provides, that, "if any party to a cause or matter be a body corporate or a joint stock company, whether incorporated or not, or any other body of persons, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation, company, or body, and an order may be made accordingly."

§ 524A. In acting under this last rule the judge should be satisfied that the member or officer sought to be interrogated is likely to be able to give discovery; but he is not bound at that stage of the proceedings to consider the propriety of the proposed interrogations. When interrogatories have been delivered to a member under this rule he cannot refuse to file his affidavit in answer until he has been paid his taxed costs.3 Neither can a town clerk, who has been put forward as a public officer to answer interrogatories on behalf of a municipal corporation, claim exemption from answer. ing on the ground of privilege as being also the solicitor to the corporation. The establishment of the above rule has been productive of much good, for it has put a stop to the costly and vexatious practice which used to prevail in equity suits of making individual members and officers of corporate bodies nominal defendants for the mere purpose of discovery. Now, if such a course were taken, the judge would strike out the name of the formal defendant, and grant him his full costs."

5

§ 524B. It must also be borne in mind, that the above rule only enables parties to interrogate opposite parties, and consequently one defendant cannot avail himself of it for the purpose of interrogating another co-defendant.'

1 See Rep. of Costa Rica v. Erlanger, L. R., 1 Ch. D. 171, per Ct. of App. 2 Berkeley v. Standard Discount Co., L. R., 9 Ch. D. 643, per Malins, V.-C; Berkeley v. Standard Discount Co., L. R., 13 Ch. D. 97, per Ct. of App.; 49 L. J., Ch. 1, S. C.; overruling S. C., L. R., 12 Ch. D. 295, per Fry, J.; and 48 L. J., Ch. 797.

+ Swansea, May. of, v. Quick, 49 L. J., C. P. 157; L. R., 5 C. P. D. 106, S C. nom. Swansea, May. of, v. Quirk.

Wilson v. Church, L. R., 9 Ch. D. 552, per Jessel, M. R.

6 Id.

Molloy v. Kilby, L. R., 15 Ch. D. 162, per Ct. of App.

§ 524c. It is almost needless to add that a guardian ad litem to a lunatic defendant is not a "party" within the meaning of the rule, and therefore cannot be compelled to answer interrogatories.'

§ 525. As the liberty granted by the first clause in Rule 1 was likely to degenerate into licence, and instead of aiding the investigation of truth, to heap up what lawyers love to call with selfish tautology "costs, charges, and expenses," a remedy for this anticipated abuse has been devised by Rule 3, which is thus expressed: -"In adjusting the costs of the cause or matter, inquiry shall, at the instance of any party, be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the court or judge, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault."

§ 526. Whether these provisions will prove effective or not remains to be seen, but he must be a sanguine reformer who can await the result of the experiment without some apprehension. The question "quis custodiet custodes ?" forces itself upon the memory, and the discretion of a taxing officer,--subject though it may be to the costly control of a judge,—will scarcely afford a very safe protection to the suitor against the danger of interrogatories being exhibited "unreasonably, vexatiously, or at improper length."

§ 527. Three more attempts to keep within due bounds the powers entrusted to suitors by Rule 1 have been embodied in other rules of the same Order. First, it is provided by Rule 25, that "in every cause or matter the costs of discovery, by interrogatories or otherwise, shall, unless otherwise ordered by the court or a judge, be secured in the first instance as provided by Rule 26"; and then, under that Rule, every party seeking discovery must, before taking

2

Ingram v. Little, L. R., 11 Q. B. D. 251. See, also, Ord. XVIII, and post, ? 1800.

2 See A. Intre Smith; Smith v. Went, 50 L. T. Rep., N. S. 382; Burr v. Hubbard, 76 L. T. 77; W. N. 1883 p. 198; and Henderson v. Ripley, 76 L. T., 388; W. N. 1884, p. 85, as to when the court will relax the Rule.

any step, pay into court to a separate account in the action a sum of at least 51., and this sum will only be allowed as part of his costs where the discovery appears to the judge, or the court, or the taxing officer, to have been reasonably asked for. The discretionary power entrusted to the judge of dispensing with this preliminary payment, should, in the interests of the poorer suitors, be cautiously exercised; and the mere fact of the solicitors on both sides consenting to waive the deposit, so far from depriving the judge of his right to withhold such an order if he thinks fit, would, in most cases, be an additional reason why he should determine to form his own independent judgment on the matter.1

§ 527A. The next attempt made to remedy what may justly be called the abuse of discovery will be found in Rule 6, which provides, that "any objection to answering any one or more of several interrogatories on the ground that it or they is or are scandalous or irrelevant, or not bonâ fide for the purpose of the cause or matter, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer." Rule 7 lastly provides, that "any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary, or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories." 2

§ 528. The party who applies to the court to strike out interrogatories under these last rules must-unless he can show that the whole of them are either scandalous or irrelevant, or not put bonâ fide--specify the partícular questions to which he objects, and the grounds of his objection. Next, before the court will interfere, it must be satisfied not only that the objection is a reasonable one, but that it applies to the interrogatory itself, and rests on some

3

1 Aste v. Stumore, 53 L. J., Q. B. 82, per Ct. of App.; L. R., 13 Q. B. D. 326, S. C.

3

2 See Gay v. Labouchere, L. R., 4 Q. B. D. 206; 48 L. J., Q. B. 279, S. C. Allhusen v. Labouchere, L. R., 3 Q. B. D. 654, per Ct. of App.; 47 L. J., Q. B. 819, S. C.

477 ground of a similar nature to those enumerated in the rule.1 A relevant interrogatory, therefore, cannot be struck out by a judge on the ground that the matter inquired after relates to an indictable offence, but the remedy of the party interrogated in such a case is to decline to answer, on the ground that such answer may tend to criminate him.2 Neither can the rules be relied on for the purpose of excluding interrogatories on the ground that they seek discovery of the facts on which the opposite party relies, though all questions will be struck out which are put with the view of discovering the evidence by which such facts are intended to be established.' 'When the facts relied on consist of conversations, the party interrogated may be required to give their general effect, but not to set out their details.1

§ 528A. When a judge has exercised his discretion under these rules, the Lords Justices will not readily entertain any appeal, unless it be clear that the decision rests on a wrong principle in which event they are bound to interfere so that the right doctrine may in future be understood. It may not at all times be an easy task for a judge to determine in what manner to deal with interrogatories, when some of them are objectionable and others are free from objection. This much, however, may perhaps be safely laid down, that, in such a case, the objectionable questions should alone be struck out, unless they be so intermingled with the others as to render it difficult to separate them, or unless they form a large majority of the interrogatories delivered. In either of these cases the judge may, as it seems, properly exercise his discretion by striking out the whole batch, and leaving the party to deliver new ones. Although any party improperly interrogated is empowered,

1 Fisher v. Owen, L. R., 8 Ch. D. 645, per Ct. of App.; 47 L. J., Ch. 681. S. C.; Eade v. Jacob, 47 L. J., Ex. 74, 76, per Ct. of App.; L. R., 3 Ex. D. 335, 337, S. C.; The Radnorshire, L. R., 5 P. D. 172.

2 Fisher v. Owen, L. R., 8 Ch. D. 645, per Ct. of App.; 47 L. J., Ch. 681, S. C.

3 Eade v. Jacob, 47 L. J., Ex. 74, per Ct. of App.; L. R. 3 Ex. D. 335, S. C. See Johns v. James, L. R., 13 Ch. D. 370; and Att.-Gen. v. Gaskill L. R., 20 Ch. D. 519; 51 L. J., Ch. 870, S. C.

4 Id.

5 Fisher v. Owen, L. R., 8 Ch. D. 645, 652, 653, per Ct. of App. See Thorburn v. Crawford, per Ct. of App., 26 July, 1884.

Id. 652, per Jessel, M. R.

1

under Rule 6, to apply to a judge to strike out the obnoxious questions, he is not bound to take that course; and if he neglects to do 80, he may still refuse to answer any question when a legal ground for such refusal exists. The recent case of Lyell v. Kennedy,' decided in the House of Lords, will serve to illustrate this proposition. There, the plaintiff having been interrogated respecting his knowledge, information, and belief upon matters relevant to the defendant's case, answered that he had no personal knowledge of any of the matters, and that the only information he had received with regard to them had been derived from privileged communications made to him by his solicitors or their agents for the purposes of his own case; and he then submittted that he was not bound to state his belief on the subject, derived as it was from such com. munications, or to make any further answer. The court under these circumstances held that the answer was sufficient.

§ 529. Order XXXI.,-after further providing that all interrogatories "shall be answered by affi lavit, to be filed within ten days or such other time as a judge may allow," " and that such affidavit may be in accordance with the Form given, and shall, if exceeding ten folios, be printed, unless otherwise ordered by a judge,”—goes on to declare, in Rule 10, that "no exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the court or a judge on motion or summons.' Rule 11, then provides, that

6

Fisher v. Owen, L. R., 8 Ch. D. 646, 654, per Cotton, L. J.; clearing up a doubt expressed in Saunders v. Jones, L. R., 7 Ch. D. 435.

2 L. R., 9 App. Cas. 81.

3 R. 8.

R. 9, and Form 7, App. B., which, like Form 6, is all but valueless, being as follows:

"In the High Court of Justice,

Division.

18 [Here put the letter and number.]

Between A. B., plaintiff,
and

C. D., E. F., and G. H., defendants.

The answer of the above-named E. F. to the interrogatories for his examination by the above-named plaintiff.

In answer to the said interrogatories, I, the above-named E. F., make oath and say as follows:

5 See Webb. v. Bornford, 46 L. J., Ch. 288, per Hall, V.-C.

6 The Court, under Rules 10 & 11, must consider the sufficiency in law, not the truth in fact, of the answer; and in the event of insufficiency alone will a further answer be required; Lyell v. Kennedy, 53 L. J., Ch. 937, per Ct. of App.; S. C., L. R., 27 Ch. D. 1. A few such cases as this one would go very far towards inducing the Legislature to sweep away the whole law relating to Discovery and Interrogatories.