fendant was granted a bill of particulars, the court said that the plaintiff "can go to the defendant's factory and inspect any machines he has there."

For a case where inspection was allowed on both sides, see Germ Mill. Co. v. Robinson (1886) 34 Week. Rep. (Eng.) 194, 55 L. J. Ch. N. S. 287, 53 L. T. N. S. 696-Ch. Div.

It was held in Dobson v. Graham (1889) 49 Fed. 17, that the court will not be inclined to allow a fishing excursion into the secrets of the defendant's business.

In Fischer v. Automobile Supply & Mfg. Co. (1912) 199 Fed. 191, where the plaintiff sued the defendant for infringement of a patent, the court refused to permit the defendant to examine an article which the defendant was said to have sold as an infringement, as it was an attempt to learn what the plaintiff's evidence of infringement might be.

For a case where, on the facts, an inspection was refused, see Stokes Bros. Mfg. Co. v. Heller (1893) 56 Fed. 297. For a case where the court on the facts refused (with leave to renew) a motion to compel defendant to furnish samples of its product, see Eibel Process Co. V. RemingtonMartin Co. (1912) 197 Fed. 760.

c. Negligence cases.

In negligence cases inspection has been allowed

- of the broken pieces of a strap of an engine which killed the plaintiff's intestate (a servant), Reynolds v. Burgess Sulphite Fibre Co. (1902) 71 N. H. 337, 57 L.R.A. 949, 93 Am. St. Rep. 535, 51 Atl. 1075;

of the machinery of a dredge on which a servant was killed, Clark v. Tulare Lake Dredging Co. (1910) 14 Cal. App. 414, 112 Pac. 564;

- of the land and machinery and buildings where the accident occurred (survey to be made), Richardson v. Delaware, L. & W. R. Co. (1909) 21 Pa. Dist. R. 1122.

In State ex rel. American Mfg. Co. v. Arderson (1917) 270 Mo. 533, L.R.A. 1917E, 833, 194 S. W. 268, it was held that a court of general jurisdiction has authority to require a defendant

employer to admit the plaintiff, his injured employee, to his premises with experts and photographers to take measurements and photographs for the purpose of preparing for trial an action for personal injuries, notwithstanding the constitutional provision securing persons from unreasonable searches and seizures.

In Hawk v. Bickford Fire Brick Co. (1914) 42 Pa. Co. Ct. 635, an action for the death of the plaintiff's husband from an accident in the mines of the defendant where he was working, the court, which had by statute chancery powers for the discovery of facts, permitted the plaintiff to send an engineer and other persons into the defendant's mine, with power to make surveys and measurements, stating that the court, being a constitutional creation, possessed all the inherent power necessary to secure the just determination of causes brought for trial before it, and that apart from this inherent power the relief prayed for fell fairly within the scope of dis

covery.

In McGuire v. Caledonia (1918) 140 Minn. 151, L.R.A.1918D, 943, 167 N. W. 425, an action against a village for injuries due to a defective wooden walk, the village was directed to bring the decayed plank into court, and it was held that this was not error.

In an action against a town for injuries, by an employee, where soon after the accident the town authorities made sketch of the place and took a photograph of the appliance the breaking of which caused the injury, the appellate court declined to interfere with the order of the court below, directing defendant to produce such sketch and photograph. LaCoss v. Lebanon (1917) 78 N. H. 413, 101 Atl. 364.

On the other hand, in Cooke v. Lalance Grojean Mfg. Co. (1883) 29 Hun, 641, 3 N. Y. Civ. Proc. Rep. 332, an action by a servant against his master for injuries sustained while working upon a machine, the court reversed an order permitting the plaintiff's attorney to inspect the machine. The court stated that it found neither precedent nor authority for the order, and

pointed out that the statute was confined to books of account, papers, and documents.

Where the injury to a servant was from an explosion of the master's locomotive, the court held it error to order the defendant to permit an examination of the boiler parts on its premises. Auerbach v. Delaware, L. & W. R. Co. (1901) 66 App. Div. 201, 73 N. Y. Supp. 118.

In Cuca v. Lackawanna Steel Co. (1910) 138 App. Div. 421, 122 N. Y. Supp. 732, the court reversed an order procured by a servant for the inspection of his master's premises and property three years after his injuries occurred, on the ground that it was too remote from the time of the accident, not passing upon the question as to the effect of the amendment in the statute, which had been made in the year before the decision.

Washington

In Groundwater v. (1896) 92 Wis. 56, 65 N. W. 871, an action for injuries due to a defect in a road whereby the plaintiff was thrown out of a wagon, the seat on which he was having fallen out of the back of the wagon, the court said: "We do not think there was any error in refusing to order the plaintiff to produce, on the trial, the seat mentioned, nor in refusing to send the jury to inspect the same. The making of such order and the granting of such request rested in the sound discretion of the trial court."

In Withey v. Pere Marquette R. Co. (1905) 141 Mich. 412, 1 L.R.A. (N.S.) 352, 113 Am. St. Rep. 533, 104 N. W. 773, 7 Ann. Cas. 948, 19 Am. Neg. Rep. 309, it was held that an abuse of discretion in refusing to compel a production in court of articles alleged to have been injured by another's negligence is not shown, where defendant's witnesses have been permitted to examine them, and it is not clear that the jury would have been aided by personal examination of them.

III. Under statutes and rules of court.

See also O'REILLY V. SUPERIOR CT. (reported herewith) ante, 13.

Under the modern form of the New

York statute permitting discovery of any article or property, in the possession of or under the control of a party, relating to the merits of the action, or of the defense therein, inspection has been allowed in a number of cases. E. L. Parker & N. Co. v. Enterprise Tinware Co. (1920) 182 N. Y. Supp. 909 (an action for the purchase price of wire sold); Rosen v. Simons (1913) 82 Misc. 407, 143 N. Y. Supp. 726 (an action by a pledgeor to recover the value of a pledge alleged to have been stolen by burglars from defendant's vault, it being claimed that the loss was caused through negligence, and an examination of the vault was ordered); Wilson v. New England Nav. Co. (1912) 197 Fed. 88 (action by servant against master for negligence; inspection ordered of a valve or pipe claimed to be defective); Chojnacki v. Interborough Rapid Transit Co. (1912) 76 Misc. 427, 134 N. Y. Supp. 1090 (action for personal injuries); Donoghue v. Callanan (1912) 152 App. Div. 162, 136 N. Y. Supp. 657 (same); Beyer v. Transit Development Co. (1910) 139 App. Div. 724, 124 N. Y. Supp. 463 (action by servant against master for personal injuries through negligence).

In Dugan v. American Transfer Co. (1913) 160 App. Div. 11, 145 N. Y. Supp. 31, the court in affirming a judgment for the defendant in an action by a servant against his master for injuries due to the breaking of ropes where there was a failure of proof, pointed out that the plaintiff could have had a discovery and inspection of the broken rope ends under the statute.

But, in Glowniak v. Lehigh Valley R. Co. (1915) 90 Misc. 42, 152 N. Y. Supp. 740, affirmed in (1915) 171 App. Div. 968, 156 N. Y. Supp. 1124, it was held, in an action for the wrongful death of one who was killed while moving a heavy safe, that the court could not grant an order of inspection at the defendant's freight house of all the appliances, ropes, boards, jacks, cleats, and any and all other implements under the control of the defendant, with which the plaintiff was working when he was injured, and with

46 Week. Rep. 481-C. A., where the plaintiff brought an action to recover possession of a stamp album deposited with the defendants by the claimant, and the matter was interpleaded between the plaintiffs and the claimants, the plaintiff, under the foregoing rule and under the further rule as to depositions, obtained an order to examine witnesses on commission out of the country, and to send out the album with the commission. It was stated that if necessary for the decision of the case the court was prepared to overrule Leader v. Smyth (1892) 8 Times L. R. (Eng.) 612, a case where the court refused to send a brooch abroad for identification, with a commission.

In Steamship New Orleans Co. v. London & P. Marine & General Ins. Co. [1909] 1 K. B. (Eng.) 943, 78 L. J. K. B. N. S. 473, 100 L. T. N. S. 595, 53 Sol. Jo. 286, 14 Com. Cas. 111, 11 Asp. Mar. L. Cas. 225—C. A., where the plaintiffs, alleging the constructive total loss of the ship, sued one of her insurers, it was ordered on the defendant's motion that the plaintiffs bring the ship home for inspection at the risk and expense of the underwriters.

In Barlow v. Bailey (1870) 18 Week. Rep. (Eng.) 783, 22 L. T. N. S. 464, under a statute which differed somewhat in form from the present rule, inspection was denied in case of a nuisance, on the ground that a nuisance should be apparent.

In Danforth Glebe Estates v. Harris (1917) 39 Ont. L. Rep. 553, the court reversed an order denying a motion by the plaintiffs for inspection of the defendant's glue and fertilizer factory, the plaintiffs alleging a nuisance, and also negligence. The court distinguished Barlow v. Bailey (Eng.) supra, and pointed out that it was after that decision and after the English Judicature Act was passed, that the present English rule was introduced, which was somewhat similar to, but not identical with, the Ontario Rules, and held that the rules should receive a liberal construction. See also Helliwell v. City Dairy Co. (1900) 6 Ont.

Week. Rep. 480, another case of a nui

sance.

In Keyes v. McKeon (1911) 23 Ont. L. Rep. 529, 18 Ont. Week. Rep. 593, where the action seems to have had to do with the construction of defendant's building, it was held that the court under "Con. Rules" might authorize an inspection.

In Jobin-Marrin Co. v. Quality Canners Co. (1919) 17 Ont. Week. N. 96, the defendant was allowed to inspect goods complained of as not corresponding with the sample.

In Hills v. Union Loan & Sav. Co. (1899) 19 Ont. Pr. Rep. 1, it was held under the rules that the inspection of a building ought not to be granted against the plaintiff, when it did not appear that the plaintiff was in possession of the building.

IV. Miscellaneous.

In Newberry v. Carpenter (1895) 107 Mich. 567, 31 L.R.A. 163, 61 Am. St. Rep. 346, 65 N. W. 530, it was held that the the constitutional protection against unreasonable seizures is violated by entering a private inclosure and taking away from the possession of the owner, under order of court, a wrecked boiler, engine, and other materials for use as exhibits on a prosecution of another person for criminal negligence in causing the explosion of the boiler, although, however, the articles were not to be removed from the premises of the owner.

In Little Rock Gas & Fuel Co. v. Coppedge (1915) 116 Ark. 334, 172 S. W. 885, an action for injuries from natural gas supplied to the plaintiffs by the defendants, the court said: "It is also contended that the court erred in not requiring plaintiffs to permit the defendants to make experiments in their home, as they did in other places, by permitting natural gas to escape into the room where persons were exposed. This was a matter in the discretion of the court, and we do not think the court abused its discretion. As we have already stated, the defendants made experiments under what they testified were similar conditions at other places."

In Theo. Noel Co. v. Vitæ Ore Co.

(1908) 18 Manitoba L. R. 46, which was an action to restrain defendant from passing off upon the public medical preparations sold and manufactured by him so as to deceive the public into the belief that they were the medicinal preparations of the plaintiffs, the defendant alleged that the plaintiffs carried on a fraudulent trade, and moved that the plaintiffs deliver for the defendant's inspection, and for anaylsis, all the medicinal preparations used by the plaintiffs. The court denied the motion, stating that an analysis would destroy the plaintiffs' property, and that the defendant could purchase what he needed for analysis from the plaintiffs in the market. The court does not refer to any statute or rule.

In Kennedy v. Nichols (1901) 33 Misc. 726, 68 N. Y. Supp. 1053, where

the court denied an application to compel the defendants to allow the plaintiff to make an examination of part of their premises, the nature of the action is not reported.

It may be noted that in Lewis v. Hartley (1835) 7 Car. & P. (Eng.) 405, in trespass for seizing and detaining plaintiff's dog, notice was given to the defendant to produce the dog at the trial, and during the examination of the plaintiff's first wit. ness the plaintiff's counsel called upon the defendant to produce the dog in court, but he declined to do so, stating that he would produce him as part of his own case; but the presiding judge ruled that if the dog was not then produced he would not allow it to be produced afterwards, whereupon the defendant produced the dog.

B. B. B.