I am of opinion that a party to an action may be examined at any time after advisement has been made of the nature of the claim or the defence. Section 391 of the Code so provides in terms, and is without qualification. The authorities cited against this view, holding that the examination could be had only after issue joined, were all cases decided prior to the year 1863.
The Legislature in that year amended section 395, by striking out the words “ in respect to any matter pertinent to the issue,” and deprives those authorities of the reason assigned for their conclusion.
The plaintiff should, however, be limited to such evidence as will tend to establish his alleged cause of action, and the defendant sought to be examined has the right to know the extent and nature of the claim made against the defendant. After service of a copy of a verified complaint in this action, the examination should proceed.
The application to set aside the order,-&c., is denied.