1 5. The Examiners — Members of Medical Profession. Since the object of the examination is to procure the best possible information as to the nature, extent, and probable duration of the injuries alleged to have been sustained, it follows that the person appointed to make the examination should be a competent, disinterested member of the medical profession, to be agreed upon by both parties to the controversy; or where such an agreement cannot be had, the selection should be made by the court. Appointment of Female Physician. Although there are no direct authorities on the point, it would seem that, irrespective of statutes, where the party to be examined is a female, a female medical or surgical practitioner should be appointed, if practicable, in preference to a male. In New York a female plaintiff is entitled to an examination by a physician or surgeon of her own sex as a matter of right. Examiner Distasteful to Plaintiff. Ordinarily a person should not be appointed at the instance of the adverse party, especially if the person proposed is distasteful or obnoxious to the party to be examined.5 - Inference from Refusal. In Elfers v. Woolley, 116 N. Y. 294, counsel asked the court to charge that the jury had a right to infer from the refusal to sub. mit to the examination that it would not disclose any act favorable to the plaintiff. The court replied that the jurors might give it such weight as they thought it ought to have. It was held that the charge was as favorable to the defendant as he was entitled to, and he could not complain. 1. Savannah, etc., R. Co. v. Wainwright, 99 Ga. 255. See also Richmond, etc., R. Co. v. Childress, 82 Ga. 719, 41 Am. & Eng. R. Cas. 216. One Who Has Already Testified in the case adversely to the plaintiff should not be appointed. Houston, etc., R. Co. v. Berling, 14 Tex. Civ. App. 544. Effect of Appointment. A physician appointed to make a physical examination under the provisions of the New York Code is an officer of the court subject to its directions and orders. Lawrence v. Samuels, 20 Misc. Rep. (N. Y. City Ct.) 15. 2. Sioux City, etc., R. Co. v. Finlayson, 16 Neb. 578; Stuart v. Havens, 17 Neb. 211; Missouri Pac. R. Co. v. Johnson, 72 Tex. 95, 37 Am. & Eng. R. Cas. 128; Houston, etc., R. Co. v. Berling, 14 Tex. Civ. App. 544. 3. Alabama G. S. R. Co. v. Hill, 93 Ala. 514: Southern Kansas R. Co. v. Michaels, 57 Kan. 474; Atchison, etc., R. Co. v. Thul, 29 Kan. 466; Sioux 16 Encyc. Pl. & Pr. — 32 497 City, etc., R., Co. v. Finlayson, 16 Neb. It Is the Province of the Court to determine who are proper experts to make a physical examination. Cleve land. etc., R. Co. v. Huddleston, (Ind. 1897) 46 N. E. Rep. 678. 4. New York-Necessity of Special Application. — Where by a statute (Code Civ. Pro. N. Y., § 873) giving the right to a physical examination it is provided that when the party to be examined is a female she shall be entitled to have the examination made by a physician of her sex, the person to be examined is entitled as a matter of right to have inserted in the order a provision that a female physician be appointed, without making any special application as a matter of favor or privilege. Lawrence v. Samuels, 17 Misc. Rep. (N. Y. Supreme Ct.) 559. Modification of Order by Requiring Female Physician. Where such an order fails to provide that the examination shall be by female physicians or surgeons it is not void for that reason, but may be modified in that particular. Lawrence v. Samuels, 16 Misc. Rep. (N. Y. City Ct.) 501. 5. Suggestion by Defendant. — The fact that application is made for the examination by physicians selected by Volume XVI. 6. The Examination. While the examination should be conducted as far as possible in the mode prescribed by statute, or, where not prescribed, in the mode best suited to procure the desired information, in no case should the party to be examined be subjected to needless annoyance or discomfort.1 Testimony on Trial as to Examination. The mode of conducting the examination may be shown upon the trial, and it seems that if the adverse party is sufficient ground for refusing it. Smith v. Spokane, 16 Wash. 403; Alabama G. S. R. Co. v. Hill. 93 Ala. 514. In Personal Aversion to Examiner. Missouri Pac. R. Co. v. Johnson, 72 Tex. 95, the court made an order for the physical examination of the plaintiff, and the defendant presented two physicians to make the examination, but the plaintiff declined to be examined by one of them, assigning no other reason except his personal aversion to that person. However, he expressed his willingness to be examined by any other respectable physician. The physician to whom no objection was made declined to examine the plaintiff alone, and the facts being reported to the court it refused to compel the plaintiff to submit to an examination by the physician objected to. The appellate court said: "The court did not err in refusing to compel plaintiff to be examined by the one physician to whom he expressed an objection, although this objection did not go to the competency or integrity of the physician proposed. If this power should be exercised at all, it should be by the appointment by the court of one or more disinterested experts, either of its own selection or such as may be agreed upon by both parties." Subsequent Examination before Jury. It is not error for the court, during the progress of a trial, to refuse to order a plaintiff who sues for injuries to his person to submit to an examination of his person by physicians who are witnesses for the defendant, in the absence of any showing whatever that justice would be promoted thereby, and especially so when the plaintiff submits to an examination by such witnesses in the presence of the jury. Sioux City, etc., R. Co. v. Finlayson, 16 Neb. 579. 1. See McGovern v. Hope, (N. J. 1899) 42 Atl. Rep. 830. plaint which requires that at the same time and place the plaintiff shall submit to a physical examination and that the testimony of the physician relative to said examination shail be reduced to writing by the referee, does not re quire that the examination by the physician shall take place in the presence of the referee or of the defendant's attorney, but only that a private examination shall be had and that subsequent to such examination the physician shall appear before the referee and testify as to the condition in which the plaintiff was then found. Bell v. Litt, (Supreme Ct.) 42 N. Y. Supp. 112. As to the Right of the Attorney of the Party examined to appear on the examination of the physician before the referee, see Lawrence v. Samuels, 20 Misc. Rep. (N. Y. City Ct.) 15. Swearing Medical Examiner. A physician appointed to make the examination under the provisions of the New York Code of Civil Procedure should be sworn. Lawrence v. Samuels, 20 Misc. Rep. (N. Y. City Ct.) 15. Province of Examining Physicians. — Physicians appointed under Code Civ. Pro. N. Y., § 873, which contemplates an examination as to the "nature and extent" of the injuries, may ask such questions as in their opinion are necessary to enable them to ascertain and report fully upon "the nature and extent of the injuries complained of " in the complaint. Wunsch v. Weber, 31 Abb. N. Cas. (N. Y. C. Pl.) 365. Presence of Attorney of Female Party.Where the statute provides that the physical examination of a female shall be made by a female physician or surgeon, neither the attorney of the person examined nor any other person has the right to be present or take part in the examination. Lawrence Samuels, 20 Misc. Rep. (N. Y. City Ct.) 15, in which case it did not appear who objected to the presence of the attorney or other persons. V. 2. Inquiry at Trial as to Conduct of Examination. Where medical experts are ordered by the court to examine a both parties decline to call the examining physicians at the trial the court in its discretion may do so.1 plaintiff, and such experts are called and questioned by the defendant as to the result of their examination, the plaintiff may ask on cross-examination how the examination was conducted, and what questions were propounded to him. Louisville, etc., R. Co. v. Falvey, 104 Ind. 409, 23 Am. & Eng. R. Cas. 522. Proof by Outsiders of Mode of Examination. Physicians who were present at the examination, on behalf of the plaintiff, should be allowed to testify to the particulars in which, in their opinion, the defendant's medical wit 499 nesses failed to make proper or full examinations. Laughlin ບ. Grand Rapids St. R. Co., 62 Mich. 220, 26 Am. & Eng. R. Cas. 377. Instruction by Plaintiff of Examiner's Testimony. — Allowing the plaintiff after the defendant has rested, and over his objection, to introduce as witnesses a committee of physicians appointed by the court at the defendant's request to examine the plaintiff's injuries is not an abuse of discretion as to the order of admitting testimony. Fullerton v. Fordyce, 144 Mo. 519. 1. Fullerton v. Fordyce, 144 Mo. 519. Volume XVI. II. GENERAL NATURE, 501. 1. Classification, 501. 2. When Used in a Cause, 502. 3. Petitions and Motions Distinguished, 503. III. USE OF PETITIONS, 504. 1. In General, 504. 2. a. To Affect a Fund in Court, 504. b. Administration of Trusts, 506. c. For Further Directions, 506. d. Protection and Control of Officers of the Court, 507. e. Other Uses, 507. As Substitute for Bill, 511. a. Where They May Be So Used, 511. b. Where a Bill Is Necessary, 513. IV. FORM, CONTENTS, SIGNATURE, AND VERIFICATION, 515. 1. Title and Address, 515. 2. Contents, 515. 3. Signature, 516. 4. Verification, 517. V. AMENDMENT, 517. VI. PARTIES TO PETITIONS, 518. 1. In General, 518. a. Strangers to the Suit, 518. b. Married Women, Infants, and Lunatics, 518. 2. Intervention by Petition, 519. VII. FILING OF PETITIONS, 519. VIII. NOTICE OF PETITIONS, 519. 1. In General, 519. 2. Where Process Is Essential, 520. IX. HEARING, 520. 1. In General, 520. 2. On Affidavits, 521. 3. Order of Hearing, 521. 4. Right to Answer, 521. X. COSTS OF THE APPLICATION, 521. 1. In General, 521. 2. Where the Petitioner Does Not Appear, 522. CROSS-REFERENCES. As to Petitions for Particular Purposes, see the various specific titles, as DIVORCE, vol 7, p. 49; FORECLOSURE OF MORTGAGES, vol. 9, p. 84; INJUNCTIONS, vol. 10, p. 869, etc. For Petitions under Codes of Procedure, see article COMPLAINTS AND PETITIONS IN CODE PLEADING, vol. 4, p. 587. Petitions of Intervention, see article INTERVENTION, vol. II, p. 494. CIAL Petitions for a Rehearing, see article REHEARING. And see generally articles DECREES, vol. 5, P. 946; JUDICIAL SALES, vol. 12, p. 2. L. DEFINITION. A petition is a written application addressed to the court, setting forth the circumstances on which it is founded, and praying the court to make some order or give some direction in relation thereto.1 IL GENERAL NATURE - - 1. Classification - In a Cause. Petitions are generally for things which are matters of course, or concerning collateral questions which arise during the progress of a cause in court.2 1. Black's L. Dict.; Bouv. L. Dict.: 2 Dan. Ch. Pr. 1604; Eustis v. Holmes, 48 Miss. 36. 2. Foscue v. Lyon, 55 Ala. 441; Sayre v. Elyton Land Co., 73 Ala. 85; Henderson v. Herrod, 23 Miss. 434; Codwise v. Gelston, 10 Johns. (N. Y.) 507; Lamb v. Ewing, 54 Fed. Rep. 269. After Bill Filed. As a general rule a petition cannot be presented in a cause until the bill has been filed. State Bank v. Plainfield First Nat. Bank, 34 N. J. Eq. 450. But this rule may be disregarded in cases of great emergency. London v. Bolt, 5 Ves. Jr. 129. Auxiliary to Main Cause. In Maitland v. Gibson, 79 Fed. Rep. 136, a bill having been filed under circumstances which warranted a proceeding by petition, the court said: "Why, then, should there be a separate proceeding? I perceive no necessity for it, and the resort to a formal bill seems to me to be clearly at variance with the practice which prevails in all other cases where a merely incidental or auxiliary order in chancery is desired. Consequently I regard the present bill not as an original bill invoking the general jurisdiction of the court in equity, but as an ancillary and dependent procedure, equivalent in effect and purpose to a petition in the original suit itself - in cident to and dependent upon it." And in Lamb v. Ewing, 54 Fed. Rep. - 269, it was held that since a petition was merely auxiliary to an original case, the federal court had jurisdiction irrespective of the citizenship of the parties or the amount in controversy, its jurisdiction over the original suit being undisputed. Suit Arising Out of Assignment. — Ia Codwise v. Geleston, 10 Johns. (N. Y.) 521, a debtor made an assignment for the benefit of his creditor G., who had previously obtained a judgment for the amount of the debt. In a suit subsequently brought against the debtor by other creditors, in which G. was joined as a defendant, he petitioned for the payment of his judgment out of the noney arising from a sale of the debtor's real estate, on which the judgment was a lien. The question involved being collateral to the original suit, it was held that the application was properly presented in the form of a petition, and that a bill was not necessary. Security for Costs. A tract of land having been sold by decree of the Court of Chancery, the master who made the sale was directed to pay the funds, when collected, to the parties entitled thereto, their respective interests having been ascertained by the decree. Thereafter the parties interested in the funds filed a petition in the cause, stating that the master had collected a large portion, if not all, of the funds, but had never accounted for |