C. A.

1897

v.

URBAN DISTRICT COUNCIL.

Scott Fox, for the plaintiff. With regard to the discovery of documents this case falls within the decision in Seaward v. MEXBOROUGH Dennington (1), where it was held that the defendant in an (EARL OF) action for forfeiture was bound to make an affidavit of docuWHITWOOD ments. There is no substantial distinction between interrogatories and discovery of documents for this purpose. It was decided in Chester v. Wortley (2) that interrogatories might be administered in an action for a forfeiture, and any objection to answering them on the ground of privilege must be taken in the answer. It was no doubt held by this Court in Martin v. Treacher (3) that in an action for penalties by a common informer leave could not be given to administer interrogatories to the defendant; but there is a great distinction between an action for penalties, which, though in form a civil action, is in substance a criminal proceeding for the purpose of punishment, and an action for a forfeiture for breach of covenant, which is really only to enforce a right of property given by the defendant's own contract. [He also cited Lyell v. Kennedy. (4)]

E. Tindal Atkinson, Q.C., and Montague Lush, for the defendants. Discovery was rever granted by the Court of Chancery in aid of an action at common law for a forfeiture: Lord Uxbridge v. Staveland. (5) In the case of Pye v. Butterfield (6) the Court of Queen's Bench held that interrogatories could not be administered in such an action. An action for penalties and an action to enforce a forfeiture have always been treated as standing on the same footing with regard to discovery. There can be no distinction in principle in this respect between interrogatories and discovery of documents. In Hunnings v. Williamson (7) discovery of documents was refused in an action for penalties. The effect of discovery of documents would be the same as that of interrogatories. Assuming that there had been an underlease in breach of a

plaintiff originally sought to administer
related to that issue; but in the Court
of Appeal the defendants' counsel
undertook to admit the plaintiff's
title, and therefore no question ulti-
mately arose as to whether these in-
terrogatories could be administered.

(1) 44 W. R. 696.

(2) (1856) 17 C. B. 410.
(3) (1886) 16 Q. B. D. 507.
(4) (1883) 8 App. Cas. 217.
(5) (1747) 1 Ves. Sen. 56.
(6) 5 B. & S. 829.

(7) (1883) 10 Q. B. D. 459.

covenant not to underlet, and the defendant had the counterpart in his possession, he would be obliged in his affidavit of documents to describe the document sufficiently to identify it, and he might thereupon be subpoenaed to produce it at the trial, and there would be no privilege against production then. It is submitted that Seaward v. Dennington (1) is in conflict with the principle of previous decisions of the Court of Appeal on the subject, and cannot be supported. It was said in that case that the defendant must make an affidavit of documents, but could cover up any document that might shew the existence of a forfeiture; but it is submitted that the plaintiff is in this dilemma: either the order for discovery would force the defendants to disclose the existence of such a document, so that the plaintiff could compel its production at the trial, or it would not. In the former case the principle of the previous decisions is contravened; in the latter case the discovery of documents would be useless, and therefore unnecessary, and rule 12 of Order XXXI. expressly provides that the judge may refuse discovery if satisfied that it is unnecessary. This rule was not cited in Seaward v. Dennington. (1)

[They also cited Hobbs & Co. v. Hudson (2); May v. Hawkins. (3)]

Scott Fox, in reply. Pye v. Butterfield (4) is the only decision on the subject with regard to an action to enforce a forfeiture. The other decisions relied on by the defendants relate to actions for penalties, and depend on the quasi-criminal character of such actions. It would appear from the report of Pye v. Butterfield (4) that the question in that case was not really whether interrogatories as to the existence of a forfeiture could be administered, but whether the defendant could be compelled to answer them. It is stated in the report that the interrogatories which are set out had been already administered. The expressions in the authorities which couple forfeiture and penalties together in relation to this subject really contemplate some forfeiture of estate in the proper sense of the term and in the nature of a penalty, not a case where an estate is determined (3) (1855) 11 Ex. 210. (4) 5 B. & S. 829.

(1) 44 W. R. 696.

(2) (1890) 25 Q. B. D. 232.

VOL. II. 1897.

I

2

V.

URBAN

DISTRICT

COUNCIL.

C. A. by the terms of the contract into which the defendant him1897 self has entered, which, though no doubt usually termed a MEXBOROUGH forfeiture, is not really one strictly speaking. The fact that (EARL OF) the Court of Chancery would not before the Judicature Act WHITWOOD aid an action of ejectment at common law upon forfeiture of a lease, by exercising its ancillary jurisdiction to grant discovery, is not really the true test. The procedure for discovery given by the rules is far wider in its scope than the old Chancery jurisdiction; and there is now no reason why, in a common law action to enforce a right to land arising under the terms of the lease into which the parties have entered, the Court should not exercise in aid of the action the procedure for discovery which applies to actions generally. The case of an action for a penalty by a common informer is peculiar, for before judgment the plaintiff cannot be said to have any better right to the penalty than any one else; but, in an action such as the present, the plaintiff is only seeking to enforce a right to land which is vested in him by the contract. The case of Ind, Coope & Co. v. Emmerson (1) shews that the fact that before the Judicature Act the Court of Chancery would not exercise its ancillary jurisdiction to grant discovery is not the test whether discovery can now be allowed in an action. In that case, an action having been brought to recover possession of land in the Chancery Division, it was held that the fact that the defendants were purchasers for valuable consideration without notice was no ground for refusing discovery and production of documents to the plaintiff.

LORD ESHER M.R. In this case the plaintiff has brought an action against the defendants for the purpose of obtaining a judgment of the Court to the effect that the defendants have forfeited a lease of certain premises by reason of a breach of covenant. The plaintiff applied for an order for discovery of documents, and also for leave to administer interrogatories to the defendants. The learned judge at chambers refused both applications, and the plaintiff appeals against that decision. I think that there are two rules of law which have always existed (1) (1887) 12 App. Cas. 300.

as part of the common law of England, and have been recog-
nised as such by all courts whether of law or equity, and the
rights conferred by them have never been taken away by any
statute. The first is that, where a common informer sues for
a penalty, the Courts will not assist him by their procedure in
any way and I think a similar rule has been laid down, and
acted upon from the earliest times, in respect of actions brought
to enforce a forfeiture of an estate in land. These are no
doubt rules of procedure, but they are much more than that:
they are rules made for the protection of people in respect of
their property, and against common informers. There has
been a great searching for reasons for these rules; but it does
not signify what the reasons for them are, if they are well
recognised rules which have existed from time immemorial.
But the reasons for them have often been stated. It has been
argued that the reason why the Courts will not assist the
plaintiff in an action for a penalty is that it is a criminal
action. But it is not.
is not. There is no such thing as a criminal
action. An action for a penalty is a civil action just as much.
as an action for a forfeiture. The rule by which a witness is
protected from being called on to answer questions which may
tend to criminate himself is often referred to in connection
with this subject, but it has really nothing to do with the two
rules to which I have referred. In an action for a penalty
there can be no question of the defendant's being called on to
criminate himself. With regard to such actions the law is
laid down in Martin v. Treacher. (1) It was held in that case
that there is a rule of law which prevents the application of
any of the procedure with regard to discovery in an action for
a penalty by a common informer. It is not put on any ground
peculiar to courts of equity, but on the ground of a general
rule of law applicable both in courts of law and courts of
equity. The principle there laid down is equally applicable to
discovery by affidavit of documents as to discovery by inter-
rogatories. It was held that the procedure with regard to
discovery, which includes both methods of discovery, was not
applicable to an action by a common informer.

(1) 16 Q. B. D. 507.

C. A. 1897

v.

URBAN

DISTRICT
COUNCIL.

With regard to the case of an action brought to enforce a forfeiture of land, I may refer to the passage which I cited in MEXBOROUGH Martin v. Treacher (1), from the judgment of Alexander C.B. (EARL OF) in Orme v. Crockford (2), where he says: "We must not lose WHITWOOD sight of the fact that it is a most important right of which this bill seeks to deprive the defendant, no less than that of protecting himself by refusing to answer from the consequences Lord Esher M.R. of answering questions which might tend to charge him with a crime or subject him to penalties, or forfeiture of estate contrary to the humane policy of the law." This question came before the Queen's Bench in 1864 in Pye v. Butterfield (3), in which case a rule had been obtained calling on the defendant to shew cause why certain interrogatories should not be administered. It was argued that the only question decided in that case was whether such interrogatories must be answered when administered. All I can say is that that was not the question which the judges affected to decide. The plaintiff had no doubt administered the interrogatories set out in the report, but the Court ignored that fact in their judgment, and decided that no interrogatories could be allowed where the answers might subject the defendant to a forfeiture of his interest as lessee. In giving judgment Cockburn C.J. said: "It is clear from the decisions in those courts (courts of equity) which have been cited and the expressions used by eminent text-book writers that it is a fixed rule that no bill of discovery will be allowed where the answers may have the effect of causing a forfeiture of estate, except where the estate is held on a conditional limitation, in which case it would be extinguished on non-performance of the condition." And Crompton J. said: "I have no doubt that the exemption from a bill of discovery in cases where discovery would lead to a forfeiture was adopted in those courts from the courts of law." Then we come to the case of Seaward v. Dennington (4), to which A. L. Smith L.J. was a party. But, on consideration of the authorities which have been cited to us on the present occasion, I venture to think that the judgment in that case

(1) 16 Q. B. Ď. at p. 511.
(2) (1824) 13 Price, 376.

(3) 5 B. & S. 829.
(4) 44 W. R. 696.