PART I. which the latter is bound to answer by affidavit. The principle by which the practice as to interrogatories is governed is the same in all courts: the cases upon this which have been decided by the courts of equity and law may, therefore, be referred to and cited in the county court. It will be useful, however, here to notice some of the leading principles by which the practice as to interrogatories is governed. The party interrogating must show that he has an interest in the subject-matter of the discovery he asks for, and also that it is relevant to the issues which are before the court (h); and that his interrogatories are not of a merely speculative or fishing character (i). The right is also limited to a discovery of such material facts as relate to the case of the party asking for the discovery, and does not extend to facts which relate exclusively to his opponent's case (j), or to the manner in which that case is to be established (k). If, however, the interrogatories go to prove the case of the party interrogating, it is no objection to them that the answers may probably disclose also the case of the other side (1), or that the plaintiff's case is of a negative character (m). When once it appears that the documents relate to the plaintiff's case within this rule, the defendant is bound to allow inspection of them, however disagreeable it may be to make the disclosure, however contrary to his personal interests, or however fatal to the claim upon which he may have insisted (n). It is no objection to interrogatories that they may expose other parties to actions (o), or that the answers may expose the party answering to penalties (p), or may tend to criminate him (q), though the (h) See Wigram on Discovery, sects. 82, 232; Guppy v. Few, 1 Myl. & Cr. 504; Robson v. Cooke, 2 H. & N. 766; S. C., 27 L. J., Exch. 151. (i) Wigram, sect. 238; Atler v. Willison, 7 W. R., Exch. 265. (j) Adams v. Lloyd, 3 H. & N. 351. (k) Wigram on Discovery, Prop. 3. (1) Whateley v. Crowter, 5 E. & B. 709; Owen v. Nickson, 3 E. & E. 602. (m) Smith v. Duke of Beaufort, 1 Hare, 507; 1 Phill. 209. (n) Per Lord Langdale, in Flight v. Robinson, 8 Beav. 34; Lady Beresford v. Driver, 14 Beav. 387; S. C., 20 L. J., Chanc. 476. (0) Tetley v. Easton, 18 C. B. 643; S. C., 26 L. J., C. P. 269. (p) Osborn v. London Dock Company, 10 Exch. 698; S. C., 24 L. J., Exch. 140. (q) Bartlett v. Lewis, 12 C. B., N. S. 249; Bickford v. Darcey, 1 L. R., Exch. 354. See also Chester v. Wortley, 17 C. B. 410; S. C., 25 L. J., C. P. 117. party interrogated, when he makes his affidavit, may decline to answer the objectionable questions (r). But in cases in which it is obvious that the interrogatories are such that the answers to them must tend to criminate the party answering, they have not been allowed (s); and it may be affirmed generally, that whether interrogatories are to be allowed or not is a question to be determined in each case by the discretion of the court (t). The decisions in the superior court respecting the right to object to interrogatories, on the ground that the answers to them will tend to criminate the person answering, have not been quite uniform. Another head of objection is, however, quite clear: viz., that discovery will never be enforced of facts or communications which are privileged. The privilege may be grounded upon public interest (u), or upon the confidence which exists between a client and his professional adviser, whether counsel attorney (x) or attorney's clerk (y) or agent (2). The privilege of the attorney in these cases is general; but where it is claimed by the client he must show that the information asked for relates to the litigation in respect of which it is sought (a). This protection does not, however, apply to persons who do not come within the description of either attorney or counsel, and clergymen, doctors, clerks, bankers, stewards or confidential friends are bound to discover all those facts which their principals could be compelled to disclose (b). (r) Osborn v. The London Dock Company, 10 Exch. 698; S. C., 24 L. J., Exch. 140; Wigram on Discovery, sect. 10; Hare on Discovery, 119. As to what circumstances will entitle a witness to decline to answer on the ground of legal peril, see Reg. V. Bayes, 1 B. & S. 311; Cates v. Hardacre, 3 Taunt. 424; Reg. v. Garbett, 2 C. & K. 474; Fisher v. Ronald, 22 L. J., C. P. 62; Ex parte Fernandez, 10 C. B., N. S. 3. (3) Tapling v. Ward, 6 H. & N. 749; Baker v. Lane, 3 H. & C. 544. But see the observations on this case in Bickford v. Darcey, ante. (t) Tapling v. Ward, ante. (u) Beatson v. Skene, 5 H. & N. 838; Smith v. East India Company, 1 Phill. 50; Taylor on Evidence, ss. 859 to 866 (4th edit.) (r) Taylor on Evidence, c. xvi. ; P.N. Petch v. Lyon, 9 Q. B. 147. If this (y) Taylor v. Foster, 2 C. & P. 195. (z) Parkins v. Hawkshaw, 2 Stark. 239; Steele v. Stewart, 1 Phill. 471. (a) See per Wigram, V.-C., in Lord Walsingham v. Goodricke, 3 Hare, 122, 124; Combe v. Corporation of London, 1 Y. & C., C. C. 631, (b) See Taylor on Evidence, ss. 837, H CHAP. VI. PART I. Affidavits, how sworn. Witnesses. Summons. The rule, however, applies to scriveners (c), and to attorneys when they are employed not strictly as such, but to draw deeds of conveyance (d). A distinction has been taken in the superior courts between cases in which interrogatories ought to be disallowed and those in which the party interrogated can merely decline to answer (e). Under the practice rules of the county court it would appear, however, that this distinction does not exist in the same form, and that the party interrogated has no opportunity of objecting till he comes to answer on affidavit, when only two courses are open to him. First, when he may answer. Secondly, if the interrogatory is one which, according to the general practice, ought not to have been put, or if put he, from privilege or any other ground, is not bound to answer, he may abstain from answering it and must state in his affidavit his ground for objecting, and be prepared to show cause to the court at the return day (ƒ). Affidavits, how Sworn.]-Affidavits to be used in the county courts may be sworn before any judge or registrar of the courts without fee, or any master extraordinary in chancery, or commissioner for taking affidavits in any superior court, or before a justice of the peace (g). Witnesses.]-Witnesses may be summoned without leave of the court, either in the home or foreign district (h). In order to procure their attendance, summonses may be obtained at the office of the court (i), Books and with or without a clause requiring the production of CHAP. VI. books, deeds, papers and writings in their possession or control. Any number of names may be inserted in one summons. They are served by one of the bailiffs of the court (k). It is sufficient if the summons is served Service of. within a reasonable time before the actual hearing (1). Where the witness is a prisoner, not under process in a civil action, suit or proceeding, the judge may, upon application by affidavit, issue a warrant to bring up such prisoner to give evidence: and thereupon the prisoner is to be brought up in the same manner as if required to be brought up by any writ of habeas corpus; but a tender of a reasonable sum must be made for the conveyance and maintenance of the officers and prisoner in going to, remaining at, and returning from court (m). If a prisoner be in custody on civil process, he can only be brought up by a writ of habeas corpus ad testificandum, issued by one of the superior courts or a judge thereof. The 44 Geo. III. c. 102, authorizes the issue of such a writ to bring up a prisoner as a witness in any court of record. The application should be made to a judge at chambers (n). papers in their possession. When the summons is served, the reasonable expenses Expenses. of coming to, staying at, and returning from the place of trial, should be tendered; but the witness cannot of right claim anything for loss of time, nor could he maintain an action even if an express promise had been made to pay him (o). The scale of allowance to witnesses on taxing costs will be found post, Chap. XVIII. If a witness is present in court he cannot refuse to give evidence, although he has not been summoned (p). If a witness, who is duly summoned, and to whom at the same time payment or a tender of payment of his expenses had been made according to the prescribed scale (q), refuses or neglects, without sufficient cause, to appear, or to produce any books and papers, or writings, required by the summons to be produced, or if a person in court, who is required to give evidence, refuses to be sworn and give evidence, he is liable to forfeit and pay such fine, not exceeding 10l., as the judge may set on PART I. Withdrawal of cause. him. The whole or part of this fine, in the discretion of the judge, after deducting the costs, is applicable towards indemnifying the party injured by the refusal or neglect of the witness; the remainder goes to form part of the general fund of the court in which the fine is imposed (r). Withdrawal of Cause.]-If the plaintiff wishes to withdraw his cause, he must give notice thereof to the registrar, and to the defendant, by post, and after the receipt of this notice the defendant will not be entitled to any costs other than those incurred by him up to the time of receiving it, unless the judge otherwise orders (s). (r) 9 & 10 Vict. c. 95, s. 86. See (s) Rule 86. forms 35, 36. App. |