must know he will be charged with possession of and called upon to produce the instrument, as in the case of trover for a written instrument; or where the adversary got possession by force or fraud; or where the law makes an exception in favor of merchant-seamen ; or where the adversary or his attorney has admitted the loss of the instrument; or has the required instrument in court.

121. Any party may at any time by leave of the Court, deliver through Power to deliver in the Court interrogatories in writing for the examination of the opposite party, or where there are terrogatories. 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 statemant and such statement has been received and placed on the record.

Not very many years ago, the parties to a suit and many other persons were legally incapacitated from giving evidence therein, because their interest in the subject-matter was supposed to tend to induce perjury.

The great Bentham persistently attacked the principles on which objections to competency' had from time immemorial been based, and at length in 1846 the County Court Act, 9 and 10 Vict., c. 95, provided that "on the hearing or trial of any action or on any other proceeding under that act the parties, their wives and all other persons, may be examined either on behalf of the plaintiff or defendant, upon oath and solemn affirmation." After the wisdom of this enactment had been fully proved by the experience of a few years, the new principle was, in 1851, extended nearly to its farthest proper limits by Lord Broughams act, the 14 and 15 Vict., c. 99, the first four sections of which relate to the competency of witnesses, and make parties and others competent and compellable to give evidence, according to the practice of the court, in suits, actions and proceedings generally, except in cases of adultery and of breach of promise. The Evidence Amendment Act of 1853, another of Lord Broughams most valuable acts, corrected certain defects in the act of 1851, and rendered all husbands and wives of parties to the record competent and compellable to give evidence in ordinary cases. And at the present moment it is only in certain proceedings

of special kinds, that persons of certain classes are incompetent, in England, to testify.

Then the 51st section of the Common Law Procedure Act, 1854, provided that in all causes in any of the superior courts, by order of the court or a judge, the plaintiff may with the declaration, and the defendant may, with the plea, or either of them by leave of the court or a judge may, at any other time, deliver to the opposite party interrogatories, provided such party, if not a body corporate, would be liable to be called and examined as a witness; the same to be in writing upon any matter as to which discovery may be sought ; and may require answers within ten days in writing by affidavit ; and omission properly to answer is to be dealt with as a contempt. Sec. 52 of the same requires the application for such order to show that the applicant 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 where the application is made on the part of the defendant, that the discovery is not sought for the purpose of delay. And the next following section enables the court or a judge to direct an oral examination of the interrogated party in case of omission, without just cause, to answer the written interrogatories sufficiently.

Day in his C. L. P. Acts, p. 226, says it appears that such interrogatories are not allowable as (1) seek exclusively for the case of the other side, (2) are of a merely fishing character, (3) are not reasonably relevant to the matter in dispute, (4) are unnecessary or useless, (5) seek to establish a forfeiture, (6) seek to contradict a written instrument, and (7) as are privileged upon grounds of public interest; but on the other hand interrogatories may be admissible, (1) the answers to which may expose other persons to actions, (2) the answers to which may expose the party interrogated to penalties, (3) where a defendant in ejectment seeks to discover the character in which the plaintiff claims, and the pedigree upon which he relies, (4) that seek secondary evidence of lost written documents, and (5) that inquire into confidential communications that the party interrogated would not be privileged from disclosing upon oral examination.

The improvements effected in the English law of evidence did not escape the notice of the Indian Legislature, and Act, XV of 1852 contained provisions rendering parties competent and compellable to give evidence, except where their answers would criminate them, and other provisions copied from provisions in the recent English statutes. After a short interval was passed that wise Act, II of 1855, which rendered all persons competent to testify except children and persons of weak mind (Sec. 14); removed the disability of interested persons (Sec. 18); made "any party to a civil suit or other proceeding competent and compellable to give evidence therein as a witness, either on his own behalf or on behalf of any other party to the suit or proceeding, and also to produce any document in his possession or power, in the same manner as if he were not a party" (Sec. 19); and rendered husbands and wives competent to testify for or against each other in every civil proceeding (Sec. 20.) And later Evidence Acts of course have not been reactionary.

This section is borrowed from Rule 1 of the English Order XXXI. The following notes thereto are given in Lely and Foulkes' Book.

The interrogatories and answers provided for by this rule differ from those formerly in use in Chancery in their not being filed, and in the answers being strictly confined to the interrogatories, and not containing also a statement of the defendant's case, which is now to be given in the statement of defence. (See 15 & 16 Vict. c. 86, Secs. 12, 14, 19.) The C. L. P. Act, 1854, Sec. 51, gave power to administer interrogatories, but only after an order of a judge. The power given to a defendant to interrogate "the opposite party" seems to include the power to interrogate a person brought into the action at his instance, as such person is, by Sec. 25, Sub-sec. 3, of Act of 1873, to be deemed a party. Otherwise the advantage of this process would be seriously impaired.

This rule must be read with Rule 5; and it has been held by the Court of Appeal in Mercier v. Cotton (L. R., I. Q. B. D., 442; 35 L. T., 79; 24 W. R., 566), that when a plaintiff delivers interrogatories before defence, and the defendant applies to have them struck out under Rule 5, it will be for the plaintiff to show that the interrogatories are sufficiently material at that stage of the action.

An affidavit by a defendant that he has no means of framing his defence until he has obtained answers to proposed interrogatories, has been held not to entitle the defendant to an order for leave to interrogate before defence. (Per Jessel, M. R., in Disney v. Longbourne, L. R., 2 Ch. D. 704; 45 L. J., Ch. 532; 35 L. T., 301 ; 24 W. R., 663.)

Interrogatories delivered without an order must not contain an interrogatory for the purpose of obtaining discovery of documents, as that requires an order under Rule 12. (Quain, J., at Chambers, in Pitten v. Chatterburg, Bitt. p. 62.)

Rule 12 is transcribed into Sec. 129, q. v. For forms of interrogatories, see Schedule IV.

At any time by leave of the Court.-Looking to the wording of the English rule from which this is borrowed, I imagine that it was intended by the Legislature that the leave of the Court should never be withheld where the delivery of interrogatories was not either too early or too late. Ordinarily the plaintiff should deliver them at the time of delivering his claim, and the defendant at the time of delivering his defence: neither should deliver them, save in exceptional circumstances, later than the settlement of issues.

Interrogatories.-Wharton thus explains the word interrogatory, which comes from the Latin rog-, to ask: A question in writing put to a witness, who answers it upon oath; his answer is taken down in writing, and being signed by the witness is called a deposition.

The difference between a deposition on interrogatories and an ordinary deposition will lie in this: the former will consist of separate answers in the words of the witness, the latter will be in the form of a continuous narrative, constructed from the words of the witness.

The opposite party.-Including a person brought in by a defendant under Sec. 32. See the head-notes.

Unless such defendant, &c.-This is an important proviso, noticed in the Final Report.

122. Interrogatories delivered under Sec. 121 shall be served on the Service of interrogapleader (if any) of the party interrogated or in the manner hereinbefore provided for the service of sumtories. mons, and the provisions of Secs. 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 pro- into the propriety of delivering such interrogatories; priety of exhibiting and if it thinks that such interrogatories have been interrogatories. delivered unreasonably, vexatiously or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be borne by the party in fault.

Lely and Foulkes observe upon this: "This rule is rendered necessary by the general permission given to parties to interrogate, which formerly at law required an order."

tories on officer of corporation or company.

124. If any party to a suit be a body corporate or a joint stock comService of interroga- pany, whether incorporated or not, or any other body of persons empowered by law to sue or be sued, whether in his own name or in the name of any officer or other person, any opposite party may apply to the Court for an order allowing him to deliver interrogatories to any member or officer of such corporation, company or body, and an order may be made accordingly.

Sec. 51 of C. L. P. Act, 1854, provided in the same way for this case. Formerly, in Chancery, a corporation put in their answer under their common seal. (Ch. C. Ord. XV, 6.) All answers must now be by affidavit.

It is doubtful whether this rule applies to discovery, but Sec. 50 of the C. L. P. Act, 1854, which does so apply, may be read in aid of it. (Per Lush, J., at Chambers, in Cooke v. The Oceanic Steam Co., Bitt. p. 33.)

Body corporate.-Wharton tells us as to the word 'corporation: This expression, synonymous with 'Body Politic,' denotes artificial persons established for preserving in perpetual succession certain rights, which, being conferred on natural persons only, would fail in process of time. The distinction between corporations and trading partnerships is, that in the first the law sees only the body corporate and knows not the individuals, who are not liable for the contracts of the corporation in their private capacity, their share in the capital only being at stake: but in the latter the law looks not to the partnership but to the individual members of it, who are therefore answerable for the debts of the firm, even to their last shilling and acre.

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