KD 7470 .B7 3x 1910 ^w- KD i fflnrnpll Jjani ^rljnnl Ctbrarg JiaraljaU Enuitij fflnllMttoti «tft of E. J. iiatalidl. t S. S. 1 894 CORNELL UNIVERSITY LIBRARY 924 084 250 251 MouJcud WyUoAJ-. 1..-, •k\^ NEW FQUA The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924084250251 DIGEST OF THE LAW OF DISCOVERY WITH PRACTICE NOTES BT HIS HONOUR JUDGE BRAY (ACTHOB OF " BbAT ON DiSCOVBET ") SECOND EDITION LONDON SWEET & MAXWELL, Ltd., 3, Chancery Lane, W.C. STEVENS & SONS, Ltd., 119-120, Chancery Lane, W.C. 1910 l&(o^l^S BEADBUET A&NEW & CO., LTD., PEIKTBE8, LONDON AND TONBBIDQS. PREFACE. A CONSIDERABLE time has elapsed since the Author's book on Discovery was written, but the somewhat voluminous notes written by him for, and published in, the " Annual Practice " under Order 31, and which are revised every year, seemed to him to render anything in the nature of a second edition unnecessary. It has, however, been suggested that a concise statement of the leading principles and points of discovery referring to, and followed by, the rules and notes might be useful to the profession. It is hoped that the form adopted will enable the practitioner to follow the general prin- ciples more readily than if he has to hunt for them in the rules and scattered notes. The Practice notes have also been thoroughly revised for the purpose of this book. The Author has to thank the Editors and Publishers of the " Armual Practice " for their courtesy and assistance. E. B. February, 1904. The book having been sold out, the Publishers have suggested that it should be reprinted with the " Annual Practice " notes of the present year. The author has made some additions to a few of the articles, and the notes to the articles have been revised. E. B. October, 1910. TABLE OF CONTENTS. FAas TABLE OF CASES vii-xii PAET I. DIGEST OF THE LAW OF DISCOVEEY. DiscovEBT Generally . Art. 1-14 1-5 Interrogatories .... Art. 15-22 5-6 Discovery and Production op Docu- ments Art. 23-37 6-10 Objections to Discovery Art. 38-67 10-19 PAET II. PRACTICE NOTES TO 0. 31. 0. 31, RR. 1-29 AND notes 20-64 INDEX 65-76 TABLE OF CASES. Adams i>. Batley, 26 AinswoTth v. Starkie, 37 V. Wilding, 29, 59 Alabaster v. Harness, 25 Alcoy, &c. V. Greenliill, 22 Alexandra Palace, In re, 39, 40 AUhusen v. Labouchere, 25, 40, 44 Alliance Lead Syndicate v. Mclvor's Patents, 36 Alliott V. Smith, 47 Alton V. Harrison, 21 Anderson v. Bank of British Columbia, 24, 27, 30, 32, 47, 53 Anstey v. North Woolwich Subway Co., 45 Arnold v. Bottomley, 44 Ashley v. Taylor, 34, 45i Ashworth v. Roberts, 43 Aste V. Stumore, 24, 63 Atherley v. Harvey, 26 Att. -Gen. ■;;. Bermondsey Vestry, 49 V. Cunard Co., 26 1). Emerson, 25, 36 V. Gaskill, 24, 34, 35, 41 V. Mayor of Newcastle (1897), 21, 35, 36, 51 V. Mayor of Newcastle, (1899), 18, 36, 51 V. North Metropolitan Tramways Co., 43, 50 V. Rees, 47 Angnstinus-Nerinckx, 23, 34 Balaghat Co., 54 Bamato v. Keene, 44 Barneds Banking Co., 39 Bates V. Burchell, 23 " Bellerophon," The. 37 Benbow v. Low, 33, 34, 42, 43 Benno Jaffe, &c. v. John Richard- son & Co.. 21 Berkeley!). Standard Discount Co., 39 Bernard, The, 22 Berry v. Keen, 48 Bevan v. Webb, 55 Bewicke v. Graham, 36 Bidder v. Bridges, 34, 35 "Biola,"The, 22 Birch V. Mather, 21, 36 Blackburn v. Lodge, 35, 43 Blanc V. Barrows, 43 Bleazby v. Bleazby, 35 Boake v. Stevenson, 38 Bolckow V. Fisher, 24, 34, 45, 46, 47 Bolton V. Natal Land, &c. Co. , 52 Bombay, Bank of, v. Suleman, 54 Bonnardet v. Taylor, 55 Boord V. African Consolidated Land and Transfer Co. , 54 Boulton V. Holder, 50 Bovill V. Cowan, 53 Bristol, Corporation of, v. Cox, 28, 29, 31, 52 British and Foreign Contract, &c. ■V. Wright, 43 Brown v. Liell, 24, 59, 62 V. Sewell, 55 v. Watkins, 22 Buokwell & Berkeley, In re, 64 Budden v. Wilkinson, 36, 52 Bullock u Corrie, 31, 32 Bulman v. Young, 62 Burchard v. Macfarlane, 48 Burr V. Hubbard, 63 Bursill V. Tanner, 33 Burstall v. Beyfus, 49 Burton v. Dodd, 29 Bustros V. Bustros, 55 V. White, 24, 32, 53, 54, 59 Calcraft v. Guest, 27, 31, 32 Campbell v. Poulett, 63 Cardwell, Lord, v. Tomlinson, 61 CaryU v. " Daily Mail," 44 Cashin v. Craddock, 23 Cass V. Fitzgerald, 57, 62 Caudery, Jte, 54 Cayley v. Sandycroft Brick, &c., 34 Chaddock v. British South Africa Co., 39, 40 Table of Cases. Cbadwick v. Bowman, 30 Chatterton v. Secretary of State for India, &o., 37 Chesterfield Colliery Co. v. Black, 45 China Steamship Co. v. Commercial Insurance, 24, 49, 50 Traders Insurance Co. v. Royal Exchange, &c., 49 Church V. Perry, 40 Clarke v. Bennett, 42 Codd V. Delap, 41 Cole V. Francis, 26 Collins V. L. G. O. Co., 31, 32, 33 Compagnie Financi^re, &c. v. Peru- vian, &c. (11 Q. B. D.), 25, 50, 51, 54 Compagnie Fiuanciere, &c. v. Peru- vian, &c. (28 S. J.), 39 Compagnie Financiire, &c. v. Peru- vian, &c. (W. N. 83), 63 Contract Corporation, In re, 39 Cook V. North Metropolitan Tram- ways, 31, 33 V. Smith, 52, 64 Cooper V. Blackmore, 34, 44 Credit Company, In re, 21, 57 Crossley v. Tomey, 21 D. V. D., 21 Dadswell v. Jacobs, 55 Dalgleish v. Lowther, 41, 44 Dalrymple v. Leslie, 44, 45 Dauvillier v. Myers (W. K 83), 61 Davies v. Gas Co., 54 Davis V. Melladew, 63 Debtor, Me, 27 De Carteret v. Laud Securities, &c. , 60 Derby Corporation v. Derby C. C, 26, 127 Disney v. Longbourne, 23 Donovan v. Todd, 48 Downing v. Falmouth, &c., 50 Draper v. Manchester, &c., Ry. Co., 5S Dreyfus v. Peruvian, &c., Co., 37 E. V. E., 22 Eade v. Jacobs, 34, 35, 39 Eadie v. Addison, 28, 29 Eden v. Weardale Iron Co., 22, 23 Eder v. Attenborough, 63, 64 Edmondson v. Birch, 43 Egremont Burial Bd. u. Egremont Iron Co., 23 Ehrmann ». Ehrmann, 59 Elkin V. Clarke, 41, 42, 54 Elliott V. Garrett, 44 Ellis V. Ambler, 24 " Emma," The, 50 Emmerson v. Ind. (12 A. C), 24, 26 u. (33 CD.), 40 English V. Tottie, 32 Euston, Earl of, v. Smith, 22 Eyre v. Rodgers, 35, 41 Farden v. Richter, 61 Fendall v. O'Connell, 48 Fenner and Lord, 21, 57, 58 Fennessy v. Clark, 42 Fisher v. Hughes, 61 — ■;;. Owen, 25, 34, 40 Foakes v. Webb, 33 FoUett V. Jeffreys, 28 Ford V. Blest, 37 Frankenstein v. Gavin's House, &c. , 36 Eraser v. Burrows, 50 Friend v. L. C. & D. Ry., 32 Frost V. Brooke, 42 Furber v. King, 46 Gardner v. Irvin, 24, 28, 52 Gay V. Hancock, 61 V. Labouchere, 34 Gibson v. Evans, 43 V. Sykes, 61 Glamorganshire Banking Co., In re Morgan, 54 Goldstone v. Williams, Deacon & Co., 27, 29, 30, 31, 33 Gort V. Rowney, 33 Gourand v. Edison, 28 Gowan r. Briggs, 54 Graham v. Sutton, 56 Graves v. Heinemann, 60 Grumbreoht v. Parry, 35, 41 Haddan's Patent, 21 Hadley v. McDougall, 54 Haigh V. Haigh, 61 Hall V. Liardet, 36, 41, 63, 69 V. L. & N. W. Ry., 41, 47 V. Truman, 25, 51 Hampden v. Wallis, 61 Hancock v. Guerin, 23 Hancocks v. Lablache, 41 Harbord v. Monck, 23 Hai-ding v. Russell, 49 Table of Cases. IX Hargreaves (Joseph), Lord, In re, 37 Hartley v. Owen, 48 Harvey v. Lovekiu, 22, 26 Haslam Engineering Co. v. Hall, 33 Hawkes, In re: Ackerman v. Lockhart, 54 Hawley v. Eeade, 23 Heatley v. Newton, 49 Heaton v. Goldney, 44 Hemery v. Worssam, 42 Henderson v. Ripley, 63 V. The Underwriting & Agency, &c., 49 Hennessey v. Lavery, 23 V. Wright (24 Q. B. D.), 35, 43 V. (21 Q. B. D.), 37 Herskind v. Hall, 48 Hey V. De la Hey, 37 Hill V. Hart Davis, 46, 52 HinchcUffe, In re, 57 Hindlip v. Mudford, 44 Hirschfield v. Simpson, 21 Hobbs V. Hudson, 26, 27 Holland v. Dickson, 54 Hooton V. Dalby, 34, 35, 41 Hope II. Brash, 43, 53, 59 Horton v. Donnington, 35 Howel, Morgan, i2e, 41, 42 Humphries v. Taylor Drug Co., 35 Hunnings v. Williamson, 27 Hunter v. Dublin, Wieklow, &c. By., 57 Hutchinson v. Glover, 54 Hntt V. Haileybury College, 32, 33 Isle of Cyprus, The, 22 James v. Oarr, 44 V. Plummer, 51 James Nelson v. Nelson, 48, 61 Jenney ti. Mackintosh, 61 Johns v. James, 34, 35 Johnson v. Whitaker, 36 Jones V. Andrews, 49, 56 V. G. C. Ky. Co., 27, 30, 32 V. Jones (22 Q. B. D.), 27 v. Monte Video Gas Co., 24, 25,51 V. Richards, 44, 54 V. Watts, 35 Joy V. Hadley, 61 Joyce ■». Beall, 63 Jubb V. Bibbs, 64 Kain v. Farrer, 37, 52 Kearsley v. Philipps, 24, 53, 54 Kemble v. Hope, 41 Kennedy v. Dodson, 41, 43 v. Lyell (9 A. C), 27, 32, 33 V. (8 A. C), 52 V. (23 C. D.), 33, 34 V. (W. N. 82), 61 Kent Coal Co. v. Duguid, 44, 51 Kerry C. C. v. Liverpool Ass., 32 Kyshe v. Holt, 32 Ladds !). Walthew, 23, 42 Lamb v. Munster, 26 Lambert v. Lambert, 28 Land Corporation v. Pulestou, 30 Law V. Budd, 62 Learoyd i). Halifax Banking Co., 29, 31, 33 Lee V. Bushanan, 43, 48 Lefroy v. Burnside, 26 Leitch V. Abbott, 42 Leslie v. Cave (56 L. T.), 36 V. (W. N. 86), 55 Lever ■!». Ass. Newspapers Co., 34, 44 V. Lands Securities Co. , 60 Lewis V. Londesborough, 65 V. Powell, 54 Lindsay v. Gladstone, 55 Litchfield v. Jones, 47 V. , 61 Liverpool & Manchester A. B. C. v. Firth, 63 Lloyd's Bank v. Luck, 58 London and Northern Bank, Ex parte: Haddock, 33 Provincial Co. v. Chambers, 49, 50 Tilbury Co. v. Kirk (28 S. J.), 33 Tilbury Co. v. Kirk (51 L. T.), 33 Yorkshire Bank v. Cooper, 40, 64 Lowden v. Blakey, 28, 29, 44 Lyell V. Kennedy (8 A. C), 35, 39 V. (27 0. D. ), 16, 25, 27, 30, 32, 33, 46, 47, 51, 62 Lyon v. Tweddell, 34, 35 McAllister v. Bank of Rochester, 2 McOolla V. Jones, 36 MaoCorquodale v. Bell, 32 Macfarlane v. Rolt, 29 MacEenzie v. Steinkopff, 43 Table of Cases. McLean v. Jones, 36 Magnus v. Plumbers Co., 23 Malone v. FitzGerald, 44, 45 Manchester Val de Travers v. Slagg, 39, 40 Mansfield v. Childerhouse, 43 Marks v. Beyfus, 37 Marriott v. Chamberlain, 34, 35, 41, 44 Marsh v. Bailey, 37 Marshall v. Langley, 22 V. Met. District Ey., 36 V. KTat. Prov. Bank of England, 45 Martin v. B. Museum, Trees, of, 44 V. Butchard, 32 V. Treacher, 27 Mason ii. Cattley : Mason, In re, 28 Massey v. Allen, 40 Mathias v. Yetts, 49 Maxim-Nordenfeldt, &c. v. Nor- denfeldt, 23 Megaw V. M'Diarmid, 42 Mercier v. Cotton, 24 Mexhorough, Lord, v. Whitwood XJ. D. C, 26 Milbank v. Milbank, 34, 56, 57 Miller v. Kirwin, 34, 35 Minet v. Morgan, 28, 32, 36 Mistovski V. Mandleburg, 43 MoUoy V. Kilby, 22 Moore v. Craven, 41 V. Kennard, 21 V. Peachey, 57, 62 Morgan, In re, Owen v. Morgan, see Howel Morgan. Morris v. Edwards, 25, 51 Moseley v. Victoria Rubber Co., 29, 34 Mostyn v. "W. Mostyn Coal Co., 28 Mulcaster, In re, 61 "Murillo,"The, 23 Murray v. Walter, 53 Mutter 1). Eastern & Mid. Ey. Co., 54 Mutual Society, In re, 40 National Association v. Smithies, 26, 40 National Assurance Funds Co., In re, 24 Nelson v. Anglo-American Co., 54 New British Mutual, &c. v. Peed, 35 New Zealand Shipping Co. o. Tyser, 45 Newman v. L. & S. W. Ry. Co., 63 NichoU V. Jones, 29 Nicholl V. Wheeler, 51 Nobel Bros. v. Stewart, 49 Nordon u Defries, 29, 31, 32 North Australian, &c. v. Golds- borough, 29, 31, 33 North Brazilian Sugar Factories, In re, 54 Norton v. Lamport, 49 Ormerod i>. St. George's I., 55, 60 Orr V. Diaper, 37 O'Shea v. Wood, 28, 49, 54 Pacey v. London Tramways Co., 32 " Palermo," The, 29, 30 Pape V. Lister, 41 Pardy's Mozambique Syndicate v. Alexander, 50, 53, 57, 62 Parker v. Wells, 42, 45 Parnell v. Walter, 43, 44 Pavitt V. North Met. Tramway Co., 33 Pearce v. Foster, 28, 30, 31 Peek V. Ray, 38, 40 Pembroke, Me, 21 Penriee v. Williams, 21 Peter Walker v. Hodgson, 44 Petre v. Sutherland, 43 Peyton ii. Harting, 45 Philipps V. Philipps, 23, 35 Pickering v. Pickering, 56 Pike V. Keen, 60 Plymouth Co. v. Traders' Publ. Ass., 35, 43, 44 Poisson V. Robertson, 23 Ponsonby v. Hartley, 36 Postlethwaite ■». Rickman, P., In re, 28 Pratt V. Pratt, 55 Prestney v. Mayor of Colchester, 55 Price V. Price, 49, 61 Prioleau v. U. S. America, 22 Procter v. Smiles, 27, 33 Quilter v. Heatley, 56, 57 "Radnorshire," The, 22 Ramsden v. Brearley, 26, 37 Easbotham v Shropshire Union Railway, 47 Rawstone v. Corporation of Preston, 29 Redfern v. Redfern, 22, 25, 26 Table of Cases. XI Reg. V. BuUivant, 27, 28 V. Cox, 28 Eeid V. Langlois, 54 Reiner v. Marquis of Salisbury, 21,37 Republic of Costa Rica v. Erianger, 22, 39, 48 V. Stroua- berg, 23 Liberia v. Eoye, 7, 61 - Peru V. Weguelin, 55 Eioliards v. Crawshay, 46 Ridgway ■». Smith, 34, 44 Roberts v. Oppenheim, 86, 52, 56 Robson V. Worswick, 29 Rochefoucauld v. Boustead, 30, 32, 83 Rogers v. Lambert, 43 Ross V. Holman, 51 Roweliffe v. Leigh, 42 Rumney v. Walter, 44 Russell V. JacksoD, 27, 28 Saccharin Corporation v. Anglo- Continental, &c., 21, 23, 43 Salford Corporation v. Lever, 39 Saloman v. Hole, 61 Samnion v. Bennett, 32 Saunders v. Jones, 34, 42 V. Wiel, 27 Saunderson v. Baron von Radeck, 41, 44 Scaife v. Kemp, 41, 44 Schloss V. Stevens, 49 Schreiber v. Heymann, 42, 54 Scott V. Consolidated Bank, 72 Seal V. Kingston, 48, 61 Seaward v. Dennington, 26 Shaw V. Smith, 22 Sheward v. Lord Lonsdale, 41, 43 Shrewsbury v. Shrewsbury, 51 Slade V. Tucker, 27 Sloane v. Britain SS. Co., 57 Smith V. Berg, 40, 43, 48 V. Harris, 57 V. Reed, 63, 64 V. Went, 63 South African Republic, &c. v. La Compagnie, &c. (1898, 1 Ch.), 21 Southwark Water Co. v. Quick, 13, 27, 29, 30, 32, 33, 39 Spokes V. Grosvenor, &c. Co. , 3, 22, 25, 26, 41 St. George v. St. George, 42 Strachan, In re, 27, 33, 35 Stuart V. Marquis of Bute, 47 Sutcliffe, Alison v. Alison, 42 Swansea Co. v. Budd, 55 Swansea, Mayor of, v. Quirk, 39 Swanston v. Lishman, 47, 49 Symonds v. City Bank, 49 Talbot V. Marshfield, 28 Tangyes v. luman SS. Co., 44 Tannenbaum v. Heath, 49 Taniietta, Walker & Co. v. New- port Dock Co. , 39 Tasmanian Ey. Co. v. Clark, 60 Taylor v. Batten, 52 V. Rundell, 47 "Theodor Koruer," The, 32 Thomas v. Palin, 61 Tobakin v. Dublin Tram Co., 31 Tomline v. The Queen, 21 Tuck, Be, 61 Tye V. Willoughby, 38 Union Bank of London v. Manby, 23, 41 U. S. A. u. Macrae, 26 V. Waguer, 2 Verminck v. Edwards, 42 Vicary v. Great N. Ry. Co., 47 Village Main Reef, &c. v. Stearns, 49 Vivian v. Little, 54 Wadeer v. East India Co., 37 Walker v. Daniell, 46 V. Poole, 52 Walsham v. Stainton, 30 Ward V. Marshall, 29 Waynes, Merthyr Co. v. Radford, 23, 44 Webb, V. Bornford, 45 V. East, 26 Webster, v. Whewall, 57 Wells V. Wren, 21 Wel3ba9h Incandescent Co. v. New Sunlight, &c., 39, 40, 47 Welsh Steam, &c. Co. v. Gaskell, 51 West Devon Gt. Consols, In re, 54 of England Bk. v. Canton Co. , 49 V. NickoUs, 41 Westinghouse v. Mid. Ry. Co., 31 Wheeler v. Le Marchant, 13, 27, 28, 30, 32, 33 "Whickham,"The, 63 White V. Credit Reform, 43, 44 Xll TABiiE OF Cases. White V. Spafford, 60 Whiteley v, Bailey, 27 Whittaker v. Scarboro' Post, 44 Whyte V. Ahrens, 42, 55 Wicksteed v. Biggs, 55 Wiedemann v. Walpole, 58 Williams, v. Bird, 50 V, Ingram, 54 V. Quebrada Ry. , 28 Willis V. Baddeley, 48, 50 Wills's Trade Mark, In re, 21, 50 WUson V. Church, 24, 38, 39 V. Rafifalovitch, 48, 61 ■». Thornbury, 54 Witham v. Witham, 42 WooUey v. N. London By., 29 Worthington v. Dublin, &c. Ey., 32 Wrentmore v. Hagley, 35 Wright V. MiUs, 37 Wynne v, Hamberston, 28 Yorkshire Provident, &c. v. Gilbert, 44 Young V. Brassey, 22 V. HoUoway, In re, 22, 43, 50 Zierenberg v. Labouchere, 23, 44 \.>\.\.V,VA PAKT I. ^ — DIGEST OF THE LAW OF DISCOVERY. Discovert Generally Art. 1-14 Interrogatories Art. 15-22 Discovery and Production of Documents ... Art. 23-37 Objections to Discovery Art. 38-67 Discovery OeneraUy. 1. Discovery is the name given to the practice by which, a party in any civil (a) cause or matter (b) may he compelled to answer questions as to facts (interrogatories), and to produce documents relating to the matters in question before their determination. (a) See Bray, p. 3. (J) See infra, p. 21. 2. The practice of discovery in the High Court (a) is now governed by the rules (0. 31) made under the Judicature Acts. But where no provision is made by the rules the old procedure and practice remain in force. The rules of equity generally prevail. See infra, p. 24. (a) As to P.D. and A. Div. see p. 22, and as to Informations, p. 21. 3. Under ordinary circumstances discovery is and must be given by a party on his own oath, and the person who is the party is alone under any obligation in the matter. But this may be from the nature of things impossible (for instance, in the case of a corporate body, or a lunatic, or an infant of 1 Digest of the Law of Discovbet. tender age), or it may be for other reasons impracticable. In Buch cases discovery is sometimes given by some person on the party's behalf. In the case of a plaintifi it was said by Lord Cairns {U. S. A. y. Wagner, L. E. 2 Ch. p. 504), that a party is not disabled from suing because discovery cannot be got from him, and that the person, state or corporation which has the interest must be the plaintiff, and the Court wiU do the best the law admits of to secure the defendant such defensive discovery as he may be entitled to. See as to A.-G. and Crown, infra, p. 21 : as to corporate bodies, Arts. 18 and 2i : as to foreign states, infra, p. 21 : as to infants, r. 29 : as to lunatics (n.) to r. 29, infra : as to sheriffs, r. 28 : as to persons suing in other persons' names, infra, p. 48 : and see Art 25 as to the words " on oath" in rr. 12 and 14. 4. The penalties for failure to give discovery are dealt with by rr. 21-23. 5. The discovery must be relevant or material (Art. 10) to the matters in question (a) in the cause or matter (6). (a) See (n.) to Art. 62 as to discovery being limited to what is relevant to the party's own case. (J) See infra, p. 21. 6. The matters in question in respect of which the party is entitled to discovery are the matters which he has well pleaded (or otherwise raised), so as to entitle him to have them tried, and which are about to be tried. His opponent cannot by denying his case shut him out from discovery alleged to support that case. See Bray, p. 18. 7. Generally a party is not entitled to discovery untU he has properly pleaded or stated his case (see Art. 6), and then only in support of that case, and not to fish out a case (a) ; but in some instances a party has been allowed discovery in order to enable him to give particulars or further particulars (6). Where the other party has referred to a documeiit in his pleading or in an affidavit he may, under r. 15 (see Art. 66), be entitled to inspect it before pleading or stating his case. (a) See infra, p. 23. (i) There is no hard and fast rule as to the class of cases in which this will be allowed : it will be allowed in cases of fiduciary relationship and may be allowed in other cases : but not in support of what appears to be a mere fishing case : and as to discovery to support particulars of justification in actions of defamation, see infra, p. 43. DiscovBEY Generally. 8. If the right to discovery depends on the determination of any issue or question in dispute, or for any other reason it is desirable that any issue or question in dispute be deter- mined before deciding on the right to discovery, such issue or question may be ordered to be determined first and the ques- tion as to the discovery be reserved : under any circumstances the discovery may be confined to what is material or necessary at the stage when it is applied for (a). Discovery for ascer- taining the amount of the claim, or for working out a judg- ment or order, may be obtaiaed after the right has been established, whether it has been applied for before and reserved or not (6). (a) See infra, pp. 43 and 50, and r. 20. (V) See infra, p. 23. 9. The discovery should on principle (a) be confined to what is relevant to the matters in question between the applicant and the party giving the discovery, and should not extend to what is relevant solely to matters which are only in question between the applicant and another party ; but the principle has not been adhered to. There is a matter in question between parties for this purpose (they are opposite parties), even although they are on the same side of the record and are both plaLntiSs or both defendants, if there is any right to be adjusted or determined between them. (a) See Bray, p. 59, and infra, p. 41. The expression in r. 1 relating to interrogatories is " opposite parties ": and in rr. 12 — 19A, relating to production of documents, "any other party" ; but the latter means "opposite party," in the wide sense above attributed to those words. In Spokes v. Grosvenor, cited infra, p. 22, a plaintiff was allowed discovery of documents against a defendant company (who were formal parties only) as being opposite parties on the record and therefore within r. 12. See generally, infra, p. 22. 10. Discovery is relevant or material, not only if it is directed to the facts directly in issue, but also if it is directed to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue ; if an interrogatory does not relate to the matters in issue, it is not relevant, although it might be put in cross-examina- tion (r. 1) ; it may be directed not only to giving the applicant a knowledge of what he does not know, but also for the purpose of getting admissions ; to informing the applicant as to evidence 1 2 Digest of the Law of Dibcoteet. to be obtained for his case, or to ascertain the names of persons who may give evidence for him; to ascertain whether the opponent is only a nominal party and the name of the real person interested, so as to let in his statements (a) ; to damages ; to paying a proper sum into court ; to obtaining any relief to which he might be entitled ; and under some circumstances to ascertaining the names of persons to make them parties (b). Material documents are not only such as would be admissible in evidence; they are material if they contain information which may either directly or indirectly enable the appHcant either to advance his own case or damage that of his adversary, or if they may fairly lead him to a train of inquiry which may have either of these two consequences, or if they will throw any light on the case (c). Discovery relating exclusively to the opponent's case is also obviously relevant, although it may be withheld if it is within the rule protecting a party's evidence (see Arts. 62—65). (a) See Bray, p. 89. (J) See infra, pp. 41 — i2, generally. (e) See infra, p. 54. 11. The discovery must be necessary for disposing fairly of the cause or matter, or for saving costs. An express provision to this effect has been introduced into the rules. See rr. 2, 12, 18. The rules also provide for objections to discovery on the ground of its being unnecessary, or unnecessary at the particular stage, or oppressive : see rr. 6, 7, 12 and 20, and notes thereto. Formerly relevant discovery was almost as of right. 12. A deposit to secure the costs of the discovery may have to be made by the party seeking discovery. This applies to interrogatories and to a general affidavit of docmnents, not to an affidavit as to specific documents under r. 19a, nor to inspection. See rr. 25 — 27a, infra. 13. A person cannot be made a party to an action for relief for the purpose of discovery ; but if he is properly made a party, discovery may under some circumstances be had from him, although no relief is claimed against him (see Art. 9). See infra, p. 48. Interrogatories. 14. Actions for discovery may still be brougtt. See infra, p. 37. Interrogatories. 15. Interrogatories must now be allowed by the judge under rr. 1 and 2, but allowing an interrogatory does not preclude an objection on any ground being taken to answering it altogether or in part. See infra, pp. 37 — 38. 16. A party must answer interrogatories according to the best of his knowledge, information, recollection and belief, unless he has any valid ground of objection (Art. 41). However disagreeable (per Lord Langdale) it may be to make the dis- closure, howeTer contrary to his personal interests, however fatal to his case, he is required and compelled under the most solemn sanction to set forth all he knows, believes or thinks in relation to the matters in question. The most private and confidential communications may have to be disclosed, see (n.) to Art. 41. It is certainly admissible to state the grounds on which the party's belief is founded : it is under some circumstances perhaps obligatory in order that its reality and value may be tested. See generally. Bray, pp. 127 — 143. 17. He must disclose not only the information which he has at the time of the application from whatever source derived (subject as stated in the previous Article), but where discovery is required as to things or matters alleged to have been (or in fact) done or omitted to be done by or in the presence of his servants or agents or to have otherwise occurred (or which in fact occurred) in the course of their employment, he must obtain or make reasonable efforts to obtain from them the infor- mation which they have acquired in the course of such employ- ment ; nor can he escape the obligation to give such information because it may have been communicated under privileged circumstances which protect from production the actual communication (see Arts. 55 and 60). See infra, p. 46. 18. Where interrogatories are delivered under r. 4 to a member or oflScer of a body corporate or joint stock company, the answer is the answer of the body or company (and can be read against it), and on the same principle (see preceding Article), the information of its servants and agents must be Digest of the Law of Discovery. ottained and disclosed,' but only that acquired in the course of the emplojnnent. See infra^ p. 39. Qa. as to Corp. Salford v. Lever there cited : the solicitor is merely the mouthpiece of the body to give the information of its servants and agents. 19. He must also (see Arts. 16 and 17) examine documents in his possession or power if necessary, and for this purpose a document is in his power if he has an enforceable right to inspect it ; but although he can be ordered to disclose the contents or effect of the document he cannot be ordered to produce it if it is not in his sole possession or power (see Art. 33). He is not bound to go and search documents equally accessible to the other party. See infra, p. 47. 20. A further answer may be ordered under rr. 10 and 11 if the answer is deemed insufficient. In considering whether an answer is sufficient, the Court cannot go into its truthfulness except within the limits mentioned in Art. 38. See infra, p. 46. 21. An answer may be insufficient as not complying with Arts. 16 — 19, or as not substantially answering the questions (whether intentionally or unintentionally), or as being evasive, or as mixing up matter of supererogation so that the answer to the particular question cannot be read without the irrelevant matter : but the party may explain or qualify his answer. See infra, p. 46. Under r. 24, part of an answer may be read in evidence at the trial. 22. The grounds of objection to answering an interrogatory are those referred to in Art. 41. Unless a further statement of fact is necessary to support the objection, it is not necessary to take the objection in the answer (o). The statements of fact in the answer are conclusive, subject as stated in Art. 38. (a) See infra, p. 40. Discovery and Production of Documents. 23. A general or limited affidavit of documents in a party's (o) possession or power (see Art. 26) is obtained under rr. 12 and 13 and a further affidavit may be ordered (see Art. 27). Discovery and Production op Documents. His obligation to ascertain the existence of documents and their nature and effect is the same as if he were answering an inter- rogatory, that is to say, to the best of his knowledge, informa- tion, recollection and belief (6), for an affidavit of documents is reaUy in the nature of an answer to an imaginary interrogatory, and discovery of documents was formerly obtained in this way (c). The search for and examination of documents need not where it would be unreasonable or impracticable be made by the party himself, but in such a case it should be made by some responsible and competent person, so as to justify the party's assertion of his belief as to the non-existence of other relevant documents in his possession or power, or as to the nature or effect of particular documents in support of a claim to protect them from production (d). (a) See Art. 9. (*) See Arts. 16—18. («) See Bray, p. 151. ((f) See Art. 24 as to corporate bodies ; Bray, p. 502 : and infra, p. 49. An affidavit as to specifie documents is got under r. 19a, see Ait. 29. 24. Where the party is a body corporate or joint stock company the opponent is entitled to have the sanction of the oath of the proper officer that there are no other documents than those comprised in the affidavit ; if in any respect he has no personal knowledge, for instance, as to documents abroad, he should under some circumstances disclose his means of information, and if the Court is not satisfied, an order may be made that some person on the spot should make the affidavit. See Eep. of Liberia v. Boge, 1 A. C. 139, Art. 23, and infra, p. 40 : and as to interrogatories, Art. 1 8. 25. The affidavit may under some circumstances be ordered to be made by another person on the party's behalf. See Art. 3 generally, and infra, p. 48. " On oath," in rr. 12 and 14, does not necessarily mean the party's oath, see Bray, p. 85. 26. Possession, or power, for the purpose of an affidavit of documents, has a wider signification than for the purpose of production. All documents must be included in which the party has any kind of property, although (see Ait. 33) he can only be ordered to produce those of which he is the sole pro- prietor ; also all documents in his corporeal possession, whether he has any property in them or not. See infra, p. 49 : and Bray, pp. 224—227. Digest of the Law of Discovbet. 27. A farther affidavit (see Art. 23) may be ordered on the ground that the affidavit is insufficient in form (a), or protection is insufficiently claimed, or that relevant documents are omitted (see next Article). (a) This includes insufficient search for and examination of documents, see Art. 23 ; and also insufficient description of documents for the purpose of identification, see infra, p. 52. See generally, infra, p. 52. 28. Where the complaint is that relevant documents have been omitted from the affidavit of documents, and the affidavit is sufficient in form (see Art. 27), a further affidavit can only be ordered if there is reasonable ground for suspicion, derived from particular sources (see Art. 39), that there are other relevant documents in the party's possession (a) ; or a special order as to specific documents may be obtained on an applica- tion under r. 19a (see Art 29) ; or in a very exceptional case an interrogatory might be allowed (b). (a) See infra, p. 50. (>) See infra, p. 51. 29. An order may be obtained, under r. 19a (3), for an affi- davit as to specific documents ; the application must be supported by an affidavit of possession and relevancy. The affidavit made by the party under the order is equally conclusive as to possession, relevancy, or claim to protection, as any other affidavit of discovery (see Art. 38). See infra, p. 59. 30. Interrogatories as to documents or as to their contents, may, under some circumstances, be legitimate, either to ascer- tain the existence of specific documents (a), or to get an admission of their contents to be used in evidence (b), or to falsify a claim to protection (c). (a) See infra, p. 44 : and after affidavit of documents, Art. 28. (J) See infra, p. 45. (c) See Art. 40. 31. A party cannot be ordered to produce a document unless he has directly or indirectly (for instance, by failing to deny an allegation to that efEect by the applicant under r. 18) ad- mitted (a) its relevancy ; but if the nature of its contents or effect is known the Court can judge of its relevancy; and Discovert and Production op Documents, further, iinder r. 19a, tte Court may inspect the document for the purpose of deciding the question. (See also Art. 38.) (a) An admission in an affidavit of documents obtained by another party is sufficient, see infra, p. 53. As to relevancy, see Art. 10. 32. Similarly, a party cannot be ordered to produce a document unless he has directly or indirectly admitted that it is in his possession or power. (See also Art. 38.) 33. A party cannot be ordered to produce a document unless it is in his sole legal possession or power; that is to say, unless the sole right and power to deal with it is in him, although he must discover all documents which are in his possession or power at aU (see Art. 26). The mere interest of another person in a document is not sufficient to prevent an order for production ; it must be an actual property in the document or a right of possession. The party must state the names and nature of the interest of the other persons ; he need not allege or show a refusal by them. He may be ordered to dis- close the contents (see Art. 19). Where it is in his sole legal possession the order will be made, although it is in the actual possession of a person who will not give it up, and he may have to take proceedings to enforce his right. The lien of a solicitor is an exceptional case, and does not necessarily prevent an order being made for production (see infra, p. 53) ; the lien of another person is within the general rule, and prevents an order being made (see Bray, p. 205). See generally, infra, p. 63, and Bray, pp. 193—209. 34. Production of documents in his possession or power (see Art. 33) may be ordered against a party under rr. 14 or 18. Where the document is not referred to in the pleadings, parti- culars or affidavits (a) of the party, or disclosed in his affidavits of documents, the application must be supported by an affidavit of possession and relevancy ; but if the possession or relevancy is denied or protection is properly claimed by affidavit, it is conclusive, except under the circumstances mentioned in Art. 38. (a) See (n.) to Art. 66. 35. Notice to produce documents for inspection to which reference is made by a party in his pleadings, or affidavits (a) may be given imder rr. 15 — 17. (a) See (n.) to Art. 66. 10 Digest of the Law of Discovebv. 36 Parts of documents may be sealed up, and generally under the same circumstances as a document may be with- held from production. See infra, p. 55. 37. A party who has obtained access to his opponents' docu- ments, under an order for production, has no right to make their contents pubhc, or conamunicate them to any stranger to the suit, and, if necessary, he may be restrained by injunction. See Bray, p. 238. [As to place of production, see infra, p. 54 ; as to taking copies, infra, p. 55 ; as to persons to inspect, infra, p. 55 ; as to production of copies instead of the originals of business books, under r. 19a, infra, p. 59]. Objections to Discovery. 38. Where a party is resisting discovery or further discovery, his oath (to the best of his belief, and after proper examination, see Art. 23), whether as to the facts on which his claim to protection is based on the ground of privilege under one of the four heads in Art. 42, or as to relevancy (see Art. 31), or as to possession (see Art. 32) is conclusive, unless the Court is clearly or reasonably satisfied or certain from particular sources (see next Article) that his assertion is untrue or cannot be accepted ; mere suspicion derived therefrom is sufficient to justify an order for a further affidavit of documents (see Art. 28), but it does not justify an order for disclosure of the matter he has objected to disclose either by way of further answer or production (but the Court may inspect the docimient for the purpose of deciding the question under r. 19a). See infra, p. 24. 39. With regard to the sources referred to in the last Aiticle, there is unfortunately some confusion, as they have been differently stated at different times, according to the nature of the discovery required; they do not in any case extend beyond statements made by the party resisting dis- covery iti the cause or matter and documents produced • no statement by the applicant can be regarded for this purpose if denied by the party resisting discovery. It is submitted that Objections to Discovert. 11 in every case the Court might consider any admission by him in the cause or matter whether by afi&davit, pleadings or otherwise, and whether direct or indirect. See as to the sources, infra, p. 25. 40. An interrogatory to falsify the claim to protection for a document is very rarely permissible. See (n.) to Art. 64. 41 Unless the discovery can be objected to as irrelevant, the only objections as of right are those specified in Art. 42. But there are objections which may be raised and to which the Court in the exercise of the very wide discretionary power which it now has may give effect if it is not clearly satisfied that the discovery is really necessary for fairly disposing of the cause or matter, or for saving costs (see Art. 11), and where there is a preliminary issue the Court may limi t, the discovery to that issue (see Art. 8). These objections are referred to, infra, pp. 40 — 46, 50, 53, and they may be applicable both in the case of answers to interrogatories and of pro- duction of documents. It may be said as to most of the oases that the question is whether it would not under the circumstances be oppressive to order the discovery. It may be observed that there is no privilege for the most confidential communications to and from other persons (for instance, a doctor, friend, clergyman) on that ground (and if they are documents they must be produced if they are the party's sole property, even though the other person has stipulated for their being treated as private and confidential, and refuses to authorise their production), or whatever the civil or criminal consequences may be to the other person. If the communication contains privileged matter, it may retain its privilege, see Art. 59. 42. There are four grounds, and four grounds only (see Art. 41), on which discovery may be refused as of right by the party from whom it is sought : on the ground of its incriminatory or penal nature ; on the ground of legal profes- sional privilege ; on the groimd of its disclosing his evidence ; and on the ground of injury to public interests. See infra, p. 24. Incriminatory or Penal. 43. A party is not compelled to give discovery which will tend to criminate him or expose him to the risk of any kind of 12 Digest of the Law of Discovery. punishment (including penal proceedings abroad), whether it be by way of pains, penalties, or forfeitures. See infra, p. 25. See as to waiver, pardon, statutory exceptions, infra, p. 26. 44. The objection to the incriminatory or penal tendency must be taken on oath, whether it be in answer to an interro- gatory, or to production of a document, or to discovery of documents, except where the discovery is sought by a plaintiff in an action to recover penalties or to enforce a forfeiture (see Art. 45), and generally speaking the party himself is allowed to be the judge of the tendency. See infra, p. 25. 45. In an action to recover penalties (of a penal nature) or to enforce a forfeiture a plaintiff wiU not be allowed any dis- covery required solely to support the claim, and this not on the ground that nemo tenetur seipsum prodere, for this objection must be taken on oath (see Art. 44), but because the Courts win not lend their assistance to a plaintiff for that purpose. See infra, p. 26. Legal Professional Privilege. 46. The object of the privilege is to enable persons to con- sult and obtain advice and assistance from professional lawyers safely and effectually : whatever is reasonably necessary for this purpose wiU be protected. The privilege is wider for this reason where litigation is pending or anticipated than where it is not. See infra, p. 27. See as to waiver and secondary evidence, Art. 59. There is no privilege for the most private and confidential communica- tions except in connection with legal advice ; see (n.) to Art. 41. 47. No privilege attaches to communications passing for the purpose of contriving a fraud, or for an illegal purpose, or for illegally evading an Act of Parliament, even (semhle) if the legal adviser is ignorant of the purpose. The fraud or illegality must be definitely and clearly alleged. See infra, p. 28. 48. No privilege can be asserted as against a person on whose behaK (or on the behalf of whose predecessor in title or of the person from whom he claims) the legal advice and assist- Objections to Discoveky. 13 ance has been obtained. A successor in title to or person claiming from or through the client, can assert the client's privilege against a person claiming adversely to the client. See infra, p. 30. 49. Under all circumstances, whether litigation is pending or anticipated or not, confidential communications between the client (or his agent or representative in that behalf (a) ) and his professional legal adviser (or his agent or representative in that behalf (a) ) for the purpose of obtaining and giving legal advice or assistance are privileged. The privilege covers statements of fact in the communication, but there may be a particular fact which is so unconfidential as to be outside the privilege (b). (a) See infra, p. 30. {V) See infra, p. 29 ; and Arts. 57 and 60. As to a solicitor acting for both parties in a transaction, see infra, p. 29. See generally infra, pp. 28 — 29. 50. A document which has come into existence for the purpose of being communicated by the cHent to the legal adviser with the object of obtaining his advice or of enabling him either to prosecute or defend an action, and whether ia fact communicated or not, is privileged, because it is something done for the purpose of serving as a communication between the client and his legal adviser. Stated by Cotton, L.J., as the true principle in Southwarli Co. v. Quick (jMfra, p. 30), where the document in question was the statement of an officer or servant of the company, and made in view of litigation ; but the principle as stated treats the document as a communication from the client to his legal adviser, and so enjoying the same unlimited privilege, see Art. 19. To be within it the document must, it is clear, have come into existence either upon the client's instructions (which would if necessary be protected) or have been prepared for him ; a spontaneous communication from a stranger to the client would not be within it, although such a document would be protected if in reference to litigation, see Art. 53. 51. A person doing the legal adviser's work as his clerk or agent is in the same position as the legal adviser. But the expression '' doing his work " must not be understood in the wide sense in which it is sometimes used, so as to cover the case of every person whom the legal adviser requests to obtain or furnish him with information ; for instance, the report of a surveyor : his communications with such a person are only 14 Digest of the Law of Discoveey. priviliged where the information is required for pending or anticipated litigation (see Art. 53). See infra, p. 30. This decision ( Wheeler \. Le Marchanf) was rested on the ground that the rule did not extend heyond what necessity warranted (see Art. 46). It is conceived that if the communication, whether to or from the third person, disclosed the legal adviser's advice or views it might be protected, see Arts. 58 and .59. 52. (1) So also (see Axt. 49) are communications between the different legal advisers, cases for opinion, opinions, drafts, under some circumstances entries in bills of costs, the legal adviser's notes and clients' rotes of privileged communications. See infra, p. 29, and Art. 59. 52. (2) So also confidential joint consultations and confer- ences. See infra, p. 30, and Art. 56. 53. Where litigation is pending or anticipated (see Art. 54) any original (see Art. 58) document which has come into existence or any communication made confidentially for the purpose of obtaining for or furnishing to the legal adviser materials to enable him to conduct or advise his client in reference to the litigation, whether under the actual advice or direction of the legal adviser or spontaneously for that purpose at his implied request or invitation as such legal adviser, or by the cKent's direction for communication to him, though not in fact communicated, is privileged. See as to materials for evidence collected by a party who is conducting his own case, Art. 65. See infra, p. 31 (n.), " conditions." 54. (1) The litigation need not be the particular litigation in which the discovery is sought, but may be other litigation with other persons and involving different subject matter or questions, for as a general rule "once privileged always privileged." 54. (2) Litigation is "anticipated" for this purpose if after cause of action arisen or lis mota a party makes or calls into existence the communication or document in the hond, fide belief or under a reasonable apprehension that litigation may ensue and solely for that reason : it must be litigation of a Objections to Discovery. 15 definite chaxacter : a mere vague apprehension of litigation generally is not sufficient. See infra, p. 31, and Bray, p. 408. 55. A communication from the client's agent to himself giving information as to the matters in question is privileged if it satisfies the conditions of Art. 53, and where litigation is not pending or anticipated, if it satisfies the conditions of Art. 50 : but it should be stated or appear very clearly that it was a special communication made for this purpose, and not the ordinary communication of an agent to his principal. The information may have to be given in answer to interrogatories, see Arts. 17 and 60. See infra, p. 32. 56. Communications between co-plaintifEs or co-defendants, or persons having a common interest, or with or between their respective legal advisers are privileged if they satisfy the conditions of Art. 53, or (Art. 59) if they contained privileged matter (a). Confidential joint consultations and conferences are privileged whether litigation is pending or anticipated or not (b). (a) See infra, p. 32. (J) See infra, p. 30. 57. What passes in open court or at a compulsory arbitration or at chambers is considered ■puhliei juris, and no privilege can attach to a bare record of what passes there. See infra, p. 29, and Art. 49 as to statements of fact. 58. Documents not originally privileged (or copies of or extracts from them) cannot become privileged in consequence of their being obtained by the legal adviser, but if the effect of producing them would be to show his view as to his client's case or the advice he had given him, they are privileged. See infra, p. 30. This may perhaps apply even where not in reference to litigation. 59. Privileged matter, it is conceived, retains its privilege in whatever document it may be contained if the communication containing it is confidential. Further, the person to whom the privileged matter is confidentially communicated is, it is con- ceived, entitled and bound to assert the client's privilege. It can of course be waived by the client, see infra, p. 27. In Caleraft v. Queat, cited imfra, p. 27, the C. A. held that secondary 16 Digest of the Law of Discovery. evidence of privileged documents might be admissible as against the client : they, however, only purported to follow Lloyd v. Mogtyn, where it was held that where an attorney was confidentially entrusted vrith a document and could not therefore be compelled to produce it, secondary evidence might be given ; but there the document (a bond or deed) was not in itself a privileged document at all, and qw. Calcraft v. Ouest. In Bray, pp. 207, 366, the author has overlooted the distinction between taking away an existing privilege and creating a privilege ; the con- fidence, of course, creates no privilege, see (n.) to Art. 41. 60. Where a party is interrogated as to a matter upon which his information is derived solely from communications which would be privileged from production on the ground of profes- sional privilege, the information (being confidential (a)) and his belief founded thereon is privileged if the information was obtained by or at tlae request of the legal adviser : qu. if other- wise. He cannot, however, escape the obligation to disclose his own agent's knowledge in answer to interrogatories of the nature referred to in Art. 17. In Lyell v. Kennedy, cited infra, p. 33, it was held that the persons who had procured the information must be persons who could be deemed to be agents of the solicitor : the line intended to be drawn was, it is conceived, between information obtained at the solicitor's request and information obtained by the client at his own instance, although (Art. 53) the actual document containing the information would, if the information was obtained for communication to the solicitor, be privileged. There is undoubtedly a distinction : it is necessary that the solicitor should be able to obtain information without the information being disclosed ; it is necessary that the client should be able to communicate freely vrith his solicitor without having to divulge what he said. Cotton, L.J., who was one of the judges in that case, said, in Young v. Bolloway, 12 P. D., at p. 169, that the plaintifE must give her opponents the benefit of all information she has obtained unless obtained by her for the purpose of being communicated to her solicitor to forward her case, but he was there dealing with the question of production of the document. It should be noted that where litigation is not pending or anticipated, the information obtained by a solicitor aliunde is not necessarily protected, see Art. 51 . See generally, infra, p. 33. (a) See infra, p. 33, and Arts. 49 and 57 : a bare fact may not be confidential. 61. The legal adviser must not disclose what he has learnt confidentially in his professional capacity : nor in any case can he be ordered to produce his client's docimaents, for they are not his property (see Art. 33). See infra p. 33. Questions of this kind have generally arisen in the witness-box and Objections to Discovekt. 17 there the same rule as to production of documents the property of another person does not obtain. Disclosing the Party's Evidence. 62. A party is not tound to discover the evidence of his case. The reason is that it wotdd enable an unscrupulous opponent to tamper with the witnesses (if it is oral evidence), and to manufacture evidence in contradiction and so shape his case as to defeat justice. See infra, p. 33. It used to be said that a party was only entitled to discovery relating to his own case. This point is fully discussed in Bray, pp. 10 — 13, and Hi. It is sufficient here to say that to state the rule in this form undoubtedly excludes an important province of discovery (see Art. 63) and that the right is to discovery relating to the matters in question, the opponent being protected from disclosing his evidence. 63. He must, in answer to interrogatories, discover the nature of his case (or title to property where it is his case (o)), or the facts on which he relies in support of his case, as distinguished from the evidence of his case, or of the facts, or from the way in which he is going to make out his case, or from the line of facts not being facts directly in issue on which he is going to rely in support of his case or the conduct of his case at the trial ; for the opponent is entitled to know what case he has to meet, and also to put him on his oath as to his case ; and interrogatories are admissible for the purpose of impeaching or destroying his case. He need not discover the names of his witnesses unless their names form a substantial part of the material facts in the case. (a) See infra, p. 34. See generally, infra, pp. 33 — 35 ; and also (n.) to Art. 64 as to produc- tion of documents impeaching the party's case. 64. In the case of documents he is allowed to protect himself from producing them by swearing (to the best of his belief, and after proper examination, see Art. 23) that they form, or support, or evidence, or relate exclusively to his own case, and that they contain nothing supporting, or tending to support, the applicant's case, or (but not now, see infra) impeaching his own case: and this statement is conclusive unless the Court is reasonably satisfied from certain sources 2 18 Digest of the Law of Discoteet. (see Art. 39) that the party has erroneously represented or misconceived the nature of the documents, or the documents are of such a character that he cannot properly make such an assertion. He need not (having regard to recent decisions) descrihe the documents or their nature at all, and the privilege therefore covers every kind of document. (The Court may inspect them under r. 19a.) See generally, infra, p. 36. Some description was necessary, or at aU events was given, under the old chancery practice, and the Court was not entirely in the dark as to the nature of the documents, and charges and interrogatories as to the party having specified documents supporting the applicant's case, or as to their containing specified matter supporting his case had to be specifi- cally met and answered, and a general denial was insufficient, see Bray, pp. 605, 1214, nor is it clear that the protection originally covered docu- ments which were not in themselves evidence, see Bray, pp. 481 — 492. The result of the recent decisions dispensing with description, and of the recent decisions disallowing in effect interrogatories to falsify the claim for protection (see infra, p. 51), is that there is now no check on the general assertions. The decisions dispensing with description originated from omitting to distinguish between the obligation to describe documents sufficiently for identification in the affidavit of documents and the obliga- tion to satisfy the Court that a document ought to be protected from production. This form of protection, extending as it does now, therefore, to docu- ments of all kinds, whether in themselves evidence or not, and the protection given to materials obtained by or for the legal adviser (see Art. 53), covers the whole ground except the documents referred to in Art. 65. The denial of impending matter it has now been held is not necessary in any case (see A.- G. v. Neieeastle, infra, p. 36). In that case, Williams, L.J., suggested that it might be that a document impeaching the party's own title ought to be produced if it at the same time supported some affirmative title set up by the opponent, but that Swhere no such affirmative title was set up a party ought not to be compelled to produce a document on which he proposed to rely as supporting his case merely because it contained something which suggested a flaw in his title, and might in that way tend to assist the opponent's case. If, however, the document tends to support the opponent's affirmative title the other assertions could not be truly made, and, therefore, this assertion is not wanted, whUe if the impeaching matter is a mere weakness or defect of evidence it ought not to entail production whether the opponent sets up an affirmative case or not : the real question is whether the document contains anything tending to support the opponent's case, and if this is specifically denied it is or shoiild be sufficient. Interrogatories may be directed to im- peaching the party's own case, and there the suggested impeaching matter being known, the Com-t can form its own judgment as to whether it is legitimate. In the early chancery cases the difficulty arose where Objections to Discovert. 19 there was no specific denial of the document containing matter supporting the opponent's case, see Bray, pp. 49i — 498. 65. Documents coming into existence as materials for or relating to evidence to be given orally, where the party is conducting his ovra case, have never as such been yet expressly held privileged, and the weight of authority is against it. If they can be brought within Article 64 they are, of course, protected. See infra, p. 31. See as to materials obtained by or for a legal adviser, Art. 53. 66. Where a party refers to a document in his pleadings or particulars, or in a voluntary affidavit, that is to say, in an affidavit other than an affidavit of discovery, there is a special obligation to produce it for immediate inspection. It is believed that this was the object of rule 15 (infra, p. 56), under which notice may be given to a party to produce docimients referred to in his pleadings or affidavits, and if they are not produced they cannot be given in evidence unless he satisfies the judge that if a defendant, the document relates only to his own title, or he had some other sufficient cause or excuse. " Affidavits," however, has been treated as including affidavits of documents and answers to interrogatories ; that is to say, compulsory affidavits, and so construed, the rule may place an obliga- tion on a plaintiff to produce all his own evidences before the trial, which is entirely contrary to equity-principles. The rule, however, has never in practice been pushed to this extent. Quilter v. Heatley, cited, infra, p. 56, clearly establishes the special obligation referred to in the above Article and the distinction. Injuries to Puhlie Interests. 67. Public official documents are protected from production if it would be injurious to the public interest. There must be some statement by a responsible person, not apparently on oath, but embodied in an affidavit by the party from whom discovery is sought. See infra, p. 37. 2 2 20 PAET 11. NOTES OF PRACTICE. ORDER XXXI. DiSCOVEET AND INSPECTION. Summary.' PAGE. . 21 . 22 . 23 . 24 . 24 25 Cause or matter Parties to give discovery . Stage for discovery . EfEect ot Judicature Act . General objections Criminatory or penal . Legal professional privilege 17-33 Disclosing evidence . . 33 Injurious to public interests 3T Actions for discovery . . 37 Leave to interrogate . . 38 Costs . . . .38 Corporate bodies . . 38 Objecting in answer . . 40 Setting aside . . .40 Objections . . . 40-44 Irrelevance and oppression Libel and slander 41-43 43 PAGE. Interrogating to documents 44 Affidavit in answer . . 45 Knowledge, information, beUef .... 46 Further answer . . .46 Affidavit of documents 48-52 Conclusiveness . . .60 Production and Inspection 53-59 Possession or power . 49, 53 Further affidavit . . 52 Description of documents . 52 Relevance . . .54 Premature discovery . . 60 Non-compliance . . 60 Service on solicitor . .61 Using answer at trial . 62 Security for costs . . 62 Sheriff . . . .64 Infants . . . .64 O. 81, r. 1. 1. In any cause or matter the plaintiff or defendant by leave of the Court or a Judge may deliver interrogatories in 343 writing for the examination of the opposite parties, or any one Discovery by or more of such parties, and such interrogatories when intemgatorios. delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer : Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : Provided also that interrogatories which do not relate to any matters in question in the cause or matter shall Discovert and Inspeotion. 21 be deemed irrelevant, notwithstanding that they might be O. 31, r. 1. admissible on the oral cross-examination of a witness. Cross Beferenoes. — Leave to deliver the interrogatories, r. 2. Form of interrogatories, r. 4. Objection to, and setting aside, rr. 6, 7. Affidavit in answer to, r. 9. Answer by corporation or company, r. 5. Affidavit to be made within ten days, r. 8. Omission to answer or insufficient answer, rr. 10, H. Costs of interrogatories, r. 3. Failure to comply with order for discovery,' r. 21. Service on solicitor suffi- cient for attachment, r. 22. If solicitor so served fails to give client notice, he may be attached, i'. 23. Premature discovery may be postponed, r. 20. Parts of answers may be used at trial, i. 24. Security for costs discretionary, rr. 25, 26. Disposition of security for costs, rr. 27, 27a. Discovery against sheriff, r. 28. Infants, r. 29. " In any Cause or Matter." Petition. — A petition is a cause or matter, and therefore inspection may be had under rr. 15 — 18 of this order {Re Credit Co., 11 C. D. 256 winding-up petition). A petitioner is a plaintiff, and may interro- gate dMe Haddan's Patent, 51 L. T. 190 ; J. A., 1873, s. 100 ; 0. 71, r. 1). Discovery cannot be had in an election petition (Moore v. Kennard, 10 Q. B. D. 290, inspection ; Wells v. Wrerb, 5 C. P. D. 546, interro- gatories ; as to documents in custody of returning officer, see Re JPem- broke, (1908) 2 I. R. 158). As to petitions of right, see (n.) " Crown, A.-Cr." infra. Beferenoes and Arbitrations. — As to references to referees, see O. 36, r. 50. Where the action and all matters in dispute have been referred by consent to an arbitrator, it has been held that the action has disap- peared, and the Court can make no order for discovery (_Penrice v. Williams, 23 C. D. 387). Hotion to set aside Avard. — Held to be a cause or matter within r. 15 {Re Fenner <$• Lord, (1897) 1 Q. B. 667). Interpleader. — By O. 57, r. 13, this order applies to interpleader issues. Actions for Penalties and Forfeitures. — See (n.) infra, p. 26. Inquiry pro interesse sno. — See Alton v. Harrison, W. N. (69) 81 (affidavit of documents). Actions for Becovery of Land. — See (n.) " Title to land," infra, p. 34. Patent and Trade Mark Actions and Applications. — A party is entitled to interrogate in such actions notwithstanding the statutory provision as to particulars {Birch v. Matlier, 22 C. D. 629 ; Crossley V. Tomey, 2 C. D. 533). Other cases— ^e Wills' Trade Mark, (1892) 3 Ch. 201 (affidavit of docts. on motion to expunge from register). Saccharin Corporation v. Anglo Works, cited imfra, p. 43. Benno Taffe V. Richardson, 68 L. T. 404. Libel and Slander Actions. — See (n.) infra, p. 43. Companies. — See r. 5 (nn.), infra. The Crown and the A.-G.— See generally Bray, pp. 68—72. In infor- mations (to which O. 31 does not apply) the Crown has the same right of discovery against a subject as one subject against another, see A.-G. V. Newcastle, (1897) 2 Q. B. 384, discussing generally the Crown's posi- tion. In a petition of right the Grown is entitled to discovery of docu- ments {Tomline v. me Queen, 4 Ex. D. 252). Semile, the suppliant cannot obtain discovery from the Giown{A.-0. v. JVewcastle); a bill of discovery would not lie in aid of a petition of right {Reiner v. Salisbury, 2 G. D., p. 386). Petitioner in divorce suit was refused discovery against King's Proctor in JO. v. D., 25 Times Kep. 411. Foreign States — If a foreign sovereign bring an action here he must give discovery {S. A. Bep. v. La Comp. Franco Beige, (1898) 1 Ch. 190), 22 EULES OF THE SUPREME COURT. O. 31, r. 1. and must give it on his own oath, and not on the oath of an agent on his behalf (PWoZeaw v. U. S. A., L. E. 2 Bq. pp. 663, 664) ; but foreign republics give discovery by their proper officers (iJ«p. Coita Mica v. Erlanger, 1 0. D. 171 ; and see r. 5, infra, and Article 3, supra). lunacy.— See (n.) to r. 29, infra. P. D. and A. Div. — This division iias by virtue of the J. A., ss. 16 and' 23, all the powers of discovery possessed by the old courts of Chancery, Common Law, Admiralty, Probate and Divorce which were absorbed into the High Coart of Justice (^Harvey v. Lovekin and Euston V. Smith, infra). In divorce and matrimonial causes the rules of the J. A. do not apply (0. 68, r. 1), and the court proceeds upon the principles and rules of the old Ecclesiastical Courts ; these courts com- pelled discovery and this practice has been continued, and discovery both by interrogatories and by affidavit of documents, has been granted as well in matrimonial causes over which the old Ecclesiastical Courts had jurisdiction as in those in which they had not (JRedfern V. R. and Harvey v. LoveUn). Cases: Redfern v. R. (see this case explained infra, p. 26) ; E. v. E., 24 Times Rep. 78, interrogatories to prove cruelty not allowed ; Harvey v. Lovekin, 10 P. D. 122 ; Eutton V. Smiih, 9 P. D. 57, suit for nullity of marriage ; Toung v. Holloway, 12 P. D. 167; interrogatories in support of charge of undue influence. In collision actions information contained in the Preliminary Acts can be interrogated to under special circumstances (_Isle of Ch/prtis, 15 P. D. 134 ; The Bernard, W. N. (1905) 73 ; The Siola, 34 L. X. 185 ; The Radnorshire, 5 P. D. 172). " Plaintiff or Defendant"— See (nn.) " Opposite parties," infra, and "Any party," under r. 12, infra. "By leave of the Court," &e.— Seer. 2. "Deliver Interrogatories." — Interrogatories may be delivered (0. 19, r. 10), or served (0. 67, r. 4), by filing. Where leave is given to serve a writ out of the jurisdiction, leave may also be given to serve interrogatories therewith (^Toimg v. Brassey, 1 C. D. 277). " Opposite Parties." — The words in r. 12 relating to discovery of documents are " any other party," but they have been held to mean any opposite party {Shaw v. Smith, 18 Q. B. D. 193 ; approving Brown v. WatUns, 16 Q. B. D. 125). A party on the other side of the record to the applicants is an opposite party, and he may be ordered to give discovery of documents if he is a necessary party to the action, although there may be no issue or matter in question at all between him and the applicant {Spokes v. Grosvenor Co., (1897) 2 Q. B. 124) ; see as to the supposed rule that a party was not bound to give discovery relating to matters in question between other parties in the action, r. 6, (n.) " Irrelevant," infra. A party not on the other side of the record is an opposite party within the meaning of these rules if between him and the applicant there is some right to be adjusted in the action, which in chancery actions might often be the case between two plaintiffs or two de- fendants {Shaw V. Smith, supra ; Molloy v. Kilhy, 15 C. D. 162 ; Alcoy, 3{c., Co. v. Oreenhill, 74 L. T. 345, where discovery of documents between co-defendants to counterclaim was ordered) ; and in Eden V. Wear dale Co., infra, it was said to mean that a plaintiff might interrogate a defendant, and a defendant a plaintiff, and that the definitions of these words in s. 100 of the J. A. were so wide as to include all persons who litigate one against the other in any proceeding any question which the court may properly decide. Defendants were re- fused leave to interrogate co-defendants who had put in no defence, there being no issue between them {Marshall v. Langley, W. N. (1889) 222). A tJiird party who has obtained an order giving him liberty to appear at the trial and oppose the plaintiff's claim, is in the position of an Discovert and Inspection. 23 opposite party to the plaintiff and of a defendant, and can therefore O. 31, r. 1. interrogate the plaintiff (^Eden y. Weardale Co., 35 C. D. 287) ; and the plaintiff can interrogate him (ihid. 34 C. D. 223, following McAllister v. Rochester, 5 C. P. D. 194, where it was held that in a similar case the plaintiff and third party must give discovery of docuuients to one another). See also Sates v. Bvrcliell, W. N. (1884) 108, where a third party obtained leave to interrogate the defendant. See also (n.) " Any party " under r. 12, infra. " Irrelevant notwithstanding admissible on Cross-Exami- nation." — See r. 6, (n.) " Irrelevant," Infra. Time op Stage for Discovery.— In the K. B. D. discovery is not generally granted until after defence. In the C. D. in some chambers apparently it is every-day practice to allow a plaintiff discovery before defence, and see Union Bank v. Manby, 13 C. D. 239, redemption action, explaining Bancoch v. Chierin, 4 Ex. D. 3 ; Hariord v. Monk, 9 C. D. 616 ; and Augustimis v. ?>'erineltx, 16 C. D. 13. A plaintiff will hardly ever be allowed discovery before state- ment of claim. From the earliest times the courts have set their faces against allowing discovery for the purpose of fishing out a case ; see, for instance, (n.) -'Title to land," p. 34, infra. Leave might be given to interrogate as to QPhilipps v. P., 40 L. T. p. 822), or production might be ordered of QMagnus v. Plumbers Co., Sfupra, O. 30, and Cashin v. Craddock, 2 C. D. 147), a particular document ; but as a rule no general discovery (ibid, and Rep. Costa Rica t. Strousberg, 11 CD. 323). For the same reasons a defendant is, as a rule, not allowed general discovery before putting in his defence (^Disney v. Longbourne, 2 C. D. 704 ; Egremont Burial Bd. v. Egremont Co., 14 C. D. 158) ; for the purpose of finding out it he has a defence (Zierenberg v. Laboucliere, (1893) 2 Q. B. p. 188, explained in Waynes, ^c. Co. v. Radford ^ Co., (1896) 1 Ch. 29). In Hawley v. Reade, W. N. (1876) 64, action upon a bill of exchange, defendant was allowed to interrogate as to the consideration to know whether he should defend the action, but qu. ; and see r. 7, (n.) " Paying Money into Court." Where documents are referred to in the statement of claim, the defen- dant is, unless they are privileged, entitled to inspect them before he puts in his defence : see r. 15, (n.) " Scope and Object of this Eule." As to discovery for the purpose of giving particulars, see 0.19,r.7 (n.) ; and (n.) "Libel Actions," p. 43, infra. In the Admiralty Division it is the usual practice to allow a plaintiff discovery after statement of claim, and a defendant after defence (Koscoe's Adm. Pr. p. 340). In The Mwrillo, 28 L. T. 374, plaintiff interrogated before petition filed. At the Trial. — The judge at the trial may order production {Mac Alpine v. Calder, (1893) 1 Q. B. 550). Discovery after and for Working out Judgment or Order.— Discovery after judgment is only permissible for working it out (^Poisson v. Robertson, 50 W. K. 260). The words "during the pendency " in r. 14 mean "up to judgment." O. 55, r. 16, gives the Master powers to order discovery in proceedings before him. See as to discovery after judgment in C. D., Bray, pp. 567 — 569. Interrogatories are rarely, if ever, allowed. Inspection has been ordered and also discovery of documents on inquiries as to damages or profits (_Zadds v. Walthew, 32 W. E, 1000 ; Maxim Nordenfeldt v. N., (1893) 3 Ch. 122 ; Hennessey v. Lavery, (1903) 1 I. R. 87 ; Saccharin Corporation r. Anglo Works, supra'). Discovery in aid of execution is provided for by 0. 42, rr. 32 — 34. Appeals. — ^Where the judgment in a K. B. action is appealed from discovery can only be ordered, if at all, by the C. A. : so held by 24 EULES OF THE SUPREME COUBT. O. 81, r. 1. BuokniU, J., in HirscTifieU v. Simpton (unreported) 3 May, 1910. Ou an appeal from an application to strike out a contributory there B jurisdiction in the C. A. to order discovery of documents for the purpose of the appeal (_Be National Funds Co., 24 W. B. 774). Eflfeet of J. A. and Rules on the Right to and Praettee of Discovery. — The questions (of practice not of principle) are goveiiied hy the rules of the J. A. (see Bolchow v. Fisher, 10 Q. B. D. p. 168 ; fones v. Montevideo Gas Co., 5 Q. B. D. p. 658 ; Xearsley v. Phillips, 10 Q. B. D. p. 466 ; Aste t. Stvmore, 13 Q. B. D. pp. 329, 380). Where no provision is made by the Act or rules the old procedure an4 practice remains in force (O. 72, r. 2, and Wilson v. Church, 9 0. D. 552), and not only the Chancery procedure and practice (^A.-6. v. OasHll, 20 C. D. pp. 525, 526, 530), but also the Common Law procedure and practice where it does not conflict with that in Chancery (Anderson v. Sank of Columbia, 2 C. D. p. 654, and Brown v. Ziell, cited under r. 18). The right to discovery is conferred in aflSrmative terms and in such manner as not to exclude all other modes of discovery .... a very large body of practice was left unprovided for by the rules (Jessel, M.E., China Co. v. Commercial Co., 8 Q. B. D. p. 145). Where there is any conflict or variance between the rules of Common Law and Equity with reference to the same matter, the rules of Equity are to prevail (Bustros v. White, 1 Q. B. D. p. 426 ; Anderson v. Banh of Columbia, 2 C. D. pp. 654, 658 ; Bolohow v. Fisher, 10 Q. B. D. p. 166, citing J. A., s. 26, sub-s. 11) ; and by rules are meant rather rules of law or principles than rules of practice (see Kearsley v. Phillips, 10 Q. B. D. 466). But in applying the same rules to both divisions of the High Court, the different natures of Chancery and Common Law actions will be taken into account (A.-G. v. GasUll, 20 C. D. p. 530; Mercier v. Cotton, 1 Q. B. D. 442). " Discovery is matter of remedy and not matter of right " (Emmerson v. Ind, Coope, 12 App. Cas. p. 309). The right to all relevant discovery has now, however, been curtailed by the provisions referred to in the next note. OBOUNDS ON WHICH BISCOVEBT CAN B£ BESISTED. The rules now provide that discovery is not to be ordered when and so far as the Court or Judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or tor saving costs : see rr. 2, 12 and 18, and see rr. 6 and 7, and the notes thereto, as to oppressive or unnecessary discovery. But in addition to this protection there are four grounds upon which it can be resisted as of right, (a) as being criminatory or penal, (b) as being within the doctrine of legal professional privilege, (c) as disclosing the party's evidence, (d) as being injurious to public interests (Article 42, supra'). The old equity rule protecting a defendant who pleaded purchase for value without notice from all discovery in aid of a common law action against him, except such as bore upon the issue of notice, does not operate under the Jud. Act so as to entitle him to refuse discovery in an action brought against him in the High Court where such a plea would be no defence to the relief (Emmerson v. Ind, Coope, 12 App. Cas. p. 307). Conclusiveness of Claim to Protection.— As to interrogating to falsify claim, see note on p. 61. The oath of the party as to the facts (see Gardner v. Irvin, cited r. 13, (n.) " Sufficient description," infra) on which his claim to protection is based and as to the nature and even the effect of documents which he objects to produce, whether as falling under some one of the four heads of privilege above mentioned, or as being irrelevant, or as not in his possession or power, is conclusive, unless the Discovery and Inspection, 25 court is reasonably or clearly satisfied or reasonably certain from par- O. 31, r. 1. ticular sources (discussed infra) that his assertion is untrue or cannot be accepted : mere suspicion derived therefrom, though sufficient to justify an order for a further affidavit of documents, does not justify an order for disclosure of the matter he has objected to disclose, either by way of further answer or production ; see as to ordering a further answer, i. 11, (n.) "Answers insufficiently," infra, p. 46 : as to the pro- duction of a document sworn to evidence the party's own case, (n.) " Conclusiveness of claim," infra, p. 36 ; as to the productinn of an irrelevant document, (n.) "Conclusiveness of affidavit," infra, p. 50; as to ordering a further affidavit of documents, (n.) " Upon applica- tion for further affidavit," infra, p. 50. For this purpose the Court cannot regard his opponent's oath : the general rule in all questions of discovery is that where you have the oath of the party claiming dis- covery challenging the oath of the party giving discovery, the oath of the latter is for this purpose conclusive. Cotton, L.J., in Lyell v. Kennedy, 27 C. D. p. 19. It is not, however, very clear to what sources the Court is limited. For the purpose of considering whether a further affidavit of documents should be ordered, the affidavit of documents, the documents therein referred to (any documents produced, Lyell V. Kennedy, 27 C. D. p. 20), and the pleadings are, according to Jones V. Montevideo Co., 5 Q. B. D. p. 558, Comp. Financ. v. Peruvian Co., 11 Q. B. D. p. 63, and Mall v. Truman, 29 C. D. p. 319, the only sources : for the purpose of considering whether a document should be produced for which protection is claimed in an affidavit of documents as evidencing the party's own case, the Court may, according to A .- O. v. Emerson, 10 Q. B. D. pp. 198, 204, 206, consider other admissions of the party, the description given by him of the documents and their nature, and other documents produced to the Court, and in this case the party's answers to interrogatories were looked at : for the purpose of consider- ing a claim to protection in answers to interrogatories, Cotton, L.J., in Lyell v. Kennedy, 27 C. D. p. 22, refused to say whether the Court could look at anything in the party's possession not referred to in his answer but scheduled to his affidavit of documents. There seems to be no reason why under the present practice the sources should differ in any of these cases ; and it is submitted that it would be in accordance with the spirit of the old chancery practice that the Court should be entitled to look generally at any admission of the party in the action, whether by affidavit, pleadings, or otherwise : tee Lindley, L.J., in Morris v. Edwards, 23 Q. B. D. p. 293, taking the same view : and see the cases cited, Bray, p. 215 (n.). Exanmiation of Bocnments. — See r. 12, (n.) "Possession or power." (a) CEIMINATOET OR PBNAL. A Party is not Compelled to give Discovery which will tend to Criminate him or expose him to the Eisk of any kind of Punishment, whether it be by way of Pains, Penalties or Forfeiture. See, for instance, Redfern v. R., infra, where it was held that adultery as an ecclesiastical offence was still within this rule : so maintenance in Alabaster v. Harness, (1895) 1 Q. B. 339; 70 L. T. 375 ; and other cases, Bray, p. 311 : see also cases under (n.) " Actions for penalties," infra. The Objection mnst be taken on Oath. — Where the objection is to an interrogatory, it cannot be disallowed or struck out (but otherwise in actions for penalties or forfeitures, see (n.) "Actions for penalties," i«/r. 519, explaining it; Lyon v. Tweddell, 13 C. D. 375, and Johns v. James, 13 C. D. 370 ; Re Strachan, (1895) 1 Ch. pp. 447-8 ; Humphries v. Taylor Co., 39 C. D. 693, following IMa/rriott v. Chamberlain, the names and addresses of the persons alleged to have purchased defendant's goods as and for the plaintiff's goods ; Blackburn v. Lodge (C. A., ex rel.'), action for supplying goods improperly dyed, the names of, and the instructions given by defendants to, the persons who had dyed the goods for them ; 3 2 36 EULBS OF THE SuPEBMB CoURT. O. 31, r. 1. Birch v. Mather, 22 C. D. 629, patent action, the names and addresses of persons alleged in particulars of objections to have used the patent ; Alliance Pure White Lead Syndicate v. Maolvor't Patents, 39 W. K. 487, similar case, defendant alleging general user ; McColla v. Jones, i Times Kep. 12, not the names of persons from whom defendant alleged in his particulars he had received certain information as being his vritnesses ; Mall V. Liardet, W. N. (1883) 175, names of judges, who had given a prize to a machine ; Marshall v. Metrop. District Co. , 7 Times Eep. 49, action for personal injuries, not the names of Co.'s servants who saw the accident ; and see as to libel and slander actions (n.) infra, p. 43. See as to the witnesses of the interrogating party, infra, r. 7 (n.). By Production of Documents. Form of Claim for Protection. — Documents which of themselves evi- dence (see as to documents merely containing evidence to be used, (n.) " Materials for Evidence," p. 31) exclusively the party's own case are clearly {MacLean v. Jones, 66 L. T. 653, limiting it to documents of title to land being dissented from by the C. A. in Sudden v. Wilkinson, (1893) 2 Q. B. 432 ; and see Frankenstein v. Gavin, cited infra') protected ; and the privilege extends to documents exclusively relating to his case if properly claimed by him. He must swear that (to the best of Ms belief, and after proper examination, see Article 23, supra) they form or support or evidence or relate exclusively to, his own case (see A.-G. v. Newcastle, infra), that they contain nothing supporting or tending to support the adver- sary's ease, and (but see infra) that they contain nothing impeaching his own case, see for instance A.-G. v. Emerson, 10 Q. B. D. 191 ; Mmet V. Morgan, L. E. 8 Ch. 361, and Sudden v. Wilkinson, (1893) 2 Q. B. 432 ; but it has been decided by Kekewich, J., in a recent case of Johnson v. Whitaher, 90 L. T. 535, and by the C. A. in A.-G. v. New- castle, (1899) 2 Q. B. 478, that the last assertion cannot now be insisted on in any case ; and see Article 64, supra, (n.) discussing this point. It is not now necessary to describe the documents or their nature, " certain documents " is enough ; see Sudden v. Wilkinson, supra, and Sewicke v. Graham, 7 Q. B. D. 400, and Article 64, supra, (n.), commenting on this practice and referring to observations of Lord Lindley. See as to what description is necessary to constitute a sufficient affidavit, r. 13 (n.), " Sufficient Description," infra. ConcluslTeneBS of Claim. — The above general assertion is accepted as conclusive unless the Court is reasonably satisfied or reasonably certain from particular sources (see (n.) " Conclusiveness of Claim," p. 24) that the nature of the documents, that is their nature as described by the party in his general assertion, has been erroneously represented or misconceived, or the documents are of such a character that the party cannot properly make such an assertion {A.-G. v. Mnerson and Franken- stein V. Gavin's Co., infra, and see Roberts v. Oppenheim, 26 C. D. at p. 734). Csksea— A.-G. v. Emerson, 10 Q. B. D. 191, information by Crown claiming a declaration of title to a foreshore, and a commission to ascertain boundaries ; defendant claimed it as lord of the manor ; pro- duction of court rolls ordered, and see A.-6. v. Newcastle, cited in (n.) " Upon Application for further Affidavit," infra, p. 50. Frankenstein v. Gavin's Co., (1897) 2 Q. B. 62, action for fraudulently misrepresenting the number of subscribers, defendants' claim to protection for the appli- cations to become subscribers held unimpeachable. Ponsonby v. Hartley, W. N. (1883) 44 ; action to restrain working of minerals, the Court in- spected one of the documents, and considering that it tended to support plaintiff's title, and that the affidavit, being to this extent inaccurate, could not be relied on as to the other documents, ordered inspection of all (but see Zeslie v. Cave, 56 L. T. 332 ; where Kekewich, J., refused to Discovert and Inspeotion. 37 follow this decision) : Marsh v. Bailey, cited in Bray, pp. 508 — 9, case O. 31, of disputed boundary, where inspection of parcels and maps was rr. 1, 2. sought, ffey v. de la Sey, W. N. (1886) 101 ; where priyilege was claimed for letters between the two defendants and account books in the full form, including the assertion that they were intended to be used in eTideuce, and the C. A. ordered theix production, for they could not be evidence for the defendants. Cd) INJTIBIOOS TO PUBLIC INTEEESTS. Public official documents are protected from disclosure if it would be injurious to the public interest (^Wadeer t. E. J. Co., 8 De G. M. & G. p. 191 ; and cases infra'). Mode of making Objection. — In Kain -f. Farrer, 37 L. T. 469, it was held that it was not sufficient for the defendant to object to pro- duce all documents in his official custody on the ground of public policy and to refuse tfl state anything further, the mind of the proper person must be brought to bear on the question, and he must go through the documents and consider them ; and the view expressed was that an affidavit ought to be made by the head or secretary of the department. But in Hennessy v. Wright, 21 Q. B. D. 509, it was held, in reference to copies of official despatches and State papers, that it was the duty of the Court to prevent their disclosure (and see Chatterton f. Sec. of State for India, (1895) 2 Q. B. p. 195), and that an affidavit by the Secretary of State was not necessary, dis- tinguishing between production by way of discovery and production at the trial ; and an affidavit of the plaintiff to the efiEect that the Secretary of State having had his attention called to the documents had directed him to object to produce them on the ground of the interests of the State and of the public service was held sufficient. Queere, whether the Court was right in holding that these copies were the plaintiff's property : he swore that he held them as Governor and subject to the direction of the Sec. of State. Hennessy v. Wright was followed in Wright v. Mills, 62 L. T. 558 (Colonial Office) ; and in Ford V. Blest, 6 Times Eep. 295 (alleged libellous official report to colonel of regiment) ; and in Re Jos. SCargreaves, (1900) 1 Ch. 347 (income-tax returns). See also The Bellerophon, 23 W. B. 248, and Marks V. Beyfus, 6 Times Rep. 350. ACTIONS FOR DISCOVERY. Under the present practice it can be but rarely necessary to institute actions of this nature. The effect of ». 24, s.-s. 7, of the J. A. is to give jurisdiction to the Court before whom a cause or matter is pending, to order therein all discovery in aid of the claim or defence which could, before the Act, have been obtained by a bill of discovery (^Ramsden v. Brearley, 33 L. T. 322) ; for instance, a bill of discovery under 6 & 7 Will. IV. cap. 76, s. 19, relating to libels in newspapers. Hid. The following are the only reported cases of actions for discovery since the J. A. : — Orr v. Diaper, i C. D. 92, names of consignors of goods and particulars of shipments ; Reiner v. Salisbury, 2 C. D. 378, in aid of proceedings to recover land in India ; Ainsworth v. Starhie, W. N. (1876) 8, in aid of arbitration ; and Dreyfus v. Peruvian Co., infra. No action for discovery will lie in aid of proceedings in a foreign court (^Dreyfus v. Peruvian Co., 41 C. D. 151). See generally as to bills for discovery. Bray, pp. 609—619. 2. On an application for leave to deliver interrogatories, the 844. particular interrogatories proposed to he delivered shall he suh- Particular to be su mitted. mitted to the Court or Judge. In deciding upon such applica- j"*^"°^^*"'** 38 Rules of the Supreme Coukt. 0.81, rr.2— 6. 346. Costs of interrogatories. 346. Form of. 347. Corporation companies. tion, the Court or Judge shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce docu- ments relating to the matter in question, or any of them, and leave shall be given as to such only of the interrogatories sub- mitted as the Court or Jtidge shall consider necessary either for disposing fairly of the cause or matter or for saving costs. E. S. C, Nov. 1893, i. 13, substituted for 0. 31, r. 2 (1883). The words in italics are new. "Application for Leave."— See r. l (n.) " Time for discovery." Application may be made for leave to deliver further interrogatories (^BoaJte V. Stevenson, (1895) 1 Oh. p. 360). " The particular interrogatories."— in Tye v. WUloughhy, 38 Sol. Jo. 338, Chitty, J., said that under this new rule the judge was not to settle the interrogatories but to decide what should be administered. Allowing an interrogatory does not preclude any objection being taken in the answer under r. 6 : per C. A. in Peeh v. Ray, (1894) 3 Ch. 282. The 0. A. will not interfere unless there is some question of principle involved or some substantial injustice, ibid. "Particulars." — See(n.) "Matter in the nature of particulars," p. 34. " Necessary." — See (nn.) to rr. 6 and 7 ; and " It shall be lawful," to r. 14. Forms.— AppHcation, Chitty F. p. 266 ; D. C. F. p. 956. Order, Chitty F. p. 267; Seton, p. 50. Serve copy proposed interrogatories with summons at the address for service. 3. In adjusting the costs of the cause or matter inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court or judge, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault. See 0. 65, r. 27 (20). 4. Interrogatories shall be in the Form No. 6 in Appendix B, with such variations as circumstances may require. jFoT-m.- Interrogatories, Chitty P. pp. 267—272 ; D. C. F. p. 957. 5. If any party to a cause or matter be a body corporate or a joint-stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corpora- tion, company, or body, and an order may be made accordingly. The old practice in Chancery was to make him a party for the pur- pose of discovery: this can no longer be done (^Wilson v. Church, 9 0. D. 552). Discovery and Inspection. 39 " Party to a Cause or Matter."— See notes to r. i, mpra, o. ai, r. «. pp. 21 — 23, and (n.) " Liquidator," iti/ra. "Body Corporate op other Body."— (See generally Article 3, mpra.) See as to the Crown, A.-G., and Foreign States, suvra, p. 21 ; and as to the Charitable Trusts (Recovery) Act, 1891, Voiril., Pt. V. V .»/ > > , " Member op OffleeP." — The officer or member is the representative or alter ego of the body for the purpose of answering the interrogatories {Berkeley v. Standard Co., 13 C. D. p. 101). It is not his answer but the answer of the body, and therefore there is no obligation either to disclose his knowledge or to obtain and disclose the knowledge of other agents or servants of the body acquired by him or them otherwise than in the course of his or their employment ( WeUlach Co. v. New Sunlight Co. (1900) 2 Ch. 1, and see r. 11 (n.) "Information of agents." The body is served with the application (and if it is desired to interro- gate a member who is not the secretary or other proper officer, the member also as a rule must be served {Cliaddock v. British 8. A. Co., (1896) 2 Q. B. 153)) ; the solicitor of the body should act for the officer or member, and his costs are pait of the body's costs (Berkeley v. Standard Co. , 13 C. D. pp. 99, 100, 102). It is open for the applicant to show why one member and not another can give the information, or why one member can give in- formation on one set of questions and another member on another set of questions (see Wilson v. Church, 9 C. D. p. 557 ; Berkeley v. ^an- dard Co., 9 C. D, 643 ; Re Alexandra Palace Co., 16 C. D. 58 ; Tannetta 4" Co. v. Newport Bock Co., 6 Times Rep. 325) ; or even it would seem from Comp. Pacifique v. Peruvian Guano Co., 28 Sol. Jo. 410, aU the interrogatories might be delivered to different officers, each officer to answer those on which he had special knowledge. An order may be made on the body to answer " by the secretary or clerk or other proper officer " (see Mayor of Swansea v. Quirk, 5 C. P. D. 106) ; or "the proper officer" (Chaddook v. British S. A. Co., supra). The secretary is, as a rule, the proper person to answer (Jessel, M.R., in Berkeley v. Standard Biscount Co., 13 C. D. p. 99) ; and it was his practice not to direct a member to answer unless there was no officer who had a competent knowledge of the facts (ibid.). But an officer, if selected to answer, must, if he have no personal knowledge of the facts, apply to those servants of the company who may have such personal knowledge (see Southwark Co. v. Quick, 3 Q. B. D. 315 ; and see supra, referring to Welshach Co. v. New S. Co.). The person proposed by the applicant will not be called on to answer if the body show any reasonable objection to him (Manchester Co. v. Slagg, infra ; and see Republic of Costa Rica v. Erlanger, 1 C. D. p. 173). Town Clerk. — Where the body elected to answer through their town clerk it was held in Mayor of Swansea v. Quirk, 5 C. P. D. 106, that he could not refuse to answer on the ground that his information was derived from privileged communications from the body to himself as their solicitor : but where the opponent had insisted on the town clerk answering the interrogatories it was held in Corp. of Salford v. Lever, 24 Q. B. D. 695, that it was a good ground for refusal : qu. as to the soundness of the distinction, see Article 18, supra. Information falling within the principle discussed in (n.) " Privileged information," p. 33, would of course be protected whoever answered for the body. Iiiqnidator Where there is a question between him as representing the company on the one hand and the contributory or other person on the other hand, he is in the same position and under the same obliga- tion to give discovery as if he were the opposite party in an action, as if he were the officer called upon to give discovery on behalf of a litigant company (Re Contract Corp., L. R. 7 Ch. 207 ; Re Barneds^ Banking Co., L. B. 2 Ch. 350). But he will not as of course be ordered 40 Rules of the Supreme Court. O. 31. rr. 6—7. 348. Objections to interrogatoiies by answer. 840. Setting aside and striking out interroga- tories. to make an affidavit of documents — he is an officer of the court ; if he will not do what is right the court will compel him. The proper course - for a hostile litigant who seeks inspection is to apply to the liquidator for inspection, and if satisfactory inspection is not obtained an order will then be made {Re Mutual Society, 22 C. D. pp. 720, 721). The liquidator has a reciprocal right of discovery against him (iJe Alesoandra Palace Co., 16 0. D. 68). A liquidator carrying on an action in another person's name cannot be interrogated : Massey v. Allen, W. N. (78) 246. See also London and Yorkshire Banh v. Cooper, cited infra, r. 14 (n.) " Possession or Power." Beading Answer against Body. — The opinion seems to have been formerly that it could not (see cases cited Bray, pp. 83, 84) ; but it is settled now that it can {Welsbaeh Co. v. New Sunlight Co., (1900) 2 Ch. 1, and see Manchester Co. v. Slagg, W. N. (82) 127, and Smith, L.J., in Chaddoak v. British S. A. Co., (1896) 2 Q. B. p. 158). Forms.— Application, D. C. F. p. 957 ; Chitty F., p. 266. Discovery and Production of Documents.— This is obtained by an order agailist the body for an affidavit of documents in its possession to be made by the secretary, clerk, or other proper officer (see forms in Chitty F., pp. 247, 249, and Seton, p. 54). It should, if possible, be made by some person who has personal knowledge as to the documents in the possession of the body (see Article 24, supra). See also (n.) "Body corporate," supra, and as to a liquidator (n.) supra. 6. Any objection to answering any one or more of several interrogatories on the ground that it or they is or are scandalous or irrelevant, or not hrnid fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer. See notes under next rule. 7. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous ; and any application for this purpose may be made within seven days after service of the interrogatories. "Any ... set aside ... or struck out.— The new rule 2 practi- cally makes this provision unnecessary. "May be taken."— Any ground of objection may be taken in the answer (see Fisher v. Owen, 8 C. D. p. 654) ; though the interroga- tory has been allowed under r. 2, see Peeh v. Say, there cited. If fresh facts are relied on as reasons for not answering, they should be set out ; but if the objection is a mere matter of argument, and not a statement of new facts, and the judge sees that the answer is sufficient, he is right in refusing to require the objection to be stated in the answer (Smith V. Berg, 36 L. T. p. 472) ; where it is irrelevant, no reason need be given (ihid.; Clmrch v. Perry, 36 L. T. 513). As to the conclusiveness of the party's oath in the answer for the purpose of his claim to protection against answering, see r. II. (n.) " Answers insufficiently." ' ' Scandalous. "—Nothing can be scandalous which is relevant (Msher V. Owen, 8 C. D. p. 653). Interrogatories, though tending to criminate or discredit the party interrogated, are not scandalous if they are pertinent and material to the case of the interrogating party (ibid. p. 661 • and see Allhusen v. ZaboucJtere, 3 Q. B. D. pp. 660, 661, 666 ; and Ifaiional Discovery and Inspection. 41 Associatiim v. Smithies, (1906) A. C. 434). In KemlU v. Sope, 10 O, 81, r. 7. Times Eep. 371, scandalous intorogatories were disallowed. -_^^^____ " IPFelevant." — The discovery must, it was thought, be relevant to the matter in question between the party seeking the discovery and the party of whom it is sought (Bray, p. 59, and Article 9, swpra, and so apparently considered in Codd v. Delap, W. N. (06) 57, 78) : but Spokes V. Grosvetwr Co., cited under r. 1 (n.) " Opposite parties," supra, is hardly reconcilable with any such rule. For the purpose of testing the relevancy to a particular issue, the case of the party seeking the discovery upon that issue may have to be assumed to be true (see Bray, p. 18). Under the old Chancery practice the discovery was material if it might be (and so now ; see Sheward v. Lonsdale,i2 L. T. 172) useful in obtaining any relief which the plaintiff might obtain ; and where it was a matter of indifference to the party of whom it was sought the court did not weigh in golden scales the question of materiality or immateriality (^Moore v. Craven, L. E. 7 Ch. p. 96, n. ; and see (n.) " Oppressive," infra). The right to interrogate is not confined to the facts directly in issue, but (subject, of course, to the rule protecting the party's evidence, see Hooton V. Dolby, cited under (n.) " Nature of case," supra, p. 34), extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of the facts directly in issue (Esher, M.R., in Marriott v. Cliamherlain, 17 Q. B. t). p. 163). But the latter part of r. 1, distinguishing between discovery and cross-exami- nation, shows that the discovery must be directly relevant to the matters in issue : lie Howel Morgan, 39 C. D. 316 ; and see Kennedy v. Dodson, (1895) 1 Ch. 334. The functions of discover}' and cross-examination are different : A.- 6. v. GasUll, 20 C. D. p. 530. Admissions. — (See r. 2, supra.) Discovery is not limited to giving the party a knowledge of that which he does not already know, but includes the getting an admission of anything which he has to prove on an issue between himself and his opponent (^. - G'. v. Qashill, 20 C. D. p. 528 ; Smith, L. J., in Kennedy v. Dodson, p. 341) ; to facilitate proof or save expense ( Grumirecht v. Parry, 32 W. R. p. 204 ; Hall v. L. ^ N. W. By. Co., 35 L. T. p. 850) ; A.- 6. v. Gaskill, pp. 527, 528 ; Saunderson v. Daron run Radeck, 119 L. T. Jo. 33. Evidence and Names of Witnesses. — It is admissible to interrogate to facts which will inform the party as to evidence to be obtained (A.- G. V. Gaskill, 20 C. D. p. 528) ; the names of persons who may give evidence for him QHall v. lAardet, W. N. (83) 175) ; and see Dalgleish v. Loiother, cited infra, p. 44, persons present at alleged slander. See, as to the opponent's witnesses (n.), " Names of witnesses," supra, p. 35. Names of Persons to make them Parties. — This is legitimate — for instance, of incumbrancers in foreclosure or redemption actions ( Union Bank of London v. Manby, 13 C. D. 239) ; defendant's husband {Jlan- cocks V. Lablache, 3 C. P. D. p. 202) ; defendant's tenants in eject- ment actions (_Eyre v. Badgers, 40 W. K. 137) ; and see Bray, p. 19. Sedemption Actions.— Discovery of prior incumbrancers' securities must be given (^West of England Bank v. NickoHs, 6 C. D. 613). So names of incumbrancers, see note, supra. Damages Discovery relating to the quantum of damages is clearly relevant, although (see (n.) " Not sufficiently material at that stage," imfra) it may be postponed until the question of liability has been decided : see, for instance, Marriott v. Chamberlain, 17 Q. B. D. 162, interrogatories by defendant as to matter which would tend to reduce damages : Pape v. Uster, L. E. 6 Q. B. 242, inspection by defendant of letters in breach of promise action bearing only on the question of damages, he admitting the promise : Bray, p. 113, interrogatories as to defendant's means : Seaife v. Kemp, infra, p. 44 ; Elkxn v. aarke, and 42 EULES OF THE SUPREME COUKT. O. SI, r. 7. Sckreiber v. Seymann, infra ; Ladds v. Waltliew, 32 W. R. 1000, inquiry as to damages ; Fennessy v. Clark, infra. Faying Money into Court.— For the purpose of paying a proper sum into court, a defendant admitting liability has been held to have a special right to interrogate the plaintiff, see M-ost v. BrooJte, 23 W. R. 260 ; and Clarke v. Bennett, 32 W. R. 550, in which case however the court failed to recognise the general right to discovery relating to the amount of damages, see (n.) supra. In Megaw v. MeDiarmid, L. B. Ir. 10 C. L. 376, discovery of documents was allowed for this purpose. Other Instances and Cases of Relevancy. — See eases under (nn.) "Oppressive," mfra. "Disclosing the party's evidence," p. 33, and " Relating to any matter in question," r. 14 (n.). "Not sufficiently material at that stage."— The comments of the judges upon r. 20 of this order are material in this connection. "Now, in deciding whether discovery ought to be given, we must first consider whether it will help the plaintiff at the trial. If it will not, but will only be of use if the plaintiff obtains a decree, then, having regard to the discretion given to the court by 0. 31, r. 19 (now r. 20), we must consider whether it is fair that the defendant should be obliged to give it at this stage of the proceedings, or whether to compel him to give it would be oppressive," Jessel, M.R., in Parker V. Wells, 18 C. D. p. 488 ; and see Hid. pp. 484—487. " The court is always unwilling before the right to relief is established to make an order for discovery which may be injurious to the defendant, and will only be useful to the plaintiff if he succeeds in establishing his title to relief," Cotton, L.J., in Fennessy v. Clark, 37 C. D. p. 187 ; and see Rowcliffe V. Leigh, 6 C. D. p. 263 ; Leiteh v. Abbott, 31 C. D. 374, and the cases, infra. Accounts may be sometimes properly required. An executor was, in equity, under a peculiar obligation to set out in his answer the accounts of the testator's estate, and this obligation has been recognised under the J. A. (iJe Sutoliffe, 44 L. T. 547 -; and see also jffi. George v. St. er v. King, 29 W. E. 536 ; and see Hill v. Sari-Davis, 26 C. D. 470 ) ; but the usual practice is to order a further answer (_Zyell v. Kennedy, 27 C. D. p. 28). Matter of supererogation. — When an answer is couched in a form which makes it embarrassing, that is to say which prevents the person who asks for it from using it without having thrust upon him irrelevant matter as part of it, it is insufficient (^Lyell v. Kennedy, 27 C. D. p. 28, citing Peyton v. Harting, L. E. 9 C. P. 9 ; and see L. v. K. on another application, 83 W. E. 44, and Richards v. Crawshay, 8 Times Eep. 446) In Malone v. Fitzgerald, 18 L. E. Ir. 187, the defendant in a libel action was held justified in adding to his answer that he published the libel honestly and without malice. It is of course legitimate to explain or qualify an answer. Knowledge, information and belief, answering as to.— A party must answer to the best of his knowledge, information and belief : see supra, Arts. 16 — 19. Information.— He is bound to state all the information of which he is personally possessed at the time he is interrogated from whatever sources or persons it has been derived ; but he is not bound to obtain the information of any one except his agents, see infra. Discovery and Inspection. 47 Privileged Information.— See note, swpra, p. 444. Information of Agents. — He is also bound to obtain the information of his agents or servants where he is interrogated as to matters presumably or admittedly done or omitted to be done by them, or in their presence, in the course of their employment, and does not sufficiently answer by saying that he does not know and has no information on the subject CBolckow V. Fisher, 10 Q. B. D. 161, 169, 171 ; JtasiotJtam v. Shropshire, ^0., Co., 24 C. D. 110); his agent's knowledge is in law his own know- ledge on such matters (^Anderson v. Bank of Columbia, 2 G. D. 644, 657,669). He fe not bound to obtain and disclose the knowledge acquired by his agents or servants otherwise than in the course of their employment (^Welsbach Co. v. A'ew Sunlight Co., (1900) 2 Ch. p. 10). "Agents" includes bankers or solicitors (_AllioU v. Smith, (1895) 2 Ch. 111). He must use his best efforts bona fide to get the information (^Anderson v. Bank of Columbia, p. 657). Where the agent is no longer his agent or under his control or is in such a position that it would not be reasonable to force the party to communicate with him, or if he is dead, the party will be relieved fi-om the obligation (Bolckow v. Mther, pp. 169, 171). So an executor wa-s held not bound to inquire of the solicitors or bankers of the testator as to matters occurring twenty years before his death (^Alliott v. Smith, supra'). The information may have to be given, although the document containing it is privileged (see (n.) " Privileged information," sxtpra, p. 33). See as to answers of corporate bodies, j.. 5, supra. Cases : Bolckow v. Fisher, officers and crew of ship ; Rasbotham v. Shropshire, ^c., Co., where Bolckow v. Fisher was distinguished ; Sail v. L. ^ N. W. R. Co., 35 L. T. 848, carriers acting as defendants' collecting agents ; and A.-O. T. Bses, 12 Beav. 50, workmen and agents at colliery. Examination of Documents — He mast also examine documents in his possession or power if necessary. A document is in his power if he has an enforceable right to inspect it, and he is bound to exercise that right, and even take proceedings to enforce that right if wrongfully refused to him : see Bray, 135 — 138, citing Taylor v. Rundell, Stuart v. Bute, 11 Sim. 391, 442, and 5u)aftsf o» v. Lishman, 45 L. T. 360, and distinguishing between the obligation to produce and that to disclose the contents of a document. He is not bound to go and search documents which are equally accessible to the party seeking discovery ; see, for instance, Jyyell v. Kennedy, 27 C. D. p. 16, public books such as rate-books. See also r. 12 (n.) " Possession or power." "By viva-voce Examination." — A roving cross-examination is not legitimate ; the party should only be required to make such an answer as would have been sufficient if originally given in writing : Litchfield V. Jones, 51 L. T. 572, where the extra costs were disallowed. As a rule the costs should be reserved, otherwise the examination may be unduly protracted (^Vicary v. G. N. R. Co., 9 Q. B. D. 168). Forms.— AppUcation, Chitty F. p. 277 ; D. 0. F., pp. 960, 961. Order, Seton, pp. 50, 61 ; Chitty F., p. 277. O. 81, rr. 11, 12. 12. Any party may, without filing any affidavit, apply to the 354_ court or a judge for an order directing any other party to any Application for cause or matter to make discovery on oath of the documents discovery of which are or have been in his possession or power, relating to documents. any matter in question therein. On the hearing of such appli- cation the court or judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of documents, "W 48 EuiiES OF THE Supreme Couet. O. 81, r. 12. as may, in their or his discretion, be thought fit. Provided that discovery shall not be ordered when and so far as the Court or Judge shall be of opinion that it is not necessary either for dis- posing fairly of the cause or matter or for saving costs. The proTiao was added by R. S. C, Nov. 1893, r. 13. See (n.) " Refuse, adjourn," infra, p. 50. Cross Befereuces. — Form of affidavit, r. 13. Order for production, r. 14. Inspection of documents rr. 15-18. Failure to comply vfith order, r. 21. Security for costs, rr. 25 — 27A. "Any party . . . any other party."— See (n.) " Opposite parties," p. 22. Co-plaintiffs. — When an order is made on plaintiffs the common order is that the plaintiffs shall make an affidavit of documents in their or his possession or power: and all must join in the affidavit (^Wilson, v. Raffalomtoh, infra). See as to enforcing order by co-plaintiff Seal v. Kingston (n.) to r. 21. In HershmA v. Hall, (1908) 2 I. R. 99, it was held, that an order against a firm need not specify the name of the individual to make discovery. Agent. — Liberty given to an agent abroad to make affidavit, Donovan V. Todd,, (1908) 2 I. R. 100. Husband and Wife. — Where husband and wife are co-plaintiffs a defendant is entitled to an order in the same form as against any other co-plaintiffs, for the wife may have documents which would not be in their joint possession : Fendall v. O' Connell, 29 G. D. 899 ; and see Hartley v. Owen, 34 L. T. 752 ; and a husband and wife may be sepa- rately interrogated. Smith v. Berg, 36 L. T. 471 ; and see Lee v. Suchanan, 26 Ir. L. T. B. 50. Persons suing in other Persons' Names. — These latter are in point of law the plaintiffs and must obey any orders for discovery or production of documents which have been made against them : Wilson v. Raffalovitch, 7 Q. B. D. pp. 557, 558, where, one of the plaintiffs not having complied with the order, an order for a further affidavit was made, though if he were not in a condition to make the affidavit the Court would not attach him or dismiss the action, p. 561 : qu. whether defendants are entitled ea; debito justitia to an order for discovery on the nominal plaintiffs in such a case : Hid. pp. 557, 560. Where a foreign principal resident abroad was the real plaintiff and was suing by his agent in this country, who was dealt with as agent and not as principal, the Court would not allow the nominal plaintiff to proceed until the real plaintiff had done everything he would have had to do if his name were on the record, and the action was stayed untO the principal had made an affidavit of documents upon the principle of Rep. of Gosta Rica v. Erlanqer 1 C D. 171 {Willis V. Saddeley, (1892) 2 Q. B. 324). But if a plaintiff is not a mere nominal plaintiff without any interest, and has an independent right of his own, no such order can be made so as to compel production of a document in the possession of a person (underwriter), who is interested in a portion of the money claimed (James Nelson v. Nelson (1906) 2 K. B. 217). The practice in marine insurance actions (see (n.j infra) is peculiar to those actions. See as to a, liquidator, i- 5 (n ") "Liquidator." '-^ Corporate Bodies.— A.-G. and Crown.— See r. 5 (nn.) " Body corporate" and " Discovery of documents." Next Friend. — Guardian ad litem. — Committee of Lunatic. See (nn ) to r. 29, infra. Party for purpose of Discovery.— A person cannot be made a party solely for the purpose of discovery ; he is a mere witness : Berry v. Keen, 26 Sol. Jo. 312 ; Bmchard v. MacFarlane, (1891) 2 Q. B. p. 247 ;' Discovert and Inspection. 49 Sgmondsv. Oity Sank, 79 L. T. Jo. 175, trustee in bankruptcy ; and see O. 81, r. 12. Burstall v. Seyfas, 26 C. D., pp. 40—42, disapproving the old practice, " of making an attorney, agent or arbitrator (Mathias v. Yetts, 46 L. T., p. 502, and A.-O. v. Sermondsey, 23 C. D., p 67) a party for costs or discovery, and the cases cited under O. 37, r. 7 ; and generally as to this subject. Bray, pp. 40 — 57. As to whether discovery is limited to vphat is relevant to matters in question between the party seeking discovery and the party from whom it is sought, see (n.) " Irrelevant " to r. 6, supra. Where a defendant who has properly been made a party has complied with the plaintiff 's demands, it was said that it might be a ground for not staying proceedings against him that the plaintiff may be able to interrogate him {Heatley v. Newton, 19 C. D. 326) ; but gy,. "Order." — See forms infra. The order in the C. D. directs production for the purpose of inspection and at the trial ; an attempt to introduce this form into the K. B. D. failed in Nobel v. Stewart, 35 Sol. Jo. 546. "Without Filing an Affidavit."— See (u.) "Refuse," &c., infra. " Cause OF Matter." — See (n.) on these words to r. 1. " Possession of Power." — These words do not here bear the limited meaning which they bear for the purpose of an order for production : see (n.) " Possession or Power," to r. 14, infra ; all documents must be included in which the party has any possession or property jointly with others, or even in which he has no property at all, if they are in his corporeal possession (but not if they are not in his corporeal possession, for instance the solicitor's own documents in his own possession, see Lindley, L.J., in O'Shea v. Wood, (1891) P. 288) : see para. 7 of the form prescribed by r. 13 ; and see Norton v. Lamport, 2 Times Eep. 630, where it was said that "agents " in that paragraph meant persons whose custody would be substantially that of the party : and careful search must be made for all relevant documents in his own physical possession, and proper inquiries and efforts made as to those which are not, for instance, documents abroad : see for example Swanston v. Zishman, 45 L. T., 360 ; jPriee y.P., 48L.J.,Ch. 215 ; Jones Y. Andrews 58 L. T. 601, and other cases cited Bray, pp. 220-226 ; and see Article 23, supra. See also r. 11 (n), "Examination oi documents," supra. Discovery from interested persons. — See (n.) " Persons suing in other persons' names," supra, and (n.) " Marine Insurance Actions," infra. Marine Insurance Actions. — Long before the Jud. Acts the pecu- liarity of insurance business had given rise to a practice of granting discovery to a larger extent than in ordinary business, see China Co. V. Commercial Co., 8 Q. B. D., p. 145, Sarding v. Bussell, (1905) 2 K. B., p. 85, where the reasons are given, and Tannenlaum, v. Heath, (1908) 1 K. B. 1032, C. A. : and China Traders v. Royal Exchange, (1898) 2 Q. B. 187, where it was held that a reinsurer is entitled to the ordinary order for ship's papers against the underwriter. The practice also applies where the carriage is partly by land and partly by sea (^Harding v. Bussell, overruling Village Co. v. Stearns, 5 Com. Ca. 246, and also Henderson v. Underwriters' Association, (1891) 1 Q. B. 557, if it was intended to lay down a different rule) ; not where it is wholly inland transit Tannenbaum v. Heath, supra, approving Soliloss v. Stevens, 10 Com. Ca. 224. It does not extend to other insurances, for instance, fire insurance, ibid. Further, the right extends to documents in the possession of any persons interested, that is, persons on the same side as the plaintiffs, although they are not parties to the action, and whether they are the property of these persons jointly with the plaintiffs or their sole property (^London and Provincial Co. r. Chambers, 5 Com. Ca. 241), and there is a form of order given in App. K, No. 19 (and see Chitty F., p. 262), the blank in which may be filled up generally, " the plaintiffs and all persons interested in these' proceedings and in the 4 50 EULES OP THE SUPEEME COUET. O. 31, r. 12, insurance the subject of this action," see China Co. v. Commercial Co., supra, and West of Migland Bank v. Canton Co., 2 Ex. D. 472. No affidavit is necessary on. the application ( China Co. v. C. Co. , supra). The object of the stay is only to put the plaintiffs under the necessity of making every effort to get the documents where they are not under their own control ; if the plaintiffs produce all that they can get, and show that they have iona fide done all they can (see London and Pro- vincial Co. V. Chamlers, supra) to discover and get the other docu- ments, if any, the stay will be taken off, ibid, and see Willis v. Baddeley, r. 12 (n.), " Persons suing in other persons' names." Where the other parties interested are out of the jurisdiction and not under the plaintiff's control, it seems that no stay will be directed {Fraser v. Burrows, 2 Q. B. D. 624). The underwriters are entitled to an order of the same nature where, as plaintiffs, they are seeking to recover back from the assured over-pay- ments, alleged to have been procured by their misstatements {BovMon V. Bo^ader, (1904) 1 K. B. 784). "Relating to any Matter." — See (nn.) on these words to r. 14. "Refuse, adjourn . . . not necessary . . . limited to cer- tain classes of documents." — Under the original rule the order was almost matter of course or of right : under the rule after the addition of these words (and still more since the addition of the proviso at the end) there is a real (but judicial, and therefore subject to appeal, Williams v. Bird, 34 Sol. Jo. 347) discretion to refuse it, where the Court can see that no good is reasonably to be expected from ordering it, or to limit it ; and in order to see whether there may be material documents, the pleadings, affidavits and any proceedings in the action may be looked at, and the Court ought not to require affidavits in support of the application ; see Downing v. Milmouth Board, 37 C. D., p. 242, where it was limited to particular documents ; and see Lindley, L.J., in Re Wills' Trade MdrJi, (1892) 3 Ch. 207. Or leave might be given to interrogate (_A.-(f. V. Worth Met. Tram. Co., cited svpra, p. 43). Or an order for inspection of particular documents may be made, see Pardy's Mozamiique Synd. v. Alexander, infra, r. 14 (n), " It shall be lawful." See also (nn.) "Not sufficiently material at that stage," " oppressive," to r. 6 ; and " it shall be lawful" to r, 14. Conclusiveness of Affidavit.— Upon application for Production.— The party's oath that a particular document is irrelevant is conclusive against ordering its production, unless the Court is satisfied from certain sources that in spite of his oath to the contrary, the document is relevant ; mere suspicion derived from these sources, although sufficient to justify the Court in ordering a further affidavit (see infra), does not entitle the Court to order production : when, therefore, the further affidavit has been made and the relevancy is clearly denied, the Court can go no further, it cannot disregard his oath unless reasonably satisfied of its untruth : the affidavit is similarly conclusive in the case of documents admittedly relevant, for which protection is claimed : so far as regards any statement of fact : see as to the sources and generally, (n) " con- clusiveness of claim," p. 24. As to what description is necessary, see r. 13 (n.) " Sufficient description." Under the new rule 19a the Court can inspect the documents ; before this the Court sometimes by consent inspected the documents, and no appeal would then lie : but see Cotton, L.J., in Re Holloway, 12 P. D. p. 169, on this practice. Upon Application for further Affidavit (See now the new rule 19a, under which a further affidavit can be ordered as to par- ticular documents.) The Court is not restricted to requiring from a party one affidavit of documents only : it may require another at any time if it is not unreasonable to suppose (Esher, M.E,, in Comf. Financ. v. Peruvian Chmno Co., 11 Q. B. D. p. 63), from certain sources Discovery and Ixspection. 51 (discussed in (n.) " Conclusiveness of claim," p. 24), or there is a reason- o. 81, able probability or presumption or ground for suspicion derived from rr. la 13, such sources, that he has other relevant documents in his possession : ■ '- '- — '■ — Cotton, L. J., in Zyell v. Kennedy, 27 0. D., p. 20 ; Hall v. Xruman, 29 C. D., p. 319, Unless the affidavit is shown from these sources to be insufficient no further affidavit can be ordered ; the opponent cannot (except under r. 19a) show by a contentious affidavit that it is insufficient : Jo-n^s v. Montevideo Gas Co., 5 Q. B. D. p, 658, In James v, Plumimr, 23 L. J. N. C, 107, it was held that documents coming into the party's possession after the making of the first affidavit need not be scheduled. Cases : — Comp. Mnano. v. Peruvian Co., 11 Q. B. D. 55, where documents referred to in a minute-book might, it was held, be material if the defendants' contention were correct, although they would not be if the plaintiffs' contention were correct (see as to this, (n.) " Irrelevant " to r. 6, supra) and a further affidavit was ordered : A.-Cf. v. jVewcastle, (1897) 2 Q, B. 384, claim by Crown to part of the foreshore and bed in a port, the defendants having discovered only the documents relating to the part claimed by the Crown, were ordered to make a further affidavit of documents relating to the rest of the foreshore and bed : the further affidavit was made and their production was discussed by the C. A, (1899), 2 Q. B., p. 478 : Kent Coal Co. V. Duffuid, (1910) A. C. 452, further affidavit as to Co.'s books, their balance sheets having been scheduled to affidavit. See also (n.) " Further affidavit" to r. 13, infra. Upon Application to interrogate or for further Answer as to Docu- ments or their Contents. — (a) Omission of Belevant Documents, — When the affidavit of documents is technically sufficient so as that no further affidavit can be ordered, the party's only resource was to attempt to get the necessary admissions of possession and relevancy as to undisclosed documents by interrogatories : but see now the new r. 19A (8), and see also the latter part of r. 18. Only, however, if the Court were satisfied that there might be some specified relevant documents in the party's possession, and a primd facie case were shown, would an interrogatory be allowed, anything beyond this being held to amount to a cross-examination on the affidavit of documents which was not permissible (_HaU v. Truman, 29 C. D. 307 ; and see Nicholl v. Wheeler, and Morris v. Edwards, infra"). In Shrewsbury v. S., 80 L. T. Jo. 66, and Moss v. Salman, 5 Times Eep, 505, interrogatories were allowed. (S) To falsify the Claim to Protection. — (See as to the conclusiveness of the claim as regards an order for production note on this point, supra), Nicholl V. Wheeler (17 Q. B. D. 101) and Morris v. Edwards (23 Q. B, D. 287, 15 A. C. 309) show that it is rarely permissible to interro- gate for this purpose and upon similar grounds, namely, that it amounts to a cross-examination upon the affidavit of documents ; but qu. as to the soundness of these decisions, see Article 40, supra. Forms.— Application, Chitty F. p. 247 ; D. C. F. pp. 965, 966 ; Order, Chitty F. p. 257 ; Seton, pp. 52—56. 13. The afl&davit to be made by a party against whom such 356. order as is mentioned in the last preceding rule has been made, Affidavit of shaU specify which, if any, of the documents therein mentioned documents, he objects to produce, and it shall be in the Form No. 8 in Appendix B., with such variations as circumstances may require. "Which he objects." — See (n.) "Grounds on which discovery resisted," p. 24. "Shall be in the Form."— See forms «»/?•«; Welsh Steam Co.^. 4 2 52 Rules of the Supreme Court. O. 31, r. 18 GasHU, 36 L. T. 352 ; and see r. 12 (n.) " Possession or power," generally and as to the party's obligation to search for and examine documents. See as to affidavit by co -plaintiffs, r. 12 (n.) " Co-plaintiffs." Sufficient deseription of Documents.— It is sufficient if the documents are described in such a manner as to enable production, if ordered, to be enforced (^Taylor v. Batten, i Q. B. D. pp. 87, 88 ; Sudden v. Wilkinson (1893) 2 Q. B. 482). The proper practice where they are numerous is to tie them up in bundles, to schedule the bundles, and number the documents, or otherwise ear-mark them in such a way that the other party may ask for those which he wants to see (see Sill v. Hart-Davis, 26 C. D. 470, 472 ; Walker t. Poole, 21 C. D. p. 836 ; Price v. P., 48 L. J., Ch. 215 ; Corp. of Bristolv. Cox, 26 C. D. p. 681 ; Kain v. Farrer, 37 L. T. p. 471 ; Taylor v. Batten, p. 88) ; you must (but not necessarily where privilege is claimed, see next paragraph) describe what the documents are, for (instance, letters from A. to B., so that the adversary may be able to say if he wants to see them (Kay, L.J., in Cooke v. Smith, (1891) 1 Ch. 509, referring to Sill v. Hart-Bavis, svpra'). If the documents are described at unnecessary length the party may be ordered to pay the unnecessary costs so occasioned thereby, or even the affidavit may be taken off the file as being prolix or oppressive : see Sill v. Hart-Bavis ; Walker V. Poole ; and Bolton v. Natal Co., W. N. (87), 143, 178. where a Bumber of letter-books and bundles of documents were scheduled without distinguishing which were relevant. In the case of documents for which protection is claimed identification (as above), but no description, is necessary {Budden^. Wilkinson,{\%%%') 2 Q. B. 432, following Taylor v. Batten, sv.pra') ; except so far as may be necessary to support the claim to protection, and as to what description is necessary to protect a party's evidences, see supra, p. 36. If words are used which, if true, protect the documents, no further particularity is necessary than in the case for which protection is not claimed (^Taylor v. Batten, p. 88). The adversary has no right to such a description of the documents as may enable him to test the truth of the affidavit, Hid. p. 88. Where privilege is claimed for letters it is not necessary to state the dates or the names of the writers, nor such other particulars as might enable the opponent to discover indirectly the contents (^Gardner v. Irvin, 4 Ex. D. p. 53 ; and see-£«i« V. Farrer, 37 L. T. p. 470). An affidavit ought not to say that the documents are privileged, which is a statement of law, but ought to set out the facts from which the Court can see that the party's view of the law is right ( Gardner v. Irvin, pp. 52, 53). See (n.) " Further affidavit," imfra, as to insufficient description. Further Affidavit. — See as to further affidavit on ground of omission of relevant documents, (n.) "Application for further affidavit," supra. Where the affidavit is insufficient in form a further affidavit will be ordered (see (n.) " Shall be in the form," supra). Where protection has been insufficiently claimed the party is, as a rule, allowed to make a further affidavit for the purpose of making good his claim to protection ; and so also if the affidavit does not sufficiently show which documents are entitled to protection he will be allowed to make a further affidavit to identify those entitled to protection (^Taylor V. Batten, 4 Q. B. D. p. 88 ; Sain v. Farrer, 87 L. T. p. 471 ; Bulinan V. Young, 31 W. K. 766 ; Boierts v. Oppenheim, 26 C. D. p. 738 : Kennedy V. Lyell, 8 App. Cas. p. 229). ForniB.— Application for extension of time, D. C. F. pp. 967, 971. Affidavit, Chitty F. pp. 248-9 ; D. C. F. p. 967. Objections to produce, Chitty F. pp. 250-4. Applicatiou for leave to seal up, D. C. F. p. 971, Order for ditto, Seton, pp. 52-3. Claim to seal up, Chitty F. p. 255 ; D. C. F. p. 972. Application for further affidavit, Chitty F. p. 255 ; Discovert and Inspection. 53 D. C F. pp. 969, 970. Order for ditto, Chitty F. p. 257 ; Seton, p. 57. O. 81. Further affidavit, Chitty F. p. 255. ^ rr. 13 14. 14. It shall be lawful for the court or a judge, at any time Production of during the pendency of any cause or matter, to order the pro- documents, duction by any party thereto, upon oath, of such of the docu- ments in his possession or power, relating to any matter in question in such cause or matter, as the court or judge shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just. " It shall be lawful."— It was held that there was no discre- tionary power under this rule to refuse the production of documents material at that stage, unless they fell within the established rules of protection existing in chancery, the wide discretionary power existing at common law no longer obtaining (_Btistros v. White, 1 Q. B. D. p. 426 ; Anderson v. Sank of Columbia, 2 C. D. pp. 654, 656) : but this must now be taken as subject to the special discretion given by the proviso added to r. 18, see (n.) "Not necessary" to that rule and Mojie T. Brash there cited ; and see generally as to the right of dis- covery, (n.) '■ Grounds on which discovery can be resisted," and (n.) " The effect of the J. A. and rules," supra, p. 24. No order for production of a document can be made against a party unless he has directly or indirectly admitted both possession and rele- vancy : see Articles 31 and 32, supra. But where its contents or effect are known to the Cotirt the Court can judge of its relevancy. The Coiurt can also inspect it under r. 19a. Where one of several defendants obtains from the plaintiff an affidavit of documents the Court can, under this rule, order production to any other defendant of documents the possession and relevancy of which is admitted by the plaintiff in such affidavit, without the machinery of a fresh affidavit of documents and a deposit by the defendant for that purpose (Pardy^s Synd. v. Alexander, (J 903) 1 Ch. 191); but only of documents relevant to the matters in question between himself and the plaintiff (Jbid., and see (n.) " Any matter in question," infra). " At any time during the pendency."— See r. i (n.) " Time or stage for discovery." " Cause or Matter."— See r. l (n.) " In any cause or matter." "Party."— See r. 12 (n.) " Any party." " Possession or Power." — Possession or power for the purpose of justifying an order for production has a narrower meaning than for the purpose of inclusion in an affidavit of documents (see r. 12 (n.) " Possess- ion or power," supra^ ; for the purpose of an order for production it means sole legal possession, a right and power to deal with them (^Kears- ley V. PhiUpps, 10 Q. B. D. 36, 40 ; and before the C. A., iUd. p. 465) ; the sole property in them (^Murray v. Walter, Cr. & Ph. 114) ; joint possession with other persons is not sufficient (ibid.). Where the document is not in the party's sole legal possession it is sufficient for him to state the fact ; it is not necessary to allege or show the refusal of the co-owners (Eearsley v. PhiUpps, 10 Q. B. D. 36, 465) ; but he must state their names and the nature of their ownership (Bovill v. Cowan, L. R. 5 Ch. 495). The mere interest of another person in the document is not sufficient to prevent an order for production ; he must have an actual property in it or right of possession. The lien of another person would prevent an order being made, but in the particular case where documents are in the hands of a former solicitor who claims a lien upon them and refuses to give them up, the order for production will be made, reserving liberty to apply in case the 54 Rules of the Supreme Court. O. 81, r. 14. party really cannot obtain them {Lewis v. Powell (1897) 1 Ch. 678) ; but in Be Gaudery, (1910) 54 Sol. Jo. 444, Swinfen Kady, J., foUowmg the principle laid down in Be Sawhes, (1898) 2 Ch. p. 7, ihat a solicitor as an officer of the court has no greater right than his client to refuse production, ordered the solicitor to deliver up to the receiver appointed in an administration action papers over which he had a lien, which came into his possession before suit. See Bray, p. 195, as to party's agent refusing production. Ca.aea.—Kearsley v. Philipps, 10 Q. B. D. 36, 465, one of two trustees of a mortgage. Vivian y. Little, 11 Q. B. D. .S70, lunatic's committee and deeds in custody of court; but see Vol. II., Ft. IV., "Lunatics," as to application in lunacy to the court in such a case. Gowan v. Briggs, 39 Sol. Jo. 330, "receiver under a mortgage deed. Beid v. Langlois, 1 M. & G. 627, and Sadley v. MoDongall, L. R. 7 Ch. 312, one partner and the partnership documents. O'Shea v. Wood, (1891) P. 286, documents belonging to solicitor of party. Williams v. Ingram, 16 Times Hep. 434, 451, directors and the company's documents. London, ^c, Bank V. Cooper, 15 Q. B. D. 7 : 473 ; documents in possession of liquidator of dissolved company ordered to be produced, for he had absolute control of them. Production by interested Persons. — See r. 12 (n.), supra. " Relating to." — Documents are relevant which contain informa- tion which may either directly or indirectly enable the party seeking dis- covery either to advance his own case or damage (see (n.) " Impeaching or destroying adversary's case," supra, p. 35) that of his adversary, or which may fairly lead him to a train of inquiry which may have either of these two consequences (see Esher, M.E., in Cowp. Fin. v. Peruvian Chmno Co., 11 Q. B. D. p. 63). They are not confined to such as would be admissible in evidence (see ibid. p. 62, Jessel, M.K., in Bustros v. White, 1 Q. B. D. p. 425 ; and Blackburn, J., in Hutchinson v. Glover, 1 Q. B. D. p. 141). Every document which will throw any light on the case is relevant, ibid. p. 141. Documents required merely for the purpose of comparing handwriting may be relevant (JTones v. Bioluirds, 15 Q. B. D. 439, libel action ; and see Wilson v. Tlwrnbury, L. R. 17 Eq. 517). See also r. 7 (nn.) " Irrelevant," " Not sufficiently material at that stage," and ERkin v. Clarke, and Schreiier v. Heymarm, there cited ; and " Oppressive." " Any Matter in question." — As to whether a party can be com- pelled to give discovery relating to matters in question between the applicant and some other party, see r. 7 (n.) " Irrelevant," and generally see that note and (n.) " Not sufficiently material at that stage " to that rule. Documents in which the Applicant has a PropeFty, including manor dooumentsand tenants of manor, corporation docwments and mem- bers of corporation, other public documents, companies' documents and sliareholders, title deeds and remaindermen, documents the commonpro- perty of both parties and within the common law equitable jurisdiction at to inspection, see generally Bray, pp. 271 — 297 ; recent cases, Holland v. Dickson, 37 C. D. 669 ; Mutter v. Eastern Co., 38 C. D. 92 ; and Bavies V. Gas L. 4- C. Co., (1909) 1 Ch. 248 ; 708, C. A. (inspection of register under Comp. CI. Acts, 1845 and 1863; Bank of Bombay v. Suleman, 199 L. T. 62 (only where some definite object) : Nelson v. Anglo-American r'o.,(1897) 1 Ch. 130 ; Be Balaghat Co., (1901) 2 K. B. 665, overruling Boord V. African Co., (1898) 1 Ch. 596, Be North Brazilian Co., 37 C. D. 83, and Be OlamAyrgan Co., 28 C. D. 620 (inspection under Comp. Consol. Act) ; Be West Devon Mine, 38 C. D. 61 (Stannaries Act) ; (n.) "Trustee and c. q. t.," p. 28 ; and r. 19 as to tenants of manor. As to inspection in lunacy, see Vol. II., Ann. Pr. Place of Production. — According to the old practice in chancery the primary obligation of the party was to deposit his documents at the DiSCOVBRT AND INSPECTION. 55 Record and Writ Clerk's office (now the Central Office) ; it afterwards grew O. 31, r. 14. to be the practice, but only as a matter of indulgence to him, to allow him to produce them at the office of his solicitor, that is, of the London solicitor where notices have to be served ; and this is still so in the C. D. ; in the K. B. D., the old common law practice under which the office of the solicitor was the primary place for production, there being no place where the documents could be deposited, still obtains (_Brown V. ScweU, 16 C. D. 517 ; Prestney v. Mayor of Colchester, 24 0. D. p. 379 ; and see Leslie v. Cave, W. N. (86) 162, where the documents were ordered to be deposited in court). As a further indulgence production is sometimes allowed at other places ; see, for instance, r. 17, as to offering inspection of business books, etc., at their usual place of custody. Prestney v. Mayor of Colchester, 24 C. D. 379, where inspection was allowed at Colchester of the books of the corporation with liberty to the plaintiff to apply with reference to any particular documents which he might desire to inspect in London, at the defendant's expense : Bnstros t. B., 80 W. E. 374, plaintiff's documents at Beyrout and Alexandria to be inspected at those places ; so at Japan, in WJiijte v. Ahrens, 32 W. E. 649. Costs of Produetion and Inspection.— it is believed that the intention of the new rule O. 65, r. 27 (17) (January, 1902), was to give the Master a discretion to allow costs which formerly could not be allowed ; the rule for which this was substituted was held to apply only to solicitor and client taxation QWirksteed v. Biggs, 52 L. T. 428). As to the old practice see Broicn v. Sewell, 16 C. D. pp. 518, 519, and see (n.) " Place of Production," snjpra. See as to the costs of copies, notes to 0. 65, 1-. 27 (18). Taking Copies of Inspection. — The right to inspection includes the right to have or take (or malte, see Ormerod v. St. George's Ironworks, (1905) 1 Ch. 505) copies of the documents (see Pratt y. P. 47 L. T. 249, Bevan v. Weli, (1901) 2 Ch. D. p. 74) ; but where inspection is by order hereunder there is no right to make them, see new form of order in App. K., No. 18, and O. 65, r. 27 (18) ; for cases under Comp. and Comp. CL Acts, see supra. Under this rule the Court can order exact copies to be taken by photographing the documents (^Lewis v. Londeslorongh, (1893) 2 Q. B. 191, bills of exchange alleged to be forged). Persons to Inspect. — The rule in chancery was (see forms referred to under rr. 13 and 18), and still is in the Chancery Division, to order production to the party, his solicitors or agents. Inspection under r. 15, infra, is given to the party or his solicitor. Agent. — The meaning of the word " agent" was discussed in Braper V. Mandiester Co., 3 D. G. F. & J. 23, and Bonnardet v. Taylor, 1 J. & H. pp. 385, 386 ; it certainly does not mean an agent ^ro hac vice ; Hid. See as to the right, apart from litigation, of a principal to have his agent's books abroad inspected by a person of his selection, Badswell v. Jacois, 34 C. D. 278, or of a partner to have the partnership books inspected by an agent, BevoM v. Well, (1901) 2 Ch. 59. Dnder special circumstances special persons would be allowed to inspect, for instance, accountants or scientific experts (JBoimardtt v. Taylor, IJ. & H. 383 ; Swansea Co. v. Budd, L. R. 2 Eq. 274 ; Lindsay V. Gladstone, L. K. 9 Eq. 132 ; Rep. Peru v. Weguelin, 41 L. J., Ch. 165). Sealing up parts of Documents.— Generally speaking, any part of a document may be sealed up or otherwise concealed under the same conditions as a whole document may be withheld from production (as to which see (n.) on p. 50) ; the party's oath for this purpose is as valid in the one case as in the other. The practice is either to schedule to the affidavit of documents those parts only which are relevant, or to schedule 56 EULBS OF THE SUPREME COURT. O. 31, rr, 14, 15. 367. Inspection of documents referred to in pleadings or affidavits. the whole document and to seal up those parts which are sworn to be irrelevant ; the old practice in chancery of getting liberty to seal up and unseal is certainly not adhered to in the K. B. But where books are in constant use, a party will not be compelled to seal up (with liberty to unseal and reseal) the irrelevant parts in order to protect them : he will be allowed to cover them up during the inspection, subject, if thought necessary, to the obligation of making an affidavit afterwards that no relevant parts have been covered up (^Qraham v. Sutton S; Co., (1897) 1 Ch. 761). See generally, Bray, pp. 233—238, and Jones v. Andrew, 58 L. T. 601, where it was held that the mere fact that a few unimportant portions of sealed-up matter ought not to have been sealed up was not sufficient to authorize the unsealing of the whole. See a special order in a partnership action, Pichering v. P., 25 C. D. 247. See forms (nn.) to r. 13. Forms. — See forms referred to under r. 18. 15. Every party to a cause or matter shall be entitled, at any time, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such docu- ment in evidence on his behalf in such cause or matter, unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge shall deem sufficient for not complying with such notice, in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit. The Scope and Object of this Rule and the following Rules 16 — 18. — It may be doubted whether this Kule was ever intended to apply to documents merely disclosed in an affidavit of documents or even in answers to interrogatories, and so expose the party and in par- ticular the plaintiff to the penalty of being unable to put them in evidence : see Article 66, supra : but that is the construction put upon these rules, see (n.) " Affidavits," infra. There is a broad distinction between an application for general dis- covery of documents and an application for production of documents referred to in the pleadings ; these rules were intended to give the opposite party the same advantage as if the documents had been fully set out in the pleadings; the party against whom the application is made must give immediate production of documents referred to in his pleadings or affidavits unless he can shew good cause why he should not (^Quilter v. Heatley, 23 C. D. pp. 48—51). But these rules do not take away any right which, apart from these rules, the party would have to protect the document from inspection ; in such a case he will not be compelled to produce it, but he vrill become subject to the penalty of not being at liberty to put it in evidence {Roberts v. Oppenheim, 26 C. D. 724), where the plaintiffs claimed, and were allowed, protection for deeds referred to in their statement of claim as relating only to their own title, &c. So in MUlank v. Miliank, (1900) 1 Ch. 376, the defendant was held not bound to produce a con- veyance to himself, but he must give by way of particulars the date of and the consideration for the transaction. Nor can he be ordered to Discovery and Inspection. 57 produce documents not in his possession {QuiUer v. Heatley) : and see O. 81, r. 14, (n.) "Possession or power." rr. 15^17. Application should be made for an order for production if it is desired to take advantage of the penalty, see Quilter v. Heatley, supra, com- menting on Webster v. WheioaU.. 15 C. D. 120. "Every party . . Any other Party."— See r. 12 (n.)— See r. 12 (n.) "Any party." " Cause or Matter." — See r. l, (n.) " In any cause or matter." " At any Time." — See r. l, (n.) " Time or stage for discovery." " Pleadings."— See the definition in J. A. s. 100. Particulars are pleadings for the purpose of this rule (Ca«s v. Mtzgerald, W. N. (84) 18 ; and see Williams, L.J., in Jtliliank v. Miliaiik, siipra). "Affidavits." — "Affidavits" has been held to include answers to interrogatories QMoore v. Peachey, (1891) 2 Q. B. 707), and has been considered to include affidavits of documents, but qu. see (n.) " Scope and object," svpra. In Hunter v. Dublin Co., 28 L. R. Ir. 489, it was held that a document referred to in any affidavit must be produced under r. 18, unless special cause shewn. An affidavit not on the file, but of which a copy had been given to the other side, is included (_S,e Fenner and Lord, (1897) 1 Q, B. 667). See also Pardy's Synd. v. Alexander. r. 14, (n.) " It shall be lawful." " Reference is made." — The documents need not be identified or particularly described, it is sufficient if they are referred to generally iSmith V. Harris, 48 L. T. 869 ; Re Credit Co., 11 C. D. 256). Where entries in a book are referred to, inspection will be limited to those entries (^Quilter v. Heatley, 23 C. D. 42). Where letters are referred to, production cannot be ordered of copies not referred to (ibid., p. 49). An exhibit is part of the affidavit, and any person entitled to see the affidavit is entitled to see the exhibit (Be Hinchcliffe, (1895) I Ch. 117). But this has no application to the case laid before counsel and his opinion exhibited to an affidavit filed under 0. 16, r. 24, in support of an application to sue in formA pauperis, and the opposite party is not entitled to see it (Sloane v. Britain Co., (1897) 1 Q. B. 185). See as to exhibits to depositions (n.) " Publici juris," p. 29. " His Solicitor." — See r. 14, (n.) " Persons to inspect," supra, " Copies." See r. 14, (n.) " Taking copies," supra. " To put any such Document in Evidence unless."— See (n.) " Scope and Object," supra. 16. Notice to any party to produce any documents referred 35g_ to in his pleading or affidavits shall be in the Form No. 9 in j^^y^g ^ ^^^_ Appendix B., Part XL, with such variations as circumstances duoe, may require. See (nn.) to r. 15, supra. The very words need not be followed {Re Credit Co., 11 CD. 256). Porms.— App. B., Part II., No. 9. : Chitty F. p. 259 ; D. C. F. p. 970 ; and at trial or on examination of witnesses, D. C. F. p. 977. 17. The party to whom such notice is given shall, within 359. two days from the receipt of such notice, if all the documents xim, for in- therein referred to have been set forth by him in such affidavit spection when as is mentioned in rule 13, or if any of the documents referred notice given to in such notice have not been set forth by him in any such "" ^^ "■" ® "• affidavit, then within four days from the receipt of such notice, 58 EuLES OP THE Supreme Court. O. 31, rr. 17, 18. Bank and trade books. 360. Order for inspection. deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers' books or other books of account or books in constant use for the purposes of any trade or business at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in the Form No. 10 in Appendix B., with such variations as circumstances may require. See notes to r. 15, swpra. This rule has no application where an order for production at a specified place has already been made {Lloyds Bank v. Luclt, W. N. (01) 130). " DoeumentS." — This rule is not confined to oases where there has been an affidavit of documents : it applies to all the documents men- tioned in r. 15 QBe Fenner and Lord, (1897) 1 Q. B. 667). " Offlee of his Solicitor." — See (n.) " Place of production " tor. 14, " Bankers' Books, &e." — See ihid., and (n.) " Bankers' Books Evidence Act," O. 37, r. 7 (n.), post. See as to business books, r. 19a. Forms.— Chitty F. p. 259 ; D. C. F. pp. 973, 976. 18. (1.) If the party served with notice under Rule 17 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the of&ce of his solicitor, the Court or Judge may, on the applica- tion of the party desiring it, make an order for inspec- tion in such place and in such manner as he may think fit : Provided that the order shall not be made when and so far as the Court or a Judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs. (2.) Any application to inspect documents, except such as are referred to in the pleadings, particulars, or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court or Judge shall not make such order for inspection of such documents when and so far as the Court or Judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs. K. S. C. Not. 1893, r. 14, substituted for 0. 31, r. 18 (1883). The words in italics are new, and the rule is recast. See r. 15 (nn.) and generally as to production r. 14 (nn.). "Affidavit showing . . . Party entitled to inspect . . . and in Possession of other Party."— It is conceived (and see Williams, J., in Wiedman v. Walpole, 24 Q. !B. D. 537) that it is open to the other party to file an affidavit denying possession or relevancy or claiming protection, and that the statements in such affidavit must be accepted as no less conclusive than if they were contained in an affidavit of documents, as tn which see (n.) " Conclusiveness of Affidavit," supra, p. 50. Discovery and Inspection. 59 0. 81, rr. 18— 19a. The old common law right to inspect documents the common property of both parties (see r. 14, (n.) " Documents in which applicant has a property "), is still in force (Brown v. Ziell, 16 Q. B. D. 229). " Not necessary." — This discretionary power was not in existence when Jiustros v. White, cited under r. 14, was decided, as pointed out in Hope V. Brash, (1897) 2 Q. B. 188 ; and see (n.) "Grounds on which discovery can be resisted," sitpra, p. 24. Forms.— Application, Chitty F. p. 260 ; D. C. F. pp. 973-7. Affidavit, Chitty F. p. 261 ; D. C. F. p. 974. Order, Chitty F. p. 262 ; Seton, pp. 52-62. As to deposit of documents in Court, D. C. F. pp. 977, 979-980 ; Seton, pp. 53, 60, 97-8. 19. An order upon the lord of a manor to allow limited in- 361. spection of the court roUs may be made on the application of a Inspection of copyhold tenant, supported by an affidavit that he has applied "" for inspection and that the same has been refused. See r. 14, (n.) " Documents in which applicant has a property." Forms. — Affidavit on application, Chitty F. p. 261. 19a. (1.) Where inspection of any business books is applied for, the Court or a Judge may, if they or he shall think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined Verified copies, the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interKneations, or alterations. Provided that, notwithstanding that such copy has been supplied, the Court or a Judge may order inspection of the book from which the copy was made. Forms. — Application, D. C. F. p. 975. Affidavit, Chitty F. p. 265. Order, Chitty F. p. 264. (2.) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court or a Judge to inspect the document for the purpose of deciding as to the validity of the claim of privilege. "Privilege." — This includes any objection to inspection: for instance, irrelevancy (Ehrmann ^.Ehrmann, (1896) 2 Ch. 826). "Doeument." — This includes a sealed-up portion of a document (^Ehrmann v. E., supra, and Ainsworth v. Wilding, (1900) 2 Ch. 315). Forms. — Notice to produce for Master's inspection ; Chitty F. p. 260. (3.) The Court or a Judge may, on the application of any party to a cause or matter at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been, in his possession or power ; and, if not then in his posses- sion, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party agiiinst whom 60 EULES OF THE SUPREME CoURT. O. 31, rr. 19a— 81. 362. Premature discovery. 363. Non-oompli. ance with order for discovery. the application is made has, or has at some time had, in his possession or power the document or documents specified in the application, and that they relate to the matters in question in the cause or matter, or to some of them. E. S. G. Nov. 1893, r. 15. The whole of ihis rule is new. " May."— A primd facie case of relevancy and possession of specific documents is sufficient to entitle the applicant to the order : for instance , documents referred to in documents scheduled to the affidavit of docu- ments or in docum.ents produced as a matter of courtesy (_Orinerod v. St. George's Irbnivorhs, 95 L. T. 691). Nor does the question of privilege arise on this application, but on the subsequent application for inspection (ibid.'). " State by Affidavit." — The statements are, it is conceived, as con- clusive as if they were in an affidavit of documents (see i-. 18, (n.) " Affidavit showing "), "Speeifle." — They must be documents which can be named and specified, see White v. Spafford, (1901) 2 K. B. 241, where an order was refused without prejudice to an application for leave to interrogate : and Crraves v. Heinemann, 18 Times Kep. 115, following that case. Forms.— Application, Chitty F. p. 255 ; D. C. V. p. 976. Affidavit in support, Chitty F. p. 256. Affidavit pursuant to order, Chitty F. p. 256. Order, Seton, p. 56 ; Chitty F. p. 258. 20. If the party from whom discovery of any kind or inspec- tion is sought objects to the same, or any part thereof, the court or a judge may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection. The making of the common order under r. 12 does not preclude an order being subsequently made under this rule (JDe Carteret v. Land., ^c, 70 L. T. 323 ; Lemr v. do., 42 W. E. 104). This rule applies to mixed questions of law and fact (JTasmanian Cn. V. Clark, 27 W. E. p. 678). See r. 6, (n.) " Not sufficiently material at that stage " supra. See generally as to trials of preliminary issues, 0. 36, r. 8. Forms Application, D. C. F. pp. 958, 971. 21. If any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall be liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court or a judge for an order to that effect, and an order may be made accordingly. This rule does not apply to an order for accounts under 0. 15, or for disclosure of partners under 0. 16, r. 14 (Pi7se v. Keene, 24 W. E. 322). " Liable to Attachment."— (See O. 44.) Where a party is shewn Discovert and Inspection. 61 not to be in a condition to make an affidaTit, the court will not attach O. 31, him (Cotton, L.J., Wilson v. Raffalovitoh, 7 Q. B. D. p. 561). rr. 21, 22. On getting notice of motion for attachment against him the party must, if he wish to prevent the motion being brought on, not only file hie alfidavit of or give discovery, but he must tender a fixed sum for costs or ofEer to pay the taxed costs : see Jessel, M.R., in Thomas v. Palin, 21 C. D. p. 363. See further, the cases cited iitfra. Service of Order for DiscoTery. — The copy order served must be indorsed under 0. 41, r. 5 (^Hampden v. Wallis, 26 C. D. 746) ; nor is the irregularity waived by taking out a summons for time (iiid.'). Notice of Motion for Attachment. — This must comply with 0. 52, i'. 4 (JLitekfieU v. Joties, 25 C. D. 64). Cases.— 2%oma« v. Falin, 21 C. D. 360 ; Litchfield v. Jories, 25 C. D. 64 ; Price V. P., 48 L. J., Ch. 215 ; Gay v. Sancoch, 56 L. T. 726 ; Re Muleaster, 26 W. E. 434 ; Joy v. Hadley, 22 C. D. 571. " Dismissed for want of Proseeution."— (See 0. 27.) An order will not be made unless the Court is satisfied that the plaintiff is endea- vouring to avoid a fair discovery (^DawcilUer v. Myers, W. N. (83) 58 : and see Rep. Liberia v. Roye, 1 A. C, p. 143, commented on in James Nelson v. Nelson, (1906) 2 K. B. 217). Where an answer is not so palpably insufficient as to shew want of bona fides, the proper course is to proceed under r. 11 (^Kennedy v. Lyell, W. N. (82) 137). Where the plaintiff is not in a condition to make an affidavit of documents the Court would not dismiss the action ( Wilson v. Raffalovitch, 7 Q. B. D. p. 561 ; and Cardwell v. 2'omlinson, 52 L. T. 746). Where one member of a plaintiff firm refused to give discovery, it was held that another member might apply for attachment against him to prevent the action being dismissed {Seal v. Kingston, (1908) 2 K. B. 579, C. A.). Where order directs that in default of answer judgment may be signed, a certificate of such default (obtained from filing department) is suffi- cient authority to enter judgment, P. M. R. (17), Vol. II., Ann. Pr. Stay until Discovery made by Other Persons.— See r. 12, (n.) " Discovery from interested pereons," supra. "His Defence Struck Out."— (See 0. 27, rr. 11— 15 (nn.) ). In Saigh V. M., 31 C. D. 478, defence was struck out, judgment in default given, and motion to set aside judgment under 0. 27, r. 15, refused, because the default was wilful. See also Fisher v. Huglies, 25 W. E. 528, and Gibson v. Syltes, 28 Sol. Jo. 533. Order. — The order may be to strike out defence and sign judgment (but see Jenney v. Mackintosh, 61 L. T. 108) if the discovery is not made within a specified time, and this order need not be served (Jparden v. Richter, 23 Q. B. D. 124 ; Fisher v. Hughes, 25 W. E. 528 ; and see Salomon v. Hole, 53 W. R. 588, as to form of order in C. D.). Forms. — Attachment, see r. 23. Application to dismiss or strike out, Chitty F. p. 282 ; D. C. F. pp. 962, 981 ; Seton, pp. 96, 135. Order, Chitty F. p. 283. 22. Service of an order for interrogatories or discovery or in- 304. spection made against any party on his solicitor shall be suffi- Service on oient service to found an application for an attachment for solicitor on disobedience to the order. But the party against whom the "^der for application for an attachment is made may shew in answer to the •^"''^^"T- application that he has had no notice or knowledge of the order. See Hampden v. Wallis, 26 C. D. 746, cited supra, under r. 21, and Re Tuch, (1906) 1 Ch. 692. 62 KULES OF THE SUPREME GOURT. 366. Using answers to interro- gatories at trial. 367. Security for eosts of discovery to be given. O- 31, 23. A solicitor upon whom an order against any party for in- rr. 3 26. terrogatories or discovery or inspection is served under the last 365. preceding rule, who neglects without reasonable excuse to give Attachment of notice thereof to his client, shall be liable to attachment, solicitor. gee r. 21, (n.) " Liable to attachment." Cross Eeferenoes. — Attachment, 0. 44 ; Service on Solicitor, 0. 67, r. 8. Forms.— Chitty F. p. 283 ; D. 0. F. pp. 962, 981. 24. Any party may, at the trial of a cause, matter, or issue, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer : Provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in. See Lyell v. Kennedy, 27 C. D. pp. 15 and 29. 25. In every cause, or matter, the costs of discovery, by interrogatories or otherwise, shall, unless otherwise ordered by the court or a judge, be secured in the first instance as pro- vided by rule 26 of this order, by the party seeking such dis- covery, and shall be allowed as part of his costs where, and only where, such discovery shall appear to the judge at the trial, or, if there is no trial, to the court or a judge, or shall appear to the taxing officer, to have been reasonably asked for. As to costs of discovery, see r. 3, supra. " Interrogratories or Otherwise."— This rule does not apply to "inspection," under rr. 15 and 18 (Moore v. Peaoliey, (1891) 2 Q. B. 707, application for inspection of documents referred to in answers to interrogatories : Cass v. Fitzgerald, W. N. (84) 18) ; and see rr. 20, 21, and 22, where discovery and inspection are spoken of. But inspection may be refused if the Court thinks that it is an improper attempt to evade the necessity of making a deposit (Moore v. Peachey, supra, and Pardy's Synd. v. Alexander, r. 14, (n.) " It shall be lawful "). It does not apply to the old practice at common law as to inspection (Brown v. Liell, 16 Q. B. D. 229) : nor to an order for ship's papers against underwriters (Law v. Budd, W. N. (83) 166). The practice is not to apply it to an affidavit under r. 19A (3). " Shall unless otheFwise ordered."- See r. 26. 368. 26. Any party seeking discovery by interrogatories or Mode of giving otherwise may be ordered upon making application for dis- covery to pay into court to a separate account in the action to be called " Security for Costs Account," to abide further order the sum of 51., or any less sum, and may be ordered further to pay into court such additional sum as the court or a judge shall direct. The party seeking discovery shall, with his interrogatories or order for discovery, serve a copy of the receipt for the said payment into court, and the time for answering or making discovery shall in all cases commence security for costs of discovery. Discovery aot) Inspection. 63 from the date of such service. The party from whom discovery O. 31, r. 26. is sought shall not be required to answer or make discovery unless and until the said payment has been made. See also (nn.) to r. 25. " May be Ordered." — It is now discretionary, and unless ordered it is not required. Under the old rule it was always required unless the circamstances were exceptional. The deposit was said to be intended for the protection of the clients themselves, and was not imposed solely for the benefit of the party from whom the discovery was sought ; the liabDity to make deposit could not be waived by the other party, and the judge was not bound to dispense with it and "order otherwise" simply because the parties chose to agree that there should be none (^Aste v. Stumore, 13 Q. B. D. 326 ; Hall v. Liardet, W. N. (83) 175). There was a discretionary power to dispense with the deposit {^Newman v. S. W. R. Co., 24 Q. B. D. 454) ; and poverty might be a ground for dispensing with for reducing, Davis v. Mellodew, 80 L. T. Jo. 283)it(JS?OTV.S««*Ja?-OiH>t>iH'tbritiia6S6tii a 6i M i«ipft M iQWWfr«^eW»«»IWW»»M«««M»fcW ^ ^