further affidavit can be ordered. As an affidavit of documents cannot be contradicted, it ought to be full and will be construed strictly (p). In claiming protection for a document on the ground of privilege the facts upon which the privilege is claimed ought to be set out (q). If an affidavit is technically sufficient, but the party seeking discovery believes that the party who has made the affidavit has in his possession documents which are not referred to in the affidavit, the latter may be interrogated as to such documents (r), but the interrogatory must be as to specific documents, and must not be general in its terms.

The county courts have powers of granting and enforcing inspection. This they derive from an order in council, dated the 18th day of November, 1867, made in accordance with the provisions of the Common Law Procedure Act, 1854. This order directs that the provisions of sect. 50 of that act shall extend to all Courts of Record established under the County Courts Act, 1846, and to the City of London Court; and that the powers and duties incident to the provisions of that section with respect to matters in such courts shall be exercised by the judges thereof or their deputies, and that the statutes, rules, orders, and forms used in such courts shall be adopted with reference to all proceedings under the

(p) Per Cotton, L. J., Gardner v. Irvin, L. R., 4 Ex. D. 53; 48 L. J., Ex. 224; 27 W. R. 443.

(9) Ibid.

(r) See judgment of Brett, L. J., Jones v. Monte Video Gas Co., L. R., 5 Q. B. D. 556; 49 L. J., Q. B. 627; 28 W. R. 758.

above-mentioned section, so far as the same shall be applicable, mutatis mutandis. The procedure, therefore, where an inspection of documents is required in county court proceedings, will be substantially the same as that adopted in actions commenced in the superior courts previous to the Judicature Acts coming into operation.

The court will not compel a person, not a party to the suit, to produce a document for inspection (8), unless he has obtained it from a party to the suit, and holds it in the nature of a trust for such party (t). Where such a person holds independently, and by a title paramount to the title of the party, he will not be subject to an inspection (u). In one case, Stuart, V.-C., refused to order an executor to produce certain cheques of his testator which were at the date of the application in the possession of the banker on whom they were drawn (x).

An inspection ought not to be granted when it appears to be sought, not bonâ fide for the pending action, but to assist the applicant in an action against a third person (y); nor will a party be permitted to make public information which he has obtained from the inspection of his opponent's documents (~).

(s) Cocks v. Nash, 9 Bing. 721. (t) Doe v. Roe, 1 M. & W. 207. (u) Ibid.

(x) Bayley v. Cass, 10 W. R. 370.

(y) Temperley v. Willett, 6 E. & B. 380.

(z) Williams v. Prince of Wales' Life Assurance Co., 23 Beav. 338; cf. Hopkinson v. Lord Burghley, L. R., 2 Ch. 447; 36 L. J., Ch. 605; 15 W. R. 543.

PRODUCTION AT THE TRIAL AND NOTICE TO PRODUCE.

The court can, under Order 31, Rule 14, compel the production of any document at the trial. A party cannot, except by getting an order, compel his opponent to produce any document at the trial; but if he wishes to be in a position to give secondary evidence of the contents of any document in the possession of his opponent, he must, as a general rule, give his opponent written notice to produce such document at the time. If after proof that such notice has been given, and that the original is in the hands of the adverse party, the latter will not produce it, the party requiring it may resort to secondary evidence of it. Before this can be done, the party tendering it must prove, or raise at least a reasonable presumption, that the original is in the hands of the adverse party, or of a third person in privity with him (a). Slight evidence of this fact will be sufficient, when the document either naturally, necessarily, or probably, might be expected to be in the custody, or under the control, of such adverse party. Thus, it has been presumed that a bankruptcy certificate came into the hands of a bankrupt who was proved to have solicited it, and to have been charged for it by his solicitor (b). Generally, where documents have been traced into a party's possession, it lies upon him to show what has become of them, before he can object, after notice to produce, to the

(a) Sharp v. Lamb, 11 A. & E. 805.
(b) Henry v. Leigh, 3 Camp. 502.

substitution of secondary evidence (c); and where there is a privity of title between the adverse party and a third person who holds the original, the former is equally compellable to produce. In such a case the question is, whether the custody was virtually, although not actually, the custody of the adverse party; or whether he had such a control over the holding by the third party as made it virtually a personal holding. Thus, generally, where the holding is by an agent, he may either be served with a subpoena duces tecum, or the principal may be served with notice to produce. Where a notice was given to an owner of a vessel to produce a document which appeared to be in the possession of the captain (d); where it was given to the drawer to produce a cheque which was proved to have been delivered to the drawer's banker (e); or to a sheriff to produce a warrant which had been returned to the under-sheriff (f); secondary evidence has been received; but where the possession was independent of the adverse party, as where he had assigned a lease (g); or where the writing was held as a security by a third party (h); or where it has been traced by a party satisfactorily into the possession of a stranger with whom he is unconnected, and over whom he has no control; he will not be affected by

(c) R. v. Thistlewood, 33 How. St. Tr. 757.
(d) Baldney v. Ritchie, 1 Stark. 338.
(e) Partridge v. Coates, Ry. & M. 156.
(f) Taplin v. Atty, 3 Bing. 164.
(g) Knight v. Martin, Gow, 103.
(h) Parry v. May, 1 M. & R. 279.

notice unless he has wilfully parted with the document after receiving the notice (i).

A party may produce an original document at any time when secondary evidence is tendered; and then the latter becomes inadmissible. If there is any question as to the originality of the document, such question is for the judge (k); but where the existence of a duly stamped document is denied upon the pleadings, and the plaintiff, after giving notice to produce, tenders a copy of it, the judge cannot hear evidence to decide the question of the existence of the stamped original as a preliminary to that of the admissibility of the copy, because he would be thereby determining an issue which is in the province of the jury (1).

A notice to produce might formerly have been given to the adverse party or his agent, either verbally or in writing (m); but it must now be given in writing (n). It must be proved to have been given before secondary evidence is admissible. It may be served either on the party or on his solicitor (o), and it will be sufficient to leave it with a servant at the residence of the former, or with a clerk

(i) Knight v. Martin, Gow, 103.

(k) Boyle v. Wiseman, 11 Ex. 360.

(1) Stowe v. Querner, L. R., 5 Ex. 155; 39 L. J., Ex. 60; 18 W. R. 466.

(m) Smith v. Young, 1 Camp. 440; Suter v. Burrell, 2 H. & N. 867.

(n) By the joint effect of Order XXXII. r. 8, and Order LVI.

r. 1.

(a) Hughes v. Budd, 8 Dowl. 315.

P.

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