to court), 644 (Depositions under dedimus potestatem and in perpetuam), 646 (Deposition under dedimus potestatem; how taken). These statutes are superseded in so far as they differ from this and subsequent rules. U. S. C., Title 28, § 643 (Depositions; taken in mode prescribed by State laws) is superseded by the third sentence of Subdivision (a).

While a number of states permit discovery only from parties or their agents, others either make no distinction between parties or agents of parties and ordinary witnesses, or authorize the taking of ordinary depositions, without restriction, from any persons who have knowledge of relevant facts. See Ark. Civ. Code (Crawford, 1934) §§ 606-607; 1 Idaho Code Ann. (1932) § 16-906; Ill. Rules of Pract., Rule 19 (Ill. Rev. Stat. (1937) ch. 110, § 259.19); Ill. Rev. Stat. (1937) ch. 51, § 24; 2 Ind. Stat. Ann. (Burns, 1933) § 2-1501; Ky. Codes (Carroll, 1932) Civ. Pract. §§ 554-558; 2 Md. Ann. Code (Bagby, 1924) Art. 35, § 21; 2 Minn. Stat. (Mason, 1927) § 9820; 1 Mo. Rev. Stat. (1929) §§ 1753, 1759; Neb. Comp. Stat. (1929) ch. 20, §§ 1246-7; 2 N. H. Pub. Laws (1926) ch. 337, § 1; 2 N. D. Comp. Laws Ann. (1913) § 7897; 2 Ohio Gen. Code Ann. (Page, 1926) §§ 11525–6; 1 S. D. Comp. Laws (1929) §§ 2713-16; Tex. Stat. (Vernon, 1928) arts. 3738, 3752, 3769; Utah Rev. Stat. Ann. (1933) § 104-51-7; Wash. Rules of Practice adopted by Supreme Ct., Rule 8, 2 Wash. Rev. Stat. Ann. (Remington, 1932) § 308–8; W. Va. Code (1931) ch. 57, art. 4, § 1.

The more common practice in the United States is to take depositions on notice by the party desiring them, without any order from the court, and this has been followed in these rules. See Calif. Code Civ. Proc. (Deering, 1937) § 2031; 2 Fla. Comp. Gen. Laws Ann. (1927) §§ 4405-7; 1 Idaho Code Ann. (1932) § 16-902; Ill. Rules of Pract., Rule 19 (Ill. Rev. Stat. (1937) ch. 110, § 259.19); Ill. Rev. Stat. (1937) ch. 51, § 24; 2 Ind. Stat. Ann. (Burns, 1933) § 2-1502; Kan. Gen. Stat. Ann. (1935) § 60–2827; Ky. Codes (Carroll, 1932) Civ. Pract. § 565; 2 Minn. Stat. (Mason, 1927) § 9820; 1 Mo. Rev. Stat. (1929) § 1761; 4 Mont. Rev. Codes Ann. (1935) § 10651; Nev. Comp. Laws (Hillyer, 1929) § 9002; N. C. Code Ann. (1935) § 1809; 2 N. D. Comp. Laws Ann. (1913) § 7895; Utah Rev. Stat. Ann. (1933) § 104-51-8.

Note to Subdivision (b). While the old chancery practice limited discovery to facts supporting the case of the party seeking it, this limitation has been largely abandoned by modern legislation. See Ala. Code Ann. (Michie, 1928) §§ 7764-7773; 2 Ind. Stat. Ann. (Burns, 1933) §§ 2-1028, 21506, 2-1728-2-1732; Iowa Code (1935) § 11185; Ky. Codes (Carroll, 1932) Civ. Pract. §§ 557, 606 (8); La. Code Pract. (Dart, 1932) arts. 347-356; 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231, §§ 61-67; 1 Mo. Rev. Stat. (1929) §§ 1753, 1759; Neb. Comp. Stat. (1929) §§ 20-1246, 20-1247; 2 N. H. Pub. Laws (1926) ch. 337, § 1; 2 Ohio Gen. Code Ann. (Page, 1926) §§ 11497, 11526; Tex. Stat. (Vernon, 1928) arts. 3738, 3753, 3769; Wis. Stat. (1935) § 326.12; Ontario Consol. Rules of Pract. (1928) Rules 237-347; Quebec Code of Civ. Proc. (Curran, 1922) §§ 286-290.

Note to Subdivisions (d), (e), and (f). The restrictions here placed upon the use of depositions at the trial or hearing are substantially the same as those provided in U. S. C., Title 28, § 641, for depositions taken de bene esse, with the additional provision that any deposition may be used when the court finds the existence of exceptional circumstances. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 37, r. 18 (with additional provision permitting use of deposition by consent of the parties). See also Equity Rule 64 (Former Depositions, Etc. May be Used Before Master); and 2 Minn. Stat. (Mason, 1927) § 9835 (Use in a subsequent action of a deposition filed in a previously dismissed action between the same parties and involving the same subject matter).

Rule 27. Depositions Before Action or Pending Appeal.

Note to Subdivision (a). This rule offers a simple method of perpetuating testimony in cases where it is usually allowed under equity practice or under modern statutes. See Arizona V. California, 292 U. S. 341 (1934); Todd Engineering Dry Dock and Repair Co. v. United States, 32 F. (2d) 734 (C. C. A. 5th, 1929); Hall v. Stout, 4 Del. Ch. 269 (1871). For comparable state statutes see Ark. Civ. Code (Crawford, 1934) §§ 666-670; Calif. Code Civ. Proc. (Deering, 1937) 20832089; Ill. Rev. Stat. (1937) ch. 51, §§ 39-46; Iowa Code (1935) §§ 11400-11407; 2 Mass. Gen. Laws (Ter. Ed., 1932)

ch. 233, § 46-63; N. Y. C. P. A. (1937) § 295; Ohio Gen. Code Ann. (Throckmorton, 1936) § 12216–12222; Va. Code Ann. (Michie, 1936) § 6235; Wis. Stat. (1935) §§ 326.27-326.29. The appointment of an attorney to represent absent parties or parties not personally notified, or a guardian ad litem to represent minors and incompetents, is provided for in several of the above statutes.

Note to Subdivision (b). This follows the practice approved in Richter v. Union Trust Co., 115 U. S. 55 (1885), by extending the right to perpetuate testimony to cases pending an appeal.

Note to Subdivision (c). This preserves the right to employ a separate action to perpetuate testimony under U. S. C. Title 28, § 644 (Depositions under dedimus potestatem and in perpetuam) as an alternate method.

Rule 28. Persons Before Whom Depositions May Be Taken.

In effect this rule is substantially the same as U. S. C., Title 28, § 639 (Depositions de bene esse; when and where taken; notice). U. S. C., Title 28, § 642 (Depositions, acknowledgments, and affidavits taken by notaries public) does not conflict with Subdivision (a).

Rule 30. Depositions Upon Oral Examination.

Note to Subdivision (a). This is in accordance with common practice. See U. S. C., Title 28, § 639 (Depositions de bene esse; when and where taken; notice), the relevant provisions of which are incorporated in this rule; Calif. Code Civ. Proc. (Deering, 1937) § 2031; and statutes cited in respect to notice in the Note to Rule 26 (a). The provision for enlarging or shortening the time of notice has been added to give flexibility to the rule.

Note to Subdivisions (b) and (d). These are introduced as a safeguard for the protection of parties and deponents on account of the unlimited right of discovery given by Rule 26.

Note to Subdivisions (c) and (e). These follow the general plan of Equity Rule 51 (Evidence Taken Before Examiners, Etc.) and U. S. C., Title 28, §§ 640 (Depositions de bene esse; mode of taking), and 641 (Same; transmission to court), but are more specific. They also permit the deponent to require the officer to make changes in the deposition if the

deponent is not satisfied with it. See also Equity Rule 50 (Stenographer-Appointment-Fees).

Note to Subdivision (f). Compare Equity Rule 55 (Depsitions Deemed Published When Filed).

Note to Subdivision (g). This is similar to 2 Minn. Stat. (Mason, 1927) § 9833, but is more extensive.

Rule 31. Depositions of Witnesses Upon Written Interrogatories.

In

This rule is in accordance with common practice. most of the states listed in the Note to Rule 26 (a), provisions similar to this rule will be found in the statutes which in their respective statutory compilations follow those cited in the Note to Rule 26 (a).

Rule 32. Effect of Errors and Irregularities in Depositions.

This rule is in accordance with common practice. In most of the states listed in the Note to Rule 26, provisions similar to this rule will be found in the statutes which in their respective statutory compilations follow those cited in the Note to Rule 26.

Rule 33. Interrogatories to Parties.

This rule restates the substance of Equity Rule 58 (Discovery-Interrogatories-Inspection and Production of Documents-Admission of Execution or Genuineness), with modifications to conform to these rules.

Rule 34. Discovery and Production of Documents and Things for Inspection, Copying, or Photographing.

In England orders are made for the inspection of documents, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 31, r. r. 14, et seq., or for the inspection of tangible property or for entry upon land, O. 50, r. 3. Michigan provides for inspection of damaged property when such damage is the ground of the action. Mich. Court Rules Ann. (Searl, 1933) Rule 41, § 2.

Practically all states have statutes authorizing the court to order parties in possession or control of documents to permit other parties to inspect and copy them before trial. See Ragland, Discovery Before Trial (1932), Appendix, p. 267, setting out the statutes.

Compare Equity Rule 58 (Discovery-Interrogatories— Inspection and Production of Documents-Admission of Execution or Genuineness) (fifth paragraph).

Rule 35. Physical and Mental Examination of Persons.

Physical examination of parties before trial is authorized by statute or rule in a number of states. See Ariz. Rev. Code Ann. (Struckmeyer, 1928) § 4468; Mich. Court Rules Ann. (Searl, 1933) Rule 41, § 2; 2 N. J. Comp. Stat. (1910) Evidence, § 19, p. 2226; N. Y. C. P. A. (1937) § 306; 1 S. D. Comp. Laws (1929) § 2716A; 3 Wash. Rev. Stat. Ann. (Remington, 1932) § 1230-1.

Mental examination of parties is authorized in Iowa. Iowa Code (1935) ch. 491-F1. See McCash, The Evolution of the Doctrine of Discovery and Its Present Status in Iowa, 20 Ia. L. Rev. 68 (1934).

The constitutionality of legislation providing for physical examination of parties was sustained in Lyon v. Manhattan Railway Co., 142 N. Y. 298, 37 N. E. 113 (1894), and McGovern v. Hope, 63 N. J. L. 76, 42 Atl. 830 (1899). In Union Pacific Ry. Co. v. Botsford, 141 U. S. 250 (1891), it was held that the court could not order the physical examination of a party in the absence of statutory authority. But in Camden and Suburban Ry. Co. v. Stetson, 177 U. S. 172 (1900) where there was statutory authority for such examination, derived from a state statute made operative by the conformity act, the practice was sustained. Such authority is now found in the present rule made operative by the Act of June 19, 1934, c. 651, U. S. C., Title 28, §§ 723b (Rules in actions at law; Supreme Court authorized to make) and 723c (Union of equity and action at law rules; power of Supreme Court).

Rule 36. Admission of Facts and of Genuineness of Documents.

Compare similar rules: Equity Rule 58 (last paragraph, which provides for the admission of the execution and genuineness of documents); English Rules Under the Judicature Act (The Annual Practice, 1937) O. 32; Ill. Rev. Stat. (1937) ch. 110, §182 and Rule 18 (Ill. Rev. Stat. (1937) ch. 110, § 259.18); 2 Mass. Gen. Laws (Ter. Ed., 1932) ch. 231,