CHAPTER III.-DISCOVERY.

THERE is no stronger proof that the powers of Courts of Common Law have been insufficient for the proper administration of justice, than the fact, that for the purposes of an action, one party has hitherto often been obliged to resort to a Court of Equity, to compel the discovery either of facts, exclusively within the knowledge of the opposite party, or of documents, as to which he was ignorant in whose custody they were.

documents.

The Courts of Law may and will compel the Discovery of production of documents for the purpose of being stamped, or the inspection of documents upon which the action or defence is immediately founded, or which are necessary for the purpose of evidence in which the applicant for inspection has a direct interest, or which are held by the opposite party in a fiduciary capacity. So inspection will be ordered of certain documents of a public character, such as the rolls of a manor or the books of a corporation. But these powers being found insufficient, the statute 15 & 16 Vict., c. 99, s. 6., enabled the courts, upon the application of either of the parties to an action, to compel the production and inspection of a document in the possession of the opposite party, in all cases in which such inspection might be ordered by a Court of Equity. This power could only be exercised, however, when the applicant could satisfy the court, that the document of which he sought the production was in the posses

Discovery.

Discovery of facts.

sion of his adversary; and applications under this statute have constantly failed for want of the power possessed by Courts of Equity, but which the statute did not confer upon the Courts of Common Law, viz., that of compelling a preliminary discovery by either party, of what documents he had in his possession or power relating to the matters in controversy.

That it was the intention of the Legislature to grant to the Courts of Common Law, a power of discovery of documents equally extensive with that possessed by Courts of Equity, there can be no doubt whatever. From the

defect above pointed out, the intention of the Legislature has been frustrated; but effect to that intention has been given by the new statute, which provides that upon the application of either party, and 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, the court or a judge may order the party against whom such application is made to answer, on affidavit, what documents he has in his possession or power, relating to the matters in dispute, or what he knows as to the custody of such documents, and whether he objects (and if so, on what grounds) to the production of such as are in his possession or power (s. 50). Upon such affidavit being made, the court or judge may make such further order thereon as shall be just (s. 50); for the party may have the documents, and yet have good grounds on which to object to their production.

The Courts of Common Law have hitherto possessed no power of compelling discovery of facts within the knowledge of an adverse party. By the recent change in the law of evidence, each party may no doubt be called as a witness by his

opponent. But this course is one which can only Discovery. be resorted to in the most desperate emergency; for it cannot be expected that a party, ignorant of what his adversary will swear, shall put so interested a witness into the box. For the discovery, previous to the trial, either of facts or of documents, the party desiring it has hitherto had no alternative but to resort to a Court of Equity, a proceeding involving much delay and great expense; both of which, it would seem, might be avoided by allowing the necessary proceedings to be had in the court in which the action is pending. It appeared to the Commissioners, and it seems not unreasonable, that were an opportunity afforded for the examination of the parties, upon all matters relating to the questions in dispute, prior to the trial, facts exclusively in the knowledge of the 'opposite party might not only be discovered, but the trouble and expense of producing evidence of facts, which he was prepared to admit, might be entirely saved. Such an examination might also tend to make manifest the matters really in contest between the parties.

The Commissioners, in pointing out the advantages of this power of discovery, expressed their opinion to be, that in some cases, such a preliminary discovery might altogether obviate the necessity of a trial, by compelling a party to admit facts decisive of the case upon the merits. "A power of preliminary discovery," they remark, "would likewise tend to expose the motives "of groundless actions brought for vexation, and "of unfounded defences set up and persisted in "for delay. It would, moreover, have a most "wholesome effect in preventing false pleas from "being put on the record; for as soon as the ex"amination of the party had made manifest the "falsehood of the plea, a judge might be applied "to to disallow the pleading, at the expense of

Discovery.

Interrogatories.

Affidavit.

"the party pleading it. If the very existence of "such a power had not the effect of preventing "the necessity of its exercise, it would at least "aid the court in extirpating frivolous and improper litigation."-(Second Report, p. 36.)

Accordingly, in all causes, the plaintiff may, with the declaration, and the defendant may with the plea, or either of them may, at any other time, deliver to the opposite party or his attorney interrogatories in writing upon any matter as to which discovery may be sought, and require such party within ten days to answer the questions in writing by affidavit, to be sworn and filed in the ordinary way (s. 51).

The leave of the court or of a judge is a necessary preliminary in all cases; and in the case of a body corporate being the party to be interrogated, any of the officers may be required to answer the interrogatories (s. 51).

The application for the order allowing interrogatories to be delivered, must be made upon an affidavit of the party proposing to interrogate, and his attorney or agent, stating that the deponents believe that the party proposing to interrogate will derive material benefit in the cause from the discovery which he seeks; that there is a good cause of action or defence, as the case may be, 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 (s. 52). If, from unavoidable circumstances, the plaintiff or defendant cannot join in the affidavit, the court or a judge may, upon affidavit of the circumstances by which the party is prevented from so joining therein, allow the interrogatories to be delivered without the affidavit (s. 52). If the party seeking discovery is a body corporate, the affidavit is to be made by their attorney or agent (s. 52).

Finally, any person omitting, without just Discovery. cause, sufficiently to answer all questions as to which a discovery is sought, will be deemed to have committed a contempt of the court, and be liable to be proceeded against accordingly (s. 51). The time for answering the interro gatories may be extended by order of the court or a judge.

The power of interrogating an adverse party is Oral exami nation of not to be confined in its exercise to the written parties. questions above referred to.

In case of omission, without just cause, to answer sufficiently the written interrogatories, the court or a judge may direct an oral examination of the interrogated party before a judge or master (s. 53). For this purpose, the court by a rule, or a judge by an order, may command the attendance of the party to be interrogated, before the person appointed to take such examination, for the purpose of being orally examined, and may impose in such rule or order, as the case may be, such terms as to such examination, and the costs of the application, and of the proceedings thereon, and otherwise, as may seem just (s. 53). The production of writings or other documents may also be commanded by the rule or order.

And

The rule or order for an examination is to be proceeded upon in the same manner as has been usual in the case of an order for the examination of witnesses upon interrogatories (s. 54). the depositions are to be returned to and kept in the master's office of the court in which the proceedings are pending; and office copies given out, and the depositions used, as are the depositions now taken on a commission for the examination of witnesses (s. 55).

The judge or master named in any rule or