United Kingdom House of Lords Decisions

The appellant was the real proprietor of the paper, having acquired the property thereof sometime previous to the facts complained of by the respondent.

Defences were lodged by Mr. Morthland, denying that he was proprietor, or any way concerned in the paper. Parties having joined issue on that point, a proof was allowed, and a remit made to the Sheriff, commissioner, to take the proof.

Jan. 19 and 22, 1799.

As it was proved by one of the witnesses that Mr. Morthland occasionally wrote entries in the books of the Scots Chronicle, it was expected that, from these entries, certain evidence would appear to establish his connection with the concern; and the appellant, in whose possession these books were, being cited to give evidence as a haver, on the part of the respondent (pursuer); and being asked to produce all the books of the concern, he declined to do so, in respect it would disclose his own private affairs, he being now the proprietor of the Scots Chronicle, and of these books. He was also asked to allow inspection of his books prior to the period when he became proprietor, on condition that the part which referred to his own transactions should be folded down, but he refused: Whereupon the respondent applied by petition to the Court for letters of first and second diligence against havers for the production and inspection of the journal, ledger, order, cash, letter, and all other books kept and used in the Scots Chronicle office prior to, and at the period of the publication of the article in the newspaper founded on in this action. The petition was answered by stating that the respondent had not stated any one article or entry in the books which, if exhibited, would prove the fact put in issue between him and Mr. Morthland; but the Court, on report to it, was pleased to pronounce this interlocutor:—

“The Lords having advised this petition, with the answers thereto for Robert Paul, and heard parties' procurators thereon, grant warrant for letters of first and second diligence at the instance of the petitioner against havers, for the production of the journal, ledger, order book, cash book, letter book, and all other books kept and used in the Scots Chronicle office, prior to and at

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the period of the publication of the newspaper founded on in this action, that the same may be inspected by the commissioner for taking the proof in this cause, and he may take such excerpts therefrom as he shall think material to the issue; renew the commission to the commissioner formerly named for proving the facts hinc inde formerly admitted to probation, grant diligence at the instance of both parties against havers and witnesses.”

Against this interlocutor the present appeal was brought to the House of Lords by the appellant.

Pleaded for the Appellant.—The judgment appealed from goes to establish a novel doctrine, that the pursuer, asserting matter of fact in his libel, and undertaking to prove it, may compel a third party to produce or allow inspection of all his books and papers, in order that it may be discovered whether they contain any thing which can be made evidence in a matter in which he is not concerned: hitherto it has been understood, that one who comes into a court asserting a fact, must be prepared with his evidence, or able to say upon what he proceeded; but to proceed in the manner proposed, thus to fish for evidence, is new in practice, and against all principle. The interlocutor establishes that the whole books and papers of a third party, and of course all his private concerns, may be canvassed and exposed; an exposure possibly ruinous, and certainly vexatious and injurious, merely because it is alleged that perhaps those books and papers may contain something which may be made evidence in a cause to which he is a stranger. The appellant has sworn in evidence, that he became the sole proprietor of the paper in March 1797; and yet the respondent's object is, to prove by his books, that another person was really the proprietor. The Court has modified the respondent's demand, by only allowing the books to be examined by the commissioner, to take excerpts of all that he might think material to the issue; but this course is equally exceptionable as the former general and sweeping demand, because it makes the commissioner judge of what is, and what is not evidence, thus precluding the parties and the witnesses from their undoubted right of objecting to the admissibility of any thing tendered as evidence.

Pleaded for the Respondent.—There is no ground for maintaining that the appellant is the real and sole proprietor of the newspaper called the Scots Chronicle, and, consequently, in that character, he is not entitled to oppose the

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