scarce be looked upon as of authority. The Code has failed to draw a distinction between proceedings of a legal and equitable nature, and between examinations for the purpose of preliminary discovery, and those intended as part of the preparations for actual trial; and instituted, with a view to the examination of the party being read on that occasion, instead of his evidence being taken, vivâ voce. If this distinction be drawn, the above cases appear, in all main points, to be reconcilable, notwithstanding their apparent discrepancy. In examinations of the latter nature, the party is, under sec. 395, at liberty to testify on his own behalf, " on any matter pertinent to the issue," and this can hardly be the case before issue is joined, a point strongly insisted on in Chichester v. Livingston. On the other hand, in proceedings taken in lieu of a bill of discovery under the old practice, a denial of the examination until after issue joined, would amount to a practical denial of any remedy in the premises, a result which could hardly be contemplated, and might even be held to be unconstitutional. In Chichester v. Livingston, the powers of the court to grant relief of this nature on a special application are not denied, but, on the contrary, virtually admitted; and the due exercise of that power will practically obviate the inconvenience which might otherwise be experienced.

In Taggard v. Gardner, 2 Sandf. S. C. R. 669, 2 C. R. 82, it was held, that all that is necessary, in order to obtain an examination of the opposite party, under sec. 391, is to give such party a notice of at least five days, and that "the only case in which an order for the examination is necessary, is where the party seeking it wishes it to be had on a shorter notice than five days."

In cases where no material opposition is expected, this course may probably be sufficient. The notice must distinctly specify the time and place of examination, and must be duly served. It must also be served upon "any other adverse party," or the proceeding will be irregular. Where opposition is anticipated, the more prudent course will, however, be to obtain and serve an ex parte order to the same effect. This mode of proceeding appears to be that in general use, and was adopted in the majority of the cases above cited, whilst it presents many independent advantages, particularly with reference to ulterior proceedings, should the party neglect or refuse to attend.

If an order of this description be obtained, it should point out

the consequences of a non-attendance, or a second order, involving those consequences, cannot be obtained on a default taken under it.-Anderson v. Johnson, 1 Sandf. S. C. R. 713; 1 C. R. 95. See form of order in Appendix. The same form may also be adopted as a model for the notice to be given as above.

In Anderson v. Johnson, above cited, it was held that a defendant might be examined within a district not his actual residence, but in which the order, and all other papers in the cause, had been served upon him.

The provisions for compelling the attendance of a party so summoned, are contained in section 392, and run as follows:

§ 392. The party to be examined, as in the last section provided, may be compelled to attend, in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial.

In Taggard v. Gardner, above cited, it was held, that a party examined under these provisions, should, in addition to the notice, be served with a subpoena, in the usual manner; and, in Anderson v. Johnson, it was likewise held, that a defendant, under such circumstances, "should be treated as a witness, and must be paid his fees, before he could be required to attend." The effect of a refusal to attend and testify, when duly required, is thus provided for by sec. 394:

§ 394. If a party refuse to attend and testify, as in the last four sections provided, he may be punished as for a contempt, and his complaint, answer, or reply, may be stricken out.

In order to ground the taking of an order to the effect of the last portion of this section by default, the original notice, or order to show cause, should clearly point out that such an application will be made, or the order on default will be refused. "Good reasons might be shown, why, even on the disobedience of the party, some other penalty than striking out his defence should be imposed.-Anderson v. Johnson, above cited. It was also considered, in that case, that a joint defence could not be stricken out, on the ground of such a refusal on the part of one only of such parties.

It seems clear that, in such a case, the proper mode of proceeding would be to punish the party for a contempt. See,

also, Taggard v. Gardner, before cited. In Bennett v. Hughes, however, 1 C. R. 4, it was considered that the court possessed no such power, and that the applicant was confined to the remedy given by the law of 1847. This decision was under the Code of 1848, and its authority appeared doubtful, even under that measure. Under the section as it now stands, there can

be no doubt of the power of the court in this respect.

In Follet v. Weed, 3 How. 303, 1 C. R. 65, it was doubted by the court, though not expressly passed upon, whether, in proceed. ings of this nature, process in the nature of a subpoena duces tecum could be issued, and whether, upon a strict construction, the Code gave any remedy in this respect, other than an oral examination. The opinion of the court is, however, dubiously pronounced; and, even if a writ of that description should be decided not to be enforceable in such a case, the production of any documentary evidence can always be obtained, by an application for a discovery, as treated of in the previous chapter.

The legal effect of an examination taken under these provisions, appears to be precisely that of an answer in Chancery, under the old practice. It is conclusive upon the party examining, unless and until it is disproved.-Sheldon v. Weeks, 7 L. 0. 57.

By sec. 393, it is, however, expressly provided that

§ 393. The examination of the party, thus taken, may be rebutted by adverse testimony.

In Armstrong v. Clark, 2 C. R. 143, the court held, that, after calling the defendant as a witness on the trial, the plaintiff might call other witnesses to rebut his testimony, if he think proper, the decision being based upon the foregoing section.

The following provisions are made by sec. 395, respecting the conduct of the examination, and the rights of the adverse parties to testify, each in his own behalf, under certain circum

stances:

§ 395. A party examined by an adverse party, as in this chapter provided, may be examined on his own behalf, in respect to any matter pertinent to the issue. But if he testify to any new matter, not responsive to the inquiries put to him by the adverse party, or necessary to explain or qualify his answers thereto, or discharge when his answers would charge himself, such adverse party may offer himself as a witness on his own behalf, in respect to such new matter, and shall be so received.

In Myers v. McCarthy, 2 Sandf. S. C. R. 399, it was held that where a plaintiff, so examined, testifies to new matter in answer to a question put to him by the court, the defendant is equally entitled to tender his own evidence in respect to such new matter. The following provision is made by sec. 396, as regards parties interested in the action:

§ 396. A person for whose immediate benefit the action is prosecuted or defended, though not a party to the action, may be examined as a witness, in the same manner, and subject to the same rules of examination, as if he were named as a party.

A party may also be examined on behalf of his co-plaintiff or co-defendant, under certain restrictions, under sec. 397 as cited in the next chapter.

It was held under the Code of 1848, that co-defendants could not be examined by each other without a special order, as provided by No. 63 of the late Supreme Court Rules, in Equity.— Roberts v. Thompson, 1 C. R. 113; Taylor v. Mairs, 1 C. R. 123.

Under the present provisions, there seems to be no distinction to be drawn between this case and that of a party adversely examined, as regards the form of the proceedings. It might, however, be the more prudent course to obtain an order in all cases, as before noticed. The provisions for enforcing the attendance of such parties, were not in the measure of 1849, but were inserted on the amendment of 1851.

The examination of an assignor of a chose in action, is also specially provided for by sec. 399, as cited in the next chapter. This provision is, however, more peculiarly applicable to an examination upon the actual trial.

CHAPTER VIII.

OF THE RULES OF EVIDENCE, AS AFFECTED BY THE CODE

To enter into any examination of the law of evidence in general, would clearly be beyond the scope of the present work. The following observations will, therefore, be simply and solely confined to the provisions made by the Code upon that subject,

and to the decisions bearing upon those provisions, without any attempt at its more extended consideration.

The provisions of the Code, in these respects, are as follows: By sec. 397, it is provided as under, in relation to the examination of co-plaintiffs or co-defendants.

§ 397. A party may be examined on behalf of his co-plaintiff, or of a co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment can be rendered. And he may be compelled to attend in the same manner as at the instance of an adverse party, but the examination thus taken shall not be used in the behalf of the party examined. And whenever, in the cases mentioned in sections three hundred and ninety and three hundred and ninety-one, one of the several plaintiffs or defendants, who are joint contractors, or are united in interest, is examined by the adverse party, the other of such plaintiffs or defendants may offer himself as a witness to the same cause of action or defence, and shall be so received.

The following provisions are made by secs. 398 and 399, in relation to witnesses in general:

§ 398. No person offered as a witness, shall be excluded by reason of his interest in the event of the action.

§399. The last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended. When an assignor of a thing in action or contract is examined as a witness, on behalf of any person deriving title through or from him, the adverse party may offer himself as a witness to the same matter in his own behalf, and shall be so received. But such assignor shall not be admitted to be examined in behalf of any person deriving title through or from him against an assignee or an executor or administrator, unless the other party to such contract or thing in action, whom the defendant or plaintiff represents, is living, and his testimony can be procured for such examination, nor unless at least ten days' notice of such intended examination of the assignor, specifying the points upon which he is intended to be examined, shall be given in writing to the adverse party.

An analagous reform to the above has already been accomplished in England, by the Act 6 and 7 Vict. c. 85, from which measure the two last sections, as they stood before the last amendments, were taken almost verbatim. A collection of English decisions upon the subject, will be found at 1 C. R. 55.