thereof in writing, ten days before the trial, and on the trial have a verdict, the damages shall be assessed accordingly.

Sec. 576. Effect of acceptance or refusal of offer. C. C. P., s. 330.

If the plaintiff does not accept the offer, he shall prove his damages, as if it had not been made, and shall not be permitted to give it in evidence. And if the damages assessed in his favor shall not exceed the sum mentioned in the offer, the defendant shall recover his expenses incurred in consequence of any necessary preparation or defence in respect to the question of damages. Such expense shall be ascertained at the trial.

Sec. 577. In trespass upon real property, defendant may disclaim title and plead tender in bar. R. C., c. 31, s. 79. 1715, c. 2, 8. 7.

In actions of trespass upon real estate, wherein the defendant in his answer shall disclaim to make any title or claim to the lands on which the trespass is by the complaint supposed to be done, and the trespass be by negligence or involuntary, the defendant shall be permitted to make a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such tresspass; whereupon, or upon some of them the plaintiff shall join issue, and if the issue be found for the defendant, or if the plaintiff shall be nonsuited, he shall be barred from the said action and all other suits concerning the same.

Trespass in ignorance of boundary, and disclaimer.-Where a person occupying land adjoining another, and in ignorance of the true boundary, trespass upon the land of the adjacent owner, but disclaims title, and tenders reasonable amends before suit brought, he is protected by this section against any liability. Blackburn v. Bowman, 46-441.

CHAPTER FOUR.

ADMISSION OR INSPECTION OF WRITINGS.

SECTION 578. Inspection and copy of books, papers, and documents, how obtained.

Sec. 578. Inspection and copy of books, papers and documents, how obtained. R. C., c. 31, s. 82. R. S., c. 31, s. 86. 1821, c. 1095. 1828, c. 7. C. C. P, s. 331.

Either party may exhibit to the other, or to his attorney, at any time before the trial, any paper material to the action, and request an admission in writtng of its genuineness. If the adverse party, or his attorney, fail to give the admission within four days after the request, and if the party exhibiting the paper be afterwards put to expense in order to prove its genuineness, and the same be finally proved or admitted on the trial, such expense to be ascertained at the trial, shall be paid by the party refusing the admission, unless it appear to the satisfaction of the court that there were good reasons for the refusal. The court before which an action is pending, or a judge thereof, inay, in their discretion, and upon due notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of any books, papers, and documents in his possession or under his control, containing evidence relating to the merits of the action or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

Motion to nonsuit plaintiff for failure to produce books and papers. -A motion to nonsuit a plaintiff for not producing books or papers, according to the provisions of this section, cannot be made, unless a previous order of the court has been obtained for the production of such books or papers. Graham v. Hamilton, 25-381.

Affidavit not necessary.-Under the present statute (The Code, ?? 578 and 1373), no affidavit is necessary in order to get an order for the production of papers in the possession of the adverse party, but the court now has power, on motion and due notice, to require the production of papers or books which contain evidence pertinent to the issue. McDonald v. Carson, 95-377.

Due notice.-Due notice, under this section, is notice sufficient to enable the party to have the document present when called for. McDonald v. Carson, 95-377.

Admission in writing of genuineness of paper. -An admission in writing, under this section, that a letter is genuine, does not preclude comments by counsel as to the truth of its contents. Knight v. Houghtalling, 85-17.

Powers of the court.-Where, in an action of ejectment, the plaintiff's lessor claims title under a deed which is in the possession of the defendant, who claims a right to it by virtue of an endorsement upon it, the court can order the production of the deed for inspection, but cannot order its registration before the question of the defendant's alleged equitable right to it by virtue of the endorsement has been tried and decided against him. Linker v. Benson, 67-150.

The courts have power to require the production of documents and private writings containing evidence pertinent to the issue. McLeod v. Bullard, 84-515.

The court has the power, by virtue of 22578 and 1373 of The Code, to order the production of proper papers, pertinent to an issue to be tried and in the possession of the opposite party. McDonald v. Carson, 94–497.

An order to produce papers will be granted, when.-In an action upon a bond, the court, on affidavit that the bond is believed to be a forgery, may, at the appearance term, order the plaintiff to file the instrument for such time as the court may think proper in the clerk's office for the inspection of the defendant. McGibbony v. Mills, 35-163.

A petition or motion supported by affidavit will be sustained for an inspection and copy of the books of an adverse party, where it is made to appear that the party applying for the order cannot obtain the information sought otherwise than by such inspection. Justice v. Bank, 83-8. Where an administrator, as bank cashier, kept his intestate's accounts, an order to produce the books of the bank is proper. Commissioners v. Lemly, 85-341.

The production of papers containing evidence relating to the merits of an action will be ordered by the court, and, when produced, they are competent evidence for all legitimate purposes. Austin v. Secrest, 91-214.

Where the examination of the debtor shows that his books of account contain evidence material to the investigation he should be required to produce them. Coates v. Wilkes, 92–376.

Order granted before complaint filed.-A court cannot order the production of papers by the defendant on the application of the plaintiff, where no declaration has been filed. Branson v. Fentress, 35-165.

The order will be granted before the complaint has been filed, when it is averred by the applicant, and not denied by the opposing party, that such discovery is necessary to enable the plaintiff to state with accuracy the facts upon which his case is founded. Justice v. Bank, 83-8.

Answer to rule to produce papers.-Where a rule has been served on a party to produce a certain letter, an affidavit of the party that he had not seen the letter since he sent it-that he had not knowingly destroyed it-and had made diligent search and could not find it-is a sufficient answer to warrant a discharge of the rule. Fuller v. McMillan, 44-206.

Paper must be produced, or absence accounted for.-A negotiable instrument, the execution of which is admitted in the answer, must be produced on the trial or accounted for. Morrow v. Allman, 65-508.

Contents of paper proved by parol, when.-The contents of a paper-writing cannot be proved by parol, unless notice has been given to the adverse party, who has it in possession, to produce it on the trial. And this is so, notwithstanding such paper-writing is a will proven and recorded according to law, but the record of which has been destroyed by the burning of the court-house where it was deposited. Murchison v. McLeod, 47-239.

Appeal from order discharging rule to produce papers.-The supreme court will not pass upon the propriety of an order discharging a rule for the production of papers, unless the facts are stated, by the court below, upon which the application is based. An affidavit filed in the court below is not such statement, but is only evidence offered to enable that court to find the facts. Maxwell v. McDowell, 50-391.

Where party fails to avail himself of this section.—When the court found as a fact that the defendant executor for eleven years resisted payment of the debts sued on, because he doubted the genuineness of the acknowledgment or new promise, set up by the plaintiff in reply to defendant's plea of statute of limitations, as the defendant might have had an inspection of the paper containing such alleged promise, there was an unreasonable delay of payment, and the defendant was liable for costs. Long v. Oxford, 104-408.

Sec. 579. Action for discovery abolished. C. C. P., s. 332.

No action to obtain discovery under oath, in aid of the prosecution or defence of another action, shall be allowed, nor shall any examination of a party be had, on behalf of the adverse party, except in the manner prescribed by this chapter.

This

Testimony sought must be that of a person interested in the action. section authorizes only the examination of parties to the action, or of those interested in it. Strudwick v. Brodnax, 83-401.

Effect of this section. This section abolishes the action to obtain discovery under oath, and substitutes for it a remedy in harmony with The Code system by allowing a party, in support of the allegations of his complaint, or of a cross-action set up in a counterclaim, after eliciting admissions from his adversary by verifying his pleadings, to examine such adversary party, as to facts within his peculiar knowledge, both before and at the trial of the action. Helms v. Green, 105-251.

Pending removal of a cause from one county to another.-Pending the removal of a cause from one county to another, and before the deposit of the transcript, proceedings under this section can be had before the clerk of either county. Commissioners v. Lemly, 85-341.

Sec. 580. A party may be examined as a witness except in certain cases. C. C. P., s. 333. 1879, c. 183. 1883, c. 1885, c. 361, ss. 1, 2.

310, ss. 1, 2.

A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled, in the same manner and subject to the same rules of examination as any other witness, to testify, either at the trial or conditionally or upon commission: Provided, no person who is or shall be a party to an action founded on a judgment rendered before the first day of August, one thousand eight hundred and sixty-eight, or on any bond executed prior to said date, or the assignor, endorser or any person who has at the time of the trial, or ever has had, any interest in such judgment or bond, shall be a competent witness on the trial of such action, but this proviso shall not apply to the trial of any action commenced before the first day of August, one thousand eight hundred and sixty-eight, nor to the trial of any action in which the defendant therein relies upon the plea of payment in fact, or pleads a counterclaim and also introduces himself as a witness to establish the truth of such plea, but in all such cases the rules of evidence as contained in this Code shall prevail. In all actions now pending or which may be hereafter instituted upon judgments rendered before the first day of August,