which the penalty must be sued for has elapsed (Corp. Trin. Ho. v. Burge, 2 Sim. 411), discovery must be given.

Exposure to a civil suit alone is no bar to discovery: 46 Geo. 3, c. 37.

Leave to administer interrogatories ought not to be refused on the ground that it is plain they must criminate; the objection must be taken in the affidavit in answer: Harvey v. Lovekin, 10 P. D. 122, C. A.; Allhusen v. Labouchere, 3 Q. B. D. 654; Fisher v. Owen, 8 Ch. D. 645, C. A.

And where the objection is to producing a document, it should be taken in the affidavit of documents: Webb v. East, 5 Ex. D. 108, C. A.; Spokes v. Grosvenor Hotel Co., (1897) 2 Q. B. 124, C. A.

PROCESS IN DEFAULT OF DISCOVERY.

By O. xxxi, 21, "if any party fails to comply with any order to answer interrogatories, or for discovery or for inspection of documents, he shall be liable to attachment. He shall also, if a Plt. be liable to have his action dismissed for want of prosecution, and, if a Deft, 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." For forms of application, see D. C. F. 962.

For form of order dismissing action for want of prosecution, see inf., Chap XI.

By r. 22,"service of an order for interrogatories or discovery or inspection made against any party on his solr, shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order."

A solr, upon whom an order for interrogatories or discovery or inspection is served, is liable to attachment if he neglect, without reasonable excuse, to give notice thereof to his client: r. 23.

By O. XLIV, 2, no writ of attachment is to be issued without leave of the Court, to be applied for on notice to the party against whom the attachment is to be issued.

It has been held that the provisions for attachment do not apply to orders for discovery of names of partners under O. XLVIIIA, 1, sup. p. 63; nor to orders for accounts, under Ō. xv, 1: Pike v. Keene, 24 W. R. 322; 35 L. T. 341.

Though service on the solr is sufficient, yet O. XLI, 5, requiring indorsement on the copy served showing consequences of disobedience, applies, and attachment could not issue in the absence of such indorsement: Hampden v. Wallis, 26 Ch. D. 746, C. A.

Where the order for attachment was discharged on an insufficient affidavit, the order of discharge was discharged, so as to revive the original order, but attachment was not to issue for a fortnight: Price v. P., 48 L. J. Ch. 215.

Where Plt was shown at Deft's office a letter book, inspection of which was refused till counsel's opinion had been taken, and Deft subsequently asserted he had lost the book, an attachment was ordered: Mornington v. Keene, 4 W. R. 793.

Where the order is complied with after the issue of the writ of attachment, the enforcement of the writ ought to be stayed: Gay v. Hancock, 56 L. T. 726.

For cases in which the penalty by attachment has been enforced, see Thomas v. Palin, 21 Ch. D. 360; Litchfield v. Jones, 25 Ch. D. 64; Joy v. Hadley, 22 Ch. D. 571; Mellor v. Thompson, W. N. (83) 128.

Where the defence is struck out, the Deft is in default, and O. XXVII applies: Fisher v. Hughes, 25 W. R. 528.

The penalty of dismissal will not be enforced, except as a last resort: see W. N. (75) 202, 204; Hartley v. Owen, 34 L. T. 752; Twycross v. Grant, W. N. (75) 201, 229; Kennedy v. Lyell, W. N. (82) 137; Dauvillier v. Myers, W. N. (83) 58.

For the enforcement of the penalty against a Deft whose disobedience was wilful, see Haigh v. H., 31 Ch. D. 478.

An order, made in presence of Deft's solr, that if Deft did not file answers to interrogatories within three days judgment might be signed against him, need not be served upon him: Farden v. Richter, 23 Q. B. D. 124; and see O. LII, 14.

As to waiver of contempt by acceptance of answer after time, see Roberts V. Albert Bridge Co., 8 Ch. 753; and for the practice on attachment for default in answering in the Lancaster Court of C. P., see Coston v. Blackburn, L. R. 8 Q. B. 54.

USING DISCOVERY AT THE TRIAL.

By O. XXXI, 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."

As to the effect of this rule, see Lyell v. Kennedy, 27 Ch. D. 1, 15, 29, C. A. Portions of the answer to a bill for discovery could not be read upon the trial at law without reading the whole, and documents admitted in the answer were part of it, and could not be read without reading the whole answer, unless by special order of the Court of Chancery that they should be produced at the trial: Brown v. Thornton, 1 M. & C. 243; Aston v. L. Exeter, 6 Ves. 288; Hylton v. Morgan, ib. 293. As to reading parts of an answer and withdrawing parts already read, see Freeman v. Tatham, 5 Ha. 329; and see O. XXXVII, 21-25.

As to reading a dismissed co-Deft's answer on appeal from the order dismissing him, see Nesbitt v. Berridge, 4 D. J. & S. 45.

INSPECTION OF PROPERTY.

An order for the inspection of any property the subject of the action may be made by the Court or a Judge, and authority given to enter any land or building to take samples and make observations or experiments: O. L, 3. The application for such order may be made by any party to the action: r. 6; or the Judge himself may inspect: r. 4; but inspection will not be ordered of articles not in the possession, power, or custody of the Defts, their servants or agents: Garrard v. Edge, 37 W. R. 501; 58 L. J. Ch. 397; 60 L. T. 557.

And inspection cannot be granted to one Deft of property belonging to another Deft when there is no right in question between them: Shaw v. Smith, 18 Q. B. D. 193, C. A.

The Court has power, under r. 3, to make an interlocutory order before trial, giving Plt liberty to enter upon Deft's land and make excavations: Lumb v. Beaumont, 27 Ch. D. 356.

And for cases as to inspection, see Whaley v. Brancker, 12 W. R. 570, 595; 10 Jur. N. S. 535; 10 L. T. 155; Cooper v. Ince Hall Co., W. N. (76) 24 (trespass); Barlow v. Bailey, W. N. (70) 136; Flower v. Lloyd, W. N. (76) 169, 230 (nuisance); Chaplin v. Puttick, (1898) 2 Q. B. 160, C. A. (stamp album sent abroad).

In Mitchell v. Darley Colliery Co., 10 Q. B. D. 457, inspection by Plt was allowed on his paying costs in any event.

DELIVERY OF DOCUMENTS OUT OF COURT.

1. To a Party or Purchaser.

LET (such of) the several documents deposited by &c., in the Central Office, pursuant to the order dated &c. (as relate to &c., or are mentioned in the schedule hereto), be delivered out to the Plt [or Deft] A. [or to

B. the purchaser of the (hereditaments comprised in Lot, part of the) real estates of C., the testator in the pleadings named].

For forms of application, see D. C. F. 666, 980.

2. To a Party's Solr, to be produced in Evidence.

(By consent) Let the documents deposited by the Defts in the Central Office, pursuant &c., be delivered out to Mr. —, the Defts' solr, for the purpose of producing the same before &c., on examination of witnesses before examiner, the said Mr. - undertaking to re-deposit the same within a week after the examination is closed.-Plt to be at liberty to inspect the documents meanwhile.-See Clarke v. Brown, V.-C. S. in Chambers, 13 Dec. 1854, A. 152.

NOTES.

The Court refused to allow original documents in the custody of the Court to be taken abroad for the examination of witnesses, no special case being made: Lafone v. Falkland Isl. Co., 4 K. & J. 40; Re Stephens, L. R. 9 C. P. 187.

As to depositing court rolls of a manor, and that the possession of the Court is that of the depositor, see Carew v. Davis, 21 Beav. 213.

When deeds have been left in Court under an order for production for the purpose of discovery, on that purpose being satisfied the party who left the deeds has a right to have them back: Dunn v. D., 3 Drew. 17; affd., 7 D. M. & G. 25; but not where the order was for deposit, or the rights as to the deeds have been declared: Ibid. Nor in an action to raise portions will the Court, without the consent of the mortgagees, deliver back the deeds to the tenant for life Jenner v. Morris, 1 Ch. 603.

By O. LXI, 28, "no affidavit or record of the Court shall be taken out of the Central Office without the order of a Judge or Master, and no subpoena for the production of any such document shall be issued." As to the practice under the rule, see Dan. 513; and generally for the practice respecting the delivery out of documents, see "PRACTICE MASTERS' RULES," Dan. 1575; and for forms, see D. C. F. 979 et seq.

CHAPTER VIII.

EVIDENCE.

1. Leave to serve Subpoena ad Testificandum in Scotland—
17 & 18 V. c. 34.

UPON motion &c., and upon reading &c., This Court doth order that the Deft be at liberty to serve the subpoenas issued in this action for the attendance of R. &c. on the trial of this action as witnesses on their behalf, by leaving copies thereof, together with a copy of this order, on the said R. &c. at or elsewhere in Scotland.-Archibald, OrrEwing & Co. v. R. Johnston & Co., V.-C. H., 11 Feb. 1879, A. 199: see also Re March's Estate, McAleeman v. Coning, Kay, J., 19 March, 1885, B. 362.

For forms of application, see D. C. F. 335, 336.

2. Leave to prove particular Facts by Affidavit-0. xxxvii, 1. UPON the application &c., It is ordered that the Plt be at liberty to prove by affidavit the statements contained in paragraphs 1 to 14 both inclusive, and paragraphs 17 to 20 of the Plt's amended statement of claim, and to read such affidavit at the trial of this action; and the costs of all parties of this application are to be costs in the action.-Briesemann v. Smith, M. R. at Chambers, 11 Dec. 1877, A.

2182.

For form of summons or notice, see D. C. F. 312.

3. Witness to attend to be Cross-Examined on his AffidavitO. xxxviii, 1.

UPON the application &c., It is ordered that A. do attend before the (Judge) at &c. at o'clock in the forenoon, for the purpose of being cross-examined on his affidavit in support of the Plt's motion [or petition or summons] or whenever thereafter the said motion shall come on to be heard.

4. Witness to attend at Chambers to be Examined-0. xxxvII, 5. UPON motion &c., This Court doth order that the Deft L. attend at the Chambers of the Judge situate at &c., on &c., to be examined in reference to the real and personal estate which the testator was entitled

to at the time of his decease, and also to the accounts and inquiries directed by the order dated &c., and also as to whether any and what documents are in his possession or power relating to the subject-matter of this action, and referred to in the order dated &c.; And it is ordered that the Deft L. pay to the Plt F. his costs of this application, to be taxed &c.-Re Davis's Estate, Fothergill v. Davies, V.-C. B., 1 Feb. 1877, A. 359; and see Gilbert v. Smith, V.-C. M., 31 Jan. 1877, A. 174.

5. Order directing the Governor of Holloway Prison to Produce a Witness (in Prison for Contempt).

UPON motion &c., by counsel for A., and upon hearing counsel for W., and upon reading an order dated &c. [order for committal], Let the governor of H. M.'s prison at Holloway produce the said W. before Mr. Justice, in his lordship's Court at the Royal Courts of Justice, Strand, London, on &c., at half-past ten o'clock in the forenoon precisely.-Re Morris, Kay, J., 5 March, 1890, B. 224; followed in Jenks v. Ditton, 76 L. T. 591, Stirling, J.

See D. C. F. 337; Dan. 548; Prison Act, 1898 (61 & 62 V. c. 41), s. 11.

6. Order appointing Special Examiner to take Examination of a Witness-0. xxxvII, 5.

UPON the application &c., It is ordered that S. of &c. be appointed examiner for the purpose of taking the examination of B. of &c. as a witness on behalf of the Deft.

This form is also applicable to an examination de bene esse, in which case those words must be inserted after the word "examination."

For order for the oral examination of witnesses before a district registrar, see Brewster v. Woodall, V.-C. H. at Chambers, 12 Nov. 1877, A. 1912.

7. Order to take Examination of Witness de bene esse before an
Examiner of the Court.

UPON the application of the Plt, and upon hearing &c., and upon reading an affidavit of the Plt filed &c. whereby it appears that B. is

years of age, It is ordered that the Plt be at liberty to examine the said B. as a witness in this cause before one of the examiners of the Court de bene esse upon giving to the said B. and to the Deft T. fortyeight hours' notice of the time when such examination is to be taken; And the costs of the said examination are to be included in the costs of this action.-See Peck v. Trower, M. R. at Chambers, 4 Aug. 1877, B. 1450.

For forms of application, see D. C. F. 346, 347.

8. Another Form.

UPON motion &c. by counsel for the Plts [or upon the application], Let W. B., of —, be examined as a witness in this action before one