The definition of the term "civil proceeding" was much discussed in the judgments of the court in The Attorney-General V. Radloff, 23 L. J. 240, Ex. ; 23 L. T. 101, Rep. The summons is to show cause: (Chit. Arch. 315, 8th edit.) upon order 49. Such order shall be proceeded upon in like Proceedings manner as an order made under the hereinbefore-formi mentioned act passed in the first year of the reign nation. of his late Majesty King William the Fourth; and the examination thereon shall be conducted, and the depositions taken down and returned, as nearly as may be, in the mode now used on vivá voce examinations under the said Act of Parliament. See Chit. Arch. 315, 317, 324. As to compelling the attendance of witnesses, attachment for contempt, expenses of witnesses, see Chit. Arch. 318; admissibility of depositions, Chit. Arch. 324; costs of the proceedings, Chit. Arch. 326, 8th edit. See also ss. 55, 56, infra. documents. 50. Upon the application of either party to Discovery of any cause or other civil proceeding in any of the Superior Courts, upon an affidavit by such party of his belief that any document, to the production of which he is entitled for the purpose of discovery or otherwise, is in the possession or power of the opposite party, it shall be lawful for the court or judge to order that the party against whom such application is made, or if such party is a body corporate that some officer to be named of such body corporate, shall answer on affidavit, stating what documents he or they has or have in his or their possession or power relating to the matters in dispute, or what he knows as to the custody they or any of them are in, and whether he or they objects or object (and if so, on what grounds) to the production of such as are in his or their possession or power; and upon such affidavit being made the court or judge may make such further order thereon as shall be just. Power to to opposite party. "Civil proceeding," what is, see the conflicting judgments of the court in the Attorney General v. Radloff, 23 L. J. 240; 23 L. T. 191, Rep. Upon the 14 & 15 Vict. c. 99, s. 6 (an act to amend the law of evidence), the words being "action or other legal proceeding," an order for the inspection of documents may be made in aid of issues raised on a return to a mandamus if the object of the writ be to enforce a civil right of the prosecutor: (Reg. v. Ambergate Railway Company, 18 L. T. 272, Q. B.; Reg. v. York and North Midland Railway Company, 19 L. T. 108, Q. B.) The words, "to the production of which he is entitled for the purpose of discovery or otherwise," override the whole section. The word "otherwise" refers to the equitable jurisdiction of the Common Law Courts in granting an inspection of documents in the possession of the opposite party, as to which, see Chit. Arch. 1242, 8th edit. As to discovery, see the chapter thereon, post, with the form of affidavit. 51. In all causes in any of the Superior Courts, driven in by order of the court or a judge, the plaintiff may terrogatories with the declaration, and the defendant may with the plea, or either of them by leave of the court or a judge, may at any other time, deliver to the opposite party or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter) interrogatories in writing upon any matter as to which discovery may be sought, and require such party, or in the case of a body corporate any of the officers of such body corporate, within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting, without just cause, sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or a judge shall allow, shall be deemed to have committed a contempt of the court, and shall be liable to be proceeded against accordingly. This section is also confined to matters as to which discovery may be sought, and was introduced for the purpose of compelling a discovery of facts: (see Report of the Commissioners, supra, p. 36; see also the chapter on Discovery.) party pro and his 52. The application for such order shall be Affidavits by made upon an affidavit of the party proposing to posing to interrogate, and his attorney or agent, or, in the interrogate, case of a body corporate, of their attorney or attorney. agent, stating that the deponents or deponent believe or believes that the party proposing to interrogate, whether plaintiff or defendant, will derive material benefit in the cause, from the discovery which he seeks, that there is a good cause of action or defence upon the merits, and, if the application be made on the part of the defendant, that the discovery is not sought for the purpose of delay; provided that where it shall happen from unavoidable circumstances, that the plaintiff or defendant cannot join in such affidavit, the court or judge may, if they or he think fit, upon affidavit of such circumstances by which the party is prevented from so joining therein, allow and order that the interrogatories may be delivered without such affidavit. nation of allowed. 53. In case of omission, without just cause, to Oral examianswer sufficiently such written interrogatories, it parties, when shall be lawful for the court or a judge, at their to be or his discretion, to direct an oral examination of the interrogated party, as to such points as they or he may direct, before a judge or master; and the court or judge may by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination, for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order; and may impose therein such terms as to such examination, and the costs of the applica Proceedings upon such rule or order. Depositions upon such examinations to be returned to master's office. tion, and of the proceedings thereon, and otherwise, as to such court or judge shall seem just. 54. Such rule or order shall have the same force and effect, and may be proceeded upon in like manner, as an order made under the said herein before-mentioned act passed in the first year of the reign of his late Majesty King William the Fourth. See note to sect. 49. 55. Whenever by virtue of this act, an examination of any witness or witnesses has been taken before a judge of one of the said Superior Courts, or before a master, the depositions taken down by such examiner shall be returned to and kept in the master's office of the court in which the proceedings are pending; and office copies of such depositions may be given out, and the depositions may be otherwise used, in the same manner as in the case of depositions taken under the here1 W. 4, c. 22. inbefore-mentioned act passed in the first year of the reign of his late Majesty King William the Fourth. Examiner may make special re port to the court. See Chit. Arch. Pr. 322, 325, 8th edit. 56. It shall be lawful for every judge or master named in any such rule or order as aforesaid for taking examinations under this act, and he is hereby required to make, if need be, a special report to the court in which such proceedings are pending, touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto; and the court is hereby authorised to institute such proceedings and make such order and orders upon such report as justice may require, and as may be instituted and made in any case of contempt of the court. See Chit. Arch. Pr. 318, 8th edit. and examination to be 57. The costs of every application for any Costs of rule rule or order to be made for the examination of witnesses by virtue of this act, and of the rule in the disor order and proceedings thereon, shall be in the the court. discretion of the court or judge by whom such rule or order is made. See Chit. Arch. Pr. 326, 8th edit. cretion of parties or 58. Either party shall be at liberty to apply Inspection to the court or a judge, for a rule or order for the by jury, of inspection by the jury, or by himself, or by his witnesses. witnesses, of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute; and it shall be lawful for the court, or a judge, if they or he think fit, to make such rule or order, upon such terms as to costs and otherwise, as such court or judge may direct; provided always, that nothing herein contained shall affect the provisions of the "Common Law Procedure Act 15 & 16 Vict. c. 76, s. 114, 1852," or any previous act as to obtaining a view Prac. R. H. T. by a jury provided also, that all rules and regu- 1853, г. 48. lations now in force and applicable to the proceedings by view under the said last-mentioned act shall be held to apply to proceedings for inspection by a jury under the provisions of this act, or as near thereto as may be. Under the Patent Law Amendment Act (15 & 16 Vict. c. 83, s. 42), an order for the inspection of defendant's machinery alleged to be an infringement of plaintiff's patent was granted after writ issued, but before declaration : (Amies v. Kelsey, 22 L. J. 84 Q. B.; see also Shaw v. The Bank of England, 22 L. J. 26, Ex.) The view under the Juries Act (6 Geo. 4, c. 50, s. 23), was confined to questions in issue of a local nature (Stones v. Menhem, 2 Ex. 382.) There is an action for work done as a carpenter and bricklayer to the defendant's house; the defendant applied that the jury might view the work, but the court refused the rule. Now such a rule may |