CHAPTER IX. INTERROGATORIES FOR THE EXAMINATION OF THE DEFEND- Former practice. Interrogatories no longer form part of the bill; but may be filed separately. Time allowed to file, and deliver. Should be filed, notwithstanding pendency of a demurrer. Leave to file, after time expired. FORMERLY, as we have already seen, a bill in Chancery contained an interrogating part, preceding the prayer, which consisted of a repetition of the stating and charging parts of the bill, in the form of questions to be answered by the defendants. This, as has been before observed, is by the late Act of Parliament directed to be omitted from the bill; but, if the plaintiff desires to obtain discovery or admission from any defendant, he may file interrogatories for the examination of such defendant, within eight days from the time limited for the defendant's appearance. If the defendant appears within the time limited, the plaintiff must deliver an office copy of the interrogatories to the defendant or his solicitor within eight days after such time; but if the defendant does not appear within the time allowed, the plaintiff may deliver the interrogatories at any time after the time allowed has expired, but before the appearance of the defendant, or within eight days after his appearance.* 8 The interrogatories must be filed within the time limited by the General Orders, notwithstanding that a demurrer may be pending. If the plaintiff allows the time for filing interrogatories to expire before he has filed them, he cannot file them without special leave, to be applied for in Court on motion, with notice, or in 1 15 & 16 Vic. c. 86, § 10; ante, p. 356. 2 15 & 16 Vic. c. 86, § 12; Ord. XI. 2. This order applies to amended, as well as original bills. A defendant need not appear to an amended bill unless he is required to answer it; and the intention of the plaintiff to call for an answer is indicated by service of a duly sealed and indorsed copy of the amended bill; see Braithwaite's Pr. 328; Braithwaite's Manual, 159. The interrogatories may be filed with the bill: Braithwaite's Pr. 38; and a sealed copy may be served at the same time as a copy of the bill: Leaman v. Brown, 7 W. R. 322, V. C. K.; but in such case, the full time for appearing and for answering, namely, thirty-six days, must be allowed to expire before the attachment for not answering can be sealed: Braithwaite's Manual, 184; and see Cheeseborough v. Wright, 28 Beav. 173; see Genl. Sts. Mass. c. 113, § 4; St. 1862, c. 40. 8 Ord. XI. 4. If a copy is left at the office of the solicitor by whom the defendant has entered an appearance, it is sufficient. Bowen v. Price, 2 De G., M. & G. 899, reversing, ib. 1 Drew. 307. vice is effected in the same manner as that The serof other documents which do not require personal service; see ante, p. 455. 4 Ord. XI. 5. 5 Harding v. Tingey, 10 Jur. N. S. 873, V. C. K. CH. IX. Chambers on summons.1 In practice, the application is usually made on summons in Chambers; and, as a general rule, the plaintiff will have to pay the costs. If the application is made Further time before the time has expired, it should be that the time extended. may be In like manner, interrogatories cannot, without a special order, be delivered after the time limited for so doing has expired; but leave to deliver them after the time has elapsed, or for further time so to do where it has not, may in a proper case be obtained on summons at Chambers.* to file. Leave, or further time, to deliver. Order. The notice of motion or summons must be served on the defend- Service of ants whom it is intended to interrogate, and who have appeared. notice of application. The order, if made on motion, is drawn up by the Registrar; if made on summons, it is drawn up in Chambers; and where it extends the time to file, or gives leave to file interrogatories, it must be produced to the Record and Writ Clerk, at the time the interrogatories are presented for filing." diction: ries; Where, the defendant is out of the jurisdiction, the Court, upon Defendant application, supported by such evidence as shall satisfy the Court out of jurisin what place or country such defendant is, or may probably be found, may order that a copy of the interrogatories may be served leave to serve on such defendant in such place or country, or within such limits, interrogatoas the Court shall think fit to direct: and such order must limit a time within which the defendant is to plead, answer, or demur, or obtain from the Court further time to make his defence to the bill. The application is made by ex parte motion or summons, how obtained. supported by affidavit. The copies of the bill and interrogatories may be served together; and therefore, one application embracing both objects is ordinarily made. service. If the interrogatories cannot be served on a defendant, within Substituted the jurisdiction, in the ordinary way, an ex parte application for leave to substitute service may be made by motion, supported by affidavit, as in the case of an application to substitute service of a copy of the bill.10 Where the plaintiff in an original suit had neglected to file his Suits and interrogatories within the time limited, the plaintiff in a cross-suit, 1 Ord. XI. 3; see for applications of this sort, Empson v. Bowley, 2 S. & G. Ap. 3; Denis v. Rochussen, 4 Jur. N. S. 298, V. C. W.; Dakins v. Garratt, ib. 579, V. C. K. As to filing separate sets, see post, p. 485. 2 Braithwaite's Pr. 36. 3 Dakins v. Garrat, 4 Jur. N. S. 579, V. C. K. For forms of notice of motion and summons, see Vol. III. 4 Ord. XXXVII. 17; see Garwood v. Curteis, 10 Jur. N. S. 199; 12 W. R. 509, V. C. W.; Bignold v. Cobbold, 11 Jur. N. cross suit. CH. IX. General nature and form. May be filed to written bill. How written; by being the first to file interrogatories, was held entitled to have his bill answered first.1 The interrogatories are settled and signed by counsel; 2 and are required to be divided into paragraphs, and numbered in the form given in the General Orders, and the interrogatories which each defendant is required to answer must be specified in a note at the end. Where a written bill is allowed to be filed, on an undertaking that a printed bill shall be afterwards filed, interrogatories may be filed before the filing of the printed bill.5 Interrogatories are filed at the Record and Writ Clerks' Office;" and they must be written on paper of the same description and and intituled. size as that on which bills are printed; and be intituled in the cause, so as to be in strict agreement with the names of the parties as they appear in the bill, at the time the interrogatories are filed.s Copies for service: Should only include those the particular defendant has to answer. Service of one copy on each solicitor sufficient. Indorsement. 10 The copies for service are prepared by the plaintiff's solicitor, but must be examined with the original, and the number of folios counted, by the Clerks of Records and Writs: who, if the copies are duly stamped and properly written, will mark them as office copies." The copy for service on any defendant should only contain the interrogatories which such defendant is required to answer." If the copies are intended to be served before appearance, a copy must be served on each defendant, in like manner as the copy of the bill is required to be served; but if served after appearance, it is sufficient to serve one copy on each solicitor by whom an appearance has been entered, notwithstanding he may have appeared for more than one defendant.12 The interrogatories to be filed, and each copy for service, must be indorsed with the name and place of business of the plaintiff's solicitor, and of his agent, if any; or with the name and place of 1 Garwood v. Curteis, 10 Jur. N. S. 199; 12 W. R. 509, V. C. W. 2 Interrogatories are not specified in Ord. VIII. 1, among the documents requiring counsel's signature; but the form of interrogatories in Ord. Sched. B. assumes that the name of counsel will be attached. 3 Ord. XI. 1, and Sched. B. For forms of interrogatories and foot-note, see Vol. III. 4 See 15 & 16 Vic. c. 86, § 6; ante, p. 396. 5 Lambert v. Lomas, 9 Hare Ap. 29; 18 Jur. 1008. 6 Ord. I. 35. No fee is payable for filing. Braithwaite's Pr. 35. 7 Ord. 6 March, 1660, r. 16; as to such paper, see ante, p. 396. Dates aud sums may be expressed by figures. 8 Braithwaite's Pr. 35. 9 Ord. XI. 4. The copies for service are usually written on brief paper. A fee of 58. higher scale, or 1s. lower scale, is payable, in Chancery Fee Fund stamps, on marking each office copy. Regul. to Ord. Sched. 4. The stamp is impressed on, or affixed to, such copy. A præcipe is required to be left; for form, see Vol. III. 10 Ord. XI. 4. 11 See Ord. X. 1; ante, p. 442. 12 Braithwaite's Pr. 37; but if he appears as properly concerned for one defendant, and as agent for another, two copies should be served; see ib. 308, n. Any copy sealed for delivery, may be resealed, at any time before delivery, and without further fee. residence of the plaintiff, where he acts in person; and, in either case, with the address for service, if any.1 CH. IX. ries must be founded on asked on a Under the former practice it was held, that as the object of the Interrogatointerrogatories was to compel an answer to such facts only as were material to the plaintiff's case, it was necessary that every inter- bill. rogatory should be founded upon statements made in the former part of the bill; therefore, if there was nothing in the prior part of the bill to warrant an interrogatory, the defendant was not compellable to answer it. This practice was considered necessary for the preservation of form and order in the pleadings, and particularly to keep the answer to the matters put in issue by the bill; and it is conceived that this practice still continues. But a variety of questions may be founded on a single allegation, if Many questhey are relevant to it; thus, if a bill is filed against an executor tions may be for an account of the personal estate of his testator: upon the single single allegation that he has proved the will, may be founded allegation. every inquiry which may be necessary to ascertain the amount of the estate, its value, the disposition made of it, the situation of any part remaining undisposed of, the debts of the testator, and any other circumstance leading to the account required. This rule is stated and acknowledged by Lord Eldon, in Faulder v. Stuart, where a defendant declined, by his answer, to set forth the particulars of a certain consideration, which it was alleged in the bill the defendant pretended was paid by him for the purchase of a share in a newspaper, which was the subject of the litigation. His Lordship, upon the question of the sufficiency of the answer being argued before him, said, "It all depends upon this; whether there is such a charge in the bill, as to the payment of the consideration, as entitles the plaintiff to an answer, not only whether it was paid, but as to all the circumstances, when, where, &c. I have always understood that a general charge enabled you to put all questions upon it that are material to make out whether it was paid; and it is not necessary to load the bill, by adding to the general charge, that it was not paid, that so it would appear, if the defendant would set forth when, where, &c. The old rule was, that making that substantive charge, you may, in the latter part of the bill, ask all questions that go to prove or disprove the truth of the fact so stated." 6 It is to be observed, however, that the interrogatories must, in all cases, be confined to the substantive case made by the bill, and that the plaintiff cannot extend his interrogatories in 1 Ord. III, 2, 5; ante, pp. 397, 453, 454. For form of indorsement, see Vol. III. 2 Attorney-General v. Whorwood, 1 Ves. S. 534, 538. 3 Ld. Red. 45. 4 Ibid. 5 11 Ves. 296, 301; see also Muckleston v. Brown, 6 Ves. 52, 62. 6 11 Ves. 301. Must be confined to case made by bill; CH. IX. but if answered, the matter is put in issue. Interrogatories were usually an echo of stating part, under former practice; but are now frequently more minute. such a manner as to compel a discovery of a distinct matter, not included in that case; and therefore, where a bill prayed a discovery in aid of an action at Law under the Stock Jobbing Act, as to an advance, by the plaintiff to the defendant, of a sum of money without legal consideration, which it was alleged in the bill was advanced as the premium for liberty "to put upon, deliver, or refuse stock," and in consideration of certain contracts relating to stock, which were void under that Act, and the defendant denied, by his answer, that the plaintiff did advance or pay to the defendant the sum mentioned, or any other sum, as the premium, &c. (as charged in the bill), to which answer an exception was taken, because the defendant had not negatived the receipt of the money in every way which had been suggested in the interrogatory: Lord Eldon overruled the exception, because the interrogatory pointed at a case within the fifth and eighth sections of the Act, in respect of which no bill of discovery was given by the Act, whereas the allegations in the bill related to cases within the first section of the Act, in respect of which a right to file a bill of discovery was given by the second section.2 It may be noticed here that, in The Attorney-General v. Whorwood, where interrogatories in a bill were directed to particular facts which were not charged in the preceding part, and the defendant, though not bound to answer them, did so, and the answer was replied to Lord Hardwicke held, that the informality in the manner of charging was supplied by the answer, and that the facts were properly put in issue; "for a matter may be put in issue by the answer as well as by the bill, and, if replied to, either party may examine to it." 4 Although, upon the authority of the cases above cited, it appears that a plaintiff might formerly ask all questions necessary to make out a general allegation in the bill, yet, in point of fact, it was the common practice to make the interrogating part an exact echo of the stating and charging part of the bill. Now, however, this practice is not so strictly adhered to; for modern bills, being so much more concise than bills formerly were, it is often necessary or desirable, in the interrogatories, to inquire after particulars included in a general allegation in the bill. And it would seem that, to some extent at least, the old rule requiring an allegation in the bill, as a foundation of the interrogatories, has been relaxed: for it has been held, that a defendant may be interrogated as to may be inter- books and papers, in his possession, relating to the matters in Defendant rogated as to 17 Geo. II. c. 8, repealed by 23 & 24 Vic. c. 28. 2 Bullock v. Richardson, 11 Ves. 373, 8 1 Ves. S. 534. |