There

necessary and totally immaterial to the point in question. was a great difficulty in many cases in saying what was impertinent. It was formerly considered that if an instrument was required to be set forth by the bill, it was not impertinent to set forth the whole of it; for if a defendant took upon himself to state only the substantive part of the instrument, and an exception was taken because he had not set forth the substantial part, the court would have been unable to decide what was the substantial part. Even formerly it

was held that a defendant was not bound to confine himself to an answer to the interrogatories in the bill, but might state circumstances in his defence. But if what was stated was immaterial, it was held to be impertinent; and by 16th Ord. of May, 1845, if the defendant answers any statement or charge in the bill only by stating his ignorance of the matter so stated or charged, such answer will be deemed impertinent. These examples will suffice to give an idea of what is considered to be impertinent. It is to be remarked that nothing in the new statute presents exceptions for scandal, as to which we may observe that scandal is defined to be anything alleged in a bill, answer, or affidavit in language which it is unbecoming the court to hear, or contrary to good manners, or anything set forth charging a person with a crime not necessary to be shown in the cause (Pract. Equity, pp. 230—232).

PRODUCTION OF DOCUMENTS BY DEFENDANT.

[There are provisions in the 15 & 16 Vict. c. 86, for the more readily obtaining the production (on oath) of documents in the possession of a party to the suit, including the case of a claim. The production may be obtained at the instance of a plaintiff or a defendant. We first notice the case of a plaintiff requiring a defendant to produce documents.]

Can a plaintiff obtain the production of any and what documents in the possession of the defendant ?

Yes, of such documents in the defendant's possession or power relating to the matters in question in the suit, as the court or judge shall think right (c. 86, s. 18).

In what suits may the defendant be required to produce documents?

In any suit, whether commenced by bill or by claim, and as to a suit commenced by bill, whether the defendant has or has not been required to answer the bill, or has or has not been interrogated as to the possession of documents (c. 86, s. 18).

NOTE. A plaintiff is before answer entitled to production, and delay in making the application does not deprive him of such right (Rochdale Canal Co. v. King, 9 Hare, Append. 49, note).

Where are the documents to be left or deposited ?

Where no special direction is made, the documents must be left

or deposited in the Record and Writ Office (Ord. of 16th Oct. 1852, pl.57). This applies also to cases of production ordered at the instance of a defendant.

How are the documents when produced to be dealt with ?

In such manner as shall appear to the court or judge to be just (c. 86, s. 18; Ord. of 16th Oct. 1852, pl. 57).

NOTE. This provision is one of some practical importance, for formerly, unless the parties otherwise agreed, the only order the court made was to direct the documents to be brought into court (Hem. 20). The above provision also applies where the plaintiff is, at the defendant's instance, required to produce documents.

PRODUCTION OF DOCUMENTS BY PLAINTIFF.

Can a defendant obtain the production of any and what documents in the possession of the plaintiff ?

Yes, of such documents in the plaintiff's possession or power relating to the matters in question in the suit, as the court or a judge shall think right (c. 86, s. 20; Ord. of 16th Oct. 1852, pl. 57).

NOTE. It is probable that it was intended by the above 20th sec. to give power to a defendant to enforce discovery of what documents. the plaintiff had, without filing a cross-bill, but it seems that the language of the section is not sufficiently large for such a purpose (Mc Intosh v. Great West. Rail. Co., 16 Jur. 989; 16 Jur. pt. 2, p. 406).

In what suits and at what stage thereof may the plaintiff be required to produce documents?

In any suit, whether commenced by bill or by claim, but as to suits commenced by bill where the defendant is required to answer the plaintiff's bill, not till after he has put in a full and sufficient answer to the bill, unless the court shall make any order to the contrary (c. 86, s. 20).

To whom must the application for production of documents be made?

In ordinary cases, it should be made in the first instance at chambers (Thompson v. Teuton, 16 Jur. 899; S. C. 9 Hare, Append. 49). In the case of Sergison v. Livingstone (17 Jur. 33), which was an unopposed motion by a defendant for the production by the plaintiff of documents, V.C. Kindersley said: "The practice is, in the first place, to make a formal affidavit, and make an application to the judge in chambers, before which it cannot be ascertained whether the application ought to be made in chambers or in open court."

Where application is made to the court for production of documents, what is required?

a

That the party applying should give a notice of motion specifying therein the documents required to be produced. Such, at least, was

e

the decision in Fiott v. Mullins (16 Jur. 946), but it should seem that the courts do not strictly adhere to this practice. It is also said in some of the cases that the applicant must make an affidavit in support of his application (17 Jur. 33; Mc Intosh v. Great West. Rail. Co. 16 Jur. 989). But in the case of Rochdale Canal Co. v. King (9 Hare, Append. 49), it was decided that no affidavit is necessary to support the application, whether made by the plaintiff or the defendant.

What must the defendant do in order to oppose the application for production ?

He should make an affidavit denying in clear terms the possession of documents, or, if he have any, stating what they are, and denying possession of others. The court has settled a form of affidavit on the model of a carefully-prepared answer, which, though not obligatory, will be considered satisfactory (see Rochdale Canal Co. v. King, 9 Hare, Append. 49, note).

INTERROGATORIES FOR THE EXAMINATION OF THE PLAINTIFF.

[Where a defendant to a suit required discovery from the plaintiff either concerning matters of fact or the contents of documents relating to their differences, he must, formerly, have filed a cross-bill. The 15 & 16 Vict. c. 86, s. 19, seeks to prevent the necessity for such a bill in most instances, as we shall presently see.]

Can the defendant in any and what suits file interrogatories for the examination of the plaintiff in the suit?

He may file such interrogatories in any suit, whether commenced by bill or by claim (c. 86, s. 19).

What statement is to be prefixed to the interrogatories ?

A concise statement of the subjects on which a discovery is sought (c. 86, s. 19).

At what time may a defendant to a suit file such interrogatories? In the case of a bill which the defendant is required to answer, he cannot file interrogatories until after he has put in a sufficient answer to the bill. No time is fixed where the defendant is not required to answer, nor in the case of a claim (c. 86, s. 19).

NOTE.-An answer is not considered sufficient, though not excepted to, until six weeks after the filing thereof, from which the vacations are excluded (Hem. 22). In the case of Sibbald v. Laurie (20 Law Tim. 320), although the time for taking exceptions to an answer had not expired, leave was given to the defendant, who had put it in, to file interrogatories for the examination of the plaintiff, but at the risk, if the answer turned out to be insufficient, of having the interrogatories taken off the file, with costs.

With whom are the interrogatories to be filed, and how served ? · The interrogatories are to be filed with the clerks of Records and

Writs, and a copy thereof is to be delivered to the plaintiff or to his solicitor (c. 86, s. 19).

What provision is made as to the plaintiff's answering such interrogatories?

The plaintiff is to answer the interrogatories in like manner as if they had been contained in a bill of discovery filed by the defendant against him on the day when such interrogatories were filed, and as if the defendant to such bill of discovery had on the same day duly appeared (c. 86, s. 19).

What is said in the statute as to exceptions to answers to such interrogatories?

That the practice of the court with reference to excepting to answers for insufficiency or for scandal, shall extend and be appli cable to answers put in to such interrogatories (c. 86, s. 19).

What provisions are made as to the determination of the materiality or relevancy of any answer to such interrogatories or exceptions to such answer?

In determining the materiality or relevancy of any answer to the interrogatories or of any exceptions thereto, the court is to have regard, in suits commenced by bill, to the statements contained in the original bill, and in the answer which may have been put in thereto by the defendant exhibiting such interrogatories for the examination of the plaintiff, and in suits commenced by claim, to the statements therein, and in any affidavits which may have been filed either in support thereof or in opposition thereto (c. 56, s. 19).

Is the defendant precluded from filing a cross-bill?

No; for the statute expressly provides that the defendant, if he shall think fit so to do, may exhibit a cross-bill of discovery against the plaintiff, instead of filing interrogatories for his examination (c. 86, s. 19).

MOTION FOR DECREE.

Is there any and what course which a plaintiff may adopt to bring a cause to hearing without filing a replication?

A plaintiff in a bill is now enabled to move for a decree or decretal order, without filing a replication, and whether or not the defendant has answered the bill (c. 86, s. 15; Ord. of 7th Aug. 1852, pl. 22— 26). This hearing is by motion (according to the words of the statute, though not so deemed for all purposes), and may expedite a cause in the cases in which it is proper to be adopted, but the month's notice which, as we shall presently see, is required, is rather long. And it is to be observed that, though called a motion, the courts will not allow it to be called on as such, but require each case to be set down in the cause list, but the matter may, of course, be brought on as a short cause, in a proper case (Drew v. Long, 17 Jur. 173).

In what case and at what stage of the suit may the plaintiff move for a decree or decretal order?

In the case of a bill, and at any time after the period allowed to the defendant for answering has expired, and before the replication is filed (c. 86, s. 15). This provision is not, as might seem from the language of the statute, confined to the cases of plaintiffs who have filed interrogatories, or of defendants having voluntarily answered without being required, but also extends to the case of a defendant not required to answer, and who has not put in an answer, for the Ord. of 7th Aug. 1852, pl. 29, expressly recognises the right of a plaintiff to move for a decree though he has not required the defendant to answer, and the defendant has not answered the bill (Hem. Eq. Stats. 16, 17). By s. 13 of the 15 & 16 Vic. c. 86, where the defendant obtains further time for pleading, answering, or demurring to the bill, the plaintiff's right to move for a decree or decretal order is to be suspended in the meantime. It will be observed that the notice of motion is to be given before the filing of a replication, and leave will not be given to file a replication after the giving of such a notice and the hearing of the motion; the plaintiff should await the result of the motion (Duffield v. Sturges, 20 Law Tim. 205).

What notice of motion for a decree must be given?

One month's notice (Ord. of 7th Aug. 1852, pl. 22).

NOTE. At the time of giving the notice the plaintiff should enter the cause with the registrar of the court, and it will then be unnecessary to give any further notice of setting it down (Boyd v. Jaggar, 17 Jur. 655; 21 Law Tim. 234).

What evidence may be given on the hearing of such

motion?

Affidavits by or on behalf of either party; where the motion is made after an answer is put in, such answer will, for the purposes of the motion for the decree, be treated as an affidavit (c. 86, s. 15).

NOTE. No notice of the plaintiff's intention to read the defendant's answer is necessary (Cousins v. Vaysey, 20 Law Tim. 305). A defendant cannot, under any circumstances, read a co-defendant's answer on a motion for a decree (Ibid). It has, however, been held that a defendant may, by leave on such a motion, read his own answer, he submitting to cross-examination (Howell v. Williams, 20 Law Tim. 274).

When must the plaintiff's affidavits be filed, and what provision is made for informing the defendant thereof?

The plaintiff's affidavits must be filed before the service of the notice of motion. A list of the affidavits must be set forth at the foot of such notice (Ord. of 7th Aug. 1852, pl. 23).

NOTE.-No affidavits but those of which notice has been given