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When the order will be granted. a. The granting the order in all cases is in the discretion of the court (Keeler v. Dusenbury, 1 Duer, 660; Follett v. Weed, 1 Code Rep. 65), and is never a matter of course (Hooker v. Matthews, 3 Pr, R., 329 ; 1 Code Rep., 108; Roome v. Webb, 3 Pr. R., 327), and the order will never be granted where it appears that the party making the application is chargeable with gross negligence or bad faith. Ib.

6. The order is never to be granted to produce papers, &c., other than those which relate to the merits. Keeler v. Dusenbury, 1 Duer, 661.

c. When the motion is made pending a trial before a referee, the certificate of the referee that the production of the papers, &c., is necessary, will be considered by the court as presumptively sufficient io warrant the making the order. Frazer v. Phelps, 1 Code Rep. N. S., 214; 3 Sand., 741.

d. Where an instrument, i. e. an undertaking, in the possession of the plaintiff, is set out or referred to in the complaint, and the defendant is “ in doubt as to the correctness of what purports to be a copy in the complaint, he may demand from the plaintiff or his attorney an inspection of the original instrument before making answer; and if an inspection is resusedthe court would order its production." Wes. son v. Judd, 1 Abbott, 254.

e. It was not intended by the adoption of the 8th, 9th, 10th and 11th of the supreme court rules to confine the discovery of documentary evidence to the two cases mentioned in the 8th rule ; but all proceedings instituted under section 388 must be

governed bylits provisions, uncontrolled and unaffected by the rules. Exchange Bk • v. Monteith, 2 Code Rep., 148; 4 Pr. R., 280.

f. Where a discovery of a paper is sought, and it is stated on oath to have been delivered to the adverse party, to excuse himself from discovering it he must swear positively that it is not in his possession or under bis control, or must state facts which, with his denial on his knowledge, information, and belief, are equivalent to a positive negation on oath. Southart v. Dwight, 2 Sand., 672; 2 Code Rep., 83.

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Order for further discovery. g. Where an order was made under this section for the defendants to furnish sworn copies of all entries, &c., as to certain Indiana bonds, &c., the defendants surnished certain papers; and asterwards the plaintiff moved for a more full and perfect discovery ; and on the hearing of that motion, an order was made referring it to a referee to ascertain and report whether the defendants had made as full à discovery as circumstances permitted, and that the referee might examine defendant's books, &c. From this order the defendants appealed, and the order was set aside, the general term holding that if the return was deemed insufficient, a further return, and not a reference, should have been ordered. Hoyt v. American Er. Bank, S Pr. R., 89.

Motion, how made. h. The motion to compel the production and discovery of books, &c., is to be made " in the manner provided by law” (Supreme Court Rule 8), and the manner provided is by petition. Dole v. Fellows, 1 Code Rep. N. S., 146; 5 Pr. R., 451; Follett v. Weed, 1 Code Rep., 65; Supreme Court Rule 9.

i. When the application is made to enable the plaintiff to prepare his complaint, strong affidavits,' showing the necessity of the discovery, will be required. Keeler v. Dusenbury, 1 Duer, 661.

j. Where the application was to enable the defendant to answer, and no fact was stated showing how the discovery was necessary, but the petition merely stated that with the aid of the discovery the defendant expected to be able to prove that the note, the cause of action, had been paid ; held, the petition was defective in not stating the facts the defendant expected to prove. Gelston v. Marshall, 6 Pr. R, 398 ; Stanton v. Del. Mut. Ins. Co., 2 Sand., 662 ; 2 Code Rep., 83.

k. The application may be so framed as to embrace a discovery under the code, and the production of papers under the rules. Snell v. Clarke, 7 Pr. R., 158.

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a. It is not necessary that the facts should be made to appear by the oath of the party. They may be shown by the oath of any other person. (Exchange Bk. v. Monteith, 2 Code Rep., 148; 4 Pr. R., 280.) It is not necessary for the moving party to swear that the books, &c., are not in his possession or under his control. It is enough for him to show that they are in the possession of the adverse party. 16.

Costs on motion for Inspection. 8. When the right to the production and inspection is clear, and the request un. reasonably refused, costs may be given to the moving party, where the motion is made in court; but a judge at chambers cannot grant costs of the motion, Brevoort v. Warner, 8 Pr. R., 327.

Costs of Inspection. c. In England the cost of inspection must be paid by the party seeking it. Hill v. Philip (7 Exch., 232). This is reasonable, unless the labor or expenso is trifling, and in Brevoort v. Warner, 8 Pr. R., 321-7, the order was that the party asking for copies should pay for them, unless the other party preferred allowing him to take copies without charge.

Order for Inspection, how enforced. d. An attachment will not be allowed against a defendant who neglects to de. posit a paper in pursuance of a rule of court, granted on the application of a plaintiff to obtain a discovery. Birdsall v. Pixley, 4 Wend., 196. The power of the court is limited to nonsuiting a plaintiff, or striking out a plea (answer). 16.; Gould v. NcCarty, 1 Kernan, 575; see Supreme Court Rules 8, 9, 10, 11, and section 389.

CHAPTER VI.

Examination of parties.*

Section 389. Actions for discovery abolished.

390. A party may examine his adversary as a witness, on the trial.
391. Such examination also allowed before trial. Proceedings therefor.
392. Party, how compelled to attend.
393. Testimony of party may be rebutted.
394. Effect of a refusal to testify.
395. Testimony by a party not responsive to the inquiries, may be rebutted

by the oath of the party calling him.
396. Persons for whom action is brought or defended may be examined.
397. Examination of a co-plaintiff or co-defendant.

$ 389. [343.] Action for discovery abolished. No action to obtain discovery under oath, in aid of the

e. If a person is allowed by a statute to be a witness who was inadmissible at common law, he becomes at once affected by all the rules and principles which appertain to that character. If the statute removes one disability, all others remain in full force and application. Ketchum v. Tyson, 3 Murphy, Law and Eq. 314.

f. The law which renders the parties to a suit competent and compellable to give.

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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.

a. Sections 389 to 394, inclusive, correspond with sections 343 to 348 in the code of 1848; and those sections, it was suggested, enabled a party to obtain a discovery of books and papers by a subpæna duces tecum, and by implication superseded the statute and rules relating to the discovery of books, &c.; but, per Sill, J., “ This part of the code is in derogation of common-law rights, and it is made a question whether, upon a strict construction, it gives any remedy other than an oral examination. No other is expressly given, but I do not feel called upon to decide the point. It is suggested that this section takes away the power to order sworn copies of papers to be delivered, on the ground that that is a discovery under oath. This section abolishes actions to obtain discovery. The proceeding to obtain a discovery of books, &c., is not an action. This restriction does not apply." Follet v. Weed, 1 Code Rep. 65.

6. This section does not apply to prevent an examination of a debtor in a proceeding supplementary to an execution. Dunham v. Nicholson, 2 Sand., 636; and see Quick v. Keeler, ib., 231.

c. The rules and practice of the courts on the subject of accounting, existing at the time of the adoption of the code, are still in force ; accordingly, where an order of reference directed the account of the defendant, an agent, to be taken in the “ usual manner," it was held, that he was bound to bring before the referee a sworn account, including both debts and credits, in the manner prescribed in the 107th rule of the late court of chancery, and to submit to such examination as was allowed by that rule. Wiggins v. Gans, 4 Sand., 646.

d. Per Mason, J., "The defendant contends that, according to the code, a discovery can be obtained from a party to a suit only by examining him as a witness, and that this provision is general, and applies as well to the rendering of an account as to the discovery of any other facts. I do not so understand it. The examination author. ized by section 389 appears to be in terms a substitute for bills of discovery, properly so called, and for nothing else. The words, any examination' must, on every fair principle of interpretation, mean any examination for the purposes of discovery, in cases in which formerly a bill of discovery would have been resorted to. In other words, wherever a bill of discovery could have been filed under the former practice in the support or defence of an action, there the party may be examined in the mode prescribed in this chapter, and in no other mode. Now, a bill to account and a bill for discovery in aid of another action, are as different in their character and objects as assumpsit is different from replevin; and the provisions designed for the one should not be applied to the other, unless such was the manifest intention of the legislature. The subsequent sections of the same chapter in the code confirm the view I have taken." 16.

e. The examination of a party as a witness cannot be had under the provisions of the revised statutes to perpetuate testimony. Keeler v. Dusenbury, 1 Duer., 660.

$ 390. [344.] Existing suits. A party may examine his adversary as a witness on the trial.

A party to an action may be examined as a witness, at the

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evidence, has not altered the rule of law which requires the execution of attested instruments to be proved by the subscribing witness. Whyman v. Gath, 17 Jur. 559 ; 22 Law J. Rep. (N. S.), Ex. 316; 19 E. L. and E. R., 359; and see Storyr. Lovett, 1 Smith, 153.

f. It is the intention of the code, in authorizing parties to be examined as witnesses to conser upon the courts a wide discretion as to the credit to be given to their testimony. 15 Barb., 449.

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.

a. In Partin v. Thackstone (2 Code Rep., 66), in the superior court, the plaintiffs after issue joined, obtained an order for the defendants, residing in the city of New York, to attend and be examined before the trial. The defendants attended and objected that this section did not warrant the plaintiff's proceeding,—that this section only authorized the examination of the party to the action before the trial upou commission when he resided out of the State, or conditionally upon the grounds prescribed in the revised statutes for taking testimony conditionally ; but Sandford, J., after advising with his associate justices, directed the defendants to submit to examination, and said, “ It is difficult to give any satisfactory operation to the word "conditionally' in this section. It clearly does not mean that the party cannot be examined on the trial, when residing here, in no other cases than those in which a witness can be examined conditionally under the revised statutes, because the 391st section is positive and express that the examination may be had before the trial, at the option of the party claiming it. Moreover, an examination at the trial does not seem to be contemplated after such an examination as that now ordered. This proceeding is expressly, instead of being had on the trial, and the examination may be read by either party on the trial (section 392). The examination before the trial is designed to aid parties in preparing for trial, irrespective of the residence of the party sought to be examined, or the probability of his being able to attend the trial.” Ib.; and see Anderson v. Johnson, i Code Rep., 95; Miller v. Mather, 2 ib., 101.

b. But in Balbiani v. Grasheim, 2 Code Rep., 75, Campbell, J., intimated an opinion that a party to the suit residing in the city of New York, could only be examined as a witness before the trial in the cases prescribed for a conditional examina. tion by the revised statutes; and the same was held by Hurlbut, J., in Bennett v. Hughes, 1 Code Rep., 4.

c. In a suit brought against two defendants to recover money advanced by plaintiffs to one defendant (Davenne), to make purchases in the joint account of both defendants, the defence was that Davenne's purchase was not on the joint account. On the trial, the testimony of Davenno, taken on commission, was received, after objection by the other defendant, as evidence for the plaintiff; and on motiou for a new trial, the court, Oakley, Ch. J., and Sandford, J., said, “ As to the compeiency of Davenne, the plaintiff by the code was entitled to examine him as a witness against his co.defendant (section 390, 397). Neither is he a person for whose immediate benefit the suit was prosecuted, within the meaning of section 399, if he had not been a party to the suit." Charleston Bank v. Emeric, 2 Sand. 718.

d. A defendant cannot be examined as a witness in his own behalf. Doughty v. Busteed, 3 Code Rep., 187. But in actions for separation or limited divorce the plaintiff may be examined in certain cases. See Rule 66 of the Supreme Court Rules.

e. This section is identical with section 344 of the code of 1848, and that section was held not to apply to an examination of one co.defendant by another; but then the code of 1848 contained no provision analogous to that in section 397 of this code. Roberts v. Thompson, 3 Pr. R., 321.

f. A party to the action cannot be compelled by service of a subpæna duces tecum issued ex parte without any order of a court or a judge, to produce his books and papers on the trial. Trotter v. Lansing, 7 Pr. R., 261 ; but in a subsequent case, Bonesteel v. Lynde, 8 Pr. R., 226, Welles, J., held that by the true construction of section 390 of the code, a party to an action may at the instance of the adverse party, be compelled by the process of subpæna duces tecum, not only to appear at the trial and submit to a personal examination, but to produce papers and books in his possession, precisely as any other witness may be so compelled. And a witness, when properly subpænaed, is as much bound to produce books and papers

in his possession as evidence, as to testify orally, and his neglect of either is a con. tempt of court. And this case was affirmed on appeal at the general term, 8 Pr. R., 352.

a. In an action for a divorce for adultery, the defendant cannot be examined as a witness for the plaiotiff. Arborgast v. Arborgast, 8 Pr. R., 297.

b. A party to the suit who is made a witness by statute is to become such under the same requisitions and restrictions as any other witness. He must be of sane mind, of sound memory, of suilable age, willing to be sworn, and capable of taking an oath. Arnold v. Arnold, 13 Vermont R., 370.

c. Laws of 1847, ch 462, p. 630, provided for the examination of parties in civil suits; and section 5 enacted, “If a party in any suit shall be called and sworn by the opposiug party as a witness, such party shall be entitled to be sworn as a witness in the cause in any new or second trial of the cause, or upon any appeal in such cause; but in case such party shall testify on such second or other trial without being called by the opposing party first callıog bim, such opposing party shall also be entitled to be sworn and testify on such second or other trial.”

d. The examination as a witness of a party named as a defendant, but not served with process, will not authorize the examination of a plaintiff as a witness on behalf of himself and his co-plaintiffs. Robinson v. Frost, 14 Barb. S.C. R., 536. This was held in a case in which two persons (Frost and Rider) were named as defendants, but Frost only was served with process. On the trial, Rider was called as a witness, and testified on behalf of Frost. One of the plaio tiffs then offered himself as a witness on behalf of himself and his co-plaintiffs; and it was held that he could not testify, because the party not served with process was not in fact a party to the action, and this section did not, therefore, apply. Ib.

$ 391. [345.] (Amended 1849.) Existing suits. Such examination also allowed before trial. Proceedings therefor.

The examination, instead of being had at the trial, as provided in the last section, may be had at any time before the trial, at the option of the party claiming it, before a judge of the court, or a county judge, on a previous notice to the party to be examined, and any other adverse party, of at least five days, unless, for good cause shown, the judge order otherwise. But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance.

e. In Taggard v. Gardner, 2 Code Rep., 82, the question was raised whether one party to a suit could under this section examine the adverse party as a witness before the trial, without an order of the court or a judge for that purpose first obtained. And it was decided that he could, as all that is necessary for one party to obtain the examination of an adverse party is, to give such adverse party a previous notice to attend and be examined, of at least five days, and that the only case in which an order for the examination is necessary, is where the party seeking the examination wishes it to be had on a shorter notice than five days. On one party to a suit being served by his adversary with a previous notice of five days to attend and be examined, and on being served with a subpæna to testify, and on being paid the usual fee payable to a witness subpænaed to attend a trial, it is his duty to attend and submit to be examined; and on his making default in either of these particulars, he will be liable to be punished as for a contempt of court.

f. The case of Taggard v. Gardner, supra, was decided in the superior court by Sandford, J., with the concurence of Oakley, Ch. J., and Vanderpoel, J., but in

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