produce it, secondary evidence will be received, notwithstanding the want of a notice to produce (i).

5th. Notice will not be required when the adverse party has admitted the loss of the original;

or where it is in the nature of an irremovable fixture, such as a mural inscription (k).

But this rule does not apply to a removable and portable notice or writing (1).

6th. Merchant seamen are permitted to prove orally

an agreement with the master of a ship, without producing the original, or giving notice. to produce it (m).

INDIAN PRACTICE.

The plaintiff is required to produce in court any document upon which he sues or relies as evidence when the plaint is presented, and to deliver copies thereof to be filed with the plaint. At the same time the plaintiff, if he requires the production of any written document in the possession or power of the defendant, may deliver to the court a description thereof, and the defendant will be required to produce the same. If the defendant requires the production of any document in the possession or power of the plaintiff, he must deliver to the court two notices in

(i) Dwyer v. Collins, 7 Ex. 739.

(k) Bartholomew v. Stephens, 8 C. & P. 728.

(1) Jones v. Tarleton, 9 M. & W. 675.

(m) 17 & 18 Vict. c. 104, s. 165; Bowman v. Manzelman, 2 Camp. 315.

writing to the plaintiff calling upon him to produce the same, one of which notices the court serves by its officer upon the defendant. This method of proceeding is also open to the plaintiff in respect of any document the production of which he did not ask for when the plaint was filed (n).

(n) Act viii. of 1859, ss. 39, 40, 43, 107.

CHAPTER VI.

ON INTERROGATORIES.

It is proposed in this chapter to treat of evidence taken by means of interrogatories. This branch of evidence has been imported into the superior courts of common law from the equity courts; and by means of it a party is enabled to acquire evidence, which may be necessary to enable him to prove his case in court, and which he can obtain only by extracting it from his adversary.

In courts of equity the plaintiff "may, if he requires an answer from any defendant thereto, file in the record office of the said court interrogatories for the examination of the defendant or defendants, or such of them from whom he shall require an answer, and deliver to the defendant or defendants so required to answer, or to his or their solicitor, a copy of such interrogatories, or of such of them as shall be applicable to the particular defendant or defendants; and no defendant shall be called upon or required to put in any answer to a bill unless interrogatories shall have been so filed, and a copy thereof delivered to him or his solicitor within the time so to be limited or within such further time as the court shall think fit to direct (a)."

(a) 15 & 16 Vict. c. 86, s. 12.

These interrogatories must be founded on the bill; but a variety of questions may be founded upon a single allegation therein, and it is not necessary that an interrogatory should in all cases be founded upon a distinct allegation in the bill. Formerly, if the defendant required from the plaintiff any information, it was necessary for him to file a cross bill: with a view to remedy this, it was enacted, that "it shall be lawful for any defendant in any suit, whether commenced by bill or by claim, but in suits commenced by bill which the defendant is required to answer, not until after he shall have put in a sufficient answer to the bill, and without filing any cross bill of discovery, to file in the record office of the said court interrogatories for the examination of the plaintiff, to which shall be prefixed a concise statement of the subjects on which a discovery is sought, and to deliver a copy of such interrogatories to the plaintiff or his solicitor; and such plaintiff shall be bound to answer such interrogatories in like manner as if the same had been contained in a bill of discovery filed by the defendant against him on the day when such interrogatories shall have been filed and as if the defendant to such bill of discovery had on the same day duly appeared, and the practice of the court with reference to excepting to answers for insufficiency, or for scandal, shall extend and be applicable to answers put in to such interrogatories provided that in determining the materiality or relevancy of any such answer, or of any exception thereto, the court is to have regard, in suits commenced by bill, to the statements contained in the original bill, and in the answer which may have been put in thereto by the defendant exhibiting such inter

rogatories for the examination of the plaintiff, and in suits commenced by claim, to the statements therein, and in any affidavits which may have been filed either in support thereof or opposition thereto: provided also that a defendant, if he shall think fit so to do, may exhibit a cross bill of discovery against the plaintiff instead of filing interrogatories for his examination" (b).

The subject of answers to interrogatories will be treated of in a later part of this work.

The common law practice in interrogatories is founded on the 51st section of the Common Law Procedure Act, 1854, which enacts, that "in all causes in any of the superior courts, by order of the court or a judge, the plaintiff may (with the declaration), and the defendant may (with the plea), or either of them, by leave of the court or a judge, may at any other time deliver to the opposite party, or his attorney (provided such party, if not a body corporate, would be liable to be called and examined as a witness upon such matter), interrogatories in writing upon any matter as to which discovery may be sought, and require such party (or, in the case of a body corporate, any of the officers of such body corporate) within ten days to answer the question in writing by affidavit, to be sworn and filed in the ordinary way; and any party or officer omitting without just cause sufficiently to answer all questions as to which a discovery may be sought within the above time, or such extended time as the court or judge shall allow, shall be deemed to

(b) 15 & 16 Vict. c. 86, s. 19.