Practice and Procedure

It has been stated that amendment to statement of claim or counterclaim without leave can only be made within a certain time. All other amendments to claim or defence, or to any other pleading, can only be made by the leave of the court or a judge and upon such terms as to costs as may be just (0. 28, r. 6). If an order giving leave to amend be made and the amendment is not made within the time limited or within 14 days of the date of the order, the order is void, unless the time be extended by the court or a judge (0. 28, r. 7). Moreover the amended pleading must be delivered to the opposite party within the time allowing the same (0. 28, r. r o).

Actions By or Against Firms.

If a firm desires to bring an action, or anyone desires to bring an action against a firm, in the firm name, especial considerations arise. Broadly speak ing, a firm consisting of more than one person carrying on a business within the jurisdiction may sue or be sued in the firm name, but subject to this—that the names of the partners must, if required, be revealed to the other side. Where, however, a man carries on business in a name other than his own, he can only sue in his own name, but he may be sued in the name of his firm. He must, however, reveal his true name if required. Service of process on a firm may be effected either upon any one of the partners, or upon the manager at the place of business of the firm. The person served must be told, at the time, whether he is served as a partner or as manager. A firm cannot enter an appearance as such : it must appear by one of the partners personally; but an alleged partner may appear with a denial t hat he is a partner. The property of the firm within the juris diction can be seized in execution of a judgment against the firm, and so can the property of individual partners. This is but a summary of 0. 48A which provides a complete code of rules on the subject. It must be carefully studied by anyone who is concerned in an action by or against a firm.

Discovery.

The pleadings having been closed, the parties in most cases proceed to have discovery, either of facts or docu ments or both. The English common law courts were originally unable to compel a litigant before a trial to disclose the facts and documents on which he relied. In equity, however, a differ ent rule prevailed, there being an absolute right to discovery of all material facts on which a case was founded. Now the practice is regulated by the Rules of the Supreme Court, 1883, Order 31. Discovery is of two kinds, namely, by interrogatories and by affidavit of documents, provision being also made for the pro duction and inspection of documents. Where a party to a suit

can make an affidavit stating that in his belief certain specified documents are or have been in the possession of some other party, the court may make an order that such party state on affidavit whether he has or ever had any of those documents in his pos session, or if he has parted with them or what has become of them. A further application may then be made by notice to the party who has admitted possession of the documents for production and inspection. Copies also may be taken of the more important documents. There is also discovery of facts obtained by means of interrogatories, i.e., written questions addressed on behalf of one party, before trial, to the other party, who is bound to answer them in writing upon oath. In order to prevent needless expense the party seeking discovery used to have to secure the cost of it by paying into court a sum of money, gen erally not less than Ls, but this rule has been abolished. Objection may be taken to discovery either of a fact or a document on the ground of. privilege or that the matters sought to be discovered are criminatory.

Thus all documents and communications passing between a litigant and his legal advisers are absolutely privileged and need not be disclosed. Again, where an admission of a fact or the production of a document might involve the admission of a criminal offence, the litigant may refuse to give discovery. Where the opposite party is not satisfied with an affidavit of documents, or the answer to an interrogatory, he may, in certain cases apply for a further and better affidavit or answer, and in some cases the master to whom the application is made will himself ex amine a document in order to see whether it shall be disclosed or not. The advantage of discovery lies in this—that it forces a litigant to reveal his case on oath. It is one thing to make a statement or deny a fact in a pleading. That merely has effect to put the matter in issue. It is a much more serious matter to have to swear to a fact in an affidavit, because, in the case of the answer to an interrogatory, it may be put in evidence by the opposite party at the trial. Many an action is brought to a speedy end by an order for discovery, because the litigant is wholly unable to swear to the truth of the claim or defence which he has put upon his pleadings. Discovery will not be allowed if the remedy sought to be inforced is of a penal nature, or if the plaintiff is relying on a forfeiture.