or unreasonable, within the meaning of the above-quoted words, refused, where the plaintiff had filed a bill, founded on the alleged agency of the defendant, which was the question in the suit, to compel the defendant to answer interrogatories as to what appeared to be his private transactions, saying that "It would be monstrous that a man, by merely alleging that he had a share in a concern, which allegation was denied and had not been established, and whilst it was doubtful whether it would be established, could get the accounts of the defendant's private business and of his dealings with other people."

The Rules of Court as to discovery now apply to infant plaintiffs and defendants, and their next friends and guardians ad litem, in the same way as to other litigants (0).

The answers to interrogatories, although not evidence, may be used as evidence against the party answering by way of course of admissions. The whole of the answers, or any one or more answers, or any part of an answer, may be so used; but Rule 24 of Order 31, which governs this, provides that "the judge may look at the whole of the answers, and, if he shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in."

The procedure as to interrogatories in county courts is substantially the same as that in the High Court. Interrogatories cannot be delivered without leave, and the County Court Rules (p) make no provision for setting any interrogatories aside.

(0) Order 31, r. 29.

(P) See Appendix.

P.

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CHAPTER VIII.

PRODUCTION AND INSPECTION OF DOCUMENTS AND NOTICE TO PRODUCE.

WHEN private writings contain a contract, or otherwise embody, or are material to the substance of, the issue, they are not only admissible, but also, when producible, indispensable evidence. In such cases a party who relies upon them must either produce them, or account satisfactorily for their nonproduction. Such writings are frequently in the hands of an adverse party, who will not voluntarily produce them either before or at the trial. The important practical questions, then, on this subject are, how can a party ascertain what documents are in his opponent's possession? how can he get these documents produced for his inspection previous to the trial? and, lastly, how can he get them produced at the trial, or put himself in a position, by reason of their nonproduction, to give secondary evidence of their contents?

The practice as to discovery of documents, production previous to the trial and inspection, is now regulated by Order 31 of the R. S. C. 1883, the portions of which, material for the present purpose, are as follows:

Rule 12. "Any party may, without filing any affidavit, apply to the court or a judge for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his possession or

power, relating to any matter in question therein (a). On the hearing of such application the court or judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order either generally or limited to certain classes of documents as may in their or his discretion be thought fit; provided that discovery shall not be ordered when and so far as the court or judge shall be of opinion that it is not necessary either for disposing of the cause or matter or for saving costs" (b).

Rule 13. "The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall be in the Form No. 8 in Appendix B. (c), with such variations as circumstances may require."

Rule 14. "It shall be lawful for the court or a judge at any time during the pendency of any cause or matter, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the court or judge shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just."

Rule 15. "Every party to a cause or matter shall be entitled, at any time by notice in writing, to give notice to any other party, in whose pleadings or affidavits (d) reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor,

(a) This is one of the matters to be dealt with on the plaintiff's summons for directions under Ord. 30, r. 1.

(b) See as to this rule, Att.-Gen. v. N. Metropolitan Tramways Co., (1892) 3 Ch. 70, and Re Wills' Trade

Marks, (1892) 3 Ch. 207.

(c) See this form in the Appendix. (d) An exhibit to an affidavit is, for the purposes of discovery, a part of the affidavit. Re Hinchliffe, (1895) 1 Ch. 117.

and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such cause or matter, unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge shall deem sufficient for not complying with such notice, in which case the court or a judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit."

Rule 16. "Notice to any party to produce any documents referred to in his pleading or affidavits shall be in the Form No. 9 in Appendix B. (e), with such variations as circumstances may require."

Rule 17. "The party to whom such notice is given shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in Rule 13, or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, or in the case of bankers' books or other books of account, or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in the Form No. 10 in Appendix B. (f), with such variations as circumstances may require."

Rule 18. "(1.) If the party served with notice under (e) See this form in the Appendix. (f) See this form in the Appendix.

Rule 17 omits to give such notice of a time for inspection, or objects to give inspection, or offers inspection elsewhere than at the office of his solicitor, the court or judge may, on the application of the party desiring it, make an order for inspection in such place and in such manner as he may think fit; provided that the order shall not be made when and so far as the court or a judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter, or for saving costs.

"(2.) Any application to inspect documents, except such as are referred to in the pleadings, particulars, or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The court or judge shall not make such order for inspection of such documents when and so far as the court or judge shall be of opinion that it is not necessary either for disposing fairly of the cause or matter or for saving costs."

Rule 19. "An order upon the lord of a manor to allow limited inspection of the court rolls may be made on the application of a copyhold tenant, supported by an affidavit that he has applied for inspection, and that the same has been refused."

Rule 19A. "(1.) Where inspection of any business books is applied for, the court or a judge may, if they or he shall think fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations, or alterations. Provided that, notwithstanding that such copy has been supplied, the court or a judge may