To whom inspection may be given.

other party. It seems that he must ab initio have received the custody under that implied trust; as, where it appears, that only one instrument was executed. There is no case in which a rule has been made to compel a party, who holds a counterpart of an instrument, to allow an inspection, on the ground that the other part has been lost or is inaccessible. In an action of (1) covenant on a charter party, it appeared that two parts of the deed had been executed, but it appeared that the plaintiff's part had been lost at sea in a vessel which foundered, and on this ground a rule was obtained to compel the defendant to allow the plaintiff to inspect and take a copy of his part; but the rule was discharged, and Sir Vicary Gibbs said, the case did not come within the rule, the defendant not being a trustee as to his possession of the deed.

It seems that the person, in whose favour an order for inspection of documents is made, must be a party to the suit, but it is not necessary that he should be one of the parties executing the instrument; it is sufficient, if he be identified in interest with a party executing, as, for example, if he take an estate by way of remainder. (2) But unless he is either a party to the deed, or a party in interest, he cannot compel the other party to produce an instrument in his possession. (3) In one case (4) it was held, in an action against a sworn broker of the city of London for negligence in making a purchase for the plaintiff, that the plaintiff was entitled to an inspection of the entry in the defendant's books of the contract made on his behalf, on the ground that the defendant was the agent of the parties in making the contract and the entries. It was urged in argument in support of the rule, that it was the duty of the broker to make entries in his books of all contracts, and allow the

(1) Street v. Brown, 6 Taunt.
302.
Portman v. Goring, 4 Bing.
152, Sed vide Travis v. Collins,
2 C. & J. 625.

(2) By Heath, J., Bateman v.
Phillips, 4 Taunt. 161. In Brown v.
Rose, 6 Taunt. 283, the decision
of the Court was not on this point,

but founded on their discretionary power to grant or refuse an application of this nature.

(3) Lawrence v. Hooker, 5 Bing. 6. See Brown v. Rose, 6 Taunt. 283, and the cases cited supra, 816,n. (4) Browning v. Aylwin, 7 B. & C. 204.

parties to inspect them, and that he gave a bond to do so on his appointment.

In general the Court will not interfere to compel a person not a party to the suit to produce documents for inspection; (!) but there is an exception to this rule, if the third party have obtained possession from a party to the suit. In that case, if it appear that there was but one instrument between the parties, he must be considered as holding it under notice, that it was previously held in trust for the production of it to the other party. Thus in a recent case, in an action of ejectment by a landlord against his tenant, where it appeared that the lessee of the premises in question had mortgaged his interest in the premises, and deposited the indenture of demise with the mortgagee, the Court of Exchequer made a rule absolute to compel the mortgagee to allow the lessor of the plaintiff to take a copy of the lease. (2) But where a third person is in possession of an instrument by a title paramount to that of the parties to the suit, it seems that the Court would not compel him to produce it. (3)

Instrument in

the hands of a

third party.

the

purpose of stamping.

It appears, in general, whenever a party would be com- Production for pelled to allow an inspection of a document, he may be called upon to produce it, for the purpose of being stamped, so that it may become admissible in evidence at the trial; and in some cases, where the party holding an instrument would not be bound to allow an inspection, he may be compelled to allow the other party to stamp it. (4) Thus in the case of Neale v. Swind, (5) though there had been originally two parts of a document, (the destruction of one of which would not be a sufficient ground for calling upon the party possessed of the other part to allow an inspection,) (6) the Court held that, to prevent the failure of justice which would occur by the exclusion of all evidence upon the production of the unstamped instru

(1) Rex v. Worsenham, 1 Lord Raym. 705. Cocks v. Nash, 9

Bing. 721.

(2) Doe d. Morris v. Roe, 1 M. & W. 207, and see Harris v. Aldrit, 2 Ch. 229.

(3) See Pickering v. Noyes, 1 B.

& C. 262, and Doe d. Morris v.
Roe, 1 M. & W. 207.

(4) See Bateman v. Phillips,
Taunt. 161.

(5) 2 Cr. & J. 278.
(6) Supra, 820, n. (1).

Inspection directed by

statute.

Actions on policies of insurance.

Annuity deeds.

ment, the party holding the counterpart might be compelled to produce it at the stamp office; a production for that purpose was distinguished from a production for inspection by Bayley, B., and Vaughan, B.

There are some cases, in which facility is given, by the express enactment of a statute, to the inspection of private documents. The stat. 19 G. 2, c. 27, s. 6, enacts, “That in all actions or suits brought or commenced by the assured upon any policy of assurance, the plaintiff in such action or suit, or his attorney or agent, shall, within fifteen days after he or they shall be required to do so, in writing by the defendant or his attorney or agent, declare in writing what sum or sums he had assured or caused to be assured in the whole, or what sums he has borrowed at respondentia or bottomree for the voyage or any part of the voyage." And it has been laid down that "in actions of this nature, a Judge at chambers will make an order for the assured to produce to the underwriters, upon affidavit, all papers in possession of the former relative to the matter." (1)

The stat. 53 G. 3, c. 141, s. 5, enacts, "That in case any person or persons, by whom any annuity or rent-charge, of which such particulars as aforesaid are required to be enrolled, shall for the time being be payable, shall be desirous of obtaining a copy of every or any deed, bond, instrument, or other assurance, whereby such annuity or rent-charge was granted, and of such his, her, or their desire shall give twenty-one days' notice in writing to the person or persons for the time being entitled to such annuity or rent-charge, such person or persons shall on or before the expiration of such twenty-one days, unless prevented by fire or other inevitable accident,—and in that case, if the assurances shall not be destroyed by such accident, then as soon after as such impediment shall be removed,—send, or deliver to the person or persons requiring the same a copy of every deed, bond, instrument, or other assurance, whereby such annuity or rent-charge was granted, or of such of the as

(1) Tidd's Prac. 9th edit. 591. The authority cited for this position

which fully supports it, is Goldschmidt v. Marryat, 1 Campb. 562.

surances as in such notice shall be required, and such last-mentioned person or persons shall at the time of receiving the same, pay to the person or persons furnishing the same a sum after the rate of sixpence for every one hundred words contained in every such copy, and also the reasonable costs of sending or delivering the same, and the person or persons holding the original instrument, by which such annuity or rent-charge shall be secured, shall suffer the person or persons, to whom such copies shall be delivered or sent, to examine the same with the originals, and in case such copies shall not be sent or delivered, or the person or persons holding the original instruments shall refuse to suffer such copies to be examined therewith according to the direction of this act, it shall be lawful for the person or persons by whom the annuity or rent-charge is payable, to take out a summons from any of His Majesty's justices of his Courts of King's Bench and Common Pleas, requiring the person or persons neglecting to send or deliver such copies, or refusing to suffer the same to be examined with the original instrument as aforesaid, to appear before such Judge and shew cause in the premises, and it shall and may be lawful for the Judge before whom such person or persons shall be summoned to make such order for the production of the instrument by which such annuity or rent-charge shall be secured, and for suffering the complainant to take copies thereof and examine the same or the copies delivered with the original instruments and otherwise in the premises as to such Judge shall seem meet."

In some instances the Court, in the exercise of it's equitable jurisdiction, will compel a party to allow an inspection of documents given in evidence by him on a former trial. (1)

Equitable jurisdiction in other cases.

Assisting a bill

In cases in which a Court of Law has not jurisdiction to compel a party to the suit to produce a writing, it has been of discovery. held, that if the inspection desired be of such a nature as would be

(1) See Hewitt v. Pigott, 7 Bing. 400. Note, that in this case the order for inspection was made upon the party to whom a new

trial had been granted, and the
Court could have enforced it's
order under penalty of discharging
the rule for a new trial.

Discretion of

Court in im

production.

obtained by a bill of discovery, the Court will stay the proceedings on a refusal to give inspection, until the party applying for it shall have had an opportunity of resorting to a Court of Equity. (1)

But in a later case, (2) the rule was said to be, that a Court of Law would neither accelerate nor retard the progress of a cause, to defeat or assist any proceedings in equity. In general, however, this object may be obtained by injunction.

Though the case in which inspection is sought, be clearly posing terms on one in which the party in possession of the instrument holds it in trust to produce it for the other party, it seems to be discretionary with the Court to compel him to produce it. (3) And in one case, it was said, (4) that a Judge, in making an order for the production of an instrument, will, in general, make it a part of the order, and a condition of granting it, that the applicant shall undertake not to make an objection to the sufficiency of the stamp.

General jurisdiction of Court.

It seems, that the common law jurisdiction of the Courts of Law for enforcing the production of private documents, is given by the pendency of a suit, and by that alone; there appears to be no instance in which a Court of Law has made a rule for the production of such documents, except where a suit has been pending, and where they have been required for the purpose of assisting in the inquiry involved in the suit. (5)

(1) Whitter v. Cazalet, 2 T. R. 683.

(2) Goldschmidt v. Marryat, 1 Campb. 561.

(3) Brown v. Rose, 6 Taunt. 283. Beale v. Bird, 2 D. & R. 419, supra, 817. It is laid down in the marginal note to Reid v. Coleman, 2 Cr. & M. 456, that in cases within the rule, there being only one instrument, the party in possession of it "has no right to impose terms as a condition" for allowing it to be inspected. That case, however, deci

ded only that he had no right to the terms, which he sought to impose, and not that the Court could not impose terms as a condition of the exercise of their jurisdiction.

(4) By Park, J., in Price . Boultby, 1 C. & P. 466, and see Bousfield v. Gregory, 5 Bing. 420. Dawson v. Macdonald, 2 M. & W. Sed vide Travis v. Collins, 2 C. & J. 627.

(5) See ex parte Partridge, I Har. & W. 350.