the hearing of the suit to a future day, and direct that such party shall appear in person on such day. If such party fails without lawful excuse1 to appear in person on the day so appointed, the Court may pass a decree against him, or make such order in relation to the suit as it thinks fit. Power to deliver interroga tories. Service of tories. CHAPTER X. OF DISCOVERY, AND OF THE ADMISSION, INSPECTION, 121. Any party may at any time2 by leave of the Court 3 deliver through the Court interrogatories in writing for the examination of the opposite party, or where there are more opposite parties than one, any one or more of such parties, with a note at the foot thereof stating which of such interrogatories each of such persons is required to answer*: Provided that no party shall deliver more than one set of interrogatories to the same person without the permission of the Court, and that no defendant shall deliver interrogatories for the examination of the plaintiff unless such defendant has previously tendered a written statement and such statement has been received and placed on the record. 122. Interrogatories delivered under section 121 shall be interroga- served on the pleader (if any) of the party interrogated, or in the manner hereinbefore provided for the service of summons, and the provisions of sections 79, 80, 81 and 82 shall, in the latter case, apply so far as may be practicable. 123. The Court, in adjusting the costs of the suit, shall, at the instance of any party, inquire or cause inquiry to be made Inquiry into the propriety of delivering such interrogatories; and if it into propriety of thinks that such interrogatories have been delivered unreason- exhibiting ably, vexatiously or at improper length, the costs occasioned interrogaby the said interrogatories and the answers thereto shall be borne by the party in fault. tories. tories on corporation 124. If any party to a suit be a body corporate or a joint Service of stock company, whether incorporated or not, or any other interrogabody of persons empowered by law to sue or be sued, whether officer of in its own name or in the name of officer or other any person, or comany opposite party may apply to the Court for an order pany. allowing him to deliver interrogatories to any member or officer of such corporation, company or body, and an order may be made accordingly 1. refuse to answer in 125. Any party called upon to answer interrogatories, Power to whether by himself or by any such member or officer, may refuse to answer any interrogatory on the ground that it is terrogairrelevant, or is not put bona fide for the purposes of the suit 3, tories as or that the matter inquired after is not sufficiently material at etc. that stage of the suit, or on any other like ground 5. 1 That an ordinary member of a company should not be interrogated unless it is shown that he has the required information and that there is no officer capable of giving it, see Berkeley v. Standard Discount Co., 13 Ch. Div. 99, per Jessel M.R. The company's solicitor acts for the member or officer directed to answer, and charges the company with the cost, ibid. As to the duty of directors to obtain information for the purpose of answering interrogatories, see Southwark Water Co. v. Quick, 3 Q. B. D. 321, per Cotton L.J. Where the officer put forward by a corporation is also its attorney or pleader in the suit, he cannot object to answer on the ground of privilege under the Evidence Act, sec. 146; see Mayor of Swansea v. Quirk, 5 C. P. D. 106. › irrelevant, rogatories which do not relate to any 3 Baker v. Lane, 3 H. & C. 544: See Mercier v. Cotton, 1 Q. B. D. 442: Gay v. Labouchere, 4 Q. B. D. p. 207. e.g. that the question tends to criminate, or that the answer would expose him to penalties or proceedings for maintenance; and see Lockett v. Lockett, L. R., 4 Ch. App. 33 b. The Code is silent as to scandalous interrogatories, e. g. one asking whether the defendants, who were sued as husband and wife, were married. Time for filing affidavit 126. Interrogatories shall be answered by affidavit1 to be filed in court within ten days from the service thereof or in answer. within such further time as the Judge may allow 1. Procedure where party omits to answer suf ficiently. Power to demand admission 127. If any person interrogated omits or refuses to answer, or answers insufficiently 2, any interrogatory, the party interrogating may apply 3 to the Court for an order requiring him to answer or to answer further, as the case may be. And an order may be made requiring him to answer or to answer further either by affidavit or by vivá voce examination as the Judge may direct: provided that the Judge shall not require an answer to any interrogatory which in his opinion need not have been answered under section 125. 128. Either party may, by a notice through the Court, within a reasonable time not less than ten days before the of genuine- hearing, require the other party to admit (saving all just documents. exceptions to the admissibility of such document in evidence) the genuineness of any document material to the suit. ness of Power to order discovery of document. The admission shall also be made in writing signed by the other party or his pleader and filed in court. If such notice be not given, no costs of proving such document shall be allowed, unless the Judge otherwise orders. If such notice is not complied with within four days after its being served, and the Judge thinks it reasonable that the admission should have been made, the party refusing shall bear the expense of proving such document, whatever may be the result of the suit. 129. The Court may, at any time during the pendency therein of any suit, order any party5 to the suit to declare by 1 Answers to interrogatories are simply affidavits obtained in the way which the Code provides, and the party wishing to use them at the hearing must put them in as his evidence, 4 Cal. 836, per Wilson J. 2 As to answers containing irrelevant and improper matter, see Peyton v. Harting, L. R., 9 C. P. 9: as to embarrassing answers, Lyell v. Kennedy, 27 Ch. D. 1: as to extremely prolix answers, Lyell v. Kennedy, 33 W. R. 44. The application should specify affidavit all the documents which are or have been in his possession or power relating to any matter in question in the suit1, and any party to the suit may, at any time before the first hearing, apply to the Court for a like order. in answer Every affidavit made under this section shall specify 2 Affidavit which, if any, of the documents therein mentioned the to such declarant objects to produce, together with the grounds of order. such objection. order production of during 130. The Court may, at any time during the pendency Power to therein of any suit, order the production by any party3 thereto of such of the documents in his possession or power relating to documents any matter in question in such suit or proceeding as the Court suit. thinks right; and the Court may deal with such documents when produced in such manner as appears just o. produce for inspection 131. Any party to a suit may at any time before or at the Notice to hearing thereof give notice through the Court to any other party to produce any specified document for the inspection of documents 1 e. g. the documents of title of a defendant in ejectment, 3 C. P. D. 196. 2 As to sufficiency of specification, see Taylor v. Batten, 4 Q. B. D. 85. 3 not by his pleader, Suth. 1864, Civ. R. 164: Cashin v. Craddock, 2 Ch. D. 140. i.e. exclusive possession. 5 See 10 Cal. 808. As to the practice when a party producing documents wishes to have certain portions sealed up, see 4 Cal. 835. "Order xxxi. r. 14. The Court has no discretion as to refusing to allow the production, provided the documents are not privileged, 2 Bom. 453, following Bustros v. White, L. R., 1 Q. B. D. 139. What documents are privileged depends on the Evidence Act (secs. 122, 124, 126, 129), and the English decisions necessary to supplement that measure. Thus, reports of medical men procured by a solicitor for the purposes of an action (2 Ex. D. 437); the survey of a ship made for a like purpose (3 P. D. 162); reports etc. relating to impending liti referred to in plaint, gation prepared for purpose of sub. etc. mission to solicitor (3 Q. B. D. 315); communications between solicitor and client (4 Q. B. D. 85); communications by a third party to a solicitor with reference to actual or pending litigation (17 Ch. D. 681, 682); and, probably, documents tending to criminate the party discovering them (5 Ex. D. 23, 108). Neither the Code nor the English Order provides for the case where relevant documents are in the joint possession of the party disclosing them and some person not a party to the suit. Such documents cannot be ordered to be produced (10 Q. B. D. 465) unless no interest can be affected by their production other than the interest of the parties to the suit, 15 Q. B. D. 473, where the defendant was liquidator of a company which had been wound up, and had, as such, the possession and control of the documents in question. One partner of a firm represents the other partners for the purposes of production of documents, 1 Bom. 496. Consequence of non-com pliance with such notice. Party receiving such notice notice when and where in the party giving such notice or of his pleader 1, and to permit such party or pleader to take copies thereof. No party failing to comply with such notice shall afterwards be at liberty to put any such document in evidence on his behalf in such suit, unless he satisfies the Court that such document relates only to his own title, or that he had some other and sufficient cause2 for not complying with such notice. 132. The party to whom such notice is given shall, within ten days from the receipt thereof, deliver through the Court to deliver to the party giving the same a notice stating a time within three days from such delivery at which the documents, or such of them as he does not object to produce, may be inspected at his pleader's office or some other convenient place3, and stating which, if any, of the documents he objects to produce, and on what grounds. spection may be had. Application for order of inspection. Application to be affidavit. 133. If any party served with notice under section 131 omits to give notice under section 132 of the time for inspection, or objects to give inspection, or names an inconvenient place for inspection, the party desiring it may apply to the Court for an order of inspection 5. 134. Except in the case of documents referred to in the founded on plaint, written statement or affidavit of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing (a) of what documents inspection is sought, (b) that the party applying is entitled to inspect them, and (c) that they are in the possession or power of the party against whom the application is made. Power to order issue or question 135. If the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof, 1 This includes an advocate, a vakil, an attorney of a High Court, and a recognised agent, supra, pp. 466, 488; but not a co-defendant (Bartley v. Bartley, Drew. 233) nor a nonprofessional relative (Summerfield v. Pritchard, 17 Beav. 9). 2 Webster v. Whewall, 15 Ch. D. 120: Quilter v. Heatly, 23 Ch. D. 42. 3 5 Bom. 467: Prestney v. Corpn. of Colchester, 24 Ch. Div. 376. As in the case of privileged letters, II Cal. 655. 5 Such order will not be made unless the applicant has taken the steps mentioned in sec. 131, 10 Cal. 56. The Code should have expressly empowered the Court to grant an order for inspection in such place and in such manner as it may think fit. |