Lloyd, 3 H. & N. 351; London Gaslight Company v. Chelsea Vestry, 2. That are of a merely fishing character (Moore v. Roberts, ubi supra; Alter v. Willison, 7 W. R. 265, Ex.). 3. That are not reasonably relevant to the matter in dispute (Robson v. Cooke and another, 2 H. & N. 766). 4. That are unnecessary, or useless (Bird v. Malzy, 1 C. B., N. S. 308). 5. That seek to establish a forfeiture (May v. Hawkins, L. J. 24, Ex. 309; Horton v. Bott, ubi supra, distinguishing Flitcroft v. Fletcher, L. J. 25, Ex. 94; but see Chester v. Wortley, 17 C. B. 410, as to right to administer such interrogatories subject to exception upon answer. 6. That seek to contradict a written instrument (Moore v. Roberts, ubi supra). 7. That are privileged upon grounds of public interest: (see principle explained in Beatson v. Skene, 8 W. R. 544, Ex.). But interrogatories may be admissible:— 1. The answers to which may expose other persons to actions (Tetley v. Easton, 18 C. B. 643). 2. The answers to which may expose the party interrogated to penalties (Osborn v. London Dock Company, 10 Exch. 698); but the party interrogated may except upon his answer to the objectionable questions (see Scott v. Miller, 1 John. 220; S. C., L. J. 28, Ch. 584). 3. Where a defendant in ejectment seeks to discover the cha.. racter in which the plaintiff claims, and the pedigree upon which he relies (Flitcroft v. Fletcher, ubi supra). 4. That seek secondary evidence of lost written documents(Wolverhampton Waterworks Company v. Hawksford, 5 C. B., N. S. 703). 5. That inquire into confidential communications that the party interrogated would not be privileged from disclosing upon oral examination (Thol v. Leask, 10 Exch. 704; Colman v. Trueman, 3 H. & N. 871). See further upon this subject the note to s. 50, ante; and Wigram on Discovery. Interrogatories may be delivered by defendant to plaintiff, Practice. although the plaintiff is a foreigner and out of the jurisdiction of the court (Pohl v. Young, L. J. 25, Q. B. 23, B. C. per Erle, J.). It has been said (Zarifi v. Thornton, L. J. 26, Ex. 214), that the forms of interrogatories, and the particular interrogatories to be allowed, might be settled at chambers; but see contra, Robson v. Cooke and another, ubi supra. As to affidavit in support of application to deliver interrogatories, see s. 52; as to proceedings upon order, see ss. 53–56; and as to costs, see s. 57, post. It may be gathered from the above cases, that the common practice is to give leave to deliver not interrogatories generally, but certain particular and approved interrogatories; and that thus the judges have to determine not merely that the circumstances of the case are such as to render the administration of interrogatories generally proper, but also that the particular interrogatories proposed are themselves severally proper. This double proceeding, if carefully applied, would necessarily take up much of the valuable time of the judge at chambers; but, in practice, substantial injustice to the suitor, who seeks to interro Affidavits by party pro terrogate, and his attorney. gate his opponent, is the more common evil; as it is oftentimes next to impossible for a judge to make himself acquainted, upon an interlocutory application made amid the hurry and confusion of his chambers, with the bearing of particular questions on the perhaps complicated matters in dispute in such actions, as those generally are, in which parties are advised to have recourse to interrogatories; and it is even, when not difficult, still very inexpedient, in many cases, to parade before one's opponent, who probably will have to frame the answers, the hoped-for results of questions, which are only sought to be put when other means of evidence have failed. It would seem better that, when the judge has ascertained that the circumstances of the action show that the delivery of some interrogatories is a reasonable proceeding, he should leave it to the party interrogating to put at his own costs such questions as he may be advised; and to the party interrogated to except at his risk (s. 53, post) to such questions as he is advised not to answer. This practice would be more convenient and useful in practice, more congruous with that in consimili casu in chancery, more consistent with the terms of the whole enactment (including s. 53), and even more conformable with the terms of the ordinary judge's order made under it; and it would, moreover, seem to be countenanced by Osborn v. London Dock Company, Chester v. Wortley and James v. Barnes, ubi supra. 52. The application for such order shall be made posing to in- upon an affidavit of the party proposing to interrogate, and his attorney or agent, or, in the case of a body corporate, of their attorney or 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 affidavits 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.† Oral examination of parties, when to be allowed. 53. In case of omission, without just cause, to answer sufficiently such written interrogatories, it shall be lawful for the court or a judge, at their or his discretion, to direct an oral examination of the interrogated party, as to such points as they or he may direct This applies to plaintiffs, as well as defendants (May v. Hawkins, 11 Exch. 210) as to disclosing merits, see Martin v. Hemming, 10 Exch. 478; Croomes v. Morrison, 5 E. & B. 984; and better, contra, James v. Barnes, 17 C. B. 596; S. C. L. J. 25, C. P. 182. + This latter proviso renders unnecessary the application to the present section of the interpretation put upon s. 51 in M'Kewan v. Rolt (4 H. & N. 738). 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 application, and of the proceedings thereon, and otherwise, as to such court or judge shall seem just. As to what constitutes "just cause," see notes to ss. 50, 51, ante; and Turk v. Syne (L. J. 27, Ex. 54); Geary v. Buxton (L. J. 29, Ex. 280). The answers should follow the order of the interrogatories, and answer, or assign reasons for not answering each interrogatory specifically (Chester v. Wortley, 18 C. B. 239). As the answer must be made by affidavit, the requirements of R. G., M. V. 1854, r. 2, post, must be complied with. See as to sufficiency of answers about documents, Adams v. Lloyd (3 H. & N. 351). It has been held that a party interrogated is not bound to set out the contents, or copies of documents admitted by his answer to be in his possession; but that application for such purpose must be made under s. 50, ante (Scott v. Zygomalas, L. J. 24, Q. B. 129); sed quære. The application for an order under this section should be made promptly (Chester v. Wortley, ubi supra). The rule is nisi only in the first instance ( Turk v. Syne, ubi supra). Applications under this section should be made at chambers in the first instance (Bender v. Zimmerman, L. J. 29, Ex. 244; Meadows v. Kirkman, 36 L. T. 251, Ex.) upon such 54. Such rule or order shall have the same force Proceedings and effect, and may be proceeded upon in like manner, rule or order. as an order made under the said hereinbefore-mentioned act passed in the first year of the reign of his late Majesty King William the Fourth. See note to s. 47 (p. 219), ante. A rule for attachment under this section, was refused where the attorney of a foreigner had been served with interrogatories, and default was made in answering them; but it did not appear that the foreigner personally knew of the order, or was within the jurisdiction (Von Hoff v. Hoerster, L. J. 27, Ex. 299: see also Curran v. Elphinstone, 4 W. R. 50, Q. B.; and Hill v. Glen, 26 L. T. pp. 62 and 107, Ex.) upon such 55. Whenever, by virtue of this act, an examination Depositions of any witness or witnesses has been taken before a examinajudge of one of the said Superior Courts, or before a tions to be master, the depositions taken down by such examiner returned to shall be returned to and kept in the master's office of office. the court in which the proceedings are pending; and office copies of such depositions may be given out, and master's 1 Will. 4, c. 22. Examiner may make special report to the court. Costs of rule and examina the discre the depositions may be otherwise used, in the same manner as in the case of depositions taken under the hereinbefore-mentioned act passed in the first year of the reign of his late Majesty King William the Fourth, See note to s. 47 (p. 219), ante. See R. G., H. T. 1853, r. 33, post. 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 authorized 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. 57. The costs of every application for any rule or tion to be in order to be made for the examination of witnesses by virtue of this act, and of the rule or order and proceedings thereon, shall be in the discretion of the court or judge by whom such rule or order is made. tion of the court. Inspection by jury of parties or witnesses. This, and the preceding section follow the language of corresponding sections in the 1 Will. 4, c. 22; see note to s. 47 (p. 219), ante. If the order does not provide for costs, none can be had; see Smith v. G. W. R. Company (L. J. 25, Q. B. 279); and Stilwell v. Ruck, 4 H. & N. 468. INSPECTION OF PREMISES AND CHATTELS. 58. Either party shall be at liberty to apply to the court or a judge for a rule or order for the inspection by the jury, or by himself, or by his 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, 1852," or any previous act, as to obtaining a view by a jury: provided also, that all rules and regulations 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. By the C. L. P. A. 1852, s. 114 (p. 89), ante, the former writ of view was abolished, and a new proceeding substituted. See an order for inspection of real property made in chancery by Stuart, V. C., and revised by the Lords Justices in Eunor v. Barwell (8 W. R. 300); see also, when reported, Bennett v. Griffiths, Q. B., 26 Nov. 1860. under Patent Act. A somewhat similar power to grant inspection was conferred on Inspection the Courts of Common Law by the Patent Law Amendment Act, 1852, s. 42. Under that statute it has been held that an application to inspect the defendant's machinery may be made before the delivery of the declaration, in an action for infringement of the plaintiff's patent; but such inspection will not be granted as of course, or without the party applying for it showing that the inspection is material for the purposes of the action (Amies v. Kelsey, L. J. 22, Q. B. 84; Bail Court, Crompton, J.). In an action for the infringement of a patent, the court would not, under the above section of the Patent Law Amendment Act, 1852, grant an order for an inspection of a machine in a second action, after a first action in which inspection by the plaintiff and two scientific witnesses had been had (Shaw v. Bank of England, L. J. 22, Ex. 210). The affidavit in support should at least allege that there is such a machine, and that the plaintiff has reason to believe it an infringement of his patent; and it has been held not to be sufficient to allege merely "that the machine used by the defendant is the same for which the plaintiff has obtained a patent" (Shaw v. Bank of England, L. J. 22, Ex. 26). In an action for infringement of a patent relating to type; inspection, and delivery for the purpose of analysis, of a portion of the type used by the defendant has been ordered in chancery (Patent Type Founding Company v. Walter, 8 W. R. 353) after it had been refused at law (Patent Type Founding Company v. Lloyd, 5 H. & N. 192). See Holland v. Fox (L. J. 23, Q. B. 211, 357); Vidi v. Smith (L. J. 23, Q. B. 342); and Meadows v. Kirkman (L. J. 29, Ex. 205). for summoning jury. 59. The several courts, or any judge thereof, may Rule or order make all such rules or orders upon the sheriff or other person as may be necessary to procure the attendance of a special or common jury for the trial of any cause or matter depending in such courts, at such time and place, and in such manner as they or he may think fit. ATTACHMENT of Debts. 60. It shall be lawful for any creditor who has obtained a judgment in any of the Superior Courts to apply to the court or a judge for a rule or order that the judgment debtor should be orally examined as to any and what debts are owing to him before a master of the court, or such other person as the court or judge shall appoint; and the court or judge may make such rule or order for the examination of such judgment debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner as in the case of an oral examination of an opposite party before a master under this act. An executor of a judgment creditor, who has not made himself Examination of judgment debtor as to debts due to him. |