar, i^ not sufficiently attended to in practice. By an 
 answer, a defendant niay luive the benefit of every possible ground 
 of defence. A ])lea in bar rests the defence upon the single ground 
 which the j)lea raises. It will often excuse the plaintiff from
 
 24 
 
 FIRST PROPOSITION. 
 
 the defendant, — they will come on for trial simulta- 
 neously, — and (subject to such inquiries as the Court 
 may judge necessary to a full investigation of the 
 right of the parties) will be finally decided. AVhere 
 the relief is at law, the proceedings in equity will not 
 of course affect any case which the defendant in equity 
 may have at law. 
 
 45. If the defendant has no interest in the suit, and 
 the plaintiff docs not seek to charge him, he may dis- 
 claim. In this case no trial is necessary. 
 
 46. Such, then, by way of example only, are the 
 rules of practice which, according to the pleadings, de- 
 termine the order in which the questions in a cause 
 shall come on for trial. This is the first branch 
 of the proposition now under examination. 
 
 proving his own title, and be a waiver of many grounds of defence 
 which an answer might have made available. Tlie late case of 
 Slaney v. Wade, 1 Myl. & Cr. 338, is a strong instance of this. 
 Again, " If a pnrchaser for valuable consideration, clear of all 
 charges of fraud or notice, can offer additional circiimstances in 
 his favour which he cannot set forth by way of plea or of answer 
 to support a plea, as the expending a considerable sum of money 
 in improvements with the knowledge of the plaintiff, it may be 
 more prudent to set out the whole by way of answer, than to 
 rely on the single defence by way of plea, unless it is material to 
 prevent disclosure of any circumstance attending his title." 
 Redes. Plead. 309. A pica should never be resorted to where 
 a defendant has a defence in addition to that raised by the plea, 
 unless his interest in withholding the discovery which his plea 
 ma^^ cover, be at least equal to his interest in defending the suit 
 successfully. See infra i>l. 08. Bai/lej/ v. Adams, 6 Ves. .594.
 
 FIRST PROPOSITION. 25 
 
 47. The second branch of tlie proposition asserts, 
 that the plaintiff's right to discovery will in all cases 
 he confined to the exigencies of the question or ques- 
 tions in the cause which, under the first branch, may 
 be about to be tried. Upon this point little room for 
 controversy can, it is conceived, exist. 
 
 48. The object of a Coiu't of equity in compelhng 
 discovery, is, to enable itself or some other Coui-t to 
 decide on matters in dispute between the parties {h), 
 and the right to discovery is limited by the purpose 
 with reference to which alone it is conferred, and will 
 not, for that reason, extend beyond the exigencies of 
 the question or questions about to be tried. To deter- 
 mine what such question or questions may be, the ordi- 
 nary rules of practice (unconnected with the laws of 
 discovery) must be separately consulted. By these 
 rules, if the defence be so framed as to raise an issue in 
 law only, as by demurrer, the plaintiff will not be en- 
 titled to any discovery. The very principle upon which 
 a demurrer is founded excludes it. For, when a cause 
 is so defended, the question first to be tried is that 
 which the demuiTcr raises ; and as this mode of defence 
 admits the plaintiff's statement of his case (i), he gets 
 by that admission, for the purposes of the demurrer, all 
 the discovery which is necessary for the trial about to 
 
 (/i) Redes. Plead. 101, S. P. infra ; Commentary on the word 
 " material," pi. 224, et seq. 
 (0 Redes. Plead. 211, 212.
 
 26 FIKIST PROPOSITION. 
 
 take i)liK;c, :in(l no actual discovery will, therefore, be 
 required. If an issue or issues of fact be raised l)y the 
 defence, (as by plea), the point to which the attention of 
 the pleader will then be directed must be — what question 
 or questions in tlie cause Avill first come on for trial? 
 for, to such question or questions alone will the object 
 of the Court in compelling discovery apply. Now (by 
 the rules of practice before referred to) the effect of 
 a plea in bar (for example) is to reduce the whole cause 
 to the trial of a single (juestion — that raised by the 
 plea (J). This question the defendant who pleads has 
 a right to have tried by itself singly, and in the first 
 instance, suspending, until this shall have been tried, 
 all questions in the cause which are unconnected with 
 it, whether principal or subordinate. Now a plea, 
 for the purposes of the argument, admits all the state- 
 ments in the bill, which are well pleaded, to be true, 
 and the plaintiflF gets by that admission, for the pur- 
 poses of the argument of the plea, all the discovery 
 which the argument requires. Where the defence 
 therefore is made by plea, the plaintiff wdll not be en- 
 titled to any discovery which may not be necessary for 
 the trial of the plea itself. Where the defence is by 
 answer, the rules of equity (as a general proposition) 
 put the parties in a different position. By these rules, 
 a defendant who defends by answer, carries all the 
 questions in the cause to trial simultaneously. No 
 
 ( j ) Redes. Plead. 219.
 
 FIRST PROPOSITION, 27 
 
 implied admission is made by this form of defence, 
 and there is nothing, therefore, in the first proposition 
 by which the plaintiff ^s right to discovery as to any 
 part of the bill is excluded. 
 
 49. To illustrate the above by cases of common oc- 
 currence, suppose a plaintiff by his bill to claim an 
 estate, and the defendant to insist specially by demur- 
 rer, that the plaintiff was not entitled to sue by reason 
 of some personal disabiUty, which is one of the grounds 
 of defence put by Lord Uedesdale. The question 
 raised by this mode of defence would be the question 
 to be first tried under the rules of practice before 
 referred to, and as no discovery upon any other point 
 could assist that trial, the plaintiff's right (if any) to 
 discovery upon other points would be suspended until 
 the question raised by the demurrer was decided. 
 
 50. So, of a plea, mutatis mutandis, unless the bill 
 were so framed as to render some answer necessary for 
 the trial of the plea itself; and, in that case, the right 
 of discovery Avould be confined to the exigencies of 
 that particular point. 
 
 51. Again, suppose the plaintiff to claim an estate, 
 and to pray the consequential account of rents and 
 profits, and suppose his title to the estate to be disputed 
 by the defendant by demiirrer or plea. The plaintiff's 
 title to the estate would, in such a case, necessarily be 
 the first (^) question for investigation, and his right 
 
 {I) The questions in a cause, it will be ohservcd, may all
 
 28 FIRST PROPOSITION. 
 
 to discovery relevant 07ihj to that account, would l)e 
 subordinate to or dependent upon the result of tliut 
 inquiry. So (for example) in a bill suggesting a part- 
 nership and praying an account, the fact of partner- 
 ship or no partnership, if controverted by demurrer or 
 plea, would be the first question to be decided, and 
 discovery relevant to the account only would follow or 
 not, according to the resnlt of the decision upon the 
 principal point. So, in any bill for an account, if met 
 by a suggestion of a stated account, or of a release of 
 the demand in question ; the effect or the fact of the 
 stated account or release, if raised by demurrer or 
 plea, Avould be the first question to be tried, and disco- 
 very relevant to the account only would await the 
 result of such trial. 
 
 52. Other cases might be put, to which similar ob- 
 servations would apply ; and as, in all these cases, in 
 which the plaintiff's title is supposed to be disputed, 
 discovery applicable to the account alone would be 
 irrelevant to the question of title to that account, the 
 plaintiff 's right to discovery, for the purposes of the 
 account, would be suspended until after the trial of 
 the question raised by the demurrer or plea. 
 
 53. In cases like those suggested in the two pre- 
 ceding paragraphs, where discovery is sought as to 
 
 come on for trial simultaneouisly, though adjudicated upon (as 
 they must bo) in succession.
 
 FIRST PROPOSITION. 29 
 
 matters of account, the discovery involves for the most 
 part a production of documents and papers, and the 
 disclosure and setting forth of accounts, which, unless 
 the plaintiff has a right of suit to some extent, is in 
 the highest degree inconvenient and objectionable. 
 
 54. The question whether a plaintiff has a right of 
 suit, or a right to proceed with his suit in its existing 
 state, is obviously unconnected with that of the amount 
 or extent of his demand. His right to discovery, for the 
 purpose of determining the right in both cases, may 
 well be conceded by a defendant, who may, at the 
 same time, insist, that until the plaintiff's right to relief 
 is established in a suit properly framed, he ought not 
 to be compelled to give discovery, the right to which is 
 plainly subordinate to, or dependent upon, the decision 
 of that previous question, as its principal (1). 
 
 55. As reference must often be had to this distinction, 
 it may be convenient in future to adopt the term prin- 
 cipal to describe points in a cause, which, if established, 
 would exclude the plaintiff's right of suit altogether, or 
 his right to proceed with his suit in its existing state; — 
 and to apply the term subordinate, or dependent, to 
 those points in the cause wliich do not necessarily call 
 
 (I) The reader will bear in mind, according to an observation 
 in a former place, that, whether the relief sought by the plaintiff 
 is sought by the same Inll in wliich the discovery is sought, or 
 in some other proceeding, the reasoning upon this part of the 
 subject will be the same.
 
 30 IIUST I'KOPOSITION. 
 
 for adjudication until such i)riiu-ipiil (jucstion or (ques- 
 tions as may arise shall first have been decided (m). 
 
 56. The result of the preceding observations may be 
 thus stated: — 
 
 57. If a defendant demurs, tlie demurrer will arrest 
 the progress of the cause until the point or points 
 raised by tlie demurrer shall have been tried. And as 
 a plaintiff cannot want discovery for the purposes of a 
 trial in which his own statement of his case is ad- 
 mitted, he will not be entitled to discovery before such 
 trial. 
 
 58. If the defence be by plea, the plea, in like 
 manner, will arrest the progress of the cause until the 
 plea shall have been argued ; and if the biU be not 
 so framed as to make discovery necessary for the trial 
 of the plea itself (w), the case will fall within the same 
 reasoning, and be in the same predicament, as that of 
 a demurrer. 
 
 59. If the defence be by plea, but the biU be so 
 framed as to make discovery necessary for the trial of 
 the plea, — here, also, the plea will arrest the progress 
 of the cause until the plea shall have been tried (o) ; but 
 the first proposition does not determine that such dis- 
 
 (hj) See, as to principal point, Jacobs v. Goodman, 2 Cox, 282, 
 and 8 Brown, C. C. 488, n. 
 
 {u) See observations upon this infra, pi. 90, 1)8. 
 (o) Vide pi. 00, 98.
 
 FIRST PROPOSITION. 31 
 
 covery as may be necessary to try the plea itself shall 
 not be given. The plaintiflF's right to such discovery 
 will be considered presently. 
 
 60. If the defence be by answer, the progress of 
 the cause to a hearing will not be suspended by the 
 form of the defence^ and there is nothing in the first 
 proposition by which the plaintiff's right to discovery 
 is excluded from any point in the cause. 
 
 61. The observations which have been made explain 
 the meaning and limits of the common rule, that a 
 demurrer or plea to relief covers the discovery also. 
 Each of these modes of defence, if well pleaded, covers 
 all discovery which is unnecessary to the trial of the 
 point raised by the defendant's pleadings (p) . 
 
 62. Although a defendant may by demurrer protect 
 himself against discovery, it is now settled by author- 
 ity (§'), though formerly held otherwise if), that a defend- 
 ant against whom relief is sought in equity may demur 
 to the relief, and give the discovery sought by the bill. 
 
 63. The same observation applies also to a plea(*). 
 
 64. In the case oi James v. Sadgrove{t), which came 
 before the Court upon a plea, Sir John Leach decided 
 
 {p) Supra pi. 40, note. 
 
 i^q) Redes. Plead. 108, 183; Ilodgkin v. Longden, 8 Ves. 2; 
 Todd V. Gee, 17 Ves. 273; Hare, 8. 
 (r) Redes. Plead. 183. 
 (s) Redes. Plead. 281. 
 {t) James v. Sadgrove, 1 Sim. ik. Stu. 4.
 
 35J FIRST PIVOrOSITION. 
 
 that a defcndaut who miyht by plea have covered all 
 the discovery required by the bill, but elected to give 
 part of it, was bound to give the whole. The same 
 reasoning would necessarily apply to a demurrer. The 
 author, however, presumes to think the decision in 
 James v. Sadgrove questionable. The question depends 
 upon the proper meaning of the technical expression, 
 " Discovery covered by a demurrer or plea," — a point 
 upon which some observations will be found in a later 
 page(M). 
 
 65. To the generality of some of the preceding ob- 
 servations a caution upon one or two points must be 
 opposed. 
 
 66. And, — First, — a question (already adverted to) 
 has long existed, whether the defendant to a bill seek- 
 ing discovery only, in aid of an action at law, can plead 
 in bar to the discovery, that which is merely matter of 
 legal defence to the action at law. This question is 
 founded upon the high authority of Lord Thurlow's 
 opinion, judicially expressed in the case of Hindman 
 V. Taylor. 
 
 67 The case of Hindman v. Taylor {x), the facts of 
 which are very loosely stated in Brown, appears to 
 have been this. The plaintiff had agreed to resign to 
 the defendant, and get him appointed to the command 
 
 (?/) Infra, pi. 219. 
 
 {x) Hindman v. Taylor, 2 Bro. C. C. 7.
 
 FIRST PROPOSITION. 33 
 
 of an East India ship. The defendant was appointed, 
 and made a voyage. After this, a second agreement in ti^s^ s^ f^ 
 writing, by which the first agreement was superseded, ^"^^"-^ ^ ^5^^ 
 was come to between the parties, and signed by both. 
 This second agreement was deposited in the hands of 
 Wildman, and, when in his hands, was cancelled under 
 circumstances which the defendant rehed upon as 
 being equivalent to or a full release in law of the agree- 
 ment. The plaintiff afterwards brought his action 
 upon the second agreement, insisting that it Avas still 
 a subsisting agreement, and filed a bill of discovery in 
 support of liis action. To this bill the defendant 
 ])leaded the cancellation of the agreement and the cir- 
 cumstances attending such cancellation, and relied 
 upon this transaction as a bar to the plaintiff's de- 
 mand at law. Lord Thui-low overruled the plea, upon 
 the ground that a legal l)ar to an action cannot be 
 pleaded in equity in bar to a discovery sought in sup- 
 port of the action at law. The judgment of Lord 
 Thurlow is as follows: — " As a plea this cannot stand. 
 A plea in bar to the action is riot a plea in bar to the 
 discovery. The matters pleaded arc all special objec- 
 tions, not a general plea to the discoveiy. If you can 
 plead that which is a bar to the action, and have it 
 tried as a bar to the discovery, the whole is ^n-ong. The 
 more I think of it, the more I am convinced it cannot 
 be set up as a bar to the discovery. The reason for 
 permitting a plea in bar to the relief is, to prevent the 
 going into the whole cause by that, which, if it stood 
 per se, would put an end to it ; but, where the bill is
 
 34 FIllST PROPOSITION. 
 
 for discovery, the cause ends with the answer (.r). Then 
 the whole remedy being npou the face of the transac- 
 tion at law, the question is, whether you shall, by 
 the plea, bring the whole merits on here. I strip the 
 case of this matter of answering improper questions, 
 because that is to be judged of in a diftcrent manner. 
 I take it upon the general prayer. If he had prayed 
 relief, it would have been demurrable; and now you 
 say, he shall not have a discovery because his relief 
 is at law. This is a case where he has no election, 
 he must sue at law. The dry question is this : — whe- 
 ther there is any objection, in natural justice, to a de- 
 fendant giving a discovery in order to found a relief at 
 law. The question whether he shall answer improper 
 inquiries being out of the case, I think he cannot bar 
 the plaintiff from giving him the trouble of an answer. 
 Where the bill is for relief, the discovery is merely 
 ancillary to the relief; therefore, if the defendant can 
 shew that, mthout going further, there is one point 
 which Avill bar the relief, the Court will first look into 
 that point. The Court there takes the plea as the 
 first method of getting at that justice, which the sub- 
 ject has a right to obtain. Where the remedy is legal, 
 to let the defendant refuse the discovery, is putting 
 matters out of their train, for the Coui't can ultimately 
 do nothing as to the remedy. If the bill be for equit- 
 able relief, and the plea be overruled, the defendant 
 
 (a;) This argument supposes that discovery may not of itself 
 be a serious mischief. Supra, pi. 5.
 
 FIRST PROPOSITION. 35 
 
 has this objection, that the Court has put him to a 
 great expense, in going through a cause, where he had 
 brought it to a point which ought to have decided it in 
 his favour. In the same case, if the remedy is at law, 
 he has only to complain that he has been put to the eX' 
 pense and trouble of putting in a longer answer. As 
 to the expense of the copy and answer, that the Coui-t 
 exempts him from ; for, the moment the answer comes 
 in, he must be paid all the expense he has been at ; 
 and as to the trouble, the Court cannot reheve him 
 from that. Therefore, I think myself founded hi declar- 
 ing, that where the bill is for a discovery leading to 
 relief at law, the defendant cannot plead in bar here to 
 the discovery, what will be a bar to the relief there." 
 
 68. From this judgment the writer presumes to 
 dissent. The plaintiff would of course in such a case 
 be entitled to all such discovery (if any) as might be 
 necessary to the trial of the plea itself. Lord Thurlow's 
 judgment, however, goes further; it affirms that the 
 defendant cannot avoid gi^'ing that discovery to which 
 tlie plea (if good) would be a bar, i. e. discovery as 
 to the original subject of action [y). To this alone it 
 is that the author^s objection appHes(2r), and he pre- 
 sumes to say that if the case of Hindman v. Taylor had 
 been decided by a Judge of less eminence than Lord 
 
 (y) The defendant denying the plaintiff's title would, accord- 
 ing to this, be bound to set out accounts which had been dis- 
 cliarged by the matter of the plea itself. See as to principal audi 
 subordinate points, supra, pi. 51 — 55. 
 
 (c) See Hare, 46, 56. 
 
 r, O
 
 36 FIRST PROPOSITION. 
 
 Tliurlow, it would not at tins day have remained unre- 
 versed by a direct decision. If, indeed, Lord Tlmrlow 
 had begun by asking, what right the plaintiff had to 
 sue the defendant, either at law or in equity, it is not 
 improbable that he might himself have come to a 
 different conclusion (a) . The reasoning of the able 
 counsel who argued in support of the plea in Hindman 
 V. Taylor appears unanswerable. " Where the relief is 
 equitable, the plea to the relief is a bar to the dis- 
 covery ; therefore, if the plea be of matter which wall be 
 a bar at law, it ought, upon the same principles, to 
 be a bar to the discovery. If it be not, a man without any 
 legal claim may have a discovery of all the transactions of 
 another's life." " To what end should the defendant be 
 harassed with questions which can answer no purpose? 
 Unless the plaintiff has a right, the Coui't will never 
 suffer the defendant to be compelled to answer [b)." 
 
 69. The argument thus urged in favour of the plea 
 is fully supported by the general rules of the Coiu*t 
 in analogous cases. By those rules, a want of title in 
 the plaintiff is the first objection which every defend- 
 ant has a right to take (c) ; and if — to come more 
 closely to the point — a bill be filed in support of an 
 action at law, and it appear upon the face of the bill 
 
 (ff ) This observation is supported by the language of" the Vice 
 Chancellor in Mcndizabcl v. Machado, 1 Sim. G8 ; infra, pi. 74. 
 
 (/>) Hindman v. Taylor, 2 Bro. C. C. 8. 
 
 (c) Redes. Plead. 154, 191. This principle was earned to its 
 full extent in the case of J(mes v. Goderich, Myl. & Craig, not 
 yet reported.
 
 FIRST PROPOSITION. 37 
 
 that tlie action is not maintainable, a demurrer will 
 lie (c) . Now, assuming that the matter pleaded, if true, 
 would be a bar to the action, it follows, that the bill 
 would be demm-rable if the facts pleaded had been 
 stated in the bill ; and, consequently, — if a plea do not 
 bar the discovery, — the plaintiff in equity escapes from 
 a demurrer, and obtains discovery to which he is not 
 entitled, only by suppressing material facts in the 
 case [d). But it is against every principle of pleading, 
 as well as of justice and common sense, that a party 
 should by law be permitted to gain advantage by any 
 perversion of the truth of a case(e). The necessity of 
 avoiding such an anomaly has induced Courts of Equity 
 to admit of negative pleas (/). 
 
 70. Lord Thurlow's reasoning, it will be observed, 
 proceeds upon a supposed absence of all inconvenience 
 to a plaintiff in being compelled to answer a bill, as if 
 discovery alone, extending as it often does to the pro- 
 duction of documents, might not be a serious mis- 
 chief (^), independently of its certain vexation. Another, 
 ajad perhaps the most forcible, objection to Lord Thur- 
 
 (c) Redes. Plead, 191, 192 ; Cholmondeley v. Clinton, 1 Turn. 
 ik Russ. 107. 
 
 {d) Supra, pi. 43, note. 
 
 (e) It has indeed been doubted whether it be not an oftence 
 at law for a plaintiff knowingly to state his case more fovourably 
 than the truth warrants. Wallis v. The Duke of Portland, 3 Ves. 
 494. 
 
 (/) Redes. Plead. 283. 
 
 {g) Supra, pi. o.
 
 38 riRST PROPOSITION. 
 
 low's judgment, is, tliat the mere suggestion of an in- 
 tention to bring an action — wliich is not traversable, — 
 will supjjort a bill of discovery as effectually as an 
 action actually commenced (/<). Indeed, an action 
 actually commenced may be discontinued at the Mill 
 of the party suing out the writ. 
 
 71. Although the high authority of Lord Thurlow 
 has hitherto deterred subsequent judges from expressly 
 overruling the principle of his decision in Hindman v. 
 Taylor, it is obvious that the difficidty of supporting 
 that decision has been strongly felt and acknowledged 
 in later cases ; and the author confesses his inabihty, 
 as a question of principle, to reconcile the decisions in 
 some modern cases with that in Hindman v. Taylor, 
 although the Courts, in those modern cases, have pro- 
 fessed not to overrule Lord Thurlow's judgment. 
 
 72. Baillie v. Sibbald[i), (1808), is the first case to 
 which the reader may be referred as an authority op- 
 posed to Lord Thiu'low's reasoning. 
 
 73. In Gait v. Osbaldeston (j), (1820), a bill was 
 filed for a discovery in aid of a trial at law, and for an 
 injunction to restrain the defendant from setting up 
 outstanding terms in ejectment. The Vice-Chancellor 
 said, " The plea of title would have been good as to 
 the rehef sought by the injunction against the out- 
 standing terms, but it is not good as to the discovery ; 
 because, here the discovery is not incidental to that 
 
 (A) Redes. Plead. 187. (i) 15 Ves. 185. 
 
 (J) 5 Madd. 428.
 
 FIRST PROPOSITION. 39 
 
 relief, and as to the discovery in aid of a legal title, the 
 plea of no legal title is no defence, for that is the very 
 question which is to be tried at law." This decision 
 was reversed on appeal by the Lord Chancellor {k). ^^ t\'^^^^^;^^ "^ t^ 
 
 74. In Mendizabel v. Machado [1), (1826), (before '>^^ ^— ^'-«■ 
 referred to), the plaintiff brought an action against the 
 defendant, and filed his bill for a discovery, and a com- 
 mission to examine witnesses in aid of the action. To 
 this bill the defendant pleaded facts, which shewed 
 that the plaintiff had not, and never had, any right of 
 action against him, in respect of the matters in ques- 
 tion ; and the Vice-Chancellor (Sir J. Leach) allowed 
 the plea. The plea in this case, it will be observed, 
 difiers from that in Hindman v. Taylor, in this respect : 
 That was a plea which confessed and avoided the original 
 right of action ; whereas the plaintiff in Mendizabel v. 
 Machado negatived all original right. The two cases, 
 however, agree in this — Avliich alone seems material to 
 the point at issue — that the plea, in each case, tendered 
 an issue of fact as a legal bar to the plaintiff ^s demand, 
 and thereby transferred into equity the trial of the 
 legal matter; and, if it be once admitted, that a pica 
 having this effect may be pleaded in equity, in bar to a 
 bill of discovery in aid of an action, it is difficult to 
 understand the principle, which — sustaining such a 
 plea where the facts pleaded amount to a denial of 
 original title in the plaintiff — denies the same right to 
 a defendant Avhere the plaintiff, by his own act, has 
 
 (/.) 1 Russ. 158. (/) I Sim. 68.
 
 40 
 
 nilST PROPOSITION. 
 
 destroyed his original right. If Lord Thurlow's prin- 
 ciple be carried to its extent, a release of the very de- 
 mand in an action could not, in the simplest case, be 
 pleaded in equity as a bar to discovery in aid of such 
 action. Tlie judgment of the Vice- Chancellor, in Men- 
 dizabel v. Machado, adopts the arguments which have 
 already been suggested against Lord Thurlow's decision 
 in Hindman v. Taylor, but professes to leave that deci- 
 sion untouched. His Honor, after shewing that the 
 plaintiff had no right of action, proceeds thus : — " The 
 plaintiff, however, contends that, if he were to admit that 
 his case is such that he can have no title to be relieved 
 in equity, yet he is still entitled to discovery, and a 
 commission, which is all he seeks by this bill in aid of 
 his action at law ; and that the defendant cannot, by 
 plea, protect himself from the discovery. This is surely 
 a singular proposition. For, the consequence would 
 be, that any person first suing out a writ at law against 
 another [m], might by a bill in equity for a discovery com- 
 pel such other person to disclose, upon oath, all the parti- 
 culars of any transactions, however secret and important, 
 with which the plaintiff had no manner of concern, merely 
 by introducing into his bill the false allegation that he 
 had an interest in the transaction ; since, according to 
 the doctrine of the plaintiff, it would not be permitted 
 to the defendant to protect himself from such discovery, 
 by proving to the Court the falsehood of the allegation 
 that the plaintiff had any interest in the transaction. But 
 
 (/«) Or by suggesting that lit' intended to do so. — Author.
 
 FIRST PROPOSITION. 41 
 
 the law of the Courts as well as the reason of the thing, 
 is directly the other way ; and a defendant is entitled to 
 protect himself from a discovery by a plea, that the 
 plaintiff has no interest in the subject of his suit ; and 
 such is the nature of this plea. This is stated by Lord 
 Redesdale to be the doctrine of the Court {in) ; and 
 the case cited by the plaintiff in support of his propo- 
 sition, when it is carefully considered, Avill be found 
 consistent with this doctrine." 
 
 75. The cases of Dauhigny v. Davallon {n), Albretcht 
 V. Smsmann (o), and Macgregor v. The East India Com- 
 pany {p), may here be refen'cd to as opposed to the 
 decision in Hindman v. Taylor. 
 
 76. In Robertson v. Lubbock {q), (1831), the Vice- 
 Chancellor, in giving judgment, said: — '' I apprehend 
 that if a right of action is founded upon a variety of 
 circumstances put together, a plea which attempts to 
 shew that the action cannot be maintained, by confess- 
 ing and avoiding some of the circumstances, and 
 denying the rest, cannot be good, for this reason — it 
 reduces the plaintiff to the necessity of proving in a 
 Court of Equity, without a discovery, that he has a 
 right to support that action." This seems to ackuoAv- 
 Icdge that the legal bar is triable in equity. 
 
 77. In the course of the argument of Robertson v. 
 
 (m) llodt-s. Plead. ^ («) 2 Anstr. 4G2. 
 
 (o) 2 Ves. & B. 32:5. (p) 2 Sim. 452. 
 
 (7) -i Sim. 101.
 
 42 FIRST PROPOSITION. 
 
 Lubbock (r), just referred to, Mr. Pepys [s), amicus curite, 
 said, " 111 the King of Spain v. Hullett, precisely the 
 same plea was put in, as in Mendizabel v. Machado, and 
 Lord Lyndhurst in the coui'se of the argument on that 
 plea had some inquiry made as to Hindman v. Taylor, 
 and his Lordship's impression was that it was displaced 
 as an authority for the proposition, which, according 
 to the report, it appeared to establish." Upon which 
 the present Vice Chancellor observed " Hindman v. 
 Taylor is one of the cases in Brown, upon which no re- 
 liance can be placed with regard to the statement." 
 The above was brought to the attention of the Lord 
 Chancellor at the hearing of the cause of Hardman v. 
 Ellames, and his Lordship again said that the case of 
 Hindman v. Taylor had been fully inquired into by 
 Lord Lyndhurst. In Hardman v. Ellames the plain- 
 tiff sought to restrain the defendants from setting up 
 an outstanding term of years in an ejectment brought 
 by the plaintiff. The defendant insisted, that although 
 the term should not be set up in the ejectment, the 
 plaintiffs were barred by lapse of time from recovering 
 the estate. To this the plaintiff replied, that the effect 
 of lapse of time was a legal question, and that a Court 
 of equity would not therefore try it ; and Hindman v. 
 Taylor, Leigh v. Leigh, Jermy v. Best, Avere referred to. 
 The Lord Chancellor, however, dismissed the bill in 
 
 (;•) RohcHson v. Lubbocl; 4 Sim. 17-. 
 (s) The present Lord Chaucollor.
 
 FIRST PROPOSITION. 43 
 
 Hardman v. EUames [t) expressly upon the ground that 
 the plaintiff^s claim was barred by an adverse posses- 
 sion of more than twenty years, thereby overruling, in 
 effect, the reasoning of Lord Tliurlow in Hindman v. 
 Taylor. 
 
 78. Upon the whole, the writer submits, that a legal 
 bar to an action at law may be pleaded in equity, in 
 bar to a bill of discovery in aid of such action, except 
 so far as (under the common rule [u) discovery may be 
 required by the bill to try the truth or validity of such 
 plea itself. The cases of Leigh v. Leigh [v), and 
 Jermy v. Best {x), should be referred to in connexion 
 with Hindman v. Taylor. 
 
 79. Another point, upon which a caution may be 
 proper in this place, arises in those cases in which, 
 from the frame of the bill, the defendant is prevented 
 from defending himself by a pure plea in bar, and is 
 compelled to support his plea by an answer to some 
 part of the bill. 
 
 80. It has been already observed, that a plea may be 
 the subject of trial in two stages : first, upon argument ; 
 and, secondly, upon a trial of its truth at the hearing. 
 Upon the first of these occasions, the truth of the pica is 
 assumed for the pm*poscs of the argument ; and nothing 
 comes on for trial but the foi'm and substance of the 
 plea. Now, in order that the plea may be good in 
 
 («) Myl. & Craig, not yet reported, (r) 1 Sim. 349. 
 (m) Supra, this proposition. (x) 1 Sim, 378.
 
 44 
 
 FIRST PROPOSITION. 
 
 :"^-'^ -^99 
 
 form, it is necessary that it shoul d not purport to 
 cover discovery as to any allegations in the bill, "which, 
 if admitted, would shew, or tend to shew, the plea to 
 be bad in substance, or untrue in fact. But, sup- 
 posing the plea not to cover any such discovery, and 
 to be accompanied by an answer as to all such alle- 
 gations in the bill as, if admitted, would shew the 
 plea to be bad in substance, can it be objected to the 
 form of such a plea upon argument, that it is not 
 actually accompanied by an answer as to those other 
 uncovered parts of the bill which relate onjy to the 
 truth of the plea ? The general terms of the first pro- 
 position require that the answer to this question should 
 be given in the negative, because, upon argument of a 
 plea, its truth is assumed, and the only points to be 
 tried are its sufficiency in form and substance ; and 
 therefore an actual answer as to matters relevant only 
 to the truth of the plea would be irrelevant to the only 
 question or questions which the Court can try upon 
 argument of the plea. And this the author conceives 
 is the correct view of the subject. But, as a full con- 
 sideration of the point involves questions of pleading, 
 which it would not be convenient to notice in so 
 early a stage of this work, the reader is referred to a 
 later page, at which the subject is resumed in con- 
 nexion with, some other points of pleading. 
 
 81. Assuming, then, that a plaintiff's right to dis- 
 covcrv in a cause is excluded from all parts of the
 
 FIRST PROPOSITION. 45 
 
 bill, except such as may seek discovery relevant to 
 the question or questions about to be tried, it re- 
 mains to be seen what is the extent of the plaintiff 's 
 right to discovery for the purposes of the trial of such 
 question or questions.
 
 46 
 
 SECOND PROPOSITION. 
 
 It is the riffht, as a general rule, of a plaintiff in equity 
 to exact from the defendant a discovery upon oath as to 
 all matters of fact which, being ivell pleaded in the bill, 
 are material to the plaintiff's case about to come on for 
 trial, and which the defendant does not by his form of 
 pleading admit [a). 
 
 82. The first proposition, which has been considered, 
 is restrictive only. It confines the right of discovery 
 to such matters as are relevant to the question or 
 questions in the cause which is or are about to come 
 on for trial. 
 
 83. The second proposition is affirmative. It pur- 
 ports to ascertain, to some extent, the discovery to 
 which the plaintiff is entitled for the purposes of the 
 trial to Avhich, under the first proposition, his right to 
 discovery is confined. 
 
 84. The attentive reader, in examining the author- 
 ities which follow, may perhaps satisfy himself that the 
 
 (a) The result of the observations on the first two propositions 
 will be found to be — that it is the right of a plaintiff to have 
 every question in the cause, as it comes on for trial, tried upon 
 a full answer, express or implied.
 
 SECOND PROPOSITION. 47 
 
 second proposition is restrictive also {b), unless the ob- 
 ligation whicli a defendant is under to make his defence 
 upon oath should be considered as part of the plain- 
 tiflF 's right to discovery — a point which will be noticed 
 hereafter (c). Proof of the affirmative aspect of the 
 proposition is, however, all which the author here at- 
 tempts to estabhsh. The scope of the proposition 
 will best be understood by an examination of the 
 terms in which it is expressed {d). 
 
 85. The right to discovery which the second pro- 
 position asserts, is, that which, in the reported cases, 
 is commonly expressed by saying, that a plaintiff is 
 entitled to a " full answer.^' But as a rule, which de- 
 termines only that a full answer must be given, cannot 
 possibly determine what a full answer is, it has been 
 thought better, in the first instance, to drop that ex- 
 pression, and to embody in a distinct proposition the 
 points which the expression embraces. 
 
 86. " It is the right of the plaintiff.'^ The question 
 of a plaintiff's right to discovery is commonly raised 
 by asking — ^Whether the defendant is bound to give it ? 
 Considering right and obHgation as reciprocal, it may 
 appear hypercritical to insist that the plaintiff's right, 
 
 {h) Infra, pi. 224. 
 
 (c) Infra, pi. 345. 
 
 {d) In the examination of each temi of the proposition in 
 succession, those which remain to be examined will, of coui-se, 
 be taken to be true.
 
 48 SECOND PROPOSITION. 
 
 and not the defendant's obligation, is the proper form in 
 which the question should be propounded. A pre- 
 ference for the former expression — " the plaintiff's 
 right" — might, pcrh.aps, be justified upon strictly 
 logical grounds, but (without contending for tliis) it 
 may be sufficient, to observe, that the writer has 
 found (e), and he beheves his readers will find, a prac- 
 tical convenience in preferring it ; particularly with 
 reference to a point insisted upon below — the inde- 
 feasible character (within certain limits) of a plaintiff's 
 right to discovery — and with reference also to the im- 
 portant question determined by this righty the extent to 
 which a party who defends by answer may refuse to give 
 discovery called for by the bill. 
 
 87. " The plaintiff VQ. equity." Adopting, then, 
 the form of expression thus preferred, — the " plain- 
 tiff in equity" is the party to whose right alone the 
 attention of the reader need be here addressed. The 
 pai'ty seeking discovery may be the same who is seek- 
 ing relief in equity ; or he may be the defendant in an 
 original equity suit, seeking by a cross bill to obtain a 
 discovery in aid of his defence to that suit ; or he may 
 be plaintiff or defendant in a proceeding at common 
 
 (e) Had Lord Thurlow, in Hindman v. Taylor, supra, jil. 67, 
 (as did the Vice-Chancellor in Mendizabel v. Machado, supra, pi. 
 74), begun l)y asking liimself what right the plaintiff had to sue 
 the defendant in any Court? the (pestion might, j)erhaps, 
 have suggested to his mind considerations which would have led 
 to a decision in accordance with the more modern cases.
 
 SECOND PROPOSITION. 49 
 
 law seeking discovery in aid of proceedings there (/). 
 In each of these cases^ whatever the situation of the 
 party seeking discovery may be in the suit in which 
 relief is sought, he becomes plaintijf in equity for the 
 purpose of the discovery he wants. It is not, there- 
 fore, except in special instances {g), necessary, in can- 
 vassing the right of a pJaintiff in equity to discovery, 
 to advert to the position which he may occupy, as 
 plaintiff or defendant in the suit in which he seeks 
 rehef, or to consider in what Coui't that relief may be 
 sought. 
 
 88. Similar observations apply to those cases, such 
 as The Princess of Wales v. The Earl of Liverpool (A), 
 and Jones v. Leivis (i), in which a defendant has been 
 permitted to move in the suit in which he uas defend- 
 ant, for the production of a document in the hands of 
 the plaintiff, without filing a cross bill for the purpose 
 — which is the regular course of proceeding [k). It 
 may be doubted whether the relaxation of practice 
 permitted in these cases will be followed (/). But, 
 however that may be, it is clear that a defendant 
 
 (/) Supra, pi. 10, 11. 
 
 (^g) Supra, pi. 67, Ilindman v. Taylor; and pi. .'377, Lowndes 
 V. Dames. 
 
 {h) 1 Swans. 114 ; and see Pickering v. Right/, 18 Ves. 484. 
 
 (0 2 Sim & St. 242. 
 
 (I) Wiley V. Pistor, 7 Ves. 41 1 ; Micklethwaite v. Muore, 3 
 Mer. 21t2. 
 
 {I) See memorandum, 4 Sim. ."124, in Jones v.Lems ; Penf/ld 
 V. Nunn,5 Sim. 409 ; Anon. 2 Dick. 778 ; Milligmi v. Mitchell, 
 G Sim. 18(1. (July, 18:3^.) 
 
 li
 
 50 SECOND PROPOSITION. 
 
 cannot, in that character, be entitled to the prodnction 
 of a document, or any other discovery, to wliich lie 
 could not entitle himself as plaintiff in a cross suit — 
 and an investigation of the 2^Jo,intifps general right 
 will, therefore, for the present purpose, embrace the 
 class of cases just referred to, whatever the ultimate 
 decision respecting them may be. 
 
 89. "// is the right of the plaintiff '' (m). By the 
 riffht here spoken of is intended that original right 
 which everj'^ plaintiff may be said to have a priori, i. e. 
 independently of any adventitious right to discovery 
 Avhich he may acquire in the progress of a cause, by 
 the mode of pleading or other concession of the defend- 
 ant. This original right is of the strictest kind. For, 
 it is one of which the defendant cannot by any mode of 
 pleading deprive him. 
 
 90. How (it may asked) can a rule which thus con- 
 cedes to a plaintiff a right to discovery indefeasible 
 by the defendant, be reconciled with the common 
 rule (w), that a plea (for example) to relief covers 
 the discovery incidental to that relief? The answer 
 to this question is, — that the two rules are con- 
 versant about different subjects. Discovery — the in- 
 defeasible right to which is here contended for — is 
 that discoveiy which, in the case of a plea (for ex- 
 ample) the plaintiff sometimes requires for the pur- 
 pose of trj-ing the validity or truth of the plea it- 
 
 (?«) Hiire, 187, H)0. (?/) Rcdos. Plead. 2»1.
 
 SECOND PROPOSITION. 51 
 
 self. The discovery which (under the common rule 
 referred to) the plea would cover, is not discovery 
 wanted for this or any similar purpose, but discovery 
 relating to points in the cause unconnected with and 
 irrelevant to the validity or truth of the plea. The 
 distinction may be thus stated. A good plea is a 
 reason in law why a plaintiff is not entitled to some 
 discovery called for by his bill. It is a special answer, 
 differing from an answer in the common form, in that 
 it demands the judgment of the court, in the fa'st in- 
 stance, whether the special matter urged by it do not 
 debar the plaintiff from his title to that answer which 
 the bill requires (o). Now, a plea, in order that it 
 may be ffood, must (as a defence) be vahd in law, and 
 true in fact. Both these points may admit of contro- 
 versy ; and discovery may be necessary to the trial of 
 both or either. The rule which determines that a 
 plaintiff shall not have discovery relating to matters 
 with which, // the plea be good, he has no concern, 
 docs not conflict with the proposition which asserts his 
 riglit to discovery, for the purpose of trying whether the 
 plea he good or not. The force of the r\Ae—exceptio 
 ejusdem rei, &c. — will suggest itself to the reader, and 
 enforce the point for which the writer here contends. 
 The analysis of a cause into its component parts, (prin- 
 cipal and subordinate or dependent) (p), here becomes 
 of practical importance. It is to that discovery only 
 
 (o) R^che V. MorgcU, 2 Sch. & L. 721, (180^), in Dom. Proc. 
 {p) Supra, pi. 13. o4, o.5. 
 
 li 2
 
 52 SECOND PROPOSITION. 
 
 which is necessary to tlic trial of some principal point 
 raised by plea that an indefeasible chai'acter is in the 
 first instance ascribed. If that principal point should 
 be determined in the plaintifF^s favour, his right to dis- 
 covery as to the principal points, and also as to the 
 subordinate or dependent jwints in the cause, would 
 then, but not until then, become equally absolute. The 
 effect of this is, that the right of a plaintiff to discovery 
 as to the matter of the plea itself, is just as extensive 
 where the defence is by plea as where it is by answer; 
 and it is less extensive in case of a plea than where 
 the defence is by answer, in respect only of the lesser 
 number of distinct points in the cause to which, in the 
 former case, the right of discovery may extend. The 
 extent of this latter right will be examined hereafter. 
 
 91. The precise extent of the indefeasible right to dis- 
 cover}^ here contended for, cannot be fully understood 
 without adverting, by anticipation, to the meaning of 
 the " plainti^'s case" in the words of the proposition. 
 
 92. This expression, the " plaintijf's case," may, per- 
 haps, be objected to as not sufficiently explaining itself; 
 and the reader may be tempted to ask — why clog the ar- 
 gument by the use of an expression, (arbitrary to some 
 extent), the right understanding of which requires ex- 
 planation and illustrations so extensive as those which 
 follow? The answer is, that some form of expression was 
 found indispensable — if only as a name by which to speak 
 of the cases in which discovery is enforced, — and that no 
 expression suggested itself better adapted than this, at 
 once to describe the cases in which discovery is enforced.
 
 SECOND PROPOSITION. 53 
 
 and (by contrast) to exclude those to which a plaintiff's 
 rigid to discovery does not extend, namely, the evi- 
 dences exclusively relating to the defendant's case. 
 
 93. To proceed then — By the first proposition, the 
 '' jilO'intiff's case,'' must for the present purpose be a 
 case which, according to the state of the pleadings and 
 the practice of the Court, is about to be tried. This, in- 
 deed, is involved in the terms of the second proposition. 
 
 94. Next, the "plaintiff's case," must be a case (posi- 
 tive or negative) made by the bill. This is of necessity ; 
 for, by a settled rule of pleading, a point not made by the 
 bill cannot be the subject of interrogation in the bill (g). 
 
 95. Supposing the last requisition to be complied 
 with, — what is the next consideration to be attended to 
 in determining what is the ''plaintiff's case" for the pur- 
 pose of discovery ? Pleadings at common law commence 
 with a declaration which contains a short statement of 
 the plaintiff's case. To this case (assuming it not to 
 be demurrable) the defendant may plead. To this 
 plea (upon a similar assumption) the plaintiff may re- 
 ply, either by taking issue upon the truth of the plea, 
 or his replication may confess and avoid the plea ; and 
 this mode of pleading (excluding demurrers) may go 
 on tln'ough the successive stages of rejoinder, surre- 
 joinder, rebutter, surrebutter, &c,, until the parties get 
 to issue. Now, in this mode of pleading, the dechu*- 
 
 (j) Diincalf V. Blake, 1 Atk. .52 ; AUornej/-General v. Jflior- 
 wood, 1 Vcs. son. .')^4; DnlJork v. Richardson, 11 Vos. H""; and 
 see Hamervillc v. Mackay, 10 Vcs. ."JH-i, (not charge enough).
 
 54 SECOND PROPOSITION. 
 
 atioii, the replication, and each alternate pleading, will 
 in succession have been the " plaintiff's case ;" but issue 
 will ultimately be joined upon, and the evidence in 
 the cause confined to, the point or points which the 
 pleadings ultimately raise. From what is said by 
 Lord Redesdale in the Ti'catise on Pleading (r), it ap- 
 pears, that special replications and rejoinders, and 
 the other successive pleadings now in use in Courts of 
 common law, were formerly in use in Courts of Equity 
 also ; and that the modern practice of amending bills 
 — thereby bringing the Avhole of the plaintiflF^s state- 
 ment into one record — is merely a substitute for that 
 mode of pleading. Now, the form of pleadings cannot 
 alter their real nature. The circumstance, that those 
 parts of a bill in equity which (if the common law form 
 of pleading were still in use) would be the subject of so 
 many distinct pleadings at law, are (by the form of 
 equity pleadings) blended together in one record, bear- 
 ing the forms of statement, pretence, or charge, accord- 
 ing to the nature of the case or the taste of the drafts- 
 man, cannot take from these different parts of a bill 
 their real character, as constituent parts of the case of 
 this or that party in the cause ; and, accordingly in 
 equity as at law, the evidence in the cause — including 
 the discovery — will be limited to the point or points in 
 the cause upon which the parties go to trial. 
 
 {r) Redes. Plead. 18, 321, 243, n. ; Prac. Reg. 372, Wy. ed. : 
 and see 3 Myl. cS: Cr. 482, in Folci/ v. Ilill. (June, 1838.)
 
 SECOND PROPOSITION. 55 
 
 96. In further explanation of this, though at the 
 expense of some repetition, the author ventures to 
 apply the preceding observations to the diflFerent 
 forms which causes in equity commonly assume ; and 
 he submits that the cases referred to clearly shew, that 
 some right to discovery, express or implied, attaches 
 upon all parts of a bill which constitute the "plain- 
 tiff's case" about to be tried. 
 
 97. First — Let the plaintiff be supposed to state in 
 liis bill a case which is demurrable ; and let it be 
 supposed that the defendant meets the bill by demurrer. 
 Here the case stated in the bill will of course be the 
 " plai?itiff's case." But the plaintiff (as already shewn) 
 will not be entitled to any actual discovery. For, the 
 demurrer (for the pui'poses of the argument) admits 
 all matters of fact well pleaded in the bill to be true (.s^) ; 
 and the second proposition confines the right to dis- 
 covery to matters of fact which the pleadings do not 
 admit. This explains the rule that a demurrer to 
 relief extends to the discovery also {t) . 
 
 98. Secondly — Suppose the defendant to meet the 
 case made by the bill, by a pure affirmative plea (m), 
 
 (*) Redes. Plead. 107. 
 
 {() Redes. Plead. 183. And sec Stewart v. Lord Nugent, 1 
 Keen. 201. 
 
 («) A plea is a " sjieciul answer, shewing or relying upon one 
 or mure things as cause why the suit should be dismissed, de- 
 layed, or barred ; " and the eases to which this mode of defence
 
 56 SKCOND PROPOSITION. 
 
 i. c. a plea of something not anticipated by or men- 
 tioned in tlie bill. Here, also, the " plaintiff's case " 
 remains as before. But, the bill cannot in this case 
 be supposed to ask discovciy touching the matter of the 
 plea, because that, by the supposition, is wholly new, 
 and no discovery need, therefore, be given, as to the 
 plaintiff's case." For, " the office of a plea in bar is 
 to confess the right to sue ; avoiding that by matter 
 ilehors; and giving the plaintiff an acknowledgment of his 
 right, independent of the matter alleged by the plea [x]." 
 There is not, therefore, any issue between the parties 
 as to the truth of the "plaintiff's case," — the defendant 
 by his pleading admits it. So full and complete is this 
 admission, (in the case of a plea in bar), that if, after 
 argument, issue be joined upon the ti'uth of the plea. 
 
 is applicable, are those in which tlie matter so relied upon is not 
 <tpparent upon the face of the bill, i. e. the plea hriiigs forwai-d 
 1ICW matter. It happens, however, not unfrequently, that a bill 
 in equity anticipates the defence, and (sometimes admitting that 
 defence to be true, and sometimes suggesting it only as matter 
 relied upon by the defendant, l)ut without admitting its truth) 
 alleges matters which, if true, would avoid the legal conse- 
 quences, or disprove the truth of the defence so anticipated. 
 'I'he form of pleading to such a bill is by pleading the antici- 
 pated defence, and coupling that plea with averments negativing 
 tlie allegations in the bill by which the plea is sought to 
 be avoided. Redes. Plead. 218, 2,'39 ; and Beames on Pleas, 
 1 , 2, 3. For brevity sake, the word ^wre is used to describe 
 ]ileas of the former kind ; and the word anomalous, to describe 
 jileas of the latter kind. 
 
 (.r) Per Lord Eldon, in Baylci/ v. Adams, 6 Ves. 594.
 
 SECOND PROPOSITION. 57 
 
 and the plea be found false, there is an end of the dis- 
 pute {y), and the plaintiff is entitled to a decree upon 
 this implied admission of his case (z). No discovery as 
 to the '^ plaintiff's case" need, therefore, be given. If, 
 however, the plea be found false, and the plaintiff cannot 
 obtain complete rehef as to other points in the cause, 
 (an account for example), without further evidence, the 
 Court will supply the defect, by alloAving him to exa- 
 mine the defendant upon interrogatories as to these 
 points, which, in consequence of the plea being found 
 false, become " the plantiff's case {a)" In fact, the 
 plea (so far as the admission it affords is not sufficient) 
 sttspends only, (for the purpose of trying the plea in the 
 first instance), but does not take away, the right of the 
 plaintiff to that discovery, which he will require only 
 in case the plea shall prove invalid or untrue. 
 
 99. Thirdly — Suppose the bill to anticipate the de- 
 fence, and, admitting it to be true {b), to dispute its legal 
 operation on some specific ground, — as, for example, 
 
 (y) y Ves. 594, in Bayley v. Adams. 
 
 (z) Wood V. Strickland, 2 Ves. & B. 158. And see 2 Ves. sen. 
 247, in Brovmsword v. Edwards; Redes. Plead. 302 ; Slancy 
 V. Wade, reported upon another point, 1 Myl. & Cr. 338. 
 
 (a). Redes. Plead. 302; Wood v. Strickland, 2 Ves. & B. 150; 
 Sanders v. King, 2 Sim. & St. 277. 
 
 (/>) It is difficult to say why sucli a pica should now assume 
 ail (inomaloits tonu. Why should not a negative plea meeting- 
 the charge of fraud alone be sufficient? There is no other issue. 
 Now that negative pleas are fully established, perhaps, the anoma- 
 lous form of pleading would not be held necessary in cases of this 
 class. These cases differ from the next.
 
 58 SECOND PEOFOSITION. 
 
 that a deed (tlic anticipated defence) was obtained by 
 fraiid ; and suppose the defendant to meet this case by 
 pleading the deed simpliciter. In such a case, the 
 charge (c) of fraud would be in the nature of a replica- 
 tion to the anticipated defence ; and would constitute 
 the " plaintijf's case," within the first proposition. 
 The onus of proving the alleged fraud would be upon 
 the plaintiff ; and it is clear, both upon principle and 
 authority, that the plaintiff would, in such a case, be 
 entitled to a discovery as to the imputed fraud. And, 
 clearly, if the IdHI charged special matters as evidence (d) 
 in support of the charge of fraud, the plaintiff would 
 be entitled to a discovery of those special matters also. 
 Lord Redesdale is full upon this point {e), embracing 
 in his observations a variety of analogous cases. The 
 following may also be referred to in support of it : — 
 
 100. In Jerrard v. Saunders [f) (1793), the bill sought 
 a discovery of deeds relating to the plaintiff's title, and 
 
 (c) The words statement, allegation, and charge, are used indif- 
 ferently throughout this volume. 
 
 ((?) The words " as eeidence" are here used to avoid for the 
 present a point raised by the Vice-Chancellor in Thring v. Edgar, 
 as to the necessity, as a rule of pleading, of using these or equi- 
 valent words. See infra, pi. 210 (it seq. 
 
 (e) Redes. Plead. 239 et seq. And see lb., as to plea of a 
 stated account, 259 ; plea of award, 2G0 ; plea of release, 261 ; 
 plea of the statute of limitation, 269 ; and plea of purchase for 
 valuable consideration, 275 ; special matters being charged to 
 avoid the defence, 239, 293. 
 
 (/) 2 Ves. J. 187. See ace. l-i Ves. (>7, in Claridge v. Uoarc.
 
 SECOND PROPOSITION. 59 
 
 an injunction to stay proceedings in ejectment. The 
 bill charged that the person under whom the defendant 
 claimed had constructive notice of the plaintiff ^s title, 
 stating circumstances from which such notice would be 
 implied. The defendant pleaded a purchase for value, 
 without notice, but did not answer the facts charged 
 as affecting him with notice. The Lord Chancellor 
 said, " He must set forth the facts charged in the bill, 
 from which the Court will construe notice ; particularly 
 whether the title deeds were delivered. He assumes to 
 himself the proposition. He judges Avhat is construc- 
 tive notice, and then denies that, to his knowledge and 
 belief, he had constructive notice. The bill does not 
 impute direct notice to him. It is consistent Avitli 
 every thing he says in answer, that the very settle- 
 ment itself might have been delivered. He must 
 let the Court judge of that. The plea must be dis- 
 allowed {g)." 
 
 101. The case of Roche v. Morgell [h), in Bom. Proc. 
 (1809), contains much valuable information upon this 
 subject. 
 
 102. It can scarcely be necessary to observe, that 
 whether the plaintiff originally anticipates the defence, 
 or introduces it into the bill by amendment, after plea 
 pleaded, the point now under consideration will be the 
 
 (ff) The discovery in these cases, so far as respects the matter 
 of the fraud or notice &c., would obviously be the same whether 
 the defence were made Ijy plea or l)y answer. 
 
 (h) 2Sch. & Lefr. 721.
 
 60 SECoxn I'uorosiTiox. 
 
 same. Tlie like remark will apply to all cases in which 
 the plaintiff is supposed to anticipate the defence. 
 
 103. Fourthly — Suppose the bill to state the antici- 
 pated defence (say a deed as before) only as a pretence 
 of the defendant, without admitting its truth, and to 
 avoid it, by stating, that z/any such deed exist, it was 
 obtained by fraud &c. In this case, as in the last, the 
 fraud &c. imputed would be the ''plaintiff's case" 
 ■vA-ithin the meaning of the first proposition, and the 
 plaintiff in this as in that case would be entitled to 
 discovery (i), and to the same extent, according as 
 the charge in the bill was general merely, or supported 
 by allegation of the particulars constituting the im- 
 puted fraud. 
 ^^_ 104. Fifthly — Suppose the defendant simply to tra- 
 A^.r^'Ci^^^-*^'^^^^ the truth of the plaintiff's case by plea. This is 
 ^^""^ a negative plea, the validity of whi(!h mode of defence, 
 '^'^'^T^S^J though formerly doubted, is now fully established. 
 •J^ Under such cii'cumstances, the "plaintiffs case" is that 
 stated in the bill, involving a negation of the truth of 
 the plea; and his right to a discovery of all matters 
 necessary to prove his own case, is clear upon princi- 
 ples analogous to those which apply to the cases al- 
 ready mentioned. The following statement of the 
 authorities upon this point is given at length, on ac- 
 count of the observation to which they give rise in 
 another place : — 
 
 (?) Rcdcs. Plead, 241. 
 
 -y-
 
 SECOND PROPOSITION. 61 
 
 105. In Jones v. Davis {k), (1809), the bill prayed au 
 account of stone (which under colour of right and 
 without the plaintiff ^s permission) had been taken out 
 of the plaintiff's quarry, by the Bristol Dock Company, 
 to wliom the defendant DaWs was treasurer. The bill 
 alleged, that, upon complaint made to the company, they 
 had promised the plaintiff to pay the fair market price 
 for what stone they had already taken and for a further 
 limited quantity which they w'anted, and that an account 
 should be kept by the company of the stone which had 
 been or should be raised out of the plaintiff's quarry; 
 and that since such promise was made, the plaintiff had 
 been repeatedly assured by the clerks of the company, 
 that regular and correct accounts were kept of the stone 
 raised out of his quarry. The defendant put in a plea, 
 that neither the Bristol Dock Company, nor the defend- 
 ant, nor any clerks or clerk, agents or agent of the 
 company on behalf of the company, ever promised the 
 plaintiff that any account should be kept by the com- 
 pany of the quantities of stone which had been or should 
 be raised and taken up, by or for the company, out of 
 the plaintiff's quarry, or that the plaintiff should be 
 paid for the same, or to that effect. Lord Eldon, Chan- 
 cellor, overruled the plea, saying — ^' In this case my 
 opinion is, that the plea is bad, since it does not contain 
 a negation of the alleged accounts having been kept by the 
 company. If the accounts had been kept by the com- 
 
 (X) 16 Ves. 2Cyl.
 
 62 SECOND PROPOSITION. 
 
 paiiy, that would have been evidence before a jury of 
 such an agreement as that stated in the bill ; and, there- 
 fore, it was not sufficient for the defendant merely to deny 
 the agreement having been entered into." 
 
 106. In Crowy. Tyrrell {I) (1817), the Vice-Cliau- 
 ccllor held it not sufficient to deny, by plea, that a 
 person held as tenant; but that an answer must be 
 given to the specific circumstances stated in the bill, as 
 proving the fact that he did hold as tenant. 
 
 107. In Sanders v. King {m) (1821), the plaintiff filed 
 his bill for an account of the deaUngs and transactions 
 of an alleged partnership. The defendant, by plea, 
 denied the partnership, but did not answer as to certain 
 facts which were specially charged in the bill as evidence 
 of the partnership. The judgment of the Vice-Chan- 
 cellor went fully into the law of the case. " This is a 
 bill for an account of the dealings and transactions of 
 a partnership, in which the defendant King is alleged to 
 have been concerned ; and the defendant King has, to 
 the Avhole of the disco^-ery, pleaded that he was no part- 
 ner." " Upon this plea the issue between the parties 
 is, whether a partnership did or did not exist ; and the 
 plaintiff objects that, although the defendant does by 
 his plea affirm, upon his oath, that there was no pai't- 
 nersliip, yet he is not thereby to deprive the plaintiff 
 of that right to a discovery which the principles of a 
 
 (/) 2 Madd. 397. 
 
 (m) 2 Sim. & St. 277 ; S. C. 6 Madd. 61. And see Yorke v 
 Fry, G Madd. G5, S. P.
 
 SECOND PROPOSITION. 63 
 
 Court of Equity give to every suitor as to the matter in 
 issue between the parties ; and that, notwithstanding 
 his plea, the defendant is therefore bound to answer to 
 all facts and circumstances which are stated in the bill 
 as aflfording e\ddence to disprove the truth of the 
 plea/' " It is very singular that this question does 
 not appear ever to have distinctly arisen before/' 
 " In the case of Drew v. Drew {n) (1813), Sir Thomas 
 Plumer decided, generally, that a plea of no partner 
 was a good plea; but the present point was not 
 taken. " It is stated by Lord Redesdale, in the last 
 edition of his treatise, as the result of several authori- 
 ties, that, if a plea in bar be disproved at the hearing, 
 the plaintiff is not to lose the benefit of his discovery ; 
 but the Court orders the defendant to be examined 
 upon interrogatories to supply the defect.'^ " This 
 necessarily refers to discovery as to the other matters 
 of the suit, and not as to the truth of the plea, which 
 is ah'cady disposed of; but marks the care of the Court 
 to maintain for the plaintiff that advantage of discovery 
 which is the peculiar province of a Court of Equity." 
 " The discovery which a Court of Equity gives is, not 
 the mere oath of the party to a general fact, as part- 
 nership or no partnership, but an answer upon oath 
 to every collateral circumstance charged as evidence 
 of the general fact." " Where the defendant, there- 
 fore, pleads the general fact as a bar to the whole dis- 
 covery as well as reHef, either the plaintiff, in the par- 
 
 (m) 2 Vesey & B. 159.
 
 64 SECOND PROPOSITION. 
 
 ticiiliir case, must lose the equitable privilege of discovery 
 as to the cii'cumstances which he has charged as ca i- 
 dence of the fact, or some special rule must be adopted, 
 by analog}', in order to preserve to him that privilege." 
 " If a plaintiff comes into equity to avoid a legal bar, 
 upon the ground of some alleged equitable circum- 
 stances, as in the case of a release, the defendant 
 is not permitted to avail himself of his legal defence, 
 so as to exclude the plaintiff from a discovery as to the 
 alleged eqviitablc cii'cumstances. He may, indeed, 
 plead his release, but he must in his plea generally 
 deny the equity charged in the bill, and must also 
 accompany his plea with a distinct answer and disco- 
 very as to every equitable circumstance alleged. In 
 such a case the issue tendered by his plea is, not the 
 fact of his release, for that fact is admitted by the bill, 
 but the issue is upon the equitable matter charged. 
 Yet, inasmuch as the principles of a Com-t of equity 
 entitle the plaintiff to a discovery from the defendant 
 upon the matter in issue, here we find that, notwith- 
 standing the defendant pledges his oath that there is 
 no truth in the equitable matter charged, he is never- 
 theless compelled to accompany his plea by an answer 
 and discovery as to every circumstance alleged as evi- 
 dence of the equity." " This practice seems to afford 
 a very strong analogy for the present purpose. There 
 the defendant affirms, upon liis oatli, tliat there is no 
 equitable matter to destroy the legal bar of the release,^ 
 yet he is nevertheless bound to accompany his plea 
 with an answer and discovery as to every circum-
 
 SECOND PROPOSITION. 
 
 65 
 
 stance charged as evidence of that equity. Here the de- 
 fendant affirms upon his oath that there is no partner- 
 ship; andj by analogy, it seems to foUoAV that he is 
 nevertheless bound to accompany his plea with an an- 
 swer and discovery as to every circumstance charged 
 as eWdence of the partnership." " Adopting, there- 
 fore, this analogy for the present purpose, it furnishes 
 this rule, that a plea which negatives the plaintiff's title, 
 though it protects a defendant generally from answer 
 and discovery as to the subject of the suit, does not 
 protect him from answer and discovery as to such mat- 
 ters as are specially charged as evidence of the plain- 
 tiff's title." " According to this rule, this plea, not 
 being accompanied by an answer and discovery as to 
 the circumstances specially charged as evidence of the 
 partnership, must be overruled; but, being a new 
 case, the defendant must be at liberty to amend his 
 plea." 
 
 108. In Thring v. Edgar [o) (1821), the same leanied 
 judge said, " The plea of no debt is a full bar to the 
 whole suit; unless the plaintiff has sought from the 
 defendant a discovery of any circumstances by which 
 the existence of the alleged debt is to be established; 
 and then the defendant, although by his plea he may 
 deny the debt, must still answer as to the particular dis- 
 covery which is thus sought from him." 
 
 109. Sixthly — Suppose the plaintiff to anticipate 
 the defence, and to dispute its truth as matter of fact. 
 
 (o) 2 Sim. cS: St. 280.
 
 GO SECOND rilOPOSITION. 
 
 This tlic plaintiff may be supposed to do, either by u 
 general charge alone, or by alleging, in addition to the 
 general charge, specific matters, as evidence that the 
 anticipated defence is untrue. Cases such as these 
 cannot — so far as a plaintiff^s right to discovery is 
 concerned — be distinguished, in principle, from those 
 in which discovery is ordinarily given. The reason- 
 ing upon the plaintiff^s right to discovery must be 
 the same in these as in other cases. A cause is 
 about to be tried : the plaintiff alleges a case in his 
 bill Avhich, if true, woidd induce a decision in his 
 favour : the onus of proving this case is upon the 
 plaintiff : the case is the subject of evidence : and, dis- 
 covery from the defendant is a species of evidence to 
 which the rules of a Court of Equity entitle the plaintiff". 
 Suppose, for example, the anticipated defence to be a 
 deed, purporting to have been executed and attested at 
 a given time, and at a place in this country, by the 
 plaintiff and by persons named in the plea. Sup- 
 pose further, that, at the time mentioned, the plain- 
 tiff and the attesting witnesses were resident in parts 
 beyond sea — making it impossible that the deed 
 could be other than a forgery — and that the bill 
 contained charges as to these circumstances, which, 
 if admitted, would destroy the deed. Would the 
 plaintiff have a right to compel a defendant (who 
 pleaded this deed in bar) to admit or deny his 
 knowledge of the suggested circumstances? If the 
 defendant were charged to be a pai'ty to the for- 
 gery of the deed, he would not, upon a special
 
 SECOND PROPOSITION. 
 
 67 
 
 ground of exemption, be bound to answer as to 
 that forgery, or any of the circumstances attend- 
 ing it. But, excluding this specialty, the defend- 
 ant could not (it is conceived) by plea or otherwise, 
 withhold the discovery sought by the bill as to the 
 matters charged as evidence of the untruth of the plea, 
 A negation of the plaintiff ^s right to discovery, in such 
 cases, would involve the proposition that a defendant, 
 by resorting to a defence by plea, might compel a 
 plaintiff to try his cause without evidence — a proposition 
 not sustainable in a Coui't of Equity. 
 
 1 10. The cases of negative pleas already noticed, are 
 in principle, if not in specie, authorities in point. The 
 following authorities, however, appear in specie to sup- 
 port the plaintiff's " right" to discover}^ in the cases 
 immediately under consideration, 
 
 111. In Evans w. Harris (jj), (1814), the bill was filed 
 for the specific performance of an agreement alleged 
 to have been in writing, suggesting that the agree- 
 ment was either in the defendant's possession, or that 
 he had destroyed it, and charging divers collateral 
 matters " as evidence " of such written agreement. The 
 defendant put in a plea of the Statute of Frauds to all 
 the discovery and relief, averring, that there had been 
 no agreement in ^^'riting; but he did not answer the col- 
 lateral matters. The Yice-Chancellor, in ginng judg- 
 ment, said (inter alia) — " The statute has no application, 
 
 (i>) 2 Ve5. & B. 361. 
 p2
 
 G8 SECOND PROPOSITION. 
 
 if tlic written agreement charged does exist. The ques- 
 tion then comes to this : whether, when the rehef rests 
 on one material fact, as evidence of which several collateral 
 facts are charged, it is sufficient to deny the substantive 
 fact ; or whether the defendant nvust not discover the 
 collateral facts. To a hill, stating the corruption of 
 arbitrators, is it sufficient to plead the award merely ; 
 leaving the charge of corruption untouched ? Can a 
 defendant protect himself by a negative plea, from the 
 discovery of a variety of circumstances charged, which, 
 if discovered, would establish the fact in issue? Suppose 
 a bill alleging a partnership; and insisting that the 
 existence of such partnership was made out by a certain 
 document, by settlements of accounts and admissions ; 
 would it be sufficient to plead to such a bill a mere 
 denial that the partnership ever existed ; stopping there ? 
 I cannot find it asserted by any authority, that a plea 
 of one solitary fact would enable the defendant to avoid 
 all further discovery. Such a plea would be no better 
 than an answer [q) ; but the defendant, if he had taken 
 that course, must have gone further. Why then should 
 this plea have this effect ? I cannot conceive a prin- 
 ciple on which this plea can be good : nor can I dis- 
 tinguish this case from Jones v. Davis (r) ; which is a 
 clear decision by the Lord Chancellor, that a mere 
 
 {q) i. e. could not put the defendaut in a better situation, as 
 to that point, than if he had answered, 
 (r) Supra, pi. 105.
 
 SECOND PROPOSITION G9 
 
 denial of an agreement, Avitliout denying the circum- 
 stances charged as making it out, will not do. The 
 plea must, therefore, be overruled." 
 
 112. In Hardman v. Ellames {s), (1833), the bill was 
 to recover possession of certain estates, alleging out- 
 standing terms which prevented the plaintiff from pro- 
 ceeding at law. The bill charged, that the defendants 
 had in their possession deeds and other documents re- 
 lating to the estates, and the title thereto, and the other 
 matters therein mentioned, and shewing the truth of 
 such matters, and particularly as to the plaintijf's 
 pedigree; and that manj' of such documents would shew 
 the particulars of the outstanding terms, and that the 
 plaintiff was the heir-at-law of the testator. To this bill 
 the defendant pleaded, that the title (if any) of the 
 l)laintiff, or of the party through whom by his bill he 
 claimed the estates in question, accrued on the death 
 of John Hardman, (who died in March, 1759), and that 
 the possession had been adverse to the plaintiff and the 
 persons through ivhom by his bill he claimed, ever since 
 the death of the said John Hardman. The Vice-Chancellor 
 overruled the plea. One ground of his doing so was, 
 that the plea should have been supported by an answer 
 as to the charge relating to the possession of deeds and 
 other documents evidencing the plaintiff' 's title. His 
 Honor said — " I am also of opinion that the plea is 
 defective, because it is not supported by an answer, with 
 respect to the collateral circumstances charged by the 
 
 (5) 5 Sim. (340.
 
 /U SECOND PROPOSITION. 
 
 bill, tliut the defendant is in possession of deeds and 
 docnmcnts. For I apprehend, that, according to the 
 rule laid down in Thrbig v. Edgar, if a person pleads a 
 ])lea of a negative kind, or, indeed, any plea inconsistent 
 with the plaintiff's case, he is bound to support it by 
 answer, so far as the bill has charged any collateral 
 matter. Thus, for example, when a defendant pleads 
 that he is a purchaser for valuable consideration with- 
 out notice, to a bill which has charged that he has in 
 his possession certain papers and documents whence it 
 will appeal" that he is not a purchaser without notice, 
 then, by the rules of this Court, the defendant is bound 
 to support his plea by an answer as to that charge [t). 
 Now, inasmuch as there is, in this bill, a charge, that 
 the defendants have in their possession, certain deeds, 
 documents, and writings, shewing the truth of the 
 matters stated in the bill, my opinion is, that, where a 
 defendant pleads such a plea as that now before the 
 Court, and gives no answer to that charge, his plea is 
 insufficient, and must be overruled. 
 
 113. To the above may also be added the case of 
 Emerson v. Harland {u). 
 
 114. These cases have been stated at length,onaccount 
 of the conflict which — if unexplained — they might ap- 
 pear to raise with the terms of the third proposition 
 hereafter to be considered, which asserts the right of a 
 
 {t) See infra, pi. 117. 
 
 {u) 3 Sim. 490 ; S. C. on api.eal, 8 Bligli, 62 ; infra, pi. IIG. 
 But seethe observations upon this case, infra, pi. 117, note.
 
 SECOND PROPOSITION. 71 
 
 defendant to witliliold from the plaintiff a discovery of 
 the evidences exclusively relating to Ins own case. There 
 is no such conflict. In the cases just stated^ the plain- 
 tiff does not call upon the defendant to discover the 
 evidences of Jm own case ; but makes a specific case of 
 his owUj and asks discovery in opposition^ it is true, to 
 the defence — ^but which being addressed to the proof of 
 a case specifically made in the bill, is clearly distin- 
 guishable in principle, as Avell as fact, from a direct in- 
 quiry into the evidences of his opponent's case. The 
 third proposition is not, therefore, touched by the right 
 to discovery which such cases establish. 
 
 115, Seventhly — The defendant may plead an affirm- 
 ative fact which involves a negation of the plaintiff 's 
 case. This is not a pure plea ; for, that would admit 
 the plaintiflP 's case {x) . Nor is it a negative plea, (in 
 tlie common acceptation of the term), for the cha- 
 racteristic of a negative plea is, simply to deny the 
 plaintiff 's allegations, whereas, in these cases, the de- 
 fendant imdertakes to prove a fact ultra those as- 
 serted by the bill. 
 
 116. The point to be determined in the last-men- 
 tioned cases is — whether they are (for the pur- 
 pose of discovery) to be treated as affirmative or 
 negative pleas ? That point determined — the conse- 
 quences will result accordingly ; and the discovery to 
 
 (a) Supra, pi. 08.
 
 72 SECONU PllOPOSITlON. 
 
 which the plaintiflF will be entitled will be governed by 
 the cases already stated. 
 
 117. In Emerson v. Harland (y) , (1831), the plain- 
 tiffs, by their bill, claimed, as heirs ex j)cirte maternd of 
 Ann Trigg, to be entitled to one undivided third part 
 of certain estates in Yorksliirc, of which the defend- 
 ants Avere in possession. The bill stated that Ann 
 Trigg died intestate and without issue, and that, at the 
 time of her death, the male line of her family was ex- 
 tinct, and that she had not any heir or heirs on the 
 side or part of her father ; the bill then prayed, tliat it 
 might be declared that the plaintiff's were entitled to 
 an undivided third part of the estates ; that accounts 
 might be taken of the estates, and of the rents re- 
 ceived by the defendants since the decease of Ann Trigg; 
 and that a partition of the estates might be made be- 
 tween the plaintiff's and the defendants. The bill 
 charged, that the defendants had frequently, by cor- 
 respondence or otherwise, admitted the plaintiff" ^s title. 
 The bill further charged, that the defendants had then 
 or lately had in their custody, possession, or power, 
 the title-deeds, writings, muniments and e^ddences of 
 title, letters, and other documents of and relating to 
 the several estates and hereditaments thereinbefore 
 mentioned, or some of them, or some part thereof 
 respectively ; or to the part, share, and interest of the 
 
 ( y) 3 Sim. 400 ; S. C. in appeal, 8 Bligh, G2.
 
 SECOND PROPOSITION. 73 
 
 said Ann Trigg therein^ and relating to the rents, 
 issues, and profits of the said hereditaments and pre- 
 mises which had accrued due since the decease of the 
 said Ann Trigg, or of or relating to the several matters 
 therein aforesaid, or some of them, or from which the 
 truth thereof, or of some part thereof, if produced, would 
 appear. The defendants put in a plea, in the following 
 words : — " That Lois, the wife of Timothy Morine of 
 Weatherby, in the county of York, gentleman, formerly 
 Lois Harlan d, was, at the death of Ann Trigg in the said 
 bill named, and now is, heir-at-law of the said Ann Trigg, 
 ex parte paternd of the whole blood, which the defendants 
 aver to be true, and are ready to prove, &c/^ The plea 
 was set down for argument, and the plaintiffs' counsel 
 argued, that it covered too much ; for that, at all events, 
 the plea should have been supported by an answer as to 
 the charge relating to the coiTespondence. In answer 
 to this argument, the defendants' counsel insisted that 
 the admission, by the defendants, of the plaintiffs' title, 
 was a collateral fact : that the plaintiffs were put out of 
 Court, by the defendants' shewing that the title to the 
 estate was not in them, but in another person ; that no 
 admission by the defendants would give the plaintiffs a 
 title; and that, if the defendants had answered the charge 
 in question, they would have overruled their plea. The 
 Vice-Cliancellor said—" I think that the defendants 
 should have supported their plea by an answer denying 
 the correspondence : and, on the ground that they have 
 not done so, I overrule the plea." From this order of
 
 74 SECOND I'ROl'OSITION. 
 
 the Yice-Chancellor, tlic defendants appealed to the 
 Lord Chancellor (Lord Lyndhurst), who affirmed the 
 order; and, from the order of the Lord Chancellor, the 
 case was carried to the House of Lords, where the 
 orders of the Com-t below were also affirmed (r). The 
 Lord Cluiuccllor (Brougluim) said — " Li this case the 
 defendants plead, in substance, that the plaintiffs are 
 not heirs, and propose to falsify the title which they 
 set up as heirs ex parte mateimd, by proving that there 
 is in existence an heir ex parte paternd. But, is the 
 case made by the bill, in the particulars charged, one 
 which would be capable of proof or illustration by the 
 disclosure of facts, of which a discovery is sought by 
 the bill ? It is urged, on general principles, that dis- 
 covery ought not to be compelled, if, on proof of the 
 matter of the plea, it will appear that the plaintiff has 
 no title. But, if the title loould in part be proved by 
 discovery of the fact charged, does not that raise a dis- 
 tinct case, and form a ground of exception ? Can a de- 
 fendant to such a bill suppress or evade the discovery 
 by a simple denial of the title generally ? That can- 
 not be the office of a negative plea, or of any 
 plea (a)." 
 
 (;?) 8 Bligh, 62. This case, it will l)c observed, determines 
 only that some answer must be given to the general charge in 
 the Inll, not what that answer should be. See, as to this, infra, 
 pi. 284. 
 
 (o) Adverting to the high authorities by which the decision
 
 SECOND PROPOSITION. 75 
 
 118. The case of Emerson \. Harland upou which 
 some observations will be found in the notes, is 
 scarcely reconcilable with the decision in Plunket v. 
 Cavendish, — a decision, the soundness of wliich, the 
 author submits, cannot be impeached. In Plunket v. 
 Cavendish{b), (1824), the plaintiff claimed certain es- 
 tates, as the right heir of Sir WiUiam Lowther, insisting, 
 
 in Emerson v. Harland is supported, it is with the greatest diffi- 
 dence that the author presumes to offer any criticism upon it. 
 But he cannot admit its soundness. The plea that Lois Morine 
 was heir ex parte paternd absolved the plaintiffs from all obliga- 
 tion to prove their alleged title as heirs ex parte maternd. This 
 latter point could never be the subject of trial in that cause. If 
 the defendant did not prove the truth of his own plea, affirm- 
 atively, the plaintiffs would be entitled to a decree whether 
 they were heirs ex parte maternd or not. The " plaintiff's case" 
 in that cause, after plea pleaded, was simply a negation of the 
 defendant's plea. The only ground upon which a discovery of 
 the correspondence mentioned in that cause could be required 
 was, that it might assist the plaintiffs in proving that negation. 
 But the bill was not so framed as to entitle the plaintiffs to dis- 
 covery upon that ground. It had not anticipated the defence, 
 and contained no charges applicable to it. It is material, how- 
 ever, to observe that Einrrson v. Harland does not decide that tlie 
 defendant was compellable to produce the correspondence if its 
 existence were admitted. A decision to that effect would be ir- 
 reconcilable with the principle of the decision in Plunket v. 
 Cavendish, infra, pi. 118. Bolton v. TJic Corporation of Liver- 
 pool, 1 l^Iyl. & K. 88, and other analogous cases. The case of 
 Hardman v. Ellamcs, supra, pi. 112, is open to some of the 
 observations which have l)een made upon Einerson v. Harland. 
 {}>) 1 Russ. & Myl. Tin.
 
 76 SECOND PROPOSITION. 
 
 tliJit the prior limitations in the will of Sir William Low- 
 ther, imdcr which Lord John Cavendish was tenant in 
 tail^ liad expired. The bill alleged, that the defendant 
 pretended that a recovery had been suffered by Lord 
 John Cavendish, and that the uses of such recovery 
 had been limited to him in fee, and that the defendant 
 w^as entitled to the estates under him. The bill then 
 charged, that no good or valid recovery was ever suf- 
 fered of those estates, and, if any recovery were suffered, 
 that the estates were so settled, that, in the events which 
 had happened, the plaintiff, as the right heir of Sir AVil- 
 liam Lowther, was entitled thereto; and that it would 
 so appear, if the defendant would produce the deeds, &c. 
 To this bill the defendant pleaded a recovery duly 
 suffered, and the deed declaring the uses thereof. By 
 the uses (which were set forth in the plea) it appeared, 
 that the defendant was lawfully entitled to the es- 
 tates. The argument against the plea was, that it 
 should have been supported by an answer meeting the 
 charge in the bill, " that if any recovery were suffered, 
 the estate was so settled, that, in the events which had 
 happened, the title was in the plaintiff, and that it 
 would so appear if the defendant would produce all such 
 deeds as therein mentioned." The Vice-Chancellor 
 (Sir J. Leach) said, that the only question was, whether 
 the case came wdthin the rule, that where there are 
 collateral allegations in the bill sufficient to avoid the 
 effect of the matter relied upon as a defence by way of 
 plea, those allegations must be denied by answer, in
 
 SECOND PROPOSITION. '^'7 
 
 order to make the pica an effectual defence; that here, 
 the charge in the bill Avas, that, if any recovery were 
 suffered, the estate was so settled that the plaintiff 
 was entitled as the right heir of Sir William Lowther; 
 that the plea was a direct denial of that averment; for, 
 it set forth the uses of the recovery, and under those 
 uses there could be no such title as was alleged in the 
 bill ; and, that it was therefore evident, that the mat- 
 ter chai'ged in the bill, to which the plaintiff argued an 
 answer should have been given, was not collateral to 
 the matter pleaded. The plea was allowed. 
 
 119. The decision in the case oiPlunket\. Cavendish 
 proceeded (and the author presumes to add correctly) 
 upon the principle, that the plea was to be treated as 
 an affirmative plea(c). The defendant took upon him- 
 self to prove a fact, and submitted that a decree should 
 go against him if he failed in doing so; and the bill 
 called for no discovery necessary for the trial of that 
 point. 
 
 120. Upon the two last cases the reader will find 
 room for speculation. It will be observed with respect 
 to Emerson v. Harland, that the bill charged that there 
 were no heirs ex parte paternd, and that this fact would 
 appear, if the correspondence were produced. Some an- 
 swer was held necessary to this charge (f/). 
 
 121. The above cases, it is to be understood, are put 
 as examples only. 
 
 (c) See Dlackctt v. Langlands, 4 Gwillym, 13G8. 
 {d) But qu. ? and see note pi. 117.
 
 78 SKCOM) PROPOSITION. 
 
 122. Lastly — Let it be supposed tliat tlic defendant 
 meets the plaintiff^s case by answer. Tliis mode of 
 defence, as already observed, offers no objection to 
 tlie cause proceeding to a hearing in its regular 
 course, and all objections to the relief which the 
 plaintiff claims, whether apparent upon the bill it- 
 self or brought forward by answer, are in this mode 
 of defence reserved for trial at that one hearing (e). 
 As all objections are thus kept open, the plaintiff may 
 be obliged to sustain his case by evidence applicable 
 to every one of the grounds of objection noticed by 
 Lord Redesdale, and cited in a former page(/). And 
 as all the points in the cause will thus come on for 
 trial simultaneously, the right of the plaintiff to dis- 
 covery will of necessity attach upon them all. 
 
 123. The preceding observations, as to the "plain- 
 tiff's case," are intended only to illustrate and explain 
 the nature of the case upon which a plaintiff's right to 
 discovery attaches, and the stage or stages in the cause 
 in which, according to the pleadings, that right arises. 
 The extent to which the right may be pursued, and the 
 restrictions in favour of defendants, by which it is 
 guarded, remain for consideration. 
 
 (e) The great advantage of this mode of defence over that 
 by plea, which reduces the cause to a single point, has already 
 been noticed, supra, pi. 44, note. 
 
 (/) Supra, pi. 82.
 
 SECOND PROPOSITION. 79 
 
 124. " As a genei-al rule.'* The rule of equity 
 which gives the plaintiff a general right to discovery, is 
 not without its exceptions. 
 
 125. The state of the authorities requires that these 
 exceptions should be considered with reference to the 
 two classes of cases upon which the Foiu'th and Fifth 
 Propositions have been constructed, namely : 
 
 I. — \^Tiere the objection to discovery is founded upon 
 a denial of the plaintiff's right of suit, or of his right 
 to proceed with his suit in its existing state ; and, 
 
 II. — Where the objection to discovery depends exclu- 
 sively upon the nature of the discovery sought. 
 
 126. Without admitting that there are any excep- 
 tions of the first class, the state of the authorities 
 requires that it should be separately noticed [g). 
 
 127. Taking the second class of cases first, it has 
 been already observed (A), that it is only in aid of civil 
 proceedings, that Courts of Equity compel discovery. 
 But, it may happen, that, in proceedings for a merely 
 civil purpose, material facts constituting evidence of 
 the " plaintiff's case'' may be alleged in a biU, and 
 inquiries may be founded upon such alleged facts, the 
 answers to which would subject the party alleging 
 them to criminal proceedings. Will a Court of Equity 
 
 (//) Infra, pi. 147, et seq. 
 
 {h ) Supra, pi. 10 : and see Glj/n v. Houston, 1 Keen, .329, 
 (183(;).
 
 80 SECOND PROPOSITION. 
 
 compel a defendant to answer an interrogatory to 
 wliich such an observation applies ? 
 
 128. Similar questions apply to numerous other 
 cases. 
 
 129. It is foreign to the Avritcr's purpose, to enter 
 into a detailed examination of these cases, with their 
 various qualifications and exceptions. The following 
 brief notice of the principal cases, which constitute the 
 exceptions to the general rule, is here given (i), for the 
 purpose of illustration only, and to assist in the examin- 
 ation of a rule of pleading, which will be found in a 
 future page {k). 
 
 "'/^y^ ^ /■?./• ^^^' ^^ ^ question involves a criminal charge, the 
 plaintiff is not entitled to an answer to such question (/), 
 however material it may be to the " plaintiff's case." 
 This was carried to its extent in Maccallum v. Turton{m). 
 In the application of this principle, it has been held, 
 that a married woman will not be compelled to answer 
 a bill which would subject her husband to a charge of 
 felony (w). 
 
 131. So, — if the answer of the defendant to a given 
 question would subject him to pains or penalties, the 
 
 («■) See as to all the exceptions, Redes. Plead. 194. 
 
 {k) What matters a' defendant who defends by answer may 
 refuse to discover. Infra, pi. 272, et seq. 
 
 {I) Thorpe V. Macaulay, 5 Madd. 229; and see cases collected 5 
 Madd. 231, n. (s). 
 
 (m) 2 Younge & J. 183 ; and see Harrison v. iSouthcote, 1 Atk. 
 639. 
 
 (ti) Cartwright v. Green, 8 Ves. 405.
 
 SECOND PROPOSITION. 81 
 
 plaintiff is not entitled to an answer to such question [o), 
 however material the answer might be to the " plain- 
 tiff's case." 
 
 132. So, — if the answer would subject the defendant 
 to ecclesiastical censure (p) . 
 
 133. So, — if the answer would prove the defendant 
 guilty of great moral turpitude, siibjecting him to 
 penal consequences (g). 
 
 134. So, — of a forfeiture of interest [r), strictly so 
 called. But, the objection does not apply to the mere 
 determination of an interest by force of a limita- 
 tion {s). 
 
 135. So, — formerly if the defendant were a pur- 
 chaser, without notice of the plaintiff ^s claim (t) . But 
 
 (o) Redes. Plead. 194, .^T ; Hare, 181 ; where the cases are 
 classed. Extent of the privilege, Hare, 149 ; Parkhiirst v. Lowten^ 
 1 Mer. 391 ; Attorneij -General v. Brown, 1 Swans. 265, 294 ; Bil- 
 ling V. Flight, 1 Madd. 230 ; Bullock v. liichardson, 11 Ves. 373 ; 
 Neline v. Newton, 4 Madd. 253, n. (a) ; Curson v. Delazouch, 1 
 Swans. 185, 192; Paxton Y.Douglas, 19Ves.225; Lloi/d\ .Passing- 
 ham, 16Ves.59, 64 ; Roivc v. Teed, 15 Ves. 372 ; Claridge x.Hoare, 
 14 Ves. 69 ; Thorpe v. Macaulay, 5 Madd. 218 ; Drummer v. Cor- 
 poration of Chippenham, 14 Ves. 245 ; Mant v. Scott, 3 Price, 493 ; 
 Gibbons v. Waterloo Bridge Coinpany, 5 Price, 491 . 
 
 (/>) Finch V. Finch, 2 Ves. sen. 493. 
 
 {q) Broumsword v. Edwards, 2 Ves. sen. 245. 
 
 (r) Lord Uxbridge v.Stavcland, 1 Ves. sen. 56. 
 
 (.?) Attornev-General v. Dujflessis, 2 Ves. sen. 280 ; Redes. 
 Plead. 197, 198. 
 
 (0 Howe V. Teed, 15 Ves. 378; Claridge v. Iloare, 14 Ves. 59 ; 
 Tlare, 89, 104. 
 ' G
 
 82 SECOND PROPOSITION. 
 
 later decisions seem to consider a purchaser for value 
 ■without notice, as not entitled to any greater privilege 
 than a party having any other ground of defence {u). 
 
 136. So, — if the matter to which the question apphes 
 be within the pri\dlege allowed to communications 
 between a client and his attorney (<r); — a privilege 
 which, it seems, applies to the attorney himself in all 
 cases (y). The late case of Desborough v. Rawlins [z) 
 •"^ "*^]T^^^*^ contains much valuable criticism upon the subject of 
 /ii— -"^--r^ professional privilege. 
 
 y^ 3 . 137. The above privileges extend, it has been said, to 
 
 '{^"^^^^13 - t^i6 representatives of the party (a). 
 
 138. With respect to these excepted cases, it must 
 be] further observed, that the defendants privilege 
 
 {u) Ovei/ V. Leighton, 2 Sim. & St. 234 ; Earl of Portarlington 
 V. Soulby, 7 Sim. 28 ; and see Sugden's Vendors and Pur- 
 chasers, .304. 
 
 {x) Bolton V. The Corporation of Liverpool, 1 Myl. & K. 88 ; 
 Garland v. Scott, 3 Sina. 396 ; Hughes v. Biddulph, 4 Russ. 190 ; 
 Vent V. Facet/, Id. 193 ; Preston v. Carr, 1 Y. & J. 175 ; Wliit- 
 hread v. Gurnet/, 1 Younge, 541 ; Newton v. Beresford, Id. 377 ; 
 Hare, 163, 174, 182. N. B. Some judges have thought, that the 
 judgment in Bolton v. The Corporation of Liverpool goes too far 
 upon this point ; others, that it did not go far enough. Storey v. 
 Lord George Lennox, 1 Keen, 352 ; Nias v. The Northern and 
 Eastern Railway Company, 2 Keen, 76 ; Bcllwood v. Wetherell, 1 
 Younge v. Collier, 219. 
 
 {y) Greenough v. Gaskell, 1 Myl. & K. 98. See, however, 
 Wright v. Mayer, 6 Ves. 280 ; Fenwick v. Reed, 1 Mer. 114 ; 
 Hare, 160,174. 
 
 {z) 3 Myl. & Cr. 515, (1838). 
 
 {n) Parkhurst s.Loioten, 1 Meriv. .391.
 
 SECOND PROPOSITION. 83 
 
 extends, not merely to the particular question to which 
 the objection applies, but to every question in the bill, 
 the answer to which would form a link in a chain of 
 evidence, which, if perfect, would lead to the conse- 
 quences against which the privilege is intended to 
 guard {b). 
 
 139. The cases which have just been cited, arc, 
 strictly speaking, exceptions {c) to. the general rule. 
 For, the questions to which the privilege applies, are 
 questions, the answers to which would, by the sup- 
 position, be material to the plaintiff's case. The 
 cjuestions, therefore, are ivithin the scope and principle 
 of the first proposition, but without its operation — upon 
 grounds peculiar to the questions themselves. In other 
 woi'ds, the privilege applies to particular discovery, as 
 distinguished from objections founded upon the merits 
 of the party's case, a distinction Avliich the reader will 
 find of importance in a later page {d). 
 
 1 10. Whenever the reason for the exception ceases, 
 the priWlege wUl cease also (e). Thus, if a penalty 
 would enure to the benefit of the plaintiff in the cause, 
 
 (b) Clariclgc v. Hoare, 14 Ves. .59 ; Paxton v. Douglas, 10 Ves. 
 225 ; Thorpe v. Macaulay, 5 Madd. 220 ; E. India Company v. 
 Camjybelly 1 Ves. sen. 246 ; Attorney-General v. Duplessis, 2 Ves. 
 sen. 280 ; Ilare, 152. See Chambers v. Tl^mnpson, 4 Bro. C. C. 
 4.3G, n. (ff ), Lord Henley's edition ; GJyn v. Houston, 1 Keen. ;}2!). 
 And see Curzon v. Delazouch, 1 Swans. 185. 
 
 (c) Infra, Prop. III. pi. .342, note, 
 (c?) Infra, pi. 15.3, Adams v. Fisher. 
 
 (c) See as to all these cases, Hare, 1.35 et setj. 
 
 G 3
 
 84 SECO.VD PROPOSITION. 
 
 and the plaintiff" by his bill waives the penalty, the de- 
 fendant nuist answer (/). 
 
 141. So, — of a forfeiture (^) . 
 
 142. So, — if the time for suing for penalties has ex- 
 pired (h). 
 
 143. So, — if the party has, by contract, bound him- 
 self to answer the question, notwithstanding the con- 
 sequences {i). 
 
 144. So, — if a bill requires discovery of matter of 
 criminal accusation, and also of innocent matter, the 
 latter must be answered {k). 
 
 145. Other cases to the eff'ect of the above might be 
 stated (/). 
 
 146. In Ewing v. Osbaldiston {m), the Vice-Chancellor 
 decided, that where a defendant had made admission 
 sufficient to shew that he had incurred the penalties of 
 an act of Parliament, he could not refuse to produce 
 documents, upon the ground that they aflfbrded evi- 
 dence of his being subject to penalties. The admis- 
 sion should be very fidl and distinct upon which a 
 Court of Equity applied a principle like this. 
 
 (/) Redes. Plead. 193, .307 ; Hare, 137. 
 
 (ff) Redes. Plead. 197,286. 
 
 (/i) Williams y.Farrington, 2 Cox, 202 ; Corporation of The 
 Trinity Ilmise v. Burgc, 2 Sim. 411 ; Davis v. Rcid, 5 Sim. 443; 
 and see Green v. Weaver, 1 Sim. 404. 
 
 (i) Redes. Plead. 195, 287. 
 
 (/•) Att.-Gcn. V. Broion, 1 Swanst. 26.5, 294. 
 
 (/) Redes. Plead. 19.5 et seq. 
 
 (w?) Sim. 608.
 
 SECOND PROPOSITION. 85 
 
 147. Such, tlien, is the second class of cases which 
 was noticed above (w) under the head of exception to the 
 general rule, which entitles a plaintiff to all discovery 
 material to his own case. 
 
 148. The first class remains to be examined. It 
 has been shewn [o), that where a defendant denies 
 the plaintiff^s right of suit, or his right to proceed 
 with his suit in its existing state, he may by de- 
 murrer or plea, according to the nature of the 
 case, demand the judgment of the Court whether 
 he should give the discovery sought by the bill or not. 
 Now suppose a defendant, instead of taking these ob- 
 jections or either of them by demurrer or plea, to 
 defend the suit by answer, and to insist therein upon 
 the same ground of objection as he might have done 
 by demurrer or plea. That he might by answer insist 
 upon every ground of defence to the relief prayed by 
 the bill, which he might have done by demmTer or plea, 
 is clear; but is it open to a defendant, who defends by 
 answer, to withhold the discovery which a demurrer or 
 plea would have covered (^y)? Does not that form of 
 pleading alone preclude the defendant from ol)jccting 
 to any discovery which may be material to the relief 
 
 («) Supra, pi. 36, 37, 40, 43. 
 
 (o) Supra, pi. 20, 21, 34 et seq. 
 
 (;>) The present argument, it will be observed, does not em- 
 brace the cases in which the objection to discovery is founded 
 upon the nature of the discovery only, pi. 20, 21, and pi. 125, 
 12fi.
 
 8() SECOND PROPOSITION. 
 
 prayed l)y the bill, Avlicther the plaintiff' sliall be 
 eventually held entitled or not ? The cases Avhich 
 in practice usually give rise to the question are those 
 in which the plaintiff prays an account, and the de- 
 fendant by miswer denies the plaintifl''s right to that 
 account; and the question is, — whether, before the trial 
 of that principal point, the defendant shall give dis- 
 covery, and produce his books, papers, &c., relating 
 only to the question of the account. 
 
 149. This question is commonly expressed, both in 
 argument and in judgment, in some of the following 
 forms: "whether a defendant can by answer protect 
 himself against discovery ?'' — " whether a defendant 
 who answers a bill must not * answer fully?' " — "whe- 
 ther a defendant who answers a bill must not answer 
 ' throughout {q) V " None of these expressions con- 
 vey, with accuracy, the precise question they are in- 
 tended to raise, for, unquestionably, a defendant may 
 by answer refuse to give discovery, falling within the 
 exceptions already noticed, in which the objection is 
 grounded in the nature of discovery itself, (as where it 
 would subject him to penalties), and it is equally clear 
 that a defendant who answers a bill cannot prima 
 facie be compelled to discover the evidences which 
 exclusively relate to his own case. The real ques- 
 tion is : whether, when a defendant defends by answer, 
 the right of the plaintiff to relief, and the regularity 
 of his suit in point of form, are not conceded to 
 
 (v) Iiilia, ].l. 2G». 1 I Vcs. 300, 1(! Ves. 387.
 
 SECOND PllOPOSITIOX. 87 
 
 the plaintiff for the purpose of determining the extent 
 of his right to discovery? — or whether (as LordThurlow 
 observed in Cookson v. Ellison (r) ) the Court, upon ar- 
 gument of exceptions to an answer, can enter into the 
 question, whether a demurrer or plea to the bill Avould 
 or would not have been alloAved. 
 
 150. In the examination of this question, therefore, 
 the reader should begin by excluding from his consi- 
 deration those cases in which the objection to dis- 
 covery arises merely out of the nature of the question 
 proposed, and by confining his attention to those cases 
 in which a question, unobjectionable in itself, and ma- 
 terial to the plaintiff^s case if his right to relief were 
 estabHshed, is objected to by the defendant, upon the 
 ground only that the plaintiff has no case for the as- 
 sistance of a Court of Equity, or that he is not entitled 
 to such assistance in the existing state of his suit, — an 
 objection which it is the proper office of a demurrer or 
 plea to raise {s) . 
 
 (/•) 2Bro. C. C. 252. 
 
 (s) The distinction between the exce2)tiuns to the general rule 
 which have been noticed, and the eawe now under consideration, 
 with reference to a defendant's means of protecting himself against 
 discovery, is very neatly expressed by Mr. Hare: "lie (the de- 
 fendant) is not permitted to say, ' I will not answer because you 
 have no title to relief against me at law or in equity,' for he has 
 passed that stage of the cause in which such an ol)jection is ap- 
 propriate ; but he may say in any stage of the cause, ' I am not 
 liound to make this discovery, even admitting your title were 
 as you have asserted.'" Hare, 270.
 
 88 SECOND PROPOSITION. 
 
 151. For the present also, it is to be assumed, that 
 every vaUd ground of defence may (theoretically at 
 least) be insisted upon by demurrer or plea, according 
 to the nature of the case {t) ; provided in the case of a 
 plea, the defendant is content to rest his defence 
 upon any single question (w). Upon this assumption, 
 every defendant who defends by answer must be taken 
 either to admit the plaintiff ^s title to some relief and 
 to the discovery ancillary to it, or voluntarily to have 
 waived a defence by demurrer or plea, in consider- 
 ation of some contingent advantage to be gained by 
 answering [x] . 
 
 152. The cases to which the present observations are 
 confined, involve the consideration of two grounds of 
 objection:— one, relating to the merits of the plaintiff^s 
 case, — the other, to the form of his proceeding (y) . 
 The author is not aware of any case, in which it has 
 
 (t) The assumption here made was scarcely necessary; for, 
 as Sir Wm. Grant has observed, " There is no difference whe- 
 ther the court has determined that the bill is such as the defend- 
 ant must answer, or whether the defendant has by his own 
 conduct precluded himself from raising that question." — 11 Ves. 
 42, in Taj/lor v. Milner. 
 
 (u) Supra, pi. 44, note. Instances of double pleas being al- 
 lowed are rare : see Beames on Pleas. 
 
 (,r) The advantage of answering instead of pleading to a bill, 
 by enabling the defendant to go into his case at large, has already 
 ])een noticed, supra, pi. 44, note. The advantage of answering 
 instead of demurring, will be found incidentally noticed here- 
 after, infra, jd. 1.58. 
 
 (y) Sui)ra, pi. 34.
 
 SECOND PROPOSITION. 89 
 
 been held that an objection of form only could be 
 effectually insisted upon by answer as a ground for 
 resisting discovery, to which the plaintiff would be 
 entitled, if his right to relief were admitted or 
 proved. But in the late case of Adams \. Fisher [z), 
 the Lord Chancellor decided, that a defendant might 
 to some extent, by answer, resist discovery, to which 
 the plaintiff would clearly be entitled, if the case made 
 by his bill were founded. This decision has induced 
 the author to enter at large into the examination of 
 the point under consideration [a). 
 
 153. In Adams v. Fisher {b), the plaintiff (as per- 
 sonal representative of a deceased testator) stated by his 
 bill, that the defendant Fisher had acted as his soli- 
 citor, and had, in that character, received various sums 
 
 (c) 3 Mylne & Craig, 526. 
 
 (a) Prior to the decision in Adams v. Fisher, the author had 
 long been of opinion that the Court was imperatively called upon 
 to adopt one of two courses, namely, either to found a system 
 of practice, of which cases like Adams v. Fisher would be part, 
 or to explain, and, if necessary, modify the existing rules of 
 pleading applicable to demurrers and pleas. The best consider- 
 ation, however, which he had been able to give the subject, had 
 led him to the conclusion, that the former of these courses was 
 open to the most serious objections, and that the Court had 
 deliberately rejected it. The effect ui)on the practice of the 
 Court, by the decision in Adams v. Fisher, in combination 
 with another case (^Latimer v. Neate) is noticed hereafter, infra, 
 Prop. V. 
 
 {h) Adams v. Fisher, ^ Myl. cS: Cr. 526.
 
 90 SECOND PROPOSITION. 
 
 of money on account of the testator's estates, for 
 Avliich he had not accoiuited ; and that he had in his 
 possession books and papers relating to the testator's 
 estate ; and called for a schedule, and production of 
 such books and papers, and also prayed an account. 
 The defendant admitted collecting the estate of the 
 testator, and the possession of books and papers relat- 
 ing to the estate, and set out a schedule of them, but 
 insisted that he was not the plaintiff's solicitor, but the 
 solicitor of Fisher, who was the person employed by the 
 plaintiff to collect the estate, and that he was account- 
 able to Fisher only, and not to the plaintiff. Upon 
 a motion for the production of the documents in. 
 the schedule, the Lord Chancellor refused the mo- 
 tion. In the coiu'se of the argument, the Lord Chan- 
 cellor said, " Suppose a bill is filed by a person 
 claiming to be a creditor or legatee, or in any other 
 assumed character, and the defendant denies that the 
 plaintiff is what he is alleged to be, but states, on the 
 contrary, that he is a perfect stranger, and denies, in 
 short, ever}' tiling on which the plaintiff proceeds, but, 
 not haA^ing protected himself b}' plea, he is obliged to 
 answer; is the plaintiff, as a matter of course, to ask for 
 all the documents in the possession of the defendant 
 which relate to any of the matters introduced in the 
 bill ? I only want to know how far you carry the prin- 
 ciple ; whether, as a mere matter of course, documents 
 which, if the defendant's allegation is true, have 
 nothing to do with pro\iug the case made by the bill,
 
 SECOND PROPOSITION. 91 
 
 arc to be produced for the plaintiff 's inspection ? If a 
 bill is filed by a person as a creditor^ and lie asks for 
 all the title deeds of the real estate, is the plaintiff 
 entitled to see the title deeds of a person's estate 
 because he calls himself a creditor, which the defend- 
 ant denies that he is ?" In giving judgment his Lord- 
 ship said, " Here the defendant fias denied the jjlain- 
 tiff's interest; he has on the record stated, that which, 
 as it stands, in my opinion, excludes the plaintiff from 
 instituting this suit against him. As long as that 
 stands, I think the plaintiff is not entitled to see the 
 documents. 
 
 154. In deciding whether a defendant shall be per- 
 mitted by answer to protect himself against discovery, 
 in cases like Adams v, Fisher, the Court has four coui'ses 
 of practice open to it: — 1, that of giving to the answer, 
 to all intents and purposes, the force and effect of a 
 demurrer or plea; — 2, that of giving to the plaintiff 
 the same fuU right of discovery before the hearing, as 
 he would be entitled to, if his right to relief were 
 admitted or proved, and the only question between the 
 parties was the amount of his demand ; — 3, that of lay- 
 ing down some definite intermediate rule, by which the 
 extent of a plaintiff's right to discovery, where by 
 answer the defendant denies his right, may be deter- 
 mined ; — and 4, that of leaWng the question undefined 
 by any rule, except that which may be described as 
 the " discretion of the Court.''
 
 92 SKCOXI) rUOI'OSITION. 
 
 155. With respect to the first of these courses, the 
 author is not aware that it has ever been held in judg- 
 ment, or suggested in argument, that a defendant can 
 have the same full benefit of a defence by answer, as by 
 demurrer or plea, in withholding discovery. In the 
 case before suggested, of a bill for an account, if the 
 defendant should plead the statute of limitations, or any 
 plea in bar, he could not be obliged to give any answer 
 to so much of the bill as related only to the plaintiflPs 
 original title to an account, for the plea would admit 
 that. But, if he rehcd upon the same defence by 
 answer, he would clearly (it is conceived) be bound to 
 give a full answer to so much of the bill as related 
 to the plaintiflF^s original title; for a defence by answer 
 does not, even for the purposes of argument, admit any 
 of the bill to be true, to which the admissions in the 
 answer do not in terms apply. Again; in the case 
 before suggested, of a bill for an account, the amount 
 of the plaintiff's demand would be part of the "plaintiff's 
 case.'' If a release were pleaded, the plea Avould shut 
 out aU actual discovery, even an answer to the most 
 simple and direct questions relevant' to that amount. 
 Now, it admits not of controversy, that if in the same 
 case the defence be made by answer, the plaintiff" may, 
 by apt charges in his bill, compel the defendant to 
 answer specific charges, stating or shewing the amount 
 of the plaintiff 's demand ; and it is equally clear that 
 a defendant, who, by means of such specific charges, 
 has got an admission with which he is satisfied, may
 
 SECOND PROPOSITION. 93 
 
 take a decree at the hearing of the cause for the 
 amount appearing by the answer to be due to him, 
 instead of going to an account before the Master (§'). 
 This example alone is sufficient to prove^ that the 
 plaintiff ^s right to discovery, where the defence is by 
 answer, attaches, to some extent at least, upon parts of 
 the bill which a demurrer or plea might wholly cover. 
 The state of the record in Adams v. Fisher did not 
 raise this question, and the language of the judgment 
 appears to exclude the supposition that the Lord Chan- 
 cellor considered that an answer could have, to all 
 intents and purposes, the effect of a demurrer or plea. 
 " Now I took leave (said the Lord Chancellor (r) ) to 
 ask Mr. Anderdon how far he carried the principle; 
 and he very properly limits it within its true bounds : 
 that is, he admits {s), as to every document not neces- 
 sary to make out the plaintiff ^s equity, that the plain- 
 tiff is not entitled to see it. Whatever may make out 
 the plaintiff's title he may have a right to see. The 
 documents in question, however, are not to make 
 out Adams^ title to have the bill taxed, and the 
 production of them could not possibly aid the asser- 
 
 {q) Per Lord Eldon, in Rowe v. Te^, 15 Ves. 375 ; and see 
 infra, pi. 159. 
 
 (r) 3 Myl. & Cr. 54G. 
 
 (s) If the judgment is to be referred in any degree to this 
 admission, the operation of the decision upon future cases may be 
 very limited.
 
 94 FIRST PROPOSITION. 
 
 tion of tlic equity wliicli Adams has asserted by liis 
 bill." 
 
 156. The second course above suggested, is that 
 which the author had considered the rule of the Court 
 prior to the case of Adams v. Fisher [t], but wliich that 
 decision has undoubtedly displaced. 
 
 157. The two extreme courses of practice above sug- 
 gested, appear, therefore, to be excluded. Before ad- 
 verting to those which remain, the author ventures to 
 suggest some difficulties in principle, convenience, and 
 authority, which may be experienced in upholding the 
 decision in Adams v. Fisher, and by reference to which 
 (if the decision itself be not affected by them) the 
 future practice of the Court must in a great degree be 
 regulated. 
 
 158. First, as to principle. If a defendant who 
 denies a plaintiff^s right of suit may, as in Adams v. 
 Fisher, insist by answer that he is not bound to give 
 discovery upon points subordinate to the question of 
 the plaintiff's title, (as the amount of his demand), 
 some difficulty may reasonably be experienced in un- 
 derstanding how demurrers or pleas barring a plain- 
 tiffs right of suit should in practice have obtained a 
 place among pleadings in equity. A defendant, who 
 demurs, indeed, may have the benefit of every ob- 
 
 (0 3 Myl. & Cr. 52(5.
 
 SECOND PROPOSITION. 95 
 
 jection which is apparent upon the face of the bill, and 
 a decision in favour of a demurrer, if submitted to by 
 the plaintiff, will put a more speedy termination to a 
 suit than a defence by answer. But this possible ad- 
 vantage is purchased at the price of a premature dis- 
 cussion of the case, of which, if the demurrer should 
 be unsuccessful upon argument, or the plaintiff be per- 
 mitted to amend his bill, or if he should file a new bill, 
 he will not fail to take advantage. The injurious con- 
 sequences of such discussions have, almost univer- 
 sally (w), induced counsel of the greatest experience to 
 advise against the practice of demurring, except where 
 it was of paramount importance to the defendant to 
 avoid some of the discovery sought by the bill. The 
 necessity for demurring could never have existed, if a 
 defendant could by answer be protected against the dis- 
 covery which the demurrer would cover. A plea which 
 raises a question of law only, is in the same predicament 
 as a demurrer. A plea, however, Avhich raises a ques- 
 tion of fact, is open to observations of a graver character, 
 which would necessarily supersede its use, if a defend- 
 ant might by answer protect himself against discovery, 
 save that which may be necessary to try the plea itself. 
 If the defendant has several grounds of defence, he 
 will by plea lose the benefit of all, except that which 
 his plea may raise, — whereas by answer he may have 
 
 (u) A case depending exclusively upon the construction of 
 a written instrument, and some few other cases, may be free 
 from the objection.
 
 96 SECOND PROPOSITION. 
 
 the benefit of them all. If circumstances exist, as in 
 the case put by Lord lledcsdale {x), by which the 
 plaintiff ^s right to relief may be qualified, the defendant 
 by pleading, may lose the benefit of those qualifying 
 circumstances which an answer would save. And, if 
 the ground of defence be single, the defendant will 
 obtain no advantage by a plea which an answer will 
 not equally afibrd him, but will suljject himself to the 
 disadvantage of a premature discussion of his case, 
 which has ah'cady been adverted to. Negative pleas 
 were (although reluctantly) admitted in equity plead- 
 ings, because, without such a mode of meeting a case, 
 the defendant was without the means of protecting 
 himself against discovery, although he should deny the 
 plaintiff's right of suit, — a reason which negatives the 
 supposition that an answer could have performed the 
 same ofl&ce. 
 
 159. In the cases which have most frequently, if not 
 exclusively, given rise to discussions upon the point 
 decided in Adams v. Fisher, the discovery against 
 which the defendant has sought protection, has been 
 discovery relevant only to the amount or extent of the 
 plaintiff's demand (y), the validity of the demand itself 
 being denied by the answer. It is certainly difficult to 
 understand the principle, which, where the defence is 
 by answer, denies the plaintiff's right to discovery 
 material to the proof of the amount or extent of his 
 
 (x) Supra, pi. 44, note. 
 
 (j/) Supra, pi. m, .37 ; Hare, 2.51.
 
 SECOND PROPOSITION. 97 
 
 demand. If the plaintiif may ask a decree at the 
 hearing of the cause for payment of the amount ad- 
 mitted by the answer to be due to him [z], (which 
 unquestionably he may do), and if, for the purpose of 
 getting that admission, he may compel the defendant 
 to answer specific questions apphcable only to the 
 amount of his demand, (a power respecting which no 
 doubt can exist), upon what principle shall he be denied 
 discovery which may be necessary- to enable him to 
 suggest those questions to the defendant, by means 
 of which alone he can obtain the admission upon which 
 a decree for immediate payment of his demand may be 
 founded ? The amount of the plaintiff ^s demand is a 
 point in the " plaintiff's case," upon which a decree 
 may be made at the hearing. The admission of the 
 defendant is evidence upon which that decree may be 
 founded. Discovery fi'om the defendant as to the ac- 
 count sought by the bill, and documents in his posses- 
 sion relevant to it, are material evidence by which the 
 requisite admission may be obtained. Upon what 
 principle can a plaintiff, who is permitted to make the 
 immediate payment of his demand the subject of decree 
 at the hearing of the cause, be deprived of any legiti- 
 mate e\-idence by means of which the amount of that 
 demand may be established ? The effect of denving 
 the plaintiff a right to such discovery, is either to 
 deprive him of his right to a decree for payment at the 
 
 (c) Howe V. Ttrd, 1.5 Ves, S7'>. 
 H
 
 98 SECOND PROPOSITION. 
 
 hearing, or to compel liini to take that decree upon 
 imperfect evidence. In tUc case of a bill of discovery 
 in aid of a trial at law, where the judgment upon the 
 right and upon the amount of it, are contemporaneous, 
 it would be difficult, if not impossible, to apply the rule. 
 
 160. Nor is this the only difficulty in the case. The 
 question, whether a defendant who defends by answer, 
 must not answer " throughout,^' is capable of being 
 raised in one way only, namely, by exceptions to his 
 answer. In the Com-t of Chancery, this question al- 
 ways goes before a Master in the first instance. Now, 
 the Court never has allowed the Master to decide how 
 far a point suggested by the answer is good as a defence 
 to the whole or part of a bill, nor could it with pro- 
 priety do so. And, accordingly, as Lord Eldon has 
 pointedly observed, the Master is under a necessity of 
 allowing the exceptions, and the Coiu't is afterwards 
 required to reverse the Master's judgment without 
 being in a position to say, or meaning to say, that the 
 Master was wrong (a). 
 
 161. The practice in the Court of Exchequer differs 
 from that of the Coui-t of Chancery upon the point last 
 adverted to. In the Exchequer, exceptions to an 
 ansAver come before the Court in the first instance, but 
 even in that Coiu't, authority has by no means recog- 
 nised, to the full extent, the practice which the case of 
 Adams v. Fisher, if followed up, must establish. 
 
 (a) Per Lord Eldon, 11 Vesey, 305; 15 Ves. 378; 1(5 Ves. 
 387.
 
 SECOND PROPOSITION. 99 
 
 1 G2. The Court itself, also, is placed in a singular 
 position in decitling that a defendant, who defends by 
 answe)', may refuse to ansAver the bill " throughout." 
 The defendant who defends by ansAver is taken to sub- 
 mit to answer the bill tliroughout {U), and to this sub- 
 mission the Court to some extent actually holds him (c) . 
 When the case comes before the Court, the only ques- 
 tion properly raised by the exceptions is that which 
 was referred to the Master, and to which the Court con- 
 fines him, namely, Avhether the defendant had in fact 
 answered all such material interrogatories in the bill as 
 could not be objected to upon grounds peculiar to 
 the interrogatories themselves. The Court, however, 
 instead of deciding that question, entertains another 
 wholly distinct from it, namely, Avhether the defendant 
 ought not to be excused from answering them. Lord 
 Thurlow in Cookson w . Ellison, before referred to(r/), 
 expressly held that the court could not, upon the ar- 
 gument of exceptions, entertain the distinct question 
 whether a demurrer or plea to the bill would have been 
 allowed. Where the ground upon which the de- 
 fendant seeks to be excused from answering ques- 
 tions material to some part of the relief sought, is 
 apparent upon the face of the bill, a decision of the 
 Court in his favour is frequently open to this further 
 observation. The practice of the Court obliges a de- 
 fendant to demur in eight days. The practice, of 
 
 {!>) \r> Ves. .37H; 10 Ves. .'W. ('') Supra, pi. 1,5.5. 
 
 {(l) Supra, ].!. 149; 2 Bro. C. C. 252.
 
 100 SF.CONr. PKOrOSTTlON. 
 
 wliirli Adams v. Fisher is an example, would often 
 enable a defendant, who had lost his opportunity of 
 demurring, to gain by an irregular coiu'se a benefit 
 which regular practice denied him(e). 
 
 1C3. If the subject is looked at with reference to " con- 
 venience, that is justice (/)," considerations of weight 
 present themselves in favour of the proposition, that a 
 defendant who defends by answer ought to be compelled 
 in all cases to give the same full discovery as the plaintifj' 
 u'onld be entitled to if the amount of his demand were 
 the only question in dispute. In law, right, and the 
 evidence of right, mean the same thing. It may be true, 
 that in allowing a defendant by answer to refuse dis- 
 covery of matters of account only, where the plaintiff's 
 right to that account is in dispute, the Court professes 
 only to suspend the discovery until the plaintiff's right 
 shall have been adjudicated upon. But it is ob\dous, 
 that this suspension may eventually work a loss of all 
 benefit to the plaintiff. In cases of account, the dis- 
 covery from the defendant is frequently the best, if not 
 the only evidence, upon which the plaintiff is com- 
 pelled to rely. The death of the defendant (</), the 
 loss, suppression, alteration, or destruction of docu- 
 ments {^), may render a just suit wholly fruitless. The 
 
 (e) 11 Ves. 295. 
 
 (/) 15 Ves. 878. 
 
 (ff) 11 Ves. 70, in Bairr v.Mellish; 11 Ves. 300, in f!/taw v. 
 Cliiiig. 
 
 (h) Spoliation may l)e out of the question in the case of one 
 ]>art_y — but not of liis successor in rip:lit.
 
 SECOND PROPOSITION. 101 
 
 discovery, if obtained in an early stage of the suit, 
 may satisfy the plaintiff that his suit is not worth pro- 
 secution, or enable him (as before observed) to limit 
 his demand to that which the defendant's admission 
 may entitle him to ask at the hearing of the cause. 
 And even if at the hearing of the cause he should elect 
 to take a decree for an account, instead of a decree for 
 immediate payment, his position will be widely dif- 
 ferent where he has had full discovery before the de- 
 cree, from that in which he will be placed where dis- 
 covery has been withheld from him. In the latter 
 case he will, vrithout any exaggeration of terms, have to 
 commence a new suit after the decree, and if the death 
 of his opponent, or other circumstance leading to a loss 
 of evidence, shall not have deprived him of the dis- 
 covery which has been Avithheld from him, he will still 
 have lost the advantage of having previously sifted the 
 account, and of being at once prepared to carry in his 
 charge before the Master. It maybe objected, indeed, 
 that this reasoning proves too much, — for that it would 
 to some extent apply to the privilege allowed to a de- 
 murrer or plea. Practically, however, this objection is 
 not well founded. A demurrer is generally disposed of 
 within a few days from the time of its being filed, and 
 so is a plea, unless it be supported upon argument and 
 issue joined upon it. Where issue is joined upon the 
 truth of a plea, the cause is undoubtedly much pro- 
 tracted, but not to the same extent as where the 
 defence is bv answer, unless, in the latter case, the
 
 1()!2 SKCONl) PROrOSITION. 
 
 defence 1)C confined to a sinj^le point, and, theoretically 
 speaking, there is no reason in such a case why tlic 
 defence sliould not be made by plea. The only cases 
 Avhich in principle can give rise to the present question, 
 are those in which the defendant gives up his defence 
 by plea, and resorts to an answer, in order that he 
 may therebj^ have the advantage of going into his case 
 at large (i). 
 
 164. Nor is it easy to understand the principle 
 upon which Courts of equity in practice discourage de- 
 murrers and pleas, unless it be that it is safer to enforce 
 discovery in favour of a plaintiff, than to risk the loss 
 of it in a stage of the cause in which the Court is 
 compelled to decide between the parties, without any 
 guide for its judgment except the oath of an inter- 
 ested party, who is often swearing to a mixed question 
 of law and fact. 
 
 165. It cannot be successfully objected to these ob- 
 servations, that, if followed out, they might, in a given 
 case, oblige a defendant to produce his title deeds at the 
 suit of a party who had no interest in them. If such 
 deeds would assist the plaintiff in making out his title, 
 he would be entitled to a production of them before 
 the hearing, according to all the authorities. And if 
 the object of the suit were to obtain possession of the 
 deeds, and the deeds were collateral to the plaintiff^s 
 
 (/) Supra, 1>1. 44, note.
 
 SECOND PROPOSITION. 103 
 
 case, a description of them in the answer would be 
 sufficient for the purposes of the decree, without the 
 production of them before the hearing. 
 
 166. Between the conflicting interests of the parties, 
 it would be extremely difficidt to shew a balance of 
 convenience in favour of either, which should induce a 
 Court to adopt any arbitrary rule of practice at the 
 expense of principle. 
 
 167. The effect of allowing a defendant by answer to 
 protect himself against discovery to which the plain- 
 tiff Avould be entitled if his right to relief were 
 proved, is, that it enables the defendant by answer 
 to get the benefit of a demurrer or plea, in addition to 
 the other advantages an answer may afford him, — at 
 the cost to the plaintiff of delay — expense — and pos- 
 sibly the loss of right. 
 
 168. The inconvenience attending a departure from 
 principle is strongly marked by the difficulty which 
 the Court has experienced in dealing with cases 
 analogous to Adams v. Fisher. Lord Kenyon (sit- 
 ting for Lord Thirrlow) first, it is believed, alloAved 
 a defendant, who denied the plaintiff's title, to refuse 
 by ansiver to set out accounts to which the plaintiff's 
 right was clear, provided his title to the relief he prayed 
 were established. The case in wliich Lord Kenyon 
 did this, was the same {k) in which Lord ThurloAv had 
 overruled a plea negativing the plaintiff 's title, upon 
 
 {k) Gunn v. Prior, 2 Dick, (!57, Forest Exch. 88.
 
 101' SECOND rilOPOSITION. 
 
 the gromul tli;it iicf;<ativc picas were inadmissible in 
 equity. Lord Kenyon, therefore, had to deal with a 
 case in which, if the defendant were not permitted by 
 answer to withhold discovery as to the account, he 
 would have been without any means of defence. So 
 strongly, however, was Lord Kenyon impressed Avith 
 the hardship to which, by oveiTuling the exceptions, he 
 might subject the plaintiff, that he directed an issue to 
 try the question upon which the plaintiff's title de- 
 pended (?«). Now, an order directing the trial of an 
 issue upon the argument of exceptions, cannot be 
 defended as matter of regular practice. The Court 
 could only get at that result by the power which the 
 matter in judgment conferred u])on it over either party 
 who should decline the issue. It is a course which, in 
 many cases, would involve a cause in the greatest con- 
 fusion. Suppose several defendants, and the answer 
 of one only to be insufficient. The other defendants 
 would not be parties to the issue, and would not be 
 boinid by the finding on the trial of it. The issue, 
 therefore, would decide no final question in the cause ; 
 and the evidence in the cause, or a second issue, might 
 lead to a conclusion different from the first. In the 
 case of married women, or infants, being parties, the 
 expedient would be scarcely practicable. Lord Eldon 
 has observed upon this practice, " that if the parties 
 had gone to issue upon the caiise in equity, and the 
 
 {m) Gann v. Prior, 2 Dick. Go7 ; and see Randal v. Head, 
 Hardies, 188.
 
 SECOND PROPOSITION. 105 
 
 cause had come to a hearings it might liave turned out 
 that no issue would be directed {n) ." A practice which 
 requires an expedient, like that resorted to by Lord 
 Kenyon, cannot be sound. 
 
 169. Lord Redesdale appears to have thought, that 
 the relaxation of practice, to which the present observa- 
 tions apply, might be confined to cases in which the de- 
 fendant set up a title in himself, apparently good, and 
 ivhich the plaintiff must remove to found Ids own title, as 
 distinguished from cases in which the defendant merely 
 denied the plaintiff's title (o). He refers, however, to 
 cases in which a defendant denying the plaintiff's title, 
 has been permitted b}' answer to withhold accounts, the 
 right to which depended upon that title. The obsen'- 
 ation which occurs upon Lord Redesdale's suggestion is, 
 that it leaves a large class of cases unprovided for, 
 which are clearly within the same mischief as those 
 Avhich his suggestion would protect. The suggestion, 
 however, is strong evidence of the difficulties which the 
 learned writer felt in defending the practice to which 
 it applies. Lord Redesdale, in another place, after 
 referring to the authorities, appears to have concluded, 
 that the Court had " declined laying down any general 
 rule, deciding ordinarily upon the circumstances of the 
 case" {j)). The Court, however, certainly has not pro- 
 fessed so to deal with this important question, but has 
 
 {v) IJ Ves. 304, in Shaw v. Ching. 
 (<>) llecK's. Plead. :310, 'Ml, 312, 
 {p) Redesi. Plead. 312.
 
 106 SECOND PllOPOSlTION. 
 
 apparently acknowledged its obligation to act npon 
 some definite rule. In Gethin v. Gafe (r/), Lord Hard- 
 wicke is represented to have said, that, if the right is 
 clear, the defendant shall set forth the account ; if not 
 clear, he shall not. This (says Lord Eldon) " cannot 
 be (r)/^ In Sweet v. Youny [s], Lord Chief Baron 
 Parker is made to say, that as it is sworn positively, 
 and VMS in the knoivledye of the 2)(irty, the fact was dis- 
 proved, which would give the right to discovery ; but he 
 proceeds to saj'', that if it was not in the knowledge of 
 the party, they would compel the discovery {t). 
 
 170. Mr. Hare refers to cases in which a distinction 
 has been attempted between bills which were demur- 
 rable, and bills which could be met only upon some- 
 thing dehors the bill, or by a denial of the plaintiff's 
 equity, but justly concludes that there is nothing to 
 warrant such a distinction [u). It is remarkable, 
 that all the authorities, in discussing the question 
 under consideration, appear to affirm the proposition, 
 that an executor cannot by answer refuse to give an 
 account of assets, although he may deny the plaintiflF's 
 title as creditor or legatee [x). The only rule which 
 the Court appears clearly to have decided is, that a 
 defendant cannot have the benefit of a plea by answer, 
 
 (-/) Cited, Ambler, 354. 
 
 (r) 11 Ves. 304, in Shmo v. Ching. 
 
 (.f) Amh. 353. 
 
 (0 11 Ves. 304-5. 
 
 (?/) Ilaro, 2G0. 
 
 {x) Redes. Plead. 311 ; 11 Ves. 304, in Shaw v. Ching.
 
 SECOND PROPOSITION. 107 
 
 without stating his case with the same precision as if 
 he had pleaded (y) . Mr. Hare, indeed, appears to 
 think, that a defendant who by answer claims the benefit 
 of a plea, is subject to a technical ride, preventing him 
 from giving any part of the discovery to which the 
 defence, if pleaded, might have extended; and he refers 
 to Somerville v. Mackay [z). The author does not so 
 understand that case. He understands Lord Eldon to 
 have decided only, that there was not in that case 
 " averment positive enough" of the ground upon 
 which the defendant could refuse to answer. A deci- 
 sion to the effect attributed by Mr. Hare to Somerville 
 v. Mackay, would bring the defendant back again into 
 the original difficulties from which it has been the 
 object of the Court to relieve him, in the cases under 
 examination, namely, the practical difficulty of pleading 
 or demurring with effect. The case of Adams v. Fisher, 
 seems inconsistent with Mr. Hare's suggestion; for, 
 in that case, the defendant might by plea have pro- 
 tected himself against much of the discovery which he 
 gave. 
 
 171. But it may be asked, is the assumption upon 
 which the preceding observations have been made, Avell 
 founded ? Is it true that every valid defence may be 
 insisted upon either by demurrer or plea, according to 
 the nature of the case ? May not cases be suggested. 
 
 (y) Infra pi. 171, n. (d). 
 
 (-) Ilaiv, 2.54 : Somerville v. Mackay, 10 Ves. 387.
 
 108 SECOND PllOPOSITIOX. 
 
 in wliicli upon mixed grounds, arising partly out of the 
 liiw of tlie case, and partly out of the conduct of par- 
 tics, a Court of equity would give no relief, although 
 it might decline to decide the case upon demurrer or 
 plea? And passages may be cited from Lord lledes- 
 dale, in which he appears to say, that where a case 
 consists of a ^■iu•iety of facts, it may not be proper to 
 be offered by way of plea, or it may be doubtful, whe- 
 ther, as a plea, it would hold (a). It may also be 
 reasonably lu'gcd, that a system of pleading must be 
 eminently defective, which obliges a defendant either to 
 give discovery, the right to which he disputes, or to 
 waive the benefit of circumstances by which the plain- 
 tift''s right, if established, would be materially quali- 
 fied {b). Upon the fii'st of these points, the author 
 ventures to suggest that the conduct of parties, or other 
 circumstances which are not of weight or precision 
 enough to induce a legal conclusion capable of being 
 supported upon demurrer, or of being reduced to 
 a plea, cannot, in sound legal reasoning, be of any 
 greater avail if insisted upon in an ans\\er. The diffi- 
 culty of framing a plea does not bear upon the ques- 
 tion. But whether that be so or not, is immaterial to 
 the present purpose ; for all the authorities clearly 
 affirm, that unless the case alleged in a bill would not 
 certainly entitle the plaintiff" to relief at the hearing. 
 
 («) Redes. Plead. 308. 
 (fj) Supra, pi. 44, note
 
 SECOND PROPOSITION. 109 
 
 the bill is demurrable (c) ; and that, if the case set up by- 
 answer is not so precise, that, if alleged by way of plea, 
 it would afford the protection claimed by the de- 
 fendant, he cannot have that protection by answer [d). 
 With respect to the second point above noticed, it is 
 undoubtedly of great weight, but it resolves itself into 
 the question which has already been adverted to, — 
 the balance of convenience operating in favoiu* of one 
 party or the other, in deciding the main question at 
 issue. 
 
 172. It may be said, the power of a defendant 
 to demur or plead to a bill is theoretical only, and that 
 the rules of pleading are of so strict and technical a 
 character, that in practice the power is merely nuga- 
 tory. The author ventures to think that the practical 
 difficulty (which cannot be denied) of demurring or 
 pleading, with effect, is mainly attributable to a per- 
 version of some of the rules of pleading (e), and to the 
 strong leaning of the courts against those modes of de- 
 fence. But if the truth of the suggestion were ad- 
 mitted, it is obvious that the proper mode of meeting 
 the difficulty should be sought for in a correction of 
 the rules of pleading which occasion the difficulty, and 
 
 ((■) Kemp V. Pry or, 7 Ves. 237; Attorney-General v. Tlie Cor- 
 poration of Norwich, 2 ]Myl. & Craig, 40G. 
 
 ( (Z) See the cases of Bolder v. Lord Hunting field, 11 Ves. 28.3 ; 
 Faulder v. Stuart, 11 Ves. 296; Shaw v. Ching, 11 Ves. 803; 
 Rowe V. Teed, 1.5 Ves. 372 ; Somcrvillc v. Mockay, 10 "\''os. 387. 
 
 (e) Some observations upon this point will be found in a later 
 page, pi. 210.
 
 110 SECOND PROPOSITION. 
 
 not ill tlic -violation of sounder .and better rules of 
 practice. To this consideration, (the proper mode of 
 correcting an admitted imperfection in the present 
 practice of the Court), the author's observations upon 
 Adams v. Fisher are exclusively directed. 
 
 173. Next, as to authority. " The old rule/' (says 
 Lord Eldon), " before the time of Lord Thm'low, was 
 either to demur, to plead upon something dehors the 
 bill, or that sort of negative plea of which we know 
 more in equity than at law (/)." 
 
 174. Lord Thurlow decided that a negative plea 
 Avas not good in equity {g). He afterwards, however, 
 changed his opinion, when pressed with the necessaiy 
 consequences of this decision, namely, " that any per- 
 son falsely alleging a title in himself, might compel any 
 other person to make any discovery which that title, if 
 true, would enable him to require, however injurious 
 to the person thus brought into Coiu't ; so that any 
 person might, by alleging a title, however false, sustain 
 a bill against any person for any thing so far as to 
 compel an answer ; and thus the title to every estate, 
 the transactions of every commercial house, and even 
 the private transactions of every private family, might 
 be exposed ; and this might be done in the name of a 
 pauper, at the instigation of others, and for the Avorst of 
 purposes [h) ." The validity of negative pleas has since 
 
 (/) 10 Ves. 387, in Somerville v. Machay. 
 (g) Gunn v. Prior, Forest. Exchq. Reports, 88 ; S. C, 2 Dick. 
 G57, and 1 Cox, 197. 
 
 (/O'Rcdcs. Plead. 2,31. Newman v. Wallis, 2 Bro. C. C. 143.
 
 SECOND PROPOSITION. Ill 
 
 become fii*mly settled in equity practice. Of Lord 
 Thurlow's opinion upon the point in question there 
 can be no doubt. He admitted a species of plea, to 
 which, in principle, he objected, in order to avoid a 
 consequence which would have had no existence if, in 
 his opinion, a decision in accordance with Adams v. 
 Fisher could have been sustained. Indeed, his observ- 
 ation in Cookson v. Ellison, already quoted (i), is con- 
 clusive e\idence of his opinion upon the subject. 
 
 175. Lord Kenyon afterwards, sitting for Lord Thur- 
 low, decided that a defendant, who by answer disputed 
 the plaintiff^s title, might refuse to set out accounts, 
 the right to which depended upon that disputed title. 
 The case in which Lord Kenyon first decided this 
 point, (as already stated), was the same (A:) in which 
 Lord Thurlow had decided that a negative plea was not 
 a legitimate mode of pleading. Lord Kenyon, there- 
 fore, had to contend with a case in which two conclu- 
 sions only were open to him. 1st, That to which he 
 came; and 2ndly, the alternative of holding that a 
 Court of equity did not provide a defendant with any 
 means of availing himself of a just defence. Lord 
 Kenyon's decision is no e\ddencc of his opinion, under 
 that state of practice wliich Lord Thuiiow's subse- 
 quent decision as to the validity of negative pleas estab- 
 lished. Indeed, Lord Thurlow^s subsequent opinion 
 was a reversal of Lord Kenyon^s judgment. For, if 
 
 {i) Sujiia, \A. 14iJ. {k) See H Vesey, 291.
 
 112 SECOND PROPOSITION. 
 
 tlijit judgment were right, there Avas no necessity for 
 Lord Thurlow's reluctant change of opinion. Lord 
 Kenyon, it is true, came to a similar conclusion in a 
 later case, Neuman v. Godfrey (/) ; but this decision pre- 
 ceded the case in which Lord Thurlow altered his 
 opinion about negative pleas. And, in the specific 
 question involved in Neuman v. Godfrey, it has been 
 decided that a defendant, who answers a bill, must an- 
 swer throughout (m) . 
 
 176. Chief Baron E\Te, in Selby v. Selby {n), said, 
 " He should be glad to take advantage of the rule that 
 Lord Thurlow had laid down in pa^'tieular cases, and 
 to apply it to aU, that wherever the party is not oblig- 
 ed to answer the intcrrogatoiies put, he must take ad- 
 vantage of it by demurrer." This decision is of the 
 greater weight because it came from an Exchequer 
 Judge (o) . 
 
 177. Lord Rosshoi undoubtedly expressed a strong 
 opinion, that a defendant should be allowed upon 
 ground of merits to resist by answer discovery subor- 
 dinate to the question of the plaintiff ^s right of suit. 
 The cases in which that opinion is expressed, are Jer- 
 rard v. Saunders {p ), Lord Donegal v. Stewart [q), and 
 Phelips V. Caney{r). The first of these cases has little 
 bearing upon the general question, for, in that case. 
 
 (0 2 Bro. C. C. 332. (/>) 2 Ves. juii. 187. 
 
 (m) Taylor v. Milner, 11 Ves. 41. {q) 3 Ves. 44G. 
 
 {n) 4 Bro. C.C. 11. (r) 4 Ves. 107. 
 (ci) Supra, pi. 101.
 
 SECOND PROPOSITION. 113 
 
 the defendant insisted tliat he was a purchaser for 
 value Avithout notice ; and a party who is so circum- 
 stanced, was formerly considered as so far lege solutus, 
 that no rules of form merely should be allowed to bind 
 or affect him [s). This pri\alege has been displaced in 
 modern cases, in which it has been held, that a pur- 
 chaser for value without notice must make his defence 
 by demurrer or plea, or answer the bill " through- 
 out" {i). The case of Stewart v. Lord Donegal has 
 nothing of a special character in it. The case of 
 Phelips V. Caney, is opposed by cases of high' author- 
 ity (m), and is certainly at variance with the practice of 
 the profession in cases ejusdem generis. 
 
 178. Lord Redesdale's opinion is scarcely to be col- 
 lected from his treatise on pleading. He shews the con- 
 flicting state of the authorities, but does not appear to 
 have intended to express any opinion of his own, except 
 80 far as that opinion may be inferred from the language 
 in which he explains the grounds upon which Lord 
 Thurlow changed his original opinion respecting 
 negative pleas, namely, " when pressed by the ne- 
 
 (s) In Roive v. Teedy 1.5 Ves. 378, Lord Eldon apparently 
 considers a purchaser for value without notice in the same pi-i- 
 vileged situation as a party to whom questions are addressed, the 
 answers to which would criminate him. He classes the two 
 togetlicr as parties not suliject to tlie ordinary rules which oblige 
 a defendant, who answers a bill, to answer " throughout." 
 
 {t) Supra, pi. 135. 
 
 {u) Supra, pi. 170, n. (.?). 
 
 I
 
 ll^ SECOND PROPOSITION. 
 
 cessary consequence that any person fasely alleging/' 
 &c. [x). 
 
 179. Of Lord Eldon's opinion no doubt can be enter- 
 tained. In all tlie cases, indeed, wliicli came before 
 liim, he found the means of avoiding a direct decision 
 upon the point, by deciding that the defendant was 
 bomid to answer. But his opinion is clearly marked 
 in his judgments. The principal cases before Lord 
 Eldon are Bolder v. Lord Huntinyjield{y), Faulder v. 
 Stuart {z), Shaw v. Chiny {a), Roive v. Teed [b], and 
 Somerville v. Mackay (c) . In Shaw v. Chiny, Lord Eldon 
 says, " A case of partnership is stated; praying a great 
 variety of accounts ; and stating several circumstances 
 of fact. The defendant does not put in a short answer; 
 or tiy the effect of a plea of no partnership; but puts 
 in an answer, stating, that there is no partnership; 
 refusing to answer what is inconvenient to him to 
 answer ; but answering all that is convenient. Where 
 a party demurs, judgment is bad in the first instance : 
 so upon a plea : but if this sort of illegitimate pleading 
 can be substituted, the suitor is thus involved : 1st, he 
 is put to the expense of the judgment of the Master ; 
 and the INIaster is called upon to give judgment in a 
 matter, Avliich, with the exception of the case of pain, 
 penalty, and forfeiture, it is not the habit of the Court 
 
 {x) Supra, pi. 174. («) 11 Ves. 303. 
 
 (,?/) 11 Ves. 283. lb) 15 Ves. 372. 
 
 {z) 11 Ves. 296. (c) 16 Ves. 382.
 
 SECOND PROPOSITION. ^ 115 
 
 to intrust to him ; 2ndly, if the defendant, by plea puts 
 into a single fact, or several facts, constituting one de- 
 fence, the parties go to issue upon that : if it is found 
 for the defendant, the plaintiff is dismissed ; if for the 
 plaintiff, further inquiry is directed. But, in this way, 
 the defendant answering just what he chooses, issue 
 cannot be joined upon the single fact supposed to be 
 the bar : but the plaintiff, if he replies, must reply to 
 the answer, as he finds it ; and must go to long, ex- 
 pensive proof upon a great variety of facts ; which is 
 an unnecessary, vexatious bui'then thrown upon him. 
 Lord Thurlow seems to have thought, that, if a defend- 
 ant answers, he shall answer throughout. Whether 
 that is right or not, I am convinced the forms of 
 pleading cannot stand as they now are upon the re- 
 ported cases {d) ." In Rowe v. Teed, Lord Eldon says (e), 
 " There is no difference between law and equity ; that 
 here for the sake of convenience, that is, of justice, the 
 denial of some fact alleged by the bill in some instances, 
 with certain averments, has been considered sufficient 
 to constitute a good plea ; though not, perhaps, pre- 
 cisely within the definition of good pleading at law. 
 If each case is to be considered upon its own circum- 
 stances, it is desirable that this point should be brought 
 before the Court by plea rather than by answer, as an 
 answer yjrima/at'ie admits, that the defendant cannot 
 
 (d) 11 Vcs. no.5, -W). (c) 15 Vcs. .^77, n7!!. 
 
 1 2
 
 lie SECOND PROPOSITION. 
 
 plead ; and with the exception of the cases in whicli it 
 is settled as general law that the party is not to answer 
 a particular circumstance, as, that he is not to cri- 
 minate himself, the case of a purchaser for valuable 
 consideration, &c., this Coiu't does not trust the Master 
 generally with the determination how much of the 
 answer, considered as a plea, would be a good defence. 
 The Master is, therefore, almost under the necessity of 
 admitting an exception ; and when the propriety of his 
 judgment comes to be argued here, it would be most 
 incongruous that the Court, admitting his judgment 
 not to be wrong, should yet give a different judgment, 
 considering the answer as a plea. Another circumstance 
 deser\-ing attention is, the great difference of expense 
 in bringing forAvard the objection by plea rather than 
 by answer. There is but one more material general ob- 
 servation to be added to those which are to be found in 
 the cases reported ; that generally, admitting there are 
 exceptions, the practice of the Court requires that the 
 bill and the answer should form a record, upon w^hicli 
 a complete decree may be made at the heai'ing. If, for 
 instance, this plaintiff is a part owner of the ship, he 
 has a right to an answer that will enal)le him, if a 
 certain sum is admitted to be due, to obtain a decree 
 for that sum, if he is satisfied with that, and does not 
 desire an account (/) .^' And in a prior passage in the 
 same judgment. Lord Eldon says, " The question is. 
 
 (/) 15 Ves. 377, 878.
 
 SECOND PROPOSITION. 117 
 
 whether this is an answer, bringing forward such one 
 short fact, or such a series of circumstances establish- 
 ing in the result one fact, that would be a,n answer to 
 the prayer of discovery and relief; and therefore, whe- 
 ther this is a case in which the Court should decide 
 that point which has been long the subject of litiga- 
 tion, to what extent a defendant is bound to answer, 
 who has averred a circumstance, which, if truly averred 
 in another form, and sufficiently proved, would be an 
 answer to the whole prayer for discovery and relief." 
 " Whenever this question comes to a decision, it will be 
 infinitely better to decide that in this Court the objec- 
 tion should be made by plea rather than by answer." 
 The judgment of Lord Eldon, in Somerville v. Mac- 
 kay [g), is equally pointed and decisive with the last. 
 
 180. Sir William Grant, in Taijlor v. Milner (A), 
 decided that a mere witness who answered a bill, was 
 bound to answer " throughout." 
 
 181. Sir John Leaches opinion upon the point is well 
 known. In Mazzaredo v. Maitland [i], he said, " I re- 
 member, during the argument," (referring to Somerville 
 V. Mackay) " the Lord Chancellor strongly expressed his 
 opinion, that a defendant could not answer as to part of 
 a bill, and refuse to answer the rest ; and I think that is 
 so useful a rule, that I shall always adhere to it." In 
 V. Harrison {j), a bill was filed, stating a part- 
 nership, and praying an account. The defendants, by 
 
 {g) K! Ves. :m2. {i) JJ Madd. (;6. 
 
 (l,) 11 Ves. 41. (j) 4 Mad. 252.
 
 118 SECOND PROPOSITION. 
 
 their answer, denied tlic partnership, and refused to 
 set forth any account. Exceptions were taken to the 
 answer for insufficiency, in not having set forth the 
 account. The Vicc-Chanccllor, Sir John Leach. — 
 " That point is settled. If a defendant answers, he must 
 answer fully. They should have pleaded. Exceptions 
 allowed." 
 
 182. With respect to the third a.ndfou7'th courses of 
 practice, which were suggested in a former page, the 
 author conceives, that, until the views of the Lord Chan- 
 cellor shall have been more fully developed, it is im- 
 possible to state with certainty what the practice of the 
 Court now is. In Adams v. Fisher, the Lord Chan- 
 cellor, in the passage of bis judgment quoted in a 
 former page {k), clearly intimates that the defendant 
 who answers must give full discovery as to so much 
 of the bill as relates to the plaintiff's title. But is 
 the right to discovery limited to this, under the prin- 
 ciple upon which Adams v. Fisher proceeded? The 
 defendant, in that ease, gave a schedule of the docu- 
 ments, the production of which he resisted. A plea to 
 the bUl would have protected him against giving that 
 schedule. The facts of the case in Adams v. Fisher did 
 not raise the question, whether the defendant could by 
 answer have refused to give it. It is difficult, however, 
 to understand how the reasoning of the Lord Chan- 
 cellor could stop short of the conclusion that the 
 
 (Jc) I'l. 155, p. U3.
 
 SECOND PROPOSITION. 119 
 
 defeiidant might have refused to give the schedule, 
 unless he proceeded upon the principle, that con- 
 venience required that a production of the documents 
 should be refused, but that a mere list and descrip- 
 tion of them was not within the same mischief. A 
 decision that the defendant might, in such a case, 
 refuse to give a schedule of the documents, would be 
 attended with serious consequences in practice. The 
 author is not aware of any case in Avhich an executor, 
 denying by answer that a plaintiff, suing as legatee, had 
 the title which he asserted, has been excused from 
 answering, as to the assets of his testator or as to the 
 documents he had relating to the estate. Indeed the 
 contrary had been expressly decided (/). But the 
 decision in Adams v. Fisher would, apparently, excuse 
 him from doing this. 
 
 183. The Lord Chancellor in Adams v. Fisher said — 
 "A'Miat the bill requires is not the contents of the 
 documents, but a list of the documents; and you cannot 
 except to the answer l)ccause the contents are not 
 set out(m)." Now, nothing, it is conceived, is better 
 settled in practice than this, that the admission by a 
 defendant of the possession of documents which relate 
 to the "plaintiff's case,'' is sufficient to entitle the 
 plaintiff to an order for the production of them, upon 
 motion, without his calling upon the defendants to 
 set out their contents in the answer (w). If documents 
 
 (/) Supra, ])1. 170. (/«) .3 Myl. & Cr. .542. 
 
 (»i) IniVa, 1)1. ;30],:}0(>, 325.
 
 120 SECOND PROPOSITION. 
 
 !U*c in the possession of the defendant which relate to 
 tlie phiintiff's case, the plaintiff has a right to see 
 them, unless the defendant can bring them within some 
 special gi'ound of exemption (o) . Unless, therefore, it 
 can be said that the amount or extent of the plaintiff's 
 demand in a suit is not part of his case, the observation 
 just quoted may introduce a very special practice in 
 cases of the most ordinary occurrence. 
 
 184-. The present state of the authorities has the 
 effect of converting an answer into an informal de- 
 murrer or plea — allowing the defendant to refuse by 
 answer what is inconvenient, but at the same time 
 to answer all that is convenient (yj) — and that after 
 the time (where the bill is demurrable) when he could 
 do so by pleadings of a regular character — deciding that 
 the answer shall not have the full effect of cither a 
 demurrer or plea, but not deciding a priori to what pre- 
 cise extent it shall have the effect of those other forms of 
 defence — introducing a " species of plea which is neither 
 a plea, answer, or demurrer, but a little of each ( q) ." 
 In the case of Bentinck v. Willinck (r), in which an 
 account was prayed, a motion was made for the pro- 
 duction of documents contained in a schedule to the 
 defendant's answer relating to the items of the accomit ; 
 
 (o) Infra, pi. 286, 300. 
 {[>) 11 Ves. 295, .305. 
 (y) 11 Ves. 293. 
 
 (/•) ^lot reported. Tlie suit was compromised alter the argu- 
 ment, and before judgment was given upon the motion.
 
 SECOND PROPOSITION. 121 
 
 and tlie motion was resisted upon the ground that 
 the answer set up a defence, wliicli, if true, would 
 have excluded the plaintiff^s right to the account. 
 The Lord Chancellor, during the argument, intimated 
 an opinion against the motion ; and — in answer to the 
 argument for the plaintiff, that the defence being by 
 answer instead of by ^>/ea, the defendant could not 
 resist the motion merely upon the ground that the 
 plaintiff's equity was denied — observed, that that argu- 
 ment would deprive the court of all discretion in that 
 and similar cases. The author has referred to this 
 case because his impression is, that the Lord Chancellor 
 considers that the Court is not fettered by any fixed 
 rules in cases falling within the class which has 
 been observed upon at so much length. Upon this 
 view of the case (Avhich is the fourth course suggested 
 above) the author with diffidence presumes to make any 
 observation, not only because he is uncertain whether 
 his impression is correct, but because his private 
 opinion upon such a point can be but worthless when 
 opposed to that of the eminent judge whose judgment 
 he has presumed to observe upon. He is not, how- 
 ever, aware that an unfettered discretion has ever 
 been assumed by the Court in cases of this nature. 
 The observations of Lord Thui'low, Lord Eldon, Lord 
 Redesdale, and Sir John Leach, appear anxiously to 
 exclude it. Their observations all admit an obligation 
 upon the Court to observe some definite rule, and 
 point only at a dou])t what that rule should be. The 
 discretion of a Court is properly exercised in establish-
 
 122 SECOND PROPOSITION. 
 
 ing !ui(l defining rules, and in applying them to specific 
 cases, and within those limits, the discretion of the 
 Coui't has ample range for its exercise. The prac- 
 tice which leaves to a judge the decision of a cause, 
 according to a discretion not reduced to rule, is in 
 principle a denial of the suitor's right. The reader 
 "vvill not have failed to observe, that the third and 
 fourth courses of practice which have been observed 
 upon are open to the objection noticed in a former 
 page, — that the Master can decide only one way upon 
 a case expressly referred to his judgment, and that the 
 Court afterwards reviews, and perhaps reverses, his 
 judgment, without being in a condition to say he was 
 wrong. 
 
 185. It can scarcely be necessary to observe, that the 
 case of Adainsy. Fisher clearly introduces some excep- 
 tion to the general rule which entitles a plaintiff to 
 discovery, in support of his own case. 
 
 186. " Ttie Plaintiff in Equity." In the ^dew 
 which the wi'iter takes of the subject, the right of a 
 plaintiff to discovery will be regulated by the same 
 principle, and governed by the same rules, whether 
 he seeks rehef in equity as well as discovery, or is 
 plaintiff in equity seeking discovery only in aid of his 
 own case as plaintiff or defendant in some other Court 
 of law or equity {p) . The reader, however, must con- 
 
 {l)) Supra, \)\. ] ].
 
 SECOND PROPOSITION. 123 
 
 sider liow far the generality of this observation re- 
 quires qualification with reference to the cases of Hind- 
 man V. Taylor iq), Leigh v, Leigh, Jeremy v. Best{r), al- 
 ready noticed, and the decision of the Vice-Chancellor 
 in Lowndes v. Davies, Avhich will be found in a later 
 page(*). 
 
 187. " Matters of fact." A defendant need not 
 answer as to conclusions of law, although alleged in 
 the bill, and material to the "jjlaintiff's case." For, 
 these are not properly the subject of admission. 
 
 188. ''About to come on for trial." That the right 
 to discovery is confined to the question or questions 
 in the cause which are about to come on for trial, has 
 been shewn under the first proposition. 
 
 189. " Well pleaded." The right of a plaintiflP to 
 discovery being limited to such discovery as is material 
 to the proof of " his case" — it follows that he is 
 bound so to frame his pleadings, as to enable the de- 
 fendant to know, and the Coui't (in a disputed case) to 
 decide (#), whether he is entitled to an answer on a 
 specific point or not. 
 
 {q) ITindman v. Tar/lor, supra, jil. 07, et seq. 
 
 (y) Supra, j)l. 78. 
 
 (i) liifra, pi. .377, ct scq. 
 
 (<) Cardale v. Watkins, 5 Madd. 18; Redes. Tlcad. 191.
 
 124 SECOND rilOPOSITION. 
 
 190. The nilcs of pleading in equity, as already 
 observed, require that the bill should contain a specific 
 allegation or charge upon Avhich each interrogatory is 
 grounded; for, without such allegation or charge, there 
 is no test by which the right to discovery can be tried (m). 
 This involves the proposition that such allegation or 
 charge must be " certain," and this rule, which is 
 one of general application {x), is no qualification of the 
 plaintiff's right to discovery. Uncertainty in pleading 
 is a A-ice, by which a party may lose a benefit to 
 which otherwise he may be strictly entitled. And all 
 that is here contended for is, that a suitor for dis- 
 covery is not exempt from an obHgation to which 
 suitors for all other purposes are liable. 
 
 191. At common laAv there are degrees of certainty 
 in pleading,— certainty to a common intent; and cer- 
 tainty to all intents and purposes (//). Certainty to a 
 common intent is, perhaps, all which the rules of plead- 
 ing in equity require for any purpose. The author, at 
 least, is not aware of an}^ autliority to the contrary. 
 
 192. Uncertainty in a bill may, for the purposes of 
 the present question, exhibit itself under different forms. 
 1. The case intended to be made bv the bill mav be 
 
 («) Supra pi. 94. Duncalf v. Blake, 1 Atk. 52: Attoniey- 
 Geueral V. Whorwood, 1 Ves. sen. 534 : Bullock v. Richanhon, 
 1 1 Vc's. 873: and sge Gwdon v. Gordon, 3 Swans. 472. 
 
 {x) See Edwards v. Edwards, 1 Jac. 335 : Hardman v. El- 
 lames, 5 Sim. G40; S. C, 2 Myl. & K.'732. 
 
 (y) 1 Clutty on Plead. 237. Stephen, 348, 77, 3i{().
 
 SECOND PROPOSITION. 125 
 
 vague and uncertain. 2. The case intended to be 
 made may be certain^ but the allegations in the bill 
 may be so vague as to di'aw with them the conse- 
 quences and mischiefs of uncertainty in pleading. In 
 both cases the plaintiff's right to discovery will be 
 affected by the uncertainty of the pleadings. ;^^i^ ^f^^^^- 
 
 193. In The East India Company v. Henchman {z), 
 (1791), the plaintiffs filed their bill against Henchman, 
 alleging that he had been a writer and covenanted ser- 
 vant of the plaintiffs fi'om 1765 to 1780; and again (in 
 another capacity) from 1785 to 1790. The bill charged 
 the defendant, in a very vague manner, with making 
 
 profits in fraud of his engagements with his employers, ( 
 
 and prayed an accoimt of such profits. The defendant ^ 
 
 demui-red, and the Lord Chancellor allowed the de- » 
 
 murrer, upon the ground of the vagueness and uncer- * 
 
 tainty of the charges in the bill. j 
 
 194. In Cresset v. Mitton{a) (1792), a demurrer was '4 
 allowed to a bill, on the ground that the case alleged by ;»< 
 the plaintiff was so general, that the defendant could 3 
 scarcely know the point to be examined to. J 
 
 195. In Rtjves v. Ryves {b), (1 797), the plaintiff alleged g| 
 himself to be the eldest son and heir-at-law, and heir jgj 
 of the body of Thomas Rj'ves the elder, deceased, by 
 
 Elizabeth his first wife, deceased; and also only son 
 and heir-at-law, and customary heir of the said Eliza- 
 
 (c) 1 Ves.jun. 287. («) 1 Vcs. jun. 449. 
 
 (fj) 3 Ves. jun. 343.
 
 126 SECOND PROPOSITION. 
 
 bctli RyvcSj wlio Avitli licr sister -n-cre the only two 
 cliildrcn and co-heiresses at law of Sir William Abdy, 
 deceased. The 1)111 then stated, that, at the time of 
 the marriage of the plaintiff ^s father and mother, his 
 mother was seised and possessed of freehold, copyhold, 
 and leasehold lands, as one of the co-heiresses of her 
 fatlier, or under his marriage settlement, or his will or 
 codicil, or by some such or other means; and that, upon 
 or before or after the marriage, the said estates and 
 other estates of Elizabeth and of Thomas R}'^•es, were 
 settled to uses in some manner, so as that the plaintiff*, 
 upon the deaths of his father and mother, or the death 
 of the said Thomas Ryves the elder, became seised of 
 all or most of the estates in settlement, either in fee or 
 as tenant for life, or in tail in possession, or in some other 
 manner ; as in and by the said settlements or settlement, 
 or some counterparts or some counterpart, duplicates, 
 copies, drafts, abstracts, extracts, counterpart, duplicate, 
 &c.,then in the custody or power of the defendants, or one 
 of them, would appear. The bill then stated the deaths 
 of parties, and that the plaintiff had become entitled 
 to the settled property, and that Anna Maria Ryves, 
 and Henry Pleydle Ryves, had wrongfully taken pos- 
 session of the property, and of all the muniments of 
 title and writings relating thereto, and still had such 
 possession. The bill then suggested a pretence by the 
 defendants, that the plaintiff had made an exchange of 
 some of the lands comprised in the settlements, and 
 had made or concurred with his father in exchanging
 
 SECOND PROPOSITION. 127 
 
 some of the settled lands situate in Lincolnshire, for 
 other estates in Dorsetshire, Avhich were afterwards 
 sold, and part of the money received by the plaintiflf. 
 The bill then charged, that no such exchange had ever 
 been made, and that, if any had been made, he had 
 been induced to make the same by misrepresentation 
 or concealment as to the value of the estate ; for that 
 the estates in Lincolnshire were worth 1,100^. per an- 
 num, and were actually let for 1,000/. per annum; 
 and that the Dorsetshire estates (alleged to have been 
 exchanged) were not worth more than 400/. or 500/. 
 per annum. The bill denied that the estate in Dorset- 
 shu'c had been sold, and insisted that if any sale had 
 been made, the plaintiff had not concurred in such 
 sale, or received any part of the money ; and that the 
 alleged exchange (if any) had been effected by fraud. 
 The bill then charged that Henry Pleydle Ryves had, 
 on a specified occasion, admitted that an estate called 
 Barnardiston was comprised in the above-mentioned 
 marriage settlement. The bill prayed a production of 
 documents which might in any manner tend to prove 
 or shew the title of the plaintiff thereto, so that the 
 plaintiff might have an opportunity of procuring the 
 same to be inspected on his behalf; and that the de- 
 fendants might deliver, or procure to be delivered up 
 to the plaintiff, the possession of the estates then in the 
 possession of them, or either of them, which the plain- 
 tiff should be found entitled to, together with all title 
 deeds and writings in the custody or power of the said 
 defendants, or any persons claiming under them, in
 
 128 SECOND PROPOSITION. 
 
 aiivArisc relating or belonging thereto ; and for an ac- 
 count of tlie rents and profits, and for further relief. 
 The usual affidavit was annexed to the bill. To this 
 bill a general demurrer was put in. In support of the 
 demurrer it was argued, that the bill was one of those 
 vexatious fishing bills, Avhich had always received the 
 disapprobation of the Court. It was so vague and un- 
 certain, that the defendants could not plead to it ; and 
 must discover aU deeds relating to their estates. Ap- 
 plicable to every thing, it applied in certain to nothing. 
 The bill ought to state Avhat the property was to which 
 it apphed ; and from what was said of the exchange, it 
 appeared the plaintifi* could do so. There must be what 
 Lord Hardwicke calls convenient certainty. The Master 
 of the Rolls allowed the demurrer. 
 
 197. In The Mayor and Commonalty and Citizens of 
 London v. Levy (c), a biU was filed for discovery in aid 
 of an action at law, and a general demurrer was put in. 
 Lord Eldon allowed the demurrer. He said, " that, 
 where the bill avers, that an action is brought, or, 
 where the necessary effect in law of the case stated by 
 the bill appears to be, that the plaintiff has a right to 
 bring an action, he has a right to discovery, to aid that 
 action so alleged to be brought, or wliich he appears to 
 have a right and an intention to bring, cannot be 
 disputed. But, it has never yet been, nor can it be, 
 laid down, that you can file a bill, not ventui-ing to 
 state who are the persons against whom the action is 
 
 {<■) 8 Ves. 3S)8.
 
 SECOND PROPOSITION. 129 
 
 to be broiiglit ; not stating such circumstances as may 
 enable the Court, which must be taken to know the law, 
 and therefore the liabilities of the defendatits, to judye ; 
 but stating circumstances; and averring that you have 
 a right to an action against the defendants or some of 
 them." 
 
 198. In Jones v. Jones [d), (1817), upon demurrer, 
 the Master of the Rolls said, " When the plaintiff comes 
 to ask that the defendant may be restrained from set- 
 ting ujj any outstanding terms, the language is varied ; 
 for it is, — so as to defeat the plaintiff ^s claim in any 
 issue or action directed by the Court, or which the 
 plaintiff may be ad^dsed to bring, for recovery of the 
 real estates or the rents and profits thereof. This, 
 undoubtedly, Avould be proper relief to ask, if it liad 
 been averred that there were any outstanding terms. 
 
 ' But the case of Barber v. Hunter is a direct authority 
 that the Court will not proceed on a mere vague allega- 
 tion that the action may be defeated by setting up out- 
 standing terms." Demurrer allowed. 
 
 199. In Tlie Princess of Wales v. The Earl of Liver- 
 pool (e). Lord Eldon ultimately came to the conclusion, 
 that the case was one in which the plaintiff ought to 
 produce certain documents before slie called on tlic 
 defendant to answer the bill. Before he made the 
 order, however, he required an affidavit specifying the 
 
 (d) SiMor. 172. (r) 1 Swans. 126.
 
 130 SECOXl) PROPOSITION. 
 
 grounds upon which the appHcation l)y the defendant 
 was founded ; and his observations apply forcibly to the 
 point now under consideration. " The affidavit (said 
 Lord Eldon) amounts only to this : it is a statement 
 that Count Munster is ad\dsed that an inspection of 
 the instrument may afford to the defendants material 
 information for their defence ; tliat is, it may, or 
 may not, afford it. How can it be said that this 
 expression " may afford," points out the necessity 
 alluded to in the passage which I have quoted? It 
 appears to me impossible. This motion requires an 
 affidavit stating more strongly the necessity, and in 
 some measure the grounds on which the necessity arises. 
 Unless those grounds are to a certain extent stated, it is 
 impossible to be sure that the Court is not compelling a 
 production which the circumstances do not require. It 
 seems to me, that the right mode of disposing of this case 
 is to dismiss the motion, unless the defendants produce an 
 affidavit of special circumstances.'' 
 
 200. In Frietas v. Dos Santos (/), (1827), the insuffi- 
 ciency of a merely general charge was the subject of ex- 
 press decision. The Coiu-t, it would seem, in this case, 
 arrived at its conclusion by construing the general chai-gc 
 Avith reference to particular charges in the bill. The 
 bill stated certain dealings and transactions between the 
 parties, and charged that there was an open account 
 between them. The Court, being of opinion that the 
 
 (/) 1 Younge & J. .574.
 
 SECOND PROPOSITION. 131 
 
 dealings and transactions stated did not make a case 
 for account in equity, refused to give effect to the 
 general charge, beyond Avliat the specific case stated in 
 the bill warranted. 
 ^^ 2 2- 201. In Walburn v. Imjilhij{(f), (1832), the plaintiff' 
 claimed to be a shareholder in an unincorporated joint 
 stock company, alleging a case of fraud against the 
 defendants, who were the directors of the concern. A 
 general demurrer to the bill Avas allowed, because it 
 did not specifically state the mode in which the plain- 
 tiff became a shareholder, and the manner of his hold- 
 ing, or whether, as to some of his shares which were 
 derivative, he had complied with the conditions upon 
 which alone (as appeared by the bill) the transfer of 
 shares was permitted. 
 
 202. In the judgment in Hardman v. Ellames before 
 the Lord Chancellor (/«), the reader will find much 
 valuable information upon the degree of certainty re- 
 quired in pleadings in equity. The cases of Metcalf v. 
 Hervey{i), Mendizabel v. Machado{j), M'Gregor v. 
 The East India Companij (k), and Stambury v. Ark- 
 wrvjht {I), may also be referred to. 
 
 203. In the cases which have been cited, the ob- 
 i jection of uncertainty applied for the most part to the 
 
 (<;) 1 Myl. & K. 61. 
 
 (A) 5 Sim. 640: on appeal, 2 ^Iyl^^^7a2. 
 (^•) iVes. sen. 247. (X) 1 Sim. 68. 
 
 (j) 2 Sim. 452. (I) OSim. 4f?l. 
 
 K 2
 
 132 SECOND PROPOSITION. 
 
 case for relief made by the party to wliosc pleading it 
 was imputed (m). And it may, perhaps, bethought 
 doubtful, whether these cases do more than illustrate 
 the general proposition — that a plaintiff who does not 
 in his bill state a case which entitles him to relief, is 
 not entitled to discovery. It may be proper, therefore, 
 to add a few observations as to the effect of uncertainty 
 upon a plaintiff's right to particular discovery. If a 
 particular allegation be open to the charge of '^ uncer- 
 tainty," in the sense of being of uncertain meaning, 
 it is ob%dous that no discovery can be exacted, for 
 there is in truth no question to which it can be 
 applied. There is a sense, however, in which a par- 
 ticular allegation may be certain for the general pur- 
 poses of pleading, and certain for some, but not (it is 
 conceived) for all the purposes of discovery. Thus, 
 suppose a plaintiff by his bill to claim an estate, his 
 right to which was represented in the bill to be inter- 
 cepted by conveyances to which the plaintiff had not 
 been party; and suppose the bill to charge generally, 
 that the conveyances had been obtained by fraud,-^— 
 without any such specification of the particulars con- 
 stituting the alleged fraud as would enable the Court 
 to know what the case was upon which the plaintiff 
 relied. Now, this allegation would (in general) be 
 sufficient to let in evidence in support of the charge 
 
 (m) As to the answer to be given to general and to special alle- 
 gations respectively, see Hare, 279.
 
 SECOND PROPOSITION. 133 
 
 of fraud («), subject to a question at the hearing 
 of the cause, whether if, by reason of the generality 
 of the charge, the evidence were a surprise upon 
 the defendant, the Court, in the exercise of its dis- 
 cretion, would direct inquiries before a Master. The 
 allegation would also be sufficient for the purpose of 
 discovery, so far as to obhge the defendant to answer 
 generally the charge of fraud. For a demurrer to 
 the whole bill would leave that charge in admission (o) . 
 It may, indeed, be laid down, (as a general rule), that a 
 particular charge, however general, (supposing the case 
 made by the bill in other respects well pleaded), must 
 receive some answer (p), whenever the admission of its 
 truth would give title to the plaintiff. Even a charge 
 that a defendant claims an interest, without suggest- 
 ing any explanation of the nature of such claim, re- 
 quires some answer (g). Now, suppose the plaintiff (in 
 the case suggested) to charge that the defendant had 
 in his possession documents, papers, and letters, rele- 
 
 (n) 1 Chitty Plead. 570 ; 9 Co. 110 ; Watki/ns v. Watkyns, 2. 
 Atk. 96 ; Clark v. Periam, 2 Atk. 337; Wheeler v. Trotter, 3 
 Swans. 174, note ; Gordon v. Gordon, 3 Swans. 471, 474 ; Att- 
 wood V. , 1 Russ. 3o3. 
 
 (o) Redes. Plead. 212, 213. 
 
 {p) Stroud V. Deacon, 1 Ves. sen. 37 ; Budcn v. Dore, 2 Ves. 
 sen. 444; Shaftesburi/ v. Arrowsmith, 4 Ves. 66; infra, jil. 228 ; 
 Emerson v. Harland, 3 Sim. 490, S. C. 8 Bligli, 62 ; supra, pi. 1 17 ; 
 and see Wliytnan v. Leg/i, 6 Price, 88. 
 
 (rj) RimUs. Plead. 188.
 
 134 SICCONI) I'UOl'OSITION, 
 
 rant to the matter of tlie conveyances impeached by the 
 bill, and the circumstances attending the execution 
 thereof, and that if the same were produced, the im- 
 puted fraud would thereby appear — it is clear (as al- 
 ready observed) that to this charge some answer must 
 be given. But, suppose an answer were given, fully 
 and unequivocally denying the charge of fraud, 
 would a Court of Equity, in sucli a case, compel a de- 
 fendant to subject his documents, papers, and writ- 
 ings, to the inspection of an adversary, solely upon the 
 ground of their admitted relevancy to the general 
 matter in hand ? The answer to this question must, it 
 is conceived, be given in the negative. A bill so 
 framed is purely xa fishing bill. The object of a bill so 
 framed can scarcely be intended by a Court to be legi- 
 timate, unless some reason be assigned for the gene- 
 rality of the plaintiff's statement. Discovery is given 
 in Coui'ts of Equity, to assist a plaintiff in proving a 
 knoAvn case, and not to assist him in a mere roving 
 speculation, the object of which is to see whether he 
 can fish out a case. The only postulate necessary to 
 prove that a defendant denying (to the satisfaction of 
 the Court) a general charge of fraud, may successfully 
 object to the production of liis documents, in a case 
 like that suggested, is this, — that a party cannot, in a 
 court of justice, be without an opportunity of defence, 
 if in truth he has one. The mode of taking the ob- 
 jection to the particular discovery is another point. 
 But, if a defendnnt be not provided with some means
 
 SECOND PROPOSITION. 135 
 
 of doing this, it will follow that a plaintiff, merely by 
 suggesting a fictitious case, may secure to himself an 
 inspection of another man's private documents, to 
 which in truth he is not entitled. That this conse- 
 quence is inevitable, will be manifest from the consi- 
 deration, that a bill may always be so framed as to 
 make the answer to which the objection of uncer- 
 tainty applies necessary, even where the defence is by 
 plea. Unless, therefore, the generality of the charge 
 per se be admitted as s. possible ground of objection to 
 the interrogatory founded upon it, none can be sus- 
 tained. This point is resumed in another place to 
 which it more properly belongs, namely, that place in 
 which the power of a defendant to insist by answer 
 that he is not bound to give particular discovery is in- 
 sisted upon. 
 
 204. The observations in the last paragraph may, 
 upon a first impression, appear inconsistent with the 
 previous observations on the eflPect of uncertainty in 
 pleading. They are to be reconciled, however, by ad- 
 verting to the distinction between a charge which is 
 vague and uncertain, and one which, though general in 
 terms, is definite in meaning; and by adverting also 
 to the principle of construction noticed in the observa- 
 tion upon Frietas v. Dos Santos (r) . 
 
 205. It may be proper to observe in conclusion, 
 that a less degree of certainty in pleading may some- 
 times satisfy the Court, where the plaintiff assigns a 
 
 (r) Supra, pi. 200, and 1 Younge & Collyer, 574.
 
 136 SKCOND PROPOSITION. 
 
 sufficient reason for the apparent want of certainty in 
 his pleading (j9). 
 
 206. Such, generally, are the requisitions of a Court 
 of equity -with respect to its pleadings. There are 
 some points, however, of a more particular character, 
 the great importance of which, although they belong 
 more properly to the science of pleading, will, it is 
 hoped, recommend the following observations to the 
 attention of the reader. 
 
 207. A class of cases was particularly noticed in a 
 former place (g), in which the frame of the bill was 
 supposed to be such as to preclude the defendant from 
 meeting it by a pure plea; and in which a valid plea to all 
 the relief did not exclude the plaintiff ^s right to pcu't of 
 the discovery sought by the bill. By the rule which 
 they estabhsh, a defendant, who pleads to a bill, must 
 not by his plea cover any discovery which is material 
 to the trial of the truth or validity of the plea itself (r). 
 By another rule of pleading, a defendant, who pleads 
 to the discovery called for by the bill, must not give 
 any of the discovery which liis plea covers (*) — a rule 
 of such strictness, that in one case Lord Hardwicke 
 said, that, in a plea of purchase for valuable considera- 
 
 (/>) Wright v. Plumptre, 3 Madd. 481. 
 {q) Supra pi. 99 & 103. 
 
 (r) Assuming; that the plaintiff's pleadings are properly framed 
 ill point of form, infra, pi. 212 et seq, 
 
 (a) Redes. Plead. 299 ; Beames, 33 ct seq.
 
 SECOND PROPOSITION. 137 
 
 tion without notice, to a bill seeking a discovery of 
 deeds and writings, the purchase deed must be ex- 
 C€pted{t). The precise effect to be given to these 
 two rules in all their bearings is not, so far as the 
 writer is aware, fixed by any positive authorities. Their 
 obvious tendency and their necessary effect in some 
 cases is, to impose upon the pleader the task of sepa- 
 rating, by a line of the nicest demai'cation, the different 
 allegations in the bill from each other — according as 
 they are necessary or unnecessary, material or imma- 
 terial, to the trial of the plea itself — so that the plea 
 and answer, when complete, may meet each other upon 
 the very line by which the different parts of the whole 
 bill are thus di\-ided. The difficulty of doing this 
 with effect will not be disputed by any one who, in a 
 case of the least complexity, has attempted to frame a 
 plea which required an answer to support it. To 
 investigate these rules of pleading with that accuracy 
 and research, which alone could render the inves- 
 tigation valuable, is a task which the writer is com- 
 pelled to decHnc. The observations which immedi- 
 ately follow, occurred to the writer upon his having 
 occasion to examine certain modern decisions, the 
 correctness of which, in some respects, he presumes to 
 controvert. 
 
 208. The decisions here referred to arc Sanders 
 
 (t) Salkeld\. Science, 2 Ves. son. 107; Redes. Plead. 270.
 
 138 SECOND PROPOSITION. 
 
 V. King [n), Tlirhnj v. Edgar [x). and Pennington v. 
 lieechey {y) . 
 
 209. The case of Sanders y.King has been stated 
 at length in a former page {z), and to that statement of 
 the case the reader is here referred. 
 
 210. In Thring v. Edgar [a), the plaintiff claimed 
 to be a creditor of IMartha Butt deceased, and filed his 
 bill against her heir-at-law, de^dsees, and executors, for 
 an account, or pajnnent of the plaintiff^s debt. The bill 
 alleged that the testatrix Martha Ikitt was, in her 
 lifetime, and at the time of her deatii, indebted to the 
 plaintiff in the sum of 215/., for goods sold and money 
 lent, paid, laid out, and advanced by him to the testa- 
 trix, or for her use and by her order ; and that the same 
 debt, with an arrear of interest thereon, was due to 
 the plaintiff; and that the truth thereof would appear 
 from the books, papers, and writings in the defendant's 
 possession. The defendant pleaded to all the discovery 
 and relief sought by the bill, other than and except so 
 much of the bill as sought a discovery of the matters 
 above mentioned as to the plaintiff's alleged debt. 
 And to these excepted parts of the bill the defendant 
 answered. The Vice-ChanceUor, after stating at length 
 
 {n) 2 Sim. & Stu. 277 ; and G Madd. 61. 
 {x) 2 Sim. & Stu. 274. 
 (^) 2 Sim. & Stu. 282. 
 (xr) Supra, pi. 107. 
 («) 2 Sim. & Stu. 274.
 
 SECOND PROPOSITION. 139 
 
 his judgment in Sanders v. King, proceeded as follows : 
 — " To apply these principles to the present case. If 
 the testatrix were not at her death indebted to the 
 plaintiff in any sum of money, then the plaintiff ^s title 
 to any relief or any discovery upon this bill wholly 
 fails, and the plea of no debt is a full bar to the whole 
 suit, unless the plaintiff has sought from the defend- 
 ant a discovery of any circumstances by which the 
 existence of the alleged debt is to be established ; and 
 then the defendant, although by his plea he may deny 
 the debt, must still answer as to the particular dis- 
 covery which is thus sought from him. But, in order 
 that a defendant may in such a case know Avhat is the 
 particular discovery which the plaintiff requires from 
 him, it is incumbent upon the plaintiff' distinctly to 
 state it in the bill; and the common form of doing this 
 is, by the plaintiff^s charging, as evidence of his title, 
 the particular matters as to which he seeks a discovery 
 from the defendant. Unless the defendant is distinctly 
 informed by the plaintiff what are the particular matters 
 affecting his title, as to which he seeks such discoveiy, 
 the defendant, not knowing what he is expected to 
 answer, is not to answer at all." " The plaintiff' in the 
 present bill gives no distinct information to the defend- 
 ant that he seeks any discovery from him, for the pur- 
 pose of establisliing the existence of the debt. The 
 defendant's plea, therefore, of no debt, was a full 1}ar 
 to the whole discovery, as well as to the rehcf ; and the 
 defendant as much overruled his plea by answering to 
 the debt, as he would have overruled it by answering to
 
 1 10 SECOND PROPOSITION. 
 
 suiy other part of the bill." " If, upon the filing of 
 this plea, the plaintiff had desired a particular discovery 
 from the defendant as to any circumstances by which 
 the debt was to be established, he would have amended 
 his bill, and would have charged, as evidence of his 
 title, the special matters which he required to be 
 answered." 
 
 211. In Pennington x.Beechey [b), the bill was filed 
 for a discovery in aid of an ejectment brought by the 
 plaintiff against the defendant, to recover possession of 
 an estate. It alleged that the plaintiff was entitled to an 
 estate under a settlement, made upon the marriage of 
 his great grandfather in 1717; and that the defendant 
 had frequently admitted to the plaintiff^s father that he 
 held the estate during the life only of the plaintiff's 
 father, and that at his death the plaintiff would succeed 
 to it. The defendant pleaded a conveyance of the 
 estate made to him in 1795, by a person then in the 
 actual possession of it, and who alleged himself to be 
 seised in fee, for 600/. ; and averred that he had not, 
 at or before the time of the execution of the convey- 
 ance or the payment of the 600/., any notice whatsoever 
 of any right, title, or interest of the complainant in or 
 to the premises, or any part thereof." The Vice- 
 Chancellor gave judgment as follows : — " The plaintiff 
 insists that notice of the settlement of 1717 would 
 have been constructive notice of the plaintiff's title ; 
 
 {h) •> Siin. & Stu. 282.
 
 SECOND PROPOSITION. 141 
 
 but it does not follow that the plea therefore ought 
 specially to have denied notice of that settlement. The 
 general denial by the plea of all notice whatsoever 
 includes constructive as Avell as actual notice, and is 
 therefore a denial of notice of the settlement. It is not 
 the office of a plea to deny particular facts of notice, 
 even if such particular facts are charged. Here the 
 plaintiff, not anticipating by the bill the defence of the 
 defendant as a purchaser for a valuable consideration, 
 has not charged that the defendant had notice of this 
 settlement, or any notice of his title.^^ " If the 
 plaintiff had meant to have affected the defendant 
 with notice of this settlement, he should have charged 
 generally, in his bill, that the defendant had notice 
 of his title ; and then, as evidence thereof, should have 
 speciaUy charged notice of the settlement. In such 
 case the defendant, notwithstanding the general denial 
 of notice in the plea, would have been bound to answer 
 as to the special notice of the settlement." '' With 
 respect to the objection, that the plea ought to 
 have been accompanied with an answer to the ad- 
 mission of the plaintiff's title, alleged to have been 
 made by the defendant, because such admission would 
 have been evidence that the defendant has notice of 
 the plaintiff's title — the answer is, that the plaintiff 
 has not made that case in his bill. For such a purpose 
 also the plaintiff, after generally charging that the 
 defendant had notice of his title, should, as evidence 
 thereof, have specially charged these admissions, which 
 the defendant would have been bound to answer.
 
 1 12 SECOND PROPOSITION. 
 
 notwithstanding the general denial of notice in the 
 plea." 
 
 212. To the propriety of the judgment in Sanders v. 
 King, so far as it overruled the plea, the Avriter entirely 
 subscribes — for, the plea undoubtedly covered matter 
 to a discovery of which the plaintiff ^s right extended. 
 By this case, however, and the cases of Thring v. Edgar 
 and Pennington v. Beechy, taken together, three propo- 
 sitions of law are laid dowTi, to which the author's ob- 
 jections, already adverted to, apply [c). 
 
 213. The three propositions objected to are these : 
 
 I. That a defendant is not bound — in support of his 
 plea — to answer am'^ allegation in the bill which is not 
 expressly chai'ged " as evidence " of the plaintiff's case, 
 or in words of equivalent import {d) ; 
 
 II. That the defendant is bound to support his plea 
 by an answer to every allegation in the bill which is so 
 charged ; and, 
 
 III. That the defendant is not at liberty — under pain 
 of overruling his plea — to answer any allegation in the 
 
 (c) Mr. Daniel, in his valuable work on the Present Practice 
 of the Court of Chancery, expresses a strong oj^inion in favour of 
 the judgment in Thring v. Edgar. He thinks that Sir J. Leacli 
 intended to confine his observations to charges directly connected 
 with the plaintiff's title, as distinguished from charges collateral to 
 it. The writer of this volume cannot detect that distinction in the 
 report of the case ; and if the distinction exists in fact, the writer 
 must submit, that it is founded upon a misconception of tlie 
 proper meaning of discovery being covered by a plea. Infra, pi. 21 9. 
 {d) Hare, 36, 40.
 
 SECOND PROPOSITION. 143 
 
 bill which is not expressly charged " as evidence," or in 
 words of equivalent import. 
 
 214. The first of these propositions (if sustainable) 
 must be rested upon authority, — upon principle, — or 
 upon convenience. 
 
 215. Now, the point is not to be found in any case 
 preceding that of Sanders v. King. The cases of Roche 
 V. Morgell [e) (1809), Jones v. Davis (/) (1809), Cham- 
 berlain y.Agar [g) (1813), Crow v. Tyrell{h) (1817), 
 respectively decided before Sanders v. King; and the 
 cases of Arnold v. Heaford (/) (1825), and Hardman v. 
 Ellames [k) (1834), decided since that case, are author- 
 ities the other way. The judgment of the Lord Chan- 
 cellor (Brougham) in the last case supports the propo- 
 sition for which the Avriter liere contends, namely, that 
 it is not necessary — in order to entitle a plaintiff to 
 particular discovery — that a fact should be charged 
 in any particular form of words, where the fact is in its 
 nature such as to make it proper that an answer 
 should be given. " The cases (says Lord Brougham) 
 of Sanders v. King and Thring v, Edgar, decided by 
 the Master of' the Rolls upon similar principles, do 
 not appear to me in the least inconsistent witli the 
 present determination. In the former, it was held 
 that when, besides setting forth his title, the plain- 
 
 (e) 2 Scho. & Lef. 721. {h) 2 Madd. 397. 
 
 ( /) 16 Ves. 262. (e) 1 M'Cl. & You. 330. 
 
 Ig) 2 Ves. & Bea. 259. (/t) 2 My]. & K. 732.
 
 144 SECOND PROPOSITION. 
 
 tiff aUeges circumstances as evidence of tliat title, a plea 
 negativing tlie title docs not protect the party from 
 answering as to those circumstances; being nearly the 
 doctrine laid down in two of the cases which I have 
 cited before; and in Thring v. Edgar it was held, 
 that when the defendant, in the answer accompanying 
 a negative plea, goes beyond denying the facts spe- 
 cially charged as evidence of the plaintiff's title, he 
 overrules his plea. But it is not at all inconsistent 
 with this (/), to hold that where facts have been chai-ged 
 inconsistent with the plea itself, negativing that negative 
 plea by anticipation as it were, and thus supporting 
 the plaintiff's title, the traversing those averments, and 
 thereby supporting the plea, is safe, and does not over- 
 rule the plea. This would be sufficient to shew that 
 Thring v, Edgar is consistent with the present deci- 
 sion; but the other cases which I have referred to shew 
 not only that so answering does not overrule the plea, 
 but that without such denials the plea itself is bad. In- 
 deed, strictly speaking, the one 2>roposition is involved in 
 the other (m)." The late case of Denys \. Locock{n) 
 supports the same conclusion. The first of the three 
 propositions above mentioned cannot, then, it is con- 
 ceived, be sustained by authority alone. 
 
 216. V^on principle it seems equally difficult to sus- 
 tain it. Upon principle — a plaintiff has a right to 
 a discovery of all such material facts as, upon the ar- 
 
 il) Query. {m) 2 Myl. & K. 744. 
 
 (7?) 3 Myl. & Cr. 205.
 
 SECOND PROPOSITION. 145 
 
 gument or hearing of the plea would be material for the 
 purposes of such argument or hearing. The cases re- 
 ferred to under the second proposition (o) determine 
 this as a general rule; and the cases of Jones v. Davis, 
 Chamberlain v. Agar, Croiv v. Tyrrell, and Hardman 
 V. Ellames, are merely examples of the application of 
 that general ride to specific cases. The language of 
 the judgment in Jo7ies v. Davis appears to be decisive 
 upon the point. " In this case my opinion is^ (says 
 Lord Eldou), that the plea is badj since, it docs not 
 contain a negation of the alleged accounts having been 
 kept by the company. If the accounts had been kept 
 by the company, that would have been evidence before 
 a jury of such an agreement as that stated in the bill; 
 and therefore it was not sufficient for the defendant 
 merely to deny the agreement having been entered 
 into" (j>) . 
 
 217. As a rule of convenience merely — the writer 
 with confidence submits that the point uuder consider- 
 ation cannot be defended. The argument of con- 
 venience must be, that, by imposing upon the plaintiflF 
 an obligation to point out the parts of the bill he 
 desires to have answered, the defendant is relieved from 
 the difficulty of determining what discovery he must, 
 and what discovery he may, give without injury to his 
 plea. It is obvious, however, that this end would not 
 be gained by compelling a plaintiff thus to mark (as 
 
 (o) Supra, pi. 99, 103, 104, 109. 
 (/») Supra, pi. lOo. 
 L
 
 146 SECOND PROPOSITION. 
 
 with a badge) the questions lie required the defendant 
 to answer. The object of the plaintiff always is to get 
 discovery at all events, and the technicalities of equity 
 pleadings are among his available means of exacting 
 this discovery. The consequence of a rule which de- 
 nied to the plaintiff a right to discovery of any alle- 
 gation upon which he had not put the regulation mark, 
 would be, — that he would put the required mark upon 
 every allegation in the bill. This (which the writer 
 knows to have been a course adopted in practice) would 
 at once reduce the defendant to his original difficulty 
 — an observation which destroys the rule as one of 
 convenience. 
 
 218. The second of the three points ruled by the 
 Vice-Chancellor, if carried to its literal extent, would 
 amount to this — that a plaintiff might acquire a right to 
 discovery merely by using a particular form of words, 
 whether the fact were one which he was entitled to 
 have answered or not — a meaning which perhaps ought 
 not to be attributed to the expressions of the learned 
 judge. If his words are to be understood of allegations 
 material to the issue in the cause, the proposition they 
 involve cannot be objected to ; but they express a great 
 deal more (^j). 
 
 219. The third point remaining to be noticed is one 
 of difficulty and importance. The Vice-Chancellor, 
 
 (p) Hare, 36, 40.
 
 SECOND raoposiTioN. 147 
 
 in ruling this point, proceeded upon the admitted 
 rule, that an answer overrules a plea where both 
 cover the same thing. Now, what is the true 
 scope and meaning of this rule ? The rule is thus 
 laid down in Clanrickard v. BurTc {q) (1717) : " It is a 
 rule in equity that the answer overrules the plea where 
 defendant answers the same things he insists upon in 
 his plea that he ought not to answer to." The same 
 rule is thus laid down by Lord Kedesdale [r) : " An 
 answer can only overrule a plea, where it applies to 
 matter which the defendant by his plea declines to 
 answer; demanding the judgment of the Coui't, whe- 
 ther by reason of the matter stated in the plea he 
 ought to be compelled to answer so much of the biU." 
 In the Forum Romanum {s) the rule is thus expressed : 
 " If (says Chief Baron Grilbert) you answer to any thing 
 to which you may plead, you overrule your plea; for 
 your plea is only why you should not contest and an- 
 swer ; so that, if you answer, your plea is waived." And 
 again, in the same page : " But all these pleas with 
 us are to be put in ante litem contestatam, because they 
 are pleas only why you should not answer; and there- 
 fore, if you answer to any thing to which you may 
 plead, you overrule yom* plea; for your plea is only 
 why you should not contest and answer, so that, if you 
 answer, your plea is waived ; but you may answer any 
 thing which is not charged in the bill, in snbsidium of 
 
 {q) 4 Vin. Abr. 442. W. a. 1 . (r) Rfdos. Plead. 240, n. 
 
 (.«) For. Rom. .58. 
 
 l2
 
 148 SECOND PROPOSITION. 
 
 your plea, as you may deny notice in your answer, which 
 you deny also in your plea, because that is not pidting 
 any thing in issue ivhich you toould cover by your plea 
 from being put in issue ; but it is adding by way of 
 answer that which tvill support your plea, and not an 
 answer to a charge in the bill which by your plea you 
 would decline." Mr. Bcfimes, in his valuable book 
 upon picas in equity, refers to numerous cases {t), 
 affirming the proposition in support of which he 
 cites them, — that, " if an answer extend to any 
 part of the bill covered by the plea, it will be fatal 
 to the plea, on argument." The rule, then, in its 
 strictest sense, cannot be carried beyond this — that a 
 defendant must not answer that which his plea covers, 
 for that by the rules of pleading he is understood 
 to decline answering {u). The rule of pleading thus 
 defined raises a distinct question of law, namely, what 
 is meant by the expression " discovery covered by 
 a plea?" The meaning of this, in one sense, must 
 have reference to a case in which the defendant, 
 having insisted that he was not bound to give spe- 
 cified discovery, has de facto given the very dis- 
 covery which he had in terms insisted he was not 
 bound to give, — as, Avhere a defendant, having pleaded 
 to all the discovery sought by the bill, has answered 
 part of it, — and this, it is conceived, is the true 
 meaning and limit of the expression, " discovery covered 
 
 («) Beamcs on Picas, 37, n. (4). (?<) Hare, 30, 36.
 
 SECOND PROPOSITION. 149 
 
 by a plea." In the late case of Denys v. Locock [x), 
 the plaintiff sought to establish a trust against one of 
 the defendants, upon the ground of a promise alleged 
 to have been made by that defendant to the plaintiff ^s 
 mother, proAided she would execute a codicil under 
 which the defendant took large benefits. The de- 
 fendant pleaded no promise, and accompanied the 
 plea with an answer to parts of the bill relating to the 
 alleged promise. The plea was, in form, precisely 
 similar to that in Thing v. Edgar {y), and did not 
 purport to cover those parts of the bill which the 
 defendant answered. The Lord Chancellor overruled 
 the plea upon a ground which is inapplicable to the 
 present subject, but in obsendng upon that part of the 
 judgment in Thring v. Edgar, in Avhich Sir J. Leach 
 considered the plea as overruled by the answer, his 
 Lordship said : " Now, the answer cannot, properly 
 speaking, be said to overrule the plea, when the plea 
 and answer are to distinct and several matters {z) ." 
 This observation is directly in point, and was applied 
 to an argument of counsel by which the judgment 
 of Sir J. Leach, in Thring v. Edgar, was impeaclied. 
 This, however, was not the sense in which Sir John 
 Leach must have understood the expression, " disco- 
 very covered by a plea ;" for, in Thring v. Edgar, 
 as in Denys v. Locock, the answer by which the 
 
 (,r) n Myl. ^- Cr. 20.5, (July, 1R.S7). 
 {t/) Supra, pi. 210. (c) 3 Myl. & Cr. 235.
 
 150 SECOND PROPOSITION. 
 
 pica Avas held to be vitiated, applied to matter expressly 
 excepted out of the operation of the plea ; and, there- 
 fore, not in terms covered by it. The sense in which 
 Sir John Leach must have understood the expression, 
 — and which the passage cited from the Forum Ro- 
 manum may possibly be supposed to point at, — may 
 thus be stated {n) : — rales of law, unconnected with 
 rules of pleading, determine a priori what discovery 
 a plaintiff is entitled to {b) : — if a plaintiff seeks to 
 obtain discovery to which, by those rules, he is not 
 entitled, the defendant may submit to the Court 
 the reasons upon Avhich he founds his right to be 
 protected against the discovery sought : — a plea is one 
 of the appointed modes of making this submission ; 
 and the question which every plea to discovery in sub- 
 stance raises is — whether the matter of the plea is or is 
 
 (a) These oLscrvations suggest a distinction as to a plea being a 
 cover in fact — or a cover in law. In deference to the opinion of tlie 
 Vice-Chancellor, tlie author has conceded and reasoned upon the 
 supposition that this distinction is founded. He is not, however, 
 prepared to admit that there is any authority to support the latter 
 species of cover, except Thring v. Edgar and James v. Sadgrove, 
 which are directly opposed by the opinion of the Lord Chan- 
 cellor in the case of Denys v. Locock, and other authorities cited 
 in the text. In a late case, not reported, Costa v. Albertazzi, it was 
 said, in argument of a demun-or, that a defendant was bound to re- 
 fuse an answer to all whicli his demurrer might have covered ; for 
 that, if a different practice were admitted, the answer would tender 
 a number of immaterial issues. The answer to this is, that it 
 jyroves too much, for the defendant may give all the discovery 
 which the bill seeks, and yet demur with effect to the relief. 
 
 {b) Prop. I.
 
 SECOND PROPOSITION, 151 
 
 not a reason in law why the plaintiff should not have that 
 discovery which he seeks. Whatever discovery the plea 
 would, on the part of the defendants^ be a reason in law 
 for not giving — that discovery the plea may be said in 
 law to cover. Confining the observations which follow 
 to those parts of the bill which the plea thus covers, the 
 strictest interpretation of which the rule in question 
 is susceptible is this — that, whatever the defendant 
 (who pleads) may, — he must, — abstain from answering, 
 or waive the benefit of his plea to discovery altogether; 
 and this appears to have been the opinion of Sir J. 
 Leach, as well in Thring v. Edgar as in James v. Sad- 
 grove {c). Further than this the rule of pleading re- 
 ferred to cannot possibly be extended. There is no 
 authority — so far as the author has been able to discover 
 — for holding that a plea is vitiated by an answer merely, 
 irrespective of the matter to which such answer may 
 apply. The rule is not that any answer overrules a 
 pica, but that an answer to that which the plea covers, 
 overrules it. The admissibility of an answer in suhsi- 
 dium of a plea {d), excludes the argument which would 
 carry the rule beyond this. It must, therefore, in a 
 given case, be determined what the plea covers, before 
 the effect of the answer upon it can be tried. If the 
 bill contains allegations, Avhich, if uncontroverted, would 
 invalidate the plea, these (as already shewn) the de- 
 fendant mtist answer ; and, in the absence of authority 
 to the contrary, it seems irresistibly to foUow, that a 
 
 (c) 1 S. it S. 4. ((f) Infra, pi. 22 J.
 
 152 SECOND PROPOSITION. 
 
 plea can never be linrt by discovery which relates ex- 
 clusively to the matter of the plea itself. That discovery 
 the plea can never cover — unless, indeed, the plea in 
 terms purports to cover it ; which, however, is not the 
 case here supposed. 
 
 220. Now, to apply this to the cases under consider- 
 ation. What was the issue which the plea raised in 
 Thrinxj v. Edgar ? Debt or no debt. What was the 
 discovery which this plea (if true) was a reason in law 
 for not giA-ing? The accounts of the testator's estate. 
 But not the question whether the debt was due or not. 
 That was the very question to be tried. How, then, 
 could an answer to a part of the bill not sought to be co- 
 vered by thejilea, and confined to the question which the 
 plea itself raised, be an answer to that which the defend- 
 ant by his plea declined to answer? Suppose the 
 bill in Thring v. Edgar had alleged special circumstances 
 as evidence of the truth of the plaintiff's allegation of 
 debt. These special circumstances must have been 
 answered. Can it be argued that the defendant would, 
 in that case, have overruled his plea, because, in addi- 
 tion to the requisite answer to the special circumstances, 
 he answered the general allegation of debt also ? If 
 not — and the answer must, it is conceived, be in the 
 negative — why should an answer to the general allega- 
 tion have invalidated the plea, because it stood alone, 
 i. e. without special allegations to support it ? What 
 makes the decision in Thring v. Edgar the more re- 
 markable, is, that the answer which was held to over-
 
 SECOND PROPOSITION. 153 
 
 rule the plea — so far from giving discovery which the 
 plea covered, either in fact or in law, — was, in effect, 
 a mere repetition of the plea itself. The answer gave 
 not a particle of discovery beyond what was given by 
 the plea itself (e) . It might, indeed, admit of a ques- 
 tion, whether, according to the opinion of Lord Hard- 
 wicke in the case of Salkeld v. Science, before referred 
 to (/), it was not (in strictness) necessary to except the 
 matter in question out of the plea {g). 
 
 221. The author presumes to think that the point 
 under immediate consideration would not have been so 
 ruled by the Vice- Chancellor, even according to his 
 own interpretation of the expression, " discovery co- 
 vered by a plea"(^), had his attention at the moment 
 been fully aUve to the essential distinction between 
 negative pleas and pleas which require the support 
 of an answer, (which in principle are the same as 
 negative pleas), on the one hand, and pure affirm- 
 ative pleas, on the other. These last being founded 
 entirely upon new matter dehors the bill, the plea con- 
 tradicts nothing in the bill, but admits the whole bill 
 to be true, and, therefore, covers all the discovery. But, 
 where the bill is so framed that the defence must involve 
 
 (r') Tliis, in effect, is making the plea cover itself. See in 
 confirmation of the text an important extract from the For. 
 Rom. Supra, pages 147, 148. 
 
 (/) Supra, pi. 207. 
 
 (/7) What the jileader must disclose. — Hare, 94. 
 
 {h) But see supra, pi. 219, n. (a).
 
 154 SECOND PROPOSITION. 
 
 a negation, instead of an admission, of the whole, or part 
 of the bill, there the test to be applied in determining 
 whether an answer overrules a plea or not, must be de- 
 rived wholh^ from t\\c nature of the allegation answered. 
 The rule so understood and so applied to negative 
 pleas, and to pleas Avliich require the support of 
 an answer, is assimilated to the rule M'hich in the 
 case of pure affirmative pleas permits an answer in 
 subsidium (i\ without prejudice to its validity. Lord 
 Redesdalc (in speaking of an answer in subsidium) says : 
 " By such an answer, nothing is put in issue covered bij 
 the plea from being put in issu£, and the answer can only 
 be used to support or disprove the plea. But, if a plea 
 is coupled with an answer to any part of the bill 
 covered by the plea, and which, consequently, the de- 
 fendant by the plea declines to answer, the plea will, 
 upon argument, be overruled (A;)." These observations 
 are applied by Lord Redesdalc to a pure plea bringing 
 forward new matter not contradicting any thing in the 
 bill. But, mutatis mutandis, the observations apply in 
 principle, though inapplicable in terms, to the point 
 now contended for. 
 
 222. If the preceding obscn^ations should militate 
 against the reader's preconceived notions of the strict- 
 ness and technicality of pleas in equity, he is re- 
 minded, that it is not by rules of pleading merely that 
 
 (i) Rcflcs. Plead. 290 ; For. Rom. 58. 
 (i) Rccles. I'lead. 299.
 
 SECOND PROPOSITION. 155 
 
 the question, — What a pica covers? — is to be de- 
 termined. These rules are inapphcable to that ques- 
 tion. The law or the fact a jjriori determines that ; and 
 the rules of pleading observe and give effect to what the 
 law has so determined. 
 
 223. How, then, it may be asked, is a plea to be 
 framed in a case in which the plea docs not exclude 
 all right to discovery ? A full answer to this ques- 
 tion would involve an investigation of the general 
 rules of pleading which the writer is compelled to 
 decline. The following suggestions are all that he 
 ventures now to off'er upon the subject. The de- 
 fendant must begin by integrating (as into a sepa- 
 rate record) those parts of the bill the answers to 
 which are material to the trial of the plea — for these 
 must not at all events be covered by the plea. If a 
 given charge in the bill — being relevant and material to 
 the trial of the plea — be also relevant and material to 
 those parts of the bill which the plea should cover, such 
 charge must, for the purposes of the plea, be itself di- 
 vided, viz. so far as it relates to the matter of the plea, 
 &c. (/)— and to that extent the charge must not be 
 covered by the plea. If a given charge, relating ex- 
 clusively to the matter of the plea, he not matei'ial 
 
 (/) e. g. a 1)ill for an account running over a period of ton 
 years, and a plea of a stated account covering the first five of 
 those years — and charges in the hill applicalde in terms to the 
 whole jieriod.
 
 156 SECOND PROPOSITION. 
 
 for the trial of the plea, the defendant may (it is con- 
 ceived) safely exercise an option about answering it or 
 not. By answering it, he will not, it is conceived, over- 
 rule liis plea, because he will not thereby give any dis- 
 covery of matter which by his plea he declines to answer. 
 And, by refusing to answer such a charge, he will not 
 (it is conceived) affect the validity of his plea, because, 
 by the supposition, the discovery is not material. 
 This last suggestion is consistent with the principles 
 contended for in this proposition, and appears to be 
 sanctioned by the opinion of Sir Thomas Plumer in 
 Drew V. Drew (m) . If it be doubtful whether a given 
 charge must be answered or may be covered by the plea, 
 and the answer to such charge be one which the de- 
 fendant do not object to give, the safer course is to 
 leave it both unanswered and uncovered until the argu- 
 ment of the plea. The Court can, without difficulty, 
 allow a defendant to amend his plea ; but there is great 
 difficulty in allowing him to withdraw an ansiver. This, 
 indeed, was done by Lord Lyndlmrst, C. B., in the late 
 case of Tarlton v. Hornby, in the Exchequer, upon the 
 (supposed) authority of the case of ^tone v. Yea (w), 
 but the authority of this latter case, for that irarpose, 
 was denied by the Lords Commissioners in the late 
 case of Angell v. Westcomhe [o] . If the question be 
 one which it is an object with the defendant not to 
 
 (ot) 2 Ves. &B.1.59. 
 
 (n) 1 Jacob, 420. 
 
 (o) At Westminster, Trin. Term, 1835.
 
 SECOND PROPOSITION. • 157 
 
 answer, he must of coursey at all hazards, cover it by his 
 plea. Having thus determined what the plea shall 
 leave uncovered, and (as a consequence of this) what it 
 shall purport to cover — the defendant must actually 
 accompany the plea with an answer as to all those 
 uncovered parts of the bill, the answer to which is 
 material to the argument of the plea. WTiether he 
 need fiu-ther, before the argument, answer charges in the 
 bill which affect only the truth of the plea (such parts 
 being uncovered by the plea) is considered here- 
 after {p). 
 
 224. " Material {q)." The word "material" is 
 relative, — material with reference to the purpose for 
 which discovery is given, i. e. material to the "plain- 
 tiff's case." Now, the "plaintiff's case" (in the 
 sense in which the words are here used) is that case 
 upon which the parties are about to go to trial. It 
 follows, then, that discovery, which is not material to 
 the proof of that case, is not within the scope of this 
 proposition, however it may otherwise be connected 
 with the subject of the suit. This, (it may be ob- 
 served), if established, will go a long way towards 
 
 (p) Infra, Fofei/ v. HiH, pi. 251. 
 
 {q) Hare, 8. Mr. Hare, in one part of his work, appears to 
 consider relevancy/ and materiality/ as identical — 157, 188. But see 
 Id. 196.
 
 158 SECOND PROPOSITION. 
 
 pro^dng that tlie right of a plaintiff to discovery is re- 
 stricted to cases falling within the terms of this propo- 
 sition j subject only to such (if any) qualification as 
 the reader may consider to be introduced by a point 
 noticed in the obser\'ations upon the third propo- 
 sition (r). 
 
 225. Lord Redesdale [s), in speaking of the grounds 
 of objection to discovery, says, " As the object of the 
 Court, in compelling a discovery, is either to enable 
 itself or some other Coiu't to decide on matters in dis- 
 pute betAveen the parties, the discovery sought must be 
 material either to the relief prayed by the bill, or to 
 some other suit actually instituted, or capable of being 
 instituted (/) . 
 
 226. Again, Lord Redesdale, in stating the general 
 right of a plaintiff to a discovery of the matters alleged 
 in the bill, says, — " provided they are necessary to as- 
 certain facts material to the merits of his case, and to 
 enable him to obtain a decree {u) J" Obvious and neces- 
 sary as this condition may appeal', it was at one time 
 a matter of doubt and controversy in Chancery {x), 
 
 (r) Infra, pi. 345. 
 
 (.v) Redes. Plead. 191. 
 
 {t) Hare, 110 ; discovery after verdict. Id. 112 ; after judg- 
 ment in aid of execution. Id. 114. 
 
 {u) Redes. Plead. 306. And see Francis v. IVigzell, 1 Madd. 
 258. 
 
 (x) In the Court of Exchequer, where exceiitions come l)efore 
 the Court in the first instance, without an intermediate reference
 
 SECOND PROPOSITION 159 
 
 whether a Master, in deciding upon the sufficiency of 
 an answer, could enter into the question of materiality. 
 This point is now set at rest by Lord Lyndhurst's 
 orders of 1828 (y). 
 
 227. The same learned writer, in speaking of bills 
 having for their object the possession of title deeds (r), 
 says — " If the e\idence of his (the plaintiff's) title to it 
 (the property to which the possession of the deeds is 
 incident) is in his own power, or does not depend on the 
 production of the deeds or writings of which he prays 
 the delivery, he must establish his title to the property 
 at law, before he can come into a Court of equity for 
 dehvery of the deeds or wi'itings (a) J" 
 
 228. In Shaftesbury v. Arrowsmith{b), (1798), the 
 plaintiff claimed as heir-at-law and customary heir, 
 and also as heir of the body, of Sir John Webb, who 
 had devised his estates to the defendant and another 
 in trust. The bill stated that the plaintiff was igno- 
 rant whether she was or was not entitled to any and 
 which of the estates devised; that the defendants were 
 in possession of the estates; that there were several 
 
 to the Master, the materiality of a question was always open 
 upon the argument of exceptions to the answer. 
 
 {y) Order 74. 
 
 {z) Redes. Plead, p. 54. 
 
 (o) The assertion contained in this passage, that a plaintiff's 
 title must be first established at law, is foreign to the purpose 
 for which the passage is cited. The accuracy of the assertion, 
 with reference to the present practice of the Courts, may be 
 doubted. 
 
 {h) 4 Ves. 6U.
 
 160 SECOND PROPOSITION. 
 
 settlements, and that it was impossible for the heir to 
 know her title without an inspection of the deeds. 
 The bill prayed a discovery of such deeds and writings, 
 relating to the estates, as were in the possession of the 
 defendants, and that such of the same deeds and writ- 
 ings as related to such of the estates to which the 
 plaintiff should appeal* entitled, either as heu'-at-law, 
 customary heii', or heir of the body, might be decreed 
 to be dehvered up to the plaintiff. The defendants, 
 by way of schedule to the answer, set forth an ab- 
 stract of several settlements in their possession, and 
 a motion for the production of these documents was 
 made. The Lord Chancellor, so far as the plaintiff^s 
 claim for production was founded upon his title as 
 heir-at-law or customary heir, refused the motion. 
 " The title of the plaintiff (said the Lord Chancellor) 
 is a plain one, and is a legal title. All the family 
 deeds together ivould not make his title better or worse. 
 If he cannot set aside the will, he has nothing to do ivith 
 the deeds." " A will is no answer to an heir in tail : a 
 will estabhshed is an answer to an heir-at-law. An 
 heir in tail has, beyond the general right, such an in- 
 te?'est in the deed creating the entail, that the Court, as 
 against the person holding back that deed, would compel 
 the production of it." " Permitting a general sweeping 
 survey into all the deeds of the family would be at- 
 tended with very great danger and mischief; and where 
 the person claims as heir of the body, it has been very 
 properly stated, that it may shew a title in another 
 person, if the entail is not well barred. It may set up
 
 SECOND PROPOSITION. 161 
 
 a title, not for the benefit of Lady Shaftesbury, but to 
 the injury of the devisees : indulginy a speculation to the 
 prejudice of jjarties, whose interest this Court has no 
 right to invade." "The defendant Arrowsmith must 
 give himself the trouble of inspecting the deeds, and 
 answering upon oath whether they create an entail or 
 not." " The plaintiff has a right to an answer to this 
 question, — are there any deeds that contain a limitation 
 in tail general {c)?" 
 
 229. In Cardale v. Watkins [d), (1820), the Vice- 
 Chancellor said, "The pnrpose for which discovery 
 is given, is the aid of some proceeding pending or in- 
 tended, and not to satisfy cm'iosity; and, if such pur- 
 pose be not stated in the bill, a demurrer will lie." This 
 case clearly establishes, that the plaintiff is bound to 
 inform the Court, what the purpose is for which the 
 discovery is sought, in order that the Court may judge 
 of its materiality. 
 
 230. In Lingenx. Simpson [e), (1821), the bill was 
 filed, for the purpose of having it determined that the 
 plaintiff was entitled to a copy of a certain reference 
 book for the pm-poses of his trade. This Avas the 
 
 (c) Note. — It appears from the judgment in this case, that 
 the production of deeds creating estates tail was not opposed. 
 The case, therefore, only decided that the plaintiff as heir gene- 
 ral or customary heir was not entitled to see the deeds. 
 
 {d) .5 Madd. 18. 
 
 (c) Madd. 200. And see ^Shaw v. Shaw, 12 I'rice, ICH, and 
 the cases there collected. 
 
 M
 
 162 SKCOND PROPOSITION. 
 
 wliolc scope and object of the bill. The answer ad- 
 mitted the book to be in the defendant's custody, and 
 the plaintiff moved that the defendant might be or- 
 dered to leave the book "svith his clerk in court, with 
 liberty for the plaintiff, his clerks or agents, to in- 
 spect or refer to the same, for the purposes of his 
 trade. The Vice-Chancellor refused the motion, stat- 
 ing, that the Court made interlocutory orders for pro- 
 duction of documents only upon two principles : secu- 
 rity pending litigation ; and discovery for the purposes 
 of suit; and that the appUcation in the cause souglit 
 an anticipated decree. 
 
 231. In Guppy v. Few (/), Few, who was the assignee 
 of a certain patent for refining sugar, brought an ac- 
 tion against Guppy, for infringing his patent. Guppy 
 filed a bill of discovery against Few, in which the his- 
 tory of the patent was stated from the beginning, 
 suggesting that Few was assignee of the patent 
 upon trust for persons exceeding five in number, 
 and that hcenses (in the nature of assignments) to 
 use the patent had been granted, whereby the patent 
 had become vested in more than five persons; and 
 that, by those means, the patent had become void. 
 The biU then contained the usual charge about books, 
 &c. The defendant by his answer offered to produce 
 
 (/) MS. Line. Inn Hall, 18 March, 1836. Approved by the 
 Lord Chancellor, S. C, 1 Myl. & Cr. .504.
 
 SECOND PROPOSITION. 163 
 
 all licenses and assignments. Upon a motion to pro- 
 duce, &c., the Lord Chancellor held, that the defend- 
 ant was bound to produce aU documents which related 
 to the assignments and licenses, but refused to make 
 a more extensive order, as the alleged grounds of inva- 
 lidity were confined to that, and the rest of the docu- 
 ments were therefore irrelevant. 
 
 232. In Stewart v. Lord Nugent [g] the defendant 
 had brought his action against the plaintiff for a libel. 
 Stewart pleaded two pleas: 1st, not guilty; and 2ndly, 
 a plea of justification. Lord Nugent filed a replication 
 to the first plea and a special demurrer to the second. 
 After the pleas at law were filed, Stewart filed his bill 
 for discoveiy, and a commission to prove his second 
 plea at law. To tliis bill Lord Nugent pleaded matter 
 to shew that the discovery could not be material, be- 
 cause the truth of the second plea at law could never 
 be tried, or inquired into. The Master of the Rolls 
 allowed the plea. 
 
 233. The cases of Wallis v. The Duke of Portland [h); 
 Barber v. Hunter (i) ; Jones v. Jones [k) ; Francis v. Wig- 
 zell{l); Barron \. Grillard [m); Law v. Hunter {n); 
 M'Gregor v. TJie East India Company {o); and the judg- 
 ments in Tomlinson v. Lymer{p), and in Mant v. Scott {q), 
 
 (p) 1 Keen, 201. (;«) 3 Vcs. & B. im. 
 
 (h) 3 Ves. jun. 494. («) 1 Russell, 100. 
 
 (0 Cited 3 Mer. 173. (o) 2 Sim. 462. 
 
 (I) 3 Mer. IGl. (p) 2 Sim. 489. 
 
 (/) 1 Madil. 258. (y) 3 Price, 493. 
 
 M 2
 
 161 SECOND PROPOSITION. 
 
 may also be referred to upon the point of ma- 
 teriality. 
 
 234. The principle of the decisions which have just 
 been cited, appears to be opposed by the recent deci- 
 
 ■^^ sioii in The Attorney -General v. Ellison (r). That case, 
 with the grounds upon which the decision is objected 
 to, will be found in a later page (5). 
 
 235. A trustee or other party interested in part only, 
 cannot (it is conceived) be compelled to answer more of 
 the bill than relates to the case made against himself (/) . 
 The frame of a bill in equity, combining numerous pai'- 
 ties against whom separate relief is prayed, does not 
 affect the proposition, that the suit is several and dis- 
 tinct against each. Each party, therefore, is in strict- 
 ness a defendant — so far as the suit is a suit against him, 
 — and a icitness («), as to the residue of the bill. So far 
 as the bill prays relief against him, it must be met by a 
 defence and examination, applicable to that part of the 
 case. But, so far as it applies to other parties only, 
 the allegations in the bill are immaterial. 
 
 236. The point under consideration is further illus- 
 
 (r) 4 Shn. 238. 
 
 (s) Infra, pi. 303. 
 
 {t) Agar v. Tlie Regenfs Canal Co., Cooper, 212, 215. 
 
 {ii) That a mere witness need not answer, see Hare 65, 68 ; 
 S. P. Irving v. Thompson, Vice-Chancellor's Court, 25th July, 
 1839 ; where witness iiiconiputcnt, Id. 70; where the examina- 
 tion at law would be imperfect or ineffectual, Id. 73; interested 
 party withholding evidence, though otherwise a mere witness. 
 Id. 76; defendant a bankrupt, Id. 70; officer or member of a 
 corporation, Id. 83. 
 
 7,72^
 
 SECOND PROPOSITION. 165 
 
 tratcd by the cases, in which a plaintiff, having, by 
 reading the defendant's ansAver, entitled himself to an 
 order for the production of documents appearing to be 
 in part material to his case, — the defendant is held en- 
 titled to have the order for production qualified, by 
 giving him liberty to seal up, or otherwise conceal such 
 parts of the documents in question, as he can upon 
 oath declare to be irrelevant to the matters in ques- 
 tion (?;). A privilege which (as will hereafter be seen) 
 extends to other cases also(i^). 
 
 237. Further authorities might be cited, but the 
 above may for the present be considered sufficient to 
 illustrate tlie bearings of a point, which — as a general 
 })roposition — does not admit of controversy. 
 
 238. In determining whether particular discovery is Majr./^J^ a^,^ 
 material or not, the Court will exercise a discretion in 
 
 refusing to enforce it, where it is remote in its hearings 
 upon the real point in issue, and would be an oppres- 
 sive inquisition. Thus — 
 
 239. In Dos Santos \.Frietas{x), a creditor's bill was 
 filed against an executor. Tlie bill charged the de- 
 fendant with mixing the testator's money with his own, 
 and tliereby increasing the floating balance at his 
 ])ankcrs', and that he had, by these means, made con- 
 
 (») Gerard v. Pcnswick, 1 Swans. .5.33. 
 (w) Jones V. PowcU, I Swans. 5.3.5, n. (/.<). 
 (.r) MS. (R.T. K.) In the i:xolu.,iioi-, .5tli Fc-1). 182D. Be- 
 fore Cli. B. Alcxanrler.
 
 1G() SECOND PROPOSITION 
 
 siderable profits, for ^^hich the bill charged he ought to 
 account to the testator's estate. The hill (after other 
 charges upon which the interrogatories were founded) 
 charged, that the truth of the above would appear, if 
 tlie defendant were to set forth (among other things) 
 the matters included in the demurrer after mentioned. 
 The demurrer was as follows : " This defendant by pro- 
 testation, &c., as to so much of the said bill as requires 
 defendant to set forth the balance either for or against 
 him at the end of every month since the death of the 
 said L. G. Da Costa, on defendant's accounts with his 
 bankers, — and also requires defendant to set forth, 
 whether defendant had on the 19tli May, 1828, and 
 whether or not on the 7th July, 1828, and whether or 
 not on the 25th July, 1828, and whether or not on any 
 and which of such days respectively, a balance in his 
 favour at his bankers' amounting to j62,000, and, if 
 yea, how does the defendant make the same appear — 
 And also, as requires defendant to set forth the 
 amount of the balance at his bankers' on each and 
 every of the said last-mentioned dates respectively — 
 And also, as requires defendant to set forth, whether 
 defendant does not owe large and what, or some and 
 what, sums of money — And whether he is not under 
 acceptances or in some and what manner liable for the 
 payment of sums to a very great or some and what 
 amount, or how otherwise — And whether it is not true, 
 that the defendant's property is not great, and what 
 in particular is the amount of the defendant's property 
 in value — And also, as requires defendant to set forth, 
 whether defendant hath now or had not lately and
 
 SECOND PROPOSITION. 167 
 
 when last in his possession, custody, or power, or in the 
 possession or power of his agents or agent, divers or 
 some and what books of account or book of account, 
 bankers' books or book, cash books or book, memoran- 
 dum books or book, letter books or book, diaries or diary, 
 and other and what books or book, accounts or account, 
 documents or document, vouchers or voucher, letters 
 or letter, copies or copy, bills of exchange or bill of 
 exchange, receipts or receipt, memoranda or memo- 
 randum, and other papers and writings concerning, 
 referring to, connected with, mentioning, or in some 
 and what manner relating to, or shewing, the truth of 
 all or some of the matters in the said bill mentioned (so far 
 as such particulars relate to the matter hereby demur- 
 red to or any of them) — And also, as requires defendant 
 to set forth a fuU and true list or schedule of all such 
 books, accounts, documents, letters, vouchers, copies, 
 memoranda, bills, receipts, papers, and writings (so far 
 as the same relate to the matters hereby demurred to 
 or any of them) : Defendant doth demur, and for cause 
 of demurrer sheweth, that the said complainant has not, 
 in or by his said bill, shewn any right or title to a 
 discovery of the matters hereinbefore demurred to or 
 any of them. Wherefore, &c." The answer stated 
 who were the defendant's bankers. Mr. Kiudersley 
 appeared in support of the demurrer ; Mr. Russell, for 
 the bill, insisted that a defendant cannot demur to 
 part of the discovery only, and that the answer over- 
 ruled the demurrer, and that the questions were 
 such as ought to be answered. Alexander, C. B.,
 
 108 SECOND PROPOSITION. 
 
 allowed the demurrer ; observing tluat if the Court 
 Avere to enforce this sort of inquisition into a man's pri- 
 vate affairs and business, the sooner its doors were closed 
 the better, for it would be a scourge to the country, 
 
 240. The judgment in Francis v. Wigzell {y) is in 
 principle to the same effect. 
 
 241 . Again, in Small v. Attwood {z), the bill sought 
 to rescind a contract for the sale to the plaintiffs of an 
 estate belonging to the defendant Attwood, upon the 
 ground of fraud. Part of the purchase money had been 
 paid, including a sum of £200,000, which was paid in 
 notes of the Bank of England. These identical notes 
 were invested by Attwood in the purchase of a sum of 
 Consols tnimixed with any other funds. By the decree 
 of tlie Court, the contract was rescinded. After this 
 decree, the plaintiffs discovered tbe fact of the above- 
 mentioned investment, and succeeded in tracing the 
 notes into it. Upon this, a supplemental bill was 
 filed, claiming the stock as the plaintiffs' property, and 
 praA'ing an injunction to restrain the transfer of it, in 
 the meantime. The injunction was granted (a) upon 
 the general principle, that by reason of the fraud the 
 property in the notes was not altered, and that the 
 plaintiffs might follow them into the investment in 
 question. The plaintiffs, independently of this general 
 ground, had sought to strengthen their case for the 
 injunction, by charging to the effect, that Attwood was 
 
 (y) 1 Madd. 2G0. (c) Younge, 407. 
 
 (a) Younge, 507.
 
 SECOND PROPOSITION. 169 
 
 insolvent, and had no available property, or property 
 (if any) to a small amount only, exclusive of the stock 
 in question, and that, if the stock should be trans- 
 ferred, the plaintiflfs Moiild lose their remedy. The 
 interrogatories founded upon this charge required Att- 
 wood to set forth what property he had, together with 
 its particulars and other details. Attwood referred 
 this part of the bill for impertinence. The Master 
 was of opinion, that it was not impertinent ; but. Lord 
 Lyndhurst, on appeal from the Master's judgment, 
 held it to be impertinent (b). 
 
 242. The late case oi Jansonw SoIarte{c) may also 
 be refeiTcd to as e%ddencing an unwillingness in the 
 Court to sanction an inquisitorial discovciy. 
 
 243. The following practical suggestion — connected 
 with the point immediately under consideration — may, 
 perhaps, be considered not undeserWng the attention 
 of the reader. The word " materia//' as before ob- 
 served, is relative — exclusively relative — to the ca^e 
 made, and the relief prayed by the bill. Now, the 
 argument upon the materiahty of a given question 
 arises, for the most part, upon exceptions to the answer 
 in the ordinary way ; or, upon motion for the produc- 
 tion of documents which (as will hereafter be observed) 
 is a proceeding analogous to exceptions. In the stage 
 of the cause in which these questions arise, the ca^e 
 made, and the relief j^'ayed \)y the bill, are the only 
 
 {!)) ^'ot rcpoi-ted. (c) 2 Youiige & Coll. 127. (18.37).
 
 170 SECOND PROPOSITION. 
 
 tests by reference to wliicli tlic question of materiality 
 can 1k! tried by the Court (c) . The necessity of stating 
 with accuracy the case upon which the plaintiff founds 
 his title to relief^ need not be enforced. But, the 
 reader may, perhaps, consider, with reference to the 
 point now under consideration, that a careful attention 
 to the prayer for specific rehef (c), may — upon the argu- 
 ment of exceptions, or upon a motion for the produc- 
 tion of documents, — be of considerable importance 
 to the suitor, uotwithstaiiding the eiicomiimis be- 
 stowed, by high authority, upon the prayer for general 
 relief alone. 
 
 244. " The plaintiff's case." This expression has 
 been already observed upon [d) . It may be sufficient 
 to observe, without attempting a precise definition of 
 the cases to be comprehended under it, that the ex- 
 pression must, 1 . in one sense, be considered as describ- 
 ing a case relevant to the point or points in the cause, 
 which, by the general rules of pleading, is or are about 
 to go to trial — as distinguished from the other (if any) 
 point or points in the cause, the trial of which may, by 
 those rules, be (at least) suspended; and, 2. in another 
 sense, as describing a case (positive or negative) made 
 by the bill(e), — cither founding the plaintiff ^s title — or, 
 in opposition to that of the defendant — as distinguished 
 
 (c) Saxton v. Davis, 18 Ves. 80. " The prayer which is 
 jiiatorial iu construing charges not direct, &c." 
 {d) Supra, pi. 01, ct seq. 
 (c) Supra, 1)1. 94.
 
 SECOND PROPOSITION. 171 
 
 from a direct inquiry into the defendant's ease. Upon 
 the former term in the definition, a few observations 
 may usefully be made in support of the general propo- 
 sition that a plaintiff's right to discovery is confined to 
 the question in the cause which is about to come on for 
 trial. 
 
 245. Referring (/), with this view, to that class of 
 cases, in which a plea to all the relief sought by a bill 
 cannot be made a bar to all the discovery — a subdivi- 
 sion of the cases themselves ought, perhaps, to be 
 made, with a view to a right understanding of some of 
 the rules which apply to pleas in equity. This subdi- 
 vision—though necessary here — was purposely avoided 
 in the place in which the cases are stated at lengtli — 
 because there the object of the writer was to establish 
 the general and indefeasible right of a plaintiff to dis- 
 covery — a right which is uuafi"ected by the distinction 
 here adverted to. 
 
 2 i6. Lord lledesdale, in speaking of a plea which 
 requires an answer — as it is teclmically expressed — to 
 support it, puts the following example : — " If a bill is J '^/^J^ 
 In-ought to impeach a decree on the ground of fraud ^-^.^.-v* 
 used in obtaining it, the decree may be pleaded in bar 
 of the suit, \vith averments negativing the charges of 
 fraud, supported by an answer fidly denpng them {g) :" 
 
 (/) Wliat follon-s is governed by the obsorvatiun made in a 
 former page, — that it belongs more properly to the science of 
 pleading than to tlie sul)ject of discovery. 
 
 (//) Redes, riead. 2iy.). 
 
 J^
 
 172 SECOND PROPOSITION. 
 
 and^ again, " If there is any charge in the bill whieli is 
 an equitable circumstance in favour of the plaintiff's case 
 against the matter pleaded; as, fraud, or notice of 
 title; that charge must ])e denied by way of answer as 
 well as by averment in the plea {h) ." 
 
 247. Taking the case cited from Lord Redesdale as 
 an illustration of that class of cases in which (techni- 
 cally speaking) an answer is requisite to support a plea, 
 the characteristic of the class appears to be this — 
 that the plaintiff makes a case by his bill, by which — 
 admitting the defence to be true in fact — its validity in 
 law is impeached (i). These cases are included in, 
 but not co-extensive ivitJi, the aggregate of the cases 
 in which a plea to all the relief sought by the bill 
 cannot be made a bar to all the discovery. The dis- 
 tinction here contemplated is this : — in all the cases 
 put by Lord Redesdale, the bill — anticipating the 
 defence — ^is supposed to admit it to be true in fact, 
 but to impeach its validity as an equitable defence, on 
 account of some attendant circumstance — fraud, for 
 example — which is charged in the bill ; and the pur- 
 pose of the discovery required, is, to enable the plain- 
 tiff to sustain this charge. Now, included in the 
 general class under consideration, are cases of a class 
 distinguishable from these, namely, cases in which 
 the bill — anticipating the defence, as before — dis- 
 putes its ti^th; and the object of the required dis- 
 
 (A) Redes. I'lead. 298. (?) Hare, .30, 36.
 
 SECOND PROPOSITION. 173 
 
 covery is, to enable the plaintiff to try the h-uth of 
 the plea. 
 
 248. And what, it may be asked, is the practical 
 difference which this distinction leads to ? The answer 
 to this question depends upon the answer to these other 
 preliminary questions, namely, — upon what occasion, 
 and in what sense, is an answer said to support a plea? 
 
 249. The answer to the latter questions may, it is 
 conceived, be correctly stated thus : To the validity of 
 every plea three things are essential: 1. That it be good 
 in form ; 2. That it be good in substance ; 3. That it 
 be true in fact. The two first of these requisites are 
 merely questions of law. The last is a question of fact. 
 In the two first cases, therefore, there is an obvious 
 and short mode of disposing of, or at least trying, the 
 validity of a plea, — namely, by assuming facts for the 
 purpose of trying the law to which the facts give rise. 
 This, in practice, is effected by setting down the plea 
 for argument ; and, accordingly, when a plea is so set 
 down, the Court (as the terms imply) is confined to a 
 consideration of the laiv of the case only, as it arises 
 upon a state of facts wliich, /or the purposes of the argu- 
 ment, are assumed to be true. Lord Redesdale, in 
 explaining the nature and use of averments in and of 
 an answer in support of a plea, says : " Upon argument 
 of a plea, every fact stated in the bill and not denied 
 by answer in support of the plea, must be taken to be 
 true {k) ." Then, after explaining what averments and 
 
 (X) 2 Sch. & Lef. 727 ; Redes. Plead. 2.06, 271, 298.
 
 17^ SECOND PROPOSITION. 
 
 what answers are necessary, he adds : " Without those 
 averments and that answer, it (the plea) could not be 
 good to any extent, because, without them, the bill 
 must be taken for true." Now, in the case of an ano- 
 malous plea, like that under consideration, a general 
 averment denying fraud, or notice, or other similar 
 general charge, miffht be true in every sense ; but it 
 might be evasive, and is necessarily equivocal. It might 
 be meant as a denial of all the special circumstances 
 which constitute the fraud, notice, or other similar 
 charge, or some of such circumstances ; or it might be 
 a denial only of the conclusion of law (fraud, notice, 
 &c.) Avhich the plaintiif relies upon as a legal conclusion 
 from those cu'cumstances (/). If the latter be the 
 meaning of the averment, then — assuming the fi-aud, 
 notice, &c,, charged in the bill to be a legitimate con- 
 clusion from the special circumstances charged — the 
 Coui't would be bound, if the facts were before it, to 
 draw its own conclusion from them, and to decide that 
 the defendant had the worst of the argimicnt. The 
 answer, then, to the questions proposed (upon what 
 occasion, and in what sense, an answer is said to 
 support a plea ?) is this : — a Court of equity will not 
 trust a party to draw his own conclusions in law, 
 without knowing what the facts are upon which such 
 conclusions are founded. The argument of the plea is, 
 then, the occasion upon which the answer is necessary 
 
 (I) See Jcrrard v. Saunders, supra, pi. 100.
 
 SECOND PEOPOSITION. 175 
 
 to support the plea; and the answer supports it (if 
 valid) by shewing, upon that occasion, that the premises 
 are such as to warrant the conclusion which the plea 
 insists upon. 
 
 250. In the example, then, put by Lord Rcdcsdale, 
 of a plea requiring an answer to support it, and in all 
 analogous cases, it is ob\'ious that the answer which 
 supports the plea must accompany it, so as to be upon 
 the file at the time of the argument — that being the 
 occasion upon which it is to perform its office. This, 
 however, is inapplicable to that class of cases in which 
 the truth, and not the legal validity of the defence, is in 
 issue. For, the timth of a plea cannot possibly come in 
 question upon argument of the plea. If the answer 
 were to prove the plea untrue, no decree could then be 
 made, nor could the Court do more than teU the plain- 
 tiff to do that, which (as far as this point is concerned) 
 must be his proper course in the first instance, namely, 
 to set the plea down for hearing, and not for argument. 
 In such cases then, the argument of the plea woidd (it is 
 conceived) be unafiected by the absence of an answer to 
 facts which related merely to the truth of the plea; 
 provided the plea did not affect to cover the discoveiy 
 as to those facts. Tliis accords with the rule, that 
 discovery is necessary only for the purposes of the case 
 first about to be tried, for, the argument is the first trial 
 to which a pica is subject. The distinction just pointed 
 out has been thought worthy of suggestion, because 
 cases may be put, in whicli a defendant would find his 
 advantage in withholding particular discovery until the
 
 176 SECOND PKOPOSITION. 
 
 vaUdity of the plaintiff^s case had been determined 
 upon argument of the plea ; although an order allowing 
 the plea would not prevent the plaintiff from success- 
 fully excep ting to the answer afterwards (m) . 
 
 251. Since the first edition of this work was pub 
 Ushed, the case of Foley v. Hill [n) has been decided, 
 and the author has been referred to that case as over- 
 ruling his opinion expressed in the above passage. But 
 (with deference) that case directly affirms and supports 
 the author's conclusion in one of its branches, and 
 leaves the other untouched. In that case, the plaintiff 
 filed his bill, in the month of January 1838, against 
 the defendants, his bankers, for an account. The bill 
 alleged that the plaintiff had applied to the defendants 
 for a statement of their receipts and payments, with 
 a view to close the account, but that they had refused 
 to come to an account with the plaintiff, upon the 
 ground that no entries had been made to or on account 
 of the plaintiff's account, within sLx years last past : 
 and that no Avritten acknowledgment of the existence 
 of any such account, and no vrritten promise to pay the 
 balance thereof, had been signed by the defendants, 
 or any member of their firm, since an accountable 
 receipt therein mentioned to bear date in tlie month 
 of April 1829, and that the claim was barred by the 
 Statute of Limitations. The bill then contained a 
 
 {m) See Evans v. Richard, 1 Swans. 7 : JValburnv.Itigilby, 1 
 Myl. &K.G1. 
 
 (?0 3 Myl. & C. 475.
 
 SECOND PROVOSITIOX. 177 
 
 variety of special cliargcs, wliich, if admitted to be 
 truCj shewed that the defendants had admitted a ba- 
 lance to be due from them to the plaintiff within 
 six years. The defendants pleaded the Statute of Li- 
 mitations to all the relief and discovery sought by 
 the ])ill^ except the special charges before mentioned. 
 Some of these special charges (which it will be ob- 
 served the plea did not cover) were answered, and some 
 were not. The plea came on for argument before the 
 Vice-Chancellor on the 5th of August, 1838, when his 
 Honor overruled the plea upon the ground that the 
 defendants had not fully answered the above special 
 charges, which by the form of the plea they submitted 
 or purported to answer. The defendants appealed 
 from this judgment, and the Lord Chancellor affirmed it. 
 252. Of the soundness of this decision the author 
 presumes to say, he entertains not the slightest doubt. 
 His argument in the passages supposed to be affected by 
 the decision is, — (as to one branch) that ifa legal bar is 
 sought to be displaced by a new and independent case 
 made by the bill, the answer which is necessary to sup- 
 port the plea " must accompany it so as to be upon the 
 file at the time of argument, that being the occasion 
 upon which the answer is to perform its office;^' and — 
 (with respect to the other branch) that where the bill 
 merely disputes the truth of tlie plea without raising any 
 case to destroy its legal operation, there the plea should 
 not be held bad vpon argument, merely because charges 
 affecting the trittli only of the plea are not answered, 
 provided the plea docs not affect to cover tlicni. 
 
 N
 
 178 SFCONI) I'HOPOSITION. 
 
 'Vhv reason suggested is, " For tlie truth of a pica 
 cannot possibly come in question upon argument of the 
 plea." It would be foreign to the question to inquire 
 whether, in strict legal reasoning, it is correct to con- 
 sider the Statute of Limitations as a legal bar, and to 
 consider the acknowledgment of the debt within six 
 yeai's as a new and independent case, by which the 
 effect of that legal bar is removed. It is sufficient for 
 the purposes of the present argument to say, that 
 the form of a plea in equity does so treat it, and 
 the Lord Chancellor discusses the subject upon the 
 assumption that he was trying the question, whe- 
 ther a legal bar was or was not destroyed by some 
 new and independent case made by the bill. " Now 
 (said his Lordship) the defendant cannot plead to the 
 whole of such a bill as that; for the legal bai' is not 
 the only question to be tried. There are two ques- 
 tions: first, whether the legal bar would apply; and 
 secondly, if it would, whether it is not defeated by 
 the circumstances charged in the bill for the purpose 
 of meeting it. Then the defendant puts in the plea, 
 pleading his legal bar; and takes issue on that matter 
 which is to deprive the legal bai' of its effect." 
 
 253. That the answer which is to support a plea 
 must accompany it at the argument of the plea, cannot 
 admit of serious controversy. Upon the argument 
 of a plea its sufficiency in form and substance are 
 both in issue. Now the Statute of Limitations was 
 no bai' in the case of Foley v. Hill, if there had been 
 any acknowledgment of the debt within six years. The
 
 SECOND PROPOSITION. 179 
 
 bill charged that there had beeu such acknowledg- 
 ment, and this charge, if admitted, would shew the 
 plea to be bad in substance. Upon argument of this 
 plea, whatsoever the answer did not deny the plea 
 admitted; the answer in Foley v. Hill, therefore, left in 
 admission charges which destroyed the substance of the 
 defence. The observation of the Lord Chancellor upon 
 the point is unanswerable : " If facts, which, if true, would 
 destroy the plea, are left untouched by the answer, I 
 certainly never have supposed they could be safely so 
 left. What you neither plead to nor answer, you admit. 
 So that what the Court would be doing would be to 
 say, — ^here is a very good defence, and here, at the same 
 time, is a fact admitted which destroys it as a de- 
 fence (o)." This accords precisely with the argu- 
 ment of the writer in one of the passages said to be 
 contradicted by Foley v. Hill. " The argument of the 
 plea is, then, the occasion upon which the answer is ne- 
 cessary to support the plea; and the answer supports it (if 
 valid) by shewing upon that occasion that the premises 
 are such as to warrant the conclusion which the plea 
 insists upon {p) !' " In the example, then, put by Lord 
 Redesdale of a plea requiring an answer to support it, 
 and in all analogous cases, it is obvious that the answer 
 which supports the plea must accompany it, so as to be 
 upon the file at the time of the argument, that being 
 the occasion upon which it is to perform its office {q)'' 
 
 {o) .1 Myl. i"^- Cr. 470. (;>) Supra, pi. 249. 
 
 {<,) Supra, pi. 2.50. 
 
 N 2
 
 180 SKCOND PROl'OSITION. 
 
 25 i. The only question in a case like Foley v. Hill 
 appears to be, whether it is correct to treat the acknow- 
 ledgment of the debt within six years as a new and in- 
 dependent case destroying the legal operation of the 
 Statute, or whether correct legal reasoning does not 
 require that the acknowledgment should be considered 
 as falsifying the plea — " non assumpsit infra sex annos." 
 This, however, is not the aspect which a plea of the 
 Statute assumes in equity. 
 
 255. With respect to allegations in a bill affecting 
 the truth of the plea, the case suggested by the author in 
 a former page was that of a defence, the truth of which 
 was in dispute, e. g. a release executed. And his sug- 
 gestion was, that as the truth or falsehood of a plea is not 
 a point upon which the Court can act upon argument 
 of the plea, the proper course for the plaintiff is to set 
 the plea down for hearing and not for argument. It 
 may be said, indeed, that a defence which is not true in 
 fact cannot be good in substance. This cannot be de- 
 nied, but the observation of the writer was not, that the 
 Court would upon argument hold a plea good in form 
 or substance, which then appeared to be untrue in fact, 
 but would decline trying the plea at all, so soon as it 
 appeared that the truth of the plea was the only point 
 to be determined. The author's observation was: 'Mf 
 the answer were to prove the plea untrue, no decree 
 could then be made; nor could the Coui't do more 
 than tell the plaintiff to do that which (as far as this 
 point is concerned) must be his proper com'sc in the 
 first instance, namely, to set the plea down for hearing
 
 SECOND PROPOSITION. 181 
 
 ami not for argument {r)." The importance of tlie 
 principle involved in this question must be the author's 
 apology for so elaborate a defence of a position of his 
 own. 
 
 256. Admitting the decision in Foley v. Hill to be 
 correct, some observations arise upon the language 
 of the judgment, as reported. The grounds of the 
 A'^icc-Chancellor's judgment woiild apparently decide 
 that the defendant, in order to support his plea, must 
 put in an answer technically sufficient and full, and 
 that the plea was teclinically bad, because the de- 
 fendants had not in fact answered those charges which 
 their record purported to answer. The practice of the 
 Court does not, it is conceived, require that the 
 answer should be technically sufficient. Lord Redes- 
 dale, in speaking of the answer necessary to support a 
 plea, says: " In this case the answer must be full and 
 clear, or it will not be eflFectualto support the plea; for 
 the Court will intend the matters so charged against 
 the pleader, unless they are fully and clearly denied. 
 But if they are in substance fully and clearly denied, 
 it may be sufficient to support the plea, although all 
 the circumstances charged in the bill may not be 
 precisely answered {s)." This is the correct expo- 
 sition of the law, — the office of the answer being only 
 to exclude intendments against the pleader. The 
 technical sufficiency of an answer can onlv be tried 
 
 (/•) Siii'ia, j.l. 2oO. (s) Recks. IMcail. 21)15-0.
 
 182 SECOND PROPOSITION. 
 
 upon exceptions ; aud, accordingly, Lord lledesdale 
 adds : " Though the Court, upon argument of the pica, 
 may hold these charges sufficiently denied by the 
 answer to exclude intendments against the pleader, yet 
 if the plaintiff thinks the answer to any of them is 
 evasive, he may except to the sufficiency of the answer 
 in those points {t) ." Nor would the plea (it is conceived) 
 be bad upon the ground apparently implied in the 
 Vice-Chancellor's judgment. In Foley v. Hill, the want 
 of an answer vitiated the plea, because it left in admis- 
 sion that which, if uncontradicted, destroyed the plea, 
 and not because the defendant had not answered that 
 which he purported to ansiver. This is obviously 
 the view taken of the subject by the Lord Chancellor. 
 
 257. In the judgment of the Lord Chancellor it is 
 said, " It was argued that if the charge introduced for 
 the purpose of meeting the plea had uot been suffi- 
 ciently answered, the proper course is to take excep- 
 tions to the answer. That, however, is not so. The 
 plaintiff cannot except to the answer until after argu- 
 ment on the validit}' of the plea; for, by excepting to 
 the answer, he would admit the validity of the plea [u) ." 
 The bearing of this observation upon the point before 
 the Lord Chancellor is not altogether ob^dous. It can 
 scarcely be possible to suggest a case, in which, for the 
 pui'poses of the argument of a plea, the plaintiff can 
 want an answer to that which the plea properly leaves 
 
 (0 lledub. Plead. 299. («) 'A -Myl. cSc Cr. 4»1 .
 
 SECOND PKOPOSITIOX. 183 
 
 uncovered. The absence of an answer gives to the 
 plaintiff the full benefit of having his own statement 
 of the case taken for true. The answer which is re- 
 quired to support a plea upon aryunient is not for the 
 plaintiff's use, but for the defendant's protection. 
 
 258, The Lord Chancellor further observes: "The 
 whole machinery of pleading in equity is somewhat 
 cumbrous and not quite well reduced to principle {v)." 
 This is undoubtedly true, and it is much to be la- 
 mented that, with a mind and information so admir- 
 ably qualified for the office, the Lord Chancellor should 
 ever omit an opportunity of reducing to principle that 
 w^hich, upon the decisions, is obscure. The observa- 
 tion of the Lord Chancellor quoted above, that the 
 plaintiff " by excepting to the answer would admit the 
 validity of the plea," requires a judicial exposition of its 
 meaning. The original and proper explanation of the 
 expression cannot, it is conceived, be carried further 
 than this: — that the plaintiff, by excepting to the 
 answer, would admit the validity of the plea for the pur- 
 pose of arguing the exceptio7is ; but not so as to preclude 
 him from afterwards having the plea argued upon 
 the question of its formal or legal sufficiency or truth. 
 That the validity of the plea should be admitted for 
 the purpose of the exceptions is of necessity ; for the 
 Master cannot try the plea, and must assume that it 
 properly covers all which it purports to cover. " Where 
 
 {>') .'] Myl. lS: Cv. 4«l'.
 
 184 SKCOM) I'ROI'OSITION. 
 
 a defendant," says Ijord llcdcsdalc, " pleads or de- 
 murs to any jmrt of the discovery sought by a bill 
 and aiisiuers likewise, if the plaiutift" takes exceptions to 
 the answer before tlie plea or demurrer has been argued, 
 he admits the plea or demurrer to be good; for unless 
 he admits it to be good, it is impossible to determine 
 whether the ansiver is svfficient or not{r)." Lord Redes- 
 dale immediately adds: "But if the plea or demurrer 
 is only to the relief prayed by the bill, and not to any 
 part of the discovery, the plaintiff may take exceptions 
 to the answer before the plea or demurrer is argued {r)." 
 These two passages clearly shew, that it is only for the 
 purpose of arguing the exceptions, that the validity of the 
 plea is admitted by excepting to the answer. Why 
 then, after the exceptions are disposed of, should not a 
 plea to all the relief and to part only of the discovery 
 be argued, as it clearly may be, where the plea does 
 not cover any discovery? It must be admitted, how- 
 ever, that the authorities ujjon the subject require a 
 judicial explanation, if the true interpretation of the 
 rule referred to(*), is correctly stated above. 
 
 259. If the preceding observations upon the case of 
 Foley V. Hill were admitted to be weU founded, and if the 
 
 (/•) Redes. Plead. .317. 
 
 (.s) 1st. As to pleas, see Darnell v. Ret/ni/, 1 Vern. 344: Baker 
 V. Prichard, 2 Atk. 390. But see note («) 3 P. "Williams, 
 326-7: Pigotv. Stace, 2 Dick. 490: Sidney v. Perty, 2 Dick. G02. 
 2nd. As to demurrers, t^i^e JJoj/d v. 3filh; 13 Ves. 8.5: London 
 Assurance Company v. The East India (Jomiyany, 3 P. Williams, 
 320.
 
 SECOND PROPOSITION. 185 
 
 meaning of the expression^ " discovery covered by a 
 plea," insisted upon in a former page, were also ad- 
 mitted, — pleas in equity would, it is believed, be stripped 
 of nearly all that cumbrous matter to which the Lord 
 Chancellor alluded in Foley v. Hill. 
 
 260. Assuming the sense in which an answer is said 
 to support a plea, to have been correctly explained, 
 the principle upon which the practice obtained of re- 
 quiring an. answer to support a plea has, apparently, 
 been a subject of doubt amongst the most learned, 
 particularly with reference to the consideration, that 
 the answer — without the support of which the plea 
 would be bad — is ex concessis no part of the defence [t) . 
 The origin of this practice is referred by Lord Redes- 
 dalc to the departure from the ancient mode of plead- 
 ing before adverted to. The use of averments in a 
 plea is sufficiently clear. Suppose a bill for an account, 
 suggesting that the defendant relied upon a release, 
 (the execution of which the plaintiff admitted), and 
 charging that the release was obtained by fraud : if, 
 in this case, the bill had simply prayed an account 
 Avithout suggesting the release, or charging fraud, the 
 plea of the release alone Avould be go6d. But, if, 
 in the case supposed, the defendant were to plead the 
 
 it) Intra, i.l. 2(il.
 
 186 SECOND PROPOSITION. 
 
 release, and nothing more, the charge of fraud would be 
 uncontradicted, and, according to the rule above quoted, 
 would be taken for true (.27), which would of course inva- 
 lidate the defence. The proper use, then, of the aver- 
 ment, denying the charge of fraud, is, to exclude the 
 intendment which, in the absence of such denial, would 
 be made against the pleader (y). Indeed, without 
 such averment, nothing would be put in issue by the 
 plea; for, by the supposition, the bill admits the 
 release, and the only question raised is, — not Avhethcr 
 the release was executed, — but whether it was honestly 
 obtained (r). There are cases also in which, without 
 any express charge in the bill, intendments might be 
 made against the pleader, if not excluded by suitable 
 averments in the plea («) . The averments, therefore, 
 are of the very substance of the plea. Such being 
 the object and purpose of averments, it has not been 
 held necessary that they should follow the language 
 of the bill. They may be expressed in the most 
 general terms, provided they are sufficient to put full}^ 
 in issue the charges or intendments to which they are 
 opposed [b). 
 
 261. But why — if such be the office of an averment 
 
 (*•) Redes. Plead. 240, 300 : Roche v. Morgell, 2 Sell. & Lef. 
 727. 
 
 (^) Redes. Plead. 268. (.-) Redes. Plead. 240. 
 
 (a) Redes. Plead. 298, 299. 
 
 {h) Redes. Plead. 244. And see Jcrrard v. Saunders, 2 Ves. 
 jun. 187: Corky. VVilcock^b UixM. ^i\i.
 
 SECOND PROPOSITION, 187 
 
 — require an answer also ? If the plea be not a 
 defence perfect in itself, how can any thing extrinsic 
 (which the answer is) support it? If there were no 
 averment in the plea, but the plea were accom- 
 panied by an answer, which, in the form of an aver- 
 ment, would render it vahd, the plea would be bad, 
 for the answer is not part of the defence (c). How, 
 then, can the answer be conducive to the vaUdity 
 of the plea ? This point is observed upon by 
 Lord Eldon, in the case of Bayley y. Adams [d). In 
 that case Lord Eldon remarks (e) : " The first 
 difficulty upon that, is, how to consider that record 
 filed by the defendant, consisting partly of Avhat 
 is called plea, partly of what is called answer, as, in a 
 correct sense, either a plea or an answer. The office of 
 a plea in bar at law is to confess the right to sue, 
 avoiding that by matter dehors, and gi\'ing the plaintiff 
 an acknowledgment of his right independent of the 
 matter alleged by the plea ;" and again (/), " Such a 
 record is neither plea nor answer, but something like a 
 mixture of both, and very inaccurate ;'' and again {y), 
 " Where the defendant, not stating merely matters 
 dehors, but admittmg part of the charge, gets rid of it 
 by circumstances, I do not know that it might not be 
 called a plea and answer; but that is a record of a 
 character very distinct from that which is usually 
 
 ((•) Intra, paf-o 188. {<!) Vus. 58(5. (c) Ves. 594. 
 
 (/) (i Ves. 5'J5. {g) Ves. 597.
 
 188 SECOND PROPOSITION. 
 
 called a plea." Upon the passages just cited from 
 Lord Eldou's judgment in Bat/ley v. Adams, Lord 
 Redesdale {h) makes tlie folloAnng comment: " It seems 
 to have been imagined that there was something incon- 
 gruous in a plea and an answer in support of the 
 plea ; but this objection seems to have arisen from 
 a supposition that the answer formed part of the 
 defence. // is no part of the defence ; but that e^ddence 
 which the plaintiff has a right to require and to use to 
 invalidate the defence made by the plea upon argument 
 of the plea, before other evidence can be given. '^ Lord 
 Redesdale therefore appears, in this passage, not to 
 approve of Lord Eldon's observations as to the principle 
 upon which an answer in support of a plea is required. 
 If the not accordant opinions of Lord Eldon and Lord 
 Redesdale may be considered (like estoppels in law) as 
 setting the matter at large, the author would humbly 
 suggest that the reasonable explanation of the rule 
 wliich requires an answer — though not pai't of the 
 defence — to support a plea, is, that it is an arbitrary rule 
 introduced by the Courts, not upon the principle that 
 the plea is insufficient in law without the answer, but 
 as a rule of convenience only; in order that the expense 
 and delay of going on to a hearing of the plea may be 
 avoided, if (according to the observations above sug- 
 gested) the defendant should have founded his plea 
 upon a conclusion of law not warranted by the facts 
 
 {h) Redes. Plead. 244, n. ( 1 ), ed. 4.
 
 SECOND PROPOSITION. 189 
 
 from Avliicli it was drawn, and which the defendant was 
 prepared to admit. 
 
 262. The question — why an answer should be re- 
 quired in addition to the averments — may still be 
 pressed, upon the ground that the averments must in 
 substance, and may even in words, agree with the 
 answer. The answer is, that the averments are not 
 subject to exception ; and that if an answer (to which 
 exceptions may be taken) were not required, the pur- 
 pose for which that answer is required might be de- 
 feated («). This is an additional example of a plaintiff's 
 right to all discovery material to the proof of his own 
 case. 
 
 263. " Which the defendant does not by his form of 
 pleading admit." In the absence of admission by the 
 form of pleading, the right to actual discovery arises. 
 This is all that the proposition advances. 
 
 264. But suppose the converse case. Will an actual 
 admission of that which the pleadings by their form 
 admit be in any case required? This question has 
 l)een fully observed upon in the course of the observ- 
 ations upon the first proposition. Independently of 
 those observations, the question might be considered 
 as sufficiently answered by the single remai'k, that, 
 as discovery is given only in aid or for the pur- 
 
 (/) Ri'dfs. Pli.a(l.;n7.
 
 190 SECOND PROPOSITION. 
 
 poses of proof, it would (independently of other con- 
 siderations) be merely surplusage and impertinence to 
 exact or give discovery of that ^vhich the pleadings by 
 their very form admit. 
 
 265. The preceding cases will, it is hoped, have suffi- 
 ciently established the second proposition, so far (at 
 least) as it affirms the right of a plaintiff to discovery 
 for the purposes of the case upon which the parties 
 are about to go to trial ; and that no mode of defence to 
 which the defendant can resort, will have the effect of 
 depriving the plaintiff of the benefit of such discovery. 
 The general effect of the cases, when considered, will 
 be found to be, that it is the right of a plaintiff in 
 equity, in all cases — whatever the form of the defence 
 may be — to have each question in the cause, as it 
 comes on for tiial, tried upon a full answer — express 
 or implied — to every part of the bill. 
 
 266. It was observed in a former place (/), that the 
 extent of a plaintiff's right to discovery was commonly 
 expressed by saying that he was entitled to a " full an- 
 swer." The intermediate pages have been occupied in an 
 endeavoui' to ascertain the principles upon which the 
 svifficiency of an answer depends. Assuming that these 
 principles have been ascertained, it remains to consider 
 
 (/) Supra, pi. 85.
 
 SECOND PROPOSITION. 191 
 
 them in their appHeation to certain specific cases, and 
 particularly those important cases, in which the ques- 
 tion of a plaintiflF's right to a production of docu- 
 ments before the hearing is involved. In doing this 
 it has been thought convenient briefly to recapitu- 
 late the leading requisites of a "full answer." The 
 expression, however indefinite in itself, is important 
 with reference to the language in which the suffi- 
 ciency of an answer is commonly discussed, both in 
 argument and reported judgments (m). The following 
 will, perhaps, be found as concise a summary of the 
 points involved in the term " full answer," as could 
 safely be attempted. 
 
 267. First. — An answer will in one sense be " full," 
 where it is so with reference to so much of the bill as, 
 according to the pleadings, (see Prop. I.) the defend- 
 ant is bound to answer. 
 
 268. Secondly. — An answer wiU be " full," notwith- 
 standing the defendant may refuse to answer ques- 
 tions faUing within the admitted exceptions to the ge- 
 neral rule, which entitles a plaintiff to discovery upon 
 all points material to his own case {n) . For, admitting 
 a plaintiff^s right to all the relief he prays, he has no 
 right to ask questions falling within those exceptions. 
 " In many cases," says Lord Eldon (o), " practice gives 
 a construction to the term answer. If, of the interro- 
 
 (m) See infi-a, pi. 27G, note (b). (n) Supra, pi. 124. 
 
 (o) In Curzon v. De la Zouch, 1 Swanst. 192.
 
 192 SECOND I'KOPOSITION. 
 
 gatories in the bill some require an answer, while others 
 tend to criminate the defendant, is it not clear that he 
 might by ansioer insist on not answering the latter in- 
 terrogatories? Suppose the case of a bill in which 
 there was not one question that the defendant could 
 answer without subjecting himself to a penalty/^ An 
 answer therefore may be " full," although the defend- 
 ant may decline answering many questions which the 
 plaintiff may propose to him. 
 
 269. Thus — a plaintiff — whatever the merits of his 
 case may be {p), — is not entitled to a discovery from 
 the defendant of any matter which would criminate 
 him or tend to do so((/). If, then, a plaintiff — admit- 
 ting the merits of the case to be with him — ask such 
 a question, the defendant may by answer refuse to give 
 the discovery sought (r), and his answer will still be 
 "full," notwithstanding such refusal. 
 
 270. So — if, in the like case, the question be one, 
 the answer to which would subject the defendant to 
 pains or penalties (*), the defendant may by answer re- 
 fuse to give the discovery sought, and his answer will 
 still be "full." 
 
 {p) Hare, 128, 270. 
 
 {q) Paxton V. Douglas, 19 Ves. 227 ; Mant v. Scott, 8 Price, 477. 
 
 (;•) Redes. Plead. ,307: Curzon v. De La Zouch, 1 Swans. 192: 
 Attorney-General v. Brown, 1 Swans. 305 : and see Mant v. Scott, 
 3 Price, 493. 
 
 (*) Redes. Plead. 307 ; Ilarc, 2G2 ; Jolinstm v. Johnston, 2 
 Scott, 414.
 
 SECOND PROPOSITION. 193 
 
 271. So — of questions involving an admission of 
 gross moral turpitude subjecting tlie party to penal 
 consequences (^). 
 
 2 72 . S o — of forfeiture (w) . 
 
 273. So — of privileged communications (.r) . 
 
 274. So — of imma^ma/ questions (y). 
 
 275. So — of particular questions to which the vice 
 of uncertainty applies — in the sense in which the term 
 " uncertainty" is explained above (~). If the objection 
 of uncertainty applies to the general scope of the bill, 
 and not to particular discovery, the defendant would, 
 probably, be held bound (as in other cases) to make 
 his election, whether to demur, or plead to the bill, 
 or answer the bill " throughout." But where the ob- 
 jection applies to particular discovery (g), the objection 
 may be taken by answer. Indeed, where such an objec- 
 tion is raised, there is no distinction, except in words, 
 between a demurrer, a plea, and an answer. The office 
 of a demurrer or plea, upon grounds of merits or form, 
 is to rely upon one point in a cause as a reason for 
 withholding discovery as to other distinct matters — an 
 
 (j.) Broicnsword v. Edwanls, 2 Ves. sen. 245: Claridge v. 
 Iloarc, 14 Ves. G5. 
 
 (m) Rcdcs. Plead. 807 ; Harrison v. Suuthcotc, 2 Ves. son. 390. 
 
 {x) Greenough v. Gaskell, 1 Myl. & K. 98; Redes Plead. 288. ^>^^- 
 
 (j/) Agar v. T/ic Regent's Canal Company, Cooper, 212, 215 ; 
 Hare, 264. 
 
 {z) Supra, pi. 203, et seq. 
 
 (a) Supra, pi. 34, 35. 
 
 ()
 
 194 SECOND PROPOSITION. 
 
 office wliich is inapplicable to a case, in which the 
 whole objection begins and ends with particular dis- 
 covery only. 
 
 276. The last observations upon the meaning of the 
 term " full answer" are particularly deserving the atten- 
 tion of the reader. The expressions that a defendant 
 who answers a bill, must " answer fully," — that he must 
 answer " throughout," &c. (6), are often strained in ar- 
 gument to mean — that, if a defendant submits to answer 
 a bill, he thereby submits to answer every question the 
 bill contains. This certainly is not a sound exposition 
 of the rule. It is manifest that the rule does not 
 even touch, still less decide, what a defendant must 
 answer. A rule ivhich decides only that the defendant 
 must give a full answer cannot decide what a full answer 
 is. That must be determined aliunde. The proper 
 explanation of the rule is, that if a defendant who 
 might, upon grounds of merits or form, have de- 
 fended himself by demurrer or plea, — has waived 
 those modes of defence, and elected to make his de- 
 fence by answer, — he cannot urge the demurrable char- 
 acter of the bill only, or that a plea might have been 
 
 (&) Mazarredo v. Maitland, 3 Madd. 70 : Unsioorth v. Wood- 
 cock, 3 Madd. 432 ; v. Harrison, 4 Madd. 252 : Tat/lor 
 
 V. Milner, 11 Ves. 41 : note (c) upon Cartwrigkt v. Hately, 3 
 Bro. C. C. 239, Lord Henley's edition, see n. (i) : Corbett v. 
 Hawkins, 1 You. & Jervis, 425 ; Hare 247 ; " mere witness." 
 Id. 256: et vide supra, pi. 140.
 
 SECOND PROPOSITION. 195 
 
 successfully pleaded to it only, as a reason for not an- 
 swering any part of the bill, to which no objections of 
 & particular character exist. The submission to answer 
 concludes him as to that, — but no further. 
 
 277. Upon the same principle, if the plaintiff seeks 
 improperly to inquire into the " defendant's case," or 
 the evidence by which he proposes to establish it, the 
 defendant may, by answer, refuse to give the discovery 
 sought by the bill (c) . 
 
 278. And as a general proposition, a defendant may 
 regularly, by answer, refuse to give particidar discovery; 
 that is, discovery, the objection to which is confined to 
 the nature of the discovery sought, as distinguished 
 from objections depending for theii* validity upon the 
 merits of the cause or the form of the proceedings, — 
 that is, as distinguished from objections which deny the 
 plaintiff's right of suit, or his right to proceed with his 
 suit in its existing state (c?). 
 
 279. In support of this general proposition, Lord 
 Redesdale may be referred to. " If (says Lord Redes- 
 dale) the grounds on which a defendant might demur 
 to a particular discoverj'^ appear clearly on the face of 
 the bill, and the defendant docs not demur to the bill, 
 but, answering the rest of the bill, declines to answer 
 to so much, the Court will not compel him to make the 
 discovery (e)." » 
 
 (c) See Prop. 111. 
 
 (f?) Supra, pi. 34, 3.5 : and infra, Proj). IV. & V. 
 
 (e) Redes. Plead. 200. Sw Hare, 12H. 
 
 o 2
 
 196 SECOND PROPOSITION. 
 
 280. In further support of the same couclusion, an 
 observation made in a former page (/) may be repeated 
 here, namely, that there is no difference, except in 
 words, between an answer and any other mode of de- 
 fence, when applied to particfidar discovery. Indeed, 
 the whole reasoning upon which the rule — that a de- 
 fendant who submits to answer a bill, shall answer it fully 
 — is founded, is inapplicable to an objection to answer 
 a particular question only. 
 
 281. AVliether, in Adams v. Fisher, the limited 
 answer which the defendant was permitted to give is to 
 be considered "full, " or whether the defendant is to be 
 considered as excused from gi\ing a full answer, is 
 matter rather of words than substance. The author, 
 hoAvever, submits that the answer to which the de- 
 fendant in that case was permitted to confine himself 
 cannot be deemed sufficient. 
 
 282. Thirdly. — Suppose a case in which the plaintiff 
 is entitled to require an answer to the whole or some 
 specific part of a bill, and in which none of the inter- 
 rogatories fall within any of the exceptions to the ge- 
 neral rule which entitles a plaintiff to discovery, — 
 what answer in such a case will be sufficient ? Lord 
 Redesdale says : — " Every plaintiff is entitled to a 
 discovery from the defendant, of the matters charged 
 in the bill, provided they are necessary to ascertain 
 facts material to the merits of his case, and to enable 
 him to obtain a decree^^ {g). " He is also entitled 
 
 (/) Supra, pi. 276. (y) Redes. Plead. 306.
 
 SECOXD PROPOSITION. 197 
 
 to a discovery of matters necessary to substantiate 
 the proceedings^ and make them regular and effec- 
 tual in a Court of equity '^ (A). "Whenever there 
 are particular and precise charges, they must be 
 answered particularly and precisely, and not in a 
 general manner, though the general answer may 
 amount to a full denial of the charge " {i). And every 
 charge which, if admitted, would assist the case made 
 by the bill, must receive a direct answer, however 
 general that charge may be, even a charge that the 
 defendant claims an interest (^). And a substantive 
 charge of a specific fact — payment of money for ex- 
 ample — is sufficient to entitle the plaintiff to ground 
 upon it all questions as to the circumstances, when, 
 where, &c., it was paid, which may be material to 
 establish the substantive charge (/). 
 
 283. Fourthly. — But the last observation must be 
 limited in its application in practice. It is no un- 
 common thing for a plaintiff, in the exercise of his 
 right to an account from the defendant, to require him 
 to give discovery in a specific form, e. g. by gi^^ng 
 balances from quarter to quarter throughout a given 
 period, by setting out prices and wages during such 
 period, &c., — and the question sometimes arises — 
 
 (//) Redes. Plead. .307. (0 Id. 307. 
 
 (Jc) Stroud V. Deacon, 1 Ves. Sen. 37 : Buden v. Dore, 1 Vos. 
 Son. 444 : Ilarland v. Emerson, 8 Bligh, 62 ; S. C, 3 Sim. 490 : 
 Cuherhouse v. Alerandt-r, 2 You. & Coll. 218. 
 
 (/) 11 Ves. 301, in Fauld<:r v. Stuart ; Redes. Plead. 44, 4.5.
 
 198 SECOND PROPOSITION. 
 
 to what extent the defendant is bound specifically to 
 comply with this requisition ? The Vice-Chancellor has 
 repeatedly — and the author presumes to add, cor- 
 rectly (m) — decided, that it is not sufficient in such a 
 case for the defendant to say (without more) that he is 
 unable to answer the questions in the bill, except from 
 his books, and to tender those books for the plaintiff's 
 inspection. On the other hand, it may (it is conceived) 
 be safely stated, that a plaintiff has no right in the 
 abstract to impose upon the defendant the labour of 
 stating an account in a merely arbitrary form. If a 
 defendant, in answer to a bill requiring him to set 
 out accounts in a specific form, should say, that, diu'- 
 ing the period stated in the bill, he had kept accounts 
 of the matters in question — that such accounts 
 were contained in books which he described and ten- 
 dered for the plaintiff's inspection — that the entries 
 in such books were full and true — that the books 
 themselves were kept in the manner usual with persons 
 concerned in matters of the like nature — that any 
 persons acquainted with such matters could from the 
 books ascertain the true result of the account to which 
 the plaintiff was entitled — and that the defendant was 
 unable to answer the questions in the bill, or any of 
 them, except by recasting the form of his books into 
 that required by the bill : — this, in the absence of 
 
 («i) White V. Williams, 8 Vesey, ll);l. And see Seelei/ v. 
 Boehm,2 Matld. 170; Hare, 27n.
 
 SECOND PROPOSITION. 199 
 
 special cii'cumstances, would, it is submitted, be a 
 sufficient answer. For this, however, the author can 
 cite no authority, unless the concluding part of the 
 judgment in IVJdte v. Williams, just referred to, be con- 
 sidered in point [n] . 
 
 284. Fifthly. — The right of a plaintiff to disco- 
 very is not (as already observed (o) ) confined to a 
 discovery of facts resting merely in the knowledge 
 of the defendant, but extends prima facie to a dis- 
 covery of deeds, papers, and writings of every de- 
 scription in his possession or power, the contents of ^ 
 which may be material to the proof of the plaintiff's 
 case {p). 
 
 285. And first, as to the mode in which a plaintiff 
 must proceed to obtain, before the hearing of the 
 cause, a production of documents in the defendant's 
 possession or power, and the principle upon which 
 orders for that purpose are made. Assuming that the 
 defendant has in his possession or power, documents of 
 which the plaintiff has a right to require the produc- 
 tion, and that the answer contains a sufficient admission 
 of that fact, the plaintiff has the right to require the 
 defendant to set out the contents of such documents in 
 his answer, according to their purport and effect; or, if 
 
 (w) FarquJiarson v. Dalfonr, Turn. & Russell, lUO : Martineau 
 V. Cox, 2 You. & Coll. 638; Hare, 273. 
 (o) Supra, ]>1. 3. 
 (/?) Redes. Plead. .53. 
 
 333
 
 200 SECOND PROPOSITION. 
 
 he pleases, in the very words and figures thereof ; and 
 such appears to have been anciently the practice in 
 pleading ((/). The great and unnecessary expense of 
 this mode of giWng discovery, has led to a cheaper and 
 more simple mode of accomphshing the same object 
 in practice. The way is this : — the plaintiff alleges in 
 his bill (in effect), that the defendant has in his pos- 
 session or power, deeds, papers, and wi'itings i^elating to 
 the matters mentioned in the bill ; and that, by the 
 contents of such deeds, papers, and writings, if the 
 same were produced, the truth of the plaintiff's case 
 would appear. The defendant is then required by the 
 bill to admit or deny the truth of these allegations ; 
 if he admits having possession or power over any 
 such deeds, documents, or writings, he is required by 
 the bill, and is prima facie bound, to describe them, 
 either in the body of his answer or in a schedule to it. 
 The plaintiff then moves the Court that the defendant 
 may be ordered to produce and leave in the hands of 
 his clerk in court the deeds, papers, and writings so de- 
 scribed, with liberty for the plaintiff to inspect them 
 and take copies thereof. Tliis mode of getting at the 
 defendant's documents is, then, merely a substitution 
 of one form of practice for another — a substitution 
 which cannot affect the principle upon which the order 
 is made. This principle (founded upon the more an- 
 cient practice before explained) is, that the documents 
 
 (7) Atkj/ns V. Wright, U Ves. 211.
 
 SECOND PROPOSITION. 201 
 
 are part of the defendant's examination (r). The mo- 
 tion for the production of the documents is in the na- 
 ture of an exception {s) to the answer, and the judg- 
 ment of the Court upon the motion will be regulated 
 accordingly. If the plaintiff, under the old practice, 
 would have succeeded upon exceptions to the answer 
 for not setting out the documents, he will now be 
 entitled upon his motion to an order for their pro- 
 duction; otherwise, he Avill not be so entitled {t). 
 
 (r) The principle does not in general (if ever) apph', where 
 the documents belong to the defence and not to the examination. 
 Infra, Proposition III. ; Hare, 222, 223. 
 
 (.?) Somerville v. Mackay, 16 Ves. 387; Hare, 212. 
 
 (t) Upon the preceding paragraph, Mr. Bosanquet, in the 
 letter referred to in a later page, observes : " The preceding 
 discourse ajipears to me to be wholly a work of the imagination," 
 p. 19. The proposition in the text is so familiar to the author, 
 that he is unal)le to say when he first learnt it. In JVright v. At- 
 kyns, 14 Ves. 213, Lord Eldon says : '■'■formerly bills were framed, 
 calling upon the party to produce or to set forth their short 
 contents, &c. If that sort of practice is to be restored," &c. 
 And in Somerville v. Mackuy, 10 Ves. 380, Lord Eldon {upon a 
 motion for the j)roduction of documents), observes upon the incon- 
 venience of allowing a defendant to put in an insufficient answer, 
 and says : " It goes, first, to the Master upon exceptions to the 
 answer ; then to the Court upon exceptions to the report : as- 
 suming, in this instance, a different shape, a motion for the 
 production of books and papers : in substance the same, as that 
 production can (ynli/ he required upon that j)rinci2)le" And see 
 Hare, 222, and pi. 28G, 2(57, 288, infra. See Unsworth v. Wood- 
 cock, 3 Mad. 432, S. C. infra, pi. 289, the Vice-Chancellor says: 
 " The plaintiff might compel the defendant to set out the con- 
 tents of the books in his answer." And in Hardman v. Ellames, 
 the Lords Commissioners lay down the same proposition totidcm 
 verbis.
 
 202 SECOND PROPOSITION. 
 
 286. That this is the principle iipou wliich orders 
 for the production of documents scheduled to or de- 
 scribed in an answer are made upon motion, is clear 
 upon authorit3^ 
 
 287. Thus — in Marsh v. Sibbald{u), (1814), amotion 
 was made for the production, at the trial of an action 
 against one of the defendants, of books and papers re- 
 ferred to by his answer, — extending also to a book re- 
 ferred to by the answer of another defendant. The 
 Lord Chancellor said — "The rule as to producing 
 papers upon a trial at law is this: If this Court, on 
 motion or by decree, directs a trial, that trial is di- 
 rected in such a way, that all production, which the 
 Court conceives to be useful upon that trial, the 
 creature of its own direction, shall be made: but, 
 if upon a bill, filed for an injunction against an 
 action, and praying relief, the injunction being re- 
 fused, they go on at law to trial, the plaintiff* can only 
 read by the direction of this Court what he may read 
 withoiit that direction, the answer ; and then he may 
 read every book, letter, memorandum, or paper, referred 
 to by that answer; as every such book, letter, &^c., is a 
 part of the answer. It is read as being pai't of the an- 
 swer; and the plaintiff must shew, that what he prays 
 may be produced is in effect and substance part of that 
 answer (v); unless the trial is directed by the Court 
 itself on motion, or by decree : but there is no instance 
 
 (u) 2 Ves. & B. 375. 
 
 (v) See the Lord Chancellor's imiJortunt criticisiu upon this 
 language, 3 Myl. i*^- Cr. 542-549.
 
 SECOND PROPOSITION. 203 
 
 of directing the answer of any other person except of 
 the defendant in that cause, or any part of it, to be 
 read upon a trial, not directed by the Court itself. If, 
 therefore, this book is not referred to by the answer of the 
 defendant, I cannot order it to be produced; and you 
 must get at it by amending your bill. You are entitled 
 to the general production, in the usual form, of all the 
 papers referred to by the several classes of defendants 
 respectively, as part of their answers, for the general 
 pui'poses; but that will not answer your object, without 
 proceeding to order a production at the trial; and 
 that is limited in the manner I have stated." 
 
 288. In Evans \. Richards [x), (1818), the plaintiff 
 filed his bill for an account arising out of a trading 
 contract undertaken with an alien enemy, and for an 
 injunction to stay an action brought by the defendant 
 against the plaintiff for a balance alleged to be due 
 upon this contract. The common injunction was ob- 
 tained, but afterwards dissolved, upon the ground that 
 the trading was a fraud upon the laws of the country, 
 and, therefore, not entitled to the aid of the Court. 
 Upon a motion to discharge an order of the Yice- 
 Chancellor for the production of documents referred to 
 in the answer, the defendant argued, that the Court 
 having declared the contract illegal and not entitled to 
 relief in equity, no advantage could be derived from the 
 inspection of the papers. The Lord Chancellor said: — 
 "The event of this motion must depend on the fact, 
 
 (■i) I Swau^. 7.
 
 201 SECOND PROPOSITION. 
 
 whether the answer contains an admission that the 
 documents in question arc in the custody of the de- 
 fendant (y). When the Court orders letters and papers 
 to be produced, it pi'oceeds on the princijjle, that those 
 documents are, by reference, incorporated in the answer, 
 and become part of it. Being in the office, the effect is 
 the same as if they were stated in hcec verba in the an- 
 sioer. This motion, therefore, in effect, seeks to strike 
 Old a part of the answer. The plaintiff may amend his 
 bill, by omitting the allegation from wliich the illegal- 
 ity of the contract appears; and the admission remain- 
 ing in the answer entitles him to the production of the 
 papers." 
 
 289. So, in Unsworth v. Woodcock (z), (1818), the 
 Vice-Chancellor said, — " The plaintiff might compel the 
 defendant to set out the contents of the books in his 
 answer, and the production of the books is a part of the 
 discovery, which the defendant, submitting to answer, 
 submits to make." 
 
 290. A word of caution is necessary here, with 
 reference to the language in which the judgments 
 of the Court are expressed in the three cases Avhich 
 have just been referred to. From that language it 
 might be inferred, that if a defendant admits the pos- 
 session of documents, and gives a list and description 
 of tlicm in the body of his answer, or in a schedule 
 to it, the contents of the documents are thereby ex- 
 
 (t/) Sec as to this, infra, \)l. 293. 
 (z) 3 Madd. 432.
 
 SECOND PROPOSITION. 205 
 
 clusively made part of the answer, so as to entitle the 
 plaintiff to have them produced upon motion, notwith- 
 standing any case the defendant may make by his 
 answer for resisting such production. This, cer- 
 tainly, would be an incorrect interpretation of the 
 judgments referred to. Those judgments must be 
 understood as assuming, that the admissions in the 
 answer respecting the documents, are sufficient to 
 entitle the plaintiff to have them produced before the 
 hearing, and as intending only to enforce the pro- 
 position, that where the documents appear by the 
 admissions in the answer to be of that character, 
 the legal consequences which the cases point at flow 
 from those admissions. This, in truth, is involved 
 in the very principle upon which the order for pro- 
 duction is made. The plaintiff is entitled to the 
 production of such documents only as he might, by 
 exceptions under the old practice, have compelled the 
 defendant to set forth in h(BC verba in his answer {a) . 
 Now, a plaintiff never had the right a ptriori [i. e. 
 independently of what the defendant might by his 
 pleadings concede to him) to exact from the de- 
 fendant a discovery of anything which would subject 
 him to pain, penalty, or forfeiture, or to see or know 
 the evidences of the defendant's case [b) ; from which 
 it folloAvs, that the plaintiff could not by exceptions 
 under the old practice have compelled — and, if not, 
 
 (rt) See supra, pi. 205. (6) See Prop. III.
 
 206 SECOND PROPOSITION. 
 
 he cannot now by motion, under the modern practice, 
 compel — the defendant to disclose documents, the 
 disclosure of which would subject him to pain, pe- 
 nalty or forfeiture, or to disclose the evidence relat- 
 ing to his own case exclusively. The same point 
 is, perhaps, sufficiently demonstrated by the fact, 
 that, in order to ground an application by a plain- 
 tiflF for a production of documents mentioned in or 
 scheduled to a defendant's answer — as being for that 
 reason part of his ansiver — it is not necessary that 
 the defendant should by his answer in any way refer, 
 or reserve to himself liberty to refer, to the documents. 
 The documents are part of his answer for the purpose 
 of production without any such reference (c), provided 
 they are, in other respects, within the principle which 
 entitles a plaintiff to an order for their production. If, 
 on the other hand, the documents appertain to the de- 
 fence alone, the plaintiff will not be entitled to inspect 
 them withoid some reference to them by the answer. 
 WTiat the effect of such reference is, will be considered 
 hereafter {d) ; but — as this reference may be inserted 
 in the answer or omitted, at the pleasure or caprice of 
 the defendant — it is obvious that the right of a plaintiff 
 to consider and treat documents mentioned or sche- 
 duled to an answer as part of the answer, only because 
 they are so mentioned or scheduled, is confined to 
 
 (c) Common practice. And see the cases just referred to. 
 
 (d) Sec the observations on Hardman \. Ellames,VYo\^. III. 
 infra.
 
 SECOND PROPOSITION. 207 
 
 such documents as appertain to the defendant's ex- 
 amination, i. e. to the discovery he is compellable to 
 give in support of the "plaintiff's case" (e). 
 
 291. The same reasoning may apply where the pro- 
 duction of documents would not subject the defendant 
 to any penal consequences^ and where they are uncon- 
 nected with the defendant's case, and directly connected 
 with the object of the suit. Thus, if a plaintiff files a 
 bill to obtain the possession of deeds, the plaintiff may 
 compel the defendant to describe them in his answer, and 
 say, whether they are in his possession, or in whose 
 possession they are, — for, without such discovery, the 
 plaintiff might not be able at the hearing of the cause 
 to obtain a complete decree. It will not, however, 
 follow from this, that, because the defendant describes 
 the deeds, and admits ha\'ing them in his possession, 
 the plaintiff will have a right to inspect them before 
 the hearing. The judgment of the Vice-ChanceUor 
 in Lingen v. Simpson is conclusive upon this point (/). 
 Similar observations, mutatis mutandis, mil apply to 
 other cases. 
 
 292. The general principles, in short, upon which 
 the right of a plaintiff to the production of documents 
 in the defendant's possession depends, and by which 
 it is bounded, are those that resolve themselves into 
 
 (c) Infra, pi. 2!);3. 
 
 ( /) G Madd. 21)0 ; S. C, supra, pi, 230 ; and sec Storey v. 
 Lord George Lcimox, 1 Myl. & Cr. 534 : and Adams v. Fisher, 
 3 Myl. & Cr. 526.
 
 208 SECOND PROPOSITION. 
 
 the t^'o rules whicli, in a former page (g), were de- 
 scribed as the two cai'dinal rules in tlie Law of Dis- 
 covery : first, the right, saving just exceptions (/<), of 
 every plaintiff to a discovery of the evidences which re- 
 late to his case ; and, secondly, the privdegc of every 
 defendant to witldiold a discovery of the evidences 
 which exclusively relate to his own. And the ques- 
 tions, upon motions for the production of documents 
 before the hearing, are, — by what tests the Court is to 
 determine under which of the two heads, of plaintiff 's 
 or defendant's evidences, any given documents fall. 
 
 293. In determining these questions — the first thing 
 to be obsened is, that the onus is upon the plaintiff to 
 prove his right to sec the documents, the production 
 of whicli he calls for, and that the only evidence upon 
 which the Court can act in his favour, is the admission 
 of the defendant. " When the motion was argued 
 before me," said the Lord Chancellor, in Storey v. 
 Lord G. Lennox (j), " it occurred to me that there 
 might be some doubt, whether the answer contained a 
 sufficient admission to entitle the plaintiffs to move for 
 the production of the documents in question. To entitle 
 the plaintiffs to an order for that purpose, they must 
 shew an admission that the documents which thev seek 
 
 (^) Supra, pi. 23. 
 (A) Supra, pi. 130, etseq. 
 
 (j) Storey v. Lotxl George Lennox, 1 Myl. & Cr. .534. See 
 also Adams v. Fisher, 3 3Iyl. & Cr. 52G.
 
 SECOND PROPOSITION, 
 
 209 
 
 to inspect, are in tlic possession of the defendant ; and / 
 that they are of a nature to entitle the plaintiffs to an ^^3- 
 inspection of them/' In general, the answer will be 
 the only place Avhere the requisite admission can be 
 found. But if the defendant should, by affida\dt, as^ 
 he sometimes may (/t), seek to protect a document 
 from the plaintiff's inspection, an admission by affida"^^t 
 filed for that piu'pose would doubtless be as effectual 
 as an admission by answer. 
 
 294. TMiat admissions, then, will be sufficient to 
 entitle a plaintiff to an order for the production of 
 documents in the answer before the hearing? First, in 
 order that the Court may be able to apply the prin- 
 ciple before explained, two things are necessary : — 
 ] . The defendant must, in his ansAver, admit his 
 possession of, or power over the documents, the pro- 
 duction of which is sought ; — and 2. He must de- 
 scribe them in his answer, or in some schedule to 
 it(/). Unless the documents are in the posses- 
 sion or power of the defendant, he cannot obey an 
 order for production (m) ; and, unless the defendant 
 describes the documents, the Court cannot know whe- 
 
 (ir) That this additional matter may be introduced hy affi- 
 davit, see Tyler v. Drayton, 2 Sim. & Stu.309 : Hughes v. Bid- 
 clulph, 4 Russ. ] 90 : and Parsons v. Robertson, 2 Keen, 605. 
 
 (/) Princess of Wales \. Earl of Liter pool, 1 Swans. 114: 
 Hare, 27G ; books abroad. Hare, 274. 
 
 (to) Ilardman v. Ellames, 2 Myl. & K. 7^2 : Barnett v. Nolle, 
 I Jac. & W. 227 : Ersline v. Bize, 2 Cox, 226 : Darmn v. 
 Clarke, 8 Ves. 158 : and see Heeman v. Midland, 4 Madd. 391. 
 
 P
 
 210 SECOND PROPOSITION. 
 
 tlicr its order is complied with or not [u). In the ab- 
 sence then of a sufficient admission of possession, and 
 of a sufficient description of the documents, the Court 
 will not make an order for their production. The 
 possession of an agent, it may be observed, or of any 
 other person whose possession the defendant could con- 
 trol (o), would be a possession by the defendant for the 
 purpose of the motion. A joint possession by the de- 
 fendant and a person not under the control of the de- 
 fendant or of the Court, would, in general, disable the 
 Court from enforcing its order, and therefore prevent 
 the Court from making it. 
 
 295. Supposing the answer to contain the requisite 
 admission of possession by the defendant, and a suffi- 
 cient description of the documents, the plaintiff must 
 next shewfro7n the answer that he has a right to see 
 them(^;). This is commonly expressed by saying — 
 that the plaintiff must shew that he has an inter- 
 est {q) in the documents, the production of which he 
 seeks. There can be no objection to this mode of 
 expressing the rule, provided the sense in which the 
 word interest is used be accurately defined. But, the 
 want of such definition, has introduced some confusion 
 
 (7i) 14 Ves. 213, in Atkyns v. Wright. 
 
 (o) Ex parte Shaw, Jacob, 272. 
 
 (p) See per Lord Cottenham, in Storey v. Lord George Lennox, 
 1 Myl. & Cr. .525 ; and Adams v. Fisher, 3 Myl. & Cr. 52G. 
 
 {q) Adams v. Fisher, 3 Myl. ik Cr. 549; Att.-Gen. v. Ellison, 
 4 Sim. 238 ; and supra, ])1. 280 : Smith v. Duke of Northumber- 
 land, 1 Cox, 303.
 
 SECOND PROPOSITIO>f. 211 
 
 in the cases uuder consideration. The word interest 
 must here be understood with reference to the subject- 
 matter to which it is appHed. Now, the purpose for 
 which discovery is given is (simply and exclusively) to 
 aid the plaintiff on the trial of an issue between him- 
 self and the defendant. A discovery beyond or un- 
 called for by this particular purpose, is not within the 
 reason of the rule which entitles a plaintiff to discovery. 
 The word interest, therefore, must in these cases be 
 understood to mean, an interest in the production of a 
 document for the purpose of the trial about to take place. 
 According to this definition of the word interest — if the 
 object of the suit or action be the recovery of an estate 
 — ^the plaintiff in a bill in aid of proceedings to recover 
 that estate, Avill (prima facie) be entitled, before the 
 hearing of the cause, to the production of every docu- 
 ment the contents of Avhich will be e\'idence at that 
 hearing of his right to the estate. But the same 
 reason will not necessarily extend to entitle the plain- 
 tiff, before the hearing of the cause, to a produc- 
 tion of the title deeds appertaining to the estate in 
 question. He may, indeed, and (if his bill be pro- 
 perly framed) he will be entitled to have these title 
 deeds described in the answer, and also to a discovery 
 whether they are in the defendant's possession; be- 
 cause, without proof of such matters, (and whatever the 
 plaintiff must prove the defendant must prima facie 
 answer) a perfect decree could not be made in tlie 
 plaintiff's fa\ our. Tlie same observations will apply 
 to a case, in which the object of the suit is to recover 
 
 p2
 
 
 212 SECOND PROPOSITION. 
 
 tlic possession of documents. The plaintiff is enti- 
 tled to know what the documents are, and who holds 
 them. But there is no reason why the plaintiff should, 
 in cases of the description here noticed, inspect the do- 
 cuments before the hearing of the cause. Unless the 
 meaning of the word " interest " be limited in the 
 way pointed out, it is obvious that the effect of a simple 
 claim (perhaps without a shadow of interest) would be 
 to open every mvmiment room in the kingdom, and 
 every merchant's accounts, and every man's private 
 papers, to the inspection of the merely curious. The 
 cases cited in the observations upon the word " mate- 
 rial " (?•), seem conclusive upon this point. 
 
 296. However, in the case of the Attorney -General 
 V. Ellison [s), the Vice-Chancellor appears to have rea- 
 soned differentl}''. 
 
 297. In that case the information sought to impeach 
 the validity of two leases of 999 years each, by which 
 the corporation of Lincoln had demised the naviga- 
 tion and tolls of the river Topdike to persons under 
 whom the defendants claimed the leases. The leases 
 purported to have been granted under powers for that 
 purpose given to the corporation of Lincoln. The in- 
 formation charged that the leases were not warranted 
 by the act, and were therefore void. The answer set 
 forth a schedule of deeds, including (among others) 
 four deeds dated in the years 1810, 1814, and 1828, 
 
 (r) Supra, pi. 224 ; see particularly Lingen v. Simpson^ 
 pi. 230. 
 
 (.9) 4 Sim. 238.
 
 SECOND PROPOSITION. 213 
 
 ■which were described by tlie names of the parties, 
 and were also described as the family settlements of 
 the defendant. The answer further insisted, that the 
 defendant ought not to be compelled to produce the 
 four deeds above mentioned. The yice-Chancellor, 
 upon a motion for their production, said : — " The 
 information in this case is filed for tlie purpose of 
 setting aside two leases for 999 years, granted by a 
 corporation, of certain tolls; and the defendant hav- 
 "ing, by his answer, stated that he has in his possession 
 four deeds relating to the leases, and dated in the years 
 1810, 1814, and 1828, a motion is made, on the part 
 of the Attorney-General, that those deeds may be pro- 
 duced. It is met by alleging that the deeds, though 
 they relate to the leases, in fact only tend to shew the 
 interest of the defendant and of persons claiming un- 
 der him; and that, though the Attorney-General has a 
 right to see the leases, he has no right to see the sub- 
 sequent deeds, which, it is said, relate only to the 
 defendant's title. It is to be observed, however, that 
 the Attorney-General claims to have the tolls free 
 from the leases ; and, if he succeeds, every portion of 
 the legal estate in the terms for 999 years must 
 be assigned or surrendered, so that the leases may be 
 no longer set up. lie, therefore, has a direct interest 
 in the deeds in Mr. EUison's possession. They do 
 not relate solely to any separate and independent 
 title of the defendant ; and, therefore, they must be 
 produced.^' 
 
 298. Tlic judgment in this case — according to the 
 sense attached by thewriter to thcword" interest," — is of
 
 214 SECOND PROPOSITION. 
 
 questionable accuracy. The object of the suit was to set 
 aside two principal leases. The ground for impeaching 
 those leases was unconnected with the derivative leases, the 
 production of which was ordered. It is true, that^ if 
 the original leases were rescinded, the derivative leases 
 would fall with them, and the plaintiff might, in that 
 case, be entitled to have those derivative leases delivered 
 up or cancelled under the decree of the Court. With a 
 view to this possible end, he might (as was argued in 
 the case) be entitled to know the names of the deriva- 
 tive lessees, in order that his suit might be perfect in 
 respect of parties (/), and he might also be entitled to 
 have the documents described in the answer, and to 
 compel the defendant to admit or deny ha^dng posses- 
 sion of them; because, without such evidence, the 
 Court might not, at the hearing of the cause, be in a 
 condition to make a perfect decree. But, for what 
 purpose and upon what principle could the plaintiff be 
 entitled to know the contents of the derivative leases, 
 until, by proving his right to rescind the original leases, 
 — a purpose for which it was not suggested that the 
 derivative leases could assist him — he had established 
 an interest in the leases also ? It may be said, that 
 the evidence obtained by an inspection of the docu- 
 ments, even for the purpose of knowing the names of 
 the parties and the description of the leases, would be 
 better evidence than that which the mere oath of the 
 defendant would supply. This may be admitted, — but 
 the argument founded upon it is inadmissible. It 
 
 {t) Finch V. Finch, 2 Ves. sen. 4£)2 ; Rjdes. Plead. (307.
 
 SECOND PROPOSITION. 215 
 
 proves too much. If, in such a case, the oath of the 
 defendant as to tlie names of the parties to and the 
 description of the leases — a point after all uncon- 
 nected with the rights in question in the cause — 
 were not deemed sufficient, the defendant would be 
 deprived of all possible means of defence, although the 
 plaintifi'^s case should be wholly fictitious — a conse- 
 quence which carries with it a refutation of the propo- 
 sition from which it floAvs. At all events, the utmost 
 to which this argument could carry the plaintiff's right 
 would not extend beyond an inspection of that portion 
 of the leases which contained the names of the parties 
 to them. The interest of the derivative lessees is 
 also a ground, upon which, in their absence from the 
 record, the propriety of the order might be ques- 
 tioned (m). The reader is referred back to the cases 
 cited in support of the Avritcr's observations upon the 
 word " material, " in a former page, as a fm-ther justifi- 
 cation of the foregoing observations upon the case of 
 the Attorney -General v. Ellison. 
 
 299. Assuming, then, that the word " interest" (as 
 applied to the present point) is to be understood in the 
 sense above explained, — and that a plaintiff, in order 
 to entitle himself to the production of documents 
 scheduled to or described in the defendant's answer, 
 and admitted to be in his possession or power, must 
 
 («) liiiia, pi. (527.
 
 216 SECOND PROPOSITION. 
 
 read from the answer au admission wliich shews that 
 he has such interest, — what admission in the answer 
 shall suffice for tliis purpose {as) ? The documents 
 must, of course, be relevant to a case made by the 
 bill, or there can be no ground for theii' production. 
 Attending to this— the judgment of the Vice-Chancel- 
 lor in the cause of Tyler v. Drayton{y), suggests a con- 
 venient mode of stating the general rule which an- 
 swers the above question. The rule to be extracted 
 from the judgment is this, — that an admission of rele- 
 vancy to the plaintiff ^s case alone will entitle a plain- 
 tiff {as between Imnself and the defendant {z) ) to 
 an order for production of documents, unless that 
 admission be qualified by some additional matter (a), 
 which, in the judgment of the Court, is a sufficient 
 reason for refusing to make the order; or unless from 
 the nature of the documents themselves, {e. g. general 
 title deeds, or that they are the defendant's eWdence), 
 tliere is ground for inferring — notwithstanding their 
 relevancy — that the plaintiff has no "interest" in 
 the documents, or that, for some other reason, the 
 
 (.r) Adverting to the equivocal import of the \vord interest, 
 the practitioner will find advantage in referring to the prac- 
 tical tests hy which a plaintiff's right to a production of docu- 
 ments is determined, rather than in trying the right l)y the use 
 of that abstract tei'm. 
 
 (j/) 2 Sim. & Stu. 30D. And see Storey v. Lord George Lennox, 
 1 Keen, 341 ; S. C, 1 Myl. cS: Cr. 52.5. 
 
 {z) Infra, pi. 327. («) Supra, pi. 2i>3, note {k).
 
 SECOND PROPOSITION. 217 
 
 defendant has ground for refusing to produce tliem (6) . 
 The generality of this proposition is amply borne out 
 by the exceptions to the " general rule" noticed in a 
 former page(c). 
 
 300. An important principle is involved in the rule 
 above stated. The rule establishes^ that where the 
 relevancy of the documents to the plaintiff's case is ad- 
 mitted, the defendant cannot, merely by denpng the 
 effect of such documents, protect himself against an 
 order for producing them, — or, in other words, that 
 where the relevancy of documents to the plaintiff's 
 case is admitted, the plaintiff is the party to judge of 
 their effect {d) . 
 
 301 . But, if the defendant — admitting by his answer 
 the relevancy of the documents to the case made by the 
 bill, or some of the matters therein — qualify that ad- 
 mission by further statements, which shew to the satis- 
 faction of the Court that the plaintiff is not entitled to 
 a discovery of the documents within the scope of the 
 Second Proposition as above explained, there the Court 
 will entertain and give effect to the defendant's objec- 
 tion to the production of his documents (e). In Adanis 
 
 (b) Adams v. Fisher, i] Myl. & Cr. 649 : Storey v. Lord 
 George Lennox, 1 Myl. & Cr. .534. 
 
 (c) Supra, pi. 127—147. 
 
 {d) Common Practice. And see Gardiner v. Mason, 4 Bro. 
 C. C. 480: Firkin v. Lowe, 13 Trice, 199: Knight v. The 
 Marquis of Waterford, 2 Younge & Coll. 22 : Storey v. Lord 
 George Lennox, 1 Myl. iS: Cr. .525 ; Ilarc, 228, et seq. And 
 Jerrard v, Saunders, supra, pi. 105. 
 
 (e) Sec Prop. ill. iiiini.
 
 218 SECOND PROPOSITION. 
 
 V. Fisher, the Lord Cliuncellor said : " I apprehend it is 
 a mistake to say that the documents scheduled are part 
 of the answer ; the schedule itself is part of the answer. 
 All that the plaintiff asks is, that the defendant may- 
 set forth a schedule of the documents. Can you except 
 hccause he has set out the documents in the schedule 
 instead of in the answer? If that had been asked, 
 the defendant must have protected himself in the re- 
 gular way, and shewn that he was not obliged to com- 
 ply with 3^our demand. But if the defendant sets them 
 out in the schedule to his answer, the question is upon 
 the whole record, whether the plaintiff has such an in- 
 terest in them as entitles him to call for their produc- 
 tion"(/). 
 
 302. But it may be asked, assuming that an admis- 
 sion of relevancy to the plaintiff'^s case is prima facie 
 sufficient to entitle a plaintiff to an order for the pro- 
 duction of documents in the defendant's possession, is 
 an admission of their relevancy indispensable for the 
 purpose? Suppose the defendant to be an executor, 
 and ignorant of the affairs of his testator, and there- 
 fore unable to set forth, without previous examination, 
 whether documents in his possession rehite to a case 
 
 (/) 8 Myl. & Cr. 549. The observations which tlio author 
 has presumeil to make upon Adams v. Fisher, in a former jwi^e, 
 do not ai)ply to the ]n-inc-ij>le liere quitted, hut to the api)li- 
 oation otit in the circumstances of that an<l analogous cases.
 
 SECOND PROPOSITION. 219 
 
 suggested in the bill, or not ? Or suppose the de- 
 fendant to decline looking into documents in his pos- 
 session, or simply to declurc his ignorance of their con- 
 tents, or to decline to swear positively to their con- 
 tents in some material particular, shall the absence 
 of a direct admission of relevancy deprive the plaintiiF 
 of evidence which may be material to his case ? All 
 that can be said in the abstract with reference to such 
 cases as these is, that the Court would certainly give 
 the defendant his option of examining the documents 
 for himself, and would receive his account of them, if 
 positive, as conclusive upon the subject. If the defend- 
 ant should decline this option, the Court would pro- 
 bably give the same option to the plaintiff, under such 
 restrictions as the circumstances of the case disclosed 
 by the answer might require. Cases of this description, 
 however, cannot be considered as forming excerptions 
 to, or as even qualifying, a general rule. A Court can 
 do no more than tender to a party the means of defend- 
 ing himself. It cannot compel him to use them, or 
 allow him to deprive an opponent of his right, l)ccause 
 he chooses to be ignorant. It is not, perhaps, too 
 strong a proposition, in cases of this nature, to say, 
 that the bill might pro hue vice be taken to be true 
 against a defendant, who, having the means of contra- 
 dicting it, declined to do so. 
 
 303. Passing from the two cases which have been 
 noticed, 1. The case of admitted relevancy; and 2, the 
 case in which relevancy is neither admitted nor denied;
 
 220 SECOND PROPOSTTIOX. 
 
 to the 3rd and extreme case, in wliich tlie defendant, 
 without qualification, denies tlie possession of any do- 
 cuments relevant to the " plaintiff's case," it is clear 
 that such denial must he conclusive against the plain- 
 tifl''s right to an order for the production of any docu- 
 ments the possession of which may be admitted by the 
 defendant. 
 
 304. The preceding observations, it will be observed, 
 apply to documents relevant to the plaintiff's case. 
 Where they are relevant exclusively to the defend- 
 ant's case, the plaintiff will not in general lie entitled 
 to sec them {g) . In fact, it may be observed, generally, 
 that, in making or refusing to make an order for the 
 production of documents upon motion before the hear- 
 ing of the cause, the Court is merely applying to a 
 particular class of cases the general principles which 
 have abeady been investigated. These general prin- 
 ciples ought, therefore, to regulate and pervade this 
 class of cases ; and the cases themselves, if uniform, 
 would, from their frequent occurrence in practice, be 
 the best evidence of the extent and limits of tlic gene- 
 ral jurisdiction of the Court in compelling discovery, 
 and of the rules to which that jurisdiction is subject. 
 
 305. In the application of the preceding rules to 
 ordinary cases, little difficulty is experienced in prac- 
 tice ; but in their application to extreme cases, in which 
 
 {(]) See infra, Prop. 111.
 
 SECOND PROPOSITION. 221 
 
 the evidences of the contending parties become nearly 
 identified with each other, and in which the relevancy 
 of a document in a given case is scarcely distinguish- 
 able from its effect upon that case, difficulties of con- 
 siderable weight present themselves, 
 
 306. To illustrate this, — suppose the defendant 
 not to insist upon any special ground of protection 
 depending upon some or one of the grounds of excep- 
 tion to the general rule before adverted to, but to insist 
 only that vjjon the case made by the bill and the answer 
 to it, the plaintift' is not entitled to an order for the 
 production of the documents in his possession. Three 
 cases of this description may be suggested for observ- 
 ation. First, — suppose the bill to state certain trans- 
 actions in trade, which had in fact been carried on by 
 the defendant, and to allege (untruly) that the plaintiflF 
 was a partner with the defendant in those transactions. 
 Suppose, further, the bill to contain a charge that the 
 defendant had in his possession books and papers relat- 
 ing to the transactions in question, and that, if the same 
 were produced, the truth of the plaintiff's allegation as 
 to the partnership would thereby appear — Shall the de- 
 fendant, by answer admitting the trading transactions, 
 but denying the partnership, be compelled to produce 
 his books and papers relating to his private transactions, 
 because the plaintiff has alleged that they will evidence 
 his case? Again, to put a second case. \\i Bolton 
 V. Tlie Corporation of Liverpool {h) , the defendants had 
 
 (A) 3 Sim. 467 ; S. C, 1 Myl. & Keen, 88.
 
 222 SECOND PROPOSITION. 
 
 brouglit an action against the plaintiffs to recover a 
 sum alleged to be due to tlic corporation for Town dues. 
 The defendants filed their bill in aid of the defence at 
 law, charging that the corporation had no right to the 
 dues in question, and that the corporation had in its pos- 
 session documents relating to those dues, and that, if the 
 same were produced, it would appear that they had no 
 such right. The defendants admitted the possession of 
 documents relevant to the dues claimed in tlie action, 
 and set forth a schedule of them, but insisted they 
 were not bound to produce them, upon the ground that 
 they related exclusively to the case of the corporation — 
 Ought the corporation in this case to have been com- 
 pelled to produce the documents in its possession relat- 
 ing to the dues in question, merely because the plain- 
 tiffs in equity alleged (perhaps truly) that if the docu- 
 ments were produced, they Avould fornish evidence 
 destructive of the case of the corporation at law? 
 Thirdly, — suppose the bill to impeach a deed, under 
 which the defendant claimed, for fraud, and to charge 
 that if the deed were produced, the fraud would ap- 
 pear — Ought the defendant in this case to be com- 
 pelled to produce the impeached deed for the plain- 
 tiff^s inspection, before the hearing of the cause? 
 
 307. The first and third of the above examples 
 suppose the plaintiff to seek a discovery of documents, 
 in support of the case upon which he grounds his 
 title to relief in equity. The second supposes him to 
 seek similar discovery, appertaining exclusively to his 
 adversary's case, in order to destroy it. The possibility
 
 SECOND PROPOSITION. 223 
 
 that tlic documents might, in each case, support the 
 plaintiff's charge is manifest. The defendant's ob- 
 jection to produce the documents in each of the three 
 cases would not, as in Adams v. Fisher, be, that he 
 ought not to be compelled to produce evidence rele- 
 vant to a subordinate point in the plaintiff's case, 
 until the principal point upon which the plaintiff's title 
 depended should first have been tried. The objection 
 applies to discovery alleged by the bill, and perhaps 
 truly, to be material evidence upon the very point 
 which must first be tried between the parties — that 
 upon which the title to all relief depends. 
 
 308. One observation of the greatest importance 
 appKes at the very outset to each of the tkree cases 
 which have been suggested, namely, that the posi- 
 tion of the defendant with respect to his means of 
 resisting discovery, must be precisely the same, whe- 
 ther he should demur, plead to, or answer the bill. 
 For, if the defence were by demurrer or plea, as 
 the charge in the bill was that the discovery would 
 in the first example prove the partnership — and, in 
 the second, that it would disprove the right of the cor- 
 poration to the dues in question — and, in the third, 
 that it Avould support the charge of fraud ujjon which 
 the plaintiff's equity depended — the defendant could not 
 cover the charge by demurrer or plea; some answer to 
 it would undoubtedly be necessary; and if an answer be 
 thus necessary, the nature and extent of that answer 
 must be the same, whether the defence be made by
 
 224 SECOND PROPOSITION. 
 
 demurrer, plea, or answer. It follows, therefore, that 
 unless, in such cases, the defendant he permitted hy 
 ansiver to demand the judgment of the Court, whe- 
 ther he should give the discovery or not, he must he 
 wholly without the means of defending himself, al- 
 though the plaintiff might have no right to the disco- 
 very objected to. 
 
 309. In the example first suggested, that of an 
 alleged partnership denied by the answer, the plaintift" 
 is supposed to seek discovery in support of the case 
 upon which he founded his title to relief. No reported 
 case suggests itself to the author precisely apphcable 
 to the example proposed; but he submits without any 
 hesitation, that the defendant would not, in such a case, 
 be compelled to produce documents relating to his 
 transactions in trade before the hearing. The author's 
 defence of this position will hereafter be given (i). 
 
 310. In Bolton v. TJie Corporation of Liverpool (k), 
 which was the second example proposed, the Vice- 
 Chancellor, and the Lord Chancellor on appeal, decided, 
 that the plaintiff was not entitled to the production of 
 
 (i) Infra, pi. 313. It is scarcely possible that the neat ques- 
 tion, suggested in the 309th paragraph, should ever arise. For 
 the bill, if properly framed, would contain a charge that the 
 books, &c., would shew the amount of the plaintiff's demand, as 
 well as his title to it, and such a charge Avould reduce the ques- 
 tion of discovery to that which arose in Adams v. Fisher. 
 
 (k) Bolton V. The Corporation of Liverpool, 3 Sim. 4G7; S. C, 
 1 Myl. & K. 88.
 
 SECOND PROPOSITION. 225 
 
 the documents in question, the express ground of the 
 decision being, that it appeared by the answer that they 
 were relevant to the defendant's case only, and did 
 not sustain that of the plaintiff. Tlic judgment of the 
 Lord Chancellor in that case, which is too long for 
 quotation, abounds with the most pointed and valuable 
 observations, to Avhich the reader is referred. In the 
 recent case of Nias v. The Northern ^ E. Railway Com- 
 pany (/), the Lord Chancellor expressed his approbation 
 of the decision in Bolton v. The Corporation of Liver- 
 pool; and the cases hereafter cited, in support of the 
 author's third proposition, will place the soundness of 
 that decision beyond the reach of controversy. 
 
 311. The third class of cases above suggested, 
 remains, namely, that in which the object of the suit 
 is the impeachment of a deed or other document (m), 
 and in which the question is, whether the plain- 
 tiff has a right before the hearing to have the im- 
 peached deed produced for his inspection. The cases of 
 Beckford v. Wildman (w), Tyler v. Drayton (o), and 
 Batch V. Symes (p), are cases of familiar reference 
 upon this point. Since these cases, the Vice-Chan- 
 ccllor has had the point before him in Kennedy v. 
 Green {q), and in Fencott v. Clarke {r). In Kennedy v. 
 Green, the bill alleged that the plaintiff executed the 
 impeached deed under the impression that it was a 
 
 (/) .S ]Myl. & Cr..V,7. (p) Turn. .*v Russ. 87. 
 
 (»») Hare, 240. (y) G Sim. 7. 
 
 («) 16 Vcs. 438. (r) G Sim. 8. 
 (o) 2 Sim. & St. 309.
 
 226 SECOND PROPOSITION. 
 
 power of attorney, and that a fraud was practised upon 
 her, at the time she signed the deed, by folding it in 
 a particidar manner. This the bill insisted would appear 
 upon inspection of the deed, and the Coiu't made an 
 order for its production. In Fencott v. Clarke (s), the 
 facts of the case do not appear, but the order for pro- 
 ducing the deed was made. The case of Balch v. 
 Symes {t) is sometimes referred to in argument, as an 
 authority for the proposition, that where the object of 
 the suit is to impeach a deed, the plaintiff is entitled, 
 for reasons founded in the object of the suit alone, to 
 have the deed produced upon motion. The case of 
 Batch V. Symes does not, nor do the other cases above 
 cited, when carefully examined, sanction any such ge- 
 neral proposition ; in fact they negative any such con- 
 clusion. The proposition, indeed, involves an ab- 
 surdity; for, if it were founded, it would follow that 
 a plaintiff, by merely filing a bill purporting to impeach 
 a deed, might, without more, exact a production of 
 it. Cases of this class must, it is conceived, be go- 
 verned by the general rules of the courts, and not by 
 any rules peculiar to the cases themselves. Where a 
 deed is impeached upon grounds, the evidence of wliich 
 is alleged to be upon the deed itself, as in Kennedy v. 
 Green, an inspection before the hearing — limited 
 according to the exigencies of the particular case — 
 would probably upon principle be permitted, unless 
 the answer effectually displaced the charges affecting 
 
 («) 6 Sim. 8. (0 Turn. & Russ. 87.
 
 SECOND PROPOSITION. 227 
 
 it. "Where a conveyance is impeached on the ground 
 of the relation in which the parties stood to each 
 other, as that of trustee and cestui que trust, or solicitor 
 and client, or on any other ground dehors the deed — a 
 production of the deed would in general be imma- 
 terial to the issue, and would not, it is conceived, be 
 ordered. 
 
 312. However, since the first edition of this book 
 was published, three cases have been reported which 
 deserve particular notice, as being in some degree at 
 variance with the cases referred to in the last para- 
 graph, inasmuch as they apparently decide, that the 
 object of the suit alone may determine a plaintiff's 
 right to the inspection of a document impeached by 
 the bill. In Neate v. Latimer {u), a judgment creditor 
 filed a bill impeaching a prior deed executed by his 
 debtor. Upon reference to this case, as reported 
 in the House of Lords {x), the answer of the defend- 
 ant appears to have been very contradictory and 
 evasive ; and by the report of the case in the Exche- 
 quer Reports, it appears that the Lord Chief Baron 
 treated the case as one, in which the admission in the 
 answer raised a strong case of suspicion against the 
 defendant. Upon a motion for the production of the 
 deed impeached by the bill, the Lord Chief Baron said : 
 "The general rule upon this subject is liable to so 
 
 (//) 2 Younge & Collier, 257. (.') 11 Bli-li, 14!). 
 
 w2
 
 228 SECOND PROPOSITION. 
 
 many exceptions, that it is difficult to know to what 
 cases it may be applied. Tlic general rule is, that a 
 party is not bound to produce his own title deeds for 
 the inspection of his opponent ; yet, if the party seek- 
 ing their production has an equal interest in them with 
 the holder, that gives liim an equal right to their pro- 
 duction. Again, a party is not bound to produce title 
 deeds which are only collateral to the title of the party 
 seeking their production. A mortgagee, generally, is 
 not bound to produce his title deeds without payment 
 of the money due to him ; but supposing the mortga- 
 gor says, that the mortgage deed has been falsified, and 
 that a larger sum has been inserted in it than he ever 
 received, or intended to receive ; if he impeach it for 
 fraud, in this manner, he is entitled to have that ques- 
 tion tried before he pays even the sum which he ad- 
 mits to be due. But it follows, that unless he has the 
 inspection of the deed he may fail in his object, because 
 he may ivish to take advantage of some particular part of 
 the instniment. It is clear that if he wants to know 
 what sum is due, he is bound to trust to the oath of 
 the mortgagee. So that, in many cases, it depends upon 
 the particular object which the plaintiff seeks to ac- 
 complish, whether he has a right to inspect the deed or 
 not." And in a subsequent part of the judgment his 
 Lordship says : " In the present case I do not see in what 
 way a Court of equity could relieve the plaintiff, unless the 
 deed were brought into Court; and as it must be produced 
 at some time or other, why not before the hearing?" 
 With respect to the last position, that because the deed
 
 SECOND PROPOSITION. 229 
 
 must be produced at the hearing, therefore it should be 
 produced before the hearing, some observations will be 
 found in a later page, to which, in order to avoid repe- 
 tition, the reader is referred (y). With respect to the 
 other point, that the "object of the suit alone" may 
 determine the plaintiflF's right to inspect a document 
 which gives title to the defendant, — if the language 
 of the judgment is to be considered as governed by 
 the contradictory and evasive answer of the defendant, 
 or by the suspicion attending upon the defence — no 
 observation need be made upon it. But if the points 
 made in the judgment are to be taken in the abstract, 
 their consequences would, it is conceived, affect many 
 prior decisions. In Pilkington v. Himsworth[z) the 
 defendant in equity sued the plaintiff' upon a note for 
 10/. The consideration for which the note was given 
 had formed an item in a general account, arising out 
 of the defendant's agency for the plaintiff. The plain- 
 tiff in equity (defendant at law) filed his bill to have 
 the account taken, and suggested that the note had 
 been paid, and left confidentially in the defendant's 
 custody. The defendant by his answer admitted the 
 account, but denied the allegations in the bill as to 
 payment of the note, and the cu'cumstances under 
 which it was alleged to be in his possession. Upon a 
 motion for the production of the note, the Lord Chief 
 Baron made the order, assimilating the case to that of 
 
 (.y) Infra, ]>!. 409. 
 
 (c) ] Younj-ciS:Coll. ()12.
 
 230 SECOND PROPOSITION. 
 
 u bill impeaching an instrument for forgery, and stat- 
 ing tliat a court of law Avould order an inspection 
 under similai' circumstances. The last point is ob- 
 served upon in a later page (a). The other point 
 falls under the observations just made upon Neate 
 V. Latimer. In Cartel' v. Goetze {b) the plaintiff 
 sought by his bill to set aside an agreement for the 
 sale by the defendant to the plaintiff of a secret 
 for the manufacture of sterinc. The bill alleged a 
 case of fi'aud, and insisted that the defendant had 
 no secret, and had not communicated any to the 
 plaintiff, and required the defendant to set out what 
 his alleged secret was. It was part of the contract be- 
 tween the plaintiff and defendant, that the secret should 
 not be disclosed. The defendant answered the whole 
 bill, except that part which required him to set out 
 what his alleged secret was, and traversed the whole 
 case made by the bill. To the interrogatory which re- 
 quired him to set out his alleged secret, the defend- 
 ant demurred. The Master of the Rolls held that 
 a demui'rer was not the proper mode of defence. 
 He observed further, that the defendant could not 
 refuse to answer the interrogatory, regard being had 
 to the object of the suit. 
 
 313. With respect to these three cases, the author, 
 upon the authority of the language of the Court in 
 
 («) Inlni, pi. .330. 
 
 {!>) 2 Keen, 581. (June, 1838.)
 
 SECOND PROPOSITION. 231 
 
 Beckfordv.Wildman, Balchv.Symes, and the decisions in 
 Tyler v. Drayton, and Sampson v. Swettenham, presumes 
 to say, that the " object of the suit " cannot alone de- 
 termine the right of a plaintiff to discovery in cases of 
 the nature here referred to, however important a con- 
 sideration the object of tlie suit may be in deter- 
 mining the effect to be given to other cu'cumstances. 
 The author presumes respectfully to submit, that in 
 the cases of bills to impeach deeds or agreements, as 
 in other cases, the right of a plaintiff to the pro- 
 duction of any documents must depend upon the 
 answer; and that it can never depend exclusively upon 
 the object of the suit. A plaintiff cannot, by affecting 
 to impeach a deed or agreement, acquire a right to see 
 it, if the grounds of impeachment are displaced by the 
 answer. The judgment of the Lord Chancellor in 
 Latimer v. Neate, in the House of Lords, is extremely 
 guarded. From that judgment, it will be seen that 
 the defendant had put in several answers, and had set 
 up inconsistent cases, — that one of his answers was 
 inconsistent with another as to the documents in his 
 possession, — and that exceptions had been allowed to 
 the first of his answers, involving the same question as 
 arose upon the motion, — and that the order allowing 
 the exceptions was not appealed from. The Lord 
 Chancellor's words "under the circumstances" (c), 
 and tlie stress he laid upon the admission of the 
 
 {r) II liligli, J-41).
 
 232 SECOND PROPOSITION. 
 
 appellant's counsel at the bar are, it is conceived, 
 material. This case is further observed upon in a later 
 page, with reference to another point {d). K the 
 general proposition Avcrc admitted, e. g., that the object 
 of a suit alone (to impeach a deed) were sufficient, 
 it would follow, that every vendor and mortgagor 
 would retain a running interest in the conveyance he 
 had executed, to which he might give effect merely 
 by seeking to impeach such conveyance; and it 
 seems equally difficult to see how any document of 
 title could be protected, if the principle were admit- 
 ted. The sound view of the case appears to be, that 
 the moment the deed is executed, giving title to the 
 grantee, it becomes his deed, and must prima facie 
 be under the protection which the Third Proposition 
 gives to instruments of that character. This protec- 
 tion must remain until the plaintiff, by the evidence 
 of witnesses, or the admission of the defendant, esta- 
 blishes an interest in it. The cases referred to, un- 
 doubtedly, try the principle in the severest manner, 
 but the difficulty of applpng a principle should not 
 be permitted to destroy it. 
 
 314. But, it may be asked, does not the principle 
 contended for, in the three cases suggested above (e), 
 in some degree trench upon the generality of the ride, 
 which entitles a plaintiff* to the right of determining 
 
 {(l) Infra, Prop. V. 
 (c) Supra, pi. 306.
 
 SECOND PROPOSITION. 233 
 
 upon the effect of e\-idence (/) ? These cases do, un- 
 doubtedly, lie upon the very verge of the line, by which 
 the rights of the litigating parties are divided from 
 each other. But the rule referred to is not infringed 
 upon by a strict application of the law according to that 
 exposition of it, which the supposed decision upon the 
 first example, and the actual decisions upon the second 
 and third, demand. The rule that a defendant is not to 
 be the judge of the effect of evidence applies only to those 
 cases, in which an admission of the relevancy of docu- 
 ments to the plaintiff^s case has given the latter a 
 right to call for their production. Now, an admis- 
 sion of relevancy to the plaintiff's case, which is ne- 
 cessary to found his title to an order for production 
 of documents before the hearing, is incompatible with 
 a denial by the defendant of that case. An admis- 
 sion of relevancy necessarily supposes an admission, 
 to some extent, of the plaintiff's case. And Avhere 
 the oath of the party is the only evidence available 
 to the plaintiff, the Court cannot assume that which 
 the answer credibly denies (^). The soundness or 
 unsoundness of these observations, can be determined 
 only by observing the consequences to which an 
 opposite conclusion Avould lead. Suppose a plaintiff 
 by his bill to claim an estate, his right to which 
 was represented in the bill to be intercepted by con- 
 
 (/) Supra, 1.1. 300. 
 
 {g) See further, infra, pi. 317, 318, 319.
 
 234 SECOND PROPOSITION. 
 
 vcyances; and suppose the bill to charge generally 
 that the conveyances had been obtained by fraud, 
 without any such specification of the particulars con- 
 stituting the alleged fraud as would enable the de- 
 fendant or the Coin-t to know what the case was upon 
 which the plaintiff relied. This allegation would, 
 in general, be sufficient to let in cAidence in sup- 
 port of the charge of fraud (A), subject (in equity) 
 to a question at the hearing, whether, if, by reason 
 of the generality of the charge, the evidence were a 
 surprise upon the defendant, the Court, in the exercise 
 of its discretion, would direct inquiries before a Master. 
 The allegation would also be sufficient for the purpose 
 of discovery, so far as to oblige the defendant to 
 answer (generally) the charge of fraud, — for a de- 
 murrer to the whole bill would leave that charge in 
 admission {i). Now, suppose the plaintiflf (in the 
 case suggested) to charge that the defendant had 
 in his possession documents, papers, and letters, re- 
 levant to the conveyances impeached by the bill, 
 and to the circumstances attending the execution 
 thereof, and that, if the same were produced, the 
 imputed fraud would thereby appear. It is clear 
 (as already observed), that to this charge some an- 
 
 (Ji) 1 Chitty, Plead. 570: 9 Co. 10: Watkins v. Watkins, 2 
 Atk, 96 : Clarke v. Periam, 2 Atk. 337: Wheeler v. Trotter, 3 
 Swans. 174, note: Gordon v. Gordmi, 3 Swans. 471, 474: Att- 
 uiood V. , 1 Riiss. 3.53. And see supra, jil. 203. 
 
 (0 Redes. Plead. 212, 213.
 
 SECOND PROPOSITION. 235 
 
 swer must be given. But, suppose an answer were 
 given, fully and unequivocally denying the general 
 charge of fraud, — would a Court of equity, in such 
 a case, as a matter of course, compel a defendant 
 to subject his documents, papers, and MTitings, to the 
 inspection of an adversary? The answer to this 
 question must, it is conceived, be given in the nega- 
 tive, for, independently of the observation ah'eady 
 made — that the relevancy of the documents to the 
 plaintiff ^s case is, of necessity, excluded by the sup- 
 posed denial of that case — a bill so framed is purely 
 a fishing bill. The object of such a bill can scarcely 
 be intended by a Court to be legitimate, unless some 
 reason be assigned for the generahty of the plaintiff ^s 
 statement. The only postidate necessary to prove 
 that, a defendant, denjang (to the satisfaction of the 
 Court) a general charge of fraud, may successfully 
 object to the production of documents in a case like 
 that suggested, is this : — that a party cannot, in a 
 Court of justice, be without an opportunity of mak- 
 ing his defence, if, in truth, he has one. The 
 mode of taking the objection is another point (/c). 
 But if a defendant be not pro\ddcd with some means 
 of doing this, it will follow, as was before observed, 
 that a plaintiff, merely by suggesting a fictitious case, 
 may secure to himself an inspection of another man^s 
 documents, in which he has no interest. That a 
 defendant should l)c allowed by answer to protect 
 
 (/•) Intra, Prop. IV. and V.
 
 236 SECOND PROPOSITION. 
 
 himself against discovery in cases similar to tlic 
 second example proposed above, is, indeed, a merely 
 logical conclusion from the third proposition, which 
 pri^^lcgcs a defendant to withhold from his adver- 
 sary the evidences exclusively relating to his (the 
 defendant's) case, for that rule would be merely nu- 
 gatory, if the plaintiff, by fictitious charges simply, 
 could compel the defendant to produce his privileged 
 e^adence. A general charge that the defence is 
 untrue, and that it would so appear if the defend- 
 ant's documents were produced, is open (and perhaps 
 more strongly) to the observations which have been 
 applied to a general charge of fraud. The defend- 
 ant Avould, of course, be compelled to swear to the 
 truth of his defence, and to admit or deny the truth of 
 the charge as to the effect of his documents ; but his 
 obligation to produce them would, (it is conceived), 
 be a matter for the judgment of the Court depending 
 upon the effect of the defendant's answer. 
 
 315. In contending against the sufficiency of a 
 general charge in a bill to confer upon a plaintiff an 
 absolute right to a production of documents, — the 
 author will not be misunderstood as admitting that 
 a fictitious case in a bill will necessarily baffle the 
 powers of a Court to do justice, because it purports 
 to give details, provided the defendant sufficiently de- 
 nies the case suggested in the bill. The observations 
 which apply to a general charge apply with equal 
 force to a particular case detailed in the bill, provided 
 the answer precisely and substantially denies the case
 
 SECOND PROPOSITION. 237 
 
 suggested. The plaintiff may of course suggest any 
 case which ingenuity can de\'ise, for the purpose of 
 eliciting the fact that his case, or even his name, ap- 
 pears in the defendant's documents relevant to the 
 subject of his suit; and he may, perhaps, compel 
 the defendant to give him every extract in which his 
 name appears, and to pledge his oath that his (the 
 plaintiff's) name appears in no other places than 
 those which the defendant may admit. All that the 
 author contends for is, that a plaintiff cannot by a 
 bill, the case made by which the defendant swears 
 is fictitious, obtain an inspection of documents, 
 which upon the answer appear to be exclusively 
 relevant to matters in which the plaintiff has no in- 
 terest (/) . 
 
 316, The case of Emerson v. Harland{m) does not 
 conflict with the views here taken. That case decided 
 only that some answer must be given to the charge 
 relating to the possession of documents material to the 
 proof of the plaintiff's case, and not that the defend- 
 ant — denying that charge — should produce his docu- 
 ments for the plaintiff's inspection. 
 
 31 7. The great difficulty which the Couit is some- 
 times under in refusing to make an order for the pro- 
 duction of documents, arises from the consideration, 
 that it is giving final eftect to the oath of the defendant 
 
 (/) Storci/ V. Lord George Lennox, 1 Myl. & Cr. 525; and 
 cases cited under Prop. III. 
 
 (/«) n Sim. 490 ; S. C, 8 Bligh, 62 ; supra, pi. 117.
 
 238 SECOND PROPOSITION. 
 
 (the interested party) upon the plaintiff^s right to dis- 
 covery, — a difficulty which is increased by the observa- 
 tion, that, from the nature of documentary evidence, 
 the defendant may be swearing to that which is rather 
 matter of law than of fact, or at best a mixed question 
 of law and fact. The whole of the plaintiff ^s case may 
 hinge upon a point like this. On the other hand, it 
 must be observed, that, in refusing to make an order 
 for the production of a document, a Com't of equity 
 deprives the plaintiff of no evidence to which the laAv 
 entitles him, and which he can obtain without the 
 aid of a Court of equity. A Court of equity professes 
 to do no more than add to that evidence which the 
 plaintiflP can obtain without its assistance, such ad- 
 missions as he may obtain by the examination of 
 the defendant upon oath. Nor is this technical \dew 
 of the case unsupported by more general reasoning. 
 The bill may be filed, not to prove a case known or 
 even believed to be true, but to elicit discovery for the 
 chance of what may appear fi-om the defendant's answer, 
 and an inspection of liis papers. Now it has been 
 shewn, that, in some cases, there is no form of plead- 
 ing by which a defendant can by demm-rcr or plea 
 protect himself from all discovery, however false the 
 bill may be. The difficulty suggested is, therefore, 
 strictly unavoidable. The oath of the defendant must 
 be received, or the defendant must be without the 
 means of a defence, which in truth belongs to him, — 
 a proposition too absurd for argument. The Court, 
 however, though bound to receive the defendant's
 
 SECOND PROPOSITION. 239 
 
 oath, is not necessarily bound to believe it. If there 
 be nothing, indeed, to impeach the credit due to the 
 defendant's oath, and his case be clearly brought (by 
 his oath) within any of the cases, ah'cady noticed, to 
 which the right of the plaintiff to discovery does not 
 extend, there the Court must (it is conceived) give con- 
 clusive effect to the oath it receives, and protect the 
 defendant's documents from the plaintiff's inspection. 
 If, on the other hand, the answer be equivocal or pos- 
 sibly evasive, the judgment of the Court — regulated by 
 the ordinary rules of evidence — must be applied in de- 
 termining whether the answer is credible or not {n). 
 In such a case a reference to documents, (as in Hard- 
 man V. Ellames), " for greater certainty," " for fear of 
 mistake," or other sa\ing expressions, might be highly 
 material in determining the judgment of the Court. 
 No positive rules can, however, in the abstract be laid 
 down upon a point like this. 
 
 318. By what rules, then, are the opposite interests 
 of a plaintiff and defendant respectively to be pro- 
 tected ? As a general rule, it may perhaps be stated 
 — that the defendant, in order that he may entitle 
 himself to the protection he claims, must give the 
 Court the best means he can of judging of the 
 truth of what he swears to, short of course of that 
 discovery, which he is desirous of withholding ; that 
 is, he must claim protection by means of the best 
 
 (n) See Shafteaburj/ v. Arrowsmith, supra, })1. 228: Purcell v. 
 Macnamara, infra, pi, 319.
 
 240 SECOND PROPOSITION. 
 
 evidence the nature of the case admits of. A mere 
 general assertion that all the documents in the de- 
 fendant's possession are evidence exclusively of his 
 own casCj ivithout descr'ihmg them, might not, per- 
 haps, in some cases, tliough in others it clearly would, 
 be sufficient. A description of the documents, how- 
 ever, coupled with the same averment, would, pro- 
 bably, in all cases, be sufficient, unless from the- 
 nature of the documents or other cu'cumstances ap- 
 pearing in the answer, the Court found reason for 
 discrediting the answer, or refusiug to give effect to it. 
 The nature and extent of the averment* must determine 
 a question like this. But such averments must be pre- 
 cise and definite. A statement of the possible effect of 
 the documents, for example, would not in general be 
 sufficient. The observations of the Lord Chancellor 
 in Storey v. Lord George Lennox (o), in Desborough v. 
 Rawlings (p), and in Bowes v. Fernie {q), will be found 
 to contain a most valuable commentary upon this point 
 in the law of discovery. In the last of those cases 
 the Court held that a discrepancy between two differ- 
 ent parts of an answer entitled the plaintiff to the 
 benefit of that which was most favourable to himself. 
 
 319. The following case, which the writer received 
 from a late Lord Chancellor of Ireland (r), strongly 
 illustrates the weight given to the oath of a defendant 
 upon an interlocutory proceeding for the production 
 
 (o) 1 Myl. & Cr. 625. (r/) 3 Myl. & Cr. 632. 
 
 (jo) 3 Myl. & Cr. 515. (>•) Sir Anthony Hart.
 
 SECOND PROPOSITION. 241 
 
 of documents. In Pur cell v. Macnamara, the defendant 
 Mas ordered to produce certain account hooks, with 
 Uberty to seal up such parts as he should upon oath 
 declare related to private matters other than those 
 mentioned in the bill. The defendant did accordingly 
 seal up certain parts of his books under the liberty re- 
 served to him by the order, and in this state they were 
 produced. In the index at the end of one of the books 
 was contained a reference to a page in the sealed parts 
 of the book, which shewed, if the index were correct, 
 that the page referred to related to the matters in the 
 bill. Upon this beiug discovered, the plaintiff apphed 
 to the Court for liberty to break the seals, but Lord 
 Eldon refused the motion, upon the ground that the 
 answer concluded the question. And in Clapkam \. 
 WJiite{s), upon a motion to revive an injunction which 
 had been dissolved upon the answer coming in — the 
 motion proceeding upon the fact that the grand jury 
 had found a true bill for perjury in that answer — Lord 
 Eldon, referring to the great weight which a Court of 
 equity gives to an answer upon interlocutory proceed- 
 ings, said, " If the answer denies all the circumstances 
 upon which the equity is founded, the universal prac- 
 tice as to the purpose of dissolving or not reviving the 
 injunction is, to give credit to tJie atiswer; and that is 
 carried so far, that, except in the few excepted cases, 
 though 500 affidavits were filed, not only by the plain- 
 tiff, but by many witnesses, not one could be read as to 
 
 {s) 8 Ves. .36. 
 R
 
 242 SKCOND PROPOSITION. 
 
 this })urposc. That bcmg the rule, and the injunction 
 being dissolved upon the credit given to the answer for 
 this purpose, the question is, whether the answer is to 
 be thus accused (for it is no more) of perjury. This is a 
 grave ground certainly for conceiving, that the answer 
 may be all false; and morally false, whether the matter 
 of perjury is material, or not; though not judicially, if it 
 is not material. The difficulty as to the principle is, that 
 the grand jury may have believed, and in most cases must 
 have believed, those very persons upon their oaths for 
 that purpose, whose depositions this Court would not per- 
 mit to be read for the pm-pose of discrediting the answer. 
 It is therefore in a circuitous way destroying the rule of 
 this Court, giving credit to the answer for this purpose." 
 
 320. The observations in the preceding paragraphs, 
 commencing Avith the 313th, apph^ specifically to each 
 of the three cases proposed in the 306th paragraph. 
 
 321. Before concluding the subject which has been 
 considered so much at length — the meaning of the 
 expression "full answer" in its application to the 
 production of documents before the hearing, — some 
 special points remain to be noticed, by which the gene- 
 ral principles which regulate this branch of practice 
 are explained or limited, but which could not, without 
 interruption, have been suggested in an eai'lier place. 
 
 322. If the defendant (without more) admits the 
 possession of documents relevant to the plaintifF^s case,
 
 SECOND PROPOSITION. 243 
 
 it is not necessary that he sliould in terms refer to the 
 contents of the documents, in order that the plaintiff 
 may be entitled to an order for producing them (t). 
 
 323. If the defendant (without more) admits the 
 possession of documents relevant to the plaiutiff^s case, 
 it is not necessary that the plaintiff should have called 
 upon the defendant to set out the contents of the docu- 
 ments in the answer, in order that the plaintiff may 
 be entitled to an order for producing them (u). 
 
 324. From the language of some cases [x], it might, 
 perhaps, be inferred that title deeds and documents 
 of title "were pri^ileged in a manner not appli- 
 cable to other documents. The author is not aware 
 that any such pri\ilege can be defended upon prin- 
 ciple. If a plaintiff can read from the defendant's 
 answer an admission, which shews that he has an 
 interest in a title deed for the pm-poses of the suit, 
 all the cases shew that he will be entitled to have 
 it produced, and if he cannot read such admission 
 as to any other document, the cases equally shew that 
 he will not be entitled to see it. In practice, indeed, 
 a difference may exist between title deeds and other do- 
 cuments, — such, for example, as letters, &c., — but this 
 difference, it is conceived, is to be attributed only to 
 that laxity in practice which invariably increases as 
 
 (t) Common Practice. 
 (m) Common I'ractice. 
 
 (:r) Knight v. The Marquis of JVaferforJ, 2 Younge & Coll. 
 2n (18.3.5). 
 
 II 2
 
 244 SECOND PROPOSITION. 
 
 the importaucc of applying; principles with strictness 
 is diminished. 
 
 325. If a plaintiff is entitled to the production of n 
 deed or other document within the terms and meaning 
 of the proposition now under consideration, as being 
 applicable to his case, his right to such discovery will 
 not be affected by the circumstance, that the same 
 document is evidence of the defendant's case also(i/). 
 The case of a mortgagee before the day for payment 
 would probably be considered Avithin the scope of 
 the last observation. The position of a mortgagee 
 after the day of payment may, perhaps, be subject 
 to different considerations. This point is noticed in 
 a later page (z) . 
 
 326. And if a defendant, bound to keep distinct 
 accounts for another party, improperly mixes them mth 
 his own, so that they cannot be severed, he must pro- 
 duce the whole [a) . 
 
 327. It was shewn in a former place [b), that an 
 admission of the relevancy of documents in the de- 
 fendant's possession to the plaintiff's case will — as 
 
 (y) Burrell v. Nicholson, 1 Myl.&K.680,and cases there cited. 
 
 > And see the judgment in Bolton v. The Corporation of Liverpool, 
 
 jfio 1 Myl. & K. 88, and infra, pi. J367 : Attorney-General v. Lamb, 
 .1 Younge & Coll. 162. 
 {z) Infra, Prop. III. 
 
 (a) Freeman v. Fairlie, 3 Mer, 29 : Earl of Salisbury v. Cecil, 
 1 Cox, 277 ; Hare, 24.5. 
 (/>) Supra, pi. 299.
 
 1BI~ 
 
 SECOND PROPOSITION. 245 
 
 between the plaintiff and defendant who makes the ad- 
 mission — entitle the plaintiff to an order for their pro- 
 duction, upon motion before the hearing. It should 
 be observed, that it is only between those parties that 
 the rule applies. The circumstance, that a person not 
 before the Court, or that a party to the suit who has 
 not answered, has an interest in a document, ^^•i]l in 
 general (c) deprive the plaintiff of his right to inspect 
 it, in the absence, or until answer, of the third party, 
 notwithstanding a sufficient admission by a defend- 
 ant on the record as against himself. The case of a 
 joint possession by the defendant and another has 
 already been adverted to [d) . The cases here suggested 
 apply to a joint interest in one defendant and ano- 
 ther person, the possession being in that defendant 
 alone, by whom the admission has been made. Cases 
 of this description may be ranged under three heads : 
 — 1 . Cases in which the party having the interest 
 is a defendant in the suit : — 2. Cases in which the 
 party lia\dng the interest is a proper party to the 
 suit, but has not been made a party thereto : — 3. 
 Cases in which the party having the interest is 
 not a party to the suit, and is not a proper party 
 thereto. In the first class of these cases the ansAver 
 of both defendants may be referred to, not for the 
 purpose of reading the answer of either defendant 
 
 {r) Hare, 120. Hut sec IVaUmni v, IiifjiJhi/, 1 Myl. iS: K. 01 : 
 Few V, Gii})pt/, 1 1 are, ll!4. 
 {(1) Supra, pi. 2!)4.
 
 21'G SECOND PROPOSITION. 
 
 against the other, but for the purpose of determining 
 the plaintift''s rights against each. In the second 
 class, the question would be, whether the nature of 
 the case suggested by the answer of the defendant 
 who had possession of the document shewed such 
 an interest in the absent party, as made it improper 
 in the Court to order its production in his absence. 
 There is nothing, it is conceived, in the nature of 
 the subject which necessarily makes it improper for 
 a Court of equity to order a pai'ty having posses- 
 sion of a document to produce it, by reason only 
 that some absent party has an interest in it. At 
 all events the same reasons which excuse the absence 
 of a party to a suit, (e. g. his being out of the juris- 
 diction), would, it is conceived, prevail also upon a 
 motion to produce documents, if no other objection 
 existed. The third class fall within the scope of 
 the last observations. In Lambert v. Rogers [e), 
 the absence of a cestui que trust was held a suffi- 
 cient reason for not ordering the production of an 
 instrument in which he had an interest. In Grane 
 V. Cooper (/), the plaintiff filed his bill against his 
 two co-partners. The three had mortgaged joint 
 property of the partnership, and some documents 
 relating to that mortgage were held by one of the 
 defendants as solicitor for the mortgagee. The Lord 
 
 {(■) 2 Mer. 48f). 
 (/) Lord Chanecllur, Lincoln's Inn Hall, loth Doc. 1828.
 
 SECOND PROPOSITION. 247 
 
 Chancellor refused to make an order for their pro- 
 duction in the absence of the mortgagee. In Murray S^ /4i— «i-^ 
 V. Walters {(/) the plaintiff^ as representative of a J^'=^y<^ 
 deceased party, filed his bill against the three sur- 
 viving partners of his testator, praying an account 
 of partnership profits up to June, 1828, and praying 
 to be declared a partner after June, 1828, under an 
 agreement alleged in the bill. The answer disclosed 
 the names of other partners, between thirty and forty 
 in number, and stated that the books of the partner- 
 ship Avere in the hands of a treasurer as agent for all 
 parties. The Lord Chancellor refused to make any 
 order for producing partnership books admitted by one 
 of the defendants to be in his possession or under his 
 control. In this case the Lord Chancellor said, that 
 he considered the case of Walburn v. Ingilby as not 
 reconcilable with the ordinary practice of the Court, 
 and as a case which must be referred to some specialty 
 in it. The case of Fenwicke v. Reed (/«), may also be 
 referred to upon this subject. From these cases it 
 seems to follow that the interest of a person not a par- 
 ty to a suit, and who cannot lawfully be made a party 
 to it, might deprive the plaintiff of evidence to which, 
 as against the parties to the suit, he might clearly 
 be entitled. 
 
 328. It was shewn in a former page (^) that if a de- 
 
 (y) Lord Cli;iiici.'llor, Liutdln's lijn Ihill, 7tli Aug. 1821). 
 (//) 1 Mer. 11-1. (/) Sui.ia, ])]. WI.
 
 248 SECOND PROPOSITION. 
 
 fendant admits the relevancy of documents in his 
 possession to tlie phiiutiff's case, and afterwards 
 states reasons why, notwithstanding that relevancy, he 
 should not be compelled to produce them, the Court 
 will allow him to appear upon a motion for their 
 production, and take its judgment upon his lia- 
 bility. The proposition stated in a former page (/c) 
 was broken in upon by some recent decisions, in which 
 a question was made, wliether a plaintiff in equity, 
 who obtains a discovery of documents in the pos- 
 session of the defendant in aid of a trial at law, 
 is entitled to an order in equity for the production 
 of the documents at the trial, separate from the body 
 of the answer. In Crowleij v. Perkins {I) (1832), the 
 Vice-Chancellor ordered a defendant to a bill of dis- 
 covery in aid of an action, to produce at the trial, 
 separately from the body of the answer, documents 
 set forth in the schedule to his answer as being 
 in his custody. In Anyell v. Westcombe {in), and in 
 Brotvn v. Thornton {n), the same point came before tlie 
 Vice-Chancellor, and his Honour in both cases adhered 
 to his decision in Crowley v. Perkins, and made the 
 same order as in that case. The objections to such 
 an order, considered as an order of course, are manifest. 
 The effect of it is, that — Avhereas documents scheduled 
 
 (/■) Supra, pi. 1]. 
 
 (/) o Sim. 552. 
 
 («t) 1st seal after Hilar}- Tenu, 1836. 
 
 (n) Lincoln's Inn, 0th March, 18.36-
 
 SECOND PROPOSITION. 249 
 
 to an answer are only pari of the answer — the plaintifi' 
 in equity, by means of the order, Avould be enabled to 
 read them at law as if they were the whole answer, and 
 thereby to get rid of all qualifications which the answer 
 might introduce (o). At law, the judges will not, as of 
 course — for the reason just suggested — permit second- 
 ary evidence to be given of the contents of docu- 
 ments, which a party obtains only as part of an an- 
 swer to a bill in Chancery. Lord Lyndhurst so ruled 
 in Gurney v. Whitbread, at Nisi Prius, — he said, 
 application should be made in equity for the produc- 
 tion at the trial. 
 
 329. The above considerations induced an appeal in 
 Brown v. TJiornton. The Lord Chancellor in that case, 
 after directing a search for precedents, and after com- 
 municating with the Judges at common law upon the 
 point, discharged the Vice-Chancellor's order [p). His 
 Lordship, in giving judgment, said : " The uniform 
 opinion of the Judges of the Coiu'ts of common law is, 
 that where a bill of discovery has been filed, to which 
 an answer has been put in, and documents are pro- 
 duced at the trial as part of the answer, in which 
 character alone the plaintiff in equity is entitled to use 
 them, the answer must be read; but, on the other 
 hand, when a Court of equity has interfered, and has 
 ordered the documents to be produced and read, the 
 
 {<)) Hj/lton V. Morr/an, (> Vcs. 293: Aston v. Lord Exeter, G 
 Vcs. 288 ; llair, U>, ]<), 2J, 22. 
 {p) 1 Myl. ^S: Cr. 24:].
 
 2r)0 SECOND PROPOSITION. 
 
 Court of Law, sitting at Nisi Prius, pays such respect 
 to the order of the Court of equity, thiit it allows the 
 documents to be read alone, without inquiring into the 
 grounds of the order. That is the rule established 
 at law, and it is consistent with what is the situ- 
 ation of the parties. The question is, whether, upon 
 a mere bill of discovery, a Court of equity ought 
 to interfere, so as to relieve the plaintiff in equity 
 from the necessity of doing that which he is, by law, 
 bound to do ; that is, on a bill of discovery, to give 
 the plaintiff in equity a benefit beyond that which 
 he is entitled to derive from the answer to such a bill. 
 I was surprised to hear the affirmative contended for 
 in the argument ; because I thought that such a course 
 would be giving relief; the Court would not in that 
 case be used for the purpose of obtaining discovery. 
 It is obAdous that the effect of the Vice-Chancellor's 
 order was to give the party a benefit he could not 
 otherwise have, namely, the power of using a docu- 
 ment in a manner in which he would not in other 
 respects be entitled to use it. I directed the registrars 
 to search whether there was any precedent of such an 
 order having been made on a bill of discovery. The 
 result is, that no such order can be found upon a bill 
 of discovery, except that in the case of Crowley v. 
 Perkbis, which was cited in the argument. That re- 
 sult is quite consistent with the doctrine of the Judges 
 at law. This Court does not, upon a bill of discovery, 
 interfere with the rights of the parties ; it merely gives 
 the discovery sought. If the Court were to go fui'thcr.
 
 SECOND PROPOSITION. 251 
 
 the bill would not be a bill of discovery, and there 
 would be a departure from the practice of the Com't 
 upon a bill of discovery. As soon as the defendant in 
 equity has put in his answer, he is entitled to his 
 costs, and the office of the Court is discharged. The 
 Court has no jurisdiction to exercise on a bill of dis- 
 covery ; it leaves the parties to make the best use of 
 the discovery they can." The observations of Lord 
 Eldon, in The Princess of Wales v. Tlie Earl of Liver- 
 pool {(J), strongly support the reasoning of the Lord 
 Chancellor in Brown v. Thornton. 
 
 330. From the language of some reported judgments 
 it might be inferred, that the judges by whom they 
 were pronounced were of opinion, that if a document 
 was so stated in an answer in equity that a Court of 
 law would, in analogous cases, order its production, a 
 Court of equity should, therefore, do the same (r). 
 Assuming that such a principle was intended to be ex- 
 pressed by the dicta referred to in the note, the author 
 presumes to say that it cannot be too strongly o])jcctcd 
 to. It may, indeed, be questioned, whether the juris- 
 diction exercised by Courts of laAV in compelling the 
 production of documents, merely because they are 
 stated in the pleadings, has not been introduced up- 
 on the erroneous supposition that they were doing 
 
 ('/J 1 Swanstoii, 114. 
 (/•) 1 Myl. & Kee. K.S, in Uollon v. The Corjmration of Liver- 
 pool ( I8.'3.S) ; I Youii!4c ^: Coll. (!1H, in Pilkiiigton v. Iliimworth.
 
 252 SECOND PROPOSITION. 
 
 no more in sncli cases than Courts of equity would 
 do in tlic same case, — an observation, which, if well 
 grounded, would make a reference to the practice of 
 Coui'ts of law inadmissible for any purpose in deciding 
 what a Court of equity should do. But, however that 
 may be, it is certain that a Court of equity never gives 
 the plaintiff in equity the benefit of the defendant's 
 oath, without gi^^ng the defendant the benefit, as far as 
 it may go, of his own oath also is) . The observation of 
 Lord Eldon in the case of The Princess of Wales v. Lord 
 Liverpool, and the principle of the Lord Chancellor's 
 judgment in Brown v. Thornton, appear to place this 
 point beyond the reach of controversy. In the former 
 case Lord Eldon (referring to the practice of Courts 
 of law in compelling the production of MTitten instru- 
 ments) says (/) : " Those Courts, adopting a special mode 
 of proceeding, have assumed a jurisdiction which was 
 formerly exercised exclusively by Courts of equity. 
 They have done so on the supposition that they were 
 doing what Courts of equity did; but I bebeve it will 
 be difficult to admit, that, in the exercise of that juris- 
 diction, they have acted between the parties as this 
 Coiu-t would act. That, however, is the principle on 
 which they have since proceeded, in compelling, on 
 motion, the production of bills of exchange or promis- 
 
 (s) Princess of Wales v. The Earl of Liverpool, 1 Swan. 114 : 
 Brown v. Thwnton, 1 Myl. & Cr. 243 : and Evans v. Bicknell, 6 
 Vi-s. 182, 18.5. 
 
 (0 1 Swan. 1J9.
 
 SECOND PROPOSITION. 253 
 
 sory notes, the subjects of an action; and I believe 
 that Lord Mansfield first adopted that rule, on the 
 supposition that he did no more than was constantly 
 done in Courts of equity. Speaking with all the de- 
 ference due to Lord IMansfield, it does not appear to 
 me that he exactly recollected what a Court of equity 
 would do in such a case; because there is a mighty 
 difference between simply producing an instrument, 
 and producing it in answer to a bill of discovery, 
 M'here the defendant has an opportunity of accom- 
 pamang the production Avith a statement of every 
 thing which is necessary to protect him from its con- 
 sequences. On the present case we must refer to the 
 practice of this Coui't; and admitting that there may 
 be exceptions to the rule of practice, we must admit 
 also that great care must be taken in each particular 
 instance to ascertain that the case of exception 
 actually exists. It becomes, therefore, necessary to 
 consider the case with reference to all our rules for 
 compelhng production of instruments, whether instru- 
 ments mentioned in the bill or in the answer; recol- 
 lecting w hat those rules requii'e the plaintiff in the one 
 case, and the defendant in the other, to admit relative 
 to the possession of the instruments.^^ And again his 
 Lordship adds {u) : " Many doctrines liave been intro- 
 duced into Courts of law on a supposed analogy to the 
 practice in equity, but without the guards with which 
 
 (?/) The. Princess of Wales V. The Earl of Liverpool, 1 Swans. 
 124.
 
 254 SECOND PROPOSITION. 
 
 equity surrounds the case; ;is iu the instance of dis- 
 pensing with profert, no man can enter tliis Coiu't 
 without gutu-ding his entrance by sanctions which the 
 Coiu'ts of law cannot impose ; and it liappens whimsi- 
 cally enough, that there are cases in which Coui'ts of 
 law, proceeding on the principle of giving a remedy 
 because one might be obtained in equity, have com- 
 pelled the party to resort to equity for protection 
 against that practice at law. When Courts of law 
 held, that because the production of promissory notes 
 might be obtained in equity, they would compel the 
 plaintiff to produce them, they forgot that in equit}', 
 if the promissory note will not, on the face of it, fur- 
 nish explanation, the defendant to the cross-bill ac- 
 companies the production with an explanation by his 
 answer of all the circumstances; and that the mere 
 compulsory production would deprive liim of the safe- 
 guards which this practice affords." 
 
 331. It has been shewn in a former page [x), that a 
 plaintiff has no right to exact from the defendant a 
 discovery of evidence obtained or prepared by his pro- 
 fessional adviser, with a vicAv to the litigation between 
 the parties. A question has lately been agitated, 
 whether the privilege of the defendant to Avithhold 
 such discovery applies to evidence which the defend- 
 ant himself may have obtained for a purpose, and 
 under circumstances, which would clearly have pro- 
 tected it if obtained by his professional adviser. The 
 
 {x) Suj)ra, pi. l.'iG.
 
 SECOND PROPOSITION. 255 
 
 point WHS argued, but not decided, in the late case of 
 Storey V. Loi'd George Lennox [y), before the Lord 
 Chancellor, and the impression on the mind of the 
 author at the time of the argument was, that the Lord 
 Chancellor considered the privilege as depending in 
 principle upon the purpose for -which, and the cir- 
 cumstances under which, the evidence was obtained, 
 and not exclusively upon the person who might ac- 
 tually obtain it. A contrary decision would preclude 
 a party, — even though a solicitor, — from taking any 
 steps in the prosecution of his own cause ; and many 
 of the reasons assigned for admitting the privilege in 
 any case apply as strongly to the case of evidence ob- 
 tained by the party himself, as to the evidence ob- 
 tained by his professional adviser {yy). In Greenlaio 
 V. King [z), the Master of the Rolls, after deciding 
 that letters written by one Leigh, a solicitor, were not 
 privileged, added : " If those letters were written to 
 Leigh, for the purpose of being communicated, by 
 that channel, to counsel, another question might have 
 arisen ; — I might have thought it subject to a dif- 
 ferent rule, but that is not so," However, his Lord- 
 ship added : " the cases of privilege are confined to 
 solicitors and their clients {zz) ." 
 
 332. In Taylor v. Sheppard {a), the Lord Chief 
 Baron ordered the production of a document, con- 
 tained in an answer, uuder siugulai' circumstances. 
 
 f^) 1 Myl. & Cr. .525. {i/i/) 1 Myl. & K. !)4. 
 
 (2) 1 Beavan, 145. 
 
 {zz) But see Curling v. Perring, 2 Myl. & K. .3fiO, and 1 Younge 
 & Jer. 178. {a) 1 Younge & Coll. 271. 
 
 *
 
 25G SECOND PIIOPOSITION. 
 
 The pluiutiff in equity was defendant in several actions 
 at law, brought against him by different parties upon 
 similar grounds. The plaintiff in equity having, by 
 means of his bill against Sheppard, the plaintiff in 
 one of the actions, obtained a discovery of a document, 
 which he thought material to his case at law in an 
 action brought against him by another party, moved 
 that the officers of the Court, in whose hands the 
 documents had been deposited under the usual order, 
 might attend with the documents at the trial of the 
 last-mentioned action ; and the Lord Chief Baron made 
 an order in accordance with the motion. The principle 
 involved in this decision appears to deserve great con- 
 sideration {b). In the same case, an order was made 
 for the production of the documents in the answer 
 upon the trial of an indictment against a third party. 
 
 333. The right of a defendant to withhold from the 
 plaintiff a discovery of the evidences exclusively relat- 
 ing to his (the defendant's) ease, and the circumstances 
 under which a defendant may be held to have lost or 
 waived that right, are the subject of the Third Propo- 
 sition. But, it may be proper, in this place, to notice 
 some of tbe leading points which occur in that proposi- 
 tion, in order to render more complete the observations 
 upon the plaintifi''s right to a production of documents 
 in the defendant's possession before the hearing. 
 
 334. The reader, for this purpose, must give credit 
 to the accuracy of the Third Proposition, so far as it 
 
 (A) Supra, pi. 327, 328, 320.
 
 SECOND PROPOSITION. 257 
 
 asserts the original privilege of a defendant to with- 
 hold from his adversary a discovery of the evidence 
 which relates exclusively to his (the defendant's) 
 case. 
 
 335. If, however, the defendant purports to set out 
 the contents of a merely defensive document in his 
 answer, and "for greater certainty" as to such con- 
 tents craves leave to refer to it, that reference will, 
 according to the case of Hardman \. Ellames[c), be a 
 waiver of the defendant's privilege, and the plaintiff 
 will be entitled to an order for production of the 
 document upon motion. 
 
 336. But the rule introduced by Hardman v. Ellames 
 is, it is conceived, confined to documents, the contents 
 of M'hich arc stated or purported to be stated in the 
 answer, and does not extend to documents merely 
 mentioned in the answer, or in a schedule to it, 
 although the defendant may say in his answer that 
 he relies upon those documents to prove his case. 
 
 337. According also to the case of Latimer v. 
 Neate{d), a defendant may, hj pretending to give dis- 
 covery whicii he might have refused, be held to have 
 waived his priAdlege, so as to entitle the plaintiff to 
 inspect the defendant's documents in order to see 
 whether his answer be correct or not. 
 
 338. Some observations upon the case of Latimer v. 
 
 (c) Infra, pi. .^HG ct seq. 
 
 ((/) 2 Younge & Coll. 2.57 ; 11 Bligh, 149.
 
 258 SECOND PROrOSITION. 
 
 Neate will be found in a later page (</) . The special 
 circumstances of that case are such as to prevent its 
 being an authority for any abstract point of law. 
 
 339. In the argument of a recent case (e), it was said 
 by counsel at the bar, that the cases in which the 
 Court orders the production of documents in the 
 answer before the hearing, were reducible to three 
 heads: — 1. Where the plaintiff has an interest in them, 
 for the purposes of the suit; 2. Where the defendant 
 states them partially in the answer, and also refers to 
 them ; 3. Where the plaintiff has an interest in them 
 qua property, as may be the case in a bill by a cestui 
 que trust against his trustee, or by a tenant in com- 
 mon against his companion. 
 
 3 to. The first of these heads has been already con- 
 sidered, and it is hoped estabhshed. The second 
 will be examined in considering the Thii'd Proposition. 
 With respect to the third head, the author is not aware 
 of any authority for it, in the abstract. The word in- 
 terest is undoubtedly used as the test by which the 
 right of a plaintiff to the production of documents in 
 the answer is to be tried, — but the sense in which it is so 
 used, is not that which this third head supposes. The 
 
 (J) Infra, Prop. V. 
 
 {c) Bannatt/ne v. Lcad&r, Sittings after Trin. Term, 1838.
 
 SECOND PROPOSITION'. 259 
 
 case of Lingen v. Simpson {/), and the other cases al- 
 ready referred to^ negative the interpretation of the 
 Avord "interest^' ascribed to it in tlie third head. It 
 would, perhaps, be difficult to suggest a case of admit- 
 ted interest qua property in a document (and it is only 
 to the case of an admitted interest that the argument 
 can apply), in "which the right to production would not 
 attach under the first head. An admitted cestui que 
 trust, or an admitted tenant in common, woidd, 
 unless under very special circumstances, have an 
 interest in the documents relating to the trust or 
 common property for the purposes of the suit, and 
 the third head would, therefore, become merged in 
 the first. And in the case of admitted property in a 
 document, the Court would be indisposed to try the 
 plaintiff's right by any very severe test. But, in 
 principle, it is conceived, the right of a plaintiff to 
 the production of documents referred to in the answer, 
 before the hearing, must be reducible to one of the 
 two first heads above suggested ; for the decree is the 
 only occasion upon Avhich the Court can regularly 
 administer rights ; and orders upon interlocutory ap- 
 l)lications are regular only when made as ancillary 
 to the decree {g). 
 
 341. Adverting to the actual state of the authorities, 
 a fourtli head, depending upon the waiver of the de- 
 
 (/) Supra, pi. 230. 
 
 (^) See the cases cited in Shaw v.S/taw, 12 rrice, 163. 
 
 s2
 
 2G0 SECOND PROPOSITION. 
 
 fendant, ought, perhaps, to be separately considered. 
 This will be noticed under the Fourth and Fifth Pro- 
 positions. The reader will easily exhaust the questions 
 which arise under the head of waiver, by referring to 
 the case of Adams v. Fisher in a former page, and the 
 cases of Hardman v. Ellames{h), Latimer v. Neate{i), 
 and Lowndes v. Davis {k), which follow. 
 
 (//) Infra, pi. 386 et seq. (i) Infra, Prop. V. 
 
 (/I) Infra, ]>\. ;?77.
 
 261 
 
 THIRD PROPOSITION 
 
 The right of a jjlaintiff in equity to the benefit of the 
 defendant's oath, is limited to a discovery of such material 
 facts as relate to the plaintiflF^s case — and does not 
 extend to a discovery of the manner in which the defend- 
 ant's case is to be established, or to evidence which 
 relates exclusively to his case (a) . 
 
 342. It lias been contended, (by the Second pro- 
 position), that where a plaintiff makes a case in his 
 bill, which would disprove the truth of, or other- 
 wise invalidate the defence, he may be entitled to 
 discovery from the defendant, in order to enable him 
 so to impeach the defendant's case. 
 
 S4.S. So far, then, the plaintiff has a 7'i(/ht to dis- 
 covery, directed — as evidence — not to the case upon 
 
 (a) The cases which estahlish this proposition are not (it may 
 be observed) exccptiojis to the First Proposition. They are not 
 within its terms. See supra, pi, 189. " The principle of the 
 present olijection involves, in fact, the boundary which divides 
 the rights of the litigating parties to tlic exclusive knowledge or 
 possession of their evidence ; and it is, therefore, ujion the ap- 
 plication of this rule, tiiat tlie main controversy will always 
 arise."— Hare, 184.
 
 262 Tin It I) I'uoposiTioN. 
 
 wliicli his right to rcUef is founded, but to the purpose 
 of attack upon the defendant's case. 
 
 31-4. It seems also clear, that this right of a plaintifl' 
 to discovery in support of his oivn case is not abridged, 
 as to any particular discovery, by the consideration 
 that the matter of such particular discovery may be 
 evidence of the defendant's case in common with that 
 of the plaintiff (/'>). 
 
 315. Fiu'ther, — by the rules of equity, a defendant 
 is (in general) (c) bound to pledge his oath to the truth 
 of his defence. At law, it is otherwise; and it may, 
 perhaps, be thought, that the equitable rule which thus 
 requires the sanction of an oath to the truth of the 
 defence, is to be referred to the principle (the Second 
 proposition) Avhich entitles a plaintiff in equity to make 
 the defendant a witness against himself; in other 
 words, that the oath pledged to the truth of the de- 
 fence is in the nature of discovery. "WTiere a defence 
 consists in a simple denial of that which is contained 
 in the bill, and which is made the subject of interro- 
 gation, there, defence and examination or discovery 
 are identified with each other ; and the question here 
 adverted to docs not present itself; but, where the 
 defence consists of matter not alleged or referred to in 
 the bill — as by a pure affirmative plea — it is obvious 
 that the words examination or discovery are in spirit, 
 
 (h) Supra, pi. .'325. 
 
 (c) The exceptions are low. See Redes. Plead. '.), ](>.
 
 THIRD PROPOSITION. 263 
 
 as well as in terms, inapplicable. The true explan- 
 ation of the rule which requires the defence to be 
 upon oath, it is conceived, is this ; — The Court re- 
 quires the oath of the defendant, not for the better 
 information of the plaintiff, but in order to exclude 
 the possible case of a defendant avaihng himself of a 
 defence w^hich he may know to be unfounded in fact. 
 The analogies for this view of the subject are nume- 
 rous, and that it is the correct view, appears to follow 
 from several considerations: — 1, The oath is required 
 in the case of a pure affirmative plea to which discovery 
 is inappHcable : — 2. The extent to which the defendant 
 may think fit to disclose his defence, is unaffected by 
 the obligation he is under to put in that defence 
 upon oath ; and the defendant is the party who alone 
 would suffer, if his case upon the record were not con- 
 sistent with his evidence : — 3. The defendant has the 
 same right to the oath of tlie plaintiff, in support of his 
 case, as the plaiutifi' has to the oath of the defendant, 
 if, by cross bill, the plaintiff thinks fit to require it. 
 And, — lastly, if the right of the plaintifl:' to the de- 
 fendant's oath, as to the truth of his defence, were 
 founded upon an interest in the plaiutilf in the docu- 
 ments upon which the defence Avas founded, the plain- 
 tiff should be entitled to see those documents before 
 the hearing; Init this, except in special cases, he is not 
 entitled to do {d). The point is of no great practical 
 
 ((/) In refciriiii; to Ilardnian wEllames, tlic Lord Chancellor 
 said : " It iw liccausc the defendant chooses to make it ]iart of his
 
 }64 
 
 TIIIKU I'llOl'OSITlOX. 
 
 importance; for if the defence were not originally 
 upon oatli, the plaintiff might, by amending his bill, 
 and charging the defence to be untrue, make it so 
 far part of his case, as to entitle him to an answer 
 from the defendant, whether it was true or not. This 
 has been ah-eady shewn. The point however, has been 
 thouglit worthy of notice, as it might possibly be con- 
 sidered a qualification of the general observations 
 Avhicli follow; and the principle is by no means neutral 
 in its bearing upon some collateral questions. 
 
 346. Subject, then, to the qualification (if so to 
 be considered) which the four preceding paragraphs 
 introduce — a plaintiff is not entitled to exact from 
 the defendant any discovery exclusively relating to 
 Ms case, or of the evidence by means of which that 
 case is to be established. This, however, only means, 
 that the plaintiff has no original right to exact such 
 discovery. The defendant may, of course, give such 
 discovery gratis; and he may, by a neglect of the 
 settled rules of pleading, be held to have ii-revo- 
 cably conceded to the plaintiff" a right to discovery, 
 to which, a priori, he had no title (^). Considerations 
 Hke these, however, cannot affect the accui'acy of 
 
 answer, that the plaintiff is entitled to see it : 7iot because the plain- 
 tiffhas an interest in it.'''' 3 Myl. & Cr. 541). This is couclusive to 
 shew that a plaintiff is not considered as having an interest in 
 the defendant's case for the purposes of discovery. 
 
 {(f) See the observations on Hanlnum v. Ellamca, infra, pi. 386, 
 et seq. ; and sec Propositions IV. and V. infra.
 
 THIRD PROPOSITION. 265 
 
 the proposition, which denies to a plaintiff an original 
 right to a discovery of the defendant's evidence. A 
 Court of justice gives, but does not compel a party to 
 use, the means of defending himself. 
 
 347. If it were now, for the first time, to.be deter- 
 mined, whether, in the investigation of disputed facts, 
 truth would best be elicited by allowing each of the 
 contending parties to know, before the trial, in Avhat 
 manner, and by what evidence, his adversary proposed 
 to establish his own case ; arguments of some weight 
 might a priori be adduced in support of the affirmative 
 of this important question. Experience, hoAvever, has 
 shewn — or (at least) Courts of j ustice in this country 
 act upon the principle — that the possible mischiefs of 
 surprise at a trial are more than counterbalanced by the 
 danger of perjury (A), which must inevitably be incurred, 
 when either party is permitted, before a trial, to know 
 the precise e\T.dence against which he has to contend ; 
 and, accordingly, by the settled rules of Courts of justice 
 in this country (approved as well as acknowledged) each 
 party in a cause has thrown upon him the onus of sup- 
 porting his own case, and meeting that of his adversary, 
 without knowing ])cforehaiid by what evidence the case 
 
 (/<) Jones V. Purefoy, 1 Vern. 47 : Cann v. Cann, 1 P. Wil- 
 liams, 727: Whitdock v. Baker, 1.3 Ves. 512: Willau v, Willan, 
 19 Ves. 593: Dligh v. Benson, 7 Price, 205 ; S. C, infra, pi. 358 : 
 Cowsladc V. Conii.<h, 2 Ves, sen. 270 : Ilallw Maltby, G Priet', 240.
 
 2C)C) TIIIUD rROPOSITION. 
 
 of liis adversary is to be established, or bis own op- 
 posed (/) . 
 
 3 18. The l):ilance of the authorities which follow, ap- 
 pears satisfactorily to establish the Third proposition, in 
 its general bearings, if not to the full extent ; and the 
 attentive reader will (it is hoped) detect in those autho- 
 rities, a clear recognition of the distinction so often 
 referred to in former pages, between defence and exami- 
 nation as parts of the same answer; and of the principle 
 which — as to the former — denies a right to discovery, 
 and which — in the latter — leaves that right unques- 
 tioned. 
 
 349. In some comparatively early cases, indeed, the 
 point now contended for (the immunity of the defen- 
 dant's evidence) does not appear to have been recog- 
 nised to the full extent, although the special grounds 
 of departure from it, in the cases referred to, strongly 
 corroborate the general principle. Thus, in The Earl of 
 Suffolk v. Howard {k), (1723), the late Earl had suffered 
 recoveries of settled estates, and devised them to the 
 defendant for life, with remainders over, excluding the 
 plaintiff, upon whom the title descended, from the suc- 
 cession. The plaintiff brought a bill to discover the 
 defendant's title, setting forth the old entail under which 
 he was heir male, and praying, inter alia, that the writ- 
 ings might be produced. The defendant shewed by 
 
 (i) See The King v. Holland, 4 Term 11. G91. 
 (/(-) 2 P. Wilis. 177.
 
 THIRD PROPOSITION. 267 
 
 answer, that the late Earl had, by deed inrolled, made a 
 tenant to the praecipe, and had suffered a recovery to 
 the use of himself in fee, and that he had afterwards 
 made a settlement. Upon a motion for the production of 
 the deeds and writings, the Lord Chancellor adverted to 
 what he considered the injustice of excluding the heir of 
 the family honor, whereby he was consiliarius natus, from 
 all provision; and, added, — " Therefore more ought to be 
 done in this case for the plaintiff than in a common case. 
 Let the defendant bring before the Master all deeds and 
 writings, and let the plaintiff, the present Earl, either 
 by himself or agents, have the inspection of them, that if 
 anything has slipped the conveyance, or if the entail be not 
 well docked, he may have the benefit of it." And in the 
 case of Bettison v. Farringdon (/), (1735), where a simi- 
 lar point arose, the Lord Chancellor said, "Though both 
 parties are A-^olunteers, yet it is of some weight that the 
 honor of the family \s descended on the plaintiff; and 
 as at the hearing you admit the Court would do what has 
 been desired, so it is for the benefit of all parties that it 
 should be done before the hearing (m) ; for, if the deed 
 be a proper one to make a tenant to the praecipe, the 
 plaintiff will go no further, which will put an end to 
 tlie suit." In this latter case, in addition to tlie reasons 
 for the judgment ah-eady noticed, the Lord Chancellor 
 assigned another, whicli will be the subject of observa- 
 tion in a future page [n). The multiple as weU as special 
 
 (/) n J'. Wins. :W.]. (m) Sec :is to this infra, pi. -400.
 
 268 TIIIIU) PllOPOSlTION. 
 
 reasons (iudependently of tlieir anomalous cliaracter) 
 assigned for these two judgments, must alone be suffi- 
 cient to prevent the eases in which they were pro- 
 nounced from being authorities against the Third 
 Proposition. These cases have, moreover, been the 
 subject of much judicial comment. Lord Lough- 
 borough (in speaking of them) says: " In the two 
 particular cases cited (I do not quite go along with 
 the reasoning in either of them) the Coiu't did no 
 more than what according to the state of the case 
 was perfectly innocent, and led to no mischievous conse- 
 quence." And (after explaining wdiat the course at law 
 Avould be) his Lordship adds : " The Court, therefore, 
 in those cases gave him no discovery, that in the course 
 of his legal pursuit he would not come at ; and the only 
 advantage w^as to give him a little time to consider, 
 whether it would be worth his while to go on to prose- 
 cute his right at law^'(o). The special ground upon 
 wdiich Lord Loughborough thus explains the cases, is 
 (alone) clearly inconsistent with the current of authori- 
 ties hereafter cited, down to and including Hardman v. 
 Ellames{p). Lord Eldon, in speaking of The Earl of 
 Suffolk V. Hoivard, says {q) : " It is impossible to follow^ 
 that last case in some points. The defendant made the 
 deeds part of his answer; and upon that the Court 
 
 (o) 4 Ves. 71, in Shafteshmy v.Arrowsmit/i ; and see 6 Ves. 206. 
 
 (;>) See infra, pi. 3o0 to 371. 
 
 (y) <> Ves. 29(5, in Hylton v. Morgan.
 
 THIRD PROPOSITION. 269 
 
 seems to have ordered the production^ and upon prin- 
 ciple ; but they did that, I apprehend, upon the ground 
 that the answer offered it." The report of this case in 
 Peere Williams does not appear to warrant the expla- 
 nation here given; unless the reference to the deed in 
 the answer be equivalent to profert, which, according to 
 modern cases, it clearly is not. HoAvever that may be, 
 the explanation itself is sufficient to destroy the case as 
 an authority opposed to a general rule. The case of 
 Bettison v. Farringdon has also been the subject of Lord 
 Eldon's judicial notice, in Hylton v. Morgan (r), and in 
 The Princess of Wales v. The Earl of Liverpool {s) . 
 But, as Lord Eldon's observations have an important 
 bearing upon a particular question considered hereafter, 
 the reader (to avoid repetition) is referred to them in the 
 place where that question is discussed {t). It is deserv- 
 ing of remark, that in Peere Williams's reports two 
 other cases are found, which, in principle, strongly cor- 
 roborate the Third Proposition. The first of these is 
 Hodson V. The Earl of Warrington{u), (1729). In that 
 case, a question was made, at the hearing of the cause, 
 whether the plaintiff could compel the defendant to 
 produce a deed which he had proved by a witness, and 
 which deed it Avas said Avould prove the plaintift^'s case. 
 For the plaintiff it was said, that the Avitness, by refer- 
 ring to it in his deposition, had made it part thereof. For 
 
 (r) (JVes. 200. {t) Infra, pi. 401). 
 
 (.s) 1 Swans. 121. (»0 ;? P. Wms. .3.5.
 
 270 THIRD PROPOSITION. 
 
 the defendant it was said, tJiut it remained at his elec- 
 tion vjhether he ivould make use of it or not {x) ; that it 
 was so ruled in Cahnady v. Calmady, Avhere the Court 
 would not oblige the defendant to produce a deed 
 Avhich he had proved. The Lord Chancellor held this 
 to be the course of the Court, and would make no order 
 for the defendant's producing the deed. The other 
 case is Davers v. Davers[y), (1727), in which an appli- 
 cation similar to that in Hodsonv. The Earl of Warring- 
 ton was made. Tlie Master of the Rolls had made an 
 order for producing the instrument. This order was 
 carried by appeal to the Lord Chancellor, before whom 
 the counsel for the appellant argued, that the other 
 side had no right to see the strength of his case, or the 
 evidence of his title, before the hearing; and, if the order 
 were sustained, such motion would be made every day, 
 since it would be every one's curiosity to try to pick 
 holes in the deed by which he w^as disinherited. To 
 which the reporter adds, " which the Lord CJianceUor 
 thought very reasonable, and therefore discharged the 
 order "(r). 
 
 350. In Stroud v. Deacon {a), (J 747), the bill was to 
 have a discovery of the defendant's title, by setting forth 
 a settlement by which he claimed that his wife, upon 
 her marriage, settled the premises to her separate use, 
 
 {x) See infra, \A. 412. Atlyns v. IVright, 14 Ves. 211. 
 {y) 2 P. Wilis. 410. 
 
 {z) It is now matter of settled practice that a defendant is not 
 bound to produce his exhibits, even at the hearing of the cause, 
 (o) 1 Ves. sen. ,S7.
 
 THIRD PROPOSITION. 271 
 
 and that he was her representative; the bill alleging, 
 that if that settlement was produced, it would appear 
 that she was only tenant for life. To this bill the de- 
 fendant demurred; because the plaintiff did not claim 
 under that settlement. The Lord Chancellor said: 
 "As the plaintiff hath made a title in contradiction to 
 yours, he hath no right generally to look into your titles; 
 but the bill charging, that by producing this deed it 
 will appear that her title was only for life, you must 
 give some answer to that." 
 
 351. In Budenx. Dore (Z»), (1752), the bill stated a 
 title, and that certain old terms were outstanding. 
 The defendant answered the bill, and set up a title in- 
 consistent with the plaintiff's, but did not set out what 
 deeds and writings he (the defendant) had relating 
 to his own title. The plaintiff excepted to the ansiver, 
 and the blaster allowed the exception. The Lord 
 Chancellor allowed an exception to the report. His 
 Lordship said: " You cannot come by a fishing bill 
 in this Court, and pray a discovery of the deeds and 
 writings of the defendant's title. If, indeed, there was 
 any charge in the bill, general or special, that the de- 
 fendant had in his power deeds and writings of the 
 plaintiff's title, an answer must be given thereto.^' 
 
 352. In Burton v. Neville (c), (1790), the plaintiff 
 claimed under a settlement; the defendant under re- 
 coveries. In his ansiver, the defendant admitted that 
 
 (/>) 2 Ves. Sen. 444. (c) 2 Cox, 242.
 
 272 Tiinm proposition. 
 
 he had the deeds in his possession, but did not submit 
 to produce them. The Lord Chancellor, upon a motion 
 for the production of the deeds, refused it. After- 
 wards, the motion was renewed, and the Lord Chan- 
 cellor again refused it, saying, that he thought the 
 principle was, that the plaintiffs could call for pro- 
 duction of those papers only in which they had shewn 
 that they had a common interest with the defendant, and 
 that the Courts had never gone beyond that{d). 
 
 353. In Ivy V. Kekewick [e), (1795), the bill stated, 
 that the testator had, after the execution of his will, 
 contracted for the purchase of an estate, which pur- 
 chase was completed by his executor Kekewick, who con- 
 veyed to his son; and that they were, or one of them 
 was, in possession; that the plaintift' was heir ex parte 
 matemd, and that there was no heir ex parte patemd. 
 The defendant Kekewick, by his atiswer, claimed as 
 heir ex parte patemd. The plaintiff, by the amended 
 bill, prayed that the defendant might set forth in Avhat 
 manner he was heir ex parte patemd, and all the par- 
 ticulars of the pedigree, and the times and places or 
 particulars of the births, baptisms, marriages, deaths, 
 or burials, of all the persons who should be therein 
 named. To this part of the amended bill, the defend- 
 ant demurred. The Lord Chancellor said : " This is a 
 
 (fZ) This case and Shaftesbury v. Arrowsmith arc decidedly 
 standard authorities. 
 {p) 2Vcs. jun. 679.
 
 THIRD PROPOSITION. 273 
 
 fishing bill, to know how a man makes out liis title as 
 heir. He is to make it out; but he has no business to 
 tell the plaintiff how lie is to make it out. Allow the de- 
 murrer.'' 
 
 354. In Shaftesbury v. Arrowsmith{f), (1798), the 
 general principle now contended for was recognised 
 with great clearness, and upon full consideration. And 
 in Aston v. Lord Exeter {jg), (1801), and Hylton v. 
 Morgan{h), (1801), the same general principle was as 
 clearly recognised by Lord Eldon. 
 
 355. The observations of Lord Eldon upon the case 
 of Worsley v. Watson (1800), stated in a future page(e), 
 are also important as an authority on the present point. 
 
 356. In The Princess of Wales v. The Earl of Liver- 
 pool {k), (1818), the Lord Chancellor said—'' In Betti- 
 son V. Farringdon [l] to a bill for relief, the defence was, 
 that a recovery had been suffered, which barred the 
 plaintiff's right, and the answer referred to a lease and 
 release making a tenant to the praecipe, and leading 
 the uses of the recovery; on motion. Lord Talbot 
 ordered the production of the deed, merely on the 
 ground of that reference in the answer; assigning as his 
 reason, that, as it must be produced at the hearing, 
 it ought to be produced on motion. Subsequent cases 
 appear to question thai doctrine on both its points. In 
 
 (/) 4 Ves. m. {I) 1 Swans. 121. 
 
 (g) 6 Ves. 28B. ( / ) ;3 P. Wuis. 3G3. 
 
 (A) 6 Ves. 29.3. 
 
 (i) Infra, pi. 410; S. C. cited 6 Ves. 28iJ. 
 T
 
 274 Tiniin troposition. 
 
 Lady Shaftesbury \. Arron'>smith{g), jincl in Burton v. 
 Neville {h), the Court held, that a plaintiff has a right 
 to call for the instruments creating the estate-tail under 
 which he claims, but expressed great doubt whether 
 he can call for the instrument on ivhich the defendant 
 founds his title; and later decisions seem to have esta- 
 blished that it is not the mere reference that makes the 
 documents part of the answer for the purpose of pro- 
 ductionif); though by amending the bill and address- 
 ing further questions, the plaintiff may, perhaps, com- 
 pel the defendant to make those documents part of 
 the answer for that purpose. 
 
 357. In Micklethwaite v. Moore [k), (1817), the bill 
 was filed to set aside a partition, one ground being 
 gross inequality of value; and, to prove this, the plain- 
 tiff set forth in a schedide certain valuations of the pro- 
 perty recently made, but Avithout setting forth the 
 particulars. A motion was made by the defendant that 
 the plaintiff might produce the entire valuations. For 
 the plaintiff two objections were taken: — 1. That the 
 orders sought for coidd not be obtained upon motion 
 by a defendant ; and 2. That, although a plaintiff had 
 a right to an inspection of documents admitted to be in 
 
 (<7) 4 Ves. 66. 
 
 (h) 2 Cox, 242, cited 4 Ves. 67. 
 
 (?■) It is material to observe, that, in the cases referred to, the 
 answer admitted the documents to be in the defendant's posses- 
 sion; so that the judgment turned upon the nature of the do- 
 cuments alone. 
 
 (k) 3 Mer. 292.
 
 THIRD PROPOSITION. 275 
 
 the defendant's possession, upon which his own title 
 rested, he could not compel the production of those 
 which related only to the defendant's title, which was 
 independent of his own. The Lord Chancellor refused 
 the motion with costs, saying — " But this case goes 
 much further than any I have ever yet heard of; and 
 even if a cross bill were filed (which is the usual course) 
 I should not here be able to compel a production of 
 the documents.'' It may, perhaps, be doubtful whe- 
 ther the latter observation was grounded upon the 
 second point made by the plaintiif 's counsel, or upon 
 the circumstance that the bill did not distinctly admit 
 the possession by the plaintiff of the documents in 
 question, but most probably upon the former. 
 
 358. In BHyh v. Benson (/), (1819), the defendant 
 moved for the production of a book, admitted by the 
 defendant to be under his control. The Lord Chief 
 Baron said — " This book is part of the defendant's evi- 
 dence, and the rule is clear that you have no right to 
 call upon youi" opponent in this way to expose his case 
 to his adversary. It would be opening a wide door to 
 perjury." 
 
 359. In Glegg v. Legh (m), (1819), the Vice-Chan- 
 cellor expressed a clear opinion, that a defendant is not 
 bound to discover his title, or to set forth his title deeds 
 or the contents of them. 
 
 360. In Tyler v. Drayton {n), (1819), the bill was 
 
 (/) 7 Price, 205. (m) 4 Madd. 193. 
 
 (?0 2 Sim. & St. 309. 
 
 T 2
 
 27G THIRD I'UOrOSITION. 
 
 filed to set aside a conveyance for frand. The defend- 
 ant (as appears by the register's book) (o) set ont his 
 purchase deed (being the conveyance in question) fully, 
 and craved leave to refer to it when produced. He 
 further admitted the possession of the deed, but ob- 
 jected to produce it. The Vice-Chancellor (Sir J. 
 Leach) said, that, — where a defendant referred to his 
 schedule, as containing all deeds, papers, &c., in his 
 custody or power, relating to the matters in question, — 
 there, the plaintiff was entitled to the inspection of all 
 ^7^ such deeds, papers, &c., as of course; unless it appeared, 
 by the description of any particular instrument in the 
 schedule, or by affidavit, that it was evidence not of the 
 title of the plaintiff, but of the defendant, or that the 
 plaintiff had otherwise no interest in its production; 
 and he refused to order the production of the deed in 
 question. 
 
 361. In Sampson v. Swettenham {p), (1820), a motion 
 was made for the production of a deed referred to in 
 the defendant's answer upon which he founded his title. 
 Upon examining the register's book, it appears, that 
 the answer in this case contained a special reference to 
 the document, " as by the said indenture when pro- 
 duced will appear" {(j) . The Vice-Chancellor refused 
 the motion, saying — " The plaintiff is entitled to the 
 production of a deed which sustains his own title, 
 
 (o) See 2 Myl. & K.754, n. (/>)• (p) 5 ^add. IG. 
 
 (y) Sec 2 Myl. cS: K. 754, ii. {/>).
 
 THIRD PROPOSITION. 277 
 
 but he has no right to the production of a deed which is 
 not connected with his title, and which gives title to the 
 defendant. 
 
 363. In Firkins v. Lowe [r], (1824), a xicAX filed his 
 bill against an occupier for tithes. The occupier in- 
 sisted upon a modus of \7s. for the tithes of two farms, 
 and filed a cross bill against the vicar, in which he 
 charged, that the vicar had in his possession books, 
 papers, &c., from which the uniform payment of the 17*. 
 would appear. The defendant ansivered tin's, bill. Upon 
 a motion for the production of the books, papers, &c., 
 scheduled to the answer, the Court ordered an inspec- 
 tion of those entries only which related to the payment 
 of the 17*. ; the answer admitting that in some of the 
 books there were such entries. The Court laid down 
 the rule, that a plaintitf was entitled to a production 
 of such documents as were material to his own case. 
 Hullock, Baron, said : " The question is, whether a 
 party to a suit be compellable to aftbrd an inspection 
 of his own private books, to enable his adversary to find 
 out evidence against him. I always understood that he 
 was not." 
 
 3G3. In Wilson v. Forster {s), (1825), the bill was 
 filed to recover payment of legacies, alleged by the 
 bill to be charged upon certain lands of which the 
 testator was seised in fee, and which had descended 
 
 (r) 13 Price, 193; 1 M'Cleland, 73 ; Hare, 194 et seq. 
 (.v) il'Cleland & Y. 274.
 
 278 
 
 THIRD PROPOSITION. 
 
 iipoii the defendant, subject to the charge. The de- 
 fendant answered the bill, and insisted that the tes- 
 tator was tenant in tail only, and that he (the defend- 
 ant) was seised as heir in tail. Upon a motion to 
 produce the deed alleged by the answer to create the 
 entail, the Chief Baron said : " The difficulty in the 
 way of the application is the rule of the Court. There 
 is reason enough, but is there any authority for the 
 motion ? The alleged hardship is one which happens 
 m every case where a party desires to see deeds which 
 constitute the title of the person vjho is called upon to 
 produce them ; he must take the effect of them on the oath 
 of the individual who holds them." 
 
 364. In Compton v. Earl Grey [t), (1826), upon a 
 demurrer to discovery, the Lord Chief Baron (Sii* Wil- 
 liam Alexander) observed : " It has been ingeniously 
 said, that the plaintiff has an interest in the deeds, 
 but the same observation might apply to almost every 
 case. The effect of the argument is this : — the plaintiff' 
 says, if you ivill produce your deeds it ivill appear that 
 you have no title, and I of necessity must have." The 
 demurrer was allowed. 
 
 365. In Tomlinson v. Lymer [u), (1829), the plaintiff 
 sued for tithes of hay, milk, grass, and agistment. 
 The defendant answered the bill. In answer to a 
 charge in the bill, the defendants admitted they had 
 in their possession several receipts for moduses, and 
 
 (0 1 Y. <Sc J. 154. (»)2 Sim. 480.
 
 THIRD PKOPOSITION. 279 
 
 compositions, given to them by the plaintiff and his 
 predecessors ; but insisted they Avere not bound to 
 produce tliem, inasmuch as some of the receipts were 
 given for compositions of tithes of corn, (which were 
 not claimed by the bill), and the others ivere evidence 
 for the defendant and not for the plaintiff. Upon a 
 motion by the plaintiff for the production of the 
 receipts, it was argued, that the plaintiff was entitled 
 to have them produced, as it might appear from an 
 inspection of them that they varied in amount, or did 
 not include all the articles stated to be covered by 
 them. On the other side, the above-mentioned cases 
 of Bligh V, Benson, and Firkins v. Lowe, were cited. 
 The Yice-Chancellor said, that, as to those receipts 
 which were given for the tithes of corn, the plaintiff 
 had no right to see them, as they related to matters 
 not in dispute ; and, as to those that did relate to the 
 matters in dispute, he would make no order upon the 
 authority of the cases referred to. 
 
 3G6. Wilson v. Foster (w), (1831), was a bill by lega- 
 tees, whose legacies were charged on real estate. The 
 defendant was the heir-at-law, and heir in tail, of the 
 testator ; and also the heir-at-law, and heir in tail, and 
 de\dsce, of the original devisee in trust of the testator ; 
 and which original devisee was, in his lifetime, heir-at- 
 law, and heir in tail, of the testator. The bill sug- 
 gested (which was the fact) that the original devisee 
 
 {ir) Younso, '2nO.
 
 280 THIRD PllOPOSITION. 
 
 in trust, and also the defendant in the suit, insisted 
 that the testator was tenant in tail only of the greater 
 part of the estates of which he died seised ; and that 
 all the estates of which he was seised in fee had 
 already been sold. The bill then charged, that the 
 only estates of which the testator was tenant in tail 
 were comprised in a settlement dated in the year 
 1698 ; and that he was seised in fee simple of all the 
 other estates. The bill then charged, that the defend- 
 ant had in his possession the title deeds and writings 
 relating to the said estates, and, particularly, the 
 settlement of 1G98; and that, if the defendant should 
 persist in the allegation that the testator M^as tenant 
 in tail of the said hereditaments, he ought to set forth 
 the date &c. of the deed or instrument by which such 
 intail was created; and ought also to put into a box 
 or bundle all the title deeds, evidences, and Avritings, 
 relating to the said estate, in his possession or power, 
 and produce and leave the same in the hands of his 
 clerk in Court, for the usual purposes. To the chai'ges 
 above stated the defendant demurred; and answered 
 the remainder of the bill, denying, by his answer, that 
 the testator was tenant in tail of the estates men- 
 tioned in the bill, or that he was not seised in fee 
 simple thereof, or of any part thereof. The demurrer 
 was allowed. 
 
 367. In Bolton v. The Corporation of Liverpool {x), ^ 
 
 {x) 1 Myl. & K. 88 ; S. C. ,3 Siin. 467. The judgment of tlie 
 Vice-Chancellor ill this case is jiarticularly deserving of attention.
 
 THIRD PROPOSITION. 281 
 
 (1833), the Lord Chancellor^ upon a motion for a pro- 
 duction of documents scheduled to the answer, said : 
 " I take the principle to be this : a party has a right to 
 the production of deeds sustaining his own title affirm- 
 atively ; but not of those which are not immediately 
 connected with the suppoi't of his own title, and ivhich 
 form part of his adversary's. He cannot call for those 
 which, instead of supporting his title, defeat it by en- 
 titling his adversary. Those under which both claim 
 he may have, or those under which he alone claims. 
 Thus, an heir-at-laAv cannot, in that character, call for 
 the general inspection of deeds in the possession of a 
 devisee. In Lady Shaftesbury v. Arrowsmith [y), Lord 
 Loughborough said, " he could not find any spark of 
 equity for such an appHcation as that ;" admitting that 
 the heir in tail (and so he decided) had a right to 
 inspect settlements creating estates in tail general; 
 the party stating himself to be the heir of the body. 
 The plaintiff here does not claim any tiling positively 
 or affirmatively under the documents in question. He 
 only defends himself against the claims of the corpora- 
 tion, and suggests that the do( aments e\idencing their 
 title may aid his defence. How? By proving his title, 
 he says. But, how can these documents prove his 
 title ? only by disclosing some defect in that of the cor- 
 
 The ground upon wliifli lie rests his judgment, supports the 
 Tliird Proposition in a very strikiiig manner. He considers the 
 onus wholly on the Corporation, and the i)laintift''s case ah prima 
 facie requiring no proof, and, therefore, no discovery. 
 {>/) 4 Ves. (JG.
 
 282 THIRD PROPOSITION. 
 
 poration. The description of the documents is, that 
 tliey rebut or negative the phiintiff's title : they are 
 the corporation's title, and not his, and they are on- 
 ly his negatively, by failing to prove that of the cor- 
 poration. He rests on the right which he has, in 
 common with all mankind, to be exempt from dues 
 and customs; and he says, ' Prove me liable if you can.' 
 The corporation have certain documents which, they 
 say, prove this liabihty. He cannot call for these docu- 
 ments, merely because they may, upon inspection, be 
 found not to prove his liability, and so to help him, and 
 hurt his adversary, whose title they are." In the 
 answer in this cause, the corporation expressly craved 
 leave to refer to the documents in question for their 
 greater certainty (^) . The motion was refused. 
 
 368. In Tooth v. The Dean and Chapter of Canter' 
 bury [a], (1829), a bill was filed by the lessees of the 
 Dean and Chapter, who were rectors of the parish of 
 Cranbrook, against certain occupiers of land within 
 the parish, for payment of tithe of hops. The occu- 
 piers insisted, that the rectors were entitled only to 
 the tithes of corn and grass ; and filed a cross bill 
 against the lessees and the Dean and Chapter, sug- 
 gesting that the defendants had in their possession 
 grants, and other documents, from which it would ap- 
 pear that the right of the rectors was confined to tithes 
 
 (c) Upon inspection of the pleadings, see 2Myl.& Kee. 754, 
 n. Kb). 
 
 (a) o Sim. 4i».
 
 THIRD PROPOSITION. 283 
 
 of corn and grass; and prayed a discovery. To this 
 bill the Dean and Chapter demurred, and the demur- 
 rer was allowed, principally upon the ground that tlie 
 Dean and Chapter, not being parties in the original 
 suit, Avere mere witnesses. In the course of the judg- 
 ment, however, the Vice-Chancellor made the following 
 observations : " It has been said, by the counsel for 
 the occupiers, that this case falls within the principle 
 of the exception to the rule, that a mere witness can- 
 not be made a party to a suit. But, before we are to 
 consider the benefit which the parties who filed this 
 bill might have by obtaining the discovery which they 
 ask by it, against the Dean and Chapter, we ought to 
 consider the extreme inconvenience and mischief that 
 would arise, if merely because a tenant in fee makes a 
 lease, he is, when a dispute arises between his lessees 
 and others, to be compelled to produce his title deeds ; 
 not at the request of the lessees, but at the request of 
 other persons; not for the purpose of supporting his title, 
 but for the purpose of destroying it ; for that is, in effect, 
 what is asked by this bill ; and it appears to me that 
 this is not in the least like any one of those excepted 
 cases to which Lord Eldon alludes in Fenton v. Hughes; 
 but, on the contrary, that this is rather to be assi- 
 milated to the case in which the lessor or landlord is 
 to be protected from any discovery of his own title. 
 And, inasmuch as no instance is produced of such a bill 
 having been filed before, I will not make a precedent 
 so extremely dangerous as overruling this demurrer
 
 .'iHl. Tin HI) PROPOSITION. 
 
 Avoiild bcj therefore the demurrer must be allowed, 
 with costs in the usual way." 
 
 369. In Belhvood v. Wetherell {b), MS. (1835), 
 Wetherell filed his bill, as lay impropriator, against 
 Bellwood, for an aecount and payment of the single 
 value of tithes. Bellwood filed his cross bill for 
 a discover}^, and, amongst other things, prayed a 
 discovery of matters relating exclusively to the title 
 of AVetherelh AVetherell, by his answer, insisted he 
 was not bound to give such discovery; and, upon 
 argument of exceptions to the answer, the Lord 
 Chief Baron (Lord Abinger) overruled the excep- 
 tions, u[)on the express ground that a plaintiff has 
 no right to inquire into the evidences of the defend- 
 ant's case. 
 
 370. In the case of Pilkington v. Himsworth (c), the 
 Lord Chief Baron laid down some general propo- 
 sitions, which are not (in the full sense of the expres- 
 sions attributed to his Lordship), reconcilable with his 
 own opinions expressed in other cases, or with the 
 cases above referred to. 
 
 371. The case of Knight v. The Marquis of Water- 
 ford [d), does not, when examined, conflict with the 
 preceding cases. The oi'der for the production of the 
 
 (i) 111 the Exchequer, before Lord Al)inger, C. B. ; S. C.l 
 Younf,'c& Coll. 211. 
 
 (r) I Younge & Coll. 612. 
 ('/) -1 Yoiiiige & Coll. 22.
 
 THIRD rilOPOSlTIOX. 285 
 
 documents was made, in that case, upon the principle 
 that they related to the plaintiff's title. This appears 
 from the last passage in the judgment. At the same 
 time, it must be admitted, that the Lord Chief Baron, 
 in the application of an approved principle, went to 
 the extreme point which previous authority could be 
 supposed to sanction. 
 
 372. Lord Redesdale, hoAvever, in speaking of the 
 purposes for which discovery is given, says — the plain- 
 tiff may require " a discovery of the case on which the 
 defendant relics, and of the manner in ivhich he intends 
 to support it [e)J" The first of these propositions — 
 that a plaintiff is entitled to a discovery of the case 
 on which the defendant relies, that is, that the plain- 
 tiff* is entitled to knoiv what the case is — admits of no 
 doubt. The common rules of pleading make it neces- 
 sary that the defendant should so state his case, that 
 the plaintiff* may know with certainty what case he 
 has to meet; and — in the strict observance of those 
 rules — a plaintiff is secure against surprise. It is 
 at the peril of the defendant, if his pleadings are de- 
 fective in this respect (/) ; but this is quite independent 
 
 (e) Redes. Plead. 9. 
 
 (/) Sid7iej/ V. Sidney, 3 P. Wins. 269 : Watkins v. Watkins, 2 
 Atk. 9(5 : Hall v. MaW>v, Price, 240 : Clark v. Turton, 11 Ves. 
 240 : Gordon v. Gordon, 8 Swans. 471, 474 : Birce v. Blctrhlry, 
 G Madd. 17 : Fitzgerald v. Flaherty, Blacker v.Phcpoe, Mulhol- 
 land V. Ilendrick, 1 Molloy, 347, 354, 359 : Hardman v. Ellamcs, 
 5 Sim. 040; S. C. on appeal, 2 Myl. .S: K. 732.
 
 28G THIRD PROPOSITION. 
 
 of the law of discovery. Tlie secoiul part of the above 
 quotation from Lord Eedesdale, namely, that the 
 plaintiff has a right to know in what manner the de- 
 fendant intends to support his case — must (it is con- 
 ceived) be an inaccuracy. It is decidedly opposed to 
 all the authorities. It cannot, indeed, be well ima- 
 gined, that the noble and learned writer intended to 
 lay down so broad a proposition as his words express, 
 for, in a later part of the same work, he expressly 
 says (in conformity with the Third Proposition) : " In 
 general, 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 
 evidence of the title under which he claims {g)." This 
 is all which (in effect) the writer contends for. The 
 case of Baker v. Booker (A), (1819), may also be 
 referred to in this place. 
 
 373. Of these cases it may be observed, that the 
 prinlege of the defendant is not confined to documents 
 of any particular kind. If they are exclusively the 
 defendant's they are privileged (/), and the privilege, 
 it will be seen, extends as well to the instrument 
 
 (ff) Redes. Plead. 100. 
 
 (A) 6 Price, .379. 
 
 {i) See Hare, 194, 195. But Mr. Hare, in another place 
 seems to think a distinction may, for some purposes, be taken 
 hetweena deed or deeds under whicli a defendant claims (»' justi- 
 fies, and documents merely corroborative of such claim or justifi- 
 cation. Hare, 218.
 
 Til nil) PROPOSITION, 287 
 
 under which the defendant claims or justifies, as to do- 
 cuments merely corroborative of such chiim or justifi- 
 cation. 
 
 374. The case of a mortgagee was referred to in a 
 former page {k). And it was observed respecting it, 
 that, before the day for payment of the mortgage 
 money, the mortgage deed was the common property 
 of mortgagor and mortgagee. It may, perhaps, be 
 said, that the position of the parties is not altered 
 after the day of payment. For that, although the 
 terms of the mortgage-deed no longer give a right to 
 redeem, the equitable right to do so results from the 
 actual contract found in the deed. The answer to 
 this reasoning might be, that, as the right to redeem is 
 a creation of Courts of equity opposed to the legal 
 rights of the parties, a Court of equity may have 
 modified the right by precluding the mortgagor from 
 a right to inspect the mortgage deed, until, by its 
 decree, embodying an undertaking on the part of the 
 mortgagor to pay the mortgage money, it shall have pre- 
 cluded him from the power of taking advantage of any 
 possible defect in the mortgage deed. The author has a 
 strong impression that he has seen it laid down by 
 authority, that a mortgagee, submitting, by his answer, 
 to be redeemed, cannot be compelled, before the hear- 
 
 {k) Supra, pi. 325. 
 
 (/) See 2 Younge & Coll. 202, in Neate v. L,atimer.
 
 288 THIRD PROPOSITION. 
 
 iug of tlic cause, to produce his mortgage deed (/) . 
 Where the answer contains no such submission, the 
 ordinary rules of the Court must be applied. 
 
 375. The preceding cases must establish, if authority- 
 can establish, the original privilege of a defendant to 
 withhold discovery appertaining to his own case alone; 
 and the absence of all original right in a plaintiff to 
 call for such discovery. And from those cases it Avill 
 be seen that the privilege of the defendant is the same, 
 whether he is defendant in an original suit in which 
 relief is sought, or is plaintiff in that suit and is 
 made defendant to a cross bill, for the purpose of 
 discovery {m). 
 
 37G. Notwithstanding these decisions, however, lan- 
 guage has been attributed to the Vice-Chancellor, in a 
 recent case, which, unless it can be referred to some 
 special ground, necessarily overrules the Third Propo- 
 sition in its appUcation to cases in which the defend- 
 ant in the bill of discovery is plaintiff in the suit in 
 which relief is sought. 
 
 (m) See Glegg v. Lcgh, Bolton v. The Corporation of Liverpool, 
 Tooth V. The Dean and Chapter of Canterhurj/y and Bellwood v. 
 Wetherell, cited supra, pi. .359, 367, 368, 369 : see also Bolton 
 V. The Corporation of Liverpool, 3 Sim. 486 : Parker v. Legh, G 
 Madd. 115: Duke of Bedford v. Macnamara, 1 Price, 208: Storey 
 V. Lord George Lennox, 1 M. & Craig. 525. The observations of 
 the Lord Chancellor in Latimer v. Neate, 11 Bligh, 149, clearly 
 recognise the same priiaciple.
 
 THIRD PROPOSITION. 289 
 
 377. The case referred to is Lowndes v. Davies [n). ^ /^^ /:i. /^n 
 In that case, Davies and his wife issued a writ of right 
 against Lowndes to recover estates in his possession. 
 On the same day, Davies and his wife filed their 
 bill against Lowndes, seeking to recover the same 
 estates, or that the right might be tried at law. 
 The plaintiffs claimed the estates in question in right 
 of Mrs. Davies, as the heir of a person named Selby. 
 By a decree in a former suit, to which neither Davies 
 nor his wife was party, Lowndes had been declared 
 entitled to estates, as devisee of Selby. Upon the 
 institution of the foregoing proceedings by Davies 
 and his wife, Lowndes filed his cross bill against 
 them for discovery. Part of the discovery thus sought 
 went directly to the title of the plaintiffs in the action 
 and original ])ill (defendants in the cross bill), who 
 thereupon demurred to so much of the discovery as 
 was relevant only to their own title. The defend- 
 ants' counsel, in support of the demurrer, argued 
 that the plaintiff (Lowndes) was not entitled to the 
 discovery, because it " related to the defendants' 
 pedigree, and other particulars of their case, which 
 they must prove at the trial of the writ of right." 
 The Vice-Chancellor said : " But, having regard to the 
 case which is stated, I think that it was very judicious 
 in Mr. Lowndes to file this bill, because it enables him 
 to extort, from ^Mr. and Mrs. Davies, an answer to 
 
 (m) Sim. 4<38. 
 U
 
 290 TrilKl) I'KOPOSITION. 
 
 every fact ivhich can be brovykt forward hij them to 
 sustain their case at law, it being admitted that the 
 case by which tliey are to succeed at law is the iden- 
 tical case l)y which they are to succeed in equity. 
 And if a person will file a bill, he is, of course, exposed 
 to the ordeal which the defendant may subject him to by 
 filing a cross bill ; and he is then bound to set forth an 
 answer to all the matter which concerns his title; for 
 the truth of the matter which concerns his title is ma- 
 terial to the defendants' defence in equity." 
 
 378. Now if the rule of the Court be, that each 
 party is to stand upon the strength of his own case, 
 and is not entitled before the hearing to pry into 
 that of his opponent, this case is directly opposed to 
 those cited above; for the discovery sought by the 
 cross bill was in no way necessary to the defence of 
 the defendant in the action and in the original bill, 
 (plaintiff in the cross bill), except so far as it might 
 enable him to disprove the case of his adversary. The 
 only special ground to which the decision can be re- 
 ferred, and to which the language of the Vice-Chan- 
 cellor appears to point, is this : — that a plaintiff seeking 
 relief in some original proceeding, if made defendant 
 in a cross bill in respect of that proceeding, is subject 
 to a more inquisitorial jurisdiction than a defendant 
 against whom relief is sought ; or, in other words, (for 
 to that the argument must come), that a party, by 
 seeking to enforce his rights, submits by so doing 
 to have his title inquired into in a manner more rigid 
 than that which is sanctioned by Coui'ts of equity
 
 THIRD PKOPOSITIOX. 291 
 
 in the ordinary exercise of their jurisdiction. But 
 can such a principle be sustained? The rule which 
 privdleges the case of a party from the scrutiny of his 
 opponent, is a rule of pubHc poUcy (a) ; and the case 
 of a defendant in a cross suit is as clearly within the 
 scope of tliis rule as the case of a defendant in an 
 original suit. The plaintiff, who makes an unjust 
 claim, is amenable to no greater censure than a de- 
 fendant who makes an unjust defence; and if the case 
 of the plaintiff in the original proceeding be well found- 
 ed, it is not equal justice which subjects his case to the 
 inquisition of the defendant in a manner and to an 
 extent which the case of the original defendant is not 
 subjected to, and which, upon the principles of tlie 
 Court, is unfavourable to a fair trial. Upon the au- 
 thority of the cases referred to in a former page (6), 
 the author submits that the party who seeks relief in 
 an original proceeding is, when he himself is made 
 defendant in a cross suit, entitled to precisely the same 
 privileges as the defendant in such original suit, with 
 respect to the ev-idcnces of his own title only. 
 
 379. The case of Metcalfe v. Hervey [c), and cases of 
 that class, do not conflict with this view of the sub- 
 ject. In Metcalfe v. Hervey, an ejectment was brought 
 against a party who claimed no interest in the property 
 which the plaintiff sought to recover. The defendant 
 in ejectment filed his bill against the plaintiff, praying 
 
 (a) Supra, pi. .S47. {h) Supra i>l. 37->, p. 288, u. 
 
 (r) 1 Vi's. Sou. 2+9. 
 
 u 2
 
 292 Tin 111) I'KoposiTiox. 
 
 that he mi^ht interplead with some other supposed 
 claimant to the estate; and from the judgment in 
 the cause it -would appear, that the bill inquired into 
 the title under which the plaintiff in the ejectment 
 claimed. The defendant (plnintiff in ejectment) put 
 in a general demurrer, which Lord llardwicke appears 
 to have considered good, so far as the hill purported to 
 he a bill of interpleader, but overruled it upon the 
 ground expressed in the following passage of his judg- 
 ment : — " The question comes to this — whether any 
 person in possession of an estate, as tenant, or otlieiivuse, 
 may not bring a bill to discover the title of a person 
 bringing an ejectment against him to have it set ont, 
 and see whether that title be not in some other. I am 
 of opinion he may, to enable him to make a defence 
 in ejectment, even considering him a wrong-doer 
 against every body." 
 
 380. The facts of the ease oi Metcalfe v. Hervey, and 
 the nature of the charges in the bill, are not given in 
 the reports. The judgment decides only that some 
 ansAver was necessary with reference to those facts and 
 charges appearing on the face of the bill. It does not 
 decide that the defendant setting up an adverse title in 
 himself by ansvjer, would have been bound to disclose 
 one particle of the evidences of that title. It is con- 
 sistent with the supposition that the bill might have 
 contained charges which made it necessary for the de- 
 fendant to give some answer as to the nature, as dis- 
 tinguished from the evidence, of his title. 
 
 381. If Metcalfe v. Hervey does not admit of this
 
 THIRD PROPOSITION. 293 
 
 explaiiatioii, it must, it is submitted, be considered us 
 overruled by more modern cases. In Bowman v. Ly- 
 gon{d), Cliief Baron Eyre strongly expressed his disap- 
 probation of the case of Metcalfe v. Hervey; and in Bell- 
 ivood V. Wetherell{e), Lord Abinger expressly says, that 
 the defendant in equity (plaintiff at law) is in cases of 
 that class to set out, not the evidence, but the nature 
 of his title, (c. g. whether he claims as heir at law or 
 as devisee, or whether he alleges any imperfection in 
 the defendant's title deeds) ; and his Lordship adds, 
 that in cases of recent possession there is no ground 
 to compel even that discovery. 
 
 382. The case of Metcalfe v. Hervey, and the cases 
 of Glegy v. Legh (/), Parker v. Legh {g), The Duke of Bed- 
 ford V. Macnamara[h), and Bowman v. Lygon, Bell- 
 wood v. Wether ell, just referred to, and Whyman v. 
 Legh(i), are not, it will be observed, cases in which 
 the plaintiff and defendant claimed adversely, but in 
 which the defendant at law was quasi a stakeholder [j) . 
 The opinion of Lord Hardwicke, in the case of adverse 
 claims, is clearly expressed in Stroud v. Deacon and in 
 Buden v. Dore{k), and the rule of the Court seems to 
 be clearly established by the cases cited in a former 
 page{/). 
 
 383. The observation will not, it is hoped, be deemed 
 
 (,/) 1 AiLstr. J. (//) 1 Price, 208. 
 
 (e) 1 Younge & Coll. 2J». (/) (5 Price, 8«. 
 
 (/) 4 Madd. 1!».1. (./) ,Sce Hare, 204, ct seq. 
 
 (g) 4 Madd. 2(M{. (X) Supra, pi. 350, 351. 
 
 (/) Supra, pi. .'?7"', I). 288, n.
 
 291- THIRD PROPOSITION. 
 
 disrespectful, but it would appear that the Vice-Chan- 
 cellor lias at all times leaned more strongly than has 
 been thought safe by other Judges to the proposition, 
 that a party who comes into equity submits himself 
 altogether to the discretion of the Court. Upon that 
 principle exclusively his Honor decided the case of 
 Agabey v. Hartwell [m), and Brown v. Newall, both 
 Avhich cases were afterwards reversed. The true scope 
 and bearing of the rule, that " he who would have 
 equity must do equity/' cannot, it is conceived, be 
 carried beyond this, that a party, by fihng his bill, 
 submits to do every thing which may be necessary on 
 his part to give effect to the rights of his opponent in 
 the subject-matter of the suit. He submits to give his 
 opponent all his existing rights; but he confers no new 
 rights upon him by seeking to estabhsh his own(w). 
 
 384. The cases which have been cited, excluding 
 Lowndes v. Davies, recognise and support the distinc- 
 tion between defence and examination, as constituent 
 parts of an answer, and prove, with the aid of the first 
 proposition, that each of these parts is — in matters of 
 discovery — governed by rules peculiar to itself; and, 
 in particular, that a plaintiff is not entitled to a pro- 
 duction of documents which appertain exclusively to 
 the defendant's case — 1. whether the defendant simply 
 describes such documents in his answer, or in a schc- 
 
 («*) Not yet rci)orte(l. 
 
 (;*) See the cases cited in Brown v. Newall^ 2 Myl. & Cr. 568.
 
 THIRD PROPOSITION. 295 
 
 dule to it, ivithout referring to their contents ; or — 2. 
 states their purport and effect in the answer, without 
 further reference. Both these points were confirmed 
 by the judgment in the recent case of Hardman v. 
 EUames. This case, however, raised another point 
 which must now be adverted to. 
 
 385. In the case of Hardman v. EUames, the ques- 
 tion was raised — whether, if a defendant states in his 
 answer the purport and effect of a document which is 
 evidence only of his oivn case, and also refers to siich 
 document (o), he does not, by force of that reference, 
 make the document part of his answer, so as to entitle 
 the plaintiff to have it produced upon motion, al- 
 though ivithout the reference the document would be 
 privileged. 
 
 386. In Hardman v. EUames {p), the plaintiff by his 
 bill claimed a moiety of certain estates in the posses- 
 sion of the defendant EUames, as heir-at-law of the tes- 
 tator John Hardman, under an ultimate remainder in 
 his will, expectant upon the deaths of the testator's 
 nephews John Hardman and James Hardman succes- 
 sively without issue, to his own right heirs. To this 
 bill the defendant EUames pleaded two pleas, which 
 were both overruled. The defendant EUames then 
 put in his answer. The answer consisted of two dis- 
 
 (o) liy tlic reference hero alludiil to, is meant the commwi 
 referaicc, " but this defendant for his greater certainty, &c." 
 (p) 2 Myl. & K. 732.
 
 296 TIlllU) I'ROFOSITION. 
 
 tinct parts: — 1. The defence; and, 2. An answer to 
 the interrogatories in tlic bill. The defendant, in 
 setting out his defence, with which the answer com- 
 menced, stated four several fines and the effect of the 
 several deeds declaring the uses of the fines, and con- 
 cluded : " as by the said several fines and the procla- 
 mations made thereon respectively, now remaining of 
 record in the said Coiu't, and by the said several deeds 
 hereinbefore mentioned, to which, for greater certainty, 
 the defendant craves leave to refer when produced, 
 Avill appear/' These deeds were enumerated in a 
 schedule, and admitted to ])c iu the defendant's pos- 
 session. In a subsequent and distinct part of the 
 answer, (the examination), which was directed to the 
 case set up by the bill, the defendant denied that the 
 fines or any of them were or was declared to any uses 
 under which the plaintiff, as heir-at-law of the testator, 
 supposing him to be such heir, was entitled to a moiety 
 of the estates or m\j part thereof; the defendant fur- 
 ther denied, that the documents in his possession con- 
 tained any recitals or references shewing the truth of 
 the matters in the bill or any of them ; and he further 
 said, that the said documents related to and made out 
 his {the defendant's) title to the estates and premises, 
 and did not, according to the best of his information and 
 belief, shew or tend to shew any title in the plaintiff 
 thereto, or to any part thereof. A motion was made 
 that the defendant EUamos might produce and leave 
 with his clerk in Court for the plaintiff's inspection, 
 tiie several deeds declaring the uses of the aforesaid
 
 THIRD PROPOSITION. 297 
 
 fines respectively. The Master of the Rolls (Sir C. 
 Pepys) made an order granting the application^ upon 
 the ground^ that the defendant had, by the ivor'cls of 
 reference, incorporated the deeds in question into his 
 answer, so as to make them a substantial part of it, and 
 that the plaintiff was entitled to see every part of that 
 answer. From this order the defendant appealed to 
 the Lord Chancellor, (Lord Lyndhurst), whose opinion 
 upon the subject had been expressed in the case of 
 Sparke v. Montr'iou hereafter stated (</). Before the 
 motion could be made, Lord Lyndhurst resigned the 
 great seal, and the motion was made before the Lords 
 Commissioners, Sir Launcelot Shadwell and Sir J. B. 
 Bosanquet. For the appellants (defendants in the 
 cause) all the cases above stated, with others hereafter 
 noticed, were cited or referred to — the distinction 
 between the defence and the examination, as consti- 
 tuent parts of an answer, was pressed upon the atten- 
 tion of the Court — and, it was further insisted that the 
 reference in the answer which the Master of the Rolls 
 had relied upon as the ground of his decision, was in- 
 serted for the protection of the defendant only, in case 
 he should by mistake have pledged his oath to thsit, 
 which the Court might afterwards determine to be, 
 in construction, untrue. For the ])laintiff, the cases 
 of Herbert v. The Dean and Chapter of lVestminster{r), 
 
 (7) 1 Ynunm- iS: Coll. 103: S. C. iiitVii, i.l.4l:5.
 
 298 THIRD PROPOSITION. 
 
 Aston V. Lord Exeter, and Hijlton v. Morgan, and other 
 cases were cited — the reason assigned by the Master 
 of the Rolls was relied upon — the doctrine oiprofert at 
 law was referred to— and^ it was argued, that injustice 
 would be done to a plaintiff, if the rule was not in 
 accordance with his Honor's decision ; for that other- 
 wise a defendant, by reason of the reference to the deed in 
 his answer, ivould be entitled to the full benefit of the 
 contents of the deed, even if they were more beneficial to 
 him than the case made in his answer suggested or sitp- 
 posed. The Lords Commissioners, on the 9th of May, 
 1835, gave the following judgment, which was deli- 
 vered by Sir Launcelot Shadwell : — " The object of the 
 present application is to discharge an order made by 
 the Master of the Rolls upon the defendant for the 
 production of certain indentiu'cs admitted by the de- 
 fendant to be in his possession. The defendant has by 
 his answer in part set forth the deeds in question, 
 which are comprised in a schedule annexed to the 
 answer, as being documents in his possession, and he 
 has, for greater certainty, craved leave to refer to the 
 indentures themselves when produced. If by so doing 
 the defendant has made the indentures a part of his 
 answer, it seems to follow as a necessary consequence, 
 that the plaintiff, having a right to read the whole of 
 the defendant's answer, has a right to read the docu- 
 ments so made a part of his answer. The question 
 which arises in this case has been involved in some 
 confusion on account of its having been mixed up with 
 questions of a different kind. There are tlu'ce cases
 
 / 
 
 THIRD PROPOSITION. 299 
 
 which may ai'ise : the documents may not be referred 
 
 to, but they may be admitted to be in the defendant's 
 
 possession ; they may be referred to, and not admitted 
 
 to be in the defendant's possession ; or they may be 
 
 in part set forth or shortly stated in the answer, and 
 
 referred to, as in the present case, for the defendant's 
 
 greater certainty when produced. Where the docu- y(2-^,^.4^l, 
 
 ments are not referred to, but are admitted to be in 
 
 the defendant's possession, there the question, whether 
 
 the defendant shall produce them or not is determined 
 
 by considering whether the documents do or do not 
 
 relate to the title of the plaintiff. If they relate 
 
 solely to the title of the defendant, in that case 
 
 the order for production is not made ; this appears 
 
 from the case of Bligh v. Benson {s) : on the other 
 
 hand, if they arc material to the plaintiff's case, the 
 
 Court will order their production, as in the case 
 
 of Firkins v. Lowe {t). In Ijoth of those cases the 
 
 documents were admitted to be in the defendant's 
 
 possession, and in neither of them were the documents 
 
 so referred to as to be made part of the defendant's 
 
 answer. In Burton v. Neville [u), where the plaintiff 
 
 claimed under a settlement, and the defendant under 
 
 recoveries; and the defendant admitted the deeds to 
 
 be in his possession, but did not suljmit to produce 
 
 them, a motion for their production was refused, the 
 
 Lord Chancellor observing, that plaintiflFs could only 
 
 (.y) 7 I'ricc, 20.5. {t) J. '3 Price, 193. 
 
 {u) -1 Cox, 242.
 
 3()() THIRD PROPOSITION. 
 
 call for those papers in which tliey had shewn that 
 they had a common interest with the defendant. 
 Secondly, in the case wliere the documents are re- 
 ferred to, and not admitted to he in the defendant's 
 possession, it is perfectly clear that the Court cannot 
 order production unless it turns out that the docu- 
 ments stated not to he in the possession of the defend- 
 ant happen to he in the hands of some person over 
 whom the defendant evidently has control. Thus, in 
 the case of Darivin v. (larke [x), where the answer ad- 
 mitted the execution of an instrument, but did not 
 admit it to be in the defendant's possession, custody, 
 or power, the motion for production w^as refused. A 
 third class of cases is where the contents of instru- 
 ments are in part stated in the answer, and referred to 
 for greater certainty. In Atkins v. ll'right [y), a mo- 
 tion w as made for the production of a document which 
 appeared to be in the possession of the defendant 
 Graham; and Lord Eldon was of opinion, under the 
 particular circumstances of that case, that the plaintiff 
 could not compel the production of the deed; but he 
 observes, that where a defendant had in a great mea- 
 sure set forth the contents of an instrument, and for 
 the truth of what he set forth referred to the instru- 
 ment, there was no question of production, as he made 
 the instrument part of his answer. This appears from 
 the case of Herbei't v. The Dean and Chapter of West- 
 minster (r), where Lord Macclesfield says, that, ' as to 
 
 (i) 8Ves. l.J8. (.y) 14Vcs. 21]. (c) 1 P. Wins. 773.
 
 THIRD PROPOSITION. 301 
 
 the motion that the phiiiitifi's shoukl produce the ves- 
 try books before a blaster, since they in their answer to 
 a cross bill refer thereto, and by that means make them 
 part of their answer, referring to them (as it is said) 
 for fear of a mistake; for that reason the Court ought 
 to let the defendants see them/ So in Bettisonv.Far- 
 ringdon{a), Lord Talbot says — ' Tlie defendants, by re- 
 ferring to the deeds in their answer, have made them 
 part thereof.' There is a query in the note to that 
 case, whether the bare referring to a deed without set- 
 ting it forth in heec verba, will make it part of the an- 
 swer; and Hodgson v. TJie Earl of Warrington, in the 
 same book, is referred to; but I may take this oppor- 
 tunity of observing, that the cases in the third volume 
 of Peere Williams are not of equal authority with 
 those in the two preceding volumes, which were pub- 
 lished in his hfetime. In Marsh v. Sibbald {b), Lord 
 ' Eldon says, that every book, letter, memorandum, &c., 
 referred to by the answer, is a part of the answer; and 
 in Evans Y.Richard {c), the same learned Judge says, 
 that when the Court orders letters and papers to be 
 produced, it proceeds upon the principle, that those 
 / documents are by reference incorporated in the an- 
 I swer, and become a part of it. It appears, there- 
 1 fore, upon a review of the cases, to be perfectly settled, 
 that, where a defendant in his answer states a docu- 
 ment shortly or partially, and for the sake of greater 
 caution refers to the document, in order to shew that 
 
 (ff) 3 P. Wms. m^. {!>) 2 Vos. & B. 375. (c) 1 Swanst. 7.
 
 302 THIRD PROPOSITION. 
 
 the effect of the documcut has been accui'ately stated, 
 in such a case the Court will order the document to be 
 produced. It was said, in the present case, that the 
 document ought not to be produced, because it only 
 manifests the defendant's title; but the answer to 
 that is, in the first place, that it may by possibility do 
 something more than merely manifest the defendant's 
 title. It would be a strange thing to say that the 
 defendant should, at the hearing, have the advantage 
 of other parts of the deed than those set forth in the 
 answer, and that the plaintiff, who looks to the answer 
 for information, should not be at liberty to avail him- 
 self of a knowledge of the deed. It seems to be con- 
 sistent with justice, that if the defendant makes a docu- 
 ment a part of his answer, the plaintiff is entitled to 
 know what that document is, because he has a right 
 at the hearing to read such parts of the defendant's 
 answer as he thinks fit. It is to be observed also, that 
 if the plaintiff should think proper to amend his bill, 
 and require the deed to be set forth at length, it would 
 be a matter of course that the deed should be so set 
 forth." 
 
 387. From this judgment the writer presumes, re- 
 spectfully, to dissent; — and, conceiving that it involves 
 the compromise of a principle of the greatest import- 
 ance, he submits the following observations to the 
 consideration of his reader. 
 
 388. And first — As to the precise question to which 
 the decision gives rise. If the general subject, 
 — of which the point in Hardman v. Ellames is part
 
 THIRD PROPOSITION. 303 
 
 only — namely, the right or liability of a defendant 
 to withhold or give discover)^ of the evidence of his 
 own case, were untouched by authority or undefined 
 in principle, it might, perhaps, be difficult to demon- 
 strate that the common words of reference in an answer 
 did not make the document referred to part of the 
 answer, for the pui-pose of production. This, however, 
 is not the predicament in which the question is found. 
 It has been shewn, and the judgment in Hardman 
 v. Ellames distinctly affirms the rule, that a plaintiif 
 has no original right to see the documents which con- 
 stitute the defendant's e\ddence — and, further, that a 
 plaintiff does not acquire any such right, merely be- 
 cause the defendant states the effect of such documents 
 in his answer, and admits them to be in his possession. 
 It has also been shcAvn, that the rule which thus pro- 
 tects the defendant's evidence from the plaintiff's inqui- 
 sition is not a rule of a neutral character; but is to 
 be explained upon a principle allowed and approved 
 of by all Courts of justice in this country, (equity as 
 well as others), as best calculated to promote the in- 
 vestigation of truth, and the ends of justice (c?). The 
 
 (dl) Mr. Hare seems to understand tlic case of Hardman v. 
 j&//amc« differently. He thinks the judgment is to be referred 
 to the expression of uncei-taintj/ in tlio reference. Hare, 214. 
 The author — not acceding to this view of the case — would 
 equally dissent from the decision in Hardman v. Ellames, if the 
 view were correct. Mr. Hare afterwards (p. 228) adds — " If it," 
 (the judgment in Hardman v. Ellames) " should be construed to 
 apply to documents which are so stated exclusively in the de-
 
 304' THIRD PROPOSITION. 
 
 neat question, then, which the case of Hardman v. 
 Ellames raises is — wlietlicr, as an abstract propo- 
 sition [e), the common words of reference in an answer 
 conclusively confer upon a plaintiff a right to dis- 
 covery, which, ivithout those ivords, principle, (admit- 
 ted and approved), authority, and common practice, 
 alike deny him? 
 
 389. It is not, of course, as suggested in a former 
 page (/), intended to be argued, that words of refer- 
 ence to a document, partially stated in the pleading, 
 may not be material in determining, " upon the whole 
 record," whether the plaintiff has such au interest in 
 them as entitles him to call for their production {g) . 
 All that is intended is, that a reference to a document 
 partially stated in the answer, ought not conclusively 
 to decide the plaintiff ^s right to the production of 
 it, irrespective of the nature of the instrument, or 
 what may otherwise appear upon the whole of the 
 record. 
 
 390. Nor is it intended to be argued, that a rule 
 which, in certain cases, should entitle a plaintiff to 
 call for the production of a defensive document before 
 the hearing, would be improper or objectionable. In 
 a case in which the onus was upon the defendant, as 
 
 fence, it might be an important question, whether a new prin- 
 ciple is not involved in the decision." 
 
 (e) Supra, pi. 347. 
 
 (/) Supra, pi. 317. 
 
 {g) 3 Myl. & Cr. 549.
 
 THIRD PROPOSITION. 305 
 
 in the case of a plea of a release, and the defence con- 
 fined to that single point, it might be reasonable and 
 convenient that the plaintiff should be entitled to see 
 the release before the hearing, a corresponding right 
 being conceded to the defendant, with respect to an 
 instrument upon which the plaintiff might sue. But 
 this concession is independent of the questions, whe- 
 ther the defence is by plea or answer, or whether the 
 defendant refers to the document or not. The objec- 
 tion which the author presumes to urge to the judg- 
 ment in Hardman v. Ellames, is founded on the conclu- 
 sive effect given to the reference iu the answer, to the 
 exclusion of those considerations, which, in other cases, 
 are of the essence of the question between the parties, 
 namely, the nature of the document, and the case ap- 
 pearing upon the whole record. 
 
 391. The answer, then, to the question which Hard- 
 man V. Ellames raises may possibly be found in jtrin- 
 ciple, in authority, or in common practice; and to each 
 of these sources the author has felt bound to refer, 
 as his best apology for the freedom with which he has 
 examined the judgment from which he presumes to 
 dissent. 
 
 392. The points of principle relied upon in the 
 judgment are apparently three in number. 
 
 393. First, it is said — " It would be a strange thing 
 to say, that the defendant should at the hearing have 
 the advantage of other parts of the deed than those set 
 forth in the answer ; and that the plaintiff, who looks 
 
 X
 
 306 THIRD PROPOSITION. 
 
 to the answer for informatiou, should not be at liberty 
 to avail himself of a knowledge of the deed. It seems 
 to be consistent witli justice, that, if the defendant 
 makes a document a part of his ansiver, the plaintiff is 
 entitled to know M'hat the document is, because he has 
 a right, at the hearing, to read such parts of the de- 
 fendant's answer as he thinks fit [h)J" The propo- 
 sition that a defendant, by referring to a document, 
 makes it part of his answer, treats the words of re- 
 ference as having the same effect as if the document 
 referred to were actually transcribed in words into the 
 answer. Such certainly is not the necessary or even 
 natural meaning of the words, when applied to a docu- 
 ment which is purely defensive, and which the defend- 
 ant has not been called upon to set out in his answer. 
 The natural import of the words coming from a de- 
 fendant, is simply this : — " Here is one ground of my 
 defence which I may or may not have occasion to re- 
 sort to at the hearing of the cause. You, the plaintiff, 
 have no such interest in the document as to entitle you 
 to see it until that hearing. For my own protection, 
 I reserve to myself a right to refer to the document, if 
 I shall have occasion to use it." Passing from this — 
 the exact scope and bearing of the passage above 
 quoted from the judgment are not, perhaps, alto- 
 gether manifest. If the document referred to by 
 
 {h) Supra, pi. n86; and 2 Myl. & K. 758.
 
 THIRD PROPOSITION. 307 
 
 the answer be part of the discovery called for by the 
 bill, and also material to the "plaintiff's case'' {i), he 
 will be entitled to see it before the hearing, whether it 
 be referred to or not. The question is, whether he is 
 so entitled where the document is not part of such dis- 
 covery, but is exclusively defensive? Now, it is difficult 
 to see how the observations quoted from the judgment 
 apply to a purely defensive document. A plaintiff must 
 begin by proving his own case. This done — if no de- 
 fence be made, and the plaintiff's case be one which 
 entitles him to relief, a decree in his favour follows of 
 course. If — the plaintiff having proved a jmrnct facie 
 case — the defendant should produce a document by 
 way of defence, the plaintiff will, as of course, have 
 the benefit of such parts of this document (if any) as 
 may make in his favour. It is not necessary, for this 
 purpose, that the plaintiff should see the document 
 which constitutes the defence, unless (if ever) the de- 
 fendant — by having such prima facie case made against 
 him — should be obhged to make use of it, and not 
 until the defendant does so, i. e., not until the hearing 
 of the cause. And, accordingly, where the answer does 
 not refer to the document upon which the defence is 
 founded, the plaintiff (by all the cases, Hardman v. 
 Ellames included) is not entitled to see such document 
 until the hearing of the cause — nor then — unless the 
 defendant elects to use it. The meaning of the pas- 
 
 (i) Supra, Prop. II. 
 x2
 
 308 THIRD PROPOSITION. 
 
 sage quoted from the judgment must, therefore, it is 
 conceived, import two things : 1 . That, by force of 
 the common words of reference, a defendant secures to 
 himself advantages to which, without those words, he 
 wouki not be entitled; and 2. That justice to the 
 plaintiff requires that, for that reason, he should, 
 before the hearing, be allowed to see the document 
 to which the defendant so refers, notwithstanding the 
 approved policy of the law which, without the reference, 
 denies him such right; and such, in fact, was the 
 argument of the plaintiff's counsel upon the motion Q*). 
 This argument, if founded, is entitled to great weight. 
 But — is it founded ? Does a defendant, by force of the 
 common reference alone, acquire, as of right, advantages 
 for the purposes of the cause which, without those 
 words, he would not possess? If a defendant, after 
 stating his case, should say, that document A. (to 
 which the answer referred) proved a specific part of his 
 case, and that document B. {to which the answer also 
 referred) proved the residue of his case — whereas in 
 fact document A. proved the whole case — it must be ad- 
 mitted that the defendant would be at liberty to prove 
 his whole case by document A. alone, without making 
 use of document B. And, it is equally clear, that he 
 might do precisely the same thing, whether the answer 
 referred to the document or not — it being perfectly im- 
 material by what legal proof the case of a party is esta- 
 
 (i) 2 Myl. & K. 752.
 
 THIRD PROPOSITION. 309 
 
 blished. The reference, tlicrcfore, in such a case, is 
 merely nugatory — so far (at least) as the interests of 
 tlie plaintiff /or the purposes of the cause arc concerned. 
 His position is unaffected by it. Why then, in such a 
 case, should the plaintiflf', before the hearing, see docu- 
 ment B.? // (the document) is the defendants evidence, 
 if he shall use it ; but, whether he will use it or not, 
 cannot be known until the cause is heard (/:), Con- 
 sidering the common Avords of reference, then, simply 
 as they affect the evidence in the cause, the writer sub- 
 mits that undue effect would be given to them, if — 
 with reference to any supposed effect upon the eridence 
 — they should be made the foundation of an excep- 
 tion to the general and approved rule, by which the 
 privilege of the defendant's case is established. If, 
 however, the passage cited from the judgment in 
 Hardman v. Ellames, is to be understood as sanctioning 
 what appears to have been the argument of the plain- 
 tiff 's counsel, that a defendant who has stated a given 
 case in his answer, is entitled, by force of the common 
 reference alone, to vary, or — which in principle is the 
 same thing — to abandon such case at the hearing of 
 the cause, and claim (to the plaintiff's surprise and 
 prejudice) the benefit of another and different case 
 from that which he has put upon the record, and that 
 the defendant is not as strictly confined to the case he 
 has pleaded ivith the common reference, as without it, 
 
 (/:) 14 Ves. 211, \\\ Ath/ns v. U'tight.
 
 310 THIRD PROPOSITION. 
 
 (and to that length the argument must go), the au- 
 thor presumes to controvert the proposition alto- 
 gether. The contention in support of it must be, that 
 a party (by force of the common reference alone) 
 creates for himself a right to allege one case in his 
 pleadings, and claim the benefit of another at the hear- 
 ing. The argument, of course, supposes a substantial 
 variance between the case and evidence — the degree of 
 which (if substantial) cannot affect the principle of the 
 argument. The case of Cox v. Allingham (/), (1821), 
 though so argued, warrants no such conclusion. In 
 that case, the plaintiff relied upon a lease in his own 
 possession, the purport of which was set forth in the 
 bill. The defendant admitted the lease to be as stated 
 in the bill, hut craved leave to refer to it ivhen produced. 
 The lease was produced at the hearing of the cause, 
 and proved by the admission in the answer. Between 
 the original hearing of the cause, and a subsequent 
 hearing on further directions, the lease was lost, and, 
 at this second hearing, the plaintiff offered to read the 
 admission in the answer, ivithout producing the lease. 
 To this the defendant objected ; and the Master of the 
 Rolls (Sir Thomas Plumer) decided, that the plaintiff 
 could not, in any stage of the cause, read the admis- 
 sion in the answer, without the qualification which, by 
 referring to the document, it contained. It is un- 
 necessary for the author here to contend, that it is 
 
 (/) Jacob, 337.
 
 THIRD PROPOSITION. 311 
 
 not competeut to a Court of equity to alloAV a party 
 (plaintiff or defendant) in a case of mistake or surprise, 
 to make a new case, when, at the hearing, a variance 
 exists between the defence and the evidence, and the 
 latter discloses a good defence (m). All that the author 
 contends for is, that the claim which a party may have 
 to correct his case, when such a variance occurs, is not 
 matter of right, but is addressed to the indulgence of 
 the Court — that this indulgence is never granted to 
 one party without giving the other an opportvmity of 
 meeting it — and that the discretion of the Court in 
 granting such indulgence is irrespective of the refer- 
 ence in the answer, upon which alone the judgment in 
 Hardman v. Ellames proceeded. The possibility, more- 
 over, of such an indidgence being either asked or 
 granted cannot, a priori, be the foundation of a sound 
 decision upon a general rule of law. The case of 
 Hardman v. Ellames, it will be observed, was not put 
 upon this or a7iy special ground. It decided — and was 
 intended to decide — an abstract point of law. 
 
 394. The second point of principle relied upon in 
 the judgment is thus stated: — " It was said, in the 
 present case, that the document ought not to be pro- 
 duced, because it only manifests the defendant's title ; 
 but the answer to that is, that it may, by possibility, 
 do something more than merely manifest the defend- 
 ant's title" [n) . This reason, it will be observed, is not 
 
 (to) Parken v. Whitbj/, Turn. & Russ. 366. 
 (w) Supra, pi. .^86 ; and 2 Myl. iS: K. 758.
 
 312 THIRD PROPOSITION. 
 
 founded upou any specialty in the case to which it is 
 applied. To try its validity let it be asked — where 
 the operation of such a reason is to end ? If there be 
 one point in the law of discovery which is better esta- 
 blished than another, it is that which denies to a plain- 
 tiff a right to look into the defendant's evidence, for 
 the chance of what he may fish out to his advantage. 
 The reason assigned clearly proves too much. It is 
 independent of the ground — the words of reference — 
 upon which alone it is founded in the judgment, and 
 applies as strongly to a case in which the document is 
 not, as to one in which it is, referred to by the answer. 
 Unless, therefore, the operation of this reason — once 
 put in motion, is arbitrarily to be stopped, it must, 
 in its legitimate course, overrule every case by which 
 the privilege of a defendant is established, a privi- 
 lege which the judgment in Hardman v. Ellames (pro- 
 vided the words of reference are not used by the 
 defendant) recognises as clearly as any case in the 
 books. 
 
 395. The remaining point upon which — as matter of 
 principle — the judgment in Hardman v. Ellames is 
 rested, is this : " It is to be observed also, that if the 
 plaintiff should think proper to amend his bill, and 
 require the deed to be set forth at length, it would be 
 a matter of course that the deed should be so set 
 forth" (o). This takes for granted the very point in 
 
 {») Supra, pi. .3}!0 ; 2 Myl. & K, 758.
 
 TIIIIID PROPOSITION. 313 
 
 dispute. The question as to the plaintiff^s right to 
 the production of a deed, (in the circumstances of 
 a case like Hardman v. Ellames) and his right to have 
 it set out in the answer, are identical. The one is 
 a mere substitute in practice for the other (/>). The 
 author challenges the production of a single approved 
 case, prior to Hardman v. Ellames, in which a defend- 
 ant has been compelled to produce a defensive docu- 
 ment, unless the admissions in the answer gave the 
 plaintijff an interest in it as being relevant to his own 
 case — a supposition which takes from it its pui'cly 
 defensive character. 
 
 396. But — the objection in principle, to Avhich 
 the decision in Hardman v. Ellames is open, is 
 not seen in its full force, until it is considered, at 
 what expense the sacrifice of the general rule (by 
 which a defendant's case is privileged) is purchased. 
 The rule — as already observed — is not of a neutral 
 character. It is founded on a settled and approved 
 principle, which is deserted by the order objected to(g). 
 And a judge, who admits the principle, cannot [in cu- 
 ria) deny the reality of the mischief against which that 
 principle is levelled, or his own obligation to observe 
 it — until reasons, at least as cogent as those upon Avhich 
 the principle is founded, occur to justify a departure 
 from it. But, the sacrifice of an approved and ac- 
 knowledged principle is not the only cost at which the 
 
 {))) Supra, pi. 28.-,-:^89. (7) Supra, pi. 347.
 
 314 THIRD PROPOSITION. 
 
 decision in Hardman v. Ellames has been purchased. 
 The observations of Lord Eldon upon the Newcastle 
 case {r), and those of Lord Thurlow in Shaftes- 
 bury V. Arrowsmith {s), apply here with irresistible 
 force. The discovery may be attended with irrepar- 
 able mischief. It may be argued indeed, (as was ar- 
 gued in Bettison v. Farrinydon) that the document 
 must be produced at the hearing; but the answer to 
 this argument has already been given, by shewing that 
 it is not necessarily true. It is true only in cases in 
 which the affii'mative of the issue is upon the defend- 
 ant, and his defence confined to a single point, and ap- 
 plies to a defence by plea as strongly as to a defence by 
 answer. This argument also is open to the observation, 
 that it applies as strongly to cases in which the answer 
 does not, as to those in Avhich it does refer to the do- 
 cument, and, therefore, that it destroys itself by prov- 
 ing too much. There is a fallacy, moreover, in 
 arguing upon the production of a document as evi- 
 dence at the hearing of a cause, and the production of 
 the same document, before the hearing, as parallel 
 cases. They are not so. At the hearing of the cause, 
 the plaintiff has a right to hear the document, if then 
 produced, read; and the Court cannot prevent him 
 from taking notes {t) ; but he has no right then to take 
 a copy of the document; nor, indeed, has he at the 
 
 (?•) Supra, pi. 5. (s) Supra, pi. 5, n. (/). 
 
 (0 Brazier w.Myttm, 1 M'Cleland & Youngc, G18.
 
 THIRD PROPOSITION. 315 
 
 hearing an opportunity of doing so. Whereas, under 
 the common order for producing documents, the plain- 
 tiff may take and keep as many copies as he pleases. 
 It is one thing for a man to have his title deeds read 
 in e^idence, and another to have examined copies 
 thereof put into circulation. An extreme case may be 
 put, in which a party (without reference to the imme- 
 diate cause in question) would be well advised in risk- 
 ing the success of his cause upon other evidence, rather 
 than expose his title deeds to strangers. 
 
 397. To the above may be added the observation — 
 that the rule laid down in Hardman v. Ellames would, 
 apparently, make the trial of a cause vary, in principle, 
 with the accidental locality of a material document. 
 If the document were in the hands of a witness, pro- 
 duction would be out of the question (w), notwithstand- 
 ing the answer referred to it. But it cannot be suc- 
 cessfully argued, that the effect — as evidence — to be 
 given to a document at the trial of a cause, or the be- 
 nefit which the defendant would acquire by referring 
 to it, would be touched by the locality of the instru- 
 ment at the time the answer was sworn. 
 
 398. For these reasons, the author (though with the 
 greatest distrust of his own judgment) cannot resist 
 the conclusion — that the use by a defendant of the 
 common words of reference, is not, in pri7iciple, a safe 
 foundation for the abstract ride which the case oiHard- 
 
 (>/) Hodson V. The Earl of Warrington, 3 P. Wms. 35 : Davcrs 
 V. Daeers, 2 P. Wms. 410; and see supra, pi. 349.
 
 316 THIRD I'UOPOSITIOX. 
 
 vian V. Ellames purports to establish, unless something 
 more can be urged in principle than the judgment in 
 that case has furnished. 
 
 399. After the first edition of this work Avas pub- 
 lished, Mr. Bosanquet addressed a letter (.r) to the 
 author, in answer to the above objections to the 
 judgment in Hardman v. Ellames; and he adduces 
 some arguments in support of his views which are not 
 to be found in the judgment itself. A¥ithout attempt- 
 ing a systematic answer to all the arguments Avhich 
 are to be found in the letter referred to, there are some 
 upon which the author feels bound to offer a few ob- 
 servations. 
 
 400. And first as to principle. Mr. Bosanquet be- 
 gins by obser^dng, that the general rule of pleading in 
 Courts of law is, that in all pleadings where a deed is 
 alleged under which the party claims or justifies, pro- 
 fert of such deed must be made. He then observes, 
 that in cases where profert is not necessary, but the 
 action is founded upon a writing stated in the plead- 
 ings, the Court will in general compel the party who 
 relies upon it to give a copy of it to his opponent, dis- 
 tinguishing the case in which a party declares upon 
 the writing from that in which the declaration is upon 
 an agreement generally, and the writing only evidence 
 of the agreement. And, in a note to page 10, he ob- 
 
 (x) A Letter on the Production of Documents before the lleiir- 
 j"g> ^^y ^ • M. Bosan(|uet, lisq., of tlie Inner Temple, Barrister- 
 at-law. (UWC).
 
 THIUl) PROPOSITION. 317 
 
 serves^ th.atj within certain limits^ the same practice is 
 extended to cases in which the writing is not relied 
 upon in the pleadings. The effect of the practice at 
 law according to this statement is, that in all cases 
 each party is entitled to see or have a copy of the in- 
 strument upon which his opponent relies in his plead- 
 ings, and that he has the same right, in some cases, 
 in which the document is not relied upon in the 
 pleadings. Now, the practice which is thus consider- 
 ed as established in Coui'ts of law, certainly does not 
 exist in Courts of equity. This seems to be admitted, 
 for there certainly is no difference in equity between 
 instruments under seal, and instruments not under 
 seal, so far as the present controversy is concerned: 
 " But why (says ^Ir. Bosanquet) should not the de- 
 fendant in equity be bound to make profert of the 
 deeds as well as the defendant at law? TJiat he is not 
 bound to do so, there can, indeed, be no question; but 
 why? because it is the privilege of the defendant in a 
 Court of equity to set out his title upon oath, and the 
 plaintiff must take his word for it."(?/) It is after- 
 wards obsers^ed, that the principle upon which a copy 
 is granted to the opposite party, of a written instrument 
 stated on the pleadings, is — not for " the purpose of 
 enabling the party to make use of it as evidence of the 
 case he has made or intends to make on the record, — 
 but for the purpose of enabling him to determine lohat 
 
 (//) Bos. page 14.
 
 318 THIRD PROPOSITION. 
 
 that case shall be." According to these statements, 
 the ground upon which a copy of an instrument 
 stated in the pleadings by cither party is furnished 
 to his opponent is the interest which he has in the 
 instrument for the purposes of the suit; but, not- 
 withstanding this interest, he is obUged in equity 
 to take the defendant's word for its effect. Now, 
 these two propositions certainly cannot stand to- 
 gether. Where the right of a party to know the 
 contents of an instrument is founded upon his in- 
 terest in it for the purposes of the suit, he is in- 
 variably entitled to judge of its effect for himself. 
 The oath of the defendant is ineffectual for any such 
 purpose [z). It is effectual only where the admission of 
 the defendant is in the first instance necessary, in order 
 to give the plaintiff an interest in it [a] — an admission 
 which cannot be necessaiy where a knowledge of the 
 contents of the instrument is wanted " for the purpose 
 of enabling the part}^ to determine what his case shall 
 be." The Lord Chancellor certainly has not supposed 
 that Hardman v. Ellames could be sujiported upon any 
 such ground. On the contrary, in the case of Adams 
 V. Fishe7', his Lordship said, with reference to Hardman 
 V. Ellames, — " It is because the defendant chooses to 
 make it part of his answer that the plaintiff is entitled 
 to see it; not because the plaintiff has an interest in 
 it"(^). This observation of the Lord Chancellor ap- 
 
 {z) Supra, pi. 300. {a) Supra, pi. 314. {b) 3 Myl. & Cr. 649.
 
 THIRD PROPOSITION. 319 
 
 pears to be conclusive against the reasoning above re 
 ferred to. That a plaintiff may, in a very intelligible 
 sense of the term, have an interest in seeing the de- 
 fendant's defensive documents, cannot be denied, — but 
 the cases {Hardmany .EUames included) all decide, that 
 this interest is not legitimate for the purpose of en- 
 abling a plaintiff to caU for the production of a purely 
 defensive document, before the hearing, unless the de- 
 fendant, by his mode of pleading, gives him such right. 
 The Lord Chancellor carefully negatives the supposi- 
 tion that the order in Hardman v. Ellames was founded 
 upon the plaintiff's interest in the instrument, and re- 
 fers the judgment to the only ground upon which it 
 could be supported, viz. that the defendant himself 
 had de facto made it part of the record. 
 
 401 . Mr. Bosanquet further observes : " Whether a 
 Court of law ought, or ought not, to give the defend- 
 ant a copy of a written instrument upon which a 
 plaintiff in the declaration founds his demands, it is 
 admitted, on all hands, that the defendant might ob- 
 tain such copy by filing a bill in equity" (c). This 
 proposition, if weU founded, might well supersede 
 the necessity of all other argument, — but, with defer- 
 ence to Mr. Bosanquet, his assertion requires proof. 
 If a defendant at law should file a bill in equity to 
 obtain a copy of an instrument relied upon in the de- 
 
 (c) rage 10.
 
 320 THIRD PROPOSITION. 
 
 claratiou, the defendant in cqnity wonld make his 
 defence to the demand; and the plaintiff's right to 
 a copy of the instrument woidd depend upon the laws 
 of discovery, as administered in Courts of equity. If 
 the proposition contained in the last quotation from 
 Mr. Bosanquet's letter be well founded, to the extent 
 to which the language of the quotation goes, words of 
 reference to an instrument would be merely super- 
 fluous for the purpose under consideration, unless the 
 circumstance that the defendant in equity was plain- 
 tiff at law altered the case. But Mr. Bosanquet does 
 not attempt to found any reasoning upon such a dis- 
 tinction, — nor could such a distinction be sustained. 
 TMiatever a Court of law would give, the defendant 
 at law would obtain without restraint or interference 
 from a Court of equity. But that which the defendant 
 at law could not obtain of liis adversary without the 
 assistance of a Court of equity, he would obtain under 
 all the qualifications by which the right to discovery 
 is limited. Lord Eldon's observations in the case of 
 The Princess of Wales v. Lord Liverpool are decisive 
 upon this point (rf). 
 
 403. A third ground upon which Mr. Bosanquet 
 relies for supporting the case of Hardman v. Ellames 
 upon principle, is thus stated : — " It is not only the pri- 
 vilege of the defendant, but it is the right of the plaintiff. 
 
 (<0 Supra, pi. 330.
 
 THIRD PKOl'OSITION, 321 
 
 to have the hencfit of the defendant's oath to the 
 truth of the defence [e)" This is undoubtedly true. 
 But for what purpose, and in what sense, is the plain- 
 tiff entitled to the benefit of the defendant's oath? 
 For the purpose only of excluding the possibiHty that a 
 defendant might be in a condition to prove, by legal 
 evidence, that which he knew to be unfounded. For 
 no other purpose can the oath be material. If a deed, 
 upon which a defendant relies, do not, when produced 
 at the hearing, support the case upon the record, the 
 defence will fail. If the oath were required for the 
 better information of the plaintiff, with a vicAv to the 
 conduct of the cause, it is impossible that the defend- 
 ant could be allowed, under any circumstances, to give 
 the plaintiff so much information respecting it as he 
 thought fit, and no more. Wliereas it is clear that 
 a plaintiff has no right to see any documents, relat- 
 ing exclusively to the defendant's case, unless the 
 latter, by his mode of pleading, concedes it to him(/). 
 The instrument itself, under which a party claims 
 or justifies, though stated in the pleadings, is as 
 strictly liis evidence as if he alleged his right gene- 
 rally, and used the instrument only to prove his alle- 
 gation. 
 
 403. There is still another ground upon which Mr. 
 Bosanquet considers that Hardman v. Ellames is right 
 in principle. It is this, — that a plaintiff is entitled to 
 
 («) Bos. page K!. (/) Supra, pi. .34(3.
 
 322 TiiiKi) riioposiTioN. 
 
 intei'rogate a defendant respecting all his documents, 
 however private, however defensive. " The defend- 
 ant," it is said, " must answer the questions, provided 
 an answer in the affirmative would tend to prove 
 affirmatively the case made by the bill, or his an- 
 swer will be open to exception" {g). In this, Mr. 
 Bosanquet and the author entirely agree. But the 
 question (already considered in a former page [h) ) is, 
 — to what extent the defendant must answer the in- 
 terrogatories ? Suppose the defendant, without qua- 
 lification, to deny all the statements in the bill, which 
 take from a document its purely defensive character, 
 and make it evidence of the plaintiff^s case — it 
 has already been submitted that the consequence of 
 such denial would be that the documents upon which 
 the question arose would remain upon the whole 
 record pui'ely defensive. Mr. Bosanquet adds : 
 " The defendant is thus placed in a situation from 
 which he can only escape by a reference for greater 
 certainty. He answers the interrogatory in the nega- 
 tive, and, to avoid the consequence, refers, for fear of a 
 mistake ( ? an indictment), to the document itself." 
 The above quotation has no application to Hardman v. 
 Ellames. It would apply undoubtedly to a case in 
 which the bill alleged that an instrument relied upon 
 by the defendant contained a clause of given con- 
 
 (,«7) Bos. page 17. (//) Supra, pi. 000, 810, 311.
 
 THIRD PROPOSITION. 323 
 
 struction, and in which tlic defendant alleged the 
 construction of the clause to be different from ^yhat 
 the bill represented it to be, and referred, for his 
 greater certainty, to the instrument itself. In such a 
 case, the Court, in judging of the case upon the whole 
 record, would be justified in giving effect — perhaps, in 
 some cases, conclusive effect — to the words of refer- 
 ence. But the case is widely different Avhere the de- 
 fendant denies, without qualification, the whole case 
 made by the bill, and refers, for his greater certainty, 
 only to the evidences of his own defence, which the plain- 
 tiff has no original right to see before the hearing. 
 This, in substance, is an answer to Mr. Bosanquet's 
 observation, that " documents, purely defensive, may 
 be the subject of exception "(i). If a document be 
 purely defensive, in the sense of not being attacked by 
 the bill, it certainly cannot be the subject of exception. 
 A plea and an answer, in such a state of circum- 
 stances, are undistinguishable. If a document, purely 
 defensive in its nature, be attacked by the bill, and 
 all the impeaching statements in the biU are denied 
 by the answer, that document cannot be the subject 
 of successful exception (A:). If the admissions in the 
 answer shew the charges in the bill to be well founded, 
 the document, which was apparently defensive, loses, 
 by those admissions, its purely defensive character. 
 
 (0 Bos. page 19. (X) Supra, pi. 309, 31(», 311. 
 
 V 2
 
 r)2-l' Till HI) VUOI'OSITIOX. 
 
 Tlicso Cfiscs, in short, are within the principle of tlic 
 Lord Chanccllor^s observations, in Adams v. Fisher, 
 which have already been referred to in several places. 
 " The question is, upon the whole record, whether the 
 plaintiff has such an interest in them as entitles him 
 to call for their production" (/). 
 
 404. Next, — the authorities. Here, again, the reader 
 is requested to keep in view the neat and abstract voint 
 which these authorities are supposed to decide. The 
 author hazards the assertion, that not a single decision 
 can be produced by which the judgment of Hardmun v. 
 Ellames — as an authority for an abstract point of law 
 — is supported. To the dicta which (unexplained) ap- 
 parently support that judgment, he would, implicitly, 
 defer, if it appeared to him that the judges, to whom 
 these dicta are attributed, intended thereby to esta- 
 blish any abstract proposition. But, his conclusion 
 upon this point is directly the other Avay; for, in 
 many cases the effect attributed, in Hardman v. El- 
 lames, to the common words of reference, has been 
 denied, and in every case in which stress has been 
 laid upon those words, some specialty has, invariably, 
 been rehed upon in addition to that reference. 
 
 405. The following cases appeal- to exhaust the in- 
 formation which the reports afford upon the point. 
 
 406. In weighing these authorities, attention should 
 
 (0 3 Myl. & Cr. .549 ; and see Hare, 222.
 
 TiiiKi) nioposiTioN. 325 
 
 be alive to tlie dates of the several decisions. At the 
 time of Peere "Williams's Reports, the laws which regu- 
 late a plaintiff's riglit to discovery were, compara- 
 tively, unsettled. This is, in some degree, proved by 
 the anomalous nature of the reasons assigned for the 
 respective judgments, in The Eai'l of Suffolk v. Howard, 
 and in Bettison \. Farrinydon{m). It is proved, per- 
 haps, more satisfactorily by the high authority of the 
 cases of Burton v. Neville {n), and Shaftesbury v. Jrrovj- 
 smith (o) ; cases Avhich, as will hereafter be seen, have 
 been considered as settling the law upon its true 
 foundation. 
 
 407. The first case, in point of time, to be noticed, 
 is Herbert v. The Dean and Chapter of Westminster [p), 
 (1721), one of the cases relied upon by the Lords 
 Commissioners in Hardnian v. Ellames. In that case, 
 a bill was filed to settle the right of nomination to a 
 chapel j and it appears from the judgment that a 
 cross bill was filed against the plaintiffs in the original 
 cause. A motion was made by the defendants in the 
 original cause, that the plaintiffs might produce certain 
 vestry books referred to in their ansAvcr. The Lord 
 Chancellor said — " As to the motion, that the plain- 
 
 (/w) Supra, pi. 34'J. See observations upon tliese cases, and 
 also other cases cited, Hare, 1!)3. 
 (w) 2 Cox, 242, supra, pi. 352. 
 (o) 4 Ves. (;r>, supra, pi. 228. 
 (/>) 1 I\ Wins. 773.
 
 326 Till HI) PROPOSITION. 
 
 tiffs should produce the vestry books before a Master, 
 si72ce they in their answer in the cross bill refer thereto, 
 and by that means make them, part of their answer, re- 
 ferring to them (as it is said) for fear of a mistake; for 
 that reason the Court ought to let the defendants see 
 them; otherwise there would be no relying upon the 
 answer of those who are thus guarding themselves, by 
 references, for fear of a mistake, and to avoid exceptions 
 to their answer; wherefore, for that the plaintiffs, who 
 were bound to hear their cause in a short time, have 
 the favour and aid of the Court by an injunction; and to 
 the intent that the cause may come more fully before 
 the Coiu't at the hearing, let them bring the vestry 
 1)ooks before the Master, and the defendants, who are 
 plaintiffs in the cross cause, if they please, take 
 copies." This case does not appear to have been the 
 subject of comment in any subsequent case, until it 
 was cited in Hardman v. Ellames. The first obser- 
 vation which applies to it, is the period at which it 
 was decided {(f) . But it is unnecessary to advert to 
 this, as it is clear, that the Lord Chancellor did not 
 intend in that case to decide the abstract point for 
 which this case was considered as an authority in 
 Hardman v. Ellames. The language of the judgment 
 — " to avoid exceptions to their answer" — seems fully 
 to warrant this observation. A purely defensive docu- 
 
 {q) Supra, 1)1.349.
 
 THIRD PROPOSITION. 327 
 
 niciit could not have been tlie subject of exceptions to 
 the answer. The judgment, therefore, does not meet 
 the neat and abstract question under examination. 
 
 408. The point in the judgment in Bettison v. Far- 
 ringdon, (1735), which was reserved for consideration (r), 
 arises here. The points made in that judgment were 
 three in number : 1 . That the honour of the family 
 was concerned ; 2. That the defendant could be obliged 
 by the Com't to produce the document at the hearing 
 — and so it was for the benefit of all parties that it 
 should be done before the hearing ; and 3. (the point 
 reserved), " And the defendants, by referring to the 
 deeds in their ansiver, have made them part thereof. 
 Wherefore, I think the order that has been made at 
 the Rolls a reasonable one, and will not set it aside" (s). 
 The period of this decision, and the multiplicity of 
 reasons given for the judgment, must impair, if not 
 destroy, the authority of the case for the purpose of 
 establishing any abstract rule; and the anomalous 
 nature of the two first reasons cannot but affect its 
 general authority. It is observable, moreover, (as 
 matter of strict criticism), that the Lord Chancellor 
 
 (/•) Supra, pi. 349: Bettison v. Farriiiffdon,S Pecre Williams, 
 3G3. 
 
 (*) Upon this passage, the learned Editor of Peere Williams 
 has the followinjf note : — " Query, wliethcr the hare referring to a 
 deed, without setting it forth in hwc verba, will make it part of 
 the answer? And see ante 35, the case of llodson v. The Earl 
 of Warrington.'''' — 5th Edit.
 
 328 THlKi) PROPOSITION. 
 
 does not represent the effect of the reference in the 
 answer as conferring pn' se the right contended for. 
 His observation, upon the whole case, is, that the order 
 is reasonable, and that he will not, therefore, dis- 
 tiu'b it. 
 
 409. This case has been the subject of much judicial 
 comment. In Shaftesbury v. Arrowsmith {t), Lord 
 Loughborough, {not, as he says, going along with the 
 reasoning in Bettison v. Farringdon), so far from consi- 
 dering that case as having decided any abstract point, 
 labours to explain it upon its own peculiar ground (w) ; 
 and Lord Eldon, in his observations upon the case, in 
 Hylton v. Morgan {x), does the same thing. The case of 
 Bettison v. Farringdon is also observed upon, by Lord 
 Eldon, in The Princess of Wales v. The Earl of Liver- 
 pool {y), " In Bettison v. Farringdon, (says Lord Eldon) 
 to a bill for relief, the defence was, that a recovery had 
 been suffered which barred the plaintiff ^s right, and 
 the answer referred to a lease and release making a 
 tenant to the proscipe, and leading the uses of the 
 recovery ; on motion. Lord Talbot ordered the produc- 
 tion of the deeds, merely on tlie ground of that re- 
 ference in the answer — assigning as his reason, that 
 as it must be produced at the hearing, it ought to be 
 produced on motion. Subsequent cases appear to ques- 
 tion that doctrine on both its points." Now, — what 
 
 (0 4 Ves.71. (.t) 6 Vcs. 29(1. 
 
 («) Supra, i-I. 349. (y) 1 Swans. 114, 121.
 
 THIRD PROPOSITION. 329 
 
 ;irc the two points upon wliicli subsequent cases ques- 
 tion the doctrine of Lord Talbot ? One, clearly, was 
 his treating the reference in the answer as equivalent 
 to an admission that the defendant had the document 
 in his possession (r). The only other point is that for 
 which the case was considered an authority in Hard- 
 man V. Ellames. Lord Eldon (in The Princess of 
 Wales's case) as if to put his meaning past doubt, 
 adds, immediately after the passage quoted above, 
 " In Lady Shaftesbury v, Arroivsmith, and in Burton 
 V. Neville, the Court held that a plaintiff has a right to 
 call for the instruments creating the estate tail under 
 which he claims, but expressed great doubt whether 
 he can call for the instrument on which the defendant 
 frames his title" (a). It is clear that Lord Eldon did 
 not consider the case of Betiison v. Farrinydon as de- 
 ciding — certainly not as a binding authority for — 
 any abstract point of law or practice. 
 
 410 In Worsley v. Watson [b), (1800), the bill 
 praj^ed a discovery of a deed of 1734, under which the 
 plaintiff claimed, and of all other deeds &c. relating 
 to the property claimed by the Inll ; and Lord Thurlow 
 made an order for their production. Upon this case 
 Lord Eldon says [c) — " With respect to this order, 
 first, I do not find wliat tlie deeds were, described in 
 
 (c) 1 Swans. 121. 
 
 (a) 1 Swans. 121. 
 
 {!)) Cited n Vcs, 28'J, in Aston v. Lmd Exeter. 
 
 (r) (J Ves. 2'Jl, in Aston v. Lord Exeter.
 
 330 THIRD PROPOSITION. 
 
 the schedule. But this motion, if the schedule cou- 
 tained any deeds, under which the defendant sought to 
 make title against the deed of 1734, was granted directly 
 in opposition to the decree of Lord Thurlow in Burton 
 V. Neville, and the order of Lord Rosslyn in Lady 
 Shaftesbury 's case. My next objection to this order is, 
 that though the motion for the discovery and produc- 
 tion of the deeds might be right, because those deeds 
 referred to in the answer might be considered as part of 
 the answer, the difficult}^ is, whether there is any case 
 in which the Ijill being filed, not for discovery, but for 
 relief, the Court acting upon motion, orders the pro- 
 duction in ejectment brought after filing the bill, and 
 before the cause is heard. The authority of that order 
 I question; because I cannot find any case to that 
 extent, and because it goes a length, to which Lord 
 Rosslyn refused to go in the case of Lady Shaftesbury, 
 Lord Thurlow in Burton v. Neville, and the Court of 
 Exchequer in a case cited in that of Lady Shaftesbury." 
 Now, fi'om the above quotation it appears, that Lord 
 Eldou argued upon the answer in the case of Worsley 
 V. Watson, as containing a reference to the documents 
 in question, and still disapproved of Lord Thurlow^s 
 order, because those documents were the CAidences of 
 the defendant's case. Had the documents apper- 
 tained to the " plaintiff's case," and been part of the 
 answer in that sercse, there can be no doubt but the 
 plaintiff would be compelled to produce them, upon mo- 
 tion, whether he sought relief in equity or at law, and 
 yet to that one of Lord Eldon's objections to the order
 
 THIRD PROPOSITION. 331 
 
 applies. The application was special, only because the 
 documents of which a production was sought t^ be 
 obtained were the defendant's documents, and not 
 those of the plaintiff; and, for that reason, notwith- 
 standing the reference in the answer, Lord Eldon held 
 the decision to be erroneous. 
 
 411. Lord Eldou's observations upon The Earl of 
 Suffolk V. Howard, made in the case of Hylton v. Mor- 
 gan, (1801), have already been cited {d) ; and to a dictum 
 of Lord Eldon's the author cannot but bow as to an 
 authority. But, did Lord Eldon, by the observations 
 there attributed to him, intend to rule the abstract pro- 
 position w^hich his words have been said to express? 
 The writer submits that this question must be an- 
 swered in the negative, for he is unable to reconcile 
 an affirmative answer to it with the dicta of the same 
 learned Judge, in Worsley v. Watson (e), and in The 
 Princess of Wales's case, and he cannot, therefore, 
 interpret the observations referred to, as implying an 
 approbation by Lord Eldon of what was done in The 
 Earl of Suffolk v. Hoivard, but (at the most) as admit- 
 ting that the order in that case was in accordance with 
 a principle acted upon by the Courts at the period 
 when the order was made — subject always to the ob- 
 servations already made upon the case. 
 
 412. In Atkyns v. Wright (/), (1807) (as may be 
 collected from the whole report) Graham and another 
 
 {d) Supra, pi, '.W.). {<•) Su]>ni, pi. 410. 
 
 (/) U Vts :ill.
 
 332 THIUI) PROPOSITION. 
 
 were trustees for payment of debts, under a trust deed, 
 datq^ the 13tli June, 1723. Graham survived his co- 
 trustee ; and, by deeds of lease and release, dated the 
 20th and 21st January, 1725, Graham was discharged 
 from the trust, and Wright was appointed sole trus- 
 tee. The bill prayed an account of the trust, and 
 charged the defendants Graham and Wright with 
 fi-uud. Wright, by his answer, admitted the posses- 
 sion of certain deeds, denied the fraud charged by the 
 bill, and set up, by ivay of defence, a release to him- 
 self and others, of all claims in respect of the mat- 
 ters complained of by the bill. He referred to this 
 release in the common form — " as in the said inden- 
 ture will aj)pear^^ — and claimed the same benefit of 
 the release as if he had pleaded it in bar. This re- 
 lease was not noticed in the bill, and Wright's an- 
 swer contained (as Lord Eldon said) an admission 
 sufficiently distinct, upon a fair construction, that 
 the deed was in the possession of the defendant Gra- 
 ham .'' A motion was made for the production of 
 this release, which Lord Eldon refused — a result which 
 renders necessar}^ an examination of the passage in his 
 judgment which was rehed upon by the Lords Com- 
 missioners. It certainly is not clear, what w^as the 
 precise ground upon which Lord Eldon refused to or- 
 der the production of the release. His observation, 
 that the documents Avere not described in the answer, 
 applied not to the release, but to other documents. 
 The cii'cumstance that the release was not admitted to 
 be in Wrifjhf's own possession, might (in some cases)
 
 THIRD PROPOSITION. 333 
 
 liave been a sliort ans^ver to tlie motion; but, instead 
 of so treating it, Lord Eldon proceeds to consider the 
 ease upon its merits — a course which excludes the sup- 
 position that he rehed upon that point as the ground 
 of his decision. He does not, indeed, once advert to it 
 in terms, and liis words — " with admission sufficiently 
 distinct, he," rather import that he considered the 
 possession of Graham as the possession of the plaintiff, 
 and the other parties interested in the release. If that 
 were so, the case would be a direct authority in favour 
 of the writer^s contention. Without, however, relying 
 upon that — the dictum alluded to cannot be deemed an 
 authority against that contention. Lord Eldon first 
 adverts to a case (turning upon another point) in 
 which he had refused to order the production of a do- 
 cument, and then proceeds as follows: — "In another 
 case I said, that whether the party was or was not ca- 
 pable of setting forth the contents of the instrument, 
 he had in a great measure set them forth; and for the 
 truth of what he set forth he referred to the instru- 
 ments; there was, therefore, no question of production, 
 us he made the instrument part of his ansiver. But this 
 defendant has said, in substance, that he denies aU this 
 fraud, negligence, and culpable conduct, with which 
 he is charged; and, whether his answer is true or 
 false in that respect, here is a deed, that is not im- 
 peached, viz. a release of all claims whatsoever, as in 
 the said indenture will appear, and claiming the same 
 benefit as if he had pleaded it. He must produce that 
 instrument at the hearing of the cause; but his answer
 
 334 THIRD PROPOSITION. 
 
 means only, that in this stage he does not put his de- 
 fence upon a plea with profert; stating merely, that 
 there is such an instrument, which is to be his defence, 
 if he shall produce it; not otherwise. My opinion is, 
 that upon this bill and answer the plaintiff cannot 
 compel the production in this stage of the cause." 
 Now, the facts of that " other" case to which Lord 
 Eldon referred, do not appear; and the case, for any- 
 thing that appears, may have resembled Marsh v. Sib- 
 bald, and Evans v. Richard {(J), in which he used similar 
 expressions; but without affecting, in so doing, the 
 point at issue. His expressed opinion, on other occa- 
 sions must — in a case of equivocation — be referred 
 to as a guide to his real meaning in the dictum attri- 
 buted to him in Atkyns v. Wright. It is difficult to 
 say that the order in that case is consistent with the 
 dictum it contains, as that dictum was applied in Hard- 
 man V. Ellames. 
 
 413. The only remaining cases noticed, either in the 
 argument or in the judgment in Hardman v. Ellames, 
 are Marsh v. Sibbald{h), (1814), and Evans v. Rich- 
 ards (i) (1818). The reader Avill have little difficulty in 
 sa'tisfying himself, by a perusal of these cases, that the 
 documents to which Lord Eldon's observations were 
 there applied were not defensive documents, but part 
 of the discovery which the defendant gave (without 
 
 {g) Next pi. {h) 2 Ves. & Bea 37o. 
 
 {i) I Swanst. 7.
 
 THIRD PROPOSITION. 335 
 
 qualification) in ansiver to the interrogatories in the 
 bill. 
 
 414. Should the preceding remarks upon the cases 
 relied upon by the Lords Commissioners in Hard- 
 man V. Ellames be unsatisfactory to the reader, he is 
 requested to bear in mind that — opposed to those dicta 
 — stand the negative but cogent evidence which arises 
 from the absence of any decision which in the abstract 
 accords with that in Hardman v. Ellames; the observa- 
 tions of Lord Eldon in Worsley v. Watson; and the 
 modem cases, before mentioned, of Sampson v. Swet- 
 tenliam{j), Tyler v. Drayton {k), the dictum of Lord 
 Eldon in TJie Princess of Wales v. The Earl of Liver- 
 pool [V), Bolton V. The Corporation of Liverpool {m), 
 Roper V. Roper [n], and Sparke v. Montriou{o). In 
 this Ifist case. Lord Lyndhurst, having the precise 
 point before him, said: " The reservation is merely in 
 favour of the party who makes it. He states his belief 
 of the document; but, for greater certainty, refers to 
 it when produced." To the reader, then, it is sub- 
 mitted that the Judges to whom the dicta relied upon 
 by the Lords Commissioners in Hardman v. Ellames 
 are attributed, did not by those dicta intend to decide, 
 or imagine that they were laying down, any such 
 abstract rule as that case establishes. 
 
 (j) 5 Madd. 10. (>«) 2 Sim. & Stii. 301). 
 
 {k) 1 Swanst.121. (m) I Myl. & K. »8. 
 
 (/)2Myl.&K.7o.'),n.(G). {o) 1 You. \' Col. 103.
 
 33G THIRD PROPOSITION. 
 
 415. Mr. Bosanquet, in the publication already re- 
 ferred to, cites in support of his opinion the cases of 
 Herbert v. The Dean and Chapter of Westminster, Betti- 
 son V. Farringdon, Atkyns v. Wriyht, and Evans v. Rich- 
 ards, and two other cases which will presently be no- 
 ticed. Mr. Bosanquet observes, " There are, I believe, 
 only four cases reported in which it has been held 
 that an instrument referred to in an answer has been 
 thereby made part of the answer;" and, after suggest- 
 ing that the case of Evans v. Richards has little bear- 
 ing upon the subject, he adds: "In the three remain- 
 ing cases which do bear upon the subject, — in one, 
 [Bettison v. Farringdoii) the documents were unques- 
 tionably purely defensive, — and in the other two, it 
 certainly cannot be shewn that they were not"{(/). In 
 citing the four preceding cases, Mr. Bosanquet had 
 been anticipated in the first edition of this work; 
 and it is singular that Mr. Bosanquet should not have 
 thought any argument necessary in support of those 
 cases as authorities for an abstract rule of law, con- 
 sidering the observations to which they are certainly 
 open, and those which judges of the first eminence 
 have made upon them. It is singular also that Mr. 
 Bosanquet should have confined his remarks to the 
 four only reported cases in which it has been held 
 that an instrument referred to in an answer has been 
 made pai't of the answer, and should wholly have over- 
 looked the cases and dicta which arc authorities the 
 
 {p) Bos. page 33, Note A.
 
 THIRD PROPOSITION. 337 
 
 other way ; — one of these cases being, in his ovm judg- 
 ment, of no weight ; — two out of the remaining three 
 being, in the same judgment, of doubtful application ; 
 — and the fourth (the only case which he considers 
 unequivocal) being founded upon three reasons, two 
 of which are clearly indefensible, and the third put 
 forward by the Court, not as a rule of practice, but 
 merely as a " reasonable " ground for the conclusion 
 it came to. The two cases brought forward by Mr. 
 Bosanquet, in addition to those already referred 
 to, are Gardiner v. Mason, and Allcock v. Barrow. 
 " In Gardiner v. Mason " {q), (says Mr. Bosanquet), 
 " Lord Rosslyn seems to consider the fact of the do- 
 cuments being relied upon as the foundation of the 
 defence, as an additional reason for ordering them to 
 be produced. His Lordship said : ' If the defendant 
 relies on a paper, that makes it material;' and ordered it 
 to be produced." It is obvious that this case either 
 proves nothing, or proves a great deal too much. The 
 remaining case of Allcock v. Barrow, is thus stated by 
 Mr. Bosanquet (r) : — " In the ease of Allcock v. Bar- 
 row, Mr. Heald moved, on the part of the plaintiffs, 
 to inspect the deeds set forth in the defendant's plea. 
 The plaintiflFs claimed as the heirs-at-law of Mary Alles- 
 tric, and also of Thomas Allestrie, the testator, under 
 whose will a power of appointment was given to his 
 widow, Mary Allestrie, in default of which the estate 
 
 (y) 4 Ikown's C. C. 479. (;) Bos. j.. 2i). 
 
 'I
 
 338 THIRD PROPOSITION. 
 
 was devised to Mary AUestric and her licirs. The 
 defendant, hy his plea, set forth articles of marriage 
 in 1717, and a settlement in 1751, made in con- 
 sequence, by which Mary Allcstric, the elder, duly 
 executed her power of appointment in favour of T. 
 Barrow, under whom the defendant claimed, and 
 concluded, '•' as by the said indenture, now in the 
 custody of this defendant, reference being thereunto 
 had, would more fully appear." The Vice-Chancellor, 
 (Sir Thomas Plumer), after consideration, decided in 
 favour of the motion, " The defendant does not 
 plead liimself to be a purchaser for a valuable consi- 
 deration without notice ; on the contrary, he admits 
 notice of the plaintiff^s title, and admits it as stated in 
 the bill, but sets up deeds by which the title of the 
 plaintiffs, as heirs-at-law, is disappointed. Upon the 
 authority of the case of Harrison v. Southcote[s) and 
 Potter V. Potter [t], the heir-at-law has a right to see 
 the deeds by ivhich he is disapjwinted. In Shaftesbury 
 V. Arroivsmith [u), Lord Rosslyn controverted the right 
 of an heii'-at-law by his dicta, but his decision did not 
 impeach it, being only that an heir in tail was enti- 
 tled to see the deeds creating the entail. In Atkyns 
 V. Wright Lord Eldon seems to state another ground 
 upon which the plaintiffs might be entitled, namely, 
 the defendant having set forth the deeds and made 
 them part of their answer." Mr. Home was counsel 
 
 {s) 1 Atkins, .528. {t) 3 Atkins, 719. 
 
 («) 4 Vosey, C6.
 
 THIRD PROPOSITION. 339 
 
 for the defendants (.r). If the decision in //ia!7'6?m«» 
 V. Ellames be riglit, the decision in Allcock v. Barrow 
 would be right also upon the ground last adverted to 
 by Sir Thomas Plumer; for it is impossible to distin- 
 guish the defensive part of an answer from a plea of 
 the same matter, for the pui'pose of the question 
 under consideration. It is observable, however, that 
 Sir Thomas Plumer decided the case upon a ground 
 which (whether right or wrong) made his observation 
 upon the point under examination unnecessary. It 
 is not a little remarkable also that Sir Thomas Plumer 
 should have relied upon a proposition of law, (the 
 right of an heir to see the deed by which he is dis- 
 inherited) which had long been exploded, if a settled 
 point of practice gave him the same conclusion ; and 
 the circumstance that he treated the opinion of Lord 
 Thurlow, in Shaftesbury v. Arroivsmith, otherwise than 
 as the known and established rule of the Court, can- 
 not but impair the authority of his judgment. And, 
 so far is Sir Thomas Plumer from considering the 
 point now under consideration as settled by At- 
 kyns V. Wright, that, after ruling the case before him 
 upon another ground, he says only, "Lord Eldon 
 seems to state another ground upon which the plain- 
 tiffs might be entitled." Language of this character 
 is inconsistent with the supposition, that the point was 
 
 (.r) Lin. Inn Hall, 21.st March, 181.5. MS. note of his jiulg- 
 ment l»y Sir Thomas Plumer, Rci,'. Lih. iai4, A. fo. 58'J. 
 
 z2
 
 340 THIRD PROPOSITION. 
 
 known to the Bench or the Bar as a point of settled 
 practice. 
 
 416. With respect to common practice, the evidence 
 of this must be found in a uniform current of or- 
 ders, tacitly proving the point, or in the experience 
 of the Profession. The former of these evidences 
 would be inconsistent with the cases referred to in 
 the preceding paragraph, which negative the propo- 
 sition affirmed in Hardman v. Ellames, and cannot, it 
 is believed, be adduced. The experience of the pro- 
 fession is met by the same observation; and seems 
 conclusively negatived by the fact, that, in the case 
 of Bolton V. The Corporation of Liverpool, which was 
 twice solemnly argued, the point was never suggested. 
 If matter of common practice, it could not have 
 been overlooked by the eminent and experienced 
 counsel by whom that case was argued. The author 
 states, without fear of contradiction, that the deci- 
 sion in Hardman v. Ellames was a surprise upon the 
 Bar. 
 
 417. The doctrine of profert was not noticed in the 
 judgment. Upon this point, it may be observed, that 
 the doctrine of profert at law cannot apply. For pro- 
 fert at law is either necessary, or, if unnecessarily 
 made, the offer is not binding [y] ; whereas there is no 
 obhgation upon a defendant in equity in any case to 
 
 (j/) Stephen on Pleading, 88.
 
 THIRD PROPOSITION. 341 
 
 refer to the documents upon which he relics. If the 
 doctrine of profert be inquired into, it will be found 
 to have no bearing upon the present question (r). 
 
 418. It may further be asked — is not the decision 
 in Hardman v. Ellames inconsistent with the principle 
 of the last decision in Jones v. Lewis [a] ? For, if a de- 
 fendant, by referring to a document mentioned in his 
 answer, is held thereby to make a profert binding upon 
 him — how can a plaintiff by referring to a document 
 do less, or be otherwise than subject to the same obli- 
 gation to produce the document, as the defendant is 
 supposed to come under by a similar form? 
 
 419. When the first edition of this work was pub- 
 hshed, the reasons upon which the Lord Chancellor's 
 judgment in Hardman v. Ellames was founded, were 
 not before the Profession. His Lordship has since 
 declared them; and as those reasons differ materially 
 from those of the Lords Commissioners, it was thought 
 more convenient to postpone the consideration of them 
 to this place. " It was certainly" (says the Lord 
 Chancellor {b) ) " no new decision, and I was very much 
 surprised to hear any one treat it as such ; and when 
 I came to look into the doctrine laid down in the 
 books, I felt no doubt upon the subject. AVhcrc a 
 
 (c) Stopheii on I'li^ading, title " i'rofert." 
 
 (n) 4 Sim. -'324. 
 
 (f>) Adams v. Fisher, .3 Myl. iV Cr. 548,
 
 342 THIRD rilOl'OSlTlON. 
 
 party lias thought proper to put his defcucc upon a 
 particular document, he himself having introduced it 
 and put it forward, he cannot be permitted to make 
 any representation of it, however unfounded, which he 
 pleases ; but the plaintiff is entitled to see whether the 
 defendant has rightly stated it. It is because the 
 defendant chooses to make it part of his answer, that 
 the plaintiff is entitled to sec it ; not because the 
 plaintiff has an interest in it. The principle is, that 
 a defendant shall not avail himself of that mode of con- 
 cealing his defence/^ The difference between this 
 judgment and that of the Lords Commissioners is too 
 obvious to require comment. The latter proceeds 
 mainly upon the ground of the plaintiff's interest in 
 the documents. The former wholly repudiates such 
 interest as the ground of the decision. But, — con- 
 sidering that the case of Hardman v, Ellames is an ex- 
 ception to an approved general rule, which exempts 
 the evidence of the defendant's case from the examina- 
 tion of the plaintiff before the hearing — can the reasons 
 of the Lord Chancellor, unless supported by practice, 
 or warranted by authority, be deemed satisfactory ? 
 The answer to this question has, in a great degree, 
 been anticipated. Where a defendant states the effect 
 of a written instrument upon the record, and relies 
 upon that statement as his defence, the effect which 
 the defendant thus attributes to the instrument, and 
 not the instrument itself, constitutes his defence. The 
 instrument is only evidence of the case upon the 
 record ; aud if there be a variance between that case
 
 THIRD PROPOSITION. 
 
 343; 
 
 and the e\TLdencc which is adduced in support of it, the 
 defendant may suffer, but can never gain by such vari- 
 ance. A defendant who, in answer to a bill for an ac- 
 count, should say that " the account had been taken, 
 and the amount agreed between the parties, and ac- 
 knowledged in wi'iting under the hand and seal of 
 the plaintifF,^^ could not be permitted, — upon the evi- 
 dence of an instrument, which, besides ascertaining 
 the amount due upon tlie account between the parties, 
 contained also a release of the demand itself — to claim 
 as of right the benefit of that release, as he might have 
 done if he had truly stated the effect of the whole 
 instrument on the record. And between this extreme 
 case and any case of variance between the defence 
 upon the record and the evidence adduced in support 
 of it, there is no difference in principle, nor any dif- 
 ference in practice, wliich can entitle a defendant to 
 claim as of right the benefit of a case proved by evi- 
 dence, but not fairly stated upon the record. And it 
 cannot be seriously argued, that the defendant, by 
 " referring to the instrument for greater certainty," 
 would place himself in a different and more advan- 
 tageous position. It is extremely difficult, therefore, 
 to understand what is meant by a defendant not being 
 permitted " to avail himself of that mode of concealing 
 his defence ;" or how the case of Hardman v, Ellames 
 differs from the ordinary case in which a defendant is, 
 unquestionably, permitted to withhold from the scru- 
 tiny of his adversary the evidence l)y which he in- 
 tends to support the case upon the record. The au-
 
 344 THIRD PROPOSITION. 
 
 thor presumes further to suggest, that the very cir- 
 cumstance that the Lord Chancellor found it neces- 
 sary " to look into the doctrines laid down in the 
 books/' before he decided the case of Hardman v. 
 Ellames, is conclusive in support of the observation 
 already made, that practice had not sanctioned that in- 
 terpretation of the authorities which the Lord Chan- 
 cellor gave them ; for the case is (literally speaking) 
 one of daily occurrence in practice. And — with re- 
 spect to the previous authorities — unless practice had 
 given tliem an interpretation according with that 
 which Hardman \. Ellames has assigned to them, it 
 cannot be too much to say, that practice would inter- 
 pret the authorities, and not be itself determined by 
 the very feeble and equivocal light they throw upon 
 the subject. 
 
 420. In fine, — the writer cannot but think, that the 
 case of Hardman v. Ellames suflFcred some degree of 
 prejudice, from the stress laid upon the proposition, 
 that the document — by force of the reference — was 
 made part of the answer, without sufficiently attend- 
 ing to the various senses of which the word answer 
 is capable, and in which it is used, and without dis- 
 tinguishing what part of the answer it was to which 
 it belonged. The sound test to be applied to such 
 cases is this: suppose the defence to be made hj plea, 
 instead of answer — would the reference alone, in that 
 case, entitle the plaintifi' to call for production of the 
 document referred to? If the answer be in the nega- 
 tive — as (it is conceived) it must be notwithstanding
 
 THIRD PROPOSITION. 345 
 
 the case of Alcock v. Barrow (c), — the same answer 
 must be given in a case like Hardman v. Ellames. The 
 mere association of a particular defence with other 
 points in the cause (which alone, for this purpose, dis- 
 tinguishes an answer from a plea [d) ) cannot put the 
 party who makes that defence in a worse position than 
 if the defence were made alone. 
 
 421. It may not be unimportant to observe, that, 
 if the rule laid down in Hardman v. Ellames be esta- 
 blished, it is a rule which will be practically inope- 
 rative, except against those whom conscience makes 
 cautious in what they swear to. 
 
 422. The author cannot too strongly press upon his 
 reader (if indeed such a caution be nccessar}'), the 
 little attention which is due to the above observations, 
 opposed, as in effect they are, by the judgments which 
 he has presumed to criticise. But, having undertaken 
 to state his own views of the law of the Court, in 
 matters of discovery, he could not shrink from dis- 
 charging his obhgation, merely from an apprehension 
 that, by doing so in a particular case, he might incur 
 the charge of presumption. Should the freedom of 
 his observations give offence to any, he is persuaded it 
 will not be to those whose judgment he has presumed 
 to review. 
 
 (c) Supra, pi. 41.3. (</) Sujua, \A. 17, 40.
 
 316 THIRD PROPOSITION. 
 
 423. The author's conclusion is — That if the com- 
 mon reference (as in Hardman v. EUames) be held suffi- 
 cient to entitle a plaintiff to look into the defendant's 
 e\ddcnce before the hearing, the plaintiff ought, in all 
 cases, to have the same right, without that reference. 
 And, if this general right be denied him in other 
 cases, a line of special cases ought not to be estabhshed 
 upon a ground which he presumes to say is inadequate 
 to the effect ascribed to it. 
 
 424. The case, as decided, applied only to docu- 
 ments stated in the answer, and not to documents 
 referred to generally, as supporting the defendant's 
 case, without affecting to state the contents of them 
 on the record. But the case must, it is conceived, 
 apply to every document stated in the answer, whe- 
 ther it be the instrument under which the defendant 
 claims or justifies, or an instrument merely corrobo- 
 rative of such claim or justification.
 
 347 
 
 FOURTH PROPOSITION. 
 
 Every objection to discovery which is founded upon a 
 denial of the plaintiff's right of suit, or of his right to 
 proceed with it in its existing state, shotdd regularly be 
 taken by demurrer or plea, according to the circum- 
 stances of the case ; — and where the objection is not so 
 taken, and the defendant answers the bill, he will, in 
 general, be held to have waived the objection, and ivill be 
 obliged to answer the bill " throughout." 
 
 425. It has already been shewn, that if a plaintiff 
 prays relief in equity, and the defendant disputes his 
 right to such relief, he may, by demurrer or plea, 
 according to the nature of the case, protect himself 
 against the discovery sought. And the rule, it has 
 been contended, is the same, whether the relief is 
 sought in equity by original bill, or whether the de- 
 fendant in the suit for discovery is plaintiff or defend- 
 ant in some other suit for relief (a). 
 
 426. It has also been shewn, that the defendant 
 has the same right, when, upon the ground of any 
 defect or informality in the pleadings, the plaintiff has 
 no right to proceed with his suit until such defect or 
 informality is remedied [b). 
 
 427. The question which tlic present (the Fom'tli) 
 
 («) Supia, \A. ol. {/)) Supra, pi. 32.
 
 348 FOURTH PROPOSITION. 
 
 proposition raises, is that wliicli was considered with 
 reference to the case of Adams v. Fisher in a former 
 page; and the reader, to avoid repetition, is here re- 
 ferred to the observations upon that case (c). 
 
 428. The Fourth proposition is, it is conceived, 
 open to no quahfication but that which the case of 
 Adams v. Fisher introduces. That qualification is 
 marked by Mr. Hai*e in the following passage : " In 
 none of the cases, however, does the defendant appear 
 to have been allowed by answer to resist the dis- 
 covery of matters which might be evidence of the 
 plaintiff^s title to sue, distinguishing, by this expres- 
 sion, the title to sue from the extent of the claim" {d). 
 If, in short, a bill is open to any of the objections of 
 substance or form stated by Lord Redesdale, the de- 
 fendant may, by demurrer or plea, avoid all answer, 
 except such as may be inconsistent with, or necessary 
 to the trial of the defence he resorts to. If he 
 answer, and by answer take the same objection, he 
 will clearly be bound to give a full answer to every 
 point but that which may be " a mere point, or con- 
 sequence of title, or separate from and not evidence 
 of the title itself" (e). And the only question will be, 
 to what extent the case of Adams v. Fisher will protect 
 him from giving discovery upon points unconnected 
 with his title to sue, and which are a mere conse- 
 quence of such title. 
 
 (c) Supra, pi. U8 to 18.5. 
 (.0 Hure, 250, 251. (c) IIuic, 251,
 
 349 
 
 FIFTH PROPOSITION. 
 
 Every objection to discovery, which is not founded 
 upon a denial of the plaintiff's right of suit, or of his 
 right to proceed vnth his suit in its existing state, but 
 depends exclusively upon the nature of the discovery 
 sought, may regularly be taken by answer as well as by 
 demurrer or plea. As the mode of taking objections of 
 this nature is thus unfettered by rules of form, a defend- 
 ant, who has not actually ansioered an interrogatory or 
 interrogatories to which the objection may apply, cannot 
 as a general rule be held to have waived it upon any 
 merely technical ground. 
 
 429. If a bill requires an answer, which may subject 
 the defendant to any pains or penalties, or to which 
 the privilege of professional communication applies, 
 the defendant may refuse to give it. 
 
 430. If the objection is apparent upon the face 
 of the bill, the defendant may demur to the par- 
 ticuljir interrogatory by which the answer is requir- 
 ed (a). 
 
 431. If the objection is not apparent upon the 
 
 (rt) Uedcs. Plead. 195, ct seq.
 
 350 FIFTH PROPOSITION. 
 
 fsicc of the bill so that the defendant can demur, he 
 may, by plea, set forth his objection {b). 
 
 432. In any of the above cases also, the defend- 
 ant may, by answer, insist that he is not bound to give 
 the objectionable discovery (c). 
 
 433. The like observations apply to questions seek- 
 ing an improper discovery of the e^ddences of the de- 
 fendant's case [d) ; and, it is conceived, to every other 
 case in which the objection to the discovery depends 
 exclusively upon the nature of the question to which 
 the objection is applied (e). Indeed, as already ob- 
 served, there is no distinction, except in name, between 
 these different modes of taking the objection. One trial 
 disposes of the question, and, whether that trial be 
 had under the name of a demurrer, plea, or answer, it 
 is final. It is not, of course, meant by this last 
 observation, that a defendant may demur or plead 
 indiflferently to questions which are open to the ob- 
 jections at which the Fifth Proposition points, — for 
 these two modes of defence are applicable respectively 
 to distinct cases. All that is meant is, that whatever 
 might in such cases be objected to by demurrer or 
 plea, may, with equal regidarity, be objected to by 
 answer. 
 
 434. It has already been shewn that the privilege 
 
 (J) Redes. Plead. 234, et seq. 
 
 (c) Id. 307. 
 
 (^d) Supra, Prop. III. 
 
 (e) Supra, pis. 127 to 147 ; Redes. Plead.
 
 FIFTH PROPOSITION. 351 
 
 of the defendant extends, not merely to the partieular 
 question to which tlie objection applies, but to every 
 question in the bill, the answer to which would form 
 a link in a chain of evidence, which, if perfect, would 
 lead to the consequences against which the privilege 
 is intended to guard (/). 
 
 435. Now, suppose a bill to be made up of a series 
 of charges, twenty in number, all tending exclusively 
 to, and ultimately terminating in, a charge, the admis- 
 sion of which would subject the defendant to a crimi- 
 nal prosecution — The defendant might clearly refuse 
 to answer all the questions. Suppose him to answer 
 the first nineteen — Shall he, therefore, be bound to 
 answer the twentieth? Lord Eldon always dealt 
 with questions of this nature with his habitual caution; 
 and, although he often suggested the case in argu- 
 ment, he does not appear ever to have expressed his 
 opinion upon it. The author submits, however, that 
 the answer to the question above proposed must 
 be in the negative. There is no analogy between 
 cases of this nature and the ordinary cases in Avhich a 
 defendant answering a bill, instead of demurring or 
 pleading, has been bound to answer the bill " through- 
 out." In those cases, the defendant elects between 
 different modes of bringing his cause on for trial. By 
 answering the bill, he elects a mode of trial which re- 
 quires an answer to each part of the bill, and to the 
 
 (/) Supra, 1-1.1. S}?.
 
 353 FIFTH PROPOSITION. 
 
 whole of every part ; because, where the defence is by 
 answer, all the questions in the cause come on for trial 
 simultaneously; and he, therefore, necessarily waives 
 the benefits of a demurrer or plea as a protection 
 against discovery — modes of defence under which dis- 
 covery is excused only because the purposes of the 
 trial do not require it. But, in the cases under con- 
 sideration, the plaintiff has no right to the discovery 
 even for the purposes of the trial. The privilege is 
 unconnected with the trial or merits of the cause. 
 Whatever the merits of the cause may be, the plaintiff 
 has no right to ask the questions to which the objection 
 applies. The objection (it is contended) is several as to 
 each question ; and the answer to one cannot be a waiver 
 of an objection which applies separately to another. 
 
 436. In the case of a bill requiring an answer which 
 would subject the defendant to pains or penalties, and 
 other similar cases, the author cannot doubt that a 
 Court of equity would consider the objections in ques- 
 tion as several, and therefore not waived as to one 
 question by an answer unnecessarily given to others. 
 But, in a recent case of the highest authority, language 
 has been attributed to the Lord Chancellor, which 
 would apparently require that the terms of the propo- 
 sition now under consideration (the Fifth) should be 
 received with much qualification. 
 
 437. The case referred to is Latimer v. Neate(ff). 
 
 {g) 11 Bligh,149.
 
 FIFTH PROPOSITION. 353 
 
 The facts, shortly stated, were as follows (^). Neate., 
 claimed to be a judgment creditor of the Duke of 
 Marlborough. On the 22nd May, 1833, Neate sued 
 out execution upon his judgment. The sheriff re- 
 turned nulla bona, and thereupon Neate brought his 
 action against the sheriff for a false return. The 
 goods and chattels, in respect of which Neate sought 
 to falsify the sheriff's return, were certain farming 
 stock, both live and dead, together with plate, books, 
 wines, liquors, and household furniture and effects, 
 which at the time when the writ was delivered to the 
 sheriff were in and about the mansion-house and es- 
 tate at Blenheim, and of which the Duke of ^larl- 
 borough had the use and enjoyment. The case in 
 answer to tliis was, that the whole of the same goods 
 and chattels had, by bills of sale, been assigned by the 
 Duke to Latimer for value. The plaintiff Neate filed 
 his bill in the Court of Exchequer against Latimer, 
 charging that no consideration had passed between 
 Latimer and the Duke, and that the transaction was 
 colourable in order to enable the Duke to hold the 
 property against the plaintiff and the other creditors 
 of the Duke. The bill also charged that money deal- 
 ings and transactions had taken place between Lati- 
 mer and the Duke, since the date of the alleged 
 assignments to Latimer, and that by means of such 
 
 {h) Till' statement is taken fmm the report in the llmise of 
 Lords.
 
 354 FIFTH PROPOSITION. 
 
 dealings and transactions the debt (if any) owing from 
 the Duke to Latimer had been discharged. Tlie bill 
 relied upon the actual possession of the effects in 
 question by the Duke as endence of the fraud imputed 
 to the transaction, and charged that if the defendant 
 should claim to have any lien or security upon all or 
 any of the goods and chattels for the repayment of any 
 debt or debts due and owing to him from the Duke, 
 he ought to set forth the particulars of such Hen or secu- 
 rity. The bill prayed that the instruments under 
 which the defendant claimed might be declared void. 
 It prayed, however, an account of what (if anything) 
 was due to the defendant, and whether he had any 
 lien upon the property in question, the plaintiff offer- 
 ing, if anything was due to defendant upon the security 
 of the property, to pay it. Upon this prayer, which 
 was the subject of much argument, the House of Lords 
 was of opinion that the bill might be treated as a bill 
 to redeem the property in question, notwithstanding it 
 prayed a declaration that the instruments under which 
 the defendant claimed were void. Latimer by his 
 answer claimed to be the legal owner of the effects in 
 question under bills of sale executed by the Duke to 
 him. He averred that all the bills of sale were duly 
 executed by all proper parties for a full and valuable 
 consideration, and insisted that the bills of sale were 
 his title deeds, and that Neate claimed the goods 
 and chattels in question hostilely to him (the de- 
 fendant) in his action at law. He further said, that, 
 upon the execution of the bills of sale, one Richard
 
 FIFTH PROPOSITION. 355 
 
 Wilson, as the agent and servant of the defendant, 
 had been in actual possession of the effects in 
 question; and that the use of them by the Duke, 
 who resided at Blenheim, was merely permissive. 
 He claimed to hold the property as a security for 
 8,000^., and offered, upon that sum being paid into 
 Court, to bring into Court all the bills of sale as the 
 Court should direct. He further insisted that he 
 was not bound to set forth, further than he had done, 
 any particulars relating to his securities. To this 
 answer the plaintiff took forty-eight exceptions, some 
 of which were allowed. The particulars of these ex- 
 ceptions do not appear in the report, but from the 
 judgment of the Lord Chancellor (p, 154) it appears, 
 that the Court of Exchequer had decided upon the 
 exceptions that Latimer was bound to " discover the 
 nature, contents, and particulars" of some of the as- 
 signments under which he claimed. It appears also 
 (p. 1 53) that the first answer of Latimer, and his fur- 
 ther answer after the exceptions were allowed, were 
 inconsistent with each other, as to the assignments 
 under which he claimed. The plaintiff moved for the 
 production of the assignments under which the de- 
 fendant claimed, and the Lord Chief Baron made an 
 order for their production. From this order the de- 
 fendant appealed to the House of Lords. From the 
 observations of the Lord Chancellor in moving judg- 
 ment in the case, it appears that the appellant's coun- 
 sel had admitted at the bar, that, if in the judgment 
 of the Court it appeared, from tbo whole of the 
 
 A A 2
 
 350 FIFTH PROPOSITION. 
 
 pleadings, that the title claimed by the defendant was 
 only a mortgage title, and that the plaintiff had so 
 framed his record as to entitle him to deal with that 
 mortgage title and redeem it, he would not argue that, 
 under the cirmmstances, he could resist the right of 
 the plaintiff to have the documents produced. The 
 Tjord Chancellor proceeded to shew, that the plead- 
 ings were in a state to which the admission of the 
 appellant's counsel would apply. The Lord Chancel- 
 lor then made the follo^'ing observations: "Now, if 
 the defendant was entitled to that protection against 
 discovery, which he now seeks to enforce at the bar, 
 the order of the Court of Exchequer was clearly wrong 
 in allo-wing those exceptions ; because a defendant may 
 be bound to state in the answer and describe the docu- 
 ments ; he may be compelled to admit he has such 
 documents in his possession, but not compellable to 
 state the contents, if he is entitled to protect himself 
 by any rule which prevents a plaintiff asking for the 
 production of the document. If he professes to set out 
 the document, the plaintiff has a right to see whether 
 he has stated it correctly or not. Therefore, to pro- 
 tect himself against the liability to produce the docu- 
 ment, he should take his stand on the interrogatory, 
 which asks him to set forth the particulars of the deed 
 under which he claims. The answer would have 
 been proper if it had said, I have the deeds in my pos- 
 session, but you do not entitle yourself by the pro- 
 ceedings to see the contents of the documents. If 
 the defendant chooses to pretend to give a discovery,
 
 FIFTH PROPOSITION. 357 
 
 the plaintiff is not bound to take that representa- 
 tion, but is entitled to see the documents. There 
 is, therefore, no question, but that the title of the de- 
 fendant on his title deeds is only a mortgage title ; 
 and it is equally free from doubt, according to my 
 view of the pleadings, that the plaintiff is entitled to 
 redeem that mortgage upon the payment of what may 
 be found due, not being precluded from that right by 
 the mode in which he states his case. The object of 
 the deeds being not to give an absolute title to this 
 property against the Duke, or those who claim under 
 the Duke, but for the purpose of securing a sum of 
 money due from the Duke to Latimer." And, in a 
 subsequent part, he adds: '-On these two grounds, 
 therefore, I think your Lordships may safely affii'm 
 the order of the Court below : the first, that this is a 
 case in which the plaintiff is not only seeking to 
 redeem, but is seeking to have an instrument treated 
 as a mortgage security, which the defendant has set 
 up as an absolute title ; and secondly, because the 
 defendant hanng set out what he states as the con- 
 tents of the deed, {and most likely fairly), the plaintiff 
 under those circumstances is entitled to see whether 
 the abstract be, or not, a correct abstract of those deeds 
 of which he asks the production. I therefore sug- 
 gest, that the order of the Court below be affirmed." 
 
 438. So far as the Lord Chancellor acted upon the 
 admission of Latimer's counsel, and so far as he ex- 
 pressed an opinion that the plaintiff in that case was 
 entitled to sec the instruments under which the de-
 
 358 FIFTH PROPOSITION, 
 
 feudant claimed, upon merits confessed in the answer, 
 (which is the first ground he relies upon), no observa- 
 tions appear to arise (i). But the second ground 
 relied upon by the Lord Chancellor introduces a prin- 
 ciple, which, if full effect be given to his Lordship^s 
 language, is of the greatest importance. 
 
 439. The argument of the Lord Chancellor upon 
 this second point, (it will be seen), supposes a case 
 in which the defendant might have taken his stand 
 upon the interrogatory, which asked him to set forth the 
 deed under which he claimed, and have refused to say 
 more about it than suited his own defence. And with 
 reference to that supposed case, he says : " If the de- 
 fendant chooses to pretend to give a discovery, the 
 plaintiff is not bound to take that representation, but 
 is entitled to see the documents." This language is 
 perfectly general. It appKes in terms, as it did in 
 fact in Latimer v. Neate, to the instruments under 
 vrhich a defendant may claim, as well as to those under 
 which he may only support his title. Upon what 
 principle does the observation of the Lord Chancellor 
 rest ? Not upon the ground that the plaintiff has an 
 interest in the documents for the purpose of proving 
 his case, for to that the observation of the Lord 
 Chancellor is not applicable — Not upon the ground 
 that the answers referred to the documents, as in 
 
 (i) See the tase of Bromii v. Lockhart in the Appendix, 
 infra.
 
 FIFTH PROPOSITION. 359 
 
 Hardman v. Ellames; for there was no such refer- 
 ence — Not upon the ground that the plaintiff had 
 an admitted interest in the nature of property in 
 the documents ; for there was not, and could not be, 
 any such claim in the case. Now, where a defendant 
 neglects an appropriate mode of defence to discovery, 
 as where a defendant answers a bill, the appropriate 
 mode of defence being by demurrer or plea, the rule is 
 logical at least, which holds him to have waived all the 
 benefits of a mode of defence which he has neglected 
 to use; but where the appropriate mode of resisting 
 particular discovery is by answer, it is difficult to follow 
 the reasoning which applies the doctrine of waiver to 
 such a case at all. The appropriate mode of object- 
 ing is by answer. Why should not the right to object 
 by this appropriate mode remain, except so far as 
 the right may be actually destroyed by the answer 
 given? The observation that the plaintiff has a 
 right to see whether the defendant's representation is 
 correct, is unanswerable in its application to discovery 
 which the plaintiff has an original right to demand. 
 But with respect to discovery which he has no ori- 
 ginal right to demand, and which the defendant may 
 by answer refuse to give, as being exclusively his 
 evidence, the undoubted rule of the Com't {j) is, that 
 the plaintiff must take the defendant's oath for it. 
 It may be said, indeed, that a defendant who pretends 
 
 (.7) See Piui,. 111.
 
 360 riFTH PROPOSITION. 
 
 to give discovery, may mislead the plaintiff by a false 
 answer, and thereby put him in a worse position than 
 if he (the defendant) took his stand upon the inter- 
 rogatory, and refused to answer at all. But this ob- 
 servation proves too much Avhen applied to a docu- 
 ment, the discovery of which the defendant might by 
 answer refuse to give. The unaAoidable effect of it 
 must be to enable a plaintiff" to deprive the defendant 
 of the privilege, which entitles him to withhold from 
 his opponent, until the hearing of the cause, the in- 
 strument upon which he relies, and any other evi- 
 dence by which he may propose to corroborate and 
 support it. The defendant may be advised, that his 
 defence will be stronger upon the record by setting 
 out the very parts of a defensive document, as to 
 which the bill may seek discovery. But the answer, 
 if framed for the purpose of defence, will not lose its 
 purely defensive character, because the unfounded 
 charges in the bill may give to the answer the ap- 
 pearance of discovery as well as defence. Why should 
 not the answer, so far as it corresponds with the inter- 
 rogatories in the biU, be considered the defendant's 
 statement of his own case, made to repel an un- 
 founded statement in the bill ? An opposite course of 
 reasoning — that is, a course of reasoning which re- 
 quires the defendant to take his stand upon the inter- 
 rogatory, under penalty of being obliged to produce 
 the instrument under which he claims — would enable 
 an ingenious plaintiff" to cripple the defence, by pre- 
 A'cnting the defendant from setting out his case as.
 
 FIFTH PROPOSITION. 861 
 
 with reference to the charges in the bill, he might 
 think best, or by subjecting him to the production 
 of a document which the rules of equity entitle him 
 to withhold. And, if this be just reasoning, as ap- 
 plied to a case in which the defendant may, for the 
 purpose of defence, set out that to which the charges in 
 the biU may give the appearance of discovery also, it 
 must be true in every case ; for the Court cannot try 
 the animus with which a given part of the record, called 
 an answer, has been framed. The rule of equity is, 
 that the defendant shall not, before the hearing of the 
 cjiuse, be compelled to produce his own evidence. A 
 rule which would destroy or even impair that privilege 
 at the will of the plaintiff, cannot well be sound. In 
 Latimer v. Neate, the documents in question were 
 those upon which the defendant relied, and which the 
 bill impeached, and a partial statement of them might 
 well have been important to the defence, with refer- 
 ence to the charges which the bill contained respect- 
 ing them. The judgment in Latimer v. Neate did not 
 require any expression of opinion upon the second 
 ground of the judgment, because the first of those 
 grounds was decisive. But the opinion of the Lord 
 Chancellor upon the second ground, though not ne- 
 cessary to the judgment, was not extrajudicial in the 
 case [k). The conclusion to which the House of Lords 
 
 {k) The effect of this decision upon the practice of the Court, 
 in comhination witli that of Adams v. Fisher, (supra, pi. 153), 
 is singular. By Adams v. Fisher, a defendant who neglects the 
 
 *
 
 362 FIFTH PROPOSITION. 
 
 came in that case was, for the reasons already sug- 
 gested, undoubtedly correct. 
 
 440. Tlie cases of Hardman v. Ellames, and Etving 
 V. Osbaldiston, do not conflict with the Fifth Propo- 
 sition. The principle of both the judgments in those 
 cases was, that the defendant had actually given the 
 discovery to which he might have objected. 
 
 appropriate mode of protecting himself against discovery, Ly 
 demurrer or plea, may yet, by answer, protect himself partially 
 against discovery. But, by Latimer v. Neate, where the appro- 
 priate mode of defence is by answer, the defendant who answers 
 partially only, is held to have waived his objection as to other 
 parts of the discovery.
 
 363 
 
 GENERAL CONCLUSIONS. 
 
 441. The preceding observations resolve themselves 
 into four principal points: — 
 
 I. The original right of a plaintiff to discovery. 
 II. The privilege of the defendant to withhold a 
 discovery of the evidences of his case. 
 
 III. The appropriate modes by which a defendant 
 
 should object to discoveiy to which the plain- 
 tiff is not entitled. 
 
 IV. The consequences of a defendant omitting to 
 
 avail himself of the appropriate modes of ob- 
 jecting to discovery. 
 
 442. With respect to the first of these points, it has 
 been seen — 
 
 1. That the plaintiff's right to discovery is con- 
 fined to the question or questions in the 
 cause, Avhich, according to the pleadings and 
 practice of the Court, unconnected with the 
 laws of discovery, is or arc about to come on 
 for trial. [See Prop. J.
 
 .361" GENERAL CONCLUSIONS. 
 
 2. That the plaintiff's right to discovery, confined 
 to the point or points in the cause about to 
 come on for trial, extends, as a general rule, 
 to a discovery of all evidence material to the 
 plaintiff's case upon that trial. 
 
 [See Prop. 11. 
 
 The Exceptions to this general rule, are — 
 
 1. Where the discovery would subject 
 
 the defendant to pain, penalty, or 
 forfeiture, or where it is protect- 
 ed by professional privilege. 
 
 [Supra, pi. 127 to l-il. 
 
 2. The undefined class of exceptions, 
 
 wliich fall within the scope of the 
 case of Adams v. Fisher. 
 
 [Supra, pi. 148 to 185. 
 
 443. With respect to the second point; — ^this forms 
 the subject of the Third Proposition, and appears, at 
 all events, to be subject to such qualifications only as 
 may be referred to the voluntary submission of the 
 defendant, as in the cases of Hardman v. Ellames, 
 Lowndes v. Davies, Ewing v. Osbaldiston, and Latimer 
 V. Neate. 
 
 444. The third point is considered under the Fourth 
 and Fifth Propositions, and the author has there sub- 
 mitted, as general rules —
 
 GENERAL CONCLUSIONS. 365 
 
 1. That objections to discovery, upon the grounds 
 
 oi merit ov form {l), should regularly he taken 
 by demurrer or plea. 
 
 2. That objections to "particular discovery" (/) 
 
 may regularly be taken by answer. 
 
 445. And, lastly, with respect to the fourth point, 
 the reader is referred to the Fourth and Fifth Propo- 
 sitions in support of the author's conclusions — 
 
 1 . That when a defendant, who might, by demui'- 
 
 rer or plea, have successfully objected to dis- 
 covery upon grounds of merit or form, has 
 submitted to answer the bill, he must, as a 
 general rule, answer the bill "throughout." 
 
 2. That a defendant cannot, as a general rule, be 
 
 held to have waived an objection to " parti- 
 cular discovery," by any answer short of one 
 which actually gives the discovery he claims 
 a right to withhold. 
 
 (/) .Siij)ra, 1)1. .34, 35.
 
 APPENDIX. 
 
 Westminster, Hilary Term, 2\st January, 1840. 
 
 Brown v. Lockhart. — A Suit for Foreclosure. 
 
 THE plaintiff was the executor of the mortgagee, and the 
 defendant was the devisee of the mortgagor. It appeared, 
 that no demand had been made by the plaintiff, before filing 
 his bill, for the payment of the principal money of the mort- 
 gage; btit application had been made for the interest. The 
 defendant had offered to pay the interest, upon the plaintiff 
 producing or furnishing him with a copy of the mortgage- 
 deed under which it was claimed. The plaintiff, however, 
 had refused to produce the mortgage-deed; and the interest 
 being in arrear, the bill was filed, and prayed the usual decree 
 for foreclosure. 
 
 Mr. G. Richards, and Mr. Lowndes, for the plaintiff. 
 
 Mr. K. Bruce and Mr. Lloyd, for the defendant, argued 
 that the plaintiff was not entitled to the usual directions with 
 regard to costs; inasmuch as the interest had been offered 
 to be paid to him upon production of the mortgage-deed, 
 which the mortgagor and his representatives were interested 
 in, and therefore had a right to see; and the principal 
 had not been demanded, and could not have been paid by the 
 mortgagor without demand, or without giving six months' 
 notice to the mortgagee. They cited 2 Cases and Opinions,
 
 368 APPENDIX. 
 
 p. !)2; Powell Tr. on Mortgages, by Coventry, p. 935, 
 n. (r); Amn. Mos. 24 G; Latimer v, Neate, 4 Clarke & Fin. 
 App. Ca. .070. 
 
 The Vice-Chancellor. — It appears upon the answer, 
 that some information was sent to the defendant in Novem- 
 ber, 1836; a short account of the claim of the mortgagee, but 
 not the deed. Then some dispute arose, and notice was sent 
 by the solicitors of the defendant that the interest was ready 
 to be paid. On the Iltli of March, the letter was written 
 on behalf of the defendant, which is stated in the answer, 
 and by which he requested leave to make a copy of the deed 
 at his own expense. One important point, however, was 
 omitted, — that is, the payment of the interest. The interest 
 was actually in arrear; and in that state of things the bill 
 was filed. Was not that proceeding perfectly right ? I thuik 
 the mortgagee was not bound to allow the mortgagor or his 
 representatives to take a copy of the mortgage-deed. With 
 regard to giving the mortgagee six months' notice before pay- 
 ing off the mortgage money, I apprehend there is no law 
 requiring that to be done, except that which has arisen out 
 of the usual practice of conveyancers, it being reasonable to 
 give the mortgagee the opportunity of finding another in- 
 vestment for his money. 
 
 The decision in Latimer v. Neate has no application to 
 this case. There the defendant had not refused to give the 
 discovery sought by the bill, but in fact gave some discovery. 
 He put in his first answer, to which exceptions were taken 
 and were allowed; and then he put in a second answer, which 
 purported to give some further discovery, but did not differ 
 from the discovery given in his first answer; and in a sche- 
 dule to the second answer, the defendant set out an abstract 
 of the deeds. The mode in which the defendant stated his 
 title, did not, however, correspond with the statement he
 
 APPENDIX. 369 
 
 gave of the deeds. The infurmation given by the answer 
 was not in fact consistent tvith itself; and then, on the ap- 
 phcation of the plaintiff to have the deeds produced, the pro- 
 duction was ordered. These circumstances are stated at 
 some length by the Lord Chancellor in his judgment, and 
 appear to me to be a very good reason for the order. 
 
 The case reported in Mosely is not an authority which can 
 be much relied on. After the decree for foreclosure nisi, 
 the defendant is slated to have moved that the mortgagee 
 might lay the deeds before counsel, that the mortgage might 
 be assigned to another person; and upon this motion, the 
 Court ordered that the plaintiff should give the defendant 
 a copy of the mortgage-deed at his charge. Such an order is 
 not likely to be now made on a motion of that nature. 
 
 There is a right in the mortgagee to keep the mortgage- 
 deed until the moment of time when the mortgagor appears 
 with the principal and interest in his hand; aad then the 
 mortgagee cannot be required to part with the deed until the 
 money is actually paid to him. If the defendant felt so 
 much anxiety to pay off the mortgage, why did he not at an 
 earlier stage of the cause apply for a reference under the 
 statute ? but instead of making such an application, he 
 allows the suit to go on to a hearing, and complains that he 
 is subjected to costs. The decree must be in the usual 
 form.
 
 370 APPENDIX. 
 
 Westminster, 31.s/ Jamiary, 1840. 
 
 Corporation of Dartmouth e'. IIoldsworth. 
 
 THE bill, in this case, was filed to set aside a bond in which 
 the plaintiffs were obligors and the defendant was obligee. 
 The obligee had brought an action upon the bond, and 
 recovered a judgment upon it. In answer to charges in the 
 bill, in the common form, that the defendant had in his 
 possession documents relating to the matters alleged in 
 the bill, and requiring a schedule of such documents, the 
 defendant, admitting the possession of documents set forth in 
 a schedule to one of his answers, said: — " And this defend- 
 ant saith;, that he, this defendant, hath in his possession or 
 power, the several documents and particulars mentioned 
 and set forth in the schedule to this defendant's answer 
 to the plaintiffs' original bill, and also the additional 
 briefs and papers, letters and writings, made, written, and 
 prepared, since the institution of this suit, relating to and 
 connected with the conduct, management, and carrying on 
 of the said action and of the said original suit in Equity. 
 All of which last-mentioned documents have been made or 
 written since the filing of this defendant's answer to the said 
 original bill," In a subsequent answer, the defendant, with 
 reference to the documents in the schedide to his answer, said : 
 — " And this defendant saith, that the papers enumerated 
 in the schedule hereto, are in his possession or power, and 
 that they all relate to and are connected with the matters 
 in question in this suit and in the original suit now sub- 
 sisting in this Court between the parties to this suit to 
 which this suit is supplemental, and were prepared and 
 written for the purpose of this defendant's defence in such 
 suits, and for the purpose of the action to which such suits
 
 APPENDIX. 
 
 371 
 
 relate, and which is mentioned or referred to in his former 
 answer to the said supplemental bill." The schedule 
 contained amongst other documents copies of letters, de- 
 scribed as follows: — " Copies of letters from Messrs. Kars- 
 lake and Crealock, this defendant's attornies, to Mr. John 
 Elhott Fox, one of the persons examined as a witness for 
 this defendant on the trial of the said action, bearing date 
 respectively as follows: viz. 7th February, 9th February, 
 20th February, 23rd February, .5th March, and 1 1th August, 
 in the year 1838." 
 
 Mr. Knight Bruce, Mr. Wigram and Mr. Wright for the 
 defendant. 
 
 Mr. Jacob for the plaintiff. 
 
 The Vice-Chancellor ordered the copies of the letters to 
 be produced, saying the description of them in the sche- 
 dule did not necessarily bring them within the limits of 
 professional privilege {a) . 
 
 (a) The author presumes to question the correctness of this decision.
 
 INDEX. 
 
 ACCOUNT. 
 
 plaintiff may elect at the hearing to take a decree for an ac- 
 count — or for what appears upon the answer to be 
 due, 93, 97. 
 
 plaintiff entitled to a full answer from the defendant, as to 
 items of account, in order to enable him to make 
 this election, 97. 
 
 As to plaintiff's right to prescribe a specific form in which 
 discovery of accounts shall be given, 197. 
 
 ACTION AT LAW. 
 
 discovery — in aid of civil action only, 5. 
 
 bill must shew that action will lie — or demurrer to the 
 bill will lie, 36, 37. 
 
 intention to bring, will support BiU of discovery, 38. 
 
 if bill shews a right of action — defendant may by plea con- 
 trovert it, 41. 
 
 ANALYSIS. 
 
 of bill in equity into its component parts — distinguished 
 from division of a bill into its integral parts, 8. 
 this analysis essential in pleading, 8.
 
 374 
 
 INDEX. 
 
 ANSWER. 
 
 of an AnsiDcr in equity — Defence and Examination, 10, 11. 
 division of — into two distinct parts — Defence, and Examina- 
 
 tio7i, 10, 294. 
 the word answer used in various senses, 10. 
 
 inconvenience of this, 11. 
 
 with reference to reported cases, 344. 
 
 In svbsidium of plea — as distinguished from answer in sitp- 
 
 j)ort of plea, 10, 11, 154. 
 answer in support of plea — See Plea. 
 
 A full answer required as to the point or points in the 
 cause which — by the rules of pleading — is or are 
 about to come on for trial, and no further t>r other 
 answer, 25 — 28. 
 
 Examples of this rule — as to the extent and limit of dis- 
 covery. 
 
 1. Bill and demurrer, 55. 
 
 2. Bill and pure plea, 55. 
 
 3. Bill anticipates defence, and — admitting its truth — 
 
 disputes its validity, 5>1. 
 
 4. Bill anticipates defence — as a pretence only — and 
 
 disputes its validity — if true, 60. 
 
 5. Bill and negative plea, GO. 
 
 G. Bill anticipates defence, and disputes its truth, 65. 
 
 7. Bill and Plea of an affirmative fact involving a nega- 
 
 tion of Plaintiff's Case, 71. 
 
 8. Bill and answer, 78. 
 
 Defence by answer is — in pleading — a submission that all 
 the points in the cause shall come on for trial 
 sinmltaneouslj/, 23, 24, 26, 78. 
 
 where defence is by answer — discovery must be given as to 
 all points in the cause, 27, 31, 78. 
 
 advantages of defence by answer, 23, n.
 
 INDEX. 
 
 375 
 
 ANSWER— (co«^2«««/). 
 
 Answer confined to material allegations — See Materiality. 
 some answer must be given to every material charge, how- 
 ever general, 132, 1.33. 
 that defendant claims an interest, 13.5, 197. 
 that defendant has in his possession material docu- 
 ments, 133. 
 whether, under a merely general charge — being fully de- 
 nied — a production of documents will be ordered, 
 232—237. 
 trustee or other person interested in^a;-^ only, 164. 
 no answer required to matters not alleged in the bill, 123, 
 124. 
 
 (Jath of defendant — if credible— conclusive upon interlocu- 
 tory application, 214, 215, 237—242. 
 
 necessity of this — notwithstanding apparent objections, 
 215, 238. 
 
 ])recautionary i-ules, 239. 
 
 Defendant who submits to answer must answer " fully," 47, 
 190. 
 This rule often perverted in argument, 194. 
 
 answer " full " — with reference to so much of the bill as 
 defendant is l)ound to answer, 191. 
 
 answer " full " — notwithstanding defendant refuses to an- 
 swer questions falling under the exceptions of the 
 second class. — See Exceptions. 
 
 answer " full" — with reference to the general obligations of 
 defendant to give discovery, 19(5. 
 
 answer "full" — with reference to plaintiff's right to call 
 for discovery in a specific form, 197. 
 
 answer " full " — with reference to production of documents 
 before the hearing 199. — See PRomcTiuN of Docu- 
 ments, ike. 
 
 BILL. 
 
 of two kinds — Bill of Discorny and Bill foi- Relief, '>.
 
 376 INDEX. 
 
 BILL — ( cofitiHued) . 
 
 the distinction not I'oundeil in principle, G. 
 
 distinction disregarded, except where otherwise noticed, 6. 
 
 Division of bill into separate integral parts — as distinguished 
 from analysis, 6, 7. 
 This divisioH not material for the present purpose, 7. 
 
 Analysis of Bill into its component parts — principal and 
 subordinate or dependent, 8, 29. 
 this analysis essential in pleading, 8, 61. 
 
 Bill should contain specific and certain charges, 53, 124. 
 as to necessity of charging specially " as evidence," facts 
 
 which a Plaintiff relies upon to counterplead a Plea 
 
 — See Pleading. 
 
 CAUSE. 
 
 Points in a cause, sometimes distinct from and independent 
 oyeach other, 7. 
 
 The order in which the different points — beiiig dependent — 
 
 shall come on for trial, determined by rules of 
 
 pleading unconnected with the law of discovery, 
 
 17, 24, 25 
 the order — so determined — in which the points in a 
 
 cause are triable, regulates a plaintiff's immediate 
 
 right to discovery, 26 — 28. 
 Plaintiff 's right to discovery, limited to the point or points 
 
 in the cause about to come on for trial, 17, 25 — 28. 
 application of this last principle to particular cases. 
 
 — See Answer. Examples, 1 — 8. 
 Plaintiff's right to discovery — limited to the point or 
 
 points in the cause about to come on for trial — 
 
 an indefeasible right, 50. 
 therefore, every point in a cause is — in its turn — tried 
 
 upon a, full answer, expressed or implied, 52, 78.
 
 INDEX. 
 
 37; 
 
 CERTAINTY, 123— 13G. 
 
 to common intent, 124. 
 to all intents and purposes, 12-1. 
 no sufficient allegation in the bill, 53, 124. 
 case intended by the ])ill uncertain, 124. 
 case made by the Inll certain — but particular charges uncer- 
 tain, 125. 
 particular allegation uncertain, 132, 135. 
 what answer to be given to merely general charge, 133, 134. 
 where reason assigned for want of certainty, 135, 136. 
 
 CHARGE. 
 
 should be specific and certain, 58, 124. 
 however general — if explicit — must receive so/«e answer, 133. 
 what answer to be given — where charge merely general, 134. 
 as to necessity of specific form of charge, 142, et seq. 
 
 CONCLUSIONS. 
 
 general conclusions, 303. 
 
 CONFIDENTIAL COMMUNICATIONS — See Discoverv, 
 Solicitor anu Clie-nt. 
 
 CRIME — See Discovery, Exceptions. 
 
 DECREE— /Sec Account. 
 
 DEEDS — See Production of Documents, &c. 
 
 DEFENCE. 
 
 by demurrer — See Demurrer, 
 
 by plea — See Plea. 
 
 by answer — See Answer. 
 
 by disclaimer, 24. 
 
 defence, and examination or discovery, distinguished, 10, 206. 
 
 at law, stands by itself, !►.
 
 378 
 
 INDEX. 
 
 DEFENCE— {conti?med). 
 
 in equity, often associated with discovery on same record, 10. 
 retains all its characteristics as a defence, though so 
 associated, 11. 
 in Ecclesiastical Courts, defence and examination are on 
 separate papers, 10, n. 
 practical inconvenience in equity from want of similar 
 separation, 10, n. 
 must be distinctly alleged, in order that plaintiff may 
 
 know what case he has to meet, 285. 
 is upon oath, 2G2. 
 
 not otherwise the subject of examination by the plain- 
 tiff, 262. 
 evidence in support of defence privileged from examination 
 by plaintiff, 256, 261, 266. 
 whatever the nature of the document may be, 286. 
 whether defendant claims or justifies under the docu- 
 ment, 286, 287. 
 as to production of mortgage-deed by mortgagee, 244, 
 
 287. 
 whether defence is in original or cross-suit, 288. 
 but this point subject to qualifications, 257. 
 
 effect of the common words of reference in an answer to 
 a document which is exclusively defensive, 257, 
 295, et seq. 
 where evidence in support of defence and also evidence of 
 the plaintiff^s case, 244, 262. 
 
 " DEFENDANT'S CASE"— /Sfee Defence. 
 
 DEMURRER. 
 
 applicable to cases in wliich the defect in the ])laintiff's case 
 
 {^patent, 20. 
 admits all facts well pleaded in the bill to be true, 25, 30. 
 raises issue in law only, 25. 
 requires no discovery, 21. 
 disadvantages of demurrer, i35.
 
 INDEX. 379 
 
 BEMVRRER—icontinued). 
 
 to relief extends to discovery, 31. 
 
 this rule exjjlained, 31. 
 
 defendant demurring to relief — mai/ give all the disco- 
 very, 31. 
 
 whether defendant demurring to relief may fjirc j)artial 
 discovery, qu.? 31,32. 
 
 when answer would suhject defendant to penalties, &c., 
 80—85. 
 
 [_See Discovery, Exceptions.^ 
 
 DISCOVERY. 
 
 object of Courts of equity in compelling, 2. 
 
 in aid of what Courts, discovery given, .5. 
 
 dangers incident to the general jurisdiction to compel dis- 
 covery, 2, 3. 
 
 the jurisdiction defended, 3, 4. 
 
 not confined merely to facts known to defendant, 2, li)!). 
 
 of documents, &c., in possession or power of defendant, 
 compelled, 2, 1!)9, et seq. 
 
 Object of Court in compelling discovery, to furnish evidence 
 for a trial in equity, or in some other Court, .5, 79. 
 
 the right to discovery will be limited to the exigencies of 
 such trial, 17, 2.5 — 28. 
 
 this limit — found in the rules of pleading — which deter- 
 mine in what order the points in a cause shall In- 
 tried, 20—28. 
 
 plaintiff 's right to discovery — for the purpose of, and to the 
 extent required by the trial ahoiU to he had — an 
 indefeasible right, .50. 
 
 in support of the last point — 
 
 1. Bill and demurrer, 5-5. 
 
 2. Bill and pure plea, 55. 
 
 3. Bill anticipates defence, and — admitting its truth — 
 
 disputes its caliditj/, 57- 
 
 4. Bill anticipates defence — as a pretence only — and 
 
 disputes its validity — if true, 00.
 
 380 INDEX. 
 
 mSCOVERy— {continued). 
 
 5. Bill and negative plea, GO. 
 
 6. Bill anticipates defence, and disputes its truth, 65. 
 
 7. Bill and Plea of an affirmative fact involving a uega- 
 
 tion of Fiaintitt's Case, 71. 
 B. Bill and answer, 78. 
 what discovery a plaintiff entitled to where defence is by 
 
 plea — See Plea. 
 what discovery a plaintiff entitled to where defence is by 
 
 answer — See Answer. 
 
 Exceptions to the general rule entitling a plaintiflF to disco- 
 very, of two classes, 79. 
 fii-st Class : 
 
 Discovery applicable to the amount or extent of plain- 
 tiff's demand, as distinguished from his title, 
 85, et seq. 
 second Class : 
 
 where discovery woiild subject defendant to criminal 
 proceedings, 80. 
 
 married woman, witness against her husband, 80. 
 
 pains or penalties, 80. 
 
 ecclesiastical censures, 81. 
 
 moral turpitude subjecting to penal consequences, 81. 
 
 forfeiture, 81. 
 
 purchaser for value without notice, 81 . 
 
 communications between attorney and client, 82. 
 
 where question tends to prove that which defendant is 
 privileged from answering, 82, 83. 
 
 exception ceases where the reason for the privilege 
 ceases, 88. 
 
 Plea to equitable relief covers all discovery incidental to 
 such relief, 31, 50. 
 semble, where relief at law, 32, 35, et seq. 
 but see Hindman v. Taylor, 32. 
 
 Plaintiff's right to compel discovery in a s])ecific form, 197.
 
 INDEX. 381 
 
 BISCOYERY—icotitiimed). 
 
 where evidence of defendant's case is common to that of the 
 
 plaintiff's also, 244, 262. 
 must be material, 157 — 193. 
 right to — affected by mispleading^, 123. 
 
 no sufficient allegation in the bill, 124. 
 
 uncertainty in the general case made by the bill, 124. 
 
 uncertainty in particular charges, 125, 132 — 135. 
 
 Objections to discovery, how taken — See Pleading. 
 divided into three classes, 12, 13. 
 
 DIVISION. 
 
 of cause — into separate integral parts, as distinguished from 
 
 analysis, 6, 7. 
 of cause into its component parts, 8. 
 of bills into two kinds, 5. 
 
 bUls of discovery merely, and bills for relief, 6. 
 of answer — defence and examination, 9, 10. — See Answer. 
 
 DOCUMENT — See Production of Documents. 
 
 ECCLESIASTICAL COURTS. 
 
 answer of defendant — defence separate from examination, 
 10, n. 
 
 ELECTION. 
 
 at the hearing to take a decree for an account, or for what 
 appears from the answerto be due, 93. 9. — See Ac- 
 count. 
 
 EVIDENCE. 
 
 neither party allowed to see the evidence of liis adversary's 
 
 case before the trial, 265. 
 evidence in support of defence privileged from examination 
 
 by plaintifi; 256, 261, 2m.— See Defence. 
 evidence in support of defence and also evidence of the 
 
 plaintifTs case, 244, 262.
 
 38.2 INDEX. 
 
 EVIDENCE— (conti7med). 
 
 secondary evidence of documents whicli form part of an 
 answer not admissible at law, unless answer pro- 
 duced with such documents, 249. 
 
 EXAMINATION. 
 
 part of the answer, 9, 10. 
 
 distinguished from the defence in same answer, 10. 
 
 EXCEPTIONS— to AxswKR. 
 
 motion for production of documents, a substitute for, and 
 
 in the nature of exceptions, 202. 
 observations on the rule, that, by taking exceptions to 
 answer, plaintiff admits plea to be good, 183. 
 
 EXCEPTIONS— to plaintifPs general right to discovery— /Sfee 
 Discovery. 
 first Class: 
 
 discovery applicable to the amount or extent of plain- 
 tiff's demand — as distinguished fi-om his title, 8.5, 
 et seq. 
 second Class: 
 
 where answer would subject defendant to criminal pro- 
 ceedings, 80. 
 
 married woman, witness against her husband, 80. 
 
 pains or penalties, 80. 
 
 ecclesiastical censures, 81 . 
 
 moral turpitude, subjecting to penal consequences, 81 . 
 
 forfeiture, 81. 
 
 purchaser for value without notice, 81 . 
 
 communications between attorney and client, 82. 
 
 where question tends to prove that which defendant is 
 privileged from answering, 82, 88. 
 
 exception ceases where the reason for the ])rivilegc 
 ceases, 8.3. 
 
 EXCHEQUER. 
 
 rules of the Court of, relating to Discovery, different from 
 Chancery, 2, n.
 
 INDEX. 383 
 
 EXCREQ^VER— {continued). 
 
 with respect to Exceptions different from Chancery, 08, 
 112. 
 
 EXHIBITS. 
 
 a party not bound to produce exhibits even at the hearing, 
 270, n. 
 It fortiori, not so bound l)efore the hearing, 307. 
 but see Hardman v. Ellames, 29.5, et seq. 
 
 FORFEITURE.— &e Dipcoverv. 
 
 JURISDICTION. 
 
 to compel discover}', 2. 
 
 dangers incident to the jurisdiction, 2, 8. 
 
 necessity thereof, notwithstanding its dangers, 3, 4. 
 
 MATERIAL ;— MATERIALITY. 
 
 a relative term, as here used, 1.57, 109. 
 
 material witli reference to the case made and relief 
 
 prayed by the Bill, 1.57, 158, 109. 
 or material to some other suit actually, or capable of 
 being, instituted, 168. 
 that Court may judge of materiality, Bill must state the 
 
 purpose for which discovery is sought, 101. 
 unless discovery be material it need not be given, 157. 
 therefore, materiality/ considered, in determining sufficiency 
 of answer, 158, 159—169. 
 and consequently, in dctennining whether a document 
 
 shall be produced, 159 — 109. 
 unless contents of document material, it should not be 
 produced, 158, ct seq. 
 
 but see The Attornev-Gcneraf v. Ellison, 104, 211. 
 as against trustee or other jierson interested in part only, 
 considered, 164.
 
 384 iNnKx. 
 
 M ATERI A L ;— M ATERI A LITY —(contmued) . 
 
 Defendant must produce such parts of documents, &c. — as 
 are material to plaintiff's case, 164, 166. 
 may seal up or conceal irrelevant parts of documents, 
 165, 241. 
 remoteness of the bearings of particular discovery, 165 — 
 169. 
 
 OATH. 
 
 Defence generally upon oath, 262. 
 reasons for requiring oath, 262. 
 
 final effect of defendant's oath, on motion, before hearing, 
 237—243. 
 
 PAPERS — See Production of Documents. 
 
 PENALTY— ^ee Discovery. 
 
 PERJURY, danger of, a principle, 4, 265. 
 
 « PLAINTIFF'S CASE." 
 
 the term explained, 52 — 55. 
 
 a case positive or negative made by the bill, 5.*^. 
 that case, made by the bill, upon which the parties 
 are about to go to trial, 53. 
 determined by rules of pleading — unconnected with the Law 
 of Discovery, 17, 31. 
 illustrations of the above, 55 — 78. — See Answer, Disco- 
 very. Examples, 1 — 8. 
 
 PLEA. 
 
 Definition of, 55, n. 
 
 pure plea, 55. 
 
 anomalous plea, 57, 60, 65, 71. 
 
 is in effect a special answer only, 22, 56. 
 
 reduces cause to a single point, 26.
 
 INDEX. 385 
 
 PLEA — (continued. ) 
 
 which single point the defendant has a right to have tried 
 
 in the first instance, 22, 26. 
 admits all facts well pleaded in the bill to be true, 26, 66. 
 disadvantage of defence by plea, 23, n. 
 
 Plea tried in two stages. 
 
 1. upon argument, 23, 173. 
 
 2. if good upon argument, at hearing, 23, 175. 
 
 The trial being confined to the single point raised by the 
 plea — the discovery to which the plaintiff is en- 
 titled will be limited to that point also, 25. 
 
 but his right to discovery — so limited — is as extensive as if 
 the same point were defended by answer, 62. 
 
 must not cover discovery material to try the truth or 
 validity of the plea, 50, 51, 136. 
 
 Plea to relief in Equity covers all discovery incidental to 
 the relief — not being necessary for the trial of the 
 plea, 31, 50, 51. 
 rule explained, 147 — 152. 
 the like rule — where plea to bill for discovery 
 
 only, 32. 
 but see Hindman v. Taylor, 32. 
 defendant who pleads may give all the discovery which he 
 
 might withhold, 31. 
 whether a defendant who demurs or pleads to relief may 
 give partial discovery, qu.? 31, 32. 
 
 Answer in suppoit of pica. 
 
 suggestions as to pleas which require, 171, 172. 
 mode of framing a plea when the plea does not exclude 
 all discovery, 172. 
 anomalous character of rule re((uiring answer in support of 
 
 plea, 175. 
 in what sense ^\\6W^x supjiorts plea, 173. 
 c c
 
 386 INDEX. 
 
 PLEA — ( continued) . 
 
 upon what occasion answer supports plea, 173. 
 not i)art of the defence, 185, 187. 
 
 explanation of the rule which makes an answer in support 
 of a plea essential to its validity, 187. 
 Lord Eldon's ohservations in Bat/ley v. Adams, 187. 
 Lord Redesdale's observations upon the same, 188. 
 
 suggestions by the author, 188. 
 exceptions taken to answer admits plea to be good — ob- 
 servations on this rule, 183. 
 
 Averments in plea, 185, 18(5. 
 
 to exclude intendments against the pleader, 18(). 
 
 may be general, provided they substantially exclude the 
 
 intendments, 186. 
 are part of the defence, 187. 
 cannot be excepted to, 189. 
 
 As to the necessity of charging specially "as evidence" facts 
 which the plaintiff relies upon to counterplead a 
 plea — See Pleading, Charge. 
 
 What is meant by " Discovery covered by a Plea," 147 — 152. 
 cover in fact, 148, 150, n. 
 cover in law, 150. 
 
 This latter not founded in principle or supported 
 
 by authority preceding Thring v. Edgar, 150, n. 
 
 defendant must answer every thing material to the trial of 
 
 the plea, 155. 
 defendant waj/ answer anything relevant exclusively to the 
 matter of the plea, provided the plea do not pur- 
 port in terms to cover it, 155, 156. 
 defendant may well plead, and by answer say the same 
 
 thing as he has pleaded unto, semble, 152. 
 analogy to answer in subsidium of pure plea, 154. 
 
 Answer in subsidium of plea as distinguished from answer in 
 support of plea, 10, 11, 154.
 
 INDEX. 387 
 
 PLEADING. 
 
 Rules of pleading, unconnected with the laws of discovery, 
 detennine the order in which the points in a cause 
 shall be tried, 17 — 31 . 
 
 Where defence is hy plea, the point raised by the plea is the 
 
 first to be tried, 22, 26. 
 plea tried in two stages : — 
 
 1. On argument, 23, 173. 
 
 2. If good upon argument — at the hearing, 23, 175. 
 what discovery plaintiff entitled to, where defence is by 
 
 plea — See Plea. 
 answer in support of plea explained — See Plea. 
 
 Where defence is by answer, all the points in the cause come 
 on for trial simultaneously, 23, 24, 26. 
 
 what discovery plaintiff entitled to, where defence is by 
 answer — See Answer. 
 
 Pleadings must be certain — See Certainty. 
 
 as to the necessity of charging specially " as e\idence," 
 
 facts which a plaintiff relies upon to counterplead 
 
 a,plea, 137, et seq. 
 such special charge unnecessary, 142 — 154. 
 of general charge in bill, as to right to discovery, 125. 
 
 By what mode of pleading, objections to discovery may be 
 taken, 20—24. 
 
 1. Demurrer admits the bill, so far as it is well pleaded, to 
 
 be true — See Demurrer. 
 therefore, no discovery where defence is by demurrer — 
 See Demurrer, 
 
 2. Pure affirmative plea admits the bill, so far as it is well 
 
 pleaded, to be true — See Plea. 
 therefore, no discovery where defence is by pure plea — 
 See Plea. 
 
 c c 2
 
 388 INDEX. 
 
 PLEABmG— (continued). 
 
 3. Anomalous plea admits the bill, so far as it is well 
 
 pleaded, to be true, except the matters in the bill 
 
 which impeach or counterplead the plea — See 
 
 Plea. 
 therefore, no discovery, where defence is by anomalous 
 
 plea, except as to the matters which impeach the 
 
 plea — See Plea and Discovery. 
 but, discovery must be given as to matters (being well 
 
 pleaded) which impeach or counterplead the plea 
 
 — See Plea. 
 
 4. Negative plea, 60. 
 
 Effect in pleading of referring to a document, relating ex- 
 clusively to the defence, 295, et seq. 
 considered — upon principle, 305 — 324. 
 — upon authority, 324 — 340. 
 — as matter of j^ractice, 340. 
 not analogous to profert at law, 342. 
 
 " PRINCIPAL POINT " in a cause. 
 
 distinction l)ctween principal and subordinate or dependent 
 ])oints in a cause, 29, 30. 
 
 PRODUCTION OF DOCUMENTS, &c. 
 
 Ancient practice — to compel defendant to set out docii- 
 
 ments in the answer, 199, 200. 
 modem practice to give a schedule, 200. 
 documents referred to or scheduled to answer, are part of 
 
 answer, 202, 206, 248, 249. 
 motion for, a substitute for and in the nature of exceptions 
 
 to answer, 200, 201. 
 
 Plaintiff's right to, depends upon the question whether the 
 deeds, &c., form part of the defence or examina- 
 tion, 201, 294. 
 
 when part of examination (simpliciter) words of reference 
 unnecessary, 206.
 
 INDEX. 
 
 389 
 
 PRODUCTION OF DOCUMENTS, &c.^(continued). 
 
 when part of defence (simpliciter) and no Avords of refer- 
 ence—no production, 206, 220, 256, 286, 294. 
 effect of words of reference, 257, 295, et seq. 
 when evidence for defendant in comndon with plaintiff, 
 244, 262. 
 
 Defendant should describe deeds, &c., in answer or schedule 
 
 to it, 209. 
 defendant should admit or deny possession or power over 
 
 them, 209. 
 when not admitted to be in defendant's possession or 
 
 power, 210, 300. 
 
 Plaintiff must shew that he has an interest in them, 210. 
 definition of the word interest as here used, 212. 
 what admission of interest by defendant will suffice, 215. 
 
 When admitted to be relevant, and no qualification added, 
 216, 242, 243. 
 if relevancy admitted, plaintiff entitled to judge oi 
 
 their effect, 217. 
 if relevancy admitted, but qualified by insisting on a 
 
 reason for not producing a document, 207. 
 if relevancy admitted, the plaintiff need not require 
 the defendant to set out the contents of documents, 
 243. 
 as to necessity for an actual admission of relevancy, 218. 
 denial of relevancy conclusive against plaintiff's right to 
 production, &c., 219, 220. 
 
 Must be material for proof of plaintiff's case, 157, et seq. 
 confined to such parts of documents as are material, 164, 
 165,241. 
 
 When accounts improperly mixed, 244. 
 when the interests of parties not before the Court are con- 
 cerned, 244 — 247. 
 when in the hands of a witness, 315.
 
 390 INDEX. 
 
 PRODUCTION OF DOCUMENTS— (coM««me(/). 
 
 Wheu the object of suit is to impeach such deeds, &c., 
 225—237. 
 
 As to plaintiff's right to the production, at the trial of 
 an action, of documents scheduled to the answer, 
 247, et seq. 
 
 whether defendant l)ound to produce documents upon 
 trial of an action by plaintiff, against a third party, 
 255. 
 
 whether defendant in a suit in which he is defendant 
 can move for production of documents in plain- 
 tiff's hands, 49. 
 
 REFERENCE. 
 
 effect of words of, to deeds, &c., being part of the examina- 
 tion, 200. 
 to deeds, &c., being part of the defence, 296, et seq. 
 to deeds, &c., in the hands of a witness, 164. 
 
 SOLICITOR AND CLIENT. 
 
 their communications privileged, 82. 
 
 whether privilege strictly confined to communications 
 between Solicitor and Client, 254. 
 
 SUBORDINATE OR DEPENDENT POINTS IN A CAUSE. 
 
 distinction between principal and subordinate points in a 
 cause, 29, 30. 
 
 TRUSTEE. 
 
 answer of, or of party interested in part only, 164. 
 
 WAIVER. 
 
 by omitting to demur or plead. Prop. IV. .347, 348.
 
 INDEX. 391 
 
 W AIY^^— {continued). 
 
 by referring to a document stated in the pleadings, Hard- 
 man V. Ellames, 295. 
 
 by pretending to give discovery which the defendant might 
 withhold, Neate v. Latiiner, .352. 
 
 hy becoming Plaintiff for relief, qu. Lowndes v. Dames, 289 
 —And see 259, 200. 
 
 WITNESS. 
 
 where defendant a, 1G4. 
 
 production of deeds, &c., when in the hands of a, 315. 
 
 WRITINGS — See Production of Documents.
 
 LONDON: 
 
 w. m'dowall, printer, pemberton row, 
 
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