1849. PRITCHETT v. SMART. Byles, Serjt. now moved for a rule to shew cause why the plaintiff should not forthwith produce to the defendant his (the plaintiff's) book called the broker's book, pursuant to the provisions of the 7 G. 2. c. 8. s. 9. which contained the entries of the contracts, agreements, and bargains relating to the public stocks, made between the plaintiff and Richard Williams, the drawer of the bill of exchange mentioned in the declaration, and the days of making such contracts or agreements, so far as related to the sum or sums of money claimed thereon by the plaintiff from the said Williams when he indorsed the said bill to the plaintiff, and why the plaintiff should not shew to the defendant, &c., such parts of the said book or register as contained such entries, &c. This application is grounded on the 7 G. 2. c. 8. s. 9. (a), which requires every broker to keep a book which he is to produce "when thereunto lawfully required." In the only case upon this statute, Rawlings (a) "That all and every broker or brokers, or other person or persons who shall negotiate or act as a broker, receiving brokerage, in the buying, selling, or otherwise disposing of any of the said public or joint stocks, or other public securities, shall respectively keep a book or register, which shall be called 'The Broker's Book,' in which said book he and they shall fairly, justly, and truly enter all contracts, agreements, and bargains that he or they shall from time to time make between any person or persons whatsoever, on the day of the making such contract or agreement, together with the names of the principal parties, as well buyers as sellers, and also the day of making such contract or agreement, to the intent and purpose that such broker or brokers, and other person or persons acting or negotiating as such as aforesaid, shall, from time to time, produce such book or register when thereunto lawfully required; and, in case such broker or brokers, or any other who shall negotiate or act as a broker as aforesaid in relation to any the said matters, shall not keep such book or register, or shall wilfully omit to enter therein fairly, justly, and truly, any such contract, bargain, or agreement as aforesaid, he or they shall, for every such offence or omission, forfeit and pay the sum of 50%, to be recovered," &c. v. Hall (a), although it was held at nisi prius that a broker who had been served with a subpoena duces tecum was not bound to produce his book kept pursuant to this statute, a rule for a new trial was granted, the court in banc appearing to be of opinion that he would be compelled to produce it. That case seems to establish, that, in an action between third parties, a broker is obliged to produce his book. [Wilde, C. J. Is it quite clear that a broker is bound to produce a book in a court of law, and thereby subject himself to penalties ?] Here, the broker is the plaintiff, and the defendant ought to be allowed to defend himself by having access to the plaintiff's book. It was suggested, on the application at chambers, that the defendant's remedy, if any, was in equity; but Bullock v. Richardson (b) shews that the court of chancery will not interfere under this section, on the ground that it will not entertain an application for a bill of discovery, an answer to which might subject the party to penalties. [Wilde, C. J. What is the practice in this court on which you rely in applying for the present rule? V. Williams, J. The nearest cases to the present are where corporations or lords of the manor have been compelled to produce deeds and court-rolls; but, in those cases, the applicants had an interest in the documents.] This may be considered as being in substance an application by the drawer of the bill, who was a customer of the stock-broker; for, if the latter recovers against the defendant, the defendant may recover over against the drawer, the bill being an accommodation bill. The defendant, therefore, cannot be considered as a stranger to the book. Moreover, as the statute does not say to whom the book is to be produced, it would seem that the intention was, to make it a public book. 1849. PRITCHETT V. SMART. 1849. PRITCHETT V. SMART. WILDE, C. J. In general, applications like the present are made to a supposed equitable jurisdiction of the court. This defendant, however, does not appeal to any such power in the court, but relies on the statute, which, he says, obliges the plaintiff to produce his broker's book, when required; and the defendant calls upon us to enforce its production. It is the opinion of the whole court that this application does not rest on any solid foundation. I know of only one class of cases in which the court interferes to compel a party to a suit to allow his adversary to inspect documents which the latter alleges are necessary to his defence; and that is where the applicant has an interest in the documents to be produced. My brother Williams has referred to cases where corporations or lords of manors are required to produce their books or court-rolls. So, where two parties sign a document, which is left in the possession of one of them, the other clearly has a right to its production, without having recourse to a court of equity. So, where a document is considered to be held by one party as a trustee for himself and another. But these applications are never granted, unless the person seeking to enforce the production has an interest in the document withheld. Here, the defendant, the acceptor of the bill, says, "I can impeach the consideration which the plaintiff gave for it, if you will only allow me to examine his book." And he asks for its production, whereby the plaintiff may not only be compelled to give evidence against himself in the action, but may subject himself to penalties. He grounds his application on the 9th section of the 7 G. 2. c. 8., which requires a broker to keep a book of all contracts, agreements, and bargains made by him. The statute undoubtedly prohibits all bargains for stock, assuming the appearance of a sale, but being, in reality, in the nature of a wager, and the book is to be produced, but to whom? I apprehend to the broker's principals. It is clearly not the intention of the act to compel a broker to give evidence against himself, and thereby subject himself to penalties. This is shewn by the 2nd and 4th sections of the act; for, while the former allows him to be proceeded against in equity, by a bill of discovery, the latter indemnifies him against the consequences of answering. Were we to enforce the production of the plaintiff's book, we should have no power to discharge him from the penalties he might thereby incur. The defendant has no interest in the book; and it appears to me that it would be contrary to the spirit of the act, were we to require its production. The application, therefore, cannot be granted. COLTMAN, J. It seems to me that we must reject this application, upon the same grounds on which a court of equity would refuse to call upon the party to answer a bill of discovery. According to the argument of my brother Byles, the filing of a bill of discovery would be just as lawful an occasion for the production of the book, as the present application. With respect to the words of the statute,- that the broker shall produce his book "when thereunto lawfully required," Rawlings v. Hall seems to shew, that, on a trial at law, the broker, having been served with a subpœna duces tecum, is compelled to produce it. - CRESSWELL, J. I am of the same opinion. The statute says, the broker is to produce his book when lawfully required; leaving it to the court to determine what is a lawful occasion. Here, the defendant is not a party to any of the transactions presumed to be entered in the book; neither is it held by the plaintiff as a trustee for him. The only ground suggested for the ap 1849. PRITCHETT v. SMART. 1849. PRITCHETT บ. SMART. plication, is, that the book, when produced, might enable the defendant to frame a plea that would furnish a good defence to the action. Is this, therefore, a lawful occasion? I apprehend it is not. The case of Bullock v. Richardson shews that the court of chancery will not, under this section of the act, oblige a man to answer a bill of discovery, which might subject him to penalties. V. WILLIAMS, J. It is difficult to say how the court acquired the equitable jurisdiction which they exercise in compelling the production of documents. According to a case in 1 Wms. Saund. p. 98., 9th ed. n. (i), this jurisdiction is as old as the time of Charles II. It is clear, however, that we ought not to interfere in a case in which a court of equity would decline to entertain a bill of discovery. Rule refused. April 25. Where, in an action of tort, the plaintiff obtains a verdict for less than 51. under a writ of inquiry, he is entitled to his costs, although the TRESP REED v. SHRUBSOLE. RESPASS for an assault, the damages being laid at 1007. The defendant having allowed judgment to go by default, a writ of inquiry was executed before the sheriff of Kent, under which the damages were assessed at 40s. The defendant thereupon entered a suggestion on the roll to deprive the plaintiff of costs, under the sheriff has no power to certify, and although the action might have been brought in one of the new county-courts: dissentiente, Cresswell, J. |