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under an order bearing the seal of a secretary of state, to take evidence for the purpose of any criminal matter pending in a foreign court or tribunal, whether the accused be present or not, but his presence or absence must be stated in the deposition. Due authentication is defined by sect. 15 of the act (c).

(c) See R. v. Ganz, L. R., 9 Q. B. D. 93; 51 L. J., Q. B. 419.

CHAPTER VII.

PRIVATE WRITINGS, INSPECTION, AND NOTICE TO

PRODUCE.

WHEN private writings contain a contract, or otherwise embody, or are material to the substance of, the issue, they are not only admissible, but also, when producible, indispensable evidence. In such cases a party who relies upon them must either produce them, or account satisfactorily for their non-production. Such writings are frequently in the hands of an adverse party, who will not voluntarily produce them either before or at the trial. The important practical questions then on this subject are, how can a party ascertain what documents are in his opponent's possession? how can he get these documents produced for his inspection previous to the trial? and, lastly, how can he get them produced at the trial, or put himself in a position, by reason of their non-production, to give secondary evidence of their contents?

The practice as to discovery of documents, production previous to the trial and inspection is now regulated by Order 31 of the R. S. C. 1883, the portions of which, material for the present purpose, are as follows:

Rule 12. "Any party may, without filing any

affidavit, apply to the court or a judge for an order directing any other party to any 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."

Rule 13. "The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which, if any, of the documents therein mentioned, he objects to produce, and it shall be in the Form No. 8 in Appendix B. (a), with such variations as circumstances may require."

Rule 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."

Rule 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 pro

(a) See this form in the Appendix.

duce 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 a 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."

Rule 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. (b), with such variations as circumstances may require."

Rule 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

P.

(b) See this form in the Appendix.

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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. (b), with such variations as circumstances may require.'

Rule 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."

Rule 19. "An order upon the lord of a manor to allow limited inspection of the court rolls may be made on the application of a copyhold tenant, supported by an affidavit that he has applied for inspection, and that the same has been refused."

Rule 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 judge may, if

(b) See this form in the Appendix.

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