Notice to

produce.

13. The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which, if any, of the documents therein mentioned he objects to produce; and it may be in the Form No. 9 in Appendix (B.) hereto, with such variations as circumstances may require.

See App. IV.

14. Every party to an action or other proceeding shall be entitled, at any time before or at the hearing thereof, by notice in writing, to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such action or proceeding, unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the action, or that he had some other sufficient cause for not complying with such notice.

15. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in the Form No. 10 in Appendix (B.) hereto.

16. The party to whom such notice is given shall, within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 13, or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his solicitor, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice may be in the Form No. 11 in Appendix (B.) hereto, with such variations as circumstances may require.

17. If the party served with notice under rule 15 omits to give such notice of a time for inspection, or objects to give inspection, the party desiring it may apply to a judge for an order for inspection.

Rr. 15, 16, and 17 apply, it will be observed, to documents mentioned in the pleadings and affidavits. In the case of foreign owners of a ship the times in r. 16 will be changed to a reasonable time, according to the distance which the parties may be from this country and to other circumstances (The Emma, 34 L.T. N.S.742; 3 Mar. L. C. N. S. 218).

ments.

18. Every application for an order for inspection of documents Inspection shall be to a judge. And except in the case of documents referred of docuto in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party.

The principles applicable to rr. 11 and 12 of this order are in point as regards r. 18.

R. 18 is of service chiefly when documents have not been required to be produced or discovery made, and when one party has some knowledge of those in the possession of the other; otherwise, as a matter of fact, this rule is to all intents and purposes the same as r. 11, since if a party obtains the production of a document he is sure to be able to inspect it. But a party should always before proceeding to obtain an order for inspection request the opposite party to give him inspection, otherwise he is liable to be condemned in the costs of the motion (The Memphis, L. R. 3 Ad. 23; 21 L. T. N. S. 727). And an affidavit under rule 18 should state as distinctly as possible of what documents inspection is sought (The Cordelia, 28 L. T. N. S. 776; 2 Asp. M. C. N. S. 33; a case which may be applied to the above rule).

19. If the party from whom discovery of any kind or inspection is sought objects to the same or any part thereof, the Court or a judge may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the action, or that for any other reason it is desirable that any issue or question in dispute in the action should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

20. If any party fails to comply with any order to answer inter- Failure to rogatories, or for discovery or inspection of documents, he shall be comply. liable to attachment. He shall also, if a plaintiff, be liable to have his action dismissed for want of prosecution, and, if a defendant, to

Service.

Liability

have his defence, if any, struck out, and to be placed in the same position as if he had not defended; and the party interrogating may apply to the Court or a judge for an order to that effect, and an order may be made accordingly.

21. Service of an order for discovery or inspection made against any party on his solicitor shall be sufficient service to found an application for an attachment for disobedience to the order. But the party against whom the application for an attachment is made may show in answer to the application that he has had no notice or knowledge of the order.

22. A solicitor upon whom an order against any party for discovery of solicitor. or inspection is served under the last rule, who neglects without reasonable excuse to give notice thereof to his client, shall be liable to attachment.

Use of answers at trial.

Particulars.

23. Any party may, at the trial of an action or issue, use in evidence any one or more of the answers of the opposite party to interrogatories without putting in the others: Provided always, that in such case the judge may look at the whole of the answers, and if he shall be of opinion that any other of them are so connected with those put in that the last-mentioned answers ought not to be used without them, he may direct them to be put in.

Somewhat in the nature of discovery is the demand by one party from the other of particulars of matters mentioned in the pleadings. This is a common practice in the other divisions of the High Court, but is unusual in the Admiralty Division. Such a demand will be generally refused (The Freedom, L. R. 2 Ad. 346; 3 Asp. M. C. O. S. 219, 262), except sometimes when particulars are sought, in actions of damage to cargo, as of the perils, accidents, and causes which occasioned a short delivery, and are pleaded by the defendant (The Hakon Adelsteen, 43 L. J. Ad. 9), or for the purpose of admitting some liability (The Wetterhorn, 34 L. T. N. S. 587; 24 W. R. 324; 3 Asp. M. C. N. S. 168), or of damage to a ship which has been. totally lost at sea (The N. P. Neilson, 34 L. T. N. S. 588; 24 W. R. 324; 3 Asp. M. C. N. S. 169). Where a suit is brought for necessaries or wages, the plaintiff is bound to furnish accounts in the nature of particulars before bringing such an action (The Fleur de Lis, L. R. 1 Ad. 39).

ORDER XXXII.

ADMISSIONS.

sions in

1. Any party to an action may give notice, by his own statement Admis or otherwise, that he admits the truth of the whole or any part of the pleadings case stated or referred to in the statement of claim, defence, or reply of docuof any other party.

2. Either party may call upon the other party to admit any document, saving all just exceptions; and, in case of refusal or neglect to admit, after such notice, the costs of proving any such document shall be paid by the party so neglecting or refusing, whatever the result of the action may be, unless at the hearing or trial the Court certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except where the omission to give the notice is, in the opinion of the taxing officer, a saving of expense.

3. A notice to admit documents may be in the Form No. 12 in Appendix (B.) hereto.

4. An affidavit of the solicitor or his clerk, of the due signature of any admissions made in pursuance of any notice to admit documents, and annexed to the affidavit, shall be sufficient evidence of such admissions.

The notice to admit should be given within a reasonable time before the hearing of the action.

ments.

ORDER XXXIII.

INQUIRIES AND ACCOUNTS.

accounts.

The Court or a judge may, at any stage of the proceedings in a Inquiries cause or matter, direct any necessary inquiries or accounts to be made and or taken, notwithstanding that it may appear that there is some special or further relief sought for or some special issue to be tried, as to which it may be proper that the cause or matter should proceed in the ordinary manner.

The jurisdiction of the Court to go into accounts between co-owners of ships under A. C. Act, 1862, s. 8, has already been pointed out, ante, Part I., p. 77. The above rule still

Р

further enlarges the jurisdiction of the Court. For example in an action for wages by a master, in which complicated questions of accounts arise, and where it may be doubtful if any sum is due, and where there is another distinct ground of defence, as, misconduct, the Court may, under the above rule, order the accounts to be gone into before the further issue is tried; and in an action for necessaries the Court made use of this order (The Sully, 48 L. J. Ad. D. 56).

References When, in order to do full justice in a cause, matters to regis. trar and of detail relating to accounts, or to the assessment of merchants. damages, should be investigated, after an unascertained sum has been pronounced to be due, it has been the immemorial practice to refer such matters to the registrar alone or assisted by merchants, that he may report thereon to the Court (and see A. C. Act, 1861, s. 23), for it may be laid down as a principle that the Court does not assess damages. Questions of law cannot, however, be referred (The Ocean, 10 Jur. 506). But, where the amount in dispute is so small that the further expense consequent on the reference is not justifiable, or where the Court can with ease settle the matter itself, then the above rule is not followed (The Eleanore, Br. & L. 135; 33 L. J. Ad. 19), as in a question of consequential damages (The Maid of Kent, 50 L. J. Ad. 71). The reference not only may be for the purpose of carrying out the decree of the Court, but also to find facts on which its judgment may be wholly or partially based it may be ordered by the judge after he has decided the main point in the action, such as whether a bottomry bond was valid or invalid, or in the course of the action before the hearing of the cause. Thus, in an action on a bottomry bond, the accounts were referred to the registrar and merchants, and on their finding that the charges in respect of which the bond was given were improper, it was pronounced against (The Roderick Dhu, Swa. 177); and, when a bond was admitted to be valid, the