5. If the person interrogated be a solicitor, it is a sufficient answer to state "I have no personal knowledge of the matters referred to in this interrogatory, and the only information and belief that I have received or have respecting any of such matters has been derived from and is founded on information of a confidential character procured by me as solicitor of the said C., and not otherwise, for the purpose of litigation between the plaintiff and the said C., either pending or threatened by the plaintiff. I claim to be privileged from answering this interrogatory further." (Proctor v. Smiles, 55 L. J. Q. B. 467, 527.) Similarly, a client may refuse to disclose information which he only obtained from his solicitor since action and which was the result of inquiries instituted by the solicitor for the purposes of the litigation. (Proctor v. Raikes and another, 3 Times L. R. 229.)

6. "In answer to the 5th interrogatory, I say that to answer the said interrogatory would tend to criminate me; wherefore I respectfully decline to answer the same;" or, "wherefore I humbly submit that I am not bound to make any further or other answer to the same." This objection must be stated in clear and unequivocal language. (See Bedford v. Colt (not reported), post, p. 660.) In Lamb v. Munster (10 Q. B. D. 110; 52 L. J. Q. B. 46; 31 W. R. 117; 47 L. T. 442), it was held sufficient for the defendant to state on oath, "I decline to answer all the interrogatories upon the ground that my answer to them might tend to criminate me." (And see Jones v. Richards, 15 Q. B. D. 439.)

To publish a libel is a crime. Hence to ask whether the defendant had any share in writing, printing, or composing the alleged libel, or was the editor of the newspaper at the date of publication, has a direct tendency to criminate him; and he may therefore refuse to answer such questions, although there is not the faintest prospect in reality of any criminal proceedings being taken against him. And this answer (except in one case) is conclusive; it is idle for the party interrogating to argue that he does not see how the question can possibly criminate the deponent, if the deponent swears positively it will.

But by statute an exception has been created. Section 19 of the 6 & 7 Will. IV. c. 76 was re-enacted by the 32 & 33 Vict. c. 24, sched. 2, while other sections were repealed by sched. 1. It therefore remains in force, although subsequently the whole original act was repealed by the 33 & 34 Vict. c. 99. It runs as follows: "If any person shall file any bill in any court for the discovery of the name of any person concerned as printer, publisher, or proprietor of any newspaper, or of any matters relative to the printing or publishing

of any newspaper, in order the more effectually to bring or carry on any suit or action for damages alleged to have been sustained by reason of any slanderous or libellous matter contained in any such newspaper respecting such person, it shall not be lawful for the defendant to plead or demur to such bill, but such defendant shall be compellable to make the discovery required; provided always, that such discovery shall not be made use of as evidence or otherwise in any proceeding against the defendant, save only in that proceeding for which the discovery is made." Before the Judicature Act it was held that this section was confined to a bill for discovery in Equity, and was not incorporated by the C. L. P. Act, 1854, so as to apply to interrogatories at Common Law. It followed that if the defendant answered such interrogatories, his answers could have been used against him in a criminal proceeding. The court therefore refused to order the defendant to give the required information, he having objected on oath to answer the interrogatories, and this although by going into Equity the plaintiff could have compelled the defendant to answer. (Bowden v. Allen, 39 L. J. C. P. 217; 18 W. R. 695; 22 L. T. 342.)

Hence a plaintiff was compelled to file a bill for discovery in Equity to obtain this information, a cumbrous and expensive proceeding. There is only one instance reported in which a plaintiff availed himself of the privilege. (Dixon v. Enoch, L. R. 13 Eq. 394; 41 L. J. Ch. 231; 20 W. R. 359; 26 L. T. 127.) But directly the Judicature Act came into operation, every Division of the High Court of Justice was empowered to grant all equitable remedies, and to exercise all powers formerly possessed by the Court of Chancery, with the especial object of avoiding all circuity and multiplicity of legal proceedings. Hence, as early as November 7th, 1875, Lush, J., in Ramsden v. Brearley (33 L. T. 322; Weekly Notes, 1875, p. 199; 1 Charley, 96; Bitt. Addenda; 20 Sol. J. 30), decided that the following interrogatory was allowable, and could not be struck out:"Were you, on the 22nd of November, 1874, the printer or publisher, or both, of the Standard newspaper?" And his lordship decided that the protection accorded by the concluding proviso of sect. 19 of 6 & 7 Will. IV. c. 76, would attach to the defendant's answers, so that they could not be used against him in any other proceeding. To answer such an interrogatory cannot therefore tend to criminate the defendant. This decision was followed by Archibald, J., in Carter v. Leeds Daily News Co. and Jackson, Weekly Notes, 1876, p. 11; 1 Charley, 101; Bitt. 91; 20 Sol. J. 218; 60 L. T. Notes, 196, post, p. 659, Precedent, No. 74.

So, too, in Lefroy v. Burnside (4 L. R. Ir. 340; 41 L. T. 199; 14 Cox, C. C. 260), the defendant in an action for libel, the alleged proprietor of a newspaper, was served with interrogatories by the plaintiff inquiring, inter alia, whether he was not such proprietor. This interrogatory the defendant in his answer declined to answer, on the ground that it might tend to criminate him in certain criminal proceedings which had been commenced against him by the same plaintiff, and were then actually pending. On summons by the plaintiff to compel further answer to this interrogatory, the Exchequer Division in Ireland held that it must be answered; inasmuch as sect. 19 of the 6 & 7 Will. IV. c. 76, was still in force, and was by sect. 24, sub-s. 7, of the Judicature Act, 1873, made enforceable by interrogatories in an action in the Queen's Bench Division. (See post, p. 659.)

But it must be remembered that sect. 19 of 6 & 7 Will. IV. c. 76, applies only to the "printer, publisher, or proprietor" of a newspaper. A defendant may therefore object, on the ground of criminality, to answer any interrogatory asking whether he is the editor of the paper (Carter v. Leeds Daily News and Jackson, supra), or whether he is the author of the alleged libel. (Wilton v. Brignell, Weekly Notes, 1875, p. 239; 1 Charley, 105; Bitt. 56; 20 Sol. J. 121; 60 L. T. Notes, 104. And see M'Loughlin v. Dwyer (1), Ir. R. 9 C. L. 170.)

This point is still one of practical importance; for though the Newspaper Libel and Registration Act, 1881, compels the printer of every newspaper to make an annual return (ante, p. 388), still it is possible that since the last return the defendant may have transferred all his interest in the paper to some one else before the libel appeared; and this it is open to him to prove at the trial, and if proved it will be a good defence. It is not therefore safe to wholly rely on a certificate under that act where the defendant denies on the pleadings that he was proprietor of the paper at the date of the libel.

Where the plaintiff, who had sued the publisher of a newspaper, administered interrogatories and thereby ascertained, for the first time after issue joined, the name of the proprietor of the paper, he was allowed to join the latter as a co-defendant with the publisher under Order XVI. r. 4. (Edward v. Lowther, 45 L. J. C. P. 417; 24 W. R. 434; 34 L. T. 255.)

Discovery of Documents.

As a rule, neither party can obtain discovery or inspection of documents before the defence has been delivered. (British and Foreign Contract Co. v. Wright, 32 W. R. 413.) The Courts of Common

Law used formerly, when discovery was only granted as a favour, to refuse to assist a defendant to obtain evidence in support of a plea of justification, on the ground that he should not have published the charge till he was in a position to prove its truth. Thus, where a shareholder in a joint-stock company published and justified a libel imputing insolvency to the company, he was held to be not entitled to inspect the books of the company. (Metropolitan Saloon Omnibus Co. v. Hawkins, 4 H. & N. 87, 146; 28 L. J. Ex. 201; 5 Jur. N. S. 226; 7 W. R. 265; 32 L. T. (Old S.) 281.) But in Equity it appears that a defendant, in an action of libel, was allowed precisely the same discovery as a defendant in any other suit, and that although he had pleaded a justification. (Per Sir John Leach, V.-C., in Thorpe v. Macaulay, 5 Madd. 230; and see Hare on Discovery, p. 116.) And now the Chancery rules govern discovery in all Divisions. (Anderson v. Bank of British Columbia, (C. A.) 2 Ch. D. 644; 45 L. J. Ch. 449; 24 W. R. 724; 35 L. T. 76.) But it may still be questioned whether such discovery should be allowed till after full particulars of such justification have been delivered. A plaintiff was always allowed discovery and inspection of all documents in the possession of the defendant which would help him to rebut the justification. (Collins V. Yates and another, 27 L. J. Ex. 150.)

In a proper case (as when the chief question in dispute is, In whose handwriting is the libel?), the master will order the party in possession of the libel to permit his opponent to take photographic or facsimile copies thereof, of course at his own expense. (Davey v. Pemberton, 11 C. B. N. S. 628.)

That letters are privileged in the special sense in which that term is used in actions of defamation (i.e., that the occasion on which they were written renders them not actionable unless the plaintiff can. prove malice) is no ground for refusing to produce them: they are not privileged from inspection. (Webb v. East, (C. A.) 5 Ex. D. 23, 108; 49 L. J. Ex. 250; 28 W. R. 229, 336; 41 L. T. 715.) It is, however, a ground of privilege that the documents, if produced, would tend to criminate the party producing them. But this objection (as in the case of interrogatories) can only be taken by the party himself and on oath. Thus, in an action to recover damages for a libel, alleged by the plaintiff to be contained in two letters which the defendant admitted he had written, the court ordered the defendant to produce copies of these letters in his possession for the plaintiff's inspection, although the defendant raised the objection that such inspection might expose him to criminal proceedings for libel. And this order was affirmed in the Court of Appeal, where it was held

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that if the defendant could protect himself from production at all, it could only be by his oath that the production would expose him to criminal proceedings. (Webb v. East, supra.) This decision overrules Hill v. Campbell (L. R. 10 C. P. 222; 44 L. J. C. P. 97; 23 W. R. 336; 32 L. T. 59), a case which was indeed already practically overruled by Fisher v. Owen, (C. A.) 8 Ch. D. 645; 47 L. J. Ch. 681; 26 W. R. 581; 38 L. T. 252, 577. Where the defendant was in possession of certain documents, but objected to produce them, because, as he said in his affidavit, "the production may, to the best of my information and belief, tend to criminate me," the court ordered their production. (Roe v. New York Press and another, 75 Law Times (newspaper), 31.)

A solicitor who is a party to an action may refuse to produce documents of which he is in possession solely as solicitor for a client. (Proctor v. Smiles, 2 Times L. R. 474.)

Sometimes, also, production is refused on the ground of public policy and convenience. This can only be where one party to the suit is officially in possession of State documents of importance. If the defendant be a subordinate officer of a public department sued in his official capacity, he cannot claim privilege on the ground of public policy; production can only be refused on that ground by the head of a department. (Beatson v. Skene, 5 H. & N. 838; 29 L. J. Ex. 430; 6 Jur. N. S. 780; 2 L. T. 378, post, p. 563.) But if it be shown to the court that the mind of some responsible person has been brought to bear upon the question, the objection will be upheld. (Kain v. Farrer, 37 L. T. 469; W. N. 1877, p. 266.)

Advice on Evidence.

As soon as notice of trial is given, or in urgent cases even sooner, the papers should be laid before counsel for his advice on evidence. This should always be done by both sides, even in cases apparently simple; else the action may be lost for want of some certificate or other formal piece of proof, as in Collins v. Carnegie, 1 A. & E. 695. Every document in the case should be sent in to counsel, especially the affidavits of documents, the answers to interrogatories, and the draft notices to produce and to inspect and admit. Also some statement as to the oral evidence proposed to be given, if not the full proofs which will afterwards form part of the brief.

Counsel in advising on evidence must consider, first, what are the issues in the case, and which lie on the plaintiff, which on the defendant; and then state seriatim how each is to be proved or rebutted.

The onus lies on the plaintiff to prove that the defendant published