(e.) DEFENDANT'S COURSE, ON ORDER.

On a change being granted, the defendant's attorney will, of course, see that all papers and proceedings are duly transferred to the clerk of the substituted county, according to the provision above referred to. In strictness, this is the duty of the clerk of the court, on the order being filed with him (which must, of course, be done), and he is the responsible party in all cases; but still it should always be looked to, both as regards the transmission and the due filing of the proceedings in the substituted county, when transmitted, in order to insure regularity, and avoid future inconvenience.

(f) REVOCATION OF STAY, ON PLAINTIFF'S APPLICATION.

The plaintiff's remedy, in respect of a stay of proceedings unduly obtained by the defendant for the purposes of a motion, as above, is pointed out by rule 58. On affidavit, showing such facts as will entitle him to retain the venue according to the settled practice, he may obtain a revocation of the order to stay, from the officer who granted it. This application may be made ex parte, but immediate notice of the order of revocation must be given to the defendant's attorney.

Of course, this revocation only operates as regards the interim stay of proceedings, and the motion itself will still come on, and be decided on its merits, in due course. If the defendant consider himself aggrieved by a revocation so obtained, he may make a counter-application, on which it would doubtless be competent for him to controvert the affidavit, on which the plaintiff has obtained the revocation, by counter-affidavits on his part, either evidencing his own right to require a change, or impeaching the plaintiff's statement.

(9.) DISQUALIFICATION OF JUDGE, CHANGE FOR.

The last point to be noticed is the change of venue in consequence of the justices of the district, in which the action is triable, being disqualified, on the ground of interest, relationship to the parties, or employment as counsel in the matter. This subject is specially provided for by chapter 15 of the Laws of 1850, p. 20, as regards actions in the Supreme Court; which enacts that, in such cases, the court may, upon special motion, order the action to be brought to argument in any adjoining district, to be specified in such order, and then such cause shall be heard and decided in such district. This measure is, of course, inapplicable to courts of strictly local jurisdiction, the disqualifications as to which, where existent, are positive and irremovable.

CHAPTER IV.

DISCOVERY OF DOCUMENTS.

§201. Nature of Remedy.

(a.) STATUTORY AND OTHER PROVISIONS.

THE Code provides on this subject as follows, in the latter branch of section 388:

The court before which an action is pending, or a judge or justice thereof, may, in their discretion, and upon due notice, order either party to give to he other, within a specified time, an inspection and copy, or permission to !ake a copy, of any books, papers, and documents, in his possession, or under his control, containing evidence relating to the merits of the action. or the defence therein. If compliance with the order be refused, the court, on motion, may exclude the paper from being given in evidence, or punish the party refusing, or both.

This section, as part of section 388, dates from 1849. In the original Code it formed a separate section, No. 342. The only difference was that the words "a paper" stood instead of any books, papers, or documents." See, as to this defect while existent, Follett vs. Weed, 3 How., 303; 1 C. R., 65.

The rules on the subject are as follows:

Rule 14. (8.) Applications may be made, in the manner provided by law, to compel the production and discovery of books, papers, and documents relating to the merits of any civil action pending in this court, or of any defence in such action, in the following cases:

1. By the plaintiff, to compel the discovery of books, papers or documents, in the possession or under the control of the defendant, which may be necessary to enable the plaintiff to frame his complaint, or to answer any pleading of the defendant.

2. The plaintiff may be compelled to make the like discovery of books, papers, or documents, when the same shall be necessary to enable the defendant to answer any pleading of the plaintiff.

3. Either party may be compelled to make discovery, as provided by section 388 of the Code.

The last subdivision dates from the revision of 1858. The prior portions regulated the anterior practice under the Revised Statutes.

Rule 15. (9.) The moving papers upon the application for such discovery, shall state the facts and circumstances on which the same is claimed, and shall be verified by affidavit, stating that the books, papers, and documents whereof discovery is sought, are not in the possession nor under the control

of the party applying therefor. The party applying shall show to the satisfaction of the court, or judge, the materiality and necessity of the discovery sought, and the particular information which he requires.

Prior to the revision of 1858, this rule prescribed petition as the form of application. The last sentence was also wholly different, requiring an affidavit of advice of counsel, and belief as to the necessity of the discovery sought, but otherwise less extensive in its purport.

Rule 16. (10.) The order for granting the discovery shall specify the mode in which the same is to be made, which may be either by requiring the party to deliver sworn copies of the matters to be discovered, or, by requiring him to produce and deposit the same with the clerk of the county in which the trial is to be had, unless otherwise directed in the order. The order shall also specify the time within which the discovery is to be made. And when papers are required to be deposited, the order shall specify the time that the deposit shall continue; and shall also declare the consequences of an omission to comply with the same; and the court at any special term, upon proof of the default, may, of course, grant a rule absolute, giving effect to such order, either by nonsuiting the plaintiff, striking out the de fendant's answer, debarring him from a particular defence, excluding the paper from being given in evidence, or punishing the party in default as for a contempt, as the order for the discovery may require.

The concluding provisions, requiring the order to declare the consequences of an omission to comply, with all that follows, are new, having been first inserted on the revision of 1858. Rule 17. (11.) The order directing the discovery of books, papers, or documents, shall operate as a stay of all other proceedings in the cause, until such order shall have been complied with or vacated; and the party obtaining such order, after the same shall be complied with or vacated, shall have the like time to prepare his complaint, answer, reply or demurrer, to which he was entitled at the making of the order. But the justice, in granting the order, may limit its effect, by declaring how far it shall operate as a stay of proceedings.

The above rules, with the exception of the amendments above noted as having been made on the revision of 1858, were existent prior to the Code, and were made for the purpose of carrying out the provisions of the Revised Statutes on the same subject. In view of the decisions below cited to the effect that both remedies may be considered as still concurrent, it may be expedient shortly to notice the provisions in question.

They will be found under the head of The Supreme Court, at 2 R. S., 199, 200; sections 21 to 27 inclusive.

Section 21 confers the power in substantially the same terms as the provisions of the Code above cited.

Section 22 provides for the making of rules on the subject, "to be governed by the principles and practice of the Court of Chancery in compelling discovery ;" and section 25 is in furtherance of the same object.

Section 23 prescribes a verified petition as the form of application, and provides that the order may be made for the discovery, or that the adverse party show cause why it should not be granted.

The next section provides thus:

§ 24. Every such order may be vacated by the officer granting the same, or by the court,—

1. Upon satisfactory evidence that it ought not to have been granted. 2. Upon the discovery sought being made.

3. Upon the party required to make the discovery denying on oath the possession or control of the books, papers, or documents ordered to be produced.

Sections 26 and 27 prescribe thus, as to a neglect to comply with the order, and as to the effect as evidence of the documents sought to be discovered, if and when produced:

§ 26. In case of the party refusing or neglecting to obey such order for a discovery within such time as the court shall deem reasonable, the court may nonsuit him, or may strike out any plea or notice he may have given, or may debar him of any particular defence in relation to which such discovery was sought; and the power of the court to compel such discovery shall be confined to the remedies herein provided, and shall not extend to authorize any other proceedings against the person or property of the party so refusing or neglecting.

§ 27. The books, papers, and documents, produced under any order made in pursuance of the preceding sections, shall have the same effect, when used by the party requiring them, as if produced upon notice according to the practice of the court.

As to the extension of the same powers to other tribunals, see chapter 38, of 1841, sections 1 and 2. Gould vs. Mc Carty, 1 Kern., 575.

(b.) GENERAL REMARKS.

Since the revision of the rules in 1858, the two systems may be looked upon as in effect amalgamated, for most if not for all practical purposes. Prior to that revision, however, they were held to be Concurrent, and, to a certain degree, separate, discovery under the Revised Statutes and the rules being the proper practice on application, prior to the actual joinder of issue, for the purposes of pleading, and discovery under the Code to those made subsequently, and for the purpose of preparing for trial. See Follett vs. Weed, 3 How., 303; 1 C. R., 65; Stanton vs. The Delaware Mutual Insurance Company, 2 Sandf., 662; Moore vs. Pentz, Ibid., 664; Gelston vs. Marshall, 6 How., 398; Brevoort vs. Warner, 8 How., 321; Lovell vs. Clarke, 7 How., 158; and Hoyt vs. American Exchange Bank, 1 Duer, 652; 8 How., 89; Gould vs. McCarty, 1 Kern., 575; Davis vs. Dunham, 13 How., 425.. VOL. II.-17

The above provisions may be looked upon as a substitute for the practice in relation to profert and oyer of an instrument under the former system. See Mayor of New York vs. Doody, 4 Abb., 127. The former practice as to bills of discovery is likewise wholly superseded by the provisions for examination of parties, noticed in the next chapter, taken in connection with these and with the present rules as to verification of pleadings. See Merritt vs. Thompson, 3 E. D. Smith, 283. It may be expedient to divide the subject into two general heads. 1. Discovery with a view to plead ;

2. Discovery with a view to prepare for trial; concluding with the general consideration of the mode in which these remedies are now attainable.

(c.) 1. DISCOVERY WITH A VIEW TO PLEAD.

This branch of the remedy is more peculiarly regulated by the provisions of the Revised Statutes, and of the rules as they stood antecedent to the recent revision. The former boundaries are, however, much broken down, petition being no longer the prescribed form of application, and the same statements as to the materiality and necessity of the discovery sought, and the particular information required, being now equally prescribed in all cases.

The distinction was strictly taken, the requisitions of the Revised Statutes and the former rules insisted upon, and discovery refused of matters of evidence not requisite for the purposes of pleading separately considered, in Gelston vs. Marshall, 6 How., 398. See also Stanton vs. Delaware Mutual Insurance Company, 2 Sandf., 662; Hoyt vs. American Exchange Bank, 1 Duer, 652; 8 How., 89; Brevoort vs. Warner, 8 How, 321.

Some, however, of the difference in essentials is still existent. Discovery with a view to plead, is, of course, only appropriate before issue joined. Discovery to prepare for trial, belongs, for the same reason, to a later period; for, until after issue joined, it cannot be accurately known, for what preparation is to be made. The former is more peculiarly the remedy conferred by the conjoint operation of the rules aud the Revised Statutes; the latter falls especially under the powers conferred by section 388, the rules merely regulating the mode of appli cation.

These provisions, and the collateral remedies for examination of parties, are only appropriate to a regular controversy. They cannot be resorted to, on an application to perpetuate testimony. Where, too, it is sought with a view to enable a plaintiff to frame his complaint, the discretionary powers of the court will not be exercised, without strong affidavits, showing its necessity to enable the plaintiff to obtain redress.