rule was stated thus: "In the admiralty practice in this country, it is believed, that when a party is required to answer special interrogatories, put at the hearing, the answers are evidence as well for the party who is interrogated, as for the other party.”24 385; Cushing v. Laird, 6 Ben. (U. S.) 408. See also, Australia, The, 3 Ware (U. S.) 240, 2 Fed. Cas. No. 667; L. B. Goldsmith, The, Newb. Sec. CHAPTER CLXII. DISCOVERY AND INSPECTION OF DOCUMENTS. Sec. 3286. Production of documents-Affidavit. for discovery- 3287. Discovery-Illustrations. 3282. Discovery of documents. 3283. Demand. 3284. Application Practice. judge. 3288. Privileged documents. 3285. Discovery-Discretion of 3289. Documents privileged. 3290. Documents-When privileged. 3291. Waiver of privilege-Effect. § 3282. Discovery of documents.-The practice in admiralty in the matter of inspection and discovery of documents is not essentially different, in the main, from that in other courts. It is the rule that either party may apply to the court, or to a judge for an order directing the opposite party to produce for inspection or use documents relating to the matters in controversy which are in his possession or which have been in his possession or under his control. It seems to be the rule that the party making the application need not file any affidavit or description of the document required. The court or judge on hearing the application may either refuse or adjourn the same if he is satisfied that the discovery is not necessary; or he may, in his discretion, make such order and require documents generally to be produced, or he may limit the order to particular documents or to a particular class of documents.1 § 3283. Demand. While it is the rule that an order for inspection of documents will be made, it is also the rule that the applicant should show a previous demand or application to the adverse party; in the absence of such a showing the applicant may be condemned in costs.1 1* The general rule seems to be that a party is not entitled to see any document which does not tend to make out his case. The plaintiff must show that the documents desired are essential to the 1 For Discovery, Production and Inspection of Documents, see Vol. II, Chap. 68. 1*Memphis, The, 3 Ad. & El. 23. 2 2 Jenkins v. Bushby, 35 L. J. Ch. 400; Budden v. Wilkinson, L. R. (1893), 2 Q. B. 432. 3 statement of his claim. In an action by the owner for damages to his goods where it was made to appear that a former action against the same vessel had been settled by a written compromise and agreement, it was held that the plaintiff on such showing was entitled to discovery and inspection of the written article for the purpose of using any admissions as to negligence made by the owners of the vessel.* § 3284. Application for discovery-Practice.-According to the practice rule an application for discovery may be made without filing any affidavit. But if made without filing the affidavit it must comply strictly with the rule and must show what the matters in question Under this practice the order for the discovery or the production of the document until the statement of defense is delivered. Unless the matters in question are known it cannot be determined whether the documents desired relate to the matters in question." § 3285. Discovery-Discretion of judge.-There are instances or circumstances under which the trial court may exercise his discretion as to whether or not he will grant the discovery prayed for. And there are cases where the decision and judgment of the trial court will not be questioned on appeal. Thus where, by consent of the parties to the action, the documents of which inspection was sought were submitted to the trial judge, his decision was held to be final. But the general rule seems to be that the trial court has no discretion to refuse to grant the discovery prayed for except where it is made to appear that the documents, the discovery of which is prayed for are privileged. It has been held that the court has discretionary power to make an order for discovery and production of documents at any time after the writ is issued, even before the issues have been defined by the pleadings. § 3286. Production of documents-Affidavit.—The opposite party must, when ordered, produce the documents specified in the order. Cashin v. Craddock, L. R. 2 Ch. Div. 140. 4 'Bustros v. White, L. R. 1 Q. B. 423; West of England, The, 1 Ad. Hutchinson v. Glover, L. R. 1 Q. & El. 308; Daniell v. Bond, 3 L. B. 138, 3 Asp. (N. S.) 85. ' Order XXXI, Rule 12. T. N. S. 700. * Mellor v. Thompson, 49 L. T. N. Hancock v. Guerin, L. R. 4 Ex. S. 222. 'Div. 3. On production of the documents in his possession he is required to file an affidavit stating: (1) The documents which are in his possession or power which relate to the matters in controversy; (2) the documents relating to the questions in controversy which were, but are no longer in his possession or under his control; (3) what has become of the documents no longer in his possession and when they were last in his possession or under his control. If such party has not and never had in his possession any documents in reference to the matter in controversy he should fully so state in his affidavit. He should show by his affidavit that according to his best knowledge, information and belief, he has not and never did have in his possession, custody or power, or in the possession, custody or power of his solicitors or agents or of any person on his behalf any "deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing or any copy of or extract from any document, or any other document whatsoever, related to the matter in question." If any document has been produced he should then say "other than and except" the document set forth in the schedules to the affidavit. It is difficult to state any rule as to the sufficiency of the affidavit of discovery. The object of the affidavit is to enable the court to make an order for the production of documents described with a sufficient description to compel the production if ordered. As an illustration of this rule, which is applicable, though not in an admiralty case, an affidavit was held sufficient which stated: "We have also in our possession or power certain documents, numbered 1 to 26, inclusive, which are tied up in a bundle marked A, and initialed by the deponent G. S. Budden. The said documents last mentioned relate solely to the title or to the case of us, the plaintiffs, and not to the case of the defendants, nor do they tend to support it; wherefore we object to produce the same and say they are privileged from production." But the affidavit of documents is not conclusive upon the party applying for the order of inspection, and after such affidavit is made he may have an order for the same where he makes an affidavit specifying such document and states therein that he believes the document to contain entries which he would be entitled to inspect, and that it is in the possession or power of the other party, notwithstanding ❞ Budden V. Wilkinson, L. R. (1893) 2 Q. B. 432; Greenwood v. Greenwood, 6 W. R. 119; Peile v. Stoddart, 1 Mac. & G. 192; Bewicke v. Graham, L. R. 7 Q. B. 400; Ind, Coope & Co. v. Emmerson, L. R. 12 that the affidavit of document states fully and explicitly that the party making it has not in his possession or power "any deed, etc."'1o § 3287. Discovery-Illustrations.—In an action against a managing owner of ships for an account, it has been held that he must discover all documents that related to the matter in controversy whether in his individual possession or in that of a firm of which he is a member.11 So, in an action for goods damaged by leakage where it appeared that while lying at a foreign port, the vessel was surveyed and repaired, it was held that the plaintiff was entitled to the inspection of the surveys and the shipwright's bill for the reason that the repairs made would show whether the damage was occasioned by unseaworthiness as alleged in the libel.12 So, discovery or inspection of documents may be ordered even where such documents will disclose the secrets of the party's business or of his trade.13 In an action on a policy of Marine insurance the plaintiff is entitled to have inspection of the log where it appeared that the vessel was abandoned.1 So, in such an action it has been held that the assured must lay before the underwriters everything which throws light on any part of the transaction in which both parties are interested, and this was held to include letters between the captain and the plaintiff.15 But in such an action it has been held that the defendant is not entitled to have the proceedings stayed until the plaintiff has obtained an affidavit of document from the person who is neither a party to the action nor within the jurisdiction of the court when under the plaintiff's control.16 § 3288. Privileged documents.-Public documents are privileged from inspection and this includes reports made by captains of Her Majesty's ships to admiralty in cases of collisions. To bring such a report within the rule of privilege it is only necessary that an affidavit be made by the proper officer of the admiralty. The rule on this subject is more fully stated as follows: "When any collision of importance occurs between one of Her Majesty's ships and any 10 Wiedeman v. Walpole, L. R. 24 Q. B. 537. 11 Swanston v. Lishman, 4 Asp. (N. S.) 450. 12 Daniell v. Bond, 3 L. T. N. S. 700. 13 Don Francisco, The, 6 L. T. N. S. 133. 14 Kellock v. Home &c. Ins. Co., 12 Jur. N. S. 653. 15 Rayner v. Ritson, 6 B. & S. 888. 16 Fraser v. Burrows, L. R. 2 Q. B. |