of £5, and if the number of folios exceeds five, the further sum of 108. for every additional folio. Any party seeking discovery otherwise than by interrogatories must, before making application for discovery, pay into court, to a like account, to abide further order, the sum of £5, and may be ordered further to pay into court as aforesaid such additional sum as the Court shall direct. The party seeking discovery must also, 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 commences from the date of such service. The party from whom discovery is sought cannot be required to answer or make discovery unless and until such payment has been made (1). It has, however, been decided that only one sum of £5 need be paid into Court when the party delivers separate copies of the same interrogatories to various defendants, and that non-payment of the £5 does not entitle the person interrogated to an order to strike out interrogatories. Unless the Court or a judge shall at or before the trial otherwise order, the amount standing to the credit of the "Security for Costs Account" in any cause or matter, will, after the cause or matter has been finally disposed of, be paid out to the party by whom the same was paid in on his request, or to his solicitor, on such party's written authority, in the event of the costs of the cause or matter being adjudged to him; but, in the event of the Court ordering him to pay the costs of the cause or matter, the amount in Court will be subject to a lien for the costs ordered to be paid to any other party. (3.) The history of the old and cumbrous practice as to the discovery of documents, the war of affidavits, the preliminary flourishing of weapons before the real battle of the trial, is well told in a leading case in which the important principle was laid down that the Court will, as a general rule, watch with care and some jealousy any attempt to obtain discovery of documents by interrogatories (2). The subject, which was dealt with to some extent by the Common Law Procedure Act, (1) R. S. C. Order xxxI., rr. 25, 26, 27, where there are several defendants interrogated the deposit must be made in respect of each set of interrogatories: Smith v. Read, W. N. 1883, 196; but a single deposit is sufficient where one application is made against several co-plaintiffs : Campbell v. Poulett, W. N. 1884, 48; Eden v. Attenborough, 23 Q. B. B. 130. See as to Court's discretion to diepense with deposit: Newman v. London and South Western Railway Co., 24 Q. B. D. 454; 38 W. R. 348. (2) Hall v. Truman, 29 Ch. D. 307. 1852, and the former rules under the Judicature Act, has now, under the rules of 1883 (1), been dealt with in the following manner: of documents. Any party may, without filing any affidavit, apply to the Discovery Court or a judge for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application 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, as may, in their or his discretion, be thought fit. The affidavit to be made in reply to this application must be in the prescribed form as near as circumstances will admit, and must specify the documents, if any, which the party objects to produce. The practice with regard to allowing discovery of documents was much considered in a case which came before the Court of Appeal in 1887, when the principle was laid down that the effect of the present rules is only to give the Court a discretion to refuse discovery where there is no reasonable prospect of its being of use. "The Court," said Cotton, L.J., "ought not to be called upon to consider a mass of affidavits on the question whether a defendant is likely to have in his possession documents to the production of which the plaintiff is entitled. The mode in which the problem is to be solved is by looking at the pleadings which shew what questions have to be tried, and the nature of those questions will show whether there is good reason for coming to the conclusion that a production of documents cannot be expected to be of any use, and any other proceedings in the action, for instance evidence used on a former occasion, may be looked at " (2). of documents. The Court has also a further power at any time during the Production pendency of any cause or matter, to order the production by any party thereto upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just. Documents referred to in the pleadings stand on a peculiar (1) R. S. C., 1883, Order XXXI, r. 12; see Brett's Leading Cases in Equity, p. 290, et seq. (2) Downing v. Falmouth United Sewage Board, 37 Ch. D. 234, 242. or footing. The rules provide that every party to a cause matter may at any time, by notice in writing, 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 document in evidence on his behalf in the cause or matter, unless he shall satisfy the Court 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 shall deem sufficient for not complying with the notice; in which case the Court may allow the document to be put in evidence on such terms, as to costs and otherwise, as it thinks fit. Where notice to inspect such documents is given, the party who receives it must within two or four days (according to circumstances), deliver a counter-notice stating a time, within three days, when 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 banker's 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. The notice must also state which (if any) of the documents he objects to produce, and on what ground, and is to be in the prescribed form (1). It must be borne in mind that when a party against whom an order to answer interrogatories for discovery is made does not comply with the order, the Court possesses stringent powers to enforce obedience. The party so failing is not only liable to attachment, but the rules further provide (2) that 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 (3). The interesting and difficult subject of "privilege," i.e., the right under certain circumstances, not to make disclosure either in answer to interrogatories or as to documents, shall be (') The notice is to be in the Form No. 11, Appendix B, with such variations as circumstances may require. (2) R. S. C., 1883, Order xxxi. r. 21. (3) Thomas v. Palin, 21 Ch. D. 360; Litchfield v. Jones, 25 Ch. D. 64; Farden v. Richter, 23 Q. B. D. 124. considered hereafter when we come to the subject of Evidence (post, p. 878). The attention of the reader may, however, here be directed to a few recent and important cases. It has been decided that in an action of libel against the proprietor of a newspaper, if the defendant admits the publication of the words complained of, the plaintiff is not entitled to interrogate the defendant as to the name of the writer of the words, unless the identity of such writer is a fact material to some issue raised in the case (1). In a case decided in 1890 it was held that in an action of libel against a newspaper, where the defendant takes upon himself the responsibility of defending the action, the plaintiff ought not to be allowed to interrogate as to the sources of the defendant's information, even though the only issue in the action is as to the amount of damages, and the object of the interrogatories is to increase the damages by shewing gross recklessness on the part of the defendant. It was decided in the same case that where the plaintiff asks how many copies of the newspaper containing the libel were issued to the public, the defendant cannot decline to give the number on the ground that it is inconvenient or even impossible to do so. The defendant is bound to give the best information he can, and he must consequently give the number approximately (2). Where in any cause or matter it appears to the Court that Issues. the issues of fact in dispute are not sufficiently defined, the parties may be directed to prepare issues, and such issues will, if the parties differ, be settled by the Court. This rule may be illustrated by a case in which a variety of questions arose with regard to the commission of a nuisance. The case is doubly valuable as supplying the pleader with examples not only of that which he ought to follow, but also of that which he ought to avoid. The proposed issue (the form of which will be found in the report at p. 635) was in the opinion of the Court "too wide, too roving, and too speculative," to deserve the name of or to be directed as an issue (3). The issues as finally settled were in the following form:- (1) Whether the defendants have carried on their works at S. in such a manner as to occasion a nuisance to the plaintiffs? (1) Gibson v. Evars, 23 Q. B. D. 384. (2) Parnell v. Walter, 24 Q. B. D. 441; 38 W. R. 270 (following Hen VOL. II. nessey v. Wright, 36 W. R. 879). 636. 3 D (2) Whether the new works of the defendants, now in course of erection, will cause a nuisance to the plaintiffs? (3) Whether the nuisance, if any, to the plaintiffs, occasioned by the works of the defendants, existed in the same degree twenty years ago, or has been materially increased during the last twenty years? (4) What, if any, damage has been occasioned to the plaintiffs, or any of them, by the nuisances, if any, committed by the defendants? |