1850. XXXI. Production of papers, by either party.

course.

May be en

An important part of the evidence of either party is often taken from documents in the possession of the opposite party, and, to compel the production of such papers, there are the following rules :

Either the plaintiff or defendant may at any time after answer obtain an Order of course, requiring the adverse party to produce, within a time to be limited by the order, all deeds, papers, writings and documents in his custody or power, relating to the matters in question in the cause under oath, and deposit the same with the Registrar of the On motion of Court for the usual purposes. Provided always, that neither the plaintiff nor the defendant shall be bound in pursuance of such order to produce any deeds, papers, writings, or documents, which a defendant now admitting the same by his answer to be in his custody or power would not be bound to produce. Any party objecting to the production of deeds, papers, writings, or documents, in his custody or power, shall, in the affidavit to be made upon such occasion, assign the reason for his declining or refusing to produce the same; and, in case the party obtaining such order shall have reason to think that the exigency of the same has not been fully complied with, he may apply to the Court, upon notice, for an order to compel the production and deposit of such deeds, papers, writings, or documents as he may have reason to think should be produced, and may support such applications by the pleadings, or by affidavit, or both, as he may be advised; and thereupon the Court may make such order as may seem just.

forced by

order, on motion after

notice.

What docu

ments to be produced.

Under this Order, it will often be important to consider what documents a party was, under the former practice, compellable to produce. The cases on the subject are very numerous. The Defendant can, it seems, under this Order compel the production of the documents stated in the bill as those on which the Plaintiff relies, and which are stated to be in his own possession, see Bate vs. Bate, 7 Beaven, 528; and Taylor vs. Henning, 4 Beaven, 235. These cases show, that without any such order as this, the Court would still, in some cases take means to give the defendant the inspection of documents clearly material. And it is apprehended, that now the Plaintiff would be compelled to produce any such documents as the Defendant is compellable to produce. Among the cases tending to show

what documents the Defendant is compellable to produce, are the following:-Attorney General vs. Berry, 2 Collyer, 33; 9 Jurist, 224; Brown vs. Perkins, 2 Hare 540; 8 Jurist, 186; Atkins vs. Wright, 14 Vesey, 211; Sweet vs. Hunter, 9 Jurist, 807; Combe vs. Corporation of London, 10 Jurist, 57; Harris vs. Harris, 4 Hare, 179; Bannatyne vs. Leader, 10 Simons, 230; Edwards vs.Jones, 1 Phillips, 501; Smith vs. Duke of Beaufort, 1 Phillips, 209; Marquis of Bute vs. Glamorganshire Canal Company, 1 Phillips, 681; Smith vs. Dowling, 10 Jurist, 63; Flight vs. Robinson, 8 Beaven, 22; Steele vs. Stewart, 1 Phillips, 471; Woods vs. Woods, 4 Hare, 83; Holmes vs. Baddley, 1 Phillips, 476; Belshaw vs. Perceval, 10 Jurist, 772; Wroughton vs. Barclay, 11 Jurist, 274; Johnston vs. Tucker, 11 Jurist, 382; Price vs. Gordon, 7 Jurist, 1076; Grane vs. Cooper, 4 Mylne and Craig 263; Gerard vs. Penswick, 1 Swanston, 533. In many of these cases, the right is shown to be restricted to the admissions in the answer; but it is clear that such a limitation cannot now hold, because the answer is not now a discovery, and the Defendant may omit to name as many papers as he pleases, and the above Order permits the motion to be supported by affidavit, whereas before, the answer could not be added to by affidavit. It seems then, that now each party can be compelled to produce all papers of such character as a Defendant, admitting them to be in his possession, could formerly have been compelled to produce. In effect, all that are relevant to the issue, and as to which there is no protection on any special ground, such as that of confidential communication between Solicitor and Client.

The Order of course may be obtained upon petition or motion without notice, and the petition should specify the number of days within which the papers are to be deposited.

It may frequently happen that a Plaintiff or Defendant, when under examination, speaks of documents which were not previously known to the opposite party, and the produc

LVI.

ation.

tion of such documents can be compelled, under the following Order:

Any party to the record under examination, admitting Production of that he has in his custody or power any deeds, papers documents writings or documents relating to the matters in question named by in the cause, shall be liable, upon the order of the Court, party, when under examin- or of an examiner or commissioner before whom he shall be examined, to produce the same for the inspection of the party examining him, for which purpose a reasonable time shall be allowed: provided always, that either party may appeal from the order of such examiner or commissioner, whereupon such examiner or commissioner shall certify under his hand the question raised, and the order thereupon, and the costs of such appeal shall be in the discretion of the Court. Provided also, that no party shall be obliged to produce any deeds, papers, writings or documents which he would have been obliged to produce heretofore.

The rules under which Plaintiffs and Defendants may be examined are as follow:

Any party to a suit may be examined as a witness by the party adverse in point of interest, or by any one of several parties adverse in point of interest, without any special order for that purpose: and may be compelled to attend and testify in the same manner upon the same terms, and subject to the same rules of examination as any other witness, except as hereinafter provided. And any person, for whose immediate benefit a suit is prosecuted or defended, though not a party to the record, may be regarded as a party for the purpose of this order. Provided always,. that, where it shall appear upon the hearing that any party examined under this order is united in interest with the examining party, the evidence so taken shall not be used on behalf of either the examining party, or of the examinant, but may be struck out on the hearing at the instance of any party affected thereby."

and

Co-plaintiff Co-defendant may be exam

Any party defendant may be examined, as heretofore, upon order for that purpose, on behalf of either the plaintiff or a co-defendant, upon points as to which the party so to be examined is not interested. And any party plaintiff may, under the same circumstances, be examined points on which by a co-plaintiff or by a defendant. Provided, that,

where any person having an interest shall have been examined under this order, such evidence shall not be used on behalf of either the examining party or of the party so examined, but may be struck out upon the hearing, at the instance of any party affected thereby; but such examination shall not preclude the Court from making a decree either for or against the party examined.

ined on

he is disinter

ested.