representation, Blight v. Goodcliffe, 18 C. B. N. S. 757; where a question of fraud arises, Goodman v. Holroyd, 15 C. B. N. S. 839; Bayley v. Griffiths, 31 L. J. Ex. 477; where the object of the interrogatories is to ascertain the amount of damage sustained (Wright v. Goodlake, 3 H. & C. 540; Jourdain v. Palmer, 4 H. & C. 171; Dobson v. Richardson, L. R. 3 Q. B. 778); in an action for libel or malicious prosecution, in support of a plea of privilege or justification, Stewart v. Smith, L. R. 2 C. P. 293; or to ascer tain whether the defendants' town clerk caused the defendant to be arrested and by what authority he did so (M'Fadzen v. Mayor, &c., of Liverpool L. R. 3 Ex. 279); in an action for assault, &c., to ascertain whether a third' person had acted by the defendant's directions, (O'Connell v. Barry, Ir. R. 2 C. L. 648); in an action for an infringement of a patent (Thomas v. Tillie, 17 Ir. C. L. R. 783); in an action on a policy of assurance (Zarifi v. Thornton, 26 L. J. Ex. 214). Where, to a declaration on a policy of life insurance, the defendant pleaded that the proposal, the basis of the policy, declared the life insured had not any symptoms of certain enumerated diseases, or any other complaint, whereas he had symptoms of disease of the stomach, the Court ordered particulars to be delivered of the symptoms alleged (Marshall v. Emperor Life Assurance Co., L. R. 1 Q. B. 35); and see as to the power of the Court to enforce the delivery of particulars, ante, pp. 42-44. Particulars of a plea of justification to an action of libel, were ordered to be given in (Jones v. Bewicke, L. R. 5 C. P. 32).

As regards documents in the possession of the party interrogated, he can- Documents. not, under this section, be compelled to state their contents, and in such cases the course to be adopted is to apply for an inspection under sect. 55 (Scott v. Zygomala, 4 El. & Bl. 483); Herschfield v. Clark, 11 Ex. 712); and see as to interrogatories in reference to the possession of documents by the party interrogated, Adams v. Lloyd, 3 H. & N. 351; Moor v. Roberts, 2 C. B. N. S. 671; Rew v. Hutchins, 10 C. B. N. S. 829; Levy v. M'Swiney, 2 Ir. Jur. N. S. 380; Lambert v. Peyton, id. 459. Interrogatories may, it appears, be allowed as to such possession, provided the documents relate to the case of the interrogating party, but if the party interrogated states that they relate exclusively to his own case, he will not be compelled to give a description of them (Adams v. Lloyd, ubi supra).

Interrogatories may be delivered in an interpleader issue (White v. Watts, Interpleader. 12 C. B. N. S. 267). As before mentioned, they may also be delivered in an action of ejectment upon the title, the general rule being that the defendant Ejectment. may interrogate the plaintiff, but not vice versa (Flitcroft v. Fletcher, 1I Ex. 543; Horton v. Bott, 2 H. & N. 249). An application on behalf of the defendant for leave to interrrogate must, however, be supported by a special affidavit showing that he is ignorant of the nature of the plaintiff's claim (Stoate v. Rew, 14 C. B. N. S. 209). In Chester v. Wortley, 17 C. B. 410 (an ejectment for breach of condition), the plaintiff was allowed to administer interrogatories to the defendant.

The Court has jurisdiction to order a plaintiff who is a foreigner and a resident abroad to answer (Pohl v. Young, 25 L. J. Q. B. 23). As to the consequence of his not answering, see Von Hoff v. Hoerster, 27 L. J. Ex. 299, in which case the Court refused to grant an attachment. As to the practice of the Courts in reference to the administration of interrogatories, see the note to the next section.

Where plaintiff resident abroad.

(x) Interrogatories may be administered to a public officer suing on behalf To officer of corporation. of a banking company (M'Kewan v. Rolt, 4 H. & N. 738). The director of

Affidavits by

party proposing to interrogate, and his

& 18 Vict. c. 125, s. 52.

a company may be interrogated after a compulsory order to wind up has been made (Madrid Bank v. Bailey, L. R. 2 Q. B. 37); and interrogatories were allowed against the clerk to commissioners (sued as a nominal defendant) as to acts of negligence charged against them (Mason v. Wythe, 3 F. & F. 153). (xx) Where a party is interrogated as to his knowledge, information, and belief, an answer as to knowledge and information, but not as to belief, is insufficient (Reynolds v. Bloomfield, 8 Ir. C. L. R. Ap. 14). A general answer to a particular interrogatory is insufficient (ib.).

57. The application for such order shall be made upon an affidavit of the party proposing to interrogate, and his attorney or agent, or, in the case of a body corporate, of their attorney attorney. 17 or agent, stating that the deponents or deponent believe or believes that the party proposing to interrogate, whether plaintiff or defendant, 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, if the application be made on the part of the defendant, that the discovery is not sought for the purpose of delay (y), provided that where it shall happen, from unavoidable circumstances, that the plaintiff or defendant cannot join in such affidavit, the Court or Judge may allow and order that the interrogatories may be delivered without such affidavit (z).

How leave to interrogate obtained.

When to be administered.

(y) The preceding section provides, that by order of the Court or a Judge the plaintiff may with the summons and plaint, and the defendant may with the defence, or either of them may at any other time deliver interrogatories to the opposite party or his attorney. The plaintiff should, therefore, apply for leave to administer the interrogatories before serving the plaint, but leave may be applied for at any subsequent time, and special circumstances need not necessarily be shown by reason of having delayed the application (James v. Barnes, 17 C. B. 596). In Jones v. Platt, 6 H. & N. 697 (an action for infringement of a patent), the Court refused to allow the plaintiff to administer interrogatories before declaration, but stated that possibly he might be entitled to do so after issue joined, in which case he would be at liberty to amend his particulars of breaches in accordance with the answers given. Compare with this case Morris v. Parr, 6 B. & S. 203; Croomes v. Morrison, 5 El. & Bl. 984, in which cases the application was made before declaration. The defendant on the other hand will not be allowed to deliver interrogatories before defence, except under special circumstanes, as for instance, where he makes out a case of urgent necessity (Martin v. Hemming, 10 Ex. 478). Leave may, however, be granted at that stage of the proceedings under special circumstances (M'Kenna v. Chester and Holyhead Railway Co., 8 Ir. C. L. R. Ap. 26; Sharpe v. Great S. & W. R. Co., id. 27; White v. Gahagan, 5 Ir. Jur. N. S. 173. In M'Mahon v. Ellis, 7 Ir. Jur. N. S. 321, the application was made after the argument of a demurrer. In Thompson v. Wynne, Ir. R. 1 C. L. 600, further interrogatories were allowed to be delivered in addition to a set previously furnished.

As regards the form of the application, when the plaintiff seeks to deliver interrogatories with the summons and plaint, or the defendant with the defence, the application may in general be made ex parte, and an absolute order will be made in the first instance (Lambert v. Peyton, 2 Ir. Jur. N. S. 459; Levy v. M'Swiney, id. 380). If the application is made at any other time notice must in general be served (Peck v. Nolan, 14 Ir. C. L. R. Ap. 32). In all such cases it must, however, be remembered that the service of notice is a matter for the discretion of the Court, and even when the interrogatories are sought to be administered, with the summons and plaint or defence, the Court may require notice to be served.

The application must in every case be grounded upon affidavit, which must be made by the party and his attorney, except where, for special reasons, the Court dispenses with it, infra, note (z). The affidavit must state that the deponents believe that the party proposing to interrogate will derive material benefit from the discovery sought; that there is a good cause of action or defence as the case may be; and where the application is made on behalf of the defendant, that the discovery is not sought for the purposes of delay; and an omission of any of these statements is a fatal objection (May v. Hawkins, II Ex. 210; Oxlade v. North Eastern Railway Company, 12 C. B. N. S. 350), unless the omission be waived (Whately v. Crawford, 25 L. J. Q. B. 163). Where there are several defendants, the affidavit, when made by the plaintiff, should aver that he has a good cause of action against all (Doolin v. Dixon, 16 W. R. 796).

When affi

davit must be special,

Where the application is made on the part of the plaintiff to deliver inter- Affidavit in rogatories, either with the summons and plaint or after it, or by the defen- support of. dant with the defence or after it, the ordinary form of affidavit, in accordance with the terms of the section, will in ordinary cases be sufficient (James v. Barnes, 17 C. B. 596); see, however, Naghten v. Midland Great Western Railway Company, 8 Ir. C. L.R. Ap. 55). If, however, the application be made at an earlier period, a special affidavit, stating facts showing the propriety of the proposed interrogatories, will be required (Croomes v. Morrison, 5 El. & BI. 984; Martin v. Henning, 10 Ex. 478; Beehervaise v. Great Western Railway Company, 19 W. R. 229); and there are other cases where a special affidavit may be required, as, for instance, where a defendant seeks to interrogate a plaintiff as to the nature of his title (Stoate v. Rew, 14 C. B. N. S. 209); or where the answers to the proposed interrogatories may criminate the party interrogated (Villeboisnet v. Tobin, L. R. 4 C. P. 184). In such cases the affidavit should show the necessity for and propriety of the proposed interrogatories.

When the defendant obtains leave to administer interrogatories, the order Operation of generally operates as a stay of proceedings until answer. Under special cir- order. cumstances, however, it may be made part of the order that it shall not so operate (Zarifi v. Thornton, 3 Jur. N. S. 92).

The interrogatories should be carefully framed, and if they appear to the Settling. Court or Judge to be carelessly prepared so as in reality to throw upon them or him the trouble of settling them, it may be a ground for refusing to allow them (Phillips v. Lewin, 34 L. J. Ex. 37; Robson v. Crawley, 2 H & N. 766, 767).

As a general rule the party interrogated must answer all the interrogatories administered and he cannot by a denial of the case of the other party, escape answering any interrogatories which are relevant to the case (Geary v. Buxton, 29 L. J. Ex. 280); neither can he escape answering on the ground of

Where party privileged.

Course to be adopted when party does not answer.

Oral examination of

parties when 17 15 Wet,

be allowed

c. 125, s. 53.

the interrogatories being irrelevant unless it appears upon the face of them that they have been framed for purposes of delay and are not connected with the subject matter of the action (Reynolds v. Bloomfield, 8 Ir. C. L. R. Ap. 14). If notice of the motion for leave to administer the interrogatories was not served upon the party interrogated, the proper course to adopt where the interrogatories are objectionable is to apply to have them struck out (id.). Where, however, the answer to the interrogatory has a tendency to criminate the party or to expose him to a penalty, he may decline to answer (Bartlett v. Lewis, 12 C. B. N. S. 249; M Mahon v. Ellis, 10 Ir. C. L. R. 120; The Mary, L. R. 2 Adm. 319). So also where a party who was interrogated as to whether he had in his possession any deeds or writings relating to the lands in dispute answered that he had, but that the same related exclusively to his own title, it was held that he could not be compelled to state the contents of them or to describe them (Adams v. Lloyd, 3 H. & N. 351). In such cases, and also where the party alleges that the answer would have a tendency to criminate him, the oath of the party as to the reasons for not answering is conclusive, unless under the circumstances it appears to the Judge to be perfectly certain that in claiming protection the witness is trifling with the Court (ib.).

If the party interrogated omit without just cause sufficiently to answer the interrogatories he is guilty of a contempt of Court, and may be proceeded against by attachment. See the last section. As to attaching the party see Seafield v. Pratt, 5 L. T. N. S. 674; Madrid Bank v. Bailey, L. R. 2 Q. B. 37, in which latter case the official liquidator of the company, though not a party to the action, was allowed to apply for an attachment. The party interrogating may, however, instead of applying for an attachment, apply for an oral examination under the next section (which see); and where the neglect to answer is not contumacious it may be the more advisable course of proceeding (Turk v. Syne, 27 L. J. Ex. 54; Windle v. Lane, 29 L. J. Ex. 245).

As to using the depositions of the party interrogated, see sect. 60, post, and as to the costs of the proceedings see sect. 62.

(z) Where the plaintiff was, and always had been, residing in England, and was of very advanced years, the Court, nevertheless, refused to dispense with his joining in the affidavit (Adair v. Simpson, Ir. R. 1 C. L. 577).

58. In case of omission, without just cause, to answer sufficiently such written interrogatories, the Court or a Judge may direct an oral examination of the interrogated party, as to such points as shall appear fit, before a Judge or the master; and the Court or Judge may by such rule or order, or any subsequent rule or order, command the attendance of such party or parties before the person appointed to take such examination, for the purpose of being orally examined as aforesaid, or the production of any writings or other documents to be mentioned in such rule or order, and may impose therein such terms as to such examination, and the costs of the application, and of the proceedings thereon, and otherwise, as to such Court or Judge shall seem just (a).

nation.

(a) The jurisdiction of the Court under this section will be exercised with Oral examicaution (Swift v. Nun, 26 L. J. Ex. 365); and an application under it must be promptly made (Chester v. Wortley, 18 C. B 239). Where a party has substantially answered the interrogatories, but there are defects or flaws in any of them, which render them formally insufficient, the proper course is to apply to have them amended, and an order for an oral examination will be refused (Bender v. Zimmerman, 29 L. J. Ex. 244). The application should be upon notice. As to what it should be grounded upon, see Swift v. Nun, ubi supra.

upon such

59. Such rule or order shall have the same force and effect, Proceedings and may be proceeded upon in like manner, as an order made rule or under the said herein-before mentioned Act of the third and 17 18 Vic fourth Victoria, chapter one hundred and five (b).

(b) See the Act post, in the Appendix, sects. 69-75.

order.

c. 125, s.

54.

examinna

oeturned to

office.

60. Whenever, by virtue of this Act, an examination of any Depositions witness or witnesses has been taken before a Judge of one of upon such the said superior Courts, or before the master, the deposi- tions to be tions shall be returned to and kept in the master's office of Master's the Court in which the proceedings are pending; and office 17 & 17 Vic. copies of such depositions may be given out, and the depo- c. 125, s. 55. sitions may be otherwise used, in the same manner as in the case of depositions taken under the herein-before mentioned Act of the third and fourth Victoria, chapter one hundred and five (c).

(c) See the Act post, in the Appendix, sect. 75.

An office copy of the answer to the interrogatories will as against the party making it be sufficient evidence of the answer at the trial; and the interrogatories need not be produced. Where the answer has not been in the same cause, an examined copy will be sufficient evidence (Fleet v. Perrins, L. R. 3, Q. B. 536). As to contradicting the party answering by his answers, see sect. 27, ante, and see also Carwell v. Gees, 15 L. T. N. S. 217, where it was held at Nisi Prius per Blackburn, J., that the answers could not be used for the purpose of contradicting the person to whom they were administered on his examination in Court, on the ground that such a proceeding would be an inquiry into the client's instructions to his attorney, which are privileged communications. Sed qu.

61. It shall be lawful for every Judge or master named in any such rule or order as aforesaid for taking examinations under this Act, and he is hereby required, to make, if need be, a special report to the Court in which such proceedings are pending touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto; and the Court is hereby authorized to institute such proceedings and make such order and orders upon such

Depositions

What evi

dence of.

Where not in the same

cause.

Examiner may make special report

to the Court. c. 125, s. 53.

17 & 18 Vict.