appointing A. executor, and moved that he should exhibit Discovery and inspection. an affidavit of his belief in his own statement before they filed their affidavit. The practice of the court, which was to the contrary, was directed to be followed, and their application rejected.1 An affidavit of scripts that no testamentary paper of the deceased had at any time come to the deponent's hands or possession, or was under his power or control, was insufficient, as not further stating that no such paper had come to his knowledge." By the old practice,3 after scripts were brought in the defendant was bound to say which he opposed. Thereupon the plaintiff propounded them. Under the Probate Act a declaration was filed, setting out in general terms the testamentary papers of the deceased. When necessary, the party propounding testamentary papers was ordered in future to furnish particulars of the papers to which the declaration was intended to apply.5 12. Any party may, without filing any affidavit, apply to the Discovery of court or a judge for an order directing any other party to any documents. 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. 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." 13. The affidavit, to be made by a party against whom such Form of affiorder as is mentioned in the last preceding rule has been made, davit in such shall specify which, if any, of the documents therein mentioned he case. objects to produce, and it shall be in the Form No. 8 in Appendix B., with such variations as circumstances may require.7 Powers of court over documents. Notice to produce. Form of such notice. Delivery of documents thereon. Order on special appli cation con cerning them. Reserving 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. 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 reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, 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 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. 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., with such variations as circumstances may require. 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., with such variations as circumstances may require. 18. If the party served with notice under 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 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; and, except in the case of documents referred to in the pleadings or affidavits 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 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. 20. If the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the court or a question of judge may, if satisfied that the right to the discovery or inspection discovery. sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.1 21. If any party fails to comply with any order to answer Failure to interrogatories, or for discovery or inspection of documents, he comply with shall be liable to attachment. He shall also, if a plaintiff, be liable order for disto have his action dismissed for want of prosecution, and, if a covery. defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating may apply to the court or a judge for an order to that effect, and an order may be made accordingly. 22. Service of an order for interrogatories or discovery or in- Service of spection made against any party or his solicitor shall be sufficient order, when service to found an application for an attachment for disobedience sufficient. to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order. 23. A solicitor, upon whom an order against any party for inter- Liability of rogatories or discovery or inspection is served under the last pre- solicitors after ceding Rule, who neglects without reasonable excuse to give notice notice. thereof to his client, shall be liable to attachment. 24. Any party may, at the trial of a cause, matter, or issue, use Putting in in evidence any one or more of the answers or any part of an answers at the answer of the opposite party to interrogatories without putting in trial. the others or the whole of such answer: Provided always, that in such case 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. 25. In every cause, or matter, the costs of discovery, by interro- Costs of disgatories or otherwise, shall, unless otherwise ordered by the court covery. or a judge, be secured in the first instance as provided by Rule 26 of this Order, by the party seeking such discovery, and shall be allowed as part of his costs where, and only where, such discovery shall appear to the judge at the trial, or, if there is no trial, to the court or a judge, or shall appear to the taxing officer, to have been reasonably asked for. 26. Any party seeking discovery by interrogatories shall, before Security for delivery of interrogatories, pay into court to a separate account in costs. the action, to be called " Security for Costs Account," to abide Account. further order, the sum of 5l., and, if the number of folios exceeds Interrogafive, the further sum of 10s. for every additional folio. Any party tories. seeking discovery otherwise than by interrogatories shall, before making application for discovery, pay into court, to a like account, 1 Rowcliffe v. Leigh, 6 Ch. D. 256; and Wood v. Anglo-Italian Bank, 34 L. T. 255. Interrogatories. Disposal of same. Admissions. Notice of admission of other party's case. Notice to admit documents. Form. Penalty on failure to admit facts. to abide further order, the sum of 51., and may be ordered further 27. Unless the court or a judge shall at or before the trial otherwise order, the amount standing to the credit of the " Security for Costs Account" in any cause or matter, shall after the cause or matter has been finally disposed of, be paid out to the party by whom the same was paid in on his request, or to his solicitor on such party's written authority, in the event of the costs of the cause or matter being adjudged to him; but, in the event of the court or judge ordering him to pay the costs of the cause or matter, the amount in court shall be subject to a lien for the costs ordered to be paid to any other party. Ord. XXXII. r. 1. Any party to a cause or matter may give notice, by his pleading, or otherwise in writing, that he admits the truth of the whole or any part of the case of any other party. 2. Either party may call upon the other party to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the cause or matter may be, unless at the trial or hearing the court or a judge shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense. 3. A notice to admit documents shall be in the Form No. 11 in Appendix B., with such variations as circumstances may require. 4. Any party may, by notice in writing, at any time not later than nine days before the day for which notice of trial has been given, call on any other party to admit, for the purposes of the cause, matter, or issue only, any specific fact or facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days after service of such notice, or within such further time as may be allowed by the court or a judge, the costs of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result of the cause, matter, or issue may be, unless at the trial or hearing the court or a judge certify that the refusal to admit was reasonable, or unless the court or a judge shall at any time otherwise order or direct. Provided that any admission made in pursuance of such notice is to be deemed to be made only for the purposes of the particular cause, matter, or issue, and not as an admission to be used against the party on any other occasion or in favour of any person other than the party giving the notice provided also, that the court or a judge may at any time allow any party to amend or withdraw any admission so made Admissions. on such terms as may be just. 5. A notice to admit facts shall be in the Form No. 12, in Notice to Appendix B., and admissions of facts shall be in the Form No. 13 admit facts. in Appendix B., with such variations as circumstances may require. 6. Any party may at any stage of a cause or matter, where Application admissions of fact have been made, either on the pleadings, or for order on otherwise, apply to the court or a judge for such judgment or admissions. order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court or a judge may upon such application make such order, or give such judgment, as the court or judge may think just. 7. An affidavit of the solicitor or his clerk, of the due signature Evidence of of any admissions made in pursuance of any notice to admit admissions. documents or facts, shall be sufficient evidence of such admissions, if evidence thereof be required. 8. Notice to produce documents shall be in the Form No. 14 in Notice to proAppendix B., with such variations as circumstances may require. duce docuAn affidavit of the solicitor, or his clerk, of the service of any ments. notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be sufficient evidence of the service of the notice, and of the time when it was served. 9. If a notice to admit or produce comprises documents which Costs where are not necessary, the costs occasioned thereby shall be borne by documents unthe party giving such notice. Where, on filing an affidavit of scripts, a party brought in testamentary papers and withheld a duplicate will, this, as a testamentary paper, was ordered to be brought in also.1 Ord. XXXIII. relates to inquiries and accounts only. "It shall be lawful for the court, or any judge of the division to which any cause or matter pending in the said High Court is assigned, if it shall be thought fit, to order that any books or documents may be produced, or any accounts taken or inquiries made, in the office of or by any such district registrar as aforesaid; and in any such case the district registrar shall proceed to carry all such directions into effect in the manner prescribed; and in any case in which any such accounts or inquiries shall have been directed to be taken or made by any district registrar, the 'Killican v. Lord Parker, 1 Lee, 662. Instructions for a will, if existing, should be included in the affidavit and brought into the necessary. |