5th. Notice will not be required when the adverse

party has admitted the loss of the original;

or where it is in the nature of an irremovable fixture, such as a mural inscription (x).

This rule does not apply to a removable and portable notice or writing (y).

6th. Merchant seamen () are permitted to prove orally an agreement with the master of a

ship, without producing the original, or giving notice to produce it.

(x) Bartholomew v. Stephens, 8 C. & P. 728.

(y) Jones v. Tarleton, 9 M. & W. 675.

() 17 & 18 Vict. c. 104, s. 165; Bowman v. Manzelman, 2 Camp.

315.

CHAPTER VIII.

INTERROGATORIES.

Ir is proposed in this chapter to treat of evidence elicited by means of interrogatories which were imported into the superior courts of common law from the equity courts, and have been adopted in the new practice. By means thereof a party is able to acquire evidence necessary to enable him to prove his case in court, which he can only obtain, or most easily procure, by extracting it from his adversary.

The present practice relative to interrogatories is governed by Order 31 of the R. S. C. 1883, which is as follows:

Rule 1. "In any action where relief, by way of damages or otherwise, is sought on the ground of fraud or breach of trust, the plaintiff may, at any time after delivering his statement of claim, and a defendant may, at or after the time of delivering his defence, without any order for that purpose, and in every other cause or matter the plaintiff or defendant may, by leave of the court or a judge, deliver interrogatories in writing for the examination of the opposite parties, or any one or more of such parties, and such interrogatories when 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 be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

Rule 2. "In deciding upon any application for leave to exhibit interrogatories, 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 documents relating to the matter in question, or any

of them.

Rule 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.

Rule 4. "Interrogatories shall be in the Form No. 6 in Appendix B., with such variations as circumstances may require.

Rule 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 corporation, company, or body, and an order may be made accordingly.

Rule 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 bond 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.

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.

Rule 8. "Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as a judge may allow.

Rule 9. "An affidavit in answer to interrogatories shall, unless otherwise ordered by a judge, if exceeding ten folios, be printed and shall be in the Form No. 7 in Appendix B., with such variations as circumstances may require.

Rule 10. "No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the court or a judge on motion or

summons.

Rule 11. "If any person interrogated omits to

answer, or answers insufficiently, the party interrogating may apply to the court or a judge for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer, or answer further, either by affidavit or by vivâ voce examination, as the judge may direct."

The practice of the Court of Chancery as to interrogatories was regulated by the 15 & 16 Vict. c. 86, the 12th section of which authorized the plaintiff to file interrogatories for the examination of any defendant or defendants, and to deliver a copy thereof to such defendant or defendants, or to his or their solicitor. These interrogatories were required to be founded on the bill; but a variety of questions might be founded upon a single allegation therein, and it was not necessary that an interrogatory should in all cases be founded upon a distinct allegation in the bill. Formerly, if the defendant required from the plaintiff any information, it was necessary for him to file a cross bill: with a view to remedy this, it was enacted by the 19th section of the above-mentioned act, that it should be lawful for any defendant in any suit, whether commenced by bill or by claim, but in suits commenced by bill which the defendant is required to answer, not until after he shall have put in a sufficient answer to the bill, and without filing any cross bill of discovery (which, however, he might file if he thought fit), to file interrogatories for the examination of the plaintiff, to which shall be prefixed a concise statement of the subjects on which a discovery is sought, and to deliver a copy of such interrogatories to the plaintiff or his solicitor; and such