As to the authorities, they are to my mind clear for the plaintiff. After their examination by the noble and learned lord on the woolsack I will not trouble your Lordships with any remarks, except this, that in my opinion Horton v. Bott, 2 H. & N. 249; 26 L. J. Ex. 267, was rightly decided, but is no authority for the decision in this case.

I am of opinion that this appeal should be allowed.

My Lords, I have also arrived at the conclusion that the order of the Court of Appeal cannot be sustained, inasmuch as [* 231] the rule * on which it was supposed to rest does not exist. There is no principle properly applicable in support of that order, and it seems to me that it does not recommend itself to our notions of justice. There can be no doubt that the Court of Appeal intended to decide, as the reported language of the Lords Justices is so plain and clear. Lord Justice BRETT is reported to have said, "Therefore this action seems to me to be clearly an action brought in order to recover possession of land, and the right to recover is rested upon the legal title of the plaintiff. The question then is whether in such an action the plaintiff can interrogate the defendant upon the matters affecting the plaintiff's title, or, I will put it as high as this, whether he can interrogate the defendant at all." (20 Ch. D. 490.)

The Lord Justice then proceeds to discuss that question, and after some observations on the rule that a plaintiff in such an action must succeed, if at all, on the strength of his own title, he says that the plaintiff "must show that he himself has the legal title to the possession of the property, and must show it entirely by his own means, the defendant not being called upon to answer anything or to disclose anything;" and he adds further on, as a conclusion," therefore, neither before the Common Law Procedure Act nor afterwards was a plaintiff in ejectment allowed to interrogate a defendant for the purpose of supporting the plaintiff's claim."

The MASTER OF THE ROLLS puts it as forcibly and as clearly. After inquiring whether there was any case in which a Court of Equity had enforced discovery under such circumstances, he observes (20 Ch. D. 488), " There is no such case, and the reason is, that it would be against public policy." And further on he adds, "The rule was that a man must recover in an action of ejectment by the strength of his own title alone, and I think there was a

No. 1. — Lyell v. Kennedy, 8 App. Cas. 231, 232.

good reason for it; but, reason or no reason, the course of practice in these actions is conclusive as to the non-existence of the right of a plaintiff in an action of ejectment to file a bill for discovery in aid of his action."

Mr. Horton Smith, in his argument for the defendant, took very high ground indeed when he urged that " the plaintiff can have * no answer,- this is a point of high public policy." [* 232] It did occur to me on the opening that the discussion ought to be a very short one, but the case has been debated at great length, as involving a principle applicable to all actions of ejectment on a legal title when the plaintiff's title is controverted.

A great number of cases were cited and commented on, and we were referred to several text-books of considerable authority. The industry of Mr. MacClymont discovered and brought under our notice several cases in point, and I entirely agree with the noble and learned Earl on the woolsack, as the result of the examination of the authorities, that there exists no rule or practice in equity which forbade the enforcement of discovery in aid of an action of ejectment founded on a legal title, and that, on the contrary, bills of discovery in such cases were entertained, and discovery enforced as in other cases.

Having arrived at that conclusion, the appeal must be allowed, and the defendant must answer. If interrogatories have not been put bona fide, or are oppressive or irrelevant or scandalous, or are subject to any other valid objection, it will lie on the defendant to apply to strike them out, or he may refuse to answer some of them on special grounds, or he may in the present case seek to postpone some portions of the discovery until the plaintiff has established heirship.

I may be permitted to observe that your Lordships' decision does not in the least trench on the rule or maxim so much relied on in the Court below, that a plaintiff in ejectment must succeed, if at all, on the strength of his own title, and not on the weakness of the title of the defendant in possession, or, in other words, that the plaintiff must prove his title before the defendant can be called on to enter on his defence. Possession is enough for him until the plaintiff has shown a right to take that possession from him. Melior est conditio possidentis is not confined to land, though more frequently applied to the actual and visible possession of land than to chattels, for the possession of land has ever been

regarded by the law with some degree of favour, as primâ facie evidence of ownership in fee. In The King v. Bishop of Worcester, Vaughan, 58, it is said, "When you will [* 233] * recover anything from me it is not enough for you to destroy my title; but you must prove your own better than mine. For it is both rational to conclude you have no right to this, and therefore I have, for without a better right, melior est conditio possidentis regularly.

The plaintiff does not contest this maxim or seek to escape from it. He admits that he must prove his title, and can only succeed on a proved title. He claims to be permitted to prove that title. He seeks to do so now by the examination of the defendant as to his (the plaintiff's) title, just as he would be entitled to call the defendant as a witness on the trial and examine him as to the pedigree on which the plaintiff relies, or any other step in his title on which the defendant may be a competent witness.

The contention of the defendant, on the other hand, seems to be inconsistent. He says the plaintiff must prove his title, but "he is not permitted to interrogate me now to it, even though I may be the plaintiff's only witness." There is nothing in the maxim, and there is nothing in public policy or in the policy of the law, which deprives the plaintiff of the ordinary right of proving his own title by the lips of the defendant.

There was another question discussed in the case on which I desire to guard myself, viz., whether under the Judicature Act and rules the right of discovery is or is not more extensive than it for merly was in Courts of Equity. It was put thus, the Judicature — Act is an Act to regulate procedure, and not to affect established rights, and if there was no right to discovery before the passing of the Judicature Act, there is no right to interrogate now. On these propositions I refrain from expressing any opinion, save that they are stated too largely, for there can be no doubt that the Judicature Act in carrying into effect the object stated in its preamble, the better administration of justice," does interfere with and alter rights. If the expressions used be limited to "discovery," and to administering" interrogatories," the rules clearly do make an alteration as to what has been called "right;" for example, a Court of Equity in the exercise of its auxiliary jurisdiction did not lend its aid to enforce discovery where the action was in [* 234] respect of a mere tort, * but I should think that a plaintiff

No. 2. - Bidder v. Bridges, 54 L. J. Ch. 798.

may now, in such an action exhibit interrogatories and enforce discovery.

It seems to me also not to be very clear that an increased power to exhibit interrogatories to the defendant, and enforce discovery as to the plaintiff's title, or vice versa, is an interference with the right of the party interrogated, or is more than alteration of procedure. Since the passing of the Evidence Amendment Acts, making all parties competent witnesses, it is difficult to see that there can be a "right" in any litigant to refuse to answer proper interrogatories where he is liable to be called as a witness and examined viva voce to the same matters.

The Judicature Act and Order XXXI., seem to confer on the litigant in every action the right to exhibit interrogatories to his opponent, subject to the protection given by the exercise of judicial discretion, and by the succeeding rules of Order XXXI.; and probably the intention was to give the litigant in all cases a right to interrogate his adversary as to every relevant matter on which he could examine him, if he thought fit to call him as his witness on the trial of the cause.

Orders appealed from reversed; with a declaration that the respondent ought to put in a further and better answer to the appellant's interrogatories, and also to file a further and better affidavit as to all the documents which he objects to produce: respondent to pay the costs of this appeal and the costs of the summonses in both the Courts below; cause remitted to the Chancery Division.

Lords' Journals, 19th March, 1883.

Bidder v. Bridges.

54 L. J. Ch. 798-808 (s. c. 29 Ch. D. 29; 52 L. T. 455; 33 W. R. 792).

The plaintiffs, who were two persons suing on behalf of themselves and [798] all others the proprietors and occupiers of lands or tenements in the parish of M., sought to restrain the defendant, who was the lord of the adjacent manor of W., from inclosing or building on certain land which the plaintiffs alleged formed part of M. common over which they claimed certain commonable rights. One of the plaintiffs was the owner in fee of a mansion-house and grounds, and the other was the owner in fee of a beerhouse and certain cottages, all in the parish of M. The defence was that the land in question was not part of M. VOL. IX.-34

common, but was common land of the defendant's manor; that if the rights claimed by the plaintiffs had ever existed, they had been extinguished, and that some of such rights could only be claimed in respect of ancient tenements. The defendant further alleged that the beer-house and cottages had no land attached to them or held therewith, that the land in question formed part of the manor of W., and denied that the plaintiffs' tenements were ancient tenements. The rest of the defence amounted to a direct traverse of the plaintiffs' case. The defendant administered interrogatories to the plaintiffs, in effect asking1. Whether the tenements held by the plaintiffs were ancient; 2. Whether any lands were held with the beerhouse and cottages; 3. Whether the tenements in question were held of any, and what, manor; 4. Whether there had been any user by the plaintiffs or their predecessors in title of the alleged commonable rights :- Held, that the plaintiffs must answer the interrogatory No. 2, because as to that the defendant had pleaded a substantive case that the beerhouse and cottages had not any land attached thereto or held therewith; but, inasmuch as the defence was otherwise only a direct denial of the plaintiffs' case, the remainder of the interrogatories, being directed to the discovery of the plaintiffs' evidence, need not be answered.

On appeal by agreement between the parties, the Judges of the Appeal Court, as arbitrators, settled the interrogatories in the form in which they were to be answered, and allowed interrogatories under all four heads.

This action was brought by G. P. Bidder and W. H. Nightingale, on behalf of themselves and all other the proprietors and occupiers of lands or tenements in the parish or vill of Mitcham, in the county of Surrey, for a declaration that a certain piece of land known as Beddington Corner was part of Mitcham Common, and that the plaintiffs and those on whose behalf they sued were entitled to stock the same with their cattle and other commonable beasts at all times of the year, and that they and the inhabitants of Mitcham were entitled to rights of recreation and to other valuable rights, easements, and privileges over the same. The plaintiffs also claimed an injunction restraining the defendant

from trespassing on the land or erecting any buildings or [* 799] fences thereon, * and from otherwise intermeddling therewith or interfering with the plaintiffs' enjoyment of their rights over the said land. They alleged in their statement of claim that the inhabitants of Mitcham had as of right from time immemorial used and enjoyed, and still used and enjoyed, for their lawful recreation, the part of the common called Beddington Corner as a town green within the meaning of the 12th section of the Inclosure Act, 1857, and the 29th section of the Commons Act, 1876; and that the owners and occupiers of lands and tenements in the said parish had from time immemorial as of right had and