merits; and if the application be made on the part of the defendants, that the discovery is not sought for the purpose of delay. It is also provided that where it shall happen from unavoidable circumstances that the plaintiff or defendant cannot join in such affidavit, the court or judge may, if they or he think fit, upon affidavit of such circumstances, by which the party is prevented from so joining therein, allow the interrogatories to be delivered without affidavit. The affidavit must state that the party making it has a good cause of action, if a plaintiff, or a good defence, if a defendant, upon the merits; and where a plaintiff's affidavit contained no such statement, but merely that he would derive material benefit from the discovery sought, and that there was a good cause of action, the affidavit was held to be insufficient (r); and it is stated generally that the courts will refuse leave to administer interrogatories when the cause of action is doubtful, or where the facts in support of the application are uncertain (s).

A defendant cannot deliver interrogatories before plea, unless he establish a case of urgency (t); but a plaintiff may deliver them after plea without a special affidavit (u). The proper time for a plaintiff to deliver his interrogatories is with the declaration (x), and for the defendant with his plea (y). It is also to be noticed that the courts will order a foreigner, resident

(r) May v. Hawkins, 11 Ex. 210.

(s) Atter v. Willison, 7 W. R. 265.
(t) Martin v. Hemming, 10 Ex. 478.

(u) Jones v. Pratt, 6 H. & N. 497; Anon. v. Parr, 34 L. J. Q. B. 95.

(x) Jones v. Barnes, 17 C. B. N. S. 596.

(y) Martin v. Hemming, sup.

1

abroad, to answer interrogatories (z), but will not attach him for contempt, unless in a very clear case (a).

The costs of interrogatories are not necessarily costs in the cause, but are in the discretion of the judge, by whom leave is given to deliver the interrogatories; and where such an order is silent as to costs, they will not be allowed as costs in the cause (b). It follows, that in considering the expediency of delivering interrogatories, it will always be a grave question, not merely whether they are such as a judge will allow, but also such as he will allow to carry costs.

When a party omits to answer interrogatories, or to answer sufficiently, he may in the first case either be attached for contempt (c), or in both cases the interrogating party may apply to the court or a judge, for an order for the oral examination of the interrogated party before a master or a judge; and the court may order parties to attend for examination, and to produce documents, and may impose such terms as to the examination, or the costs of it, as they may think proper (d). The court will exercise great caution and regard to special circumstances in entertaining an application for an oral examination, and will not grant it where the law is doubtful, or where there is no affidavit in support of the application (e), or where the interrogatories are substantially sufficient, but there are formal defects which are shown to have

(z) Pohl v. Young, 25 L. J. Q. B. 232.

(a) Von Hoff v. Hoester, 27 L. J. Ex. 299.

(b) Smith v. Great Western Railway, 6 E. & B. 405.
(c) Turk v. Syne, 27 L. J. Ex. 54.

(d) 17 & 18 Vict. c. 125, s. 53.

(e) Swift v. Nun, 27 L. J. Ex. 365.

been unintentional (ƒ), or where there has been delay without any design of disobeying the court (g).

Under the Common Law Procedure Act, 1854, the courts are empowered, on the hearing of any motion or summons, to order documents to be produced, and witnesses to be examined vivá voce before the court or a judge or a master, and on hearing such evidence, or reading the master's report, may make such rule or order as may be just (h). A similar provision is found in the Railway and Canal Traffic Act, 1854 (i).

(f) Bender v. Zimmerman, 29 L. J. Ex. 244.

(g) Windle v. Lane, 29 L. J. Ex. 245.

(h) 17 & 18 Vict. c. 115, ss. 46, 47.

(i) 17 & 18 Vict. c. 31, s. 3.

CHAPTER VII.

ON SECONDARY EVIDENCE.-PROOF OF HANDWRITING. -ATTESTING WITNESSES. WRITINGS THAT RE

FRESH THE MEMORY.

WHEN a party has done everything in his power to bring before the court primary evidence of his case, as by searching for documents in places where it was most reasonable to expect them to be deposited, or by giving an opposite party notice to produce them, he will then, and not till then, if he be unsuccessful in his exertions, be permitted by the court to give secondary evidence of such documents.

There are no degrees in secondary evidence; and, therefore, when the absence of primary evidence is explained satisfactorily, any species of admissible secondary evidence may be substituted for the original. Thus, a lost deed may be proved, either by an attested copy or an examined copy, or by oral evidence of any one who can swear positively to the contents of the original. Accordingly, where it appeared that a party held a copy of an original, which was not produced, it was held that he was not obliged to produce the copy, but might give oral evidence of the original (a). "As soon as a party has accounted for the absence of the original document, he is at liberty to give any kind of

(a) Brown v. Woodman, 6 C. & P. 206; cf Act ii. of 1855, s. 36.

secondary evidence. The rule is, that no evidence is to be adduced which ex natura rei supposes still greater evidence behind in the party's own power and possession" (b); and, therefore, it was held in Doe v. Ross, that oral evidence of an original might be substituted for an attested copy, which was tendered but rejected for want of a stamp. It is not, however, to be supposed that oral evidence of a document, although equally admissible with an attested or examined copy, is therefore entitled to the same credibility; and it will be for a jury to place their own estimate on the value of the witness's memory.

Although either a copy or oral proof of an original will be equally admissible as secondary evidence, the copy of a copy, although compared with it, will be inadmissible, notwithstanding that the first copy is also proved to have been compared carefully with the original (c).

It will be presumed, in the absence of contrary evidence, that the original was properly stamped, if it required to be stamped (d), and an unstamped copy will be good secondary evidence; but if the original would have been inadmissible for want of a stamp, secondary evidence of it cannot be received (e).

When a copy is tendered as secondary evidence, it must be proved to be accurate by a witness who made it, or who actually read it and compared it with the original (ƒ).

(b) Per Parke, B., Doe v. Ross, 7 M. & W. 102.

(c) Liebman v. Pooley, 1 Stark. 167.

(d) Crisp v. Anderson, 1 Stark. 35, sup. p. 71.

(e) Crowther v. Solomons, 6 C. B. 658.

(ƒ) Fisher v. Samuda, 1 Camp. 193.