dence at the trial thereof, and such. experts shall attend at such trial until excused by the court. It is further provided that any party to the cause may call and examine or cross-examine any such expert at the trial as to the matters, persons, things, views, findings, and opinions contained, mentioned, or referred to in any such report. Section 20 provides that, in any action for damages for injury to body or health, wherein an expert shall be appointed under the preceding two sections (18 and 19) to make an examination of the body and health of the injured person, the justice shall require the injured person to submit to an examination of his body and health by such experts, and the action shall be continued until such examination shall have been made. The only express authority to require either party to submit his person or property to a preliminary examination by experts is confined to an involuntary examination of the plaintiff in a personal-injury case. Subsequently, by amendment, another clause was added, to which reference will be made hereafter. The only penalty imposed for refusal to permit such examination is the denial to plaintiff of the right to proceed with the trial of the cause. The authority of the justice of the superior court to compel defendant to allow the expert witness to enter and examine his dwelling house, if it exists, must be found to have been granted by implication. If such authority is granted by implication, the express authority given to the court by § 20, to require a particular examination therein provided for, was unnecessary. In view of the fact that such express authority was conferred on the court, it is a fair conclusion that it was considered to be necessary.

Assuming for the moment that the superior court has the necessary authority, by implication, to compel obedience to the order in question, how is it to proceed? It cannot authorize the expert to make a forcible

Writ-execution

right to enter

dwelling.

Clark v. Wil

entry, as it is well settled that even an officer of the court ordinarily has no authority to make a forcible entry into a dwelling house for the purpose of executing a civil writ or process. son, 14 R. I. 11. The order must, then, be enforced either by judgment in the cause or by process of contempt. There is no authority to enter judgment. Such penalty was not imposed upon the recalcitrant plaintiff. The enforcement, then, must be by process of contempt. This is a summary power generally and properly used by the courts only of necessity and in exceptional cases. Authority for its use by implication for the enforcement of general statutory provisions such as those under consideration should only be inferred for convincing reasons. The common law has always given a special protection and sanctity to one's dwelling house, and in the protection thereof against unlawful intrusion certain acts of defense are permitted which are not permitted in the defense of other kinds of property.

The statutory authority to appoint expert witnesses to examine "persons, matters, and things" prior to the trial, although expressed in general terms, is clearly not intended to be unlimited. No distinction is made in the act between civil and criminal proceedings, but the constitutional provision in regard to self-incrimination is one illustration of one limitation in a criminal cause. Without attempting to fix the exact limits of the statute, it is sufficient to consider the particular question before us. Plaintiff is seeking to secure evidence, before trial, in aid of an action at law, not primarily, however, to establish its own case. Having furnished and laid the flooring, it presumably has proof of its right of action. In effect, it seeks to discover in advance of trial the defense to the action. fense to the action. This it could not accomplish by the method of a bill of discovery, and there is noth

ing in the statute which shows an intention to give such a right as is now claimed.

Our conclusion is that the court had no authority to order defendant to admit the expert witness into his dwelling house, and so much of the

Discovery-compelling admission of expert witness into dwelling house.

order as directs this to be done is invalid. Our interpretation of the statute is further confirmed

by consideration of the amendment to § 20, which first appears in the revision of the laws in 1905, known as the Court and Practice Act, whereby it is provided that in any such action (for personal injury) the superior court may, upon application of the plaintiff, require the defendant to permit the attorney of the plaintiff, with or without any expert appointed under §§ 18 and 19, to examine the place and cause of such injury. An obvious, and perhaps

primary, object of the statute, was to enable the defendant, and later, by the amendment, the plaintiff, in personal-injury cases, to secure in advance of the trial certain information in regard to the case of his opponent. If express authority was considered to be necessary in personal-injury cases to warrant the issuance of an order requiring a defendant to permit an inspection of the premises in which an accident occurred, it is reasonable to believe that, if it were intended to give a right of entry into a dwelling house in a case other than one for personal injury, a like express authority would have been given by statute.

The last paragraph of said order of the Superior Court, entered on the 19th day of April, 1924, whereby the defendant is ordered to permit said expert witness to examine the flooring in the dwelling house of said defendant, is quashed.

I. Introductory, 16.

II. Examination of property and prem

ises:

a. In general, 16.

b. Patent cases, 19.

1. Introductory.

It will be seen that there is a decided difference of opinion among the courts on this subject. The theory of the inherent power of the court, or at least of a court having equity powers, is largely a modern theory, as in the old law inspection of things other than documents was rarely granted. In a number of jurisdictions the matter is provided for by statute.

This annotation does not include the question of the inspection of mines to determine property rights, whether arising under statute or otherwise; nor does it include the question of the right of a stockholder to inspect or examine property owned by the corporation, nor the question of the right to order the exhumation or inspection of a dead body; nor does it include

II. continued.

c. Negligence cases, 20.

III. Under statutes and rules of court, 21.

IV. Miscellaneous, 23.

condemnation proceedings. For right of body having power of eminent domain to enter upon or explore land before proceedings to acquire it, see the annotation in 29 A.L.R. 1403.

It may be noted that search warrants are not available to individuals in the course of civil proceedings, or for maintenance of any merely private right. 24 R. C. L. pp. 702, 719.

11. Examination of property und
premises.

a. In general.

There is an early case where an owner, whose factor had pawned goods to a pawnbroker, was granted, on bill of discovery, leave to inspect goods in possession of the pawnbroker to see whether they were his.

Marsden v. Panshall (1686) 1 Vern. 403, 23 Eng. Reprint, 548.

In a Quebec case, while the court in the first place refused, as not authorized by the Code, to make an order that the defendant exhibit a machine claimed by the plaintiff, which the defendant alleged he had bought in Massachusetts, yet, on deposit by the plaintiff of a sum for expenses, the defendant was ordered to bring the machine to the court house for inspection. United Shoe Machinery Co. v. Caron (1903) 6 Quebec Pr. Rep. 100. Inspection has been denied

in an action for breach of a contract of purchase of goods which defendant refused to accept, but desired to inspect, Ansen v. Tuska (1863) 1 Robt. (N. Y.) 663;

- on the plaintiff's application to inspect and test machines contracted to be built for him, Pina Maya-Sisal Co. v. George L. Squire Mfg. Co. (1907) 55 Misc. 325, 105 N. Y. Supp. 482 (where there was a further reason for the decision);

—where the plaintiff had bought a picture from the defendant and returned it as spurious, Wilson v. Collins (1908) 57 Misc. 363, 109 N. Y. Supp. 660; Wilson v. Collins (1908) 57 Misc. 365, 109 N. Y. Supp. 662;

- on the application of the plaintiff in replevin after the goods had been reclaimed by the defendant, Downey v. MacAleenan (1891) 42 N. Y. S. R. 672, 16 N. Y. Supp. 916.

In Miner v. Gardiner (1875) 4 Hun (N. Y.) 132, the court reversed an order permitting the plaintiff, suing for services as bookkeeper, to have the defendant's books inspected by an expert in order to prove the value of the services.

In Rogers v. Hanson (1872) 35 Iowa, 283, where the plaintiffs sued for breach of warranty of a machine which they had returned to the defendants, and then had attached, and 33 A.L.R.-2.

the defendants moved for leave to use the machine to try its capacity, it was held that there was no error in refusing this motion. The court observed that the defendants were nonresidents, and had offered no security for the return of the machine after the test.

In Hunter v. Allen (N. Y.) supra, an action upon a warranty of the case of a watch tried before the justice, the defendant having placed the plaintiff on the stand, who had the watch in his pocket, requested the plaintiff to produce it, which he declined to do, and the justice sustained him; the defendant then requested the court to issue a subpoena duces tecum to produce the watch in order to test the question of its identity, but the justice refused to do so. The supreme court, in holding that the justice was right, said: "It would be a new feature in our jurisprudence, or rather in its administration, to compel a party or witness to produce a chattel in court for inspection, upon the trial of such an issue as this was."

Inspection of real property has been allowed in the case of fixing a boundary between the land examined and public land. Winslow v. Gifford (1850) 6 Cush. (Mass.) 327.

In East India Co. V. Kvnaston (1821) 3 Bligh, N. R. 153, 4 Eng. Reprint, 561, a rector entitled to tithes from premises was allowed to inspect them to ascertain their value.

In a proceeding for the delivery of heirlooms, the court gave an order for their inspection, they being in a chest in the possession of the defendant's bankers. Macclesfield v. Davis (1814) 3 Ves. & B. 16, 35 Eng. Reprint, 385.

In an action for the price of oil sold, in sending the case back for a new trial, the court held, inter alia, that the plaintiff had a right of inspection to see how much oil of the quality called for the defendant had on hand, and its value. Sinclair Ref. Co. v. Nat. L. McGuire Oil & Supply Co. (1920) Mo. App., 221 S. W. 378.

In an action for work done on the walls of the defendant's house, where

he introduced evidence tending to show that the work was not done according to the contract, the court ordered that two witnesess have an opportunity to examine the walls. On appeal, where the question was not passed upon, the court said: "While every man's home ought to be surrounded by every safeguard essential to individual privacy and family protection, it may well be doubted whether its exclusiveness should be held to be more sacred than the cause of justice." Sullivan v. Nicoulin (1901) 113 Iowa, 76, 84 N. W. 978.

In Williams v. Phiel (1913) 66 Fla. 192, 63 So. 658, where the controversy was in relation to royalties for phosphate rock on land in possession of the defendant, the court on a bill of discovery decreed that a certain person, as special master or receiver, should enter upon and take possession of the premises for the purpose of ascertaining by inspection and test the existence or nonexistence of merchantable phosphate of the character and quantity specified in the contract, and that, on the complainant's advancing the necessary money, such special master or receiver should erect a suitable plant for the purpose of making the test. The court had already held on a former appeal in (1912) 64 Fla. 387, 59 So. 897, that the statutory remedy was exclusive of the remedy afforded by a court of equity, notwithstanding the statute provided that "either party shall be at liberty to apply to the court for a rule or order for the inspection by himself or by his witness of any real or personal property, the inspection of which may be material to the proper determination of the question in dispute."

On the other hand, inspection of real property has been denied in an action for work and labor. Turquand v. Strand Union (1840) 8 Dowl. P. C. (Eng.) 201, 4 Jur. 74.

So, in an action on contract for building a chapel, the plaintiff was not allowed to inspect it. Newham v. Taite (1838) 6 Scott (Eng.) 575, 1 Arnold, 244.

So, the plaintiff was not allowed to inspect a house he had repaired, as not

allowed by the Code. Adams v. Préjent (1901) 3 Quebec Pr. Rep. 516.

In Ennor v. Barwell (1860) 1 De G. F. & J. 529, 45 Eng. Reprint, 466, 12 Mor. Min. Rep. 101, 7 Jur. N. S. 788, 8 Week. Rep. 300, 4 L. T. N. S. 597, on a bill to restrain the intercepting of the flow of water to the plaintiff's premises, where it seems that inspection was not objected to, it was held that it was not according to the course of the court to make, upon interlocutory application before the hearing, an order authorizing the plaintiff to break up the soil of the defendant's property for the purpose of inspection.

It will be seen that in O'REILLY v. SUPERIOR CT. (reported herewith) ante, 10, where the plaintiff sued to recover for certain flooring furnished and laid by plaintiff in defendant's dwelling house, and moved to examine the flooring with experts selected by him, it is held that the court had no inherent authority to authorize such an examination. The application was not based on the statute, which provided that disinterested skilled persons might be appointed by the court to examine into matters and things committed to them. The court referred to the foregoing statute, to the statute providing that in actions for personal injuries there might be a physical examination of the plaintiff, and that in such an action the court might require the attorney for the plaintiff to view and examine the place and cause of such injury, and to the statute providing for the production and inspection of documents in the control or possession of the adverse party; and considered that the enactment of such statutes was some evidence that, without such statutory authority, the court lacked the authority given by the statute. Later in the same action an application was made under the aforesaid statute (O'REILLY v. SUPERIOR CT. (reported herewith) ante, 13), where the court pointed out that the only express authority to require submission of person or property to a preliminary examination by experts was confined to an involuntary examination of the plaintiff in a per

sonal-injury case; that the only penalty imposed for refusal to permit such examination was the denial to plaintiff of the right to proceed with the trial of the cause; that the only authority of the court to compel the examination of a dwelling house, if it exists, must rest in implication; that there had been an amendment to the statute, providing that in actions for personal injuries the court might permit the attorney of the plaintiff, with or without an expert, to examine the place and cause of such injury, and said: "If express authority were considered to be necessary in personal-injury cases to warrant the issuance of an order requiring a defendant to permit an inspection of the premises in which an accident occurred, it is reasonable to believe that, if it were intended to give a right of entry into a dwelling house in a case other than one for personal injury, a like express authority would have been given by statute." And the court refused the application.

Inspection has been denied to an executor applying to inspect the contents of a safe-deposit box, which he claimed. Hallenbeck v. Parr (1901) 65 App. Div. 167, 72 N. Y. Supp. 488. In Sanford v. Richardson (1916) 176 App. Div. 199, 161 N. Y. Supp. 1026, the court considered that the search of the private papers of a litigant would be a violation of the law against unwarrantable searches and seizures, and reversed an order appointing a referee to inventory property at a safe-deposit vault on allegations of administrators that the defendant bore to their intestate a fiduciary relationship, and had misappropriated his funds, and acquired other property with those funds.

b. Patent cases.

In Colgate v. Compagnie Francaise. du Telegraphe (1885) 23 Blatchf. 86, 23 Fed. 82, the court said: "Courts of equity in patent causes sometimes exercise the power of granting to a complainant an inspection of alleged infringing devices, as incidental to ordinary discovery. Vidi v. Smith (1854) 3 El. & Bl. 969, 118 Eng. Re

print, 1404, 2 C. L. R. 1573, 23 L. J. Q. B. N. S. 342, 1 Jur. N. S. 14; Morgan v. Seaward (1835) Webster, Pat. Cas. (Eng.) 169-Ch.; Russell v. Cowley (1833) Webster, Pat. Cas. (Eng.) 468 -Ch.; Shaw v. Bank of England (1852) 22 L. J. Exch. N. S. (Eng.) 26. Courts of law have no such authority, but power to do so was conferred in England upon common-law courts by 15 & 16 Vict. chap. 83, § 42."

Thus, the plaintiff suing or about to sue for an infringement of a patent may have the aid of an inspection. Colgate v. Compagnie Francaise du Telegraphe (Fed.) supra; Wilson v. Keely (1888) 43 Off. Gaz. (Fed.) 511; Bovill v. Moore (1815) 2 Coop. t. Cott. 56, 47 Eng. Reprint, 1048; Morgan v. Seaward (1835) Webster, Pat. Cas. (Eng.) 167-Ch.; Russell v. Cowley (1833) Webster, Pat. Cas. (Eng.) 457 -Ch. (inspection ordered on both sides). See also Diamond Match Co. v. Oshkosh Match Works (1894) 63 Fed. 984; Rowell v. William Koehl Co. (1912) 194 Fed. 446; A. B. Dick Co. v. Underwood Typewriter Co.

(1916) 235 Fed. 300; McLeod Tire Corp. v. B. F. Goodrich Co. (1920) 268 Fed. 205.

In Browne v. Moore (1816) 3 Bligh, N. R. 178, 4 Eng. Reprint, 571, it seems that an order was made for the inspection of the plaintiff's machine, and that the defendant's representative might see it work.

In an action for infringement of a patent for improvements in type the defendant was required to supply type for analysis. Patent Type-Founding Co. v. Walter (1860) Johns. V. C. 727, 70 Eng. Reprint, 613, 8 Week. Rep.

This was an application in the court of chancery after a similar application under the statute (15 & 16 Vict. chap. 83, § 42) had failed in a court of law. Patent Type Founding Co. v. Lloyd (1860) 5 Hurlst. & N. 192, 157 Eng. Reprint, 1153, 29 L. J. Exch. N. S. 207, 6 Jur. N. S. 103, 1 L. T. N. S. 382.

In Jones v. Lee (1856) 36 Eng. L. & Eq. Rep. 558, where the owner of a patent sued his licensee under a contract to make and sell, and the de