'^-ffojnvDjo^' '^/5aaAiN()'3Wv ^«!/ojnvDJO>' ^.so: ■Y :% ^lOSANCElfj>^ ^ ^^,.OFCAllfO«»^ ^0F( ■V &Aava8n# 4S^r' ^ ^\WEUNIVER% >- " ^JiUDNVSOV^^ '-^/^aMiNn-^HV' '^^tfOdnvDJO"^ '"ymm-B^ .^w^UNlVER% ^TiljONVSOV^"^ o ^.- -I ^OFCAllFOff^ ^OFCAUFOff^ ^lllBRARY<9/^ ^,>MIIBRARYQ^ .^WE•UNIVFRS/A "5 ^lOSANCnfj^ nv3J0>' ^' ^rnjoNv-soi^ "^/^ajAiNn-awv' ^OFCAllFOPx^ ^.OFCALIFO% , ^WE UNIVER% avIOSANCFICt* ■< ^Aa3AINn-3WV^ ^WFUNIVERS/A . - . , ^ o ^lUBRARY^/. .^llIBRARYQr "^/ja^AiNomv^ '^.JOjnvD-jo^^ %ojnv3jo^ A\^EUNIVER^/A '^•TilJONVSOV'^ vvlOSANCn% o %aaAiNn-3WV^ ,^,OF•CAllFO% ^OF-CA11FO% ^ s ' II I ^•) This would, of course, include a place not within the Queen's dominions. NOT WITHIN queen's DOMINIONS. 9 and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or judge may direct." It is not easy to distinguish the precise powers intended Comparison of to be given by these two rules. Applications for commis- of Ord. sion or special examinations are, however, usually made XXXVII. under r. 5, and, indeed, the Form 37c of App. K. assumes that the application has been made under Ord. XXXVII. r. 5, where a special examiner is appointed (.s) . Neverthe- less, the difference in the wording of the rule is marked ; and it is suggested that the following distinctions may have been intended by the framers of the rules : — (i.) Eule 1 is confined to applications in actions or pro- ceedings for the assessment of damages ; whereas the powers given by r. 5 are, by the terms of that rule, to be exercised " in any cause or matter," in which are included, for instance, proceedings in arbitrations under sect. 162 of the Companies Act, 1862 (t), to which r. 1 would seem to be inappUcable. (ii.) Eule 1 seems to be intended to lay down the general rule that, except in certain specified instances, evidence at the hearing or trial should not be given by afl&davit, but should be taken viva voce in open court. One exception to the general rule provided for is that the Court or a judge may, for sufficient reason, order that any witness, whose attendance in Court ought to be dispensed with, be examined by interrogatories or otherwise before a commissioner or examiner. Rule 5 would seem to define the words "for sufficient reason " to mean " where it shall appear neces- sary for the purposes of justice " (u). (») In lie Ml/sore West Gold Co., 42 Ch. D. 535, and, in most of the reported cases, the applications for commissions likewise are reported to have been made under Ord. XXXVII. r. 5. (t) Re Mysore IVest Gold Mining Co., supra. {?<) In a judgment of Lord Justice Cotton {Bidder v. Bridges, 26 C. D. 10 TAKING EVIDENCE IN PLACES (iii.) Eule 1 being intended, apparently, to state that, as a general rule, evidence at the hearing or trial must be given vird voce in open Court, does not state expressly that, in the excepted cases, the Court may order the examination to be taken " at any place," that is, whether in or out of the jurisdiction. But r. 5, which is not a prohibitive rule, expressly empowers the Court to order that the evidence be taken " at any place." (iv.) Eule 1, in terms, applies only to witnesses; r. 5, to " any witness or person," which would include a party to the cause or matter. (v.) That r. 1 is a disenabling rule, and that r. 5 is an enabling rule, seems further to be shown by comparing their terms ; thus, the proviso at the end of r. 1 states that, where it appears that either party bond fide desires the production of a witness for cross-examination, or that such witness can be produced, an order 8haU not be made authorizing the evidence of such witness to be given by affidavit ; whereas under r. 5 the order may euqmicer, on such terms, if at p. 11; 53 L. J. Ch. 479; 50 L. T. 287; 32 "W. E. 4.13), the relation between rr. 1 and 5 of Ord. XXXVII. was discussed in the following terms : — "There is an Order .... namely, the first rule of the XXXVIIth Order, which provides that subject to these rules the witnesses at the trial of any action are to be examined viva voce in open Court, and, therefore, in order to exempt a party from the necessity and the prejudice, if he cannot bring the witnesses into open Court, of not being able to do so, one must see that there is something in these rules which enables the Court to direct that the examination of the witnesses shall be taken in some different way, and that is r. 5, that says, ' that when the Judge is satisfied, and when it shall appear necessary for the purposes of justice, the Judge or the Court may make an order for the examination of the witnesses before an examiner.' That applies to this case just as much as it does to the examination of witnesses abroad. What we have to consider, therefore, is whether we are satisfied on the evidence before us that it is necessary for the purposes of justice that these witnesses should be examined." NOT WITHIN queen's DOMINIONS. 11 any, as tlie judge may direct, any party to give the deposition in evidence ; it also appears that, in certain cases, the Coiu-t or judge might pos- sibly, under r. 5, give such directions in the order as would enable the depositions to be given in evidence even without the consent of the party against whom they may be offered, although the judge at the trial may not be satisfied that the deponent is dead or beyond the jurisdiction, or unable from sickness or other infii-mity to attend the hearing or trial (x) . (vi.) As r. 1 was not, it is submitted, primarily intended to enable evidence to be taken by commission or special examination, it is silent as to the terms upon which such depositions should be read at the hearing or trial, though it does provide for the terms under which affidavits may be read. Rule 5, on the other hand, expressly provides that the Court or judge may impose terms upon which such depositions may be read, and when no terms are expressly imposed or dhections given by the Court or judge ordering the examination, r. 18 of Ord. XXXVII. expressly provides the conditions imder which the depositions may be used at the hearing. It may be that the above distinctions between rr. 1 and 5 of Ord. XXXVII. were not intended to be drawn by the framers of those rules, but in the result it would appear that it is under r. 5 that parties, who desire to take the evidence of witnesses in places not within the Queen's dominions, should and do apply. The powers given by r. 5 are very mde, including, as Effect of r. 5 they do, powers " where it shall appear necessary for the ^^*^tt (x) It is most unlikely that sucli directions would be given, but the words " except where by this Order otherwise provided or directed by the Court or judge" in r. 18 of Ord. XXXVII. would seem to provide for the possibility of such directions being given. 12 TAKING EVIDENCE IN PLACES purposes of justice to make any order for the examination upon oath before the Court or judge, or any officer of the Court, or any other person, and at any place of any -svdtness or person," and although owing to the in- fluence of the practice which had grown up before the Judicature Acts these powers are in practice exercised in a limited way, yet it is suggested that, except in cases fall- ing within restrictions which have been imposed by deci- sions on the free exercise of these powers, litigants might avail themselves to a much greater extent than they do at present of the advantages which this rule was doubtless intended to afford ; for it would seem that it is rather because the requisite apj)lications are not made that these advantages are not in practice secured than because, if made, these applications would not be granted. Conditions on It may be stated generally that the conditions precedent mission and to the obtaining of an order for the examination of wit- special ex- nesses out of the Queen's dominions before commissioners granted are and before Special examiners are the same. Assuming, the same. therefore, that these conditions (which are discussed else- where (v/)) are satisfied, it becomes advisable for the practi- tioner to consider, in the first place, whether the examina- tion should be taken rivd voce or by interrogatories, and secondly, whether under an order for a commission or for a special examination. Relative It is probable that great expense would be saved by having and'disad- ^^^ examination taken upon interrogatories, and in having vantages of cross-interrogatories administered instead of a viva voce examination , , .., ^ l • - upon inter- cross-exammation ; but it is clear that it is only where rogatories and ^^ evidence to be obtained is of a simple kind that this viva voce ■•• examination, method should be adopted. Where the case is complex, or where the evidence that will be given is not known with any great degree of certainty beforehand, it would be advisable to obtain an order for a viva, voce examination entirely, or for a viva voce [y) Post, Ch. II. NOT WITHIN queen's DOMINIONS. 13 examination in addition to the examination by interroga- tories, and it is always safer for the respondent to cross- examine I'ii'd voce. Assuming that the case is one in which it is desired to As to whether I . . ..... . , special ex- examme by interrogatories, it is necessary next to con- aminer may sider before whom the examination may be taken. Now ^'"^^^ exami- J.1 • iiiii» ITT A • nation upon there is no doubt that before the Judicature Acts examma- interroga- tions by interrogatories were always taken abroad upon *^^^^" commission, both in the Courts of Common Law and in the Court of Chancery ; the Courts of Common Law had no power to order examinations abroad to be taken other- wise than by commission, and the Court of Chancery appointed special examiners only for the purpose of taking viva voce examinations. This old practice has greatly affected the modern pro- cedure, and litigants do not now apply in either division for examinations abroad by interrogatories except under a commission, as distinguished from a special examination. This, perhaps, may be explained fui-ther by the fact that the long order for commission contained in the Appendix to the Rules of the Supreme Court {z) provides for the taking of evidence abroad u]3on interrogatories, whereas the form of order in the Appendix to the Rules for the appointment of a special examiner {a) provides only for the taking of evidence before a special examiner viva voce. It cannot be doubted, however, that r. 1 contemplated that examinations abroad might be taken upon interroga- tories as well before a commissioner as before a special examiner; while r. 5 empowers the Court or judge to order the examination to take place upon oath before any person, making no limitation as to whether the examina- tion is to be upon interrogatories or viva voce. The f ramers of these rules evidently intended that the examination {z) App. K., No. 37. See App., post, p. 243. (a) App. K., R. S. C, form No. 37c, and see App., post, p. 239. 14 TAKING EVIDENCE IN PLACES Power to cross-examine and re- examine. "Where vlrd voce exa- mination proceedings before com- missioners and special examiner considered. miglit take place before a commissioner or an examiner, without distinction, whether the examination ordered were to be upon interrogatories or ■vird voce. It seems clear, therefore, that there is power to order the examination upon interrogatories to take place before a special examiner, although possibly the master may, on such an application being made, refuse to make the order on the ground that the established practice is to order a commission in such cases, and that the form of order for a special examination provided in the Appendix does not include a power to examine upon interrogatories. Eule 11 of Ord. XXXVII. provides that the examina- tion shall take place in the presence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination. This pro- vision would seem to be applicable where the order is for an examination upon interrogatories as well as where the order is for a rirci voce examination. Indeed, unless the respondent had had an opportunity of cross-examining the deponent the depositions could probably not be used at the trial {h). Assuming next that the case is one where it is advisable to examine witnesses rird voce, it is clear that there is power to order the examination to take place either upon commission or by special examination. The old Common Law practice, we have seen, was to give only a limited order for viva voce examination upon commission, and this old practice has become embodied in the form of long order for commission contained in the Appendix to the Eules of the Supreme Court. The use of this form, however, is not a sine qua non ; for r. 6, which directs that the order for a commission shall be in the Form No. 36 in App. K., refers only to the short order (c). {b) Nadin v. Bassett, 25 C. D. 1 ; 53 L. J. Ch. 253 ; 49 L. T. 454 ; 32 "W. E. 70. (e) Tlie words "the usual long order to be drawn up, and imless agreed NOT WITHIN queen's DOMINIONS. 15 The form of order, on the other hand, for the appoint- ment of a special examiner, contained in App. K., is per- fectly general, and does not limit the viva, voce examination in any way. It is submitted, therefore, that there is power to order an unrestricted vird voce examination, cross-examination, and re- examination (d), to take place either upon com- mission or by special examination (e) . In considering whether a special examination or a com- Advantages mission should be applied for (the powers of appointing i^atTonupon either commissioners or special examiners being assumed commission to be equal), it is important for the practitioner to deter- examination mine whether it is better in his particular case to apply compared, for a commission or for a special examination. So far as regards e.rj)ensp, the costs of obtaining a commis- Cost of si on are somewhat greater than the costs of obtaining the coinmisswn appointment of a special examiner, and if two commis- somewhat sioners act under a commission, as provided for in the form % . f' .^p. for the long order for commission, it is obvious that the costs cuting com- of executing the commission will be much greater than the form of lono- costs of executing the order for the appointment of one ^^^^^' much special examiner under Form 37c of Appendix K. This than cost of expense has caused litigants to apply, as a rule, for a ^g^^l order special examiner where rird voce evidence is to be taken, for special There is no reason, however, why, in ordinary cases, two commissioners should act. It seems that Ord. XXXYII. upon by the parties within one week, to be settled by the master [or as the case may be] " occur in the short order, No. 36. There is a note in the Annual Practice to this form which states that in orders in the Chancery Division the words in inverted commas are sometimes omitted in cases where there is no necessity for agreement between the parties, and the writ of commission (Form App. J., No. 13) is issued without the long order being di-awn up. As to this, see post, pp. 92 and 93. {d) See also r. 11 of Ord. XXXVII., as to the power to cross-examine and re-examine. (e) There seems to be no reason (other than the established practice at chambers) why the words " or upon interrogatories " should not be added after the words " viva voce'''' in Form 37c of App. K. If this were done, the powers of commissioners and special examiners would be equal. examiner. 16 TAKING EVIDENCE IN PLACES No necessity, r. 1 contemplates that only one commissioner should act : to have two and r. 5 of that Order provides that the examination should commissioners ^q^q place before " any other person " (the words " or When one persons" in the old r. 4 having been omitted). If the commissioner, parties should be unable to agree upon a commissioner, in(3- order the master might, as he frequently does in applications for much the g^ special examiner, appoint one in default of agreement. same as ' ±^ , in case of The cost of executing the order therefore would be exandner much the Same, and the disadvantage of ha\TJig a com- mission as regards cost would be that the cost of obtaining the commission is somewhat greater (/). Commis- As regards efficacy, the usual long order for a com- fu]?^ ^^^c- i^ission states in detail the procedure to be followed under tions, useful the Commission, and the commission itself contains minute not^lawyers: details, non-comj)liance with which may in certain cases but noncom- render the depositions liable to be suppressed. The pliance with -, p • , jp •!• the directions Order lor the appointment oi a special examiner, on the ^'^^/^^g^J other hand, is perfectly simjsle, and unincumbered by tions liable to minute formalities. There is less chance, therefore, of a be suppressed. -,• • -,• xt. j •!• tc i ^^ non-compliance avoiding the depositions. It, however, the person to take the evidence is not a man of much business capacity, the commission forms a guide which may inform him how an examination ought to be taken according to English law ; but there is no reason why the order for a special examiner should not also furnish information on this point, should it be thought in any case to be necessary ( • i,ii.jiL !•• to appoint a ^^^ Special exammers may be selected from persons uvmg lawyer to take abroad or in England ; and it is not essential that a gvt.(1giicg under com- Special examiner any more than a commissioner should be (/) In obtaining a commission, there will be the cost of the application for the order, then the settling of the long order, and the further expense in preparing and issuing the writ of commission. {g) It is always advisable to furnish commissioners and special exa- miners with a copy of Ord. XXXVII., unless they happen to be English lawyers. NOT WITHIN queen's DOMINIONS. 17 a lawyer, though it is usually safer in either case to mission or aj^point a lawyer to take the examination (//). examination. In the Appendix various forms of orders are set forth, and where the examination is to take place in a distant country it is always well to appoint alternative examiners, in case one should die or refuse to act, or he incapacitated from acting (i) . There are some countries in which it is unlawful for Letters of any private persons to administer an oath, and in such ^'^1*^^® • cases it was necessary formerly to issue a commission to the foreign Court, or to the judges of the foreign Court, for the purpose of taking the evidence. But by r. 6a of Ord. XXXYII. it is now provided as follows : — "If in any case the Court or a judge shall so order, there shall be issued a request to examine witnesses in lieu of a commission. The Forms 1 and 2 in the Appendix hereto shall be used for such order and request respec- tively, with such variations as cii'cumstances may require, and may be cited as Forms 37a & 37b in Appendix K." (A-). It is now the invariable practice where the commissioners intended to be apj)ointed are a foreign Court, to issue a letter of request under this rule. How the letter of request is obtained and executed is discussed elsewhere (/). If the examination is to take place in Ger- many or Spain (/), it is necessary that this method of examination should be resorted to. It is also not unusual to issue letters of request to Colonial Courts (in) . The result of the foregoing inquiry may be sum- Summary. marized as follows : — 1. In the circumstances mentioned {h) It is very advisable to appoint a lawyer to take a special examina- tion where the order is in Form 37c, since the directions given in the order are very meagre, and afford but little information to a layman. See note {(/), supra. (i) See Forms 8 and 9 in the App. at pp. 239, 240, and note (A) to p. 239, post. {k) See A-p-p., post, pp. 245, 252. {I) See post, pp. 53 et seq. {m) Post, p. 148. W. 18 TAKING EVIDENCE IN PLACES at pp. 53 — 61, the applicant should apply for a letter of request. 2. In other cases — (a) If the whole or any portion of the examination is to be by interrogatories, the practice is to order a commission, and not to aj)point a special examiner, although there can he no douht that the Courts have power to adopt the latter course. (h) If the examination is to he viva voce, the practice is to appoint a special examiner, although there is also no douht that the Courts have power to order a rivd voce examination before a commissioner. It is less expensive to obtain an order for a special examination than to obtain a commission and the examination itself is less costly if held before an examiner than if held before two commis- sioners. "Where a person who is not an English lawyer takes the examination, the directions contained in the commission are a safeguard to a certain extent against mistakes, and therefore provide an argument in such a case in favour of taking the examination before a commissioner instead of before a special examiner. On the other hand, although these directions are not included in the usual order for a special examiner, where a person who is not an English lawyer is appointed special examiner, they might and shoiild be inserted in the order, in which case the special examination would have all the advantages of a commis- sion. There is, however, always a danger lest the directions contained in the commission or order should not be fol- lowed, in which case it might happen that the depositions could not be used at the trial. When an order is made for the appointment of a special examiner in the Form 37c of App. K. there are fewer directions, and consequently there is less danger in this respect. It is always advisable to appoint an English lawyer to take the examination, and where this is done the procedure by way of special examination seems to be preferable to the NOT WITHIN queen's DOMINIONS. 19 procedure by way of commission, even tliougli only one commissioner be appointed. It will be found advisable sometimes to appoint one or more additional commissioners or special examiners to meet the case of the commissioner or special examiner, who is appointed to act in the first instance, dying or becoming incapacitated or refusing to act. Practice in Court of Banhruptcy, the Mayor^s Court and County Courts. For the powers of the Court of Bankruptcy, the Mayor's Court, and County Courts to order examinations of witnesses in places beyond the jurisdiction, see 2)ost, pp. ()4 et seq. For the powers of the Probate, Divorce and Admii-alty Division, see post, Chapter III. pp. 69 et seq. Affidavit evidence. — In addition to the methods of taking evidence otherwise than by calling a witness at the trial, which have been already enumerated in this chapter, there is a further method, namely, that by affidavit. Ord. XXXYII. r. 1, enables the parties, when they have Parties can so agreed, to give the whole evidence at the trial by affi- ^gree to give davit. In the Queen's Bench Division litigants seldom evidence at avail themselves of this rule, but the right to do so exists, affidavit. ^ The agreement must be in writing, and must be entered into by the solicitors of all j^arties to the action (o) . It must provide that evidence at the trial is to be given by affidavit alone, otherwise either party will be at liberty to supplement the affidavits by oral evidence (7;). The agreement entails trial before a judge without a jury {q). The Court cannot order the evidence to be given by (0) Heiv Westminster Brewery Co. v. Ilannah, 1 Ch. D. 278. {p) Glossop V. Meston and Isleworth Local Board, 47 L. J. Ch. 536 ; Att.-Gen. V. Fat/ham, /^c. Co., W. N. (187G) 94. (y) Brooke \. Wigg, 8 Ch. D. 510. c2 20 TAKING EVIDENCE IN PLACES The Court has power to order par- ticular facts to be proved by affidavit. affidavit, the matter being one which the rule provides that the parties axe to arrange for themselves by agreement (r) . If, however, after the agreement has been made either party finds it impossible to carry it out, the Court will, on application made, order the agreement to be annulled (-s). Also, the Court retains a right, if the affidavits are im- satisfactory, of refusing to accept them, and of ordering the attendance of the witnesses at the trial, notwithstand- ing the agreement which the parties may have entered into ; but the Court will not order the witness to be examined out of Court under Ord. XXXYII. r. 5 {f) . There is also power given to the Court or a judge by Ord. XXXVII. r. 1, to " at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial . . . ." These words undoubtedly give the Cornet power to dispense with the attendance of a witness at the trial, whether he be resident at home or abroad, and to substitute his written for his verbal evidence. They therefore j)rovide a method of taking evidence out of Court, and if necessary abroad, for the purposes of a trial, other than by commission, special examination, or letter of request. The method is, how- ever, seldom used, and, except possibly for the purpose of pro\dng purely formal matters, the Court will probably hesitate to order the evidence of any witness to be taken out of Court except subject to the many safeguards and advantages provided by the orders under which special examiners are appointed, and commissions and letters of request are issued. Added to which, the powers given by this rule are limited by the last words of it, which run as follows : *' provided that, where it appears to the Court or (?•) Gardiner Y. Eardy, W. N. (1876) 153, 185; Att.-Gen. v. Wiltshire, 1 Ch. D. 89 ; Patterson v. Wooler, 2 Ch. D. 586. {s) Warner v. Mosses, 16 Ch. D. 100. ij) Lovell V. Wallis, 53 L. J. Ch. 494 ; Winfeld v. Shoolbred, W. N. (1880) 192. NOT WITHIN queen's DOMINIONS. 21 judge that the other party bond fide desires the production of a witness for cross-examination, and that such witness can he produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit." The word " shall " is imperative, and the Court does not therefore possess the discretion, and the consequent power of weighing the balance of convenience and inconvenience both to parties and to witnesses, which it exercises in con- sidering the ordinary applications to examine a witness out of Court {u). An order that the evidence of witnesses resident abroad (/, e., in New South Wales) should be given by affidavit in pursuance of this rule was, however, made by Field, J., in a case of Macdonald v. Antelme, Paterson Sf Co., W. N. (1884) 72. In that case the appli- cation was not opposed, the defendants having entered no appearance, and the only question left to be determined w^as one of damages, in respect of which an inquiry had been ordered before a master. In a case of Gornall v. Mason (12 P. D. 142) Butt, J., allowed an affidavit, made by the attesting witness to a will, eight years previously, to be put in evidence, satisfactory proof having been given him of the impossibility of producing the witness. The application to use an affidavit should be made before trial {x) . Evidence may be always given by affidavit, without any order to that effect, in default actions in rem, and in references in Admiralty actions {y) . A consideration of the various methods of giving evi- dence by affidavit does not properly come within the scope of this work, and the practitioner is therefore referred for further particulars to the clear and voluminous notes added by the Editors of the Annual Practice to Ord. XXXVII. r. 1. (?<) Blackburn Union v. Brools, 7 Ch. D. 68. {x) Drcwitt V. Brewitt, 58 L. T. 684. {y) Ord. XXXVII. r. 2. 22 CHAPTEE II. PROCEEDINGS UP TO ORDER. The practitioner, having determined wliicli of tlie methods enumerated in the previous chapter, for obtaining evidence in a foreign country, he can most usefully employ, will next be concerned with the manner in which the order is to be obtained under which he proposes to act. An order in either case — that is, whether the applicant desires a writ of commission, an order for a special examiner or a letter of request — is to be obtained by similar process, i.e., on notice of motion or by summons at chambers, the former procedure applying to the Chancery, and the latter to the Queen's Bench, and the Probate, Divorce, and Admiralty Where to Divisions (a) . The summons in the Queen's Bench Divi- sion is to the master (h), and by Ord. XXX. r. 1 of the R. S. 0, of November, 1893, the application should be included in a general summons for directions. The form given under that order (No. 3a to App. K.) pro- vides for " commissions " and for " examination of wit- How to apply, nesses." It is to be observed, however, that the order only provides that such a summons {i. e. for directions) ma// be taken out, while the penalty for a subsequent applica- tion as to matters which might have been included therein is, by r. 6 of the Order, payment by the applicant of the costs of the subsequent application, " unless the Court or a judge shall be of opinion that the application could not properly have been made at the hearing of the original summons." It must often happen that the necessity for a commission is not known to a party at the period when he (a) Rules and Eegulations of Dec. 26tli, 1865, No. 132. {b) For form of sximmons, see App. C, pp. 234, 235. PROCEEDINGS UP TO ORDER. 23 takes out a summons for directions (supposing lie takes one out at all), and in such a case he need have no hesitation in making the application subsequently, (by giving two clear days' notice to his opponent of the application, and of the grounds for it). The granting of an order enabling evidence to be taken under either process is entirely a matter of discretion (c), but such discretion may be the subject of unlimited ap- peal (d). It follows that the granting of such an application must Granting of depend on the circumstances of each case, and that no matter c^^^^ general rule can be laid down. A party to a suit who is discretion, abroad may be examined by any of the three processes (e) ; I^^'^'^j |* ^^ but if, however, the witness whose evidence it is desired to examine a take is a party to the action, "that also appears to me to action. ° ^ be a matter of discretion, but the discretion will be exer- cised in a stricter manner, and the Court ought to require to be more clearly satisfied that the order for a commission ought to be made" (/) ; indeed, the applicant must "make out by affidavit a strong pruiid facie case why he should not attend and be examined at the trial" (r/). It lies upon the apphcant in such a case to satisfy the Court that his object is not to avoid cross-examination in open Court (//) ; and even if the Court should be of opinion that the refusal of a commission will prevent the evidence of the witness from being given at all, yet, if the non-attend- ance of the witness before the tribunal which has to decide {c) C'ocli V. Allcock, 21 Q. B. D. 178 ; overruling Kcm}) v. Tmnant, 2 Times Rep. 304 ; Lewis v. Kingsbury, 4 Times Rep. 626, 639. {d) Berdan v. Greenwood, 20 Ch. D. 764, n. ; Coch v. Allcock, siqtra. {e) Armour v. Walker, 25 Ch. D. 673; 32W. R. 214; Banque Franco- Egyptienne v. Lutscher, 41 L. T. N. S. 468. But this was not so under the old Ord. XXXVII. r. 4 : Slorer v. Simmons, W. N. (76) 40. (/) Lord Esher, M. R., in Coch v. Allcock, supra. [g) Light v. Governor and Company of Aniicosti, 58 L. T. N. S. 25. See also Nadin v. Bassett, 25 Ch. D. 21, and Laivson v. Vacuum Brake Co., 27 Ch. D. 137. (A) Berdan v. Greenwood, supra. 24 PEOCEEDINGS UP TO ORDER. the case, and the consequent inability of the tribunal to observe the demeanour and hear the answers of the witness, shoTild lead to injustice towards one of the parties, the commission ought to be refused (/). A foreign defendant will, however, find it easier to have his own evidence taken on commission than will a plaintiff. In the case of Emanuel v. Soltyhof (8 Times Eep. 331), the defendant, a Eussian subject living in Russia, desired a commission to take his own evidence. The plaintiff desired to see the defendant at the trial, and therefore opposed the commission. The Court of Appeal, however, ordered it to issue, the Master of the Eolls saying: "The Court had to exercise its discretion .... each case must depend on its own circumstances, and no rule as to the exercise of that discretion could be laid down. . . . There is a great differ- ence between a foreign plaintiff who comes here and invokes the aid of the Court and a foreign defendant whose case is brought here against his will. . . . Considering the nature of the case, considering the fact that the defendant is a Russian subject living in Russia, and considering all the circumstances, a commission ought to be ordered to issue." Fry, L. J., added, "... Balancing the convenience of both parties, in my opinion, under the circumstances the convenience of the defendant ought to be more consulted than the convenience of the plaintiffs. . . ." In the case of Hunt v. Roberts (9 Times Rep. 92), Mr. Justice Wills also observed : "A party can not, by merely bringing an action against another, drag bim from the other end of the world." The plaintiff, having chosen his own forum, will be treated more strictly than a defendant. " In my oj)inion, it would be wrong to apply to the case of a defendant the principles that are applicable to the ease of a plaintiff asking for a commission to examine himself," per Chitty, J., in Ross V. Woodford , (1894) 1 Ch. 38. (i) Berdan v. Grecmvood, supra. THE DISCRETION OF THE COURT. 25 In the words of Lindley, L. J. {Neiv v. Burns, W. N. 1894, p. 196), " Prima facie, a foreigner sued in this country is entitled to a commission to the place where he lives." In the case of KeeJey\. Wakley (9 Times Eep. 571,2)osf, p. 39), a foreign plaintiff, resident in Chicago, and suing in England an English defendant for libel, was refused a commission to take his own evidence abroad — mainly on the ground that, the question being chiefly one of damages, his evidence ought to be given before the jury. As in all cases wliere the judge or Court below has Discretion exercised a discretion, the Coiu-t of Appeal will be chary fnterfered" of interfering with an order made in pursuance thereof (/) ; '"'it^. they will, however, put to themselves the question, inde- j)endent of what may have been ordered by the Court below : " Is it necessary for the purposes of justice that the ordinary way of taking e\'idence should be departed from?" (k), and if the answer involves a doubt as to the propriety of the order made by the Court below, terms may be then imposed (/). In mtdin V. Bassetf (L. E. 25 Ch. D. 21), the Court of but the Court Appeal, not being conclusively satisfied of the plaintiff's may interfere inability to attend, (he being desirous of giving his own 7"*^ ^* °^ 1 611x1 S» evidence on commission,) imposed as a term of granting the order, that his deposition should not be read at the trial in the event of the defendant giving him notice to attend personally for the purposes of examination and cross-examination. In other words, the deposition of the plaintiff might be taken, but could only be used with the consent of the defendant. In Sheppard v. Dalhiac (30 Sol. J. 46), a summons for a commission having been issued three months after notice of trial, Kay, J., ordered it to issue, but directed the appli- {j) Butterfield v. Financial Kens, 5 Times Eep. p. 279 ; Emanuel v. SoUijlcnff, 8 Times Rep. 331 ; Emit v. Roberts, 9 Times Rep. 92. iji) Per Cotton, L. J. , in Berdan v. Greenwood, supra. (?) Coch v. AUcock, supra; Sheppardy. Balbiac, 30 Sol. J. 46. 26 PROCEEDINGS UP TO ORDER. cant to pay the costs of tlie summons, and to give security for the costs of the commission. It need scarcely be added that if the Court below has acted upon a wrong principle, or if it appears that a serious miscarriage of justice has taken place, the Court of Appeal will interfere (;;^). The Court will not direct evidence to be taken in an enemy's country {n). When appli- Time for maldng the AppVication. — The application should made. ^6 made immediately after issue joined (o). It is not as a rule proper to make it earlier {p), and it may be refused if not made within a reasonable time after {cj) . The ap- plication may, however, be successfully made before issue joined in cases of emergency (>•). And in some reported cases it was made before entry of aj)pearance (s). The rule, however, is as above stated, and the reason for it appears to be that, before issue joined, it is difl&cult to say who may, and who may not, be material witnesses it). A defendant should be more particular than a plaintiff to apply within a reasonable time after issue joined (?<), but the duty, nevertheless, rests upon a plaintiff [x), {»i) Berdayi v. Greemvood, supra; Emanuel v. Soltykoff, 8 Times Eep. 331 ; Butterfield v. Financial News, 5 Times Eep. 304. («) Barrick v. Buba, 16 C. B. 492. (o) Steuart v. Gladstone, 7 Ch. D. 394 ; 47 L. J. Ch. 154. [p) Mondel v. Steele, 8 M. & "W. 300 ; 9 Dowl. 812 ; Fynney v. Beasley, 20 L. J. Q. B. 395; 17 Q. B. 86. [q) Steuart v. Gladstone, supra. (r) Spalding v. Mure, 2 Tidd. 814 ; Fynney y. Beasley, supra; Brown y. Mollett, 24 L. J. C. P. 213 ; 16 C. B. 514 ; Flin v. Wilson, lb L. T. Joum. 47. («) Fischer v. HaJin, 3 C. B. N. S. 659 ; 32 L. J. C. P. 209 ; Broun v. Mollett, supra ; Norton v. Melbourne, 3 Biag. N. C. 67. {t) Mondel v. Steele, supra. (m) Brydges v. Fisher, 4 M. & Scott, 458 ; Summers v. Bawson, 3 Jur. 288 ; Weeks v. Faul, 6 Dowl. 462 ; Be Bossi v. Folhill, 7 So. 836 ; Butkr V. Fox, 9 C. B. 199. (or) Firie v. Iron, 1 M. & Scott, 223 ; 8 Bing. 143 ; 1 Dowl. 252 ; Steuart v. Gladstone, supra. HOW TO SUPPORT THE APPLICATION. 27 In a case where, three months after notice of trial, the defendant took out a summons for a commission, (which summons Kay, J., adjourned to the trial,) the Court ordered the commission to issue, hut upon the terms of the defendant paying the costs of the summons, and giving security for the costs of the commission (y) . How the Application is to he supported. — The application The affidavit either for a commission, an order appointing a special ^ suppor . examiner or a letter of request is, as we have seen (s), to be made in the Chancery Division on motion, in the Queen's Bench Division on summons to a master, and in the Probate, Divorce and Admiralty Division on summons to a registrar. The application is to be supported by affidavit. The affidavit may be made either by the party applying, his solicitor, or the clerk having the management of the cause {ci) . Contents of the Affidavit in support. — The affidavit should first state that issue has been joined (b), or if such be not the fact, it must state the reasons why the ordinary rule is to be departed from and the order made before issue joined {ante, p. 26). It should next contain the names of the witnesses whom it is proposed to examine (c) ; but this is not a sine qua non {d). It is well, however, to give the names of at least some of the witnesses, if only in ]proof of the bona fides of the application {e) . In some {y) Sheppard v. Balhiae, 30 Sol. J. 46 ; ante, p. 25. {z) Ante, p. 22. (a) M'Eardy v. Bitchcocl; 17 L. J. Ch. 256. {b) Mondcly. Steele, 8 M. &W. 300; 9 Dowl. 812. (c) Taylor's Evidence, s. 509 ; M'^llardy v. Hitchcock, ubi supra. {d) Nadin v. Bassett, L. R. 25 Ch. D. 21 ; JJimondY. Vallance, 7 Dowl. 590 ; Eeaty v. Young, 2 C. B. 702. (c) "As this deponent does not know who the witnesses are, how can he know whether they will come to England before the trial or not? This seems more like an application for a commission to enquire for witnesses than to examine them" : per Lord Abiager, C. B., in Gunter V. M'Tear or M'Xear, 1 M. & W. 201 ; 1 Gale, 440 ; 4 Dowl. 722. 28 PROCEEDINGS UP TO ORDER. cases it may be impracticable to- give the names, a fact which should, however, be made clear by the affidavit; in other cases the necessity for the order may appear on the pleadings, when a statement of the names may be dispensed with in the affidavit, subject, however, to an order directing the applicant to furnish them to his Names of opponent within a reasonable time (/). A statement of witnesses may ,, i • j i • m t^* i j* be sometimes the names was, subject to a similar condition, also dis- dispensed pensed with in a case where the applicant (a defendant sued in a representative capacity) undertook to bring the money claimed into Court {rj). It is not absolutely necessary to state in the affidavit the points upon which it is proposed to examine a witness, or the facts to which he will depose {h) ; but having regard to the extreme importance of satisfying the Court asked to make the order as to the materiality of the witness, {post, p. 33), it would seem highly dangerous to omit all mention of either point. Names of On application for an order appointing a special exa- commissioners . ,, pji ic ^ • i • • i t t or of examiner miner, the name 01 the person beiore whom it is intended should, if ^Q i^Q i\^Q examination should be stated — if possible in the possible, be or^ ■% • / \ ti • ^^ i • '^ -x • i mentioned in affidavit (/) . It IS Well to Similarly mention the name of the aadavit. ^ commissioner, but in neither case is it imperative to do so. The name of a commissioner need not be mentioned in the order (A-). It has been already stated that the making of the order is a pure matter of discretion [ante, p. 23) ; that discretion will, of course, be exercised according to the evidence adduced on the application — in other words, according to (/) Rougemont v. Eoyal Exchange Assurance Co., 7 Ves. 304. {g) Cow V. Einnerslcij, 6 M. & G. 981. (A) Cow V. Kinnersley, ubi supra ; Strachan v. Green, 9 Jur. 554, B. C. ; M'Bardy v. Hitchcock, 17 L. J. Ch. 256. (i) Doe V. Phillips, 1 Dowl. 56. The practice is as stated, but it has been held to be sufficient if the name is mentioned in the summons, or on the hearing of the summons. Fearon v. White, 5 Dowl. 713. (A.) KicolY. Alison, 11 Q. B. 1006; 17 L. J. Q. B. 355. THE AFFIDAVIT IN SUPPORT OF APPLICATION. 29 the contents of the applicant's affidavit. We therefore propose to set forth the various matters as to which the Court will have to he satisfied before granting the application. It follows that these matters must be dealt with sericdim in the aj)plicant's affidavit — in addition to those already mentioned — and facts set out which will lead the Court to the necessary conclusions. The remaining contents of the affidavit will therefore be dealt with under the heading (/) . Matters which must be 2>yoved before the Application will be granted. These matters may be tabulated as follows : — Summary of 1. That the action involves a real issue for the Court ^ffij^vir^'''^' to try. should deal 2. That the a23plication is bond fide. 3. That the examination abroad will be effective. 4. That the witnesses to be examined are material and their evidence admissible. 5. That there is some good reason why the witnesses cannot be examined here. To treat of them in order : 1. That the Action involves a real Issue for the Court to try. — The Court will, naturally, not allow the expense to be incurred of taking evidence abroad if there is, in fact, no question to be tried. That there is, however, no such question to be tried, must be very clearly established by those opposing the application in order to obtain its re- fusal upon this ground. \\iRc Boyse (20 Ch. D. 760), it was urged by the defendant, upon the plaintiff's application for a commission, that a preliminary argument should be {l) Precedents of affidavits in support of tlie application are given i^ost, at pp. 237 and 238. ■with. 30 PEOCEEDINGS UP TO ORDER. Tliere must be an issue to try. heard as to the validity of the plaintiff's claim. The claim was based upon a document which, according to the defendant's contention, was not a bill of exchange, or which, even if it were a bill of exchange, was on the face of it bad, being insufficiently stamped. It was also urged that the claim was statute-barred. Mr. Justice Fry said (p. 771) : "According to the view which I take, it is my duty to attend to the natm-e of the case and the arguments upon it so far only as to see whether there is any question to be tried, but not now to determine questions on the construction or the nature of the instrument, or on the Stamp Acts, or the Statute of Limitations, which, if they were determined in favour of the respondent, would be fatal to the claim, but if they were determined against him, would leave the commission to go." Bonafdes 2. That the Application is bona fide. — The necessary must be _ .... clearly shown, evidence upon this point will, in a great measure, be the same as that required to satisfy the Court of the fact that there is good reason why the proposed witnesses should not be examined here {infra, p. 35). Any suspicion awakened in the mind of the Court that the witness is being purposely kept out of the way will, of course, be fatal to the application, and the Com't will look with especial care to see that no such suspicion is possible when the witness, whom it is proposed to examine, is a party to the action. In Berdan v. Greemcood (20 Ch. D. 764, n.), the plaintifP, resident in Bucharest, sued in England for commission earned in Eussia, and applied to have his evidence taken abroad on the ground that he was suffering from fatty degeneration of the heart, which would render the journey to England a peril to his life. The Court of Appeal thought that Mr. Berdan was trying to keep out of the way and to avoid cross-examination in open com't, and refused his application (/) . In another (J) See also per Cotton, L. J., in langen v- Tate, 24 Ch. D. 522. EXAMINATION TO BE EFFECTIVE. 31 case (m), Mr. Justice Fry, after carefully examining tlie nature of the case as well as the evidence in support of the application, came to the conclusion that the case was ^mtiid facie suspicious, and that the witness, whose evidence it was proposed to take, ought to be submitted to a drastic cross- examination. He therefore refused to grant a commission. In considering a question of bona fides, all the circumstances will be looked at : time of application ; nature of the case ; and evidence in support of the application {m). It must be necessary, for the purposes of justice, that a commission should be issued («) before an order will be made. A de- No need for fendant making the application need not, as a rule, swear g^g^^. ^^^t ° that it is not made for delay ; neither need either party application swear to merits, unless the pleadings make it desirable to for purposes do so (o) . Sometimes, however, where it is possible that a °^ 'ore Foreign Laiv. — The ordinary Proving method of proving foreign law is by calling at the trial a at^tri^ *^ counsellor or other person learned in the law which it is proposed to prove, and who is himself a native of the 40 PROCEEDINGS UP TO ORDER. country whose laws are in question. The evidence may, however, be taken abroad, either by interrogatories, exami- nation before a special examiner, or under a letter of request. The affidavit in support of an application to do so must show clearly that the proposed evidence cannot be given, otherwise than with great difficulty, at the trial; and in a case where it was proposed to take such evidence in Spain, the order was refused because the affidavit was unsatisfactory uj^on this point (/). In Armour y. Walker (25 Ch. D. at p. 677) (a case in which the plaintiff de- sired to take evidence in New York as to American law). Lord Justice Cotton said : "As to the American lawyers, it is urged, and, as it seems to me, correctly, that none whose opinion was worth having would come over here, and I think that a sufficient reason for directing a com- mission to examine American lawyers in America." The affidavit should also contain the various matters, already indicated in this chapter, as necessary when evidence as to fact is desired to be taken abroad. Terms ■R-hich. have been imposed as condition of making an order for examination. The Order may he made vpon Terms. — The Court, if it thinks the evidence in support of the application unsatis- factory upon any of the points we have specified, may, and often will, imj)ose terms. The most frequent instances of terms being imposed occur in cases where there is some doubt as to the materiality of the proposed evidence; where, although the refusing of an order may altogether shut out the proposed evidence, the granting of it would deprive a party of a right of cross-examination in court which it is particularly desirable he should exercise ; and where, a defendant being the applicant, there is some ground to suspect him of a desire for delay. In Lanr/en v. Tate (24 Ch. D. 522), the Court of Appeal, having let in further evidence as to the materiality of a proposed witness, was still in doubt upon the point, and required security from the applicant for his opponent's (i) The M. Moxham, 1 P. D. 107. THE OEDER MAY BE ON TERMS. 41 costs of the commission, to meet the possibility of the proposed evidence proving immaterial. In Nadin v. Bassett (25 Ch. D. p. 21), the Court of Appeal was not conclusively satisfied of the applicant's (a plaintiff) inability to attend the trial (he desired to take his own evidence abroad), and was also of opinion that the case was one in which it was very desirable that he should be seen in Court. They made the order, subject to a proviso that the depositions should not be read at the trial in the event of the defendant giving the applicant notice, before trial, that he must attend personally. In Coch V. AUcock {supra, p. 37), the costs were left in the discretion of the judge trying the case — the usual order being to make them costs in the cause. In Sheppard v. Dalbiac (30 Sol. J. 46), a defendant issued a summons for a commission nearly three months after notice of trial had been given. Kay, J., adjourned the summons to the trial, and then made the order— but upon the terms of the defendant paying forthmth the costs of the summons, and giving security for the costs of the commission. There are several cases where a defendant. Money to be ^ • i. 1 £ I'j. i.ji 11, broucyht into being suspected oi a desire to create delay, has been court ordered, as a condition of being successful on his appli- cation, to bring either the total amount claimed in the action, or part of it, into court {k). If, when an order made by a master is appealed, the Court is in doubt as to the sufficiency of the security already ordered, the case may be referred back to the master to say whether such security should not be increased ij), or the Court in which the appeal is being heard can either alter the security or then impose one for the first time [m). The terms imposed are, however, not always confined to the giving of security {k) Balton v. Lloyd, 1 Gale, 102 ; Sparlccs v. Barrett, 5 So. 402 ; Ingram v. Blirjh, 2 Jut. 1044 ; Adams v. Corfeld, 28 L. J. Ex. 31 ; Lloyd v. Key, 3 Dowl. 253. (l) Be Rossi V. Polhill, 7 Sc. 836. {m) Langen v. Tate, ubi supra ; Nadin v. Bassett, ulii supra. 42 PROCEEDINGS UP TO ORDER. Documents to be deposited. Ql/., whether there is any power to order a party to produce documents on an examina- tion. There is power, how- ever, to have the documents deposited with the master ui London, and then sent out. for costs (a/). An appKcant has been ordered to deposit certain documents with the master as a term of obtaining the order, the documents to be sent out for production on the commission, fac similes being meantime left with the master in case of accidents happening to the originals {n). A term of this sort may be very desirable when a party is desirous of cross-examining his opponent's witnesses upon a document in the possession of that opponent which is provable aliunde, and which, therefore, will not neces- sarily be produced on the examination. It seems, however, that there is no power (unless by consent) to order a party to produce documents then in his possession before the examiner: all that can be done is to have the documents deposited with the master and sent out for general use on the examination as above mentioned, or to provide in the order that the witnesses shall be examined as to the contents of specified documents, if, after notice to produce them given by one party to the other, they are not forth- coming at the examination (o). The Court has refused to make it a term of the order that the applicant should, when executing the order, produce a bill of exchange admitted to be in his possession {p). For cases relating to the production of documents on an examination, which are in the hands of persons other than the parties, see post, p. 49. In a case of Leicis v. Kingsbury (4 Times L. R. 626), a defendant, sued for 17,000/., admitted that he had received 5,000/., which sum he paid into Court. He then applied to have his own evidence taken in Chicago. There was grave suspicion that the application was grounded on a [m) For a firrther term, see note [b), post, p. 192. («) Clinton v. Fealody, 7 M. & G. 399. (o) Ch. Arch. vol. 1, p. 533, where it is stated that an order to that efEect was made by Parke, B., at chambers, in a case of LlewelUn v. Pershaw, on May 10th, 1848 ; Ctmlife v. Whitehead, 3 Dowl. 634. {p) Cunliffe V. Whitehead, 3 Dowl. 634 ; Baddeley \. Gilmore, 1 M. & W. 50, 1 Gale, 410. WHO CAN OPPOSE THE APPLICATION. 43 desire for delay. The Divisional Court (confirmed by the Court of Appeal) allowed a commission to go only upon the terms that the 5,000/. in Coui-t should at once be paid out to the plaintiff, and that the trial of the action should not be postponed if the commission were unduly delayed. The Court does not seem to have specified what they would consider undue delay, but the point would doubtless have been considered on an application to postpone the action. From a consideration of the foregoing cases it appears that the terms which the Court is in the habit of imposing are as varied as the circumstances which require them. Time within which the Commission must he returned. — It is Time for not unusual for the iudge making the order for an ^'^t^™"^r . ... . . commission. examination to limit the time within which the depositions must be returned. Kekewich, J., in a case of Gedge v. Felling (W. N. (1892) p. 44), has announced that in all cases where, in his Court, an examination is to take place before a special examiner, he will limit the time within which the examination is to be concluded {q) . The reasons given by the learned judge apply equally to examinations to be held abroad. In a case of Proctor v. Tyler (3 Times Rep. 282) , there had been considerable delay in executing a commission, and an application to extend the time at which it was returnable, from January to June, was refused, the Court only giving an extension sufficient to allow of the return of such depositions as had been abeady taken. Who can oppose the Application. — The parties to an action Witnesses can of course be heard on the application either to oppose a^'^u^ation"^^ in toto, or to ask for terms (r). An objection to the appoint- to examine ment of the British Minister at Teheran as special ex- aminer, because one of the proposed witnesses was his per- sonal attendant, was held captious, and did not prevail (.s) . (q) For the learned judge's words, see post, p. 142. (r) lie Smith, Knight ^- Co., 8 Eq. 23. (s) Ongley v. 2liU, 22 W. R. 817. 44 PEOCEEDINGS UP TO ORDER. Tlie proposed witnesses can, however, not be heard (t), prob- ably because if they object to the examination their simple course is not to attend it. When the examination takes place abroad, there is at present no means of compelling a witness to attend, or to take the slightest notice of the pro- ceedings, except where the examination takes place in one of the colonies, or possibly when it is held by a foreign judge under a letter of request (as to which, see infra, at p. 54). Cross-examination of an Affidavit -Witness. — Order XXXYIII. r. 1, is in these words: "Upon any motion, petition, or summons, evidence may be given by affidavit ; but the Court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit." According to the case of Strauss v. Goldschmidt (8 Times Eep. p. 239), a foreigner resident out of the jurisdiction can be cross-examined abroad under this rule, upon his affidavit, (see also Concha v. Concha, L. B,. 11 App. Cas. 541), and it of course follows that a British subject can be. In Strauss v. Goldschmidt the order for such a cross- examination was, as a matter of discretion, not made, but the Court (Coleridge, L.C.J., and Collins, J.) was clearly of opinion that the power to make such an order existed. Cross-exami- The result of this decision appears to be that the Court nation abroad /-it l \ ^ t j.- j. i i of an affidavit (mciudmg a master) has a discretion to order such an witness. examination of a witness who has sworn an affidavit in any interlocutory matter, and that wherever the witness may happen to be. The evidence of the deponent being for the purposes of the " motion, petition, or summons " properly given by affidavit, the considerations relating to the relative advantages of producing the witness in Court, and examining out of Court, do not apply, and it is not usual for the persons desii'ing the cross-examination to {t) Re Contract Corporation, 13 Eq. 27. CROSS-EXAMINATION OF AFFIDAVIT- WITNESS. 45= support the application by aflSdavit ; although there seems no reason why, if there are any special reasons, not apparent on the witness's affidavit itself, for the cross-examination, they should not be deposed to. It is conceived that the only matters which the Court, before exercising a discretion under this rule, will require the applicant to prove, are those numbered two and four in the earlier parts of this chapter : — namely, that the application is bond fide, and that the affidavit upon which it is desired to cross-examine is material. As to tlie general principles upon which the Court will exercise its discretion when once these matters are proved, see the notes in the Annual Practice to Ord. XXXVIII. r. 1, and to Ord. XXXVII. r. 20. There are some affidavits upon which there can be no cross-examination, and they include affidavits showing cause against a garnishee order nisi [u), of documents {x), which are purely formal [y), or in support of an applica- tion for leave to amend a writ (s). The question of the delay which such a cross-examination entails is always material {a), and is obviously more likely to weigh against the applicant when it is to take place abroad. The Court, having decided that a cross-examination under this rule is to take place, will make an order that it shall be held either before a commissioner or a special examiner, probably the latter. In countries where letters of request are required to be used, that course must obviously be adopted [b), and in such a case it will be remembered that there are doubts as to whether it can be (m) Jeffris v. Tomlinson, 3 Times Rep. 193. {x) Manby v. Bcwicke (No. 2), 8 De G. M. & Cr. 470 ; Eall v. Truman, 29 Ch. D. 307. (y) National Provident, ^-c. Association v. Carstairs, 11 W. E. 866. {z) Conyheare v. Lewis, 29 "W. R. 391. As to the class of affidavit upon ■whicli a cross-examination can be had, see the notes in the Annual Prac- tice to Ord. XXXVII. r. 20. (a) Re Jones, 95 L. T. Jo. 36. (i) As to the practice, s>qq post, p. 53. 46 Suggested means of com.' pelling the attendance abroad of an afiidavit- ■witness for cross-exami- nation. Order for examination not acted on may be quashed as of course. Second com- PROCEEDINGS UP TO ORDER. conducted by an Englisli advocate. The party obtaining the order must, it is conceived, proceed exactly as if he had issued a summons in the ordinary course for an examination abroad, and obtained an order upon it. It is to be observed that the words of this rule {i.e., Ord. XXXYIII. r. 1) run, " the Court or a judge may . . . order the attendance for cross-examination of the person making any such affidavit." As has already been pointed out, there is at present no possible power to enforce such an order in a foreign country (the words of Ord. XXXYII. r. 5 are, "may make an ox^QV for the examination . . . of any person ") ; and there- fore if the order is made merely for the attendance of the affidavit-witness before the special examiner or commis- sioner abroad, it may very probably prove ineffective. It is suggested that the difficulty may be got over by further ordering that, unless the witness do attend for cross- examination, his affidavit shall not be read on the hearing or, if it has been already used, shall be ignored. A somewhat similar procedure was followed (with refer- ence to a cross-examination ordered to take place within the jmisdiction) in the case of BingJey v. Marshall (6 L. T. 682) ; and also by Butt, J., in The Parisian (13 P. J). 16 ; a)ite, p. 38) ; but see also the case of RaivUns v. Wickham (4 Jur. N. S. 990), where an affidavit was not excluded because the affidavit- witness refused to come to London to be cross-examined. Appeals. — The subject of appeals has been dealt with supra, at p. 26. If nothing has been done under an order for examination it may be quashed almost as of course by the party who obtained it. The master will make an order to that effect (r) . Second Commission. — A second commission wUl very (c) Hodges v. Dali/, 8 Dowl. 308. 1 CASES IN WHICH AN ORDER CAN BE MADE. 47 rarely be granted. " It is a very unusual thing to grant mission rarely a second commission, and it ought never to be allowed, " except upon substantial grounds " {d) . A telegram saying, *' more essential witnesses here," is not such a substantial ground, and an order for a second commission grounded thereon will be set aside (c). Substantial grounds were, however, held to exist in a case of Western Bank of New York v. Koppel (8 Times Rep. 36, 286). In that case a commission was obtained by the plaintiif in July, 1890, to take evidence in New York, and the defendant joined therein. The commission was returned in May, 1891, and the defendant thereupon applied for a second commission, and that it should issue to Bogota, supporting the application by an allegation to the effect that until the evidence had been taken in New York, it was impossible to ascertain whether or no it would be necessary to take evidence in Bogota. The judge in chambers made the order for a second commission. He subsequently substituted Paris for Bogota upon an allega- tion that the principal witness whom it was then desired to examine had gone there, but so much of his order was reversed, the Court of Appeal directing, though with some hesitation (p. 286 of the report), that the commission to Bogota should issue. In ichat cases an ^Examination abroad can he ordered. — An order can be made where there is no action, but a dispute between the liquidator of a company and a shareholder, and where the amount to be paid for the shareholder's interest has been referred to arbitration under sect. 162 of the Companies Act, 1862 (/). It is to be observed, however, that the dispute there Examination was one which could not be the subject of an action, in^hecase^^ in that it arose in the winding-ur) of a company under ^^ ^ compul- sory arbitra- {(l) Wills, J., in Croivther v. Nelson, 7 Times Rep. 653. ' (e) Ibid. If) Re Mysore }Fest Gold Co., 42 Ch. D. 635. 48 PEOCEEDINGS UP TO ORDER. the Companies Act of 1862, and was hj sect. 162 of that Act compulsorily referred to arbitration, and the Court grounded its decision ujDon the compulsory nature of the arbitration; Chittj, J., saying: . . . " The Cornet will not assist a mere domestic forum ; but when the forum is made by Act of Parliament the only tribunal for the determination of a question the Court wiU render assist- ance." In Be Shaw and Eonaldson ([1892] 1 Q. B. 91), the parties had agreed to refer their dispute to arbitration, no action having been brought. During the arbitration Shaw made an application to examine witnesses on com- but not where mission in Nova Scotia. The judge in chambers held the arbitra- j^]^^^ j^g j^g^^j j^q iurisdiction to make any such order, and tion IS volun- ... . ... tary, and his decision was uj)held in the Divisional Court, upon the action.^ ^° ground that the arbitration was not a " matter " within Ord. XXXVII. r. 5, and sect. 100 of the Judicature Act, 1873. No order for an examination under Ord. XXXYII. can be made except in a " pending litigation between con- testing parties." In Re Heicitt, L. R. 15 Q. B. D. 163, it was argued that r. 58 of the Bankruptcy Rules, 1883, gave to the Bankruptcy Court a power similar to that given to the High Court by Order XXXVII. r. 5, and that an order should be made for the examination of persons capable of giving information as to a deceased debtor's estate. In considering the effect of Ord. XXXVII. r. 5, Cave, J., said (p. 163): " It is impossible, as it seems to me, to avoid seeing that this provision applies only to the examination of witnesses in matters where there is a pending litigation between contesting parties. The whole scope of the order is confined to cases where testimony is to be obtained for the purposes of an action or matter analogous thereto between litigating parties" (./). (/) In Re Sprbigall, "W. N. (1875) 225, which was a summons under the Vendor and Purchasers Act, 1874, Jessel, M. R., directed the evidence of a witness, who refused to make an affidavit, to be taken before an examiner of the Court. THE IDENTIFICATION OF DOCUMENTS AND ARTICLES. 49 The Official Referee can make such an order in an action sent to him for trial {jwst, p. 72). The Identification of Documents or Articles upon a Com- It may be a • • /^'••ij J. T_ i.i term of the mifsw)). — Original documents may be sent out on a com- order that the mission for the purpose of identification (g) . As to the P^^^^ies should 1 ill • J 1 1 T p o nafique," and are transmitted accord- ingly. Having been executed they are returned, by the British representative in the country where they have been executed, to the English Foreign Office, together with the depositions taken under them, and a note of the expenses incurred by the particular British Embassy or Legation concerned. The Foreign Office officials forward both letters, depositions, and accoimt to the person from whom they received the former (generally the senior master) , and notice is then given by him to the solicitor of the party at whose instance the request has been sent out, intimating that the depositions have been returned and can be had upon payment of the expenses covered by the undertaking. When the money is paid and the depositions handed over, (ar) Cape Copper Co. v. Comptoir d'£scompte de Paris, 38 W. R. 763. EVIDENCE DE BENE ESSE. 61 the senior master, (or registrar as the case may be), sends the account and the money to the chief clerk's department, and obtains a receij^t in due course. As to the issuing of letters of request out of the Mayor's Request Court, see i;o.Y,_p. 68. ^ irMaToVf By the Foreign Law Ascertainment Act (24 & 25 Vict. Court. 0. 11), the superior Courts of this country are empowered to " remit a case, with queries, to a Court of any foreign State with which her Majesty may have made a Convention for that purpose, for ascertainment of the law of such State." Unfortunately no Conventions have been made in pursuance of the Act (which was passed in 1861), and it remains consequently a dead letter. Evidence de bene esse.] — It was held in Bidder v. Power to Bridges {y), that the Court has jurisdiction under Ord. nati^on^^^i^Me XXXVII. r. 5, when it is " necessary for the purposes of ^**^ of witness toitJlifl tllft justice," to make an order for an examination de bene esse jurisdiction of witnesses upon an ex parte application ; but it was there ^^ cj: parte . ^ . . . application. stated (s) that " if the Court is satisfied either when the ap- when order phcation is made, or upon an application to discharge an "^^^ ^^e re- order granted ex j^nie for the examination of witnesses de charged after bene esse, that it is not necessary for the purposes of justice, ^^*°§" ™^<^®- either altogether or to the extent to which it goes, then the Court ought not to grant it in the one case, and ought not to maintain it any further than is necessary in the other." " As a rule, it is a prima facie ground for ordering on an Grounds for exjjarte apphcation an examination de bene esse icif/tin the OTder"^ jurisdiction under r. 5 of Ord. XXXVII. that the witness is seventy years of age, or is dangerously ill, or is about to go abroad" («). The applicant must, in his affidavit, con- Affidavit in form to the requirements of Ord. XXXVIII. r. 3. " The application. [y) 26 Ch. D. 1. (z) Per Lord Selbome, L. C, p. 8. (a) Per Kay, J., at p. 3 ; and D. C. P., 4th ed. 855. 62 PROCEEDINGS UP TO ORDER. Whether power to order exami- nation de bene esse of witness out of the jurisdiction on ex parte application, considered. Notice of order and of examination. Court ought to know specifically what information as to the age of each of those persons he has received, and what means have been taken to inquire in the best quarters upon that subject, and on what his belief is founded. I think it ought also to appear what is the nature of the evidence which these persons are to give " (h). It is submitted that the reasoning upon which the case of Bidder v. Bridges was decided would apply equally to a case where it is desired to examine de bene esse a witness residing ouf of t/ie jurisdiction, who is seventy years of age or dangerously ill. In such a case a party might apply ex parte upon a properly-framed afi&davit, i.e., an affidavit containing the material specified ante, at p. 29, plus the additional matters dealt with by Lord Selborne in Bidder V. Bridges. The applicant, on obtaining his order, should, if possible, give notice of the fact to his opponent, as also of the time and place of examination, in order that the opponent may have an opportunity of applying to rescind the order, or of being present at the examination, for the purpose of cross- examining the deponent (c). If this be not done, the evidence, when taken, will be of doubtful value (even if leave to read it at the trial be obtained), seeing that it will not have been tested. The whole theory of examinations out of Com't is to permit of evidence being so taken only when it can be properly tested {d). Except in urgent cases, it is not likely that an order to examine witnesses out of the jurisdiction would be made ex parte; but, where the case is urgent, it seems that such an order, subject to (i) Bidder Y. Bridges, 26 C. D. p. 11, per Lord Selborne, L. C. A suggested precedent is gixenpost, at p. 238. {c) See Ord. XXXVII. r. 11. [d) The Chancery Order of Feb. 5, 1861, r. 6, provided that no one had the right to be present but those representing the party producing the -witness. This rule is inconsistent with Ord. XXXVII. r. 11 of R. S. C. 1883, and was repealed in App. Ord. of the R. S. C. 1883. See App., post, p. 226. EVIDENCE DE BENE ESSE. 63 the limitations mentioned in the case of Bidder v. Bridges, might be made {c). If an ex jyarfe order of this kind has been improperly obtained, (/. c, by misstatements in the affidavit filed in support of the application, or by a suppression of material facts), or if it was obviously " not for the purposes of justice," it will, as already stated, be quashed at the instance of the applicant's opponent. If the order has been properly obtained, but no notice of the order or of the examination held under it has been given sufficient to enable all parties to attend, then the proper course is to object at the trial to the reception of the evidence, and, unless the applicant can prove that he was unable to give such notice, the objection will probably prevail. As the order will only be made ex 2^(^>'te in cases of urgency, and as an examination by special examiner can usually be more speedily put into effect than one by interrogatories, it is usual to employ the former method. The applicant having obtained ex parte his order for the appointment of a special examiner (who must, of course, be named at the time of the application), will draw it up in the ordinary course. The form will require considerable modifications to meet the urgency of the case, and a suggested precedent is given in the Appendix, at p. 242. A precedent of the affidavit in support of the application is also given post, at p. 238. Terms upon which such an Order may he made. — In a case of !>« *««« ^««« Treasury Solicitor v. White (55 L. J. P. 79), the evidence upoa terms. (e) In Warner v. Mosses, 16 Ch. D. at p. 103, Jessel, M.R., said, " I do not say such a case cannot arise, but, as a general rule, a witness should not be examined ex parte. The practice under this rule is, that the witness examined de bene esse is examined by both parties. There might be a case — a case of imminent danger of death — in which leave might be given to either party to attend, and therefore it would not be absolutely necessary that both parties should attend, but it must be ehown to be necessary for the purposes of justice." 64 PROCEEDTNGS UP TO ORDER. of a witness had been rejected at the trial, and the party who had tendered the witness appealed. Meanwhile the witness, who was an old man, became dangerously ill. The Court of Appeal allowed his evidence to be taken before a special examiner de bene esse, and for the pur- poses of the appeal; but upon terms. Cotton, L.J., said: " I do not know of any precedent for such an application, but I think it ought to be granted, on the solicitor to the Treasury undertaking to abide by any order which the Court may hereafter make as to the costs of this appli- cation, and the costs caused by the examination Whether the evidence is admissible or not is a question we shall have to consider when the appeal comes before us, and the order must be made without prejudice to any objection which may then be raised to the admissibility of the evidence." It will lie upon the party who has taken evidence de bene esse to prove, at the trial, as a condition precedent to using the evidence, that the witness cannot then be produced in Court (e) . Power of the Poicer of ihe Mayor'' s Court to order Evidence to he tahen Co^t^to order ^''^ ^f ^^'^ Jurisdiction. — From the report of the case of eTidence to be (j^^ y. Leech {/), it is clear that, up to the year 1857, a the jurisdie- commission for the examination of witnesses out of the ^^^^' jurisdiction could not issue on the common law side of the Mayor's Court, but that the Mayor's Court had power, on its equity side, to issue " letters inquisitorial " (in the nature of commissions), for the examination of witnesses beyond the jurisdiction. In a common law action in that Court it was necessary to file a bill on the equity side, praying that a commission might issue for the purpose of taking the evidence in the common law action. Power to In the year 1857, however, it was provided, by sect. 26 order comtnis- {e) Barton v. North Staffordshire Railicay, 35 W. R. 536. (/) 1 C. B. N. S. 617 ; 26 L. J. C. P. 125 ; 3 Jur. N. S. 442. POWERS OF THE MAYOE's COUKT. 65 of the Mayor's Court of London Procedure Act, as shn to issue follows :— « Upon the application of any of the parties to CoiSTct' any action depending in the Court, the Court may order a commission to issue for the examination of witnesses upon oath at any place or places beyond the limits of England and Wales, by interrogatories or otherwise, and by the same or any subsequent order or orders may give all such directions touching the time, place, and manner of such examination, and all other matters and circumstances con- nected with such examination, as may appear reasonable and just." In the Appendix, at p. 251, is set out a form of commission now in use in the Mayor's Court. The form of commission is the form which is numbered 57 in the Appendix to Clyn, Jackson, and Probyn's valuable work on the Jurisdiction and Practice of the Mayor's Court. It Desirable to would, however, be advisable, as a general rule, to apply have one com- for the appointment of a si)igk commissioner, to be agreed upon between the parties, and in default of agreement to be nominated by the registrar. There is nothing in sect. 26 of the Mayor's Court Act to render the appoint- ment of two commissioners, one to represent each party, necessary. The practitioner who obtains an order for examination before a single commissioner should, in drawing up the order and the writ of commission, modify the usual forms by substituting provisions similar to those contained in Forms 8, 9 or 16, which are set out in the Appendix, at pp. 239, 240 and 249, post. By sect. 10 of the Local Courts of Eecord Act (35 & 36 High Court Vict. c. 86), which was apphed to the Mayor's Court by Jf oJ^erT"' an Order in Council {g), it is provided as follows : — commission " Upon the application of any of the parties to such Court action. action depending in the Com-t, any one of the judges of the superior Courts at "Westminster may order a commis- sion to issue for the examination upon oath at any place or (jr) See "London Gazette," 26th June, 1873. W. F 66 PROCEEDINGS UP TO ORDER. places beyond the limits of England and "Wales, by inter- rogatories or other-^dse, and by the same or any subsequent order or orders may give all such directions touching the time, place, and manner of such examination, and all other matters and circumstances connected with such examina- tion, as shall appear reasonable and just." This provision does not affect the right of the Mayor's Court to issue commissions under sect. 26 of the Mayor's Court Act- It is more doubtful whether the Mayor's Court has jurisdiction to make an order for the appointment of a special examiner to take evidence beyond the limits of England and Wales. By sect. 24 of the last-mentioned Act (which, it will be remembered, by sect. 26, empowered the Mayor's Court to issue commissions to examine witnesses beyond the limits of England and Wales) it is provided as follows : — " The Court may in any action, upon the application of any of the parties thereto, order the examination on oath, upon interrogatories or otherwise, before the registrar or other person or persons to be named in such order, of any witness or witnesses i)i any part of England and Wales, and by the same or any subsequent order or orders may give all such directions touching the time, place, and manner of examination, and all other matters and circumstances con- nected with such examination, as may appear reasonable and just." Doubtful Before this statute was passed the Mayor's Court had }''^-y,f' ^f„^P;' 1 no power to order on its common law side either a com- examiner. mission or special examination for the purpose of taking evidence abroad. Sect. 26 gives the Court the power to order a commission abroad for the j)urpose, and sect. 24 gives the Court power to appoint a special examiner to take evidence, but in terms limits his appointment to "any part of England or Whales." It seems clear, therefore, that it was not intended that power to order an examination beyond the limits of England and Wales before a special POWEES OF THE MAYOE's COUET. 67 examiner should he conferred on tlie Mayor's Court by the Act in question. Order XXXVII. r. 5 of the High Court does not apply to the Mayor's Court, and, consequently, it seems to follow that the Mayor's Court has no power on its common law side (none, at any rate, unless both parties consent) to appoint a special examiner to take evidence beyond the limits of England and Wales. A practice appears, never- theless, to have grown up in the Mayor's Court, in actions on its common law side, to make such an order ; but it is believed that the application is made, in the first instance, for a commission, and that an order for the appointment of a special examiner in lieu of an order for a commission is only made when both parties consent. It is to be observed that the powers of a commissioner (who can be appointed without consent) and of a special examiner are practically identical when the commissioner is empowered to take evidence viva voce, and to act alone. - The form of appointment is, however, different. (See ante, p. 65.) With regard to actions on the equity side of the Mayor's Powers on the Court, it appears from the case of Cox v. Leech, above ^'^'^ ^ ^^ ^' referred to, that the jurisdiction of the Court to order "letters inquisitorial," in the nature of commissions, to issue for the examination abroad of witnesses upon inter- rogatories, or otherwise, was well established before the year 1857. This power still continues and has been con- firmed by sect. 26 of the Mayor's Court Procedure Act, 1857. The Court of Chancery had jurisdiction to order the appointment of a special examiner to take evidence viva voce out of the Queen's dominions, and inasmuch as the equity jurisdiction of the Mayor's Court was concur- rent, in so far as it had equity jurisdiction, with that of the Court of Chancery, it is not improbable that the Mayor's Court had a like jurisdiction to order the appoint- ment of a special examiner to take evidence abroad in suits on the equity side of the Couit. The authors are, however, F 2 68 PROCEEDINGS UP TO ORDER. Discretion of registrar will be exercised upon same lines as that of master in Q. B. D. The granting f'f letters of request by the Mayor's Court. unable to find any trace of tlie exercise of sucli a jurisdic- tion, if it ever existed, prior to the passing of tlie Judica- ture Acts. The Judicature Acts and the rules made under them have no application to the Mayor's Court, and have, therefore, not aifected the right of the Court to order evidence to be taken abroad ; recently, however, the practice of the High Court to appoint special examiners to take evidence abroad under Ord. XXXVII. r. 5 of the rules of the Supreme Court seems to have been adopted in the Mayor's Court upon its equity as well us upon its common law side. Unless, however, it be that the Mayor's Court had this jurisdiction apart from the Judicature Acts and the rules made thereunder, it would seem that the only justifica- tion for the making of such orders would be the consent of the parties. It would, as in the case of actions on the common law side of the Com-t, be advisable for the practitioner to apply in the first instance for a commission, and then to obtain the consent of his adversary that, if the Court thinks it a case in which evidence should be taken abroad, a special examiner should be appointed. If the consent cannot be obtained, the practitioner should apply for the appointment of a single commissioner, as suggested ante, p. 65. The discretion of the registrar in granting or refusing the order will be exercised in the same manner as that of a master in the High Court, and the whole of the matters dealt with in the earlier parts of this chaj)ter will therefore apply. The form of a letter of request, and the fact that Ord. XXXVII. r. 6 a, which gives the High Court power to issue requests, does not apply to the Mayor's Court, seem to preclude the issuing of such a request out of the latter Court. In practice, however, it is often done(//). (/i) There is also an unreported case in which a letter of request was issued by the registrar out of the " Companies Winding-up Offices," and duly forwarded thi'ough the Foreign Office and acted upon. POWERS OF THE MAYOr's COURT. 69 The request must be signed by the senior judge of the Major's Court, and it will probably be forwarded in due course by the Foreign Office and acted upon, although, as, semhic, the Court has, in fact, no jurisdiction to make such an order, it will be safer that, if made at all, it should be by consent, so as to preclude all possible objections by either party to the admission of evidence taken under it upon the plea of want of jurisdiction. The form of order and of request will follow those in use in the High Court, and are given in App., pp. 245, 246 and 252. Although no express authority has been ever given to the Mayor's Court to issue letters of request, such as the framers of the Rules of the Supreme Court thought it necessary to confer upon the High Court by Ord. XXXVII. r. 6 a, it is proper to point out that a power to " issue a commission " for the examination of witnesses abroad has been given to the Mayor's Court by sect. 26 of the Mayor's Court Act {ante, p. 65), and that there is authority for the proposition (?) that when a commission is issued to the judges of a foreign Court words of request should be used. It is possible to argue from this, that the Mayor's Court has power to issue a commission worded in the form of a request to the judges of a foreign Court, and that a letter of request, such as the Foreign Office now transmits, is merely the modern form of such a commission. It is, however, obvious that a party who has established his right to take evidence abroad will do well, if he desires to do it by letter of request, to, if possible, obtain his adversary's consent to that form of order. Power of Courts of Banh-uptey to order Evidence to be Power of tahen out of the Jurisdiction.']— Bj sect. 105, sub-sect. 5, of banfauptey^^ the Bankruptcy Act, 1883, it is provided that : " Subject jurisdiction to order evidence (i) Clay V. Stephenson, 3 A. & E. 807 ; Ponsford v. (/Connor, o M. & "W. 673 ; 7 Dowl. 866 ; Fischer v. Izntaraij, E. Bl. & E. 321 ; 27 L. J. Q. B. 239. This last case further decided that the judges of a foreign Court should not be directed to take the oath as commissioners. 70 PROCEEDINGS UP TO ORDER. to be taken out of the jurisdiction— (a) commis- sion; (b) letter of request ; (c) appoint- ment of spe- cial examiner. County Coui-ts have the above powers in exercising bankruptcy jurisdiction. to general rules, the Court may in any matter take tlie whole or any part of the evidence either rird voce, or by interrogatories, or upon affidavit, or b?/ commission abroad." By Eule 68 of the Banki-uptcy Eules it is provided that: "An order for a commission or letter of request to examine witnesses, and the writ of commission or request, shall follow the forms for the time being in use in the High Court, with such variations as circumstances may require." By Eule 66 of the Bankruptcy Eules it is provided that : " The Court may in any matter where it shall appear necessary for the purpose of justice, make an order for the examination upon oath before the Court or any officer of the Court, or ani/ other person and at any place, of any witness or person, and may empower any party to any such matter to give such deposition in evidence therein on such terms (if any) as the Court may direct." This last-mentioned rule gives the Court power not only to order evidence to be taken abroad upon commission, (as ]Drovided by sect. 105, sub-sect. 5, of the Bankruptcy Act,) but also to order the appointment of a special examiner to take evidence in any place whether within or beyond the jurisdiction : the powers are, in fact, identical with those of the High Court. The above-mentioned powers may be exercised by any Court having jurisdiction in bankruptcy when exercising bankruptcy jurisdiction, and therefore, under such circum- stances, by a County Court. The application should be made to the registrar in chambers, both in the High Court and in the County Court. For the evidence necessary to support the application, see ante, pp. 27 et seq. County Court Poicers of Counti) Courts {ic/ien not exercising Banhniptcy has no power Jurisdiction) to order Evidence to be taJicn out of the Juris- examiuation diction.'] — Except wlien a County Court which has bank- of En^land^*^ ruptcy jurisdiction is exercising that jurisdiction, it seems and Wales, clear that a County Court has no power to order examina- POWERS OF COUNTY COURT. 71 tions to be taken beyond the limits of England and Wales, whether upon commission, under letters of request, or before special examiners. Sect. 164 of the County Courts Act, 1888, gave to the rule committee a power to make rules and orders extending " to all matters of procedure or practice, or relating to or concerning the effect or operation in law of any procedure or practice, in any case within the cognizance of County Com-ts, as to which rules of the Supreme Court have been or might lawfully be made for cases within the cognizance of the High Court of Justice." The rule committee have not yet availed themselves of the power which seems to be conferred upon them by that section, to make rules authorizing the making of orders by County Courts for the purpose of taking evidence beyond the limits of England and Wales ; and consequently there is no rule in the County Court Rules expressed in such wide terms as Eule 5 of Ord. XXXVII. of the Eules of the Supreme Court. By Ord. XVIII. r. 14 of the County Court Eules, 1889, the power of the Court is limited as follows : " The Court may, in any action or matter, where it shall appear necessary for the purposes of justice, make an order for the examination upon oath before the Court or any officer of the Court, or any other person, and at any i^lace in England and Wales, of any witness or person, and may empower any party to any such action or matter to give such deposition in evidence therein on such terms, if any, as the judge may direct." The provisions in the schedule to the Borough and other Local Courts of Eecord Act (35 & 36 Vict. c. 86) (A-), enabling a judge of the Pligh Court to issue a commission to examine witnesses abroad in an action pending in an inferior Court of Eecord, apply only to actions pending in the Courts to which the Act has, by Order in Council, been {k) Ante, p. 65. 72 PROCEEDINGS UP TO OEDER. applied (see sect. 2 thereof). Up to the present, the Act has not been so applied to County Courts (/) . Powers of an Official Referee.'] — The official referee to whom an action has been referred has jurisdiction to order the examination of witnesses abroad {m) . He will exercise the same discretion as that of a master or other official in cases which have not been referred, and his order can similarly be the subject of unlimited appeal (w). {V) Tlie Courts to which it has been applied are as follows : In 1893, to the Mayor's Court, the Court of Tolzey and Pie Poudre at Bristol, the Court of Record at Hull, the Guildhall Court at Norwich, the Civil Court of Record at Poole, the Salford Himdred Court, the Court of Record at Scarborough, and the Court of Record at York. In 1874, to the Provost Court of Exeter (partly), and to the Borough Court of Great Yarmouth. [in) Haywardy. Mutual Reserve Association, (1891) 1 Q. B. p. 236. in) Ibid. 73 CHAPTER III. THE PRACTICE AS TO OBTAINING AN ORDER IN THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION. Probate. The practice as to taking evidence abroad in Probate Probate contentious matters is regulated partly by the provisions P^^° ^^^' of Ord. XXXVII. and partly by the practice which has survived in the Probate Court since a period anterior to the Judicature Acts. Non-contentious business is wholly unaffected by the Judicature Acts. This state of things has been brought about in the following manner : By sect. 23 of the Judicature Act, 1873, it is provided : Judicature "The jurisdiction by this Act transferred to the said High -^^^s ^^^^' Court of Justice and the said Court of Appeal respectively shall be exercised (so far as regards procedure and practice) in the manner provided by this Act, or by such rules and orders of Court as may be made pursuant to this Act ; and where no special provision is contained in this Act or in any such rules or orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective Courts from which such jurisdiction shall have been transferred, or by any of such Courts." By sect. 21 of the Judicature Act, 1875, it is provided Judicature as follows : " Save as by the principal Act or this Act, or f^l\ ^^^^' by any rules of Court, may be otherwise provided, all forms and methods of procedure which at the commencement of this Act were in force in any of the Courts whose jurisdic- tion is by the principal Act or this Act transferred to the said High Court of Justice and to the said Court of Appeal respectively, under or by virtue of any law, custom, general /4 THE PRACTICE AS TO OBTAINING AN ORDER IN Ord. LXXII. of the R. S. C, Wliat rules govern the practice in probate business. 20 & 21 Vict. c. 77, s. 32, empowered Court of Pro- bate to issue commissions. R. 119 of the Probate Rules. Application for commis- sion, how made. order or rules whatsoever, and wliicli are not inconsistent with the principal Act or this Act or with any rules of Court, may continue to he used and practised, in the said High Court of Justice and the said Court of Appeal respectively, in such and the like cases, and for such and the like purposes, as those to which they would have heen applicable in the respective Courts of which the jurisdic- tion is so transferred if the principal Act and this Act had not been passed." By Ord. LXXII. of the Rules of the Supreme Court it is provided : " Where no other provision is made by the Acts or these rules, the present procedure and practice remain in force." The result is, as already stated, that in probate con- tentious business (a), the practice in the Probate, Divorce, and Admiralty Division as to the taking of evidence out of Court will be regulated by the provisions of Ord, XXXYIL, and also by the former practice of the Court of Probate in so far as it is not inconsistent with the rules of that Order. By sect. 32 of the Coui-t of Probate Act, 1857 (20 & 21 Vict. c. 77), power was given to the Court of Probate to issue commissions for the examination on oath, upon interrogatories or otherwise, of witnesses out of the juris- diction of the Court in contentious business (b) . The practice under this Act is embodied in the Probate Pules for Contentious Business, and is as follows : — Pule 119 provides that "Application for a commission or requisition to examine witnesses who are out of the jmis- diction is to be made by summons, or if on behalf of a plaintiff proceeding in default of appearance without summons, before one of the registrars, who will order such {a) In non-contentious business the practice of the Court of Probate has not been affected by the Judicature Acts. See In the Goods of TomlinsoH, 6 P. D. 209 ; 50 L. J. P. D. & A. 74 ; 30 W. R. 61 ; and sect. 18 of the Judicature Act, 1875. (i) This section is set out in the Appendix at p. 210, post. THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 75 commission or requisition to issue, or refer tlie application to the judge as he may think fit." By Eule 120 it is provided that " A commission or R. 120. requisition may be addressed to any person to be Commission, nominated and agreed upon by the parties in the cause, addressed. and aj)proved of by one of the registrars, or for want of agreement to be nominated by the registrar to whom the application is made." By Rule 121 it is provided that " The commission or R. 121. requisition is to be drawn up and prepared by the party ^y "^^ora. 1 • c 1 1 1 c 1 n 1 1 T 1 commission applying for the same, and a copy thereof shall be delivered is to be to the parties entitled to cross-examine the witnesses to be ^^^^^ "P- examined thereunder two clear days before such commis- delivered to sion or requisition shall issue, under seal of the Court, and parties . , p , , . entitled to they or either of them may apply to one of the registrars cross - by summons to alter or annul or amend the commission or ®^'^™"^^- .... , . , . , . . ,, . , Application requisition, or to insert any special provision therein, and to amend the registrar shall make an order on such application, or ("ommission. refer the matter to the judge." By Eule 123 it is provided that "After the issuing of r^- ^23. a summons to show cause why a party to the cause should apiriica°tian not have leave to join in a commission or requisition, such to join in commission or requisition shall not issue under seal without the direction of one of the registrars." The Court of Probate Act did not, nor do the Probate Probate Act T, 1 • T n J^ -J iP •! • 1 aiicl Rules did ixuies, provide for the appointment 01 special examiners to not provide take evidence out of the jurisdiction. *°^ appomt- *' . . . nient 01 This power to order a special examination out of the special jurisdiction is conferred upon the Probate, Divorce, and '^^''^'^™^^^^- Admiralty Division in Probate contentious business by r.'d, oi ' Ord. XXXVII. r. 5 of the Eules of the Supreme Court, ^- ^- ^- ,. ^ ' now remedies which, as we have seen, regulate the j^ractice concuiTcntly this defect. with the old rules of the Probate Coiu-t. The principles, Principles therefore, which govern the j)rocedure as to taking evi- procedm-f in dence out of the jurisdiction in the other Divisions of the ^- •^- ¥^^ High Court apply equally to the practice in contentious ply mxiatls Probate business, witli such variations as are necessitated probate* *° by the different constitution of the Probate Coui't. causes. 76 THE PRACTICE AS TO OBTAINING AN ORDER IN Application, wlieu to be by summons. Application to be to reeristrar. Affidavit in support of application. Miscellaneous decisions in Probate actions. Wbetlier tbe names of •witnesses must be The appKcation for a commission or special examination should be made by summons, unless a plaintiff is proceeding in default of appearance, in which case it may be made without summons (c). The application should be made before one of the registrars (d), who may, if he thinks fit, refer the matter to the judge. The application must be supported by an afl&davit, unless both parties consent to the order, showing that the order is " necessary for the purposes of justice." The practi- tioner is referred to Chapter II. (pp. 27 ef seq.) for information as to the natm-e of the evidence which must support the application {e) . In Banfield v. Fickard (/) it was held, under sect. 26 of 20 & 21 Yict. c. 77, that the Probate Court had power to order a commission to examine a person as to her know- ledge of a testamentary paper, since the witness was unable to attend in open Court. In Forster v. Forsfer {g), one of the attesting witnesses being resident in New Zealand, the Court ordered the original will to be transmitted to that colony, attached to the commission, an attested copy having first been deposited in the Registry, and time having been allowed for the examination of the other witness before one of the registrars of the Court by either party. It was also held in the same case that a commission for the examination of a witness in a distant colony will authorize the commissioners to act jointly or severally. It was held in Ryves v. The Attorney-General (Ji), that when a motion was made for an order for a commission to examine witnesses abroad, in a suit for a declaration of {c) p. R. C. B. (r. 119). \d) See P. R. C. B. (r. 119), and Ord. LIV. of the R. S. C. r. 12. {e) See also Andrcio v. Brooke, L. R. 3 P. & D. 181 ; 43 L. J. P. & M. 39 ; 31 L. T. 102 ; 22 W. R. 712, where it was held insufficient merely to state that the -witness was a material witness. (/) 6 P. D. 33 ; 50 L. J. P. 72 ; 29 W. R. 613 ; 45 J. P. 508. [g) 33 L. J. P. 113 ; 10 Jur. N. S. 594. [h) L. R. 1 P. & D. 23 ; 35 L. J. P. & M. 6. THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 77 leffitlmacy, the affidavit on which the motion was made inserted in (V, 1- 'I ought to have stated the names of the witnesses proposed to be examined, and the commission was only allowed to issue upon an affidavit being filed supplying that omission. We have seen (/) that it is not necessary now, in the Chancery and Queen's Bench Division, to state the names of all the witnesses proposed to be examined, and that there may be cases where a commission can be ordered although the applicant did not name any witness. It is not the practice to issue the commission in the Form of Form No. 13 of App. J. to the R. S. C. A form applic- ^o^'^^^io"- able to proceedings in Admiralty and Probate causes is appended to the E. S. C. (/.■), and is set out 2)osf, at p. 249. Forms of order for the appointment of a special exa- Form of miner are set out j^osf, at pp. 239 et seq. special'ex- The practitioner will find the following matters dealt amination. with at the pages specified : — The procedure from order to examination, at pp. 92 et seq. The procedure at the examination, at pp. 116 et seq., and 132. The procedure subsequent to the examination and at the trial, at pp. 139 et seq., and at pp. 144 and 145. The procedure as to the taking of e\'idence within the jurisdiction in Probate matters, at pp. 162 et seq., and at pp. 180 and 181. And the procedure with regard to the issuing of letters of request, at pp. 53 et seq. Divorce or other Matrimonial Causes. The Pules of the Supreme Court as to the taking of Divorce a ad evidence abroad do not apply to divorce and matrimonial ^u^g'^^^'^^^ causes. It is provided by Rule 1 of Ord. LXVIII. of the Rules R. S. C. do of- the Supreme Coiirt that nothing in those Rules shall, proceedin'4° (i) Ante, p. 27. (/v) Form No. M of App. J. of the R. S. C. 1883, 78 THE PEACTICE AS TO OBTAINING AN OEDER IN in divorce and matrimonial causes. Practice is regulated by sect. 47 of 20 & 21 Vict. 0. 85, and Rules 132-137 and 198 of the D. & M. Rules. Court may issue com- missions for examination of witnesses ■without or ■within the jurisdiction, and orders for examination of -witnesses "within, juris- diction before oificer of Coui't or other person. Provisions of 1 Will. 4, c. 22, to apply. save as expressly provided, affect tlie procedure or practice in proceedings for divorce or otlier matrimonial causes. The practice in such, proceedings, where evidence is to he tahen out of the jurisdiction, is regulated hy sects. 47 and 48 of the Matrimonial Causes Act, 1857, and Eules 132 — 137 and Eule 198 of the Eules and Eegulations in Divorce and Matrimonial Causes. Sect. 47 of the Matrimonial Causes Act, 1857 (20 & 21 Yict. c. 85), provides that, " Where a witness is out of the jurisdiction of the Court, or where by reason of his illness, or from other circumstances, the Court shall not think fit to enforce the attendance of the witnesses in open Com-t, it shall he lawful for the Court to order a commission {I) to issue for the examination of such witnesses on oath, upon interrogatories or otherwise ; or if the witness be within the jurisdiction of the Court to order the examination of such mtness on oath, upon interrogatories or otherwise, before any officer of the said Court, or other person to be named in such order for the purpose ; and all the powers given to the Courts of Law at Westminster by the acts of the thirteenth year of King George the Third, chapter sixty-thi'ee, and of the first year of King William the Foui^th, chapter twenty-two, for enabling the Courts of Law at West- minster to issue commissions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such examination, and all the pro- visions of the said Acts, and of any other Acts for enforc- ing or otherwise aj)plicable to such examination and the ■WT.tnesses examined, shall extend and be applicable to the Court and to the examination of witnesses under the com- (?) This stattite does not authorize the Court to order examinations out of the jurisdiction to take place before a special examiner. In this respect the practice of the Probate, Divorce and Admiralty Division in divorce and matrimonial causes follows the practice of the Courts of common law under 1 Will. 4, c. 22, which existed before the Judicature Acts. There is notliing, however, to prevent the commission being heard before a single commissioner. Sometimes the commission is addressed to a single named commissioner or his nominee. THE PROBATE, DIVOECE, AND ADMIRALTY DIVISION. 79 missions and orders of the said Court, and to the witnesses examined, as if such Court were one of the Courts of Law at Westminster, and the matter before it were an action pending in such Court." By sect. 48 of the same Act it is provided that " The Rules of rules of evidence observed in the Superior Courts of Common Law Common Law at Westminster shall be applicable to and Courts to be observed in the trial of all questions of fact in the Court." By Rule 132 of the Rules and Regulations of the 26th Application December, 1865, of the Court for Divorce and Matrimonial ^^^ j-q ^^^-^^ Causes it is provided as follows : " Application for a com- evidence out mission or requisition to examine witnesses who are out of jurisdiction, the jurisdiction of the Court is to be made by summons, or To whom if on behalf of a petitioner proceeding in default of appear- ance without summons, before one of the registrars, who will order such commission or requisition to issue, or refer the application to the judge ordinary, as he may think fit." Rule 133 provides that, " A commission or requisition To whom for examination of witnesses may be addressed to any ^-ddressed. person to be nominated and agreed upon by the parties in the cause, and approved of by the registrar, or for want of agreement to be nominated by the registrar to whom the application is made." Rule 134 provides that, " The commission or requisition Drawing' up is to be drawn up and prepared by the party applying for commission, the same, and a copy thereof shall be delivered to the parties entitled to cross-examine the witnesses to be examined thereunder two clear days before such commis- sion or requisition shall issue, under seal of the Court, and they or either of them may apply to one of the registrars by summons to alter or amend the commission or requisi- tion, or to insert any special provision therein, and the registrar shall make an order on such application, or refer the matter to the judge." Rule 135 provides that, "Any of the parties to the cause Application may apply to one of the registrars by summons for leave conmdsdon to join in a commission or requisition and to examine witnesses thereunder; and the registrar to whom the 80 THE PRACTICE AS TO OBTAINING AN ORDER IN Provision as to wife's costs. Application, to whom made. Distinction between application to examine witnesses and one to exa- mine party. application is made may direct the necessary alterations to be made in the commission or requisition for that purpose, and settle the same, or refer the application to the judge." Rule 1136 provides that, "After the issuing of a sum- mons to show cause why a party to the cause should not have leave to join in a commission or requisition, such commission or requisition shall not issue under seal with- out the direction of one of the registrars." By Rule 198 of the Additional Rules of the 14th July, 1875, it is provided that, " The registrar to whom a com- mission or requisition for examination of witnesses is re- ferred for settlement, on application on behalf of the wife, may proceed at once and without summons to ascertain what is a sufficient sum of money to be paid or secured to her to cover her expenses in attending at the examination of such witnesses, and shall thereupon issue an order upon the husband to pay or secure the said sum within a time to be fixed in such order." The earlier r. 137 of the Rules of 1865, which is amended by r. 198, provided as follows : " In case hus- band or wife shall apply for and obtain an order or a commission or requisition for the examination of witnesses, the wife shall be at liberty ■without any special order for that purpose, to apply by summons to one of the registrars to ascertain and report to the Court what is a sufficient simi of money to be paid or secured to the wife to cover her expenses in attending at the examination of such witnesses in pursuance of such order, or in virtue of such commission or requisition, and such sum of money shall be paid or secured before such order or such commission shall issue from the registry, unless the judge ordinary or one of the registrars in his absence shall otherwise direct." We have seen that by r. 132 the application for a com- mission or letter of request to examine witnesses who are out of the jurisdiction of the Court is to be made by summons, or if on behalf of a petitioner proceeding in default of appearance without summons before one of the registrars. * THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 81 Where it is desired to examine a party, the application must be made to the judge, and not to the registrar. As a general rule a commission to examine witnesses out Commission, of the jui'isdiction will not be ordered until issue has been ordered till joined, but this rule is subject to many exceptions. Indeed, '^^^^ issue where there is risk that material witnesses may not be r^j^j^ practice found unless a commission is issued without delay, the not followed general rule would be departed from {m) . urgency. A commission may be ordered (though as a rule it will wiien com- not be sent out till issue is joined) directly after entry of ""f ^"^ "^^7 '' , •' and may not appearance to the citation ; but it cannot be sent oat, ex- be issued, cept by leave of the Court, before appearance, or before the expiration of the time for appearance to the citation. For form of summons where appearance has been Form of entered, see App. C, 2)ost, p. 235. summons. In every case, unless all parties consent, the application, whether made by summons where the other party has, or eif parte where the other party has not, entered an appear- ance, must be supported by an affidavit which should show that the issuing of the commission is " necessary for the purposes of justice." These words, as we have seen, occur in Ord. XXXVII. r. 5 of the R. S. C. 1883. The Principles of Eo r^ J J. XI i.' • T 1 J- • cases decided . b. (j. do not govern the practice m divorce and matri- under i Will. monial causes ; still, since the practice as to commissions 4, c. 22, as to under Ord. XXX.VII. r. 5, and the practice under sect. 47 commissions, of the Matrimonial Causes Act are founded upon the ^PP^y.^^. -■- commissions statute 1 Will. 4, c. 22, it follows that the principles in divorce and 1-1 T1TJ •• •• J !> n matrimonial wnicli are applicable to commissions issuing out 01 the causes. Queen's Bench Division would generally apply to com- missions issued by the Probate, Divorce and Admiralty Division in divorce and matrimonial causes. Subject, therefore, to the Rules 132 — 137 and 198 of the Rules and Regulations for divorce and matrimonial causes, the prac- (m) See litzgeraU v. Fitzgerald, 33 L. J. P. & M. 39 ; 3 S. & T. 397 ; Rhaw V. Shaiv, 2 S. & T. 642 ; 31 L. J. P. & M. 95 ; 7 L. T. N. S. 254 ; Btone V. Stone and Applcton, 31 L. J. P. Sz M. 136; Cooke v. Cooke and, Quaile, 28 L. J. P. & M. 37 ; 2 S. & T. 50. W. G 82 THE PEACTICE AS TO OBTAINING AN ORDER IN Commissions are not executed by two com- missioners. "Single com- missioner," ' ' alternative commis- sioners," or " commis- sioner or nominee '' appointed. Form of commission. Letters of request. No po-n'er, apart from consent, to appoint a special examiner in lieu of commissioner. The jurisdic- tion defined. titioner sliould conform to tlie practice set out in the last chapter, when applying for a commission to issue. It should be noted, however, that it is not the practice to issue commissions in divorce causes directing two com- missioners (as in the long order for commission in use in the Queen's Bench Division) to conduct the examination. Sometimes alternative commissioners are named in the commission, but more frequently the commission is ad- dressed to a named commissioner or his nominee, a practice which also obtains in Admiralty causes. It is the practice to give the name of at least one v.'itness who is to be examined, in the affidavit and in the commission, but there may be cases where this general rule would be departed from. A form of commission applicable to divorce and matri- monial causes is set out in the Appendix at p. 249. For the practice to be followed where requisitions are used (which are called, in the Queen's Bench Division, letters of request), see ante, pp. 53 et seq. The practice there stated will be modified to this extent, that the letter of request is signed by the president and left at the divorce registry after it has been sealed. The foreign Court will be asked to retui'n the depo- sitions and other papers to the Foreign Office for trans- mission to the divorce registry. Apart from consent, there seems to be no machinery by which an order may be made in these causes for the appointment of a special examiner to take evidence out of the jurisdiction. A single commissioner, with power to take evidence vkd voce, has, however, identical powers. Ireland and Scotland are foreign countries for the j)ur- pose of the jurisdiction of the Divorce Court (>?). The jurisdiction of the Court is confined to England, Wales, and Berwick-upon-Tweed. For the procedure between order and examination, see post, pp. 92 et seq., and 106 — 111 ; at the examination, («) Yeherfon v. Yelverton, 1 S. & T. 5S6. THE PKOBATE, DIVORCE, AND ADMIRALTY DIVISION. 83 post, pp. 116 et seq., 132 and 134; subsequent to the exa- mination, 2^osf) pp. 139 ct seq., and 144 ; at trial, j^osf, pp. 192 et seq. ; and where application is made for the immediate examination of a witness who is within the jurisdiction, jjo.s^, pp. 180 ct seq. (o). The Practice in Adniircdty. Hitherto the practice as to the taking of evidence out The old of Court in Admiralty cases has been regulated by the pra^tk^e. ^ Admiralty Coiu-t Acts, and by the rules made in pursuance of them. The authors submit that the practice, as thus prescribed, can now only be adopted in so far as it is not inconsistent with the provisions of Ord. XXXYII. of the O. XXXVII., Eules of the Supreme Court, 1883, which order was intended ' • ^- ° "*• to, and does, apply to Admiralty actions. As the practice still largely prevails of taking evidence in pursuance of the Admiralty Eules of 1859, and not in pursuance of the Rules of the Supreme Court, and as there is high authority for the proposition that the Rules of the Supreme Court have in fact no application to Admiralty actions, the reasons for the above submission are set out in this chapter, with what it is hoped may not be found unnecessary detail. It is as well, however, to at once state that the Admiralty Repeal of the Rules cannot directly apply, for they have all been re- ^^^^^^-^ pealed. The introduction to the R. S. C. 1883, provides as follows : — " The orders and rules mentioned in App. 0. hereto are (o) A number of useful forms will be found set out in Oakley' s Divorce Practice, 3rd ed. at pp. 106 et seq. The practitioner, however, should be able to modify the forms in the Appendix hereto, so as to make them applicable to divorce and matrimonial causes. See Appendix C, Form 2, post, p. 235, and Form 16, post, pp. 249 and 250, which are apx^licable to these causes. The heading will be as follows : — In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce) Between A. B. . . . Petitioner, and CD. . . . Respondent, o 2 84 THE PRACTICE AS TO OBTAINING AN ORDER IN Effect of the repeal of the Admiralty Rules. OldAclmh'alty practice pre- served where not incon- sistent with Judicature Acts and Rules made thereunder. Admiralty Court Acts of 1840, 1854, and 1861 not repealed. By sect. 8 of Act of 1840, evidence may be taken vifd voce before a commissioner. Depositions to be returned to the rc^'istry of the Admiralty Court. hereby annulled, and the following orders and rules shall stand in lieu thereof." In App. 0. are included "The Eules, Orders and Eegulations for the High Court of Admii-alty of England, 1859 and 1871." The Rules of 1859, although repealed, are of value as an embodiment of the Admiralty practice, which, it is submitted, can and should be applied as auxiliary to that specified by the Rules of the Supreme Court. The reasons for that submission are as follows : — By idrtue of sect. 23 of the Judicature Act, 1873, and sect. 21 of the Judicature Act, 1875, the old forms and practice in force in Courts whose jurisdiction has been transferred to the High Court of Justice, may con- tinue to be used and practised, in so far as they are not inconsistent with the Judicature Acts or the rules made thereunder. The Admiralty Court Acts, 1840, 1854 and 1861 (3 & 4 Yict. c. 65 ; 17 & 18 Vict. c. 78; and 24 Vict. c. 10), have not been repealed. By sect. 8 of the Act of 1840, it is provided : " The Court may, if it shall think fit, in any such suit, issue one or more special commissions to some person, being an advocate of the said High Court of Admiralty of not less than seven years' standing, or a barrister-at-law of not less than seven years' standing, to take evidence hy n-ord of mouth, upon oath, which every such commissioner is hereby empowered to administer, at such time or times, place or places, and as to such fact or facts, and in such manner, order, and course, and under such limitations and restrictions, and to transmit the same to the registry of the said Court, in such form and manner as in and by the commission shall be directed ; and that such commissioner shall be attended, and the witnesses shall be examined, cross-examined, and re-examined by the parties, their counsel, proctors or agents, if such parties, or either of them shall think fit so to do ; and such com- mission shall, if need be, make a special report to the Court THE PROBATEj DIVORCE, AND ADMIRALTY DIVISION. 85 toucliing such examination, and the conduct or absence of any witness or other person thereon or relating thereto ; and the High Court of Admiralty is hereby authorized to institute such proceedings, and make such order or orders upon such report as justice may require, and as may be instituted or made in case of contempt of the said Court." In a work of the highest authority (^;), it is stated that the Eules of the Supreme Court were not intended to alter the former Admiralty practice, and the following reasons are given to support that opinion : — " The order for a Passage in commission, referred to in Ord. XXXVII. r. 6, is ob- ^J^^ Bruce's viously only applicable to a commission to be issued out of Admiralty the central office, which is altogether different from the commission in App. J. of the same rules. No. 14, to be issued from the Admiralty Registry, and to be returned there. Rule 11 of the same order is inconsistent with sect. 8 of the Admiralty Court Act, 1840, and with the form of commission issued out of the central office. Rules 13, 14, 16 all require proceedings to be filed in the central office, while, according to the present practice, all Admiralty proceedings are filed either in the Admiralty Registry or in the district registries. Rule 18 seems to be inapplicable in Admiralty actions. Evidence taken before the Admiralty registrar, assistant registrar, or Liverpool district registrar, or before an examiner or com- missioner, has always been regarded as admissible as evidence in the suit for all the purposes for which the same evidence, if it had been taken before the judge orally in Court, would have been admissible. It was never necessary that proof should be adduced at the hear- ing of such actions that the witnesses examined by depo- sition were out of the jurisdiction or unable to attend the hearing. It was, however, always open to any i^arty in the action to apply to the Court or a judge to order that {p) Williams and Bruce's Admiralty Practice, 2nd cd. (1SS6), p. 423. Criticism on the passage ill AVilliams and Bruce' s Admiralty practice. THE PRACTICE AS TO OBTAINING AN OEDER IN a witness wlio had made a deposition in the action should attend for examination viva voce at the hearing. In the result it is submitted that it was not intended to alter the practice in Admiralty actions, and, indeed, since October 1883, in all such actions in which witnesses have been examined out of Court, the old practice has been followed." The authors are unable to agree entirely with the con- clusion arrived at and the reasons stated in the foregoing passage. It is true that Form 14 of Appendix J. diifers materially from the Form 13 of Appendix J., which is the form expressed to be made under Ord. XXXYIL, Part 11. of the E. S. C. ; but the very fact that Form 14 exists, and is on the face of it made applicable to Admiralty actions, must indicate an intention on the part of the Hule Committee that commissions in the Admiralty Division should be issued under the R, S. C. 1883. In the next place, assuming that r. 11 of Ord. XXXVII. is inconsistent with sect. 8 of the Admiralty Com-t Act, 1840, it does not follow that r. 11 is not applicable in Admiralty causes. On the contrary, by virtue of sect. 21 of the Judicature Act, 1875, if the former practice of the Admiralty Court is inconsistent with the Rules of the Supreme Court, the latter must prevail. In fact, however, the section and the rule do not appear to be inconsistent. It is true that, while the section says the " commission shall be attended .... by the parties, their counsel, proctors, or agents, if such parties or either of them s/iall think fit so to do,'' the rule says the exami- nation " shall take place in the presence of the parties." This distinction is, however, of no importance, because the decision in the case of He Western of Canada Oil Com- pany {q) (which was decided on sect. 31 of 15 & 16 Yict. {q) 6 Ch. D. 109. The words "notwithstanding the absence of either of them," contained in App. J., No. 14 of the R. S. 0. (set out in the Appendix hexeoi, post, p. 249), mean, it is submitted, notwithstanding the absence of a party who chooses to be absent. 1 THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION. o* c. 86, from whicli the rule is taken), expressly lays it down that the meaning of the word " shall " in the rule is *' shall if the parties or either of them choose," Neither does there appear to be any inconsistency between rule 11 and the form for a commission to be issued out of the Central Office, while even if such an inconsistency existed, it would merely necessitate a modi- fication of the form. As to rule 18, it is submitted that it does not follow that, because the rule is inconsistent with the former Ad- miralty practice, it is not applicable to Admiralty actions, and that in those actions the former Admiralty practice must prevail. The rule is in conformity with the first principles of the common law as to evidence, and it appears from Ord. XXXVII., r. 1, that the framers of the rules intended to lay do\^Ti as the general principle, to be departed from only under very special circimistances, that all evidence in future should be given vim voce in open Court. In the result the authors are of opinion that it was Conclusion as intended to make the Admiralty practice conform to the pra^ticris to practice of the Chancery and Queen's Bench Divisions; be found, but that inasmuch as some of the rules are inapplicable to Admiralty causes (such as rr. 13, 14, and 16 of Ord. XXXVII.), it is necessary to adopt the former Admiralty practice where the Rules of the Supreme Court are inapplicable. At the time when the passage above quoted was written. Special it was probably correct to say that in all Admiralty actions no^some-''^ in which witnesses had been examined out of Court, the times ordered old practice had been followed. Since that time, however, commissions, it appears that, in Admiralty causes, orders for the ap- pointment of sj^ecial examiners to take evidence out of the jurisdiction are sometimes applied for and made under Ord. XXXVII., r. 5 ; this already constitutes a departm-e from the old Admiralty practice which grew up under sect. 8 of the Admiralty Court Act, 1840, a section which 88 THE PRACTICE AS TO OBTAINING AN ORDER IN only provided for the appointment of a commissioner, and not of a special examiner, to take evidence out of the jurisdiction (r). It follows from the foregoing considerations that, if the authors are correct in their views, the practice as to taking evidence abroad in Admiralty actions is regulated by the E. S. C. 1883, supplemented by the practice evidenced in the repealed Admiralty Eules of 1859. The practice is in a sense codified, and the material Admiralty Rules are as follows: — The Ad- By r. 87, " Written depositions may be taken either ™"'*1^*I '^'^^^^^ before an examiner of the Court, or before a commissioner of 18o9 as . . . ' to written appointed under a commission." depositions. -g^ ^ gg^ a Witnesses may be produced for examination before an examiner within three miles of the General Post Office, London ; but the proctor producing him shall, twenty-four hours at least before the W'itness is examined, serve a notice upon the adverse proctor, stating the title and number of the cause, the name and address of the witness, the articles of the pleadings to which he is to be examined, the name of the examiner, the name of the interpreter, if any, and the day, hour, and place appointed for the examination." By r. 89, " No witness shall be produced, either before an examiner or before a commissioner at a greater distance than three miles from the General Post Office, London, save by order of the Coiu"t." By r. 90, " The examination in chief, cross-examination, and re-examination of witnesses examined before an examiner or a commissioner shall be conducted either by counsel or by the proctors, or their substitutes ; or the examination in chief may, on the application of the proctor producing the witness, be conducted by the examiner or commissioner himself. In any ease the examiner or com- (r) For the form of order for the appointment of a special examiner to take evidence out of the jurisdiction in Admiralty causes, see App., _post, p. 240, note {h). THE PEOBATE, DIVORCE, AND ADMIRALTY DIVISION. 89 missioner may- put any questions to the witnesses for the purpose of eliciting the truth as to him shall seem fit." By r. 91, " The fees of one counsel may he allowed by the registrar for attending the examination of witnesses before an examiner or commissioner." By r. 92, " When the examination of any witness is completed, the examiner or commissioner shall read over the deposition to the witness, who shall thereupon sign the same ; and the examiner or commissioner shall certify at the foot thereof that the deposition has been read over audibly and distinctly to the witness, and that he has acknowledged the same to be true." By r. 93, "If the witness refuse to sign his deposition, the examiner or the commissioner shall certify at the foot of the deposition that the witness has so refused, and that the deposition is in accordance with the evidence given by the witness ; and the deposition of the witness may there- upon be used at the hearing of the cause." By r. 94, " The judge may, on the application of either proctor in the cause, but at the expense in the first instance of the party on whose behalf the application is made, direct the evidence of the witnesses to be taken down by a short- hand writer or reporter appointed by the Court, who shall be previously sworn faithfully to report the evidence ; and a transcript of the shorthand writer's or reporter's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses." By r. 95, " When the examinations of the witnesses have been completed, the examiner or commissioner shall file the depositions in the registry, with a special return setting forth the whole of his proceedings." With the possible exception of r. 94 (as to which see The practice 2wst, Ch. V. p. 134), the above rules do not conflict with tTe^aw''' the provisions of the E-. S. C. 1883, and therefore the ^^^s (except practice embodied in them may be followed. does ii(rt ^ conflict with the R. S. C. 90 THE PEACTICE AS TO OBTAINING AN ORDER IN What rules of Ord. XXXVII. of the R. S. C. are inapplic- able to Admiralty causes. Practice to order examination to be tiken before a single commissioner in Admiralty causes. Commissions to take evidence upon interroga- tories not ordered. The rules of Ord. XXXYII. of the E. S. C. which seem to be inapplicable to Admiralty causes are rr. 6, 13, 14 and 15. It has been the usual practice in the Queen's Bench Division to order evidence taken on commission to be taken before two commissioners ; but, as has already pointed out, the rules do not prohibit the appointment of one commissioner to take the evidence, and great expense is saved where a single commissioner is appointed. It is the invariable practice in Admiralty causes — a practice probably founded upon the use of the singular " commis- sioner " in sect. 8 of the Admiralty Court Act, 1840 — to du'cct that only one commissioner shall take the evidence, even where two commissioners are appointed. The most convenient course is to have the commission addressed to some person by name or his nominee (s) . Owing to the fact that sect. 8 of the Act of 1840 only empowered the Admiralty Court to issue commissions to take evidence by icord of mouth, it has never been the practice to issue commissions in Admiralty causes to take evidence upon interrogatories, and although the Court now has the power, under Ord. XXXYII., rr. 1 and 5, to make such an order, the Court is not, in practice, ever asked to exercise it. . The application for a commission or order for the appointment of a special examiner will be by summons before the registrar (/). The order will be made where it appears from the evidence filed in support of the summons that the order is necessary for the pm-poses of justice. As to this, the practitioner is referred to p]3. 22 — 44, ante, since the principles which will guide the registrar in allowing or refusing evidence to be taken abroad in (.?) For forms of "Prrecipe to Examine "Witnesses," "Commissions to Examine Witnesses," and "Return to Commission to Examine Wit- nesses," see Appendix, 2}ost, pp. 255, 249, 259. {t) See Ord. LIV. r. 12 of the R. S. C. THE PROBATE, DIVORCE, AND ADMIRALTY DIVISION. 91 Admiralty causes, are the same as those which will guide the Court in the case of actions in the Chancery and Queen's Bench Divisions (u). By virtue of Ord. XXXVII., r. 6, a request in lieu of a Letters of commission may he ordered in certain cases in Admiralty, ^^^^^^ • as in other causes. For the practice with regard to letters of request, the reader is referred to the last Chapter. The practice in Admiralty causes, when it is desired to Taking examine witnesses out of Court, but within the jurisdic- ^7thin°the tion, will be found dealt with in Part III. hereof {j^osf, at jurisdiction. pp. 180 ei seq., and 185). («) For the proceditre from order to examination, see post, pp. 92 et seq., and 111. For the procedure at the examination, see post, pp. 116 et seq., and 134 — 138. For the procedure subsequent to examination, but before trial, see post, pp. 139 et seq., and 144 — 147. For the procedure at the trial, see 2}osf, pp. 192 et seq. 92 CHAPTER lY. PROCEEDINGS FROM ORDER UP TO EXAMINATION. This Chapter deals "witli the various steps which a prac- titioner must take before his order will become operative. The first portion indicates the practice in cases where the order has been made in the Chancery or Queen's Bench Division ; the latter, that in cases where it has been made in the Probate, Divorce and Admiralty Division. Proceedings on obtaining order for commission, as distinct from special examination. Result of obtaining order in Form No. 36 of App. K. without variation. Part I. — In the Chancery and Qiieen^s Bench Dkisions. The practice differs somewhat, according to whether the order directs the issuing of a commission or the appoint- ment of a special examiner. Draicing up Order for Commission. — Where an applicant has obtained an order for a commission, the solicitor's first duty will be to draw up the order. It is provided by Ord. XXXVII., r. 6, that an order for a commission to examine witnesses shall be in the Form No. 36 of App. K., and the writ of commission in the Form No. 13 of App. J., with such variations as circum- stances may require. Form No. 36 of App. K. is the short order for commis- sion, and when the order is made in this form, it is pro- vided that the " usual long order " shall be drawn up and, unless agreed upon by the parties within one week, shall be settled by the master. The " usual long order " would seem to mean the " long order for commission to examine witnesses," No. 37 of App. K. PKOCEEDINGS FROM ORDER UP TO EXAMINATION. 93 The authors of the Annual Practice have appended a note to the Form No. 36 of App. K. (the short order), to the effect that in orders in the Chancery Division the words *' the usual long order to be drawn up and, unless agreed upon by the parties within one week, to be settled by the master," are omitted in cases where there is no necessity for agreement between the parties, and that in such cases the writ of commission (Form No. 13, App. J.) is issued on the Form of Order No. 36 of App. K. without the long order being drawn up. It is difficult to understand how this can be done, since, unless some sort of long order is drawn up, no machinery seems to be provided as to the time when interrogatories should be exchanged or as to the date when notice of the intention to send out the commission is to be given ; and, further, the writ of commission in the Form No. 13 of App. J. cannot be issued until the question as to how the blanks in that form are to be filled in has been settled. If the " usual long order " referred to in the Form 36 Examination of App. K. means an order in the Form No. 37 of Ajop. K., comndssioner.^ the result of obtaining the order in the Form No. 36 will be that the examination will be ordered to take place in the presence of two commissioners, each party being repre- sented by his own commissioner. The exj)ense attendant upon such a method of examination is obvious, and the practitioner will have probably thought it advisable to apply either for an order for the appointment of a special examiner or for an order for an examination before one commissioner only, such commissioner to be agreed upon by the parties, or, in default of agreement, to be appointed by the master {a). Where an order for the examination of witnesses before Forms where a single commissioner is made, the long order (Form 37 of ^li^ionerTs™" App. K.) must be considerably modified, and provisions as *« act. to notices similar to those inserted in the usual order for the appointment of a special examiner (Form 37c of («) As to the advantages of sucli a coui'so, see ajile, pp. 15 e( seq. 94 PROCEEDINGS FROM ORDER UP TO EXAMINATION. Drawing up order for appointment of special examiner. WHere com- mission (as opposed to App. K. {b)) sliould be incorporated botli in the long order and in the writ of commission itself {c). Where onlj one commissioner is to act, power should be expressly given to him to administer the oath to himself {d) . Drawing tq) Order for Appointment of Special Examiner. — There is no rule which states that an order for the appointment of a special examiner will be drawn up in Form No. 37c in App. K. This nevertheless is the form which should be followed as a general rule. The most important variation of the form is occasioned where pro- vision is made in the order to meet the case of an examiner dying, or for some other cause becoming unable or refusing to act. Although it is submitted that there is power to order that each party may be represented at the examination by his own examiner {e) and also to order that the whole or any part of the examination shall take place upon interro- gatories, the cases where such orders would be made are so rare, and the advantages to be gained by such forms of order are so doubtful, that no special forms are provided to meet such cases (/). There is now power to appoint special examiners to take evidence out of the jurisdiction in Probate {g) and Admii-alty (//) actions. Procedure (fter Drawing up of Order, ajjplicahle where Examination is to be •upon Commission and not before Special {b) See post, p. 239, -where this form is set out. (c) For a form where a commission is ordered, directed to a single commissioner, or to alternative commissioners, with a provision that not more than one shall take the examination of a witness, see Appendix, Form 16, post, p. 249, and compare Forms 8 and 9, pp. 239 and 240. {d) Wilson V. Be Coidon, 22 C. D. 841 ; 53 L. J. Ch. 248 ; 48 L. T. 514 ; 31 W. R. 839. (e) See London Bank of Mexico v. Sart, 6 Eq. 467, where such an order was made. See, also. Appendix, post, p. 239, where the order is set out. (/) Forms of order for the appointment of special examiners are to be fovmd in the AppendLx, post, pp. 239 and 240. {g) See ante, p. 75. {h) See antCy p. 83. THE WRIT OF COMMISSION. 95? JExamiiier. — T/te Writ of Commission. — Where a commission special ex- lias been ordered, a further step (inapplicable to a case oiS.ered'^not where a special examiner is appointed) must be taken. In only order, but ordinary cases after the short order and long order have mission must been drawn up, the solicitor will prepare and sue out the ^^ prepared. writ of commission in the Form No. 13 of App. J. Where, commission however, the order has been modified in any way, the follows the , , . . ./ ./ ' order. commission itself must be modified in such a way as to follow the order. Ord. II. r. 8 of the R. S. C. provides that every writ of Dating and summons, and also (unless by statute or by the rules it is commfssion otherwise provided) every writ (/) shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Lord Chancellor, or if the ofiice of the Lord Chancellor shall be vacant, in the name of the Lord Chief Justice of England. Where the commissioners are named in the order, the The form of commission itself will be directed to those commissioners ; ^^q^^ °" ' but where the order does not name the commissioners, the names of such commissioners as the parties may agree upon may be inserted in the commission (A). It has been held (/) that where a commission is directed to the judges of a foreign Coui't, words of authority and not words of command should be used ; and further (;«) that the commissioners should not be directed to take the oath. In the last-mentioned case a commission had originally been issued to private commissioners to examine witnesses at Pesth, but was returned unexecuted, on the ground that the Austrian government did not permit any but the tribunals of the country to examine witnesses in Hungary (»). The Court directed a commission to issue (i) A writ of commission would be included in these words. [k) Nicolw. Alison, 11 Q. B. 1006 ; 17 L. J. Q. B. 3oo ; 12 Jur. 598. \l) Ponsford v. O'Connor, 6 M. & W. G73 ; 7 Dowl. 866. (>n) Fischer v. Izaiarmj, El. Bl. & El. 321 ; 27 L. J. Q. B. 239 ; 4 Jur. N. S. 632. {«) A similar rule prevails in Germany and Spain, to which countries letters of request addr eseed to the proper Court are now always issued. 96 PROCEEDINGS FROM ORDER UP TO EXAMINATION. Names of ■witnesses in the commis- sion. Sealintr the commission. Examination upon iater- roaratories. addressed to the Royal Provincial Coui't at Pesth, to examine the witnesses. Now it is almost the invariable practice, when it is desired that the judges of a foreign Court should take the evidence, to apply for a request addressed to the appropriate foreign Court to examine the witnesses in lieu of a commission (o). It was held in Nadin v. Bassett {p) that it is not necessary that the names of all the witnesses to be examined should appear in the commission, and, indeed, the Forms Nos. 36 and 37 of App. K., and No. 13 of App. J., assume that the names of none of the witnesses need be specified in the order or in the commission. The commission having been prepared, should be sealed in the Writ Department. A form of jorsecipe of commission to examine witnesses is set out in the Ajopendix Gr. to the E. S. C. {q). "Where the order provides that the examination shall be taken uj)on written interrogatories, great care must be taken in framing them. It is important to remember that where a party examines a witness upon interrogatories under a commission, he is in effect examining his own witness in chief. The interrogatories therefore must conform to the rules which govern the form of questions admissible in examinations in chief. If the inter- rogatories contain leading questions, or are immaterial, irrelevant or otherwise objectionable, the opposite party may object to the answers being received at the trial. It is not the present practice for the master to consider inter- rogatories proposed to be administered to witnesses on commission, because the rules which so provide apply only to interrogatories infer partes ; but the practice seems at one time to have been different. Thus, it was held in (o) See Ord. XXXVII. r. 6a. For the practice, see ante, pp. 53 et seq. {p) 25 Ch. D. 21. (5) App. Gr. No. 17 ; see App. hereof, post, p. 255, where the form is set out. TEAMING INTERROGATORIES. 97 Stocks V. EUls {)•), that where interrogatories were proposed to be administered out of the jurisdiction of an English Court, the Court had a discretion to disallow any interro- gatories which might deter a witness from giving evidence before the commission, and that the Court would disallow cross-interrogatories which they might think improper. The rule is intelligible when confined to cross-interroga- tories, but it would appear that if a party, examining in chief, chooses to put his questions in such a form as to deter the witness from giving evidence, he himself is the sufferer, and his opponent could only object in exceptional cases. Owing to the care which is needed in framing the inter- Preparation rogatories it has been the practice to have them settled by roo-atories^.^' counsel. It is sometimes stated in the practice books that the interrogatories should be signed by counsel. No Counsel's doubt, it was once the practice in the Court of Chancery nf.eLary.'^'^ that these interrogatories, and in fact all interrogatories, should be so signed ; there is, however, no rule or decision which renders counsel's signature obligatory, and the practice may be regarded as obsolete. The interrogatories and the cross-interrogatories, in cases As to annex- where the opposite party desires to cross-examine upon ten-oo-atories interrogatories, are usually annexed to the commission ; *« the writ of ,.f ,, jii^ii'i j_ • conumssion. but it does not seem to be necessary that the interrogatories should be so annexed, since neither the rules nor the ordi- nary forms before referred to provide for this. These forms, interroga- however, do provide that the solicitors or agents shall exchanged, exchange the interrogatories which they propose to ad- minister within a certain date from the making of the order. The effect of this may sometimes be that inter- rogatories must be exchanged before the commission is sent out, and in such a case it would be advisable to annex the interrogatories to the commission. Where the parties administer interrogatories by way of Interroga- tories by way (r) L. R. 8 Q. B. 454 ; 42 L. J. Q. B. 241 ; 29 L. T. 267 ; 22 W. R. 17. W. H 98 PROCEEDINGS FROM ORDER UP TO EXAMINATION. of cross- examination. Exchanging cross-interro- gatories. Procedure ■where both parties do not join in com- mission. cross-examination, sucli interrogatories take the place of an oral cross-examination, and therefore need not conform to the rules governing an examination in chief. Indeed, it would seem that they need not be confined within the limits laid down in Ord. XXXI., r. 1, as to interrogatories ad- ministered by one party to the other party within the jmisdiction. That rule contains a proviso that " inter- rogatories which do not relate to any matters in question between the parties in the cause or matter shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness." Where a witness is examined by a party out of the jurisdiction, the power of cross-examination ought to be at least as wide as it is where a witness is examined in Court, and there can be little doubt that as great a latitude would be allowed to a party who cross-examines by way of cross- interrogatories, as to one who cross-examines viva voce. The order usually provides that the cross-interrogatories to be administered by way of cross-examination should be exchanged within so many days from the exchange of the interrogatories in chief ; the parties desirous of administer- ing cross-interrogatories should be careful to see that the order allows a sufficient time to enable effective cross- interrogatories to be prepared, since in the case of wit- nesses examined abroad it may be impossible to collect the materials necessary for the purpose of framing the cross-interrogatories in a short time, and cases may often arise where it would not be possible to settle the cross- interrogatories until after the examination upon the inter- rogatories in chief has taken place. Where both parties do not join in the commission it is still necessary to serve a copy of the interrogatories on the solicitor of the party not joining, as he has a right of cross- examination (s). («) See post, p. 100, and Ati.-Gcn. v. Davison, M'Cl. & T. 160 ; Cazenove V. Vaughan, 1 M. & S. 4. THE NOTICES TO BE EXCHANGED. 99 Wliere the order is silent on the point, it would seem tliat the cross-interrogatories need not be exchanged (t) . It has been suggested {u) that there is no reason why a Procedure special examiner should not, under r. 5 of Ord. XXXVII., T^^amLTtion^ take examinations abroad upon interrogatories. If such upon interro- an order were made, the form of order No. 37c in App. K. Srdered. to the R. S. C. could easily be modified, and in such a case substantially the same course should be j)ursued as in the case of a commission to examine upon written in- terrogatories. Notice of Time of sending out Commission or Order for Notice of time Special Examination. — The order for a commission or special ^rit of com- examination will provide — and the order must be complied ™ifsion or ...... . order lor With — that the solicitors of the one party shall give to special the solicitors of the other party, within so many days ®^^°"^^ ^^"* previously to the sending out of the writ of commission or order for special examination, notice in writing of the mail or conveyance or of the date when the commis- sion or order for special examination is to be sent out. Notices of Names of Agents tc/iere one Commissioner or one Notices of Special Examiner is apjmnted. — Where only one commis- ^^^^^ ^^^i sioner is appointed (.r) , or where a special examiner is one commis- appointed {//), the order will provide that within a certain spj^kl^^ °^^ limited time after the service of the notice in the last examiner 1 J- t;i T'l PI appointed. paragraph mentioned, the solicitors of the parties shall {t) Chatty's Arch. 14th ed. pp. 537, 550, citing Norton v. Edgelcy, 19th Nov. 1844; Forster v. Forster, June 1864, Sir J. Wilde, Probate Court. There seems to be no good reason why cross -interrogatories should be exchanged ; on the contrary, the result of an exchange of cross -interrogatories is to enable the witness who is to be cross-examined to devise evasive answers. («<) Ante, pp. 13, 14. {x) Or where, though more than one is appointed, only one is to act. (y) See the forms of order for special examiner, App., post, pp. 239, 240. IT 2 100 PROCEEDINGS FROM ORDER UP TO EXA.MINATION. exchange the names of their respective agents abroad to whom notices relating to the examination of witnesses may be sent. Notices of Notices of Proceedings to he given by Agents where one ^o^hr^i^e^hj Commissioner or one Special Examiner is apj^ointed. — It agents, where -^u be necessary for the agent of the party on whose sioner or one behalf a witness is to be examined, to give a certain notice special q£ ^j^g ^j^^^g ^^^^ place of examination, as provided by examiner ^ ^ appointed. the Order, to the agent of the other party, unless such notice is dispensed with (z). Where notices Notices to Party tcho has not joined in a Commission or tr ai-t^who^ >S/Jf «??■«/ Examination. — The opposite party should be in- has not joined formed of all proceedings intended to be taken under the in a commis- i c • • • i • !_• ii i sion or special Order lor Commission or special examination, even tnougli examination. ]^q j^g^g j^q^ joined in the commission or order for special examination, since he will be entitled to be present at the examination and to cross-examine the witnesses (r/), although he will not be allowed to examine witnesses of his own in chief. It has been said to be one of the first principles of the English Law of Evidence that to render a deposition admissible in point of law against a party, it must appear that it was taken on oath (or affirmation) in a judicial proceeding, and that the party should have had an opportunity to cross-examine the witness {I)) ; but if a party has had hberty to cross- (z) The form does not state how the agent of the party, whose witness is to be examined, is to obtain an appointment ; but it is conceived that it is the duty of the party prosecuting the order to obtain an appointment in writing from the examiner stating when and where it is to be held. Cf. Ord. XXXVII. r. 44, which refers to appointments given by examiners of the Court. {a) Ord. XXXVII. r. 11, provides : " The examination shall take place in the presence of the parties, their counsel, soUcitors, or agents, and the witnesses shall be subject to cross-examination and re -examination." {b) Att.-Gen. v. Davison, M'Cl. & Y. 160; Cazenove v. Vaughan, 1 M. & S. 4 ; Fitzgerald v. Fitzgerald, 3 S. & T. 397, 400. WAIVER OF NOTICES. 101 examine and has cliosen not to exercise the right, the case is the same in effect as if he had cross-examined. In a case where the parties agreed upon two commissioners, and the plaintiff afterwards obtained another order to examine witnesses upon interrogatories before the same persons, without describing them as commissioners and without referring to the commission, and the defendant afterwards withdrew the name of his commissioner and declined to proceed with the examination on the ground that the second order was informal, whereupon the 2:)lain- tiff then obtained a further order to examine witnesses before his commissioner ex 2)arfe, it was held that the examination taken under the last order was admissible although the defendant had received no notice of the time and place of taking the examination. The ground stated was that the defendant had by his voluntary act renounced the right of cross-examination (c). The case of Whyte v. Hallett [d) is instructive as showing Waiver of what may amount to a waiver of notice. There the °'° ^^^' defendant's solicitors had notice of a commission sent out to New York on the 28th of May. On the same day, (the commission being returnable on the 28th of June,) they informed the plaintiff's solicitors that this would be too soon, as they desired to engage a certain counsel to attend and cross-examine. On the 25th of June, the defendant's solicitors signed a consent that no objection should be taken to the admissibility of the evidence by reason of any defect in the order or in the commission, or by reason of the time of taking and returning such evidence, saving all just exceptions to the evidence in other respects. The commission was executed at New York on the 12th, 14th, and l'5th of June, and no notice of these days had been given to the defendant's solicitors. The commission was (c) UPCombie v. Anton, 6 M. & G. 27, distinguishing SteinkeUcr v. Newton, 1 Scott, N. R. 148 ; 8 Dowl. P. C. 579, {d) 28 L. J. Ex. 208. 102 PEOCEEDINGS FKOM ORDER UP TO EXAMINATION. Where the Older is silent as to giving notice. returned on the 28tli of June. It was held that, as the defendant, after notice of the commission, had allowed it to be executed without making any objection or application, the rule as to the necessity of giving notice of the time of executing the commission could not be relied on ; and that if there was any irregularity it had been waived. In that case it seems to have been considered that there was no irregularity inasmuch as there was no express term in the order requiring notice of the time of giving the evidence. Under the modern practice the order invariably provides that notice shall be given. As to the desirability of incor- porating such a term in an order for the issue of a letter of request, see ante, at p. 58, and the form in the Appendix, post, p. 246. Notices "where each party repre- sented by his own commis- sioner or special examiner. Notice of time and place of intended examination and names of ■witnesses to be examined. Notices where each Party has his own. Commissioner or Special Examiner (e). — Where commissioners or examiners are appointed to represent the respective parties at the examination, it would not seem to be strictly necessary for the j)arties to exchange the names of their agents (unless the order contains an express provision on the subject), since the commissioner or examiner appointed by a party is considered to be the agent of that party for the purpose of giving and receiving notices. Consequently the order provides that within a certain number of days j)reviously to the examination of any witness on behaK of either party, notice in writing signed by any one of the commis- sioners or examiners of the party on whose behaK the witness is to be examined, and stating the time and place of the intended examination, and the names of the intended witnesses shall be given to the commissioners or examiners of the other party by delivering the notice to them personally, or by leaving it at their usual j)lace (e) It woiild hardly ever happen that an order for a special examination would be made in which each party is represented by his ovm. commis- sioner. Such an order was made in The London Bank of Mexico v. Sart (6 Eq. 467), and the power still exists to make such an order. NOTICES TO BE GIVEN BY COMMISSIONERS. 103 of abode or business. If after such notice lias been Effect of given the commissioners or examiners, as the case may attendln^**' be, of that party neglect to attend in pursuance of the pursuance of notice, then one of the commissioners or examiners of the other party may proceed with the examination c^^- j^r/r^e, Ex parte until all the witnesses mentioned in the notice have been *^^^™"i*"o°- examined without giving any further notice of the meeting or of any adjourned or subsequent meetings. It was held in the case of Scott v. Van Sandau (/), that where it had been ordered that a copy of the interrogatory on which the witness was to be examined was to be delivered to the defendant on a certain day, and he was to have six days' notice of the examination, the terms of the order were sufficiently complied with, although the notice was neither signed nor directed by the commissioners. In that case, however, the order did not require this in terms, and it was pointed out that notice by the party answered all the objects in view. It is not now likely that, when notice Whether pro- has once been given and received, the mere fact that it is not notices are to signed by the commissioner of the party on whose behalf ^^ si^ed by ,1 ., ' 1 ^ • 1 ^ 1 re 1 I^ -i • • commissioners the witness is to be examined would anect the admissi- is directory bility of the depositions. At the same time, it is a general ^'^^^' rule that the directions contained in the commission or order for special examination should be followed, and therefore it would not be safe to depart from the course of 2">rocedure directed in the commission or order for special examination. In the above-mentioned case of Scott v. Van Sandau, the facts were as follows : the order provided that the plaintiff should furnish the defendant with the names of his witnesses ten days before the issuing of the commission ; upon an affidavit that one of the wit- nesses was about to start for America, an order was made eight days after the first order authorizing the issuing of the commission forthwith, and it was issued the next day : the second order provided that as to the witnesses other (/) 8 Jur. 1114. 104 PEOCEEDINGS FROM ORDER UP TO EXAMINATION. tlian the one about to leave for America, tlie defendant was to have a copy of the interrogatories and notice of their execution twenty days before the first appointment ; no list of witnesses was delivered to the defendant, and no name of any witness except the name of the one who was leaving was communicated to him. It was held that this omission rendered the depositions inadmissible. A party must Each Party must secure the attendance of his own Wit- wTtnesses °^^ nesses. — After the commission or order for special examina- tion has been sent out, and the above requisites as to notices have been complied with, it will be necessary for the party desirous of examining a witness to see that the witness attends for examination at the appointed time and No machinery place. Machinery exists for compelling the attendance of attendance of witnesses in places outside the jurisdiction and within the witnesses on Queen's dominions, but there is no machinery for compelling examination ., , , -, t> -j i •• -■ out of Queen's the attendance oi witnesses under a commission or order dominions. £qj. special examination outside the Queen's dominions, and consequently it is unlikely that the Court would order the attendance of witnesses in such a case. In a case, however, where a party desu-es to cross-examine an affidavit witness on commission, the Court might in ordering the com- mission direct that unless the witness attends for cross- examination the affidavit should not be used at the trial. As to this, see ante, at p. 46. Procui-ing tlie Production of Documents. — Inasmuch as the examination documents. °* wiU be conducted according to the rules which obtain at nisi prius, original documents and not coj)ies must be pro- duced, where, at the trial, original documents would have to be produced (g). In the case of Cunliffe v. Wliite- head {h) the Court refused to order a party to produce a (ff) As to the means to be adopted for obtaining documents and sending them out for identification, see ante, at p. 42. {h) 3 Dowl. 634. PRODUCTION OF DOCUMENTS. 105 bill of exchange in liis possession, on the taking of the examination, although the effect of its non-production would have been to render secondary evidence as to its contents inadmissible. In this case the Court might have ordered the plaintiff to deliver up the bill of exchange, as it was within the jurisdiction at the time the order for the commission was made, but the Court refused to exercise the power. On the other hand, in the case of Clinton v. Peahody (/) the Court directed certain notes alleged to have been forged to be deposited with the master, and after- wards directed them to be sent out to New York for pro- duction under the commission, facsimiles being deposited in lieu of them. In this case the notes were within the jurisdiction at the time when the order was made. Notice to produce. — Where a party is examining a Notice to witness under a commission or special examination abroad, pro•), which gave to the Court 3 & 4 Vict. of Admiralty power to issue commissions to take evidence powered the out of the jurisdiction bi/ word of mouth («), will show that Court to issue ^|jgj.g jg much similarity between the statutes ; consequently, commissions _ •' ' i ./ 7 to take evi- the cases decided upon the one statute are frequently appli- dence rivd voce in, • • • j j ii, i.i and not upon Cable to commissions issued under the other. interroga- tories. (>•) See ante, Ch. III., p. 84, where the section is set out. This Act is not repealed. («) No power was given to take such evidence upon interrogatories. ADMIRALTY CAUSES. 113 The following is an outline of the special procedure regulating the practice in Admiralty causes from order up to examination (/) : — The Court having made an order for a commission to Procedure issue, which order will mention the place and time of the made^t^Mno- opening of the commission and the name of the commis- time and place sioner to whom it is to be addressed, the solicitors will file tion^and name (with a minute) a pr(ecipe for a commission, which is a °f coimnis- » ... , , sioner. prayer for a commission to issue as decreed by the -E^incr precipe order (u). with minute. The pv(t;cipe will state the name of the commissioner and Form of the place and time of the examination {x). prcedpe. The commission is prepared in the Admiralty Eegistry. A form of commission applicable to Admiralty actions Form of is set out in the Appendix to the Eules of the Supreme c«^i««io°- Court (Form 14 of App. J.) (i/). It is not the practice to issue commissions in Admiralty Only one actions directed to two commissioners as provided by the is"™^oi^ted^ usual long order (No. 37 of App. K. of the E. S. C), so to act in that both may be present at the examination. cau^'s.^ ^ The commission may be directed either to one named The commis- commissioner simply, or to alternative named commis- addressed sioners, one of whom only is to act at one time, or to a named commissioner or his nominee. In the last case it Appointment will be necessary for the named commissioner to nominate sioner^o?^'^" the commissioner whom he appoints to take the evidence nominee. before the examination is proceeded with. [t) The subject of taking evidence out of Coiu-t in Admiralty causes is very learnedly and fully treated in Williams and Bruce's Admiralty Practice, to which work the authors of this book are much indebted for valuable information, although they do not agree with all the conclusions there stated. (m) For form of prsecipe, Bee post, p. 255. (x) It will bear an impressed stamp of 15s., by virtue of the Order as to Supreme Court Fees, 1884. The commission itself, as in the case of commissions issuing out of the other divisions, will bear an impressed stamp of 11. See Annual Practice, Part II. (y) See App. hereof, post, p. 249. W. I 114 PEOCEEDINGS FEOM ORDER UP TO EXAMINATION. Directions in commission must be followed. Ad. R. 87-95 do not apply to procednre from order to examination. Practice when special examiner in lieu of commissioner is appointed. No provision was made in tlie Admii-alty Coui't Act for the taking of evidence upon commission in Admiralty causes except by word of mouth. The authority conferred by Ord. XXXVII. rr. 1, 5, on the Probate, Divorce, and Admiralty Division to order evidence to be taken on commission by way of interroga- tories is never exercised in practice in Admiralty causes. It will be necessary to carefully follow all directions contained in the commission. The Admiralty Eules (87—95) of 1859 as to written depositions (which are set out ante, at p. 88), do not, any more than do the Eules of the Supreme Court, give any directions as to the practice to be followed between order and examination {a). No provision was made by the Admiralty Com't Acts, or the rules made thereunder, for the appointment of a special examiner, as opposed to a commissioner, to take evidence out of the jurisdiction. By virtue of the Eules of the Supreme Court, Ord. XXXYIL, r. 5, the Probate, Divorce, and Admiralty Division has power in Admiralty actions to order the appointment of a special examiner. Where such an order is made, the practitioner should consult the earlier portion of this chapter, where the pro- cedure from order up to examination in such cases is indicated {h) . Letters of request. Letters of Request. — For the procedure from order to examination, where a letter of request is issued under (ff) For the practice in Admii-alty causes at the examination under a commission, see post, pp. 134 et seq., and 185; for the practice subse- quent to examination but before trial, see post, pp. 145 et seq., and 185 ; for the practice at trial, see post, pp. 192 et seq. ; and for the practice relating to examinations within the jurisdiction, see post, pp. 185 et seq., and p. 145. {b) For form of order for the appointment of a special examiner to take evidence out of the jurisdiction in Admiralty actions, see post, pp. 239 and 240, and note {h) to p. 240. LETTERS OF REQUEST. 116 Ord. XXXVII., r. 6a, tlie reader is referred to Chap. II., ante, pp. 53 et seq., and Chap. III., p. 83. It would seem that a foreign Court would have the power of enforcing the attendance of witnesses and the production of docu- ments ; though whether this power would be exercised, and, if so, to what extent, would depend upon the law of the country to the Couiis of which the letter is addressed, and also upon the disposition of such Courts. i2 116 CHAPTER V. THE EXAMINATION. Place where examination held is not a public coiu"t. O. XXXVII. r. 11. Moaning of rule. Re Western of Canada Oil Co, The Court. — The place where the examiner sits is not a public court, but a mere office. Ord. XXXVII. r. 11 (which is taken from sect. 31 of 15 & 16 Vict. c. 86) pro- vides that " The examination shall take place in the pre- sence of the parties, their counsel, solicitors, or agents, and the witnesses shall be subject to cross-examination and re-examination." These words merely mean that the examination shall take place in the presence of the parties, if they choose to attend. Subject to this, it is a j)rivate examination, and the examiner has no discretion as to admitting the public. Thus, where a clerk of one of the parties under exa- mination before the examiner of the Court was himself interested in the case, and was subsequently to be called as a witness, it was held by Jessel, M.R., that he was not entitled to be present under 15 & 16 Vict. c. 86, s. 31, and that he ought properly to be excluded from the office {a). It had previously been held by Vice-Chancellor Kindersley, in Wright v. Within (b), that a special examiner was him- self the judge as to whether the examination should be carried on with closed doors, or as to who should be admitted. Inasmuch as r. 11 of Ord. XXXVII. applies to exami- nations before commissioners and special examiners as well as to examinations before examiners of the Court, the decision in He Western of Canada Oti Co. is aj)plieable to examinations taken abroad under Ord. XXXVII. r. 5, (fir) He Western of Canada Oil Co., 6 Ch. D. 109. [b] 6 W. E. 643. THE EXAMINATION. 117 "whether by way of commission or special examination (c). It also appears from this case that the word " agent " in Mecaning r. 11 of Ord. XXXVII. would include an ordinary clerk "ag'ent"in employed to tie up papers. O. XXXVII. Securing the Attendance of Witnesses. — We have seen Securing the ,,,,, .' -,. ', , , IP attendance of that there is no macninery whereby, under an order lor a witnesses. commission or for the appointment of a special examiner to take evidence abroad in places not within the Queen's dominions, the attendance of witnesses can be enforced. It will be therefore the duty of the agent to use means of persuasion to induce his witnesses to attend at the time and place fixed for the examination, and to bring with them all documents which may be required at the examina- tion. Witnesses in Attendance may he ordered out of Court. — It Examination would appear to follow from the case of Re Western of ducted as at Canada Oil Co., and from the general rule {d) providing ^'^"^'^^■ that the examination will be conducted according to the attendance^^ rules which regulate proceedings at Nisi Prius, that the may be ,, ^• ,• p 1 J -i. ordered out examiner may, on the application oi a party, order wit- of court, nesses in waiting out of Court. The commission itself sometimes directs the commissioners to examine the wit- nesses apart {e). Commissioners must follow Directions contained in Conmiis- Conunis- rni . . ' • 1 J.' XT- • i.' sioners must sion. — The commissioners m conducting the examination foUow (f) As to examinations under sect. 115 of the Companies Act, 1862, see post, p. 187 ; and Ee Grei/s Brewery Co., 25 Ch. D. 400 ; Re Norwich Equitable Assurance Co., 27 Ch. D. 515 ; Be Heseltine ^- Sons, Ltd., W. N. (1891) 25. {(l) Ord. XXXVII. r. 22 ; SteinhcUcr v. Newton, 1 Scott, N. R. 148 ; Cunliffe v. Whitehead, 3 Dowl. 634 ; Lord v. Colvin, 2 Drew. 205 ; Re Bore Gallery, 38 W. R. 491 ; Burgess v. Bennett, 20 W. R. 720; Alcock y. Royal Exchange Assurance Co., 13 Q. B. 292; Lnnihy v. Gye, 23 L. J. Q. B. 112. (e) As in Simms v. Henderson, 11 Q. B. 1015, 118 directions in commission, and special examiner must follow directions in the order for his appointment. How many commissioners may be present. THE EXAMINATION. must follow as nearly as is possible the directions contained in the commission ; and, similarly, special examiners must act in accordance with any directions embodied in the order for their appointment. Unless, however, from intrinsic or extrinsic evidence it clearly appears, when the depositions are put in at the trial, that the examiner (/) has not carried out the instructions contained in the com- mission or order for his appointment, the Court will generally presume that the examination has been con- ducted in a regular manner. In Afki)is v. Palmer, Abbott, C. J., said : " We are to presume that they have discharged their duty, if by reasonable interpretation we can do so. We are not to look out critically for objec- tions, nor are we bhndly to give credit to all they have done, but we are to see whether they have suhstantiaUy performed their duty " {g). The Attendance of the Commissioners at the Examination. — All directions in the commission must be strictly ob- served ; it follows that, under the usual Long Order for Commission (Form 37 of App. K.), upon which a commission in the Form 13 of App. J. is issued, not more than one commissioner on each side can be present and act at the examination. The advisability of applying for (/) This word is frecxuently used in this chapter, as also in Ord. XXXVII., to express the person who takes the examination, whether he be a commissioner or special examiner. {g) Atkins v. Palmer, 4 B. & Aid. 377. See also Hodges v. Cohh, L. R. 2 Q. B. 652; 36 L. J. Q. B. 265; 16 L. T. 792; 15 W. E. 1038; 8 B. & S. 583 ; Simms v. Henderson, 11 Q. B. 1015 (where the Court presumed that a direction in the commission, that the witnesses shotdd be examined apart, had been followed) ; Hitchins v. Hitch ins, L. R. 1 P. & D. 153 ; 35 L. J. P. & M. 62 ; Grill v. General Iron Screw Collier Co., L. R. 1 C. P. 600 ; 35 L. J. C. P. 321 (where it was held that where depositions have been taken with authority, the proper course, if there has been any irregularity in the mode of taking them, is to apply at chambers to have them suppressed) ; Clctg v. Stephenson, 3 A. & E. 807 ; and 7 A. & E. 185 ; Brydges v. Branjil, 12 Sim. 334 ; Richards v. Haugh, 51 L. J. Q. B. 361. 1 WHEN TO PROCEED '' EX PAETE." 110 the appointment of a single commissioner to take the evidence, such commissioner to be agreed upon by the parties or in default to be nominated by the master, has been pointed out elsewhere {h). It is sometimes prudent to have alternative commissioners or special examiners appointed in case a commissioner or special examiner dies, or becomes unable or refuses to act. In the Probate, Divorce and Admiralty Division, the commission can be addressed to a commissioner by name or his nominee. In such a case the commissioner must appoint his nominee before the commencement of the examination, if he is unable to take it himself. Where a commission is issued in the Form No. 13 of Wlien both App. J., (which provides that notice in writing, signed by fc^ned^in^^he" one of the commissioners of the party on whose behalf a commission witness is to be examined, stating the time and place of represented examination shall be ffiven to the commissioners of the ^^ different ° _ _ commis- other party,) if after such notice has been duly given the sioners, the commissioners or commissioner of that i)arty neglect to a^^dtness^ attend in pursuance of the notice, then the commissioners ™^y ^^ taken of the party on whose behaK the notice has been given may proceed with the examination of the witness ex jxirte, and may adjourn any meeting or meetings or continue the same from day to day until the witness has been examined, •without giving any further or other notice of the subse- quent meeting or meetings. When the notice is in respect of the examination of several witnesses, all the witnesses included in the notice may be examined ex parte, if the commissioners to whom the notice was given neglect to attend. TJie Oath of the Commissioners. — Before the commis- The oath of sioners or any of them act under a commission, it is *^^ commis- required that they shall severally take the oath indorsed on the commission, on the Holy Evangelists, or otherwise (A) Ante^ pp. \b et seq. sioners. 120 THE EXAMINATION. Where only one commis- eioner, he may administer the oath to himself. Special examiner is not required to take the oath. Copy of pleadings, &c., to be f iirnished to the commis- sioners or special examiner. in sucli manner as is sanctioned by the form of their several religions and is considered by them respectively to be binding on their respective consciences. It is now provided in the form of commission (No. 13 of App. J.) (/), following Wilson v. De Coulon (k), that in the absence of any other commissioner, or where only one commissioner is appointed, a commissioner may administer the oath to himself (/r) . The words of the statute 1 Will. 4, c. 22, did not require commissioners to take the oath, and in one case (/) the usual clause in the commission, as to the oath of the com- missioners, was omitted, where it appeared that the members of a foreign court of commerce refused to take the oath as special commissioners. Letters of request are now issued to foreign courts in lieu of commissions. If the commission, addressed to private commissioners and not to a court or the judges of a court, omitted to direct the commissioners to take the oath, it is improbable that the depositions would be invalidated by the omission of the commissioners to take the oath, since there is no rule which requires the commissioners to be sworn. A Special Examiner need not take the Oath. — There is no rule or practice which renders it necessary for a special examiner to take the oath. Documents to he furnished to the Commissioners or Special Examiner before the Examination begins. — Where any witness or person has been ordered to be examined before any officer of the Court or any person appointed for the pm-pose, (which words would include commissioners (() This is the form of commission to be foUowed, subject to such variations as circumstances may reqime, see Ord. XXXVII. r. 6. It is more convenient, as a rule, and always less expensive, to have the commission issued in such a form that only one commissioner may act. The form of oath, indorsed on this form of commission, is set out in the Appendix hereof, j^ost, at p. 256. {k) 22 Ch. D. S41. {I) Clay V. Stephenson, 3 A. & E. 837, and 7 A. & E. 185. SWEARING THE WITNESS. 121 and special examiners,) it is provided by r. 10 of Ord. XXXYII. that the person taking the examination shall he furnished, by the party on whose application the order was made, with a copy of the writ and pleadings (if any), or with a copy of the documents necessary to inform the person taking the examination of the questions at issue between the parties. The Oath of the Witnesses.— AMiOVi^h. Ord. XXXYII. Witnesses J. . , ' p 1 , 'J.- i.^ L under com- r. m terms refers only to an exammation on oath, yet mission or there is no doubt that a witness may be examined on oath special _ rrn p • • /-VT 1 o p examination or affirmation. The form of commission (No. 16 of shall take the App. J.) provides that each witness shall be examined on oath or affirm. oath, affirmation, or otherwise, in accordance with his religion, by or before the commissioner or commissioners present at the examination ; and the order for the appointment of a special examiner (No. 37c of App. K.) provides that the witnesses shall be examined on oath or affirmation. It is only upon religious grounds, however, that a witness When witness may object to take the oath, and it is the duty of the ^^^ ^ ^^' examiner to refuse to take an affirmation except in cases where the witness objects to be sworn on religious grounds (m) . In the case of Richards v. Haugh (n), a commission had issued to Russia, and the evidence of a witness who had objected to be sworn had been taken on affirmation. The commissioner returned the deposition with the following statement : — " Affirmed before me, the witness objecting to be sworn." Although the plaintiff had been repre- sented at the commission, no objection had been taken at the time to the evidence being given. The Court, under (m) The form of oath to be administered to a witness, as provided by Form No. 13 of App. J., is set out in the Appendix hereof, pos(, p. 25.5. Other forms of oath and a form of affirmation are also set out post, at pp. 256, 257, in the Appendix. («) 51 L. J, Q. B. 361. 122 THE EXAMINATION. those circumstances, refused to take the depositions off the file, there being nothing on the face of the deposition itself to show that it was not properly taken. Expert It not unfrequently happens that expert witnesses, and ■witnesses especially foreign advocates, refuse upon other than re- sometimes i J o ' i refuse to take ligious grounds to state their 023inion upon oath. In such cases it will not he possible, apart from consent, to use the depositions at the trial (h) . It is sometimes urged in oppo- sition to applications for the issue of letters of request to Grerman Courts to take the evidence of German advocates on the law of their country, that such advocates are not allowed to express an opinion on oath ; and there is little doubt that in Grermany, at least, there is extreme difficulty in getting expert witnesses to give their evidence on oath. In a very recent case (unreported), where evidence had been taken in Spain, the expert witnesses called by both parties refused to be sworn, and the depositions were only admitted at the trial by the consent of the litigants. It follows that, where Grerman or Spanish law can be proved by calling lawyers at the trial, that course is j)referable. Interpreter to Iiiferjvrfers. — If the witness who is called before the v.^licrewit^ness Commissioners or special examiner does not understand does not the English language, the person or persons taking the understand • ,• i i i • ; • j. i. Eno-iish. examination should nominate an interpreter. Interpreter to The interpreter, ha\'ing been nominated, must be sworn take the oath according to his religion by the examiner truly to interpret the questions -put to the witness and his answers to such questions. The form of commission (No. 13 of App. J.) contains a form of interpreter's oath (o). This form can be modified or an affirmation can be made in the same cases as those (m) If a witness refuses either to be sworn, or to affirm, it would appear that the examiner has no power, according to the terms of his appointment, to take the witness's evidence at all, unless by consent of all parties, either tacit or express. See also Ord. XXXVII. r. 13. (o) This form is set out in the Appendix hereof at pp. 247 and 248. TAKING DOWN THE DEPOSITIONS. 123 in which modifications of the usual form of oath or affirmations are necessary in the case of witnesses {p). The interpreter having been sworn or having affirmed, Duty of ,1 . , , . . , , ■ • /, interpi-eter. the interrogatories, cross-mterrogatones, or riva voce ques- ^ tions should be translated into the language with which the witness is conversant, and the interpreter will translate the answers given into the English language. For a case in which the depositions, having been taken in a foreign language, were not translated until six weeks afterwards, see post , pp. 143 and 144. Taking doicn the Depositions. — It was held, in Stohart v. Taking- do-wn To(kl{q), a case decided under sect. 32 of 15 & 16 Vict. tlin?'°''' c. 86, that it was essential that the depositions should be The former taken down in writing by the examiner himself. Where, P^'^ctice. however, an examiner did not take down the depositions in his own handwriting, but they were taken down in the presence of the other parties, and certified by the examiner to have been read over to the witness and signed by her in his presence, and where the other parties, although they were present and saw the course of procedure, did not object. Hall, Y.-C, ordered the depositions to be filed (r). Now, however, the depositions which are taken under a Under the commission, or order for the appointment of a special Present ' ... practice, examiner, shall be taken down in writing by, or in the depositions ,. ,1 x 1 • n • J • / \ may be taken presence of, the person taking the examination [s). ^^^^ j, ^^ The form of commission (No. 13, App. J.) now provides in presence of com miss loner for the appointment of a clerk to take down the evidence, special It is to be noted that the form of oath to be administered ^xammer, or examiner to the clerk (which is contained in Form No. 13 of App. J.) of the Court, provides that the clerk shall write down, transcribe, and Appointment take down the ( p) For forms of oaths and affirmation, see the Appendix hereof, evidence. post, pp. 250 and 257. [q) 2 W. R. 617 ; 23 L. J. Ch. 956 ; 2 Eq. Eep. 1114 ; 18 Jur. 618. (r) Bolton v. Bolton, 2 Ch. D. 217. («) Ord. XXXVII. r. 12. 124 THE EXAMINATION. Form of engross all the questions and answers ; whereas rule 12 of _, . . ■ Ord. XXXVII. says, that " the depositions taken before an Commissioner "^ •"■ iind special officer of the Court, or before any other person appointed shoulcTnot *^ ^^^® ^^® examination, shall be taken down in writing as a rule by or in the presence of the examiner, not ordinarily by take do-mi •• i i j j i i questions and question and answer, but so as to represent as nearly as answers. jj^-^j })q f\^Q statement of the witness " (t). There is some conflict between the terms of the clerk's oath and the words of the rule according to which the evidence can be taken down " in the presence of the examiner," and " not ordinarily by question and answer." In practice it is usual for the examiner to write down the evidence himself, and to write it in narrative form. If all the questions, together with all the answers, are put upon the depositions, these become unduly bulky, and the judge at the trial may have to read some irrelevant matter : — a fact which, in its turn, may affect the costs of the commission. If the parties are, however, ready to run this risk, there can be no doubt that the rule, strictly interpreted, gives the examiner power to employ a clerk, who must take the evidence in his presence, and by " question Aiiter, where and answer." The examiner may, in any case, " put down til^rG IS S13GC13-1 reason for any particular question or answer if there should appear any doing so. special reason for doing so "(;'). Any questions which to questSns ^^^ ^® objected to shall be taken down by the examiner in the depositions, and he shall " state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions" (^^), but he shall not have power to decide ujoon the materiality or relevancy of any question (x). Shorthand As to the employment of a shorthand writer to take down the evidence, see jwsf, pp. 131, 135, 136 et seq. (t) Ord. XXXVII. r. 12. {u) The words between inverted commas are frequently ignored by examiners. {x) Ord. XXXVII. r. 12. writer. DUTIES OF THE EXAMINER. 125 Rules regulating the Examination. — The examination, Rules of , ,, . . T c • -, • evidence whether upon commission or beiore a special examiner, i-eo-ulatino- should be conducted, so far as the reception of evidence is the trial of . •11 11-11/' L evidence at concerned, m accordance with the rules which obtain at a nisi prius trial in the English Courts. The practice with reference examinations to the examination, cross-examination, and re-examination before cona- of witnesses at a trial extends and is applicable to proceed- ^j. special inffs before commissioners or special examiners, with these examiners, Tr. • 1 • ^ ii*i subject to qualifications, that the examiner has no power to decide qualifications. upon the materiality or relevancy of any question, and Examiner has that when a question is objected to the examiner shall not decide upon exclude such question, but shall take down the question and relevancy or , . . . , , . . , . materiality shall state his opinion to the counsel, solicitors, or parties, of question. and shall refer to such statement in his depositions {//). Questions -r ,. 1 • p ji objected to in practice, however, examiners irequentiy express no ^q{ ^o be opinion on the objection, and they very rarely refer in the f''^'^^^|^^^,', depositions to any opinion they may have expressed. It taken down, is hard to conceive what is the object of this provision. ^- ^lo|. It may happen that the examiner is a foreign merchant says that entirely ignorant of the English law of evidence ; and ^^,^{f ^^'^f even though the examiner were an English lawyer, the and refer in judge at the trial would not in any way be bound by hi^s^opinion ° the views expressed and referred to by the examiner in the ^^ to any depositions, but would act simply on his own opinion. No j^ ^.^ .^Z case has decided that non-compliance with this portion of this rule is often dis- regarded. (y) Ord. XXXVII. rr. 12, 22. For cases illustrating the applicability of the ordinary rules of evidence to proceedings before commissioners and special examiners, see Steinkeller v. Newton, 1 Scott, N. R. 148 ; Cioiliffe V. Whitehead, 3 Dowl. 634 ; Lord v. CoMn, 2 Drew. 205 ; Re Bore Gallery, 38 W. R. 491 ; Burgess v. Bennett, 20 W. R. 720 ; Alcock v. Royal Exchange Assurance Co., 13 Q. B. 292 ; Zumley v. Gi/e, 23 L. J. Q. B. 112; Ohlsenv. Terrero, L. R. 10 Ch. 127; 44 L. J. Ch. 155; 31 L. T. 811 ; 23 W. R. 195; Att.-Gen. x. Bavison, M'Clel. & T. 160; Fitzgerald v. Fitzgerald, 3 S. & T. 397, 400 ; Cazenove v. Vaughan, 1 M. & S. 4 ; Tufton v. Whitmore, 12 A. & E. 307 ; Robinson v. Bavies, 5 Q. B. D. 26; 49 L. J. Q. B. 218; 28 W. R. 255; Grill v. General Steam Iron Screw Collier Co., L. R. 1 C. P. 600 ; 35 L. J. C. P. 321 ; 12 Jur. N. S. 727; 14L. T. 711 ; 14 W. R. 893. 126 THE EXAMINATION. Wliere only- one party is represented at the examination. Hostile ■witness. Where no obj ection taken before examiner or commissioner evidence Tsdll be received at the trial. Ord. XXXVII. r. 12, would affect the validity of the depositions (;:) . Where only one party is represented at the examination, and the proceedings are therefore conducted ex parte^ the person taking the examination may, it would seem, refuse to allow questions to be put which would clearly and palpably not be evidence ici) ; but, on the whole, it would be safer for the examiner, except in extreme cases, to allow all questions to be put. There is no rule to the effect that a witness before a commissioner or special examiner may not be treated as a hostile witness if the commissioner or special examiner concludes that he is hostile iV). If the examiner allow a witness to be so treated, he will do well, as soon as a question is objected to, to state his opinion as to the hostility of the witness and refer thereto in the depo- sitions. He may also make a special report on the matter under Ord. XXXYII. rr. 14, 17 (seeiJos^, p. 129). Where no objection to a question is taken, and, conse- quently, the answer is received by the examiner without objection, the evidence will be received at the trial. Thus, in the case of Robinson v. Davies (c), where copies of certain invoices of goods sent to consignees by the defendants were produced as part of the plaintiff's evi- dence upon the commission, without any account being given of the originals, and questions were put to the [z) Cases may possibly arise in which the examiner deems it desirable that the Court should be informed of the manner of the witness {i.e., his demeanoiir) in refusing to answer questions, or of the manner in which an examination or cross-examination is being conducted. SembJe, in such a case the examiner should state his opinion to the parties, and should refer thereto in the depositions. The rule appears to give hJTin power to do so. (a) Surr v. Wahnsley, 2 Eq. 439. {b) Ohlsen v. Terrero, L. R. 10 Ch. 127; 44 L. J. Ch. 155; 31 L. T. 811 ; 23 W. R. 195. See also as to this, Wright v. Wilkin, 6 W. R. 643, and Buckle;/ v. Cooke, 1 K. & J. 29. (e) 5 Q. B. D. 26. HOW TO DEAL WITH THE OBJECTIONS OF A WITNESS. 127 witnesses and answered by tliem relating to the contents of the copy invoices, without any objection being made in respect of the non-production of the originals, and the copy invoices were appended by the commissioners to the depositions returned : it was held that the secondary evi- dence of the documents, having been given under the commission without objection on the part of the defendant, was receivable before an arbitrator to whom the action was referred, and that it was then too late to object that the originals were not produced. In that case neither party was represented by counsel, but each party was represented by a commissioner, and it was held that it was open to the defendant's commissioner to have objected to the evidence. It would seem from the language used, that the Court was of opinion that in the case of commissions where each party is represented by a separate commissioner, the commissioners are to be regarded, for some purposes at least, as the advocates of their respective parties. No other case seems to have been reported in recent years where this view of the position of a commissioner has been adopted. In the event of any witness on his examination, cross- Course to be examination, or re- examination producing any book, paper, ^h^Ji-^^ witness or writing, and refusing for good cause to be stated in the declines to deposition to part with the original, then a copy or extract, original certified by the commissioners or special examiner present document, to be a true and correct copy or extract, is to be annexed to the witness's deposition (d). If a witness objects to answer any question, the question Objection by and the objection are to be taken down by the person ^^gs^fo^*^ taking the examination and transmitted by him to the (f/) This is provided for in the form of commission, No. 13 of App. J. The form of order for the appointment of a special examiner (No. 37c of App. K.) implies that this is the covirse to be pursued on a special examination. 128 THE EXAMINATION. Power for commissioners or special examiners to put questions. Power to adjourn. Power to re-call a witness. The English laws of evidence. Foreign examiners should remember (1) that Eng- lish and not foreign law governs the admissibihty of evidence taken abroad under English commissions Central Office and tliere filed (e). The usual objections are, tliat to answer will incriminate tlie witness, or involve a breach of professional confidence. The commissioners or special examiner taking the examination may put questions to the witness as to the meaning of any of his answers, or as to any matter arising in the coui-se of the examination (/). The person who takes the examination has the power to adjourn the examination. Where a defendant applied to Have his re-examination adjourned, and his apphcation having been granted he failed to attend at the adjourned hearing, an order was made by the Court for him to attend, with a proviso that, in default of his appearance, the depositions should be filed without being read over to the witness (g). It follows from the general principle to the effect that the examination is to be conducted in accordance with the practice at the trial of an action, that the person who takes the examination has power to re-call a witness. The right to re-call a witness is one of the most obvious rights that any examiner or any person desirous of obtaining information has {h). Inasmuch as the principles of the English law of evi- dence govern the procedure at examinations taken abroad, it has been thought advisable to insert in the Appendix, for the guidance of examiners who are unacquainted with English law, a table of the fundamental rules of evi- dence (/). The examiner should be careful to adhere to (e) Ord. XXXVII. r. 14. It is submitted that this rule was intended to apply to examinations before examiners of the Coiart within the juris- diction ; but the language is wide enough to cover examinations abroad before commissioners or special examiners. (/) Ord. XXXVII. r. 12. {ff) Barker v. Chapman, 30 Sol. Jo. p. 656. (A) Per Kay, J., in Ee The Metropolitan {Brush) Electric Light, ^-c, Co., Ltd., 51 L. T. 816 ; 54 L. J. Ch. 253. (i) App. D., post, p. 261. For the cases which illustrate the rules there tabulated the reader is referred to the standard works on the law of DUTIES OF THE EXAMINER. 129 these rules, even if they be different from the rules of or special evidence of the country in which the examination is ?2f tiiat^tLe^' taken (J), and also to follow out as nearly as possible the diieetions iu instructions contained in the commission, if he be a com- sion or order missioner, or the directions contained in the order for his '"l^,^* H ' _ _ _ lollowed as appointment if he be a special examiner {k) . nearly as Above all things, the examiner should remember that ^°^^^ both parties, their counsel, solicitor, or agents are entitled rr. ii, 22. to be present at the examination, and the witnesses shall Witnesses 1 !•./ •)• 1 • ,• ^^'^ subject be subject to cross-exammation and re-exammation. to cross- examination Heading over the Depositions to and Signature hy a Witness, gxam^ation — After the examination is concluded the depositions are q xxxvil. to be read over to the witness and signed by him, in the ^- 12. ^ ^ presence of the parties, or such of them as may think fit to behead "over" attend (/). It is not unusual for the witness to sign each to and signed J, ,, , . , . ty witness. page 01 the depositions. If the witness shall refuse to sign the dejDOsitions, the Refusal of lecial examiner or commissioner, as the ( took the examination shall sign them (;w). • 1 • . • 1-1 1.1, "witness to special examiner or commissioner, as the case may be, who gj^.^^ Special Hejoorf of Examiner. — The commissioner or special 0. XXXVII. examiner may, and, if need be, shall, make a special report g •* j ^ of examiner evidence. The principal cases wluch illustrate tlie applicability of the English rules of evidence to examinations taken abroad, and the effect of non-compliance with those rules upon such examinations, are cited in note (y), ante, p. 125. (J) It was said by Cockburn, L.J., in the converse case of an examina- tion taken in England, in a Greek action, under 19 & 20 Vict. c. 113, that the evidence need not be limited to what is adinissible in English Courts, but that "we ought to afford foreign Courts the fullest benefit we can, and if we know their rules of evidence we should give them effect in examinations of this kind." Desilla v. Fells ^- Co., 40 L. T. 423. {Jc) As to tills, see ante, p. 118, and the cases there cited. [l] Ord. XXXVII. r. 12. In Barker v. Chapman (30 Sol. Jo. 656) it was decided that the words " shall be read over and signed by him" are directory only, and that there may be circumstances when these directions of rule 12 need not be followed. {in) Ord. XXXVII. r. 12, embodying the practice laid down in Stem V. Stephen, 24 Sol. Jo. 234. W. K 130 THE EXAMINATION. as to conduct with regard to the examination and the conduct or absence of witness, &c. of any witness or other person thereon. Alt erat ions and Interlineations. — The person who takes Alterations and inter- . . . . . , . . . , , . lineations. the examination must initial any alterations or interlinea- tions in the depositions. Letters, documents, &c. to be marked by- examiner. Letters, Documents, 8^c. to he marked hy Examiner. — The commissioner or special examiner must mark every letter or document, whether it he an original or copy, which is produced at the examination. Where a witness refuses to part with an original document for cause to be stated in the depositions, a copy shall be made and certified by the examiner to be correct. The documents produced, after being marked, are to be returned with the commission and the depositions at the conclusion of the examination. 0. XXXVII. r. 16. Commissioner and special examiner to si'). If the pai-ties agree to the employment of a shorthand writer they will incur the risk as to costs stated cDite, at p. 124. The evidence must be taken in the presence of the examiner, who must follow the practice indicated in this chapter, precisely as if he were writing down the evidence himself. Transmission Transmission of Depositions. — It may be convenient to o eposi ions. ^^^^^ here, though the subject more properly belongs to the succeeding chapter, that Ord. XXXVII. r. 17, pro- vides that " when the examination of any witness shall have been concluded, the original depositions, authenticated by the signature of the examiner, shall be transmitted to the Central Office and there filed." Letters of request. Letters of Request. — The procedui'e which is adopted at the examination under letters of request, so far as it differs from the procedure before commissioners and special examiners, is indicated in Chapter II. [ante, pp. 53 et seq.), to which the reader is referred. (a) Divorce. 20 & 21 Vict. c. 85, ss. 47, 48. The Practice in the Pkobate, Divorce and Admiralty Division. (a) Divorce and Matrimonial Causes. — There are no special rules which govern the procedure, at the examination, in the case of commissions and requisitions issued in divorce and matrimonial causes. By sect. 47 of the Matrimonial Causes Act, 1857 (20 & 21 Vict. c. 85), power was given to the Court to issue commissions for the examination of witnesses out of the jurisdiction upon interrogatories or otherwise, and the powers of the old Common Law Coui'ts {)•) See ante, p. 83, &Tid})ost, p. 135. DIVORCE AND MATRIMONIAL CAUSES. 133 applicable to examinations on commission issued under 1 Will. 4, c. 22, were conferred upon the Court for Divorce i Will. 4, and Matrimonial Causes ; by sect. 48 it was provided, '^- ^^• that the rules of evidence observed in the Superior Courts at Westminster should be applicable to, and observed in, the trial of all questions of fact in the Court for Divorce and Matrimonial Causes. The Judicature Acts and the Kules made there- under have not affected the old practice in divorce and matrimonial causes (s) ; but inasmuch as there are no special rules dealing with the procedure to be observed at the examination under commissions issued in those causes, it will be necessary to obtain a knowledge of the procedure from the Divorce and Matrimonial Causes Act, the Act of WilKam the Fourth, and the cases decided thereunder. The present rules of the Eules of the Supreme Court R. s. C. do are founded in a great measure on the statute of Will. lY., commissfona and the cases decided under that statute. issued in The consequence is, that for all practical purposes the matrimonial procedure indicated in the first part of this Chapter, ^^^^ses. as to the course to be followed at the examination, is o-^ernin^^ ^^ equally applicable, mutatis mutandis, to commissions issued procedure at T. , , . . , the ezamina- m divorce and matrimonial causes, tio)i in It will be observed that neither under the Matrimonial Chancery and Queen 8 Causes Act nor under the Statute of William the Fourth Beucli Divi- was power given to order the appointment of special equailTto"^ examiners to take evidence out of the jurisdiction, and as those causea. the Rules of the Supreme Court do not apply to divorce ^o™mis- and matrimonial causes, there is no jurisdiction (at any appoiuted rate apart from consent), and it is not the practice in these Bench actLn. causes to order a special examination. The commissioner will after the conclusion of the exami- Transmission nation post the commission with the depositions and docu- to the Divorce ments, authenticated by his signature, not to the Central K,egistry. Office, but to the Divorce Registry. («) Ante, pp. 77 et seq. 134 THE EXAMINATION. For tlie procedure to be adopted in these causes up to order, from order to esamination, from examination to trial, within the jurisdiction, and at the trial, the practi- tioner is referred to the chapters dealing with those subjects (t). (b) Probate (b) Probate Matters.— The Eules of the Supreme Court and the Probate Eules apply, as we have seen («), to examinations taken abroad. There are no special Probate Eules dealing with the procedure to be adopted at the examination, and the practitioner is therefore referred to the earlier portion of this chapter ; the procedure there in- dicated is equally apphcable to examinations in Chancery, Uueen's Bench, and Probate contentious causes (x) . The examiner has the same powers and is bound by the same rules as if he had been appointed in an action in the Queen's Bench Division. (c) Admiralty (c) Admiralty Causes. — There were no special Admiralty causes. Eules affecting the procedure to be adopted in Admiralty Admiralty causes at the examination under commissions. rules as to j^ jg g^^bmitted (for the reasons given ante, at pp. 83 et procedure at ^ o ' 1 1 theexamina- seq.), that the Eules of the Su^Jreme Court govern the commissions, proccdure to be followed in these causes, except where it is E.s.c. govern regulated by a practice of the Admiralty Court which Admiralty ^^^^ ^°^ conflict mth these Eules. causes, except The Eules of the Supreme Com-t (in App. J. Form Admiralty -^o. 14) provide a Special form of commission to be used practice does ^s a rule in Admiralty causes (//). The form does not not conflict • o ^ ^ • f • with the provide for the takmg of evidence out of the jurisdiction T^" c" ^" on commission except rird race, and it is not the practice K. S. C. pro- (t) Pages 77, 106, 144, 182, 192, respectively. («/) Ante, p. 74. {x) For tbe procedure to be adopted in these causes up to order, see a>ife, pp. 73 et seq.; from order to examination, ante, p. 110 ; from exami- nation to trial, post, p. 139 ; at the trial, post, p. 192 ; and "within the jurisdiction, yost, p. 180. (y) This form is set out in the Appendix hereof, post, p. 249. ADMIRALTY CAUSES. 135 to order commissions to issue to take evidence abroad upon vide form .... of commission interrogatories. appUcable to No power was given to the Admiralty Court by the Admiralty CclUSGS. Admii-alty Court Act, 1840, to order commissions to take -^^^ ^-^^ evidence abroad except vim voce. practice to There is no doubt, it is submitted, that rule 11 of missions to Ord. XXXVII. applies to examinations taken abroad in take evidence . . P • 1 "y mtex'roga- these causes, whether upon commission or by way of special tories in these examination (which latter method is now applicable to ^^^'^'^^• . O XXXVII Admii'alty causes) ; the result is, that both parties, together p/n^ applies with their counsel, solicitors or agents, are entitled to be *? commis- ^ . sions m present, though if they neglect to attend, the examina- Admiralty tion may be proceeded with in their absence. The ^a^'^^®- witnesses also will be subject to cross-examination and re-examination. The examination should be taken down in writing Taking down by or in the presence of the examiner, as provided by ® ^^ ^^^^' Ord. XXXVII. r. 12 ; and the deposition should be authenticated by the signatures of the witness and of the examiner, as provided by rules 12 and 16 of Ord. XXXVII. Before the Judicature Acts it was usual to direct, in the Former order for a commission in Admii^alty causes, that the evi- prad;ke a^ to dence of the witnesses should be taken down in shorthand ; taking down GvidGncG and the transcript of the notes, signed by the shorthand gj^ ,-^ \ writer (he having been first sworn to report the evidence notes, accurately), was received at the trial ; it was also not unusual to adopt this procedure, though the order gave no directions on the subject. In Williams & Bruce's Admiralty Practice it is said : Criticism on " It is frequently the custom for the parties to consent to as'to\lhe°^^^ the evidence being taken down in shorthand, and that the practice transcript of the shorthand notes should be admissible to Williams prove the evidence of the witnesses ; but, it is submitted, ^ ,^^?°®!^ that having regard to the established practice, the consent Practice as to of the parties is not necessary. The transcript of the prac^icer^ shorthand notes is not usually read over to the witness, but is certified by the shorthand writer and examiner 136 THE EXAMINATION. TheKnutsford. Consent in that case of parties to have short- hand notes, and dispense with reading over and signing hy "witnesses of depositions. Oath of the shorthand writer. Certificate by shorthand writer. as correct and returned into the registry in the usual way." The authority of the work from which the ahove passage is extracted is very great, but modern decisions, and a consideration of the E. S. C, do not entirely confirm the passage quoted. In the case of The KMifsford (z), it v^as stated in the certificate of the examiner as follows : " It was agreed between counsel for the plaintiffs and the counsel for the defendants that the evidence should he taken hy a short- hand •^Titer, and that the reading over and signing hy the witnesses should be dispensed with. I then, having by consent of the said parties first duly sworn T S , shorthand writer, faithfully and correctly to take down and transcribe the evidence to be given before me in the action, administered the usual oath of a witness to and caused to be examined the following witnesses, who were produced before me on behalf of the defendants to give evidence in this action." The transcript was certified by the shorthand writer as follows : " I, T S , certify that I took notes of the examination of [four witnesses named], and that the foregoing is an accurate transcript of the same." The transcript was, "in the usual iray^^ (a), without the perusal of the examiner, transmitted to the Admiralty Registry for filing. It was subsequently found that the transcript was both incorrect and incomplete, and the Court, on the application of the plaintiffs, directed the transcript to be taken off the file and retiu'ned to the examiner for amendment. In the case, therefore, of The Knutsford, it appears that {z) (1891) Prob. 219; 64 L. T. 352. (a) These word.s are taken from the report in the Law Reports, and point to the existence of a practice which seems to be in direct conflict with the provisions of the Eules of the Supreme Court, and is not in accordance with the practice as stated in the passage quoted from Williams & Bruce on Admiralty Practice. ADMIRALTY CAUSES. 137 botli parties thought it necessary to consent to have the evidence taken loj the shorthand writer and to dispense with the reading over and signing by the witnesses of their depositions. Where such consent is given, it seems that the transcript Apart from will be received ; but, apart from consent or waiver, it is ^^{^^ the submitted that if the practice still exists which is alluded transcript will to in Williams & Bruce's Admiralty Practice, it conflicts be received. with the requirements of the Eules of the Supreme Court (which Rules, as stated in a prior chapter (b) , must govern the practice in Admiralty causes where they are in conflict with the former Admiralty practice), and that it is there- fore of very doubtful validity (c) . The practice at the examination was previously regu- lated by rr. 92 to 95 of the Admiralty Court Rules, 18-:9 (set out 2}osf, at p. 232) . These rules are now repealed, and r. 94, which deals with the employment of a shorthand writer, cannot even be relied on as an embodiment of the modern practice, seeing that its provisions are in direct conflict with Ord. XXXYII. of the R. S. C. 1883. This point does not seem to have been mentioned in The Knutsford. It is submitted that the examiner or commissioner should observe the rules and exercise the powers indicated in the early part of this chapter, exactly as if he had been appointed in a Queen's Bench action, and that if it is desired to depart therefrom the consent of all parties must be first obtained. The form of commission applicable to Admiralty causes, Adjournment, contained in App. J. of the Rules of the Supreme Court, (No. 14,) authorizes the commissioner to adjourn, (if neces- sary,) the examination from time to time and from place to place, as the commissioner may find expedient. Upon the completion of the examination the commis- Transmission {I) Chap. II., p. 83. (c) See also Ee The Bore Gallery, 88 L. T. Jo. 397. 138 THE EXAMINATION. to Admiralty Registry. One com- missioner only acts at examination. Procedure at examination ■where special examiner appointed in these causes. sioner, or wliere a special examiner is appointed (wliich is sometimes now done by virtue of Ord. XXXVII. r. 5, of the Rules of the Supreme Court), the special examiner, will transmit the depositions and the whole of the proceed- ings, together with the commission, to the Admiralty Registry. It has been pointed out that it is not the practice to issue commissions in Admiralty causes under which more than one commissioner may be present and act at the examination. Where a special examiner is appointed, the procedure will follow that which is indicated in the first portion of this chapter (d) . {d) For the procedure up to order, see ante, p. 83 ; from order to examination, a?ite, p. Ill ; from examination to trial, post, p. 144; at trial, post, p. 192 ; within the jiu'isdiction, post, p. 185. 139 CHAPTER VI. PROCEDURE AFTER EXAMINATION AND UP TO TRIAL. The evidence having been taken, the next question which arises is, what to do with it. The practice is regulated by Ord. XXXYII. r. 16, of the Supreme Court Rules of 1883, which is as follows : — " When the examination of any witness before any examiner shall have been concluded, the original deposi- tions, authenticated by the signature of the examiner, shall be transmitted by him to the Central Office and there filed." This applies whether the examination has been viva voce or by interrogatories. In cases where the evidence has been taken under a letter of request, the procedure is determined by the contents of the letter ; according to the form (rt), the Court to which the request issues is asked to cause the answers of witnesses to be reduced into writing, and the documents produced to be marked for identifica- tion, to authenticate the examination by seal " or in such other way as is in accordance with your procedure," and to return the same, together with the letter of request, to Her Majesty's Secretary of State for Foreign Affairs for trans- mission to the High Court of Justice in England. If the request is to a British colony, the dej^ositions, &c. should be sent to the Secretary of State for the Colonies. If to India, they must be sent direct to the Indian Court nained in the letter of request, and the concluding sentence of the (ff) See Appendix, p. 252. 140 PROCEDUEE AFTER EXAMINATION AND UP TO TRIAL. Depositions must be signed by examiner. Alterations to he initialed. letter itself must have been altered as directed at post, p. 158, so as to meet the case. The depositions should be sent under seal, and the envelope directed to the " Senior Master, Central Office, Eojal Courts of Justice, London, W.C." The Central Office will not accept them for filing unless thej are received direct from the examiner. If they are posted in England no postage need be paid, the address being franked by the Post Office. As has been already pointed out, the original depositions must be "authenticated by the signature of the examiner." The failure of the examiner to comply with this rule has been held not to be such an irregularity as ipso facto to prevent the Court from directing the depositions to be filed. Where the only irregularity is the omission of the examiner to sign the depositions, and the Court is satisfied as to the mistake, the depositions would probably be ordered to be filed upon payment of costs {b) . Depositions have also been received in evidence unsigned, where the omission was due to the death of the examiner (f) . The examiner should initial any alteration or inter- lineation appearing upon the face of the deposition. Time for transmitting depositions. Depositions for use on interlocutory When ihe Depositions arc to he returned. — In all High Court actions except in the case of commissions and special examinations issuing out of the Probate, Divorce and Admiralty Division, the depositions are to be sent to the Central Office. If the examination is for the purpose of obtaining evi- dence to be used at the hearing, the depositions should be sent as soon as the examination of all the witnesses is con- cluded, but not before {d). If, however, the evidence of the witnesses is being taken for use on an interlocutory (J) Stephens v. WanJclin, 19 Beav. 585. (c) Felthouse v. Bailey, 14 W. E. 827; Brysony. Wancich ^•Birmingham, ^c. Co., 1 W. R. 124. See also ante, p. 130. [d) Clark v. Gill, 1 K. & J. 19. TIME FOE TRANSMITTING DEPOSITIONS. 141 application, it would seem tliat each separate deposition matters may may be sent as and when it is completed {e) . and wh^n In Maple v. Stemisoii, W. N. (1888) 62, the plaintiff completed, moved, on affidavit, to commit M., and a cross-examination of the affidavit witnesses was ordered to be held before an examiner. The cross-examination of M. being completed, that of the plaintiffs' witnesses began, whereupon the plaintiffs' counsel objected to the line of cross-examination adopted by M., and the examiner adjourned the further cross-examination in order to enable the plaintiffs to take the opinion of the Coui-t thereon. The plaintiff moved that the examiner might be ordered to transmit to the Court, at that stage, so many of the depositions as were completed, in order that he (the plaintiff) might be in a position to apply to the Court to deal with the obnoxious cross-examination. North, J., said : " I see no reason for making any order on the examiner. If it is necessary I can look at the depositions without their being filed. If the j)laintiffs give notice of any motion in respect of which it is material that I should see the depositions, I will ask the examiner to let me look at them. . . . There are many things I can do : I may dismiss the motion, or I may say I will have no further cross-examination except in Court. . . ." The motion was dismissed. From this case it would ajDpear that the Court will look at the depositions without their being filed ; but only, it is submitted, for the purpose of regulating the procedure on the examination. The depositions can, however, not be received in evidence until they are transmitted and filed, and the Court will not order them to be transmitted until the examination is completed. In a case in which an order had been made for a com- Certified mission, in the usual form, directing the depositions to be to^aU ^^dT*" returned, certified copies were returned in their stead, and take the place were accordingly held inadmissible (/). deposftions. (e) Clark v. Gill, 1 K. & J. 19. (/) Clai/ V. Stephenson, 7 A. & E. 183 ; 2 N. & P. 189 ; Atkins v. Palmer, 4 B. & Aid. 377. 142 PKOCEDURE AFTER EXAMINATION AND UP TO TRIAL. Time within which deposi- tions are to be returned. Time may be enlarged or limited. Depositions become a record of the Court. How to prove them. They are to be printed. If the time within which a commission is to he returned is not mentioned in the order, hut if the order states that the action is to he tried at a particular date, then the depositions must he returned hefore such date {g). If a time has heen fixed within which the examination is to he concluded, and such time prove insufficient, it may be enlarged by the Court or a judge (/?). Mr. Justice Kekewich has announced (in a case of Gedge V. Felling, W. N. (1892) p. 44), that in his Cornet the tune within which an examination to be held before an examiner of the Coui't must be concluded will be limited by the order. The learned judge said " The manner in which these examinations often drag on from time to time has become a scandal. It is a serious matter; and in futm'e I intend, when making an order for examination, to limit the time within which the examination shall be completed, so that it shall not go on beyond that time without a further order of the Court." There appears to be no reason why the time should not, for the same reasons, be limited when the examination is to take place before a commissioner or special examiner. The depositions or interrogatories when filed in accord- ance with Ord. XXXVII. r. 16, become a record of the Court. An examined copy or an office copy suffices there- fore to prove them {i) . When filed the depositions are, by Ord. LXYI. r. 5, to be printed. Eules 3 and 7 of the same Order give full directions as to the manner in which the printing has to be carried out, the payment to be made by the other side for copies, and the procedure generally. If depositions have, before the trial, been used upon any proceeding without being printed, they need not be printed for the purposes of the trial (Ord. LXVI. r. 6). (^) SteinMler v. Ncivton, 1 Sc. N. R. 148 ; 8 Dowl. 579. {h) Shorey v. Shebelli, 1 Tyr. 505, a. (i) Duncan v. Scott, 1 Camp. 100. IRREGULAR DEPOSITIONS SUPPRESSED. 143 Eule 24 of Ord. XXXYII. is important to remember. It is as follows : — " No affidavit or deposition filed or made before issue Notice in joined in any cause or matter shall, without special leave ^tention to of the Court or a I'udffe, be received at the hearing or trial use any depo- . 1 . ji c., . • . 1 sition filed tliereoi, unless withm one month alter issue joined, or before issue within such longer time as may be allowed by special J""^*^^- leave of the Court or a judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf." Depositions iaken in an irregular manner. — If depositions Irregular are irregularly taken — that is, if the order for the taking should be^ of evidence has been properly obtained, but the procedure suppressed, prescribed by the order has not been followed, (as when evidence is taken viva voce upon an order directing it to be taken by interrogatories only) — the proper course, as laid down by Montague Smith, J., in the case of Grill v. General Iron Screw Collier Company, Limited {k), is to take out a summons at chambers to have them suppressed. Such an application should, it is conceived, be made as soon as the depositions are returned. The application will not succeed if the applicant, by taking part in the irregularity or by not objecting to it when he had a chance of so doing, can be held to have waived it (/). Either party is entitled to a copy of the depositions, whether he joined in the examination or no (m). In a case of Atkins v. Palmer {)/), commissioners had been directed to take the examination of witnesses, to reduce the examinations into writing in the English (/1-) L. E. 1 C. P. 600. As to the necessity for a commissioner and for a special examiner to follow the directions in the commission and order for special examination, see ante, pp. 117 and 118. {I) Whyte V. Eallett, 28 L. J. Exch. 208. [m) Davis v. Nicholson, 7 Bing. 358 : sub nom. Davidson v. Nichol, 1 D. P. C. 220 ; 5 M. & P. 585. Cw) 4 B. & Aid. 377. 144 PROCEDURE AFTER EXAMINATION AND UP TO TRIAL. language, and tlien to send the same to England. Power was also given them to swear an interpreter well and truly to interpret. The depositions were duly returned in the English language, hut it appeared that they had been originally taken down in Italian by the interpreter, and translated into English by him six weeks later. Held that the commission had been well executed. Bailey, J., said, " The commission does not appear to me absolutely to require that the depositions of the witnesses should be translated at the time they are taken. The commissioners may require that to be done if they think fit ; but they are not bound so to do." It should be stated, however, that in this case the defendant's commissioner adopted the trans- lation, when returned, as being correct, and the Court, (per Abbott, C.J.,) presumed that the commissioners understood the language in which the witnesses were examined, and that they were satisfied that what was said in Italian had been faithfully taken down. It is submitted that the precedent could not now be followed with safety (o) . The last rule (r. 52) of Ord. XXXVII. is important for the commissioner or special examiner to remember. It runs as follows : — Duration of " Every examiner of the Court, and every other person t^be^indor^ d ^-Ppoi'^^^d to take an examination under this Order, shall on deposi- indorse on the depositions, when he transmits them to the Central Office, a statement of the hom'S within which the examination began and ended." As has already been pointed out, the master will, as of course, quash a commission under which nothing has been done, at the instance of the party originally obtaining it {])) . (a) Probate. Practice in the Probate, Divorce and Admiralty Division. — It has been stated {q) that the practice in probate conten- (o) See also ante, pp. 117 and 122. Ip) Eodges v. Daly, 8 Dowl. 308. (?) Ante, p. 74. THE PEOBATE, DIVORCE AND ADMIRALTY PRACTICE. 145 tious business is governed by the Rules of the Supreme Court, 1883. The practitioner, therefore, will follow in commissions and special examinations issued out of the Probate Registry the procediu'e indicated in the foregoing- pages. The depositions, however, will not be returned as Depositions in the case of depositions issuing out of the Chancery and mittedTo^the Queen's Bench Divisions to the Central Office, but will be Probate transmitted to the Probate Registry. '^°^^ ^^' In divorce causes the commissioner will, after taking the (b) Divorce, depositions, return them, together with all documents used before him, and the commission itself, to the Divorce Re- gistry {q). When the documents are received by the registrar he will sign the usual minute directing them to be filed. It will be the duty of the solicitor for the party issuing the commission to find out from the officials of the Divorce Registry when the commission has been returned, in order that he may file it. After filing, office copies of the depositions may be obtained (r). Reasons have been given (.!>■) for the opinion that the (c) Admiralty Rules of the Supreme Court govern the procedm-e in Ad- P^'^'^^^"^- miralty causes, and that the old Admiralty practice only obtains in so far as it is not inconsistent with those rules. The form of commission provided by the Rules of the Depositions Supreme Court in Admiralty actions, (Form No. 14 of tobetrans- \ -rr \ -1 p n at raitted to the App. 11.), provides as follows: — "And we command you. Admiralty upon the examinations being completed, to transmit the ''o^'^''^'^'- depositions and the whole proceedings had and done before you, together with this commission, to the registry of the said division of our said Court." That the Admiralty Court Rules of 1859 have been (q) For the practice in divorce and matrimonial causes, see further, the first part of this Chapter. There is no juiisdiction to appoint a special examiner in these causes. {>■) See further Oakley, pp. 109, 110, whore the proccdui'e is fully stated and a table of fees is set out, («) Ante, pp. 83 et seq. W. L 146 PROCEDURE AFTER EXAJkllNATION AND UP TO TRIAL. repealed, but tlie practice indicated by those rules, as constituting tbe former Admiralty practice, is still ad- hered to, when it does not conflict with the procedure ordered to be followed by the Eules of the Supreme Court. Admiralty The Rules of 1859 provided as follows : — R. 92. 1859. ' " When the examination of any witness is completed, the examiner (f) or commissioner shall read over the deposition to the witness, who shall thereupon sign the same ; and the examiner or commissioner shall certify at the foot thereof that the deposition has been read over audibly and distinctly to the witness, and that he has acknowledged the same to be true." E. 93. " If the witness refuse to sign his deposition, the examiner or the commissioner shall certify at the foot of the deposition that the witness has so refused, and that the deposition is in accordance with the evidence given by the witness ; and the deposition of the witness may thereupon be used at the hearing of the cause." E. 91. " The judge may, on the application of either proctor in the cause, but at the expense in the first instance of the party on whose behalf the application is made, direct the evidence of the witnesses to be taken down by a shorthand writer or reporter appointed by the Court, who shall be previously sworn faithfully to report the evidence ; and a transmission of the short- hand writer's or reporter's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses" («). E. 95. " When the examinations of the ■^dtnesses have been completed, the examiner or commissioner shall file {t) This means an examiner of the Court. There was no power before the Judicature Acts to appoint special examiners to take evidence abroad in Admiralty causes. (m) As to the use of shorthand notes, see ante, pp. 135 et seq. ADMIKALTY PEACTICE. 147 the depositions of the witnesses in the registry, with a special return setting forth the whole of his proceed- ings" (r). Where a special examiner is appointed, except that the depositions will be returned to the Admii'alty Registry, the procedure will be governed by the practice indicated in the first portion of this chapter. {v) For the effect of these rules upon the modern procedure, see ante, pp. 83 et seq. J. 2 148 PAUT II. THE TAKING OF EVIDENCE IN PLACES WITHIN THE QUEEN'S DOMINIONS, BUT NOT WITHIN THE JUEISDICTION OP THE COUET. — ♦- There are three ways in whicli evidence required for the purposes of a pending English trial may be taken in India or in the Colonies, They are : — (a) By an order under Ord. XXXVII. r. 5, appoint- ing a special examiner or commissioner for the purpose ; (b) By mandamus to the local Court of the place where the proposed witness resides, calling upon the judges thereof to summon and examine him ; (c) By a letter of request. The three methods will be considered in their order. Taking the Z'^ndcr Orel. XXXVII. — The words of r. 5 give the evidence on Qourt or a ludge lurisdictiou to order evidence to be taken "at any place," and consequently in India or in the colonies. If it is desired to utiKze this method of taking evidence, the practitioner is referred to Part I. of this work, in which he will find detailed both the means of obtaining and of executing the requii'ed order. The fact that the proposed witness is to be examined within the Queen's dominions does not affect any of the considera- tions already dealt vnth., and the whole of the practice, as already detailed, may be taken to apply to examinations which are to be held iu India or the colonies. Except in commission. EVIDENCE IN INDIA AND THE COLONIES. 149 cases of extreme simplicity, in which interrogatories will suffice, the appointment of a special examiner will be found preferable to the appointment of a commissioner. The party having obtained an order for an examination A power p ., -ii 1 p • 1 • • exists to 01 Witnesses, either before a speciaf examiner or commis- compel the sioner within the Ciueen's dominions, has, however, the attendance of great advantage of being able to compel the attendance of witnesses on the examination — a power which, as has been already pointed out, does not exist on an examination taken without the Uueen's dominions, unless it be held in pursuance of a letter of request. This power is the result of two statutes, namely, 6 & 7 Yict. c. 82, and 22 Vict. C.20. Sect. 5 of 6 & 7 Yict. c. 82, after reciting that there are The reciprocal at present no means " of compelling the attendance of Eiiliand persons to be examined under any commission for the Scotland, and examination of witnesses issued by the Courts of Law or Equity in England or Ireland, or by the Courts of Law in Scotland, to be executed in a part of the realm subject to different laws from that in which such commissions are issued," enacts that, when a person who has been served with a written notice to attend a commissioner, signed by him, refuses to attend, and when the commissioner certifies accordingly, the party who has obtained the commission may apply to " any of the superior Courts of Law in that part of the kingdom within which such commission is to be executed, or any one of the judges of such Courts," for a " rule or order to compel the person or persons so refusing or failing as aforesaid " to appear before the commissioner. Upon such application it is lawful for the Court or judge to whom such application shall be made, " by rule or order to compel the attendance and exami- nation of any persons to be named or the production of any writings or documents to be mentioned in such rule or order" {a). {a) The process as to production of documents intended to be enforced 150 EVIDENCE IN INDIA AND THE COLONIES. Penalty for not attending when ordered. The power extended to the colonies. Bj sect. 6 the penalties for disobeying an order made under sect. 5 are identical with those for disobeying a writ of subpoena. Sect. 7 provides that a person ordered to attend under sect. 5 is entitled to the same conduct money and payment of expenses "as for and upon attendance at any trial;" that he need only attend on two consecutive days to be named in the order ; and that he need only produce such documents as he would be " compellable to produce at a trial." This statute {b) gives to the Courts of England, Scotland, and Ireland a reciprocal power to enforce the attendance of witnesses at an examination within their jiuisdiction, when such examination has been ordered by any Court within the United Kingdom. Its provisions, however, do not extend to the colonies. Power to enforce the attend- ance of witnesses on a commission, for the purposes of a trial to be held in con/ part of her Majesty's dominions is, however, by the statute 22 Yict. c. 20, s. 5, given to " Her Majesty's Superior Courts of Common Law at Westminster and in Dublin respectively, the Court of Session in Scot- land, and any Supreme Court in any of her Majesty's colonies or possessions abroad ; and any judge of any such Coui^t . . ." Sect. 1 of this Act provides that, when an order for an examination has been made by " any Court or tribunal of competent jurisdiction in her Majesty's dominions," the judges mentioned in sect. 6 shall have power to " order the examination before the person or persons appointed ... of such witness or witnesses ac- cordingly ; " to " command the attendance of any person to be named in such order for the piu-pose of being examined, by this section is merely " ancillary to the examination of a witness." There is no jurisdiction to make an order which amounts to one for discovery agaiust persons not parties to the action: Burchard v. Macjarlane, (1891) 2 Q. B. 241. (i) Eor the statute itself, see App. A., post, p. 209. EVIDENCE IN INDIA AND THE COLONIES. 151 or tlie production of any writings or other documents to be mentioned in such order ; and to give all such directions as to the time, place, and manner of such examination, and all other matters connected therewith, as may appear reasonable and just." By the same section disobedience to any such order is to be punished "in like manner as in case of an order made by such Court or judge in a cause dependhig in such Court or before su«^h judge," By sect. 3 the witnesses' expenses are to be paid ; by sect. 4 the ordinary privileges as to refusing t(3 ansvver certain questions are pres^^rved to a witness ; aud by sect. 6 power is given to the judges at home, and to the "■ chief or only judge of the Supreme Court in any of her Majesty's colonies or possessions abroad, so far as relates to such colony or possession," to frame rules for giving effect to the provisions of this Act (c). This power to make rules is, (by sect. 5 of 48 & 49 Vict. c. 74, set ont post, at p. "^Iti), to include the power to make rules with regard to all costs " of or incidental to the examination of any witness or person, including the re- muneration of the examiner." The effect of this statute, therefore, is that when an Vice rersd examination has been ordered by an English, Scotch, or Courts can Irish Court, to take place in India, or any of the colonies, enforce the Courts of the place where it is to take place can, upon witness for application made, enforce the attendance of witnesses at examination . . , , . under CDionial the examination. Vice versa, the English, Scotch, or Irish commission. Court can enforce the attendance of witnesses within its jurisdiction for the purposes of an examination ordered from India or the colonies {d) . [e) The statute is set out in App. A., post, p. 211. {d) The Court which enforces the attendance of a witness is the Court which should decide what witnesses are to be summoned, what docu- ments are to be produced, and generally on any questions of privilege which may arise during the examination. {Campbell v. Att.-Gen., 3 Ch. 671.) 152 EVIDENCE IN INDIA AND THE COLONIES. Application, if made in Enarland, may fce to a judge in chambers. How to support the application. Power to subpcEna witnesses to attend a trial It is to be observed that, under both Acts {i.e., 6 & 7 Yict. c. 82, and 22 Yict. c. 20), the application is to be made to the Court, or *' any judge of such Court." The effect of these words, conjointly with those of sect. 39 of the Judicature Act of 1873, is that the application can be made to a judge at chambers. It will, of course, be made by the party desiring the attendance of the witness, and must be supported by affi- davit. The affidavit must have exhibited to it a copy of the order for the examination, made by a " court of com- petent jurisdiction in her Majesty's dominions." In the case of an application under 6 & 7 Vict. c. 82, (the Act which gives reciprocal powers to England, Scotland, and Ireland), the applicant must also prove that a written notice to attend the examination, signed by the commis- sioner himself, has been served upon the proposed witness. He must also produce a certificate by the commissioner to the effect that the proposed witness has refused or failed to attend. In applications under 22 Vict. c. 20 (the Act which extends the reciprocal powers already enjoyed by the Courts of the United Kingdom so as to include the Courts of "any of her Majesty's colonies or possessions abroad"), it will be necessary to prove that an order for the examina- tion of the proposed witness has been made by some Court in her Majesty's dominions, but not that the proposed witness has refused to attend. Indeed, the Act appears to contemplate a preliminary order, by the Court in whose jurisdiction the examination already ordered by the colonial or other Court is to take place, to the effect that the examination shall be taken " in manner and form directed by such commission," to be followed by a subse- quent order, compelling the attendance of witnesses should they turn out to be unwilling to come. By the statute 17 & 18 Vict. c. 34, reciprocal power is given to the Courts " of Common Law at Westminster or Dublin, or the Comis of Session or Exchequer in Scot- EVIDENCE IN INDIA AND THE COLONIES. 153 land "to issue a writ of subpoena, requiring the attendance from other on any trial of any witness, " wherever he shall be within United the United Kingdom." The writ can be served " in any Kingdom, part of the United Kingdom," and it " shall be as valid and effectual to all intents and purposes as if the same had been served within the jurisdiction of the Court from which it issues." The provisions of this statute cannot be utilized for the purpose of compelling the attendance of a witness otherwise than at the trial. By Mandamus to an Indian or Colonial Court. — This Disadvan-_ method has been virtually superseded by that enabling method, evidence to be taken in pursuance of a letter of request. {Pod, p. 158.) As, however, the statutes under which a mandamus is granted remain unrepealed, the practice must be said to still exist, and will therefore be detailed. The practitioner will, however, obtain the same result by Same result letter of request as by mandamus, and will get his order obtained 'by more simply and probably more quickly. The only letters of advantage which can be suggested in favour of the method by mandamus, lies in the fact that by 1 Will. 4, c. 22, s. 2, express power is in such case given to the Indian or colonial judges to " compel and enforce the attendance and examination of witnesses"; while in letters of request, such a power is only to be inferred from the terms of the request, which, however, invites the foreign judges to " summon the said witnesses " and " cause " them to be examined (c) . This power - to compel the attendance of witnesses in India or the colonies for the purposes of an examination ordered from the United Kingdom, and vice versa, exists, as has been pointed out {ante, p. 151), equally when the {e) Even this distinction is, however, of no practical importance, seeing that the Act 22 Vict. c. 20, has given Colonial Courts the power to compel the attendance of witnesses whenever an English Coui-t has authorised the obtaining of testimony by "commission, order, or other process y {Post, p. 159.) 154 EVIDENCE IN INDIA AND THE COLONIES. examination is to take place before a special examiner or commissioner appointed under Ord. XXXVII. r. 5. It is therefore difficult to see what advantage of any kind the practitioner will derive from utilizing this method by mandamus. The power to issue a mandamus to her Majesty's judges abroad is the creature of statute, and was first conferred by 13 Geo. 3, c. 63, s. 40, which runs as follows : — " In all cases of indictments or informations laid or exhibited in the said Court of King's Bench, for mis- demeanors or offences committed in India, it shall and may be lawful for his Majesty's said Court, upon motion to be made on behalf of the prosecutor, or of the defendant or defendants, to award a writ or writs of mandamus, requiring the chief justice and judges of the said Supreme Court of Judicature for the time being, or the judges of the Mayor's Court at Bombay, Madras, or Bencoolen, as the case may require, who are hereby respectively autho- rized and required accordingly to hold a Court with all convenient speed, for the examination of witnesses, and receiving other proofs concerning the matters charged in such indictments or informations respectively, and in the meantime to cause such public notice to be given of the holding of the said Court, and to issue such summons or other process as may be requisite for the attendance of witnesses, and of the agents or counsel of all or any of the parties respectively, and to adjourn from time to time, as occasion may require ; any such examination as aforesaid shall be then and there openly and publicly taken viva roce in the said Court, upon the respective oaths of wit- nesses, and the oaths of skilful interpreters, administered according to the forms of their several religions, and shall by some sworn officer of such Court be reduced into one or more writing or writings on parchment, in case any dupli- cate or duplicates should be required by or on behalf of any of the parties interested, and shall be sent to his Majesty EVIDENCE IN INDIA AND THE COLONIES. 155 in liis Court of King's Bench, closed up, and under the seals of two or more of the judges of the said Court ; and one or more of the said judges shall deliver the same to the agent or agents of the party or parties requiring the same, which said agent or agents (or in case of his or their death, the person into whose hands the same shall come) shall deliver the same to one of the clerks in court of his Majesty's Court of King's Bench, in the public office, and make oath that he received the same from the hands of one or more of the judges of such Court in India (or if such agent be dead, in what manner the same came into his hands), and that the same has not been opened or altered since he so received it (which said oath such clerk in court is hereby authorized and required to administer) ; and such deposi- tions, being duly taken and returned according to the true intent and meaning of this Act, shall be allowed and read, and shall be deemed as good and competent evidence as if such witness had been present, and sworn and examined rim voce at any trial for such crimes or misdemeanors as aforesaid in his Majesty's said Court of King's Bench, any law or usage to the contrary notwithstanding : and all parties concerned shall be entitled to take copies of such dej)ositions at their own costs and charges." By sect. 44 of the same statute a similar power was given to the Courts at Westminster in civil cases where the cause of action had arisen in India {d) . So far the power to mandamus judges to take evidence Mandamus was confined to those sitting in India, and the power could only'issiied only be exercised in civil caises when the cause of action t^ Indian . . Courts. had arisen m that country. JNow, however, the power has r. . , , ' Jr it now issues been extended to examinations in all places " under the to colonial dominion of her Majesty in foreign parts," where evi- dence is required for the purposes of a trial in England ; the place where the cause of action may have arisen is im- material. (d) For the terms of the section, see App. A., post, p. 204. 156 EVIDENCE IN INDIA AND THE COLONIES. The statute 1 Will. 4, c. 22, provides, by sect. 1, as follows : — " Whereas great difficulties and delays are often ex- perienced, and sometimes a failure of justice takes place, in actions depending in Courts of Law, by reason of the want of a competent power and authority in the said Courts to order and enforce the examination of witnesses when the same may be required, before the trial of a cause : And whereas by an Act passed in the thirteenth year of the reign of his late Majesty King George the Third, intituled, ' An Act for the establishing certain regulations for the better management of the affairs of the East India Company, as well in India as in Europe,' certain powers are given and provisions made for the examination of witnesses in India in the cases therein mentioned ; and it is expedient to extend such powers and provisions : Be it therefore enacted, that all and every the powers, authorities, provisions, and matters contained in the said recited Act, relating to the examination of witnesses in India, shall be and the same are hereby extended to all colonies, islands, plantations, and places under the dominion of his Majesty in foreign parts and to the judges of the several Courts therein, and to all actions depending in any of his Majesty's Courts of Law at Westminster, in what place or country soever the cause of action may have arisen, and whether the same may have arisen within the jurisdiction of the Court to the judges whereof the writ of commission may be directed, or else- where, when it shall appear that the examination of witnesses under a w^it or commission issued in pui'suance of the authority hereby given will be necessary or con- ducive to the due administration of justice in the matter wherein such writ shall be applied for" {d). (d) The powers given to the English Courts by 13 Geo. 3, c. 63, & 1 Will. 4, c. 22, are extended to Irish Courts by 3 & 4 Vict. c. 105, s. 66. By s. 67 of the latter Act, express power is, in Irish cases, also given to compel attendance of witnesses. EVIDENCE IN INDIA AND THE COLONIES. 157 By sect. 2 of tlie same statute, " When any writ or Specific power commission shall issue under the authority of the said attendance of recited Act [i.e., 13 Greo. 3, c. 63], or of the power herein- witnesses. before given by this Act, the judge or judges to whom the same shall be directed shall have the like power to compel and enforce the attendance and examination of witnesses as the Court whereof they are judges does or may possess, for that purpose, in suits or causes depending in such Coiu-t." As has been pointed out coifc, p. 154, the witnesses are to be examined livd voce in open Court, and their exami- nation is to be reduced into 'WTiting. A mandamus will not be issued to judges in Scotland or Ireland requiring them to compel the attendance of witnesses for the pur- poses of an examination (e) ; and it will never be granted N'o manda- to any judges except when there exist some peculiar methods circumstances which render every other method of taking applicable, evidence inapplicable (,/'). The application for a man- damus should be made to a Divisional Court, and not to a judge in chambers (g). It must be supported by the evidence specified ante, at p. 27, as necessary in cases of application for a commission. In cases in which the Crown is a party the mandamus will not be granted except, semhle, at the instance of the Crown {h). By the concluding words of sect. 40 of 13 Greo. 3, c. 63, the depositions " being duly taken and returned according to the true intent and meaning of this Act, shall be allowed and read, and shall be deemed as good and com- petent evidence as if such witness had been present and sworn and examined vied voce at any trial," &c. (/). [e) Wainwright v. Bland, 1 Gale, 103 ; 3 Dowl. 653 ; Norton v. Lamh, 5 Dowl. 181 ; Norton v. Lord Melbourne, 3 Bing. N. C. 67. (/) Farnworth v. Hyde, 14 C. B. N. S. 719. {g) Clarke v. East India Co., 6 D. & L. 278 ; 2 B. C. Rep. 319 ; 18 L. J. Q. B. 23. {h) AH. -Gen. v. lieiU;/, 13 M. & W. 676 ; E. v. Douglas, 2 Dowl. N.S. 416. (i) For directions as to tlie maimer in which the depositions are to be 158 EVIDENCE IN INDIA AND THE COLONIES. The Court When a mandamus is issued to tlie judges of an Indian Tn e.^aininer ^r Colonial Court, the evidence will not be taken by the to do Its work. Court, but by an examiner whom the Court addressed will nominate for the purpose. The power to nominate such an examiner is expressly given by sect. 2 of the Act 48 & 49 Vict. c. 74 (/.•). The practice identical with that ah-eady detailed when a request is required to be issued to a foreiarn Coui-t. Letter to be sent direct to an Indian Court. Court will appoint an examiuer to take the evidence. Bi/ means of a Letter of Request. — Letters of request have been dealt wdth ante, at pp. 53 et seq. The practitioner de- siring to take evidence in India or the colonies by this means must make his application in the same manner, within the same time, and must support it by the same afl&davit as if the evidence were to be taken in a foreign country. The necessary contents of the affidavit will be found detailed ante, at p. 27. The time when the appli- cation should be made is as soon as possible after issue joined (/), and the person to whom it is to be made is : the Court in the Chancery Division, a master in the Queen's Bench Division, the registrar in the Probate, Divorce, and Admiralty Division, the Registrar in Bankruptcy, and the Registrar in the Mayor's Court (m). The only difference in the procedure detailed ante, at p. 56, is that when a letter of request is issued to judges in India, it is sent direct to the Court addressed instead of being, as in other cases, transmitted through a Secretary of State. Sect. 2 of the Act 48 & 49 Vict. c. 74, runs as follows: — " Where, in any civil proceeding in any Court of competent jurisdiction, an order for the examination of any witness or person has been made, and a commission, mandamus, order, or request for the examination of such witness or person is addressed to any Court, or to any judge of a Court, returned, see the earlier part of sect. 40, and Ch. Arch. 14th ed. at p. 558. [k] See App. A., post, p. 216. (/) Ante, p. 26. (ot) Ante, at pp. 22, 68, 70 and 74, respectively. EVIDENCE IN INDIA AND THE COLONIES. 159 in India or the colonies, or elsewhere in her Majesty's dominions beyond the jurisdiction of the Court ordering the examination, it shall be lawful for such Court, or the chief judge thereof, or such judge, to nominate some fit person to take such examination ; and any deposition or examination taken before an examiner so nominated shall be admissible in evidence to the same extent as if it had been taken by or before such Court or judge." By sect. 3, the person to be so nominated must, in Conduct- criminal cases, be a judge or magistrate ; and by sect. 4, ™°tue'^ses, &c. the provisions of the statute 22 Yict. c. 20 (ii) are applied to examinations so taken. They chiefly relate to the penalty on persons giving false evidence, the payment of a witness's expenses, and the privilege, reserved to a witness, of refusing to answer questions which might tend to criminate him, or to produce documents which he would not be compellable to produce at the trial. It is also to be ob- The Court, served that the power to compel the attendance of witnesses a^request "hL on an examination given by this latter statute is to power to apply whenever " it is made to appear to any Court or judge tendance of having authority under this Act," (which would include ^'itnessea. Indian or colonial Courts), " that any Court or tribunal of competent jurisdiction in her Majesty's dominions has duly authorized by commission, order, or other process the obtain- ing of testimony, &c., &c." This would give power to an Indian or colonial Court to compel the attendance of wit- nesses being examined in pursuance of a letter of request addressed to them, even if such a power is not to be inferred from the terms of the letter of request itself. It follows that there is no practical difference between this method of taking an examination and that by mandamus, except that a letter of request is simpler in form and more easily obtained. As has been already pointed out ante, at p. 157, a mandamus will not be granted unless it is shown that other methods will prove ineffective (o). («) See App. A., post, p. 211. (o) The Evidence Bill of 1891 contained in four sections a codification 160 EVIDENCE IN INDIA AND THE COLONIES. English Court may take opiniou of colonial Court on question of law. Parties to be heard before opinion pro- nounced. What the parties have to do after opinion pro- Bouuced by colonial Court. The Power possessed by one Court to remit a Case for the Opinion of Another. — The Act 22 & 23 Vict. c. 63, is entitled " An Act to afford facilities for the more certain ascertainment of the law administered in one part of her Majesty's dominions when pleaded in the Courts of another part thereof." Sect. 1 provides that when the facts of a case are either settled, (as by verdict), or agreed, the Court trying the action may direct a case to be prepared setting forth the facts, may then approve the case, settle the questions of law arising thereon on which information is required, and order the whole to be sent to a superior Court in any part of her Majesty's dominions, '' whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pro- nounce their opinion on the questions submitted to them in the terms of the Act." The Coml to which the case is sent is empowered, by the same section, to hear the j)arties or their counsel before pronouncing an opinion upon the questions submitted to them. By sect. 2, each party is to receive from the officer of the Court a copy, duly authenticated, of the opinion pronounced. By sect. 3, either party may lodge his certified copy of the opinion with an officer of the Court in which the action may be depending, together with a notice of motion " set- ting forth that the party will, on a certain day named in such notice, move the Court to aj^ply the opinion contained in such certified copy thereof to the facts set forth in the case hereinbefore specified." The Court may thereupon either apply the opinion to the facts, or, " where the opinion has been obtained before trial," order it to be submitted to the jury with the other facts of the case as evidence, or " conclusive evidence," of the foreign law therein stated. of the law upon this subject, but it has not yet been passed or even considered. EVIDENCE IN INDIA AND THE COLONIES. l^'l This Act appears to afford a useful and inexpensive Useful method of obtaining conclusive evidence of Indian or ™certainmo- colonial law for the purposes of an English trial. It is colonial or to be observed that the case for opinion may be remitted either before before trial. Application is to be made to " the Court," ^jj^j %^l^^^ and should therefore be made (unless at the trial) to a before judg- judge in the Chancery Division, and to the Divisional Court in the Queen's Bench Division. A case can only be sent from one of the superior Courts. The application should be supported by an affidavit, con- taining, in addition to the other evidence necessary where it is desired to prove facts otherwise than in Court {anie, p. 27), something to show the desii'ability of remitting a case for opinion in preference to taking the evidence on commis- sion. It is obvious that in cases where the legal evidence The Act may is likely to be conflicting (as it occasionally is) , the jjower utilized where to obtain an opinion of the Court may usefully be put in ^ conflict of motion. The application is, in the first instance, to "direct anticipated as a case to be prepared setting forth the facts." They may, ^j^e Indian if necessary, be settled by a person or persons appointed colonial law. by the Court for that purpose. W. M 162 PART III. THE TAKING OF EVIDENCE OUT OF COTJET BUT WITHIN THE JUEISDICTION. O. XXXVII, r. 5. Power to order exami- nation out of Court but within the j iirisdiction. It is proposed in this part to give a short account of the procedure to be adopted where it is desired to take the evidence of persons, whether parties or witnesses, out of Court, but within the jurisdiction. The principles which regulate the practice are in the main identical with those which govern the practice where it is desired to obtain the evidence of witnesses out of the jurisdiction, and the reader, therefore, should consult Part I., Chapter II. (Proceedings to Order), and Part I., Chapter Y. (The Examination) for fuller information on the subject of this chapter. Examination out of Court hut tcitJiin jurisdiction may he ordered. — Ord. XXXVII. r. 5 provides that "the Court or a judge may, in any cause or matter, where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the Court or judge, or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct." The application — How made. — Applications to examine witnesses within the jurisdiction under this rule should How to fipply : By motion . . . t^. . . iu c. D. with be made by notice of motion in the Chancery Division, sunimonsln ^^^^ ^7 summons before the master in the Queen's Q. B. with Bench Division ; but there is jurisdiction to make an ex^arte. Order for the examination de hene esse of witnesses upon THE TAKING OF EVIDENCE OUT OF COURT. 163 an ex -parte application, and it is a prima facie ground for making the order on an ex piarte application, that the witness is seventy years of age, or is dangerously ill, or is about to go abroad. Where the app»lication is not made on those grounds it should be with notice («). By Ord. XXX. r. 1 of the Eules of the Supreme Court, it is provided : "In every cause or matter not specially assigned to the Chancery Division, one general summons may be taken out at any time by any party, and shall be returnable in not less than four days. The summons shall be in the Form No. 3 a of App. K., with such variations as circumstances may require, and shall be addressed to and served upon all such parties to the cause or matter as may be aifected thereby." The Form No. 3 a of App. K. provides for " commissions " and " examination of witnesses." Assuming that a party takes out a summons for direc- tions (which he is not obliged to do), it is by no means certain that at the time when he takes out that summons the necessity for an examination of witnesses will be known to him; and in that case he may safely make his application for an examination subsequently {b). When to mahc the application. — Where a summons for Time for directions is taken out, it is frequently taken out at an a^^ ii^f+i early stage of the action. It is not, however, proper to apply for an order for examination of witnesses before joinder of issue (c), except in cases of emergency ((/) . There is a reported case where, although no appearance had been entered, the Court made absolute a rule nisi to («) Bidder v. Bridges, 26 C. D. 1 ; and see D. C. P. 4tli ed. p. 855. (//) See ante, pp. 22 and 23. (c) Mondel\. Steele, 8 M. & "W. 300; 9 D. P. C. 812; 5 Jur. 511 ; Fynney v. Beasley, 17 Q. B. 86 ; 20 L. J. Q. B. 395 ; 15 Jur. 898. {d) Spalding v. Mure, 2 Tidd. 814 ; Fynney v. Beasley, supra ; Brown v. Mollett, 16 C. B. 514; 3 C. L. E. 925; 24 L. J. C. P. 213; Eliny. Wilson, 75 L. T. Jour. 47. M 2 164 THE TAKING OF EVIDENCE OUT OF COURT examine the plaintiff viva voce before one of the masters of the Court as a witness on his own behalf, subject to the conditions that the depositions should not be used unless the plaintiff himself made an affidavit, to the satisfaction of the Court, stating that the voyage which he was about to take was one of necessity and that the application was made bond fide, and upon the farther condition that he should give security for costs {e). The regular time, however, for making the application is immediately after the close of the pleadings (/), and the application may be refused if it be not made within a reasonable time after joinder of issue {g). Evidence in Evidence in siqjport of the application. — The nature of the appUcation* ^ evidence to be used in support of an application for a commission or special examination to take evidence abroad has been discussed at length in a previous chapter (A), to which the practitioner is referred, since the main prin- ciples there indicated are equally applicable mutatis mutandis to applications for orders to take evidence within the jurisdiction. Affidavit The applicant should in all cases conform to the require- '^roundfof ™ents of Ord. XXXVIII. r. 3, in framing his affidavit, information and where the application is made ex 2iarte this, x\Aq vaust ^^ ^ ^ ■ be strictly observed, and the grounds of the deponent's where appli- information and behef must be stated. " The Court ought iTZt!'^''^^ to know specificaUy what information as to the age of each of those persons he has received, and what means have been taken to inquire in the best quarters upon that subject, and on what his belief is founded " (/). {e) Fischer v. Hahn, 32 L. J. C. P. 209 ; 13 C. B. N. S. 659 ; 11 W. R. 342. (/) Steuart v. Gladstone, 7 Ch. D. 394 ; 47 L. J. Ch. 154. ((7) Steuart v. Gladstone, supra. See also the cases cited in the notes, p. 26, ante. {/() Pages 27 et seq. (i) Bidder v. Bridges, 26 C. D. p. 11, per Lord Selborne, L.C. BUT WITHIN THE JURISDICTION. 165 Grounds for making the order ex parte. — Although the fact Grounds for that a witness is over seventy years of age, or is dangerously order ex ill, or is about to go abroad, is a good prima facie ground ^"-^'^^ ' for ordering the examination on an ex parte application, the order may be subsequently discharged if it be shown that the making of the order was not, or that the maintenance of the order is not, necessary for the purposes of justice. Lord Selborne, L.C., laid down the principle that " If the Court is satisfied, either when the application is made, or upon an application to discharge an order granted ex parte for the examination of witnesses de bene esse, that it is not necessary for the purposes of justice either altogether or to the extent to which it goes, then the Court ought not to grant it in the one case, and ought not to maintain it any further than is necessary in the other" (J). Grounds for making an order xchen notice has been given. — In the case of Bidder v. Bridges an order had been made ex parte to examine thirty witnesses over the age of seventy. The Court of Appeal discharged the order so far as related to the witnesses whose ages were under seventy-five, without prejudice to any subsequent application to examine those witnesses on special grounds ; but maintained the order as (a) Age of to the other witnesses upon an undertaking by the appK- ^^ ^^®^* cant to produce at the trial such of them as might then be alive if requested to do so. In ordinary cases the fact of a witness being of the age of seventy years is sufiicient ground for the order. Where a witness is dangerously (b) Illness. ill (/r), or where a witness is in such a precarious state of health that he cannot attend the trial with safety (/), the order may be made. "Where the ground of the application [j) Bidder v. Bridges, siqrra, at p. 8. (k) Bidder v. Bridges, supra; D. C. P. 4tli ed. p. 855; Warner v. Mosses (C. A.), 16 C. D. 100 ; 50 L. J. Ch. 28 ; 43 L. T. 401 ; 29 W. R. 201. (;) Pond V. Dimes, 2 D. P. C. 730 ; 3 M. & Scott, ICl. 166 THE TAKING OF EVIDENCE OUT OF COURT is anticipated illness, it must be shown that there is strong reason to believe that the illness will exist at the time of the trial {m). The provision of 1 Will. 4, c. 22, s. 10, which required that, before the depositions should be read, the judge should be satisfied as to the inability of the deponent, from permanent sickness, to attend the trial was held to mean, not that the sickness should be incurable, but that it should be of such a degree of permanency as to make it last beyond the then impending trial (;;). It has been doubted whether pregnancy and imminent delivery be a cause for the examination of a witness by the prothonotary under 1 Will. 4, c. 22, and whether such a condition can be brought under the heading of permanent sickness or infirmity " within the meaning of the statute "; if, however, it be a cause, then it must be shown by the affidavits of medical men that the delivery will probably happen about the time fixed for the trial (o). There can be little doubt that upon such afiidavits a case would be shown for making the order under Ord. XXXVII. r. 5, on the ground that an order for the examination is necessary " for the purposes of justice." It would not be safe in such a case to apply ex parte, having regard to the remarks of Kay, J., in Bidder v. Bridges (7;). The order for an examination out of Court on the ground of pregnancy, would probably be made upon the terms that the deposi- tions should not be used at the trial unless it be then shown that the witness is unable to attend. (m) Abraham v. Norton, 1 D. P. C. 266 ; 1 M. & Scott, 384 ; s.c. nom. Abraham t. Newton, 8 Bing. 274. (w) Beaufort v. Crawshay, 1 L. R. C. P. 699 ; 35 L. J. C. P. 342 ; 12 Jur. N. S. 709 ; 14 L. T. 729 ; 14 W. E. 989 ; 1 H. & R. 638. (o) Abraham v. Norton, supra ; Davis v. Lowndes, 6 Scott, 738 ; Pondr. Dimes, supra. See also Haviland v. Haviland, 32 L. J. Prob. 144 ; E. v. Sfejjhenson, 31 L. J. M. 0. 147 ; i?. v. Inhabitants of Buddersfcld, 7 E. & B. 794 ; 26 L. J. M. C. 169 ; M. v. Wellings, 3 Q. B. D. 426 ; 47 L. J. M. C. 100. {p) 26 C. D. 1 ; and see p. 61, ante. BUT WITHIN THE JUEISDICTION. 167 It has been held, under r. 66 of the Bankruptcy Eules, 1886 (which is similar to r. 5 of Ord. XXXYII. of the E. S. C. 1883), that the Court has power to order the examination of a person summoned under s. 27 of the Bankruptcy Act, 1883, who is unable, through illness, to attend the Court, to be examined at the witness's own residence ( q) . As has been stated, it is a ground for ordering the (c) Witness examination that the witness is about to go abroad, and abroad. ° where it is shown that the contemplated voyage is one of necessity, and that the application is made bond fide, the evidence of the plaintiff himself may be ordered to be taken out of Court ; but the plaintiff in such a case will probably be ordered to give security for costs (r). The following cases further illustrate the rule that the order may be made when the witness is about to go abroad : In Broivn v. Mollett, the Court upheld the decision of the judge who had made an order for the examination of the plaintiff before the declaration had been delivered, where the plaintiff proved that he was master of a ship, and about to sail to Stettin, and was not likely to be present at the trial (s). In the case of Pirie v. Iron {f), the Court granted a rule, which was to be made absolute unless cause was shown against it the next day, for the examina- tion of witnesses upon an affidavit stating that they were about to sail for India. In Weekes v. Paul it was held that the fact that a plaintiff did not proceed promptly in a cause, was no answer to a rule ordering the examination of a material witness, who was going abroad, upon interro- {q) Re Bradbroolc, 23 Q. B. D. 226. (r) Fischer v. EaJm, 32 L. J. C. P. 209; 13 C. B. N. S. 659; 11 W. R. 342. (s) 16 C. B. 514 ; 3 C. L. R. 925 ; 24 L. J. C. P. 213. A strong case of necessity, as well as strict proof that the application is bond fide, would probably be now required, and terms would probably be imposed : see Fischer v. Hahn, supra. {t) 1 M. & Scott, 223 ; 8 Bing. 143 ; 1 D. P. C. 252. 1G8 THE TAKING OF EVIDENCE OUT OF COUET (d) Other srounds. Form and contents of affidavit in support of ai^plication. gatories(/). It was laid down generally, in Warner v. Mosses [u), that an order can be made whenever a witness is going abroad, or is from illness, age, or other infirmity, likely to be unable to attend the trial. When the application is made upon any of the grounds above mentioned, it may be made ex parte ; but the aj)pli- cant runs the risk of the order being discharged wholly or in part (x). Unless the application is made upon the ground that the witness is over seventy years of age, or dangerously ill, or about to go abroad, the application must be made upon notice (y). It was held in Warner v. Mosses (s), that the order might be made whenever it should appear to the Court " necessary for the purposes of justice." This is now expressly provided by Ord. XXXVII. r. 5. For further information as to the nature and contents of the affidavit in support of the application, and as to the matters which must be proved before the order will be granted, the practitioner is referred to the statement of the procedure up to order contained in Chapter II. of Part I. (pp. 22 et seq.). The order. The Order.— ^j Ord. XXXYII. r. 39, it is provided Examiners of that the examination of any witness or person ordered to the evidence ^^ taken under rules 1 and 5 of Ord. XXXYII. shall, in unless other- r^ny cause or matter in any division of the Hiffh Court, •wise ordered. •; ,-, r~^ • ^ i n i • t ■, unless the Court or ]udge shall otherwise direct, be taken before one of the examiners of the Court : provided that nothing in rule 39 shall interfere with the practice as to examinations in Admiralty actions. (0 5 Scott, 713 ; 6 D. P. C. 462. As to the efPect of delay, see ante, p. 26. (m) 16 C. D. 100 ; 50 L. J. Ch. 28 ; 29 W. E. 201 ; 43 L. T. 401. {x) Bidder v. Bridges, 26 CD. 1. (y) Per Kay, J., in Bidder v. Bridges. [z) 16 C. D. 100 ; 50 L. J. Ch. 28 ; 29 "W. R. 201 ; 43 L. T. 401. BUT WITHIN THE JURISDICTION. 169 It is not the practice now for the Court to appoint a Not the prac- . , . 1 , ^ •^ 'ii • XT. • • T i.* tice to appoint special examiner to take evidence witnm the jurisdiction, special although such a course is, hy consent, occasionally adopted, examiner. A special examiner can also be appointed " where it would be absurd extravagance to send down an examiner of the Court" («). Applicafio)! for Order to cross-examine Affidavit Witness. — Cross-exami- ■ . . . nation of Ord. XXXVIII. r. 1 provides : " Upon any motion, peti- affidavit tion, or summons, evidence may be given by affidavit ; but ^^t^^^^- the Court or a judge may, on the application of either party, order the attendance for cross-examination of the person making such affidavit" {b). The cross-examination of an affidavit witness under Ord. XXXVIII. r. 1 and Ord. XXXVII. r. 1, may be ordered under Ord. XXXVII. r. 5 (c). It was held in McAlister v. Walters {d), that a chief Chief clerk clerk cannot refuse to allow a summons to issue for the cross-examination before one of the examiners. Except where the amount at stake is trifling, the chief clerk should not take the examination (e). The same principles would seem to apply to the taking of cross-examinations before the master in the Queen's Bench Division. The cross-examination may be ordered to take place in Court (/). The attendance of an affidavit witness for {a) Baddeley v. Bailey, W. N. (93), 56 ; Marquess of Bute v. James, 33 C. D. 157. For cases under the old practice, see Altree v. Shenvin, 2 De G. & J. 92 ; Brocas v. Lloyd, 21 Beav. 519 ; Ogilby v. Gregory, 4 W. R. 67 ; Townshend v. Williams, 6 W. E. 734 ; Re Smith, Knight 4- Co., 8 Eq. 23 ; Jones v. Wood Street Warehouse Co., W. N. (73) 39. {b) There can be no cross-examination upon affidavits showing cause against a garnishee order nisi, of documents, which are purely formal, or in support of an application for leave to amend a writ : see ante, p. 45. (c) Concha -v. Concha, 11 App. Cas. 541. {d} 7 Times Rep. 105. {e) Zuxmore v. Gordon, 7 Times Rep. 150. (/) lie Russell, 30 Sol. Jour. 371. 170 THE TAKING OF EVIDENCE OUT OF COURT the purpose of cross-examination maybe required under Ord. XXXVII. r. 20, but the subpoena cannot be issued under that rule until an order has been obtained for the examination to be taken {g). Once an affidavit has been filed, the right of cross- examination arises, even though the affidavit be not used {It). The Court may look at an affidavit though the cross- examination may be still pending {i) ; and the Court may refuse in lu-gent cases to order an adjournment to enable a deponent to be cross-examined {k). On the other hand, the Court need not act on an affidavit where the person who made it cannot be examined (/), and where an order for cross-examination has been made and the witness has not been produced for cross-examination in accordance with the order, the Court may refuse to allow the affidavit to be read {m), unless the non-production of the witness is due to his death, absence, or illness, in which case the affidavit will be read but will be regarded as of little weight (;?). pe^rpetimte Apj^Iwafion to examine in Action to petyetnate Tcstimonij. testimony. — The rules of Ord. XXXVII. relating to actions to {g) Per Denman, J., in chambers, 20 April, 1888, cited in Annual Practice, p. 741. {h) Re Quartz Hill, ^-c. Co., 21 C. D. 642 ; Clarke v. Law, 2 K. & J. 28 ; Frole V. Soady, 3 Oh. 220. See also Pikoy. Bickinsm, 21 W. E. 862 ; and Re Sykes, 2 J. & H. 415. In bankruptcy, however, there is no right to cross-examine unless and until the affidavit has been read. Ex parte Child, 20 C. D. 126. (i) Lewis v. James, 32 C. D. 326. (/.) Bright v. Spratt, "W. N. (74) 72 ; Xormanville v. Stanning, 10 Ha. App. XX. ; Woodworth v. Sugden, 32 Sol. Jour. 743. [1) The Parisian, 13 P. D. 16 ; Shea v. Greeti, 2 Times Eep. 533. (ot) Bingley v. Marshall, 6 L. T. 682 ; Taiiswelly. Scurrah, 11 L. T. 761, («) Braithwaite v. Eearns, 34 Beav. 202 ; Ridley v. Ridky, 34 Beav. 329 ; Morley v. Morley, 5 De G-. M. & G. 610 ; Bavics v. Otty, 13 "W. E. 484 ; Abadom v. Abadom, 24 Beav. 243. BUT WITHIN THE JURISDICTION. 171 perpetuate testimony arc set out in the Appendix (o). The evidence in such suits will usually be ordered to be taken before the examiner of the Court {p). Apj^lication to examine Witnesses vpon Inferrogafon'es. — Examination It would seem from the language of Ord. XXXVII. r. 1 uponlnteiv^ and Ord. XXXVII. r. 5 {q), that there is power to order rogatories. an examination within the jurisdiction and out of Court, wholly or in part, upon interrogatories. It is not, however, the practice to make such an order, and it is doubtful whether an order in this form is ever applied for. The form (No. 35 of App. K.) in the Appendix to the Rules of the Supreme Court of the order for examination of witnesses before trial applies only to an examination con- ducted vird voce. If an order should be made for an examination out of Coui-t, but within the jurisdiction, upon interrogatories, the practice indicated in Chapter IV., Part I., should be followed in framing the interrogatories and cross-interrogatories. Procedure after Order. — The general principles which Procedure regulate the practice from order to examination, at the ^ ^^ ^^ ^^'' examination, and from examination up to trial, have been discussed in the chapters relating to the taking of evidence abroad. It is therefore sufficient to set out here the rules which affect the practice from order up to trial, with such further observations as apply to cases in which evidence has been taken within the jurisdiction. Having obtained an order, the solicitor's first duty will Drawing up ^ , ^ 'J the order. be to draw it up. The order should be drawn in the form contained in the ^of"^ «* order. (o) Page 222, post. See further, as to this subject, D. C. P., pp. 1512 — 1575, and D. C. F., pp. 675, 676. {p) Marquess of Bute v. James, 33 0. D. 157 ; Badddcij\. Bailey, W. N. (93) 56. (^) See App. B., pp. 218 and 219. 172 THE TAKING OF EVIDENCE OUT OF COURT Applying for an appoint- inent. Notice of the appointment. Securing attendance of witness. Conduct money, &c. 0. XXXVII. r. 20. Appendix to the Eules of the Supreme Court for a vkd voce examination within the jurisdiction, out of Court (p). It will then he the solicitor's duty to apply for an appointment, and when an appointment has been given, he must, in accordance with the provisions of the order, give the specified notice in writing to the solicitor or agent of the opposite party, of the time and place where the examination is to take place. It will also be his duty to serve a like notice upon the person required to attend for the purpose of being examined or of producing any document. He will also pay or tender to the witness such conduct money, expenses, and compensation for loss of time as he would be entitled to be paid upon attendance at a trial in Court, in accordance with the provisions of Ord. XXXVII. r. 9 (q). In most instances the witnesses are friendly, and can be trusted to attend at the time and place appointed. There is, however, machinery by which the attendance of an un- willing witness before an examiner within the jurisdiction may be secured. The attendance of a witness before the examiner may be required by subpoena (r), under Ord. XXXVII. r. 20, after an order for the examination has been made, but unless a witness is served with a subpoena he need not attend the examination («) . Ord. XXXVII. r. 20, pro- [p] App. K. to the R. S. C, Form No. 35, which is set out in the Appendix, post, p. 239. {q) Witnesses are entitled to compensation for loss of time; and if country witnesses to a sum for board. Clark v. Gill, 1 K. & J. 19 ; Turner v. T., 7 "W. R. 573 ; Wiltshire v. Marshall, W. N. (6G) 80 ; Re Working Men^s Mutual Soc, 21 C. D. 831. This applies equally to wit- nesses who are parties to the cause. Bavey v. Durrant, 24 Beav. 493. A witness need not attend unless his railway fare is tendered. Jirocas v. Lloyd, 23 Beav. 129. For the practice in bankruptcy, see He Batson, 70 L. T. 382. (r) Raymond v. Tapson, 22 Ch. D. 430 ; 48 L. T. 403 ; 31 W. R. 394 ; Lovell V. Wallis, 53 L. J. Ch. 494. (s) Stuart V. The Balkis Co., 53 L. J. Ch. 791 ; 50 L. T. 479 ; 32 "W. R. 676. BUT WITHIN THE JURISDICTION. 173 vides as follows : — " Any party in any cause or matter may by subjDoena ad tedificandum or duces tecum require the attendance of any witness before an officer of the Court, or other person appointed to take the examination, for the purpose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial ; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter, shall be bound, on being served with such subpoena, to attend before such officer or person for cross- examination," Where an order for cross-examination of a deponent on his affidavit has been made, he may be compelled to attend by subpoena issued under the above rule {t). Provision is also made, by Ord. XXXVIII. r. 28, for obtaining the attendance of a deponent at the trial for cross-examination on his affidavit. This is done by giving notice requiring the deponent's attendance for the purpose, which notice having been given, the affidavit cannot be used at the trial, unless by the special leave of the Court or a judge. Where a witness refuses to attend, or where, though he Refusal of attends, he refuses to be sworn, a subpoena directed to the ^A^^Jf^^^ *"+q witness, and ordering him to attend before the examiner, be swom. should be issued under Ord. XXXVII. r. 20. This subpoena is issued without an order {ii) . If the witness still refuses to attend or to be sworn, application should be made to the Court for an order that the witness attend at his own expense (d^), under Ord. XXXVII. r. 13, which pro- o. XXXVII. vides as follows : — " If any person duly summoned by ^- ^^* Order for attendance. (t) Connely. Baker, 29 C. D. 711. (m) Eaymond v. Tapson, supra ; Fenton v. Cumberlege, 48 L. T. 776. If, however, this privilege be oppressively used, the Court will order the party who issues the subpoena to pay the costs of an application to set the writ aside. Steele v. Savory, W. N. (91) 195. {v) Stuart V. Balkis Co., 32 W. R. G76 ; Re Diamond Fuel Co., 22 Sol. Jour. 914. 174 THE TAKING OF EVIDENCE OUT OF COURT 0. XXXVII. r. 8. Disobedience to order for attendance. 0. XXXVII. r. U. Objection by ■witness to answer questions. 0. XXXVII. r. 15. Costs occa- sioned by refusal or objection of "witness : rr. 13, 14. 0. XXXVII. r. 7. Order for attendance of person to produce documents. subpoena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed at the Central Office, and thereupon the party requiring the attendance of the witness may apply to the Court or a judge ex imrte or on notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be." It has been held that a witness who has attended without being served with a subpoena, is bound to answer (r). By Ord. XXXVII. r. 8, it is provided as follows : — " Any person wilfully disobeying any order requiring his attendance for the purpose of being examined or producing any document, shall be deemed guilty of contempt of Court, and may be dealt with accordingly." By Ord. XXXVII. r. 14, it is provided as follows: — " If any witness shall object to any question which may be put to him before an examiner, the question so put, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court or judge." By Ord. XXXVII. r. 15, it is provided as follows : — " In any case under the two last preceding rules, the Court or a judge shall have power to order the witness to pay any costs occasioned by his refusal or objection." By Ord. XXXVII. r, 7, it is provided as follows : — " The Court or a judge may, in any cause or matter at any stage of the proceedings, order the attendance of any person for the purpose of producing any writings or other documents named in the order which the Court or judge may think fit to be produced : Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled (f) Cutler \. Wright, W. N. (90) 28. BUT WITHIN THE JURISDICTION. 175 to produce at tlie trial," The object of this rule is not to allow inspection of documents in the hands of persons who are not parties to the action (x) ; but where documents in the hands of such persons are required for the purpose of an examination of witnesses under Ord. XXXYII. r. 5, an order for the production on the examination may be made on an ex parte application (//) . The Court will refuse to order a person who is not a party to attend under the rule to produce documents, except on some particular proceeding (:;). For further information on this subject, see ante, p. 49 et seq. When the documents, of which production is required, Orders under consist of entries in the books of a bank, an order may be Books Evi- made under the Bankers' Books Evidence Act, 1879 {a). ite, . C8. BUT WITHIN THE JURISDICTION. 189 of attendance in obedience thereto, signed hy tlie person or persons appointed to take the examination, or by one or more of such persons, shall be so served, together with or after the service of such order : provided also, that every person whose attendance shall be so required shall be entitled to the like conduct money and payment for ex- penses and loss of time as upon attendance at a trial: pro- vided also, that no person shall be compelled to produce under any such order any writing or other document that he would not be compellable to produce at a trial of the cause." Sect. 27 of 20 & 21 Yict. c. 157 provides : " Any sheriff, 20 & 2i Vict, gaoler, or other officer having the custody of any prisoner, Examination may take such prisoner for examination at the place or of prisoners, places named in any such order by virtue of a writ of habeas corpus to be issued for that purpose, which writ shall and may be issued by any judge under such circum- stances and in such manner as such judge may now by law issue the writ commonly called a writ of habeas corpus ad testificandum." Sect. 28 of 20 & 21 Vict. c. 157 provides : " The person 20 & 21 Vict. or persons authorized to take the examination of witnesses ^■, '^ ' ^' ~ ^ .... Ibe oath. by any such rule, order, writ, or commission as herein mentioned, shall and may take all such examinations upon the oath of the witnesses, to be administered by the person so authorized ; and if upon such oath any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall and may be indicted and prosecuted for such offence in the county where such evi- dence shall be given, or in the county of Middlesex if the evidence be given out of England." Sect. 29 of 20 & 21 Vict. c. 157 provides : " The regis- 20 & 21 Vict. trar or any other person named in any such rule or order ^ ' ^' " ' to take any examination in pursuance thereof, may, and examiners, he is hereby required to make, if need be, a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon or relating 190 THE TAKING OF EVIDENCE OUT OP COURT 20 & 21 Vict. c. 157, s. 30. Costs. thereto ; and the Court is herehy authorized to institute such proceedings and make such order and orders upon such report as justice may require, and as may be instituted and made in any case of contempt of Court." Sect. 30 of 20 & 21 Vict. c. 157 provides: "The costs of every rule or order to be made for the examination of wit- nesses by virtue of the provisions herein contained, and of the proceedings thereupon, shall be costs in the cause, unless otherwise directed either by the judge of the superior Court making such order, or by the Court." It is unusual to order an examination upon interrogatories, but the power to make such an order exists. After the examination has been taken, the depositions, in accordance with the order for the appointment of the examiner, will be transmitted to the office of the registrar at the Mayor's Court. County Courts. County Courts. — As to the powers of County Courts having bankruptcy jmisdiction to order examinations out of Court in bankruptcy matters, see ante, pp. 69 et seq. County Courts when not exercising bankruptcy jurisdic- tion have the same power as the High Court to order exami- nations within the limits of England and Wales, but have no power to order an examination beyond those limits {if). Eule 14 of Order XYIII. of the County Court Eules, 1889, provides: " The Court may, in any action or matter, when it shall appear necessary for the purposes of justice, make an order for the examination upon oath before the Court or any officer of the Court, or any other person, and at any place in England and Wales, of any witness or person, and may empower any party to any such action or matter to give such deposition in evidence therein on such terms, if any, as the judge may direct." The application should be made upon the same grounds, and supported by the same evidence, as in similar applica- tions in the Chancery and Queen's Bench Divisions ; (a) In Bank- ruptcy. (b) In other matters. (y) See ante, p. 70. f BUT WITHIN THE JURISDICTION. 191 and under like conditions and subject to like risks the application may be made ex jyarfe (z) . Official Referees. — The official referee to whom an action ojfidai has been referred has jurisdiction to order an examination; he will exercise the same discretion as that of a master or other officer in cases which have not been referred, and his order can similarly be the subject of unlimited appeal ici). Arbitrations. — Where parties agree to refer their dis- Arlitrations. putes to arbitration, no action having been brought in respect of those disputes, the Court or a judge has no power to order an examination, whether within or without the jurisdiction, under Ord. XXXVII., r. 5, as the arbitra- tion is not a " matter " within the definition in sect. 100 of the Judicature Act, 1873 [Jj). An arbitration under sect. 162 of the Companies Act, 1862, is a "matter" within the meaning of Ord. XXXYII., r. 5 (c). (z) The practitioner should consult, therefore, the earlier portion of this chapter, the procedure indicated in which should be followed, except in so far as the County Court Rules render modifications necessary. {a) Haijward v. Mutual Reserve Association, (1891) 2 Q. B. 236. See also Ord. XXXVI., r. 50. {b) Re Shaw and EonaJdson, (1892) 1 Q. B. 91. (c) Re Mysore West Gold Mining Co., 42 C. D. 535. 192 PAET lY. USING THE DEPOSITIONS AT THE TEIAL. When deposi- tions may be given in evidence. 0. XXXVII. r. 18. Directions of Court in making order may qualify E. 18. Witness beyond the jurisdiction. Reading the Depositions at the Trial. — Eule 18 of Ord. XXXYII. provides that, " except where by that order otherwise provided or directed by the Court or a judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter, without the consent of the party against whom the same may be ofPered, unless the Coiirt is satisfied that the deponent is dead or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions without proof of the signature to such certificate." This rule is substituted for sect. 10 of 1 Will. 4, c. 22 (a), which is now repealed by the Statute Law Ee- vision Act (46 & 47 Vict. c. 49). It would seem that the operation of this rule may be defeated if the Com't or a judge, in making the order for examination, under Ord. XXXVII., r. 5, has given direc- tions as to the terms upon which the depositions may be used {aa). Witness out of the Jurisdiction. — The long order for com- mission appended to the Rules of the Supreme Court, {a) See App. post, p. 207, where the section is set out. {aa) It is to be observed that the proof required by the nde is in the alternative ; i. e., that the deponent is beyond the jurisdiction, or unable to attend. Where the deponent resides -within a reasonable distance from London, a term is sometimes imposed to the effect that l/oth of these facts must be proved before the depositions can be read. USING THE DEPOSITIONS AT THE TRIAL. 193 1883 (b), provides that office copies of the interrogatories, cross-interrogatories, and depositions may be given in evi- dence on the trial of the action, saving all just exceptions, without any other proof of the absence from this country Affidavit of p ., .. ., ji • T •-. re 1 •! solicitor as to or the "Witness or witnesses therein named tnan an ainaavit absence. of the solicitor or agent, of his belief that the witness is, or the witnesses are, absent from the country. The order for the appointment of a special examiner to take evidence abroad, which is given in the Appendix to the Eules of the Supreme Court, 1883 (c), has no such pro- vision, but one can be inserted if desired. Mow to j)rove Absence xolicre no directions. — Where no Absence, how provision dealing with the matter has been inserted in the ^^ directions. order for the examination to take evidence out of the juris- diction, or to take evidence within the jurisdiction of a person who is about to go abroad, the party who desii^es to use the depositions must satisfy the judge at the trial that the witness is out of the jurisdiction. It is not easy to gather from the cases any clear rule as to what amount of evidence, and what kind of evi- dence, would be necessary to satisfy the Court as to the absence of the witness, and it would seem that the answer to this question must depend upon the circumstances of each particular case. In strictness, and in the absence of directions that an affidavit as to belief that the witness is abroad shall entitle a party to use the depositions, it has been held necessary to prove the absence of the witness by the testimony of some one who can speak to the fact of his own knowledge (cl) ; and the testimony of a person who states that he is in- formed and believes that the witness is abroad, has been held to be insufficient even though the grounds of the {b) Form No. 37 of App. K. of the R. S. C. 1883. See App. post, p. 243. (c) App. K., No. 37 c. {d) Robinson v. Markis, 2 M. & Rob. 375. W. O 194 USING THE DEPOSITIONS AT THE TRIAL. information and belief are stated (c) . It was held in one case insufficient to prove that, on the evening before the trial, the witness was on board an outward bound ship in the Thames waiting for the captain to come on board (/). But where a person proved that he had seen the witness start for Australia, and had received two letters from the witness written from Sheerness and Plymouth, at which ports the vessel had put in, the depositions were admitted (g). It seems that if it be proved that the voyage has com- menced the depositions may be read (A) , even though the vessel may have been obliged to put back into port (i) . It is doubtful whether the Court would require the absence to be proved with such strictness in these days ; but it cannot be assumed that strict proof of absence will never be necessary. The affidavit of a person who can speak to the facts is sometimes admitted, but inasmuch as the party against whom the depositions are tendered may desire to cross-examine upon the affidavit, it is more prudent to have a witness in Court to prove the absence (k) . It would seem that where a witness has been examined abroad, less strict evidence as to his continued residence abroad will be required than in the case of a witness who has been examined in England on the ground that he was about to go abroad (/). Illness or Illness or other Infirmity. — The statute 1 Will. 4, c. 22, [e) Proctor v. Labison, 7 C. & P. 629. (/) Carriithers v. Graham, Car. & M. 5. See also Falconers. Hanson, 1 Camp. 171. [g) Varicas v. French, 2 C. & K. 1008. (A) Varicas v. French, supra. (i) Ward v. IFells, 1 Taunt. 461 ; Fonsich v. Agar, 6 Esp. 92. {k) Duke of Beaufort v. Craivshaij (1 L. R. C. P. 699 ; 35 L. J. C. P. 342 ; 12 Jur. N. S. 709 ; 14 L. T. 729 ; 14 W. E. 989 ; 1 H. & R. 635), •where it was doubted whether or not the aifidavit of a medical man as to a witness's illness was admissible. In Knight v. Campbell (cited in Buke of Beaufort v. Craivshay), Pollock, C.P., admitted an affidavit. (7) It is probably owing to this that the long order for commission provides that the affidavit of the solicitor as to his behef is sufficient. USING THE DEPOSITIONS AT THE TRIAL. 195 s. 10 (;>?) required that tlie " permanent sickness "of tlie other inflr- dejDonent should be proved to the satisfaction of the judge ^^ ^' as a condition of reading the deposition of a witness. Under that section it was held that permanent sickness did not mean incurable sickness, but sickness of such a degree of permanency as to make it extend beyond the then impending trial {n) ; a person who was over seventy years old and suffered from chronic gout, was held to suffer from incurable sickness, and it seems to have been considered that the affidavit of a medical witness in such Affidavit of a case would have been sufficient evidence to satisfy -fitness. the section (o). Under Ord. XXXYII., r. 5, when an examination de bene esse has been ordered, the depositions can only be used at the trial if it be then shown that the witness cannot come to Court to be examined {p). The affidavit of a medical witness that a woman is likely to be delivered of a child about the time fixed for the trial is a ground upon which an examination out of Court may be ordered (q) ; and the Court would, no doubt, as a rule, admit the depositions of such a witness at the trial upon the affidavit of the doctor on whose affidavit the examina- tion was ordered, stating that the woman was on the point of being delivered, or had just been delivered of a child, and was unfit to attend the Court without danger to her health. There is, however, always the possibility that the Court will require the medical man to attend, in order that he may be cross-examined as to the health of the witness whose depositions are tendered. "Where the absent witness is a party, and particularly where he or she is a plaintiff {m) Repealed by 46 & 47 Vict. c. 49. Ord. XXXVII. r. 18, now requires " sickness or other infirmity " to be proved. («) Buke of Beaufort y. Crawnhay, supra. (o) Ibid. See also Enight v. Campbell, there cited. Xp) Barton v. l\orth Staffordshire Ri/., 35 W. R. 536. [q) See ante, p. 166 ; and Abraham v. Norton, 1 D. P. C. 266 ; 1 M. & Scott, 384 ; Abraham v. Neivton, 8 Bing. 274 ; Davis v. Lowndes, 6 Scott, 738 ; Fondx. Blmes, 3 M. & Scott, 161. o2 196 USING THE DEPOSITIONS AT THE TRIAL. it is important that the medical attendant should be in Court. Death of "n'itness. When notice to use depo- sition at trial must be given. Proving the depositions. Evidence of due return of commission. Death of Witness. — It is probable that in most cases the fact of a witness being dead would, if affirmed by one party, be accepted by the other without proof. Where no such admission is made the Court, it would seem, will, as a rule, be satisfied by an affidavit, that the witness whose depositions are tendered is dead ; but where it is alleged that the witness died abroad, the Court might require strict proof of his death before admitting the depositions (r) . Notice to nse Dejyosition made before Issue joined. — Ord. XXXVII. r. 24, provides that no affidavit or deposi- tion, filed or made before issue joined in any cause or matter, shall be used at the trial without special leave of the Court or judge, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court or judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf. Office Copies of Depositions. — Inasmuch as the depositions, interrogatories and cross-interrogatories become records of the Court when they are filed, they may be proved by examined or office copies (s). As a rule office copies are used {f). Evidence of due Return of Commission. — Where at the trial a clerk from the master's office produced a jDacket of (>•) There is no reported case Tvhich has decided what amount of evidence will satisfy the judge that the witness whose depositions are tendered is dead. («) Duncan v. Scott, 1 Camp. 100. [f] Ord. XXXVII. r. 4, provides that office copies of all writs, records, pleadiugs, and documents, filed in the High Court of Justice, shall be admissible in evidence in all causes and matters, and between all persons or parties, to the same extent as the original would be admissible. USING THE DEPOSITIONS AT THE TRIAL. 197 papers, whicli lie had received, sealed up, from a person who brought it to the office seven years previously ; and the commission produced was the commission which had issued under the order, and the depositions professed to have been signed by the persons named as commissioners, and the depositions purported to contain separate examinations as directed by the order, it was held that, as the return and the depositions appeared to be in the same state as when left originally at the master's office, it was unnecessary to prove that they were in the same state as when they left the hands of the commissioners, and that the return was good. It was also held that it would be presumed that the witnesses were examined apart in accordance with the order (?^). Irregularity in Mode, of tal). The Court will not, as a rule, interfere with (J) 5 Sim. 391. [k) 3 M. & Gr. 825. {I) Temperly v. Scott, 5 C. & P. 341. (»j) Wheeler v. Atkins, 5 Esp. 246. («) Hoive \. Brenton, 3 M. & R. 271 ; 8 B. & C. 765. (o) See as to this, Ord. LXV. r. 1 ; 1 Will. 4, c. 22, s. 9 (now repealed), set out in Appendix, post, p. 207. Trince v. Samo, 4 D. P. C. 5 ; Brunton V. Hardy, 10 W. R. 562. {p) Ridley v. Sutton, 1 H. & C. 741 ; 32 L. J. Ex. 122 ; 9 Jm-. N. S. 358 ; 7 L. T. G93 ; 11 W. R. 314; Curling v. Robertson, 8 Scott, N. R. 288 ; 2 D. & L. 307 ; 7 M. & G. 525 ; 13 L. J. C. P. 169 ; Beaufort v. Ashlurnham, 13 C. B. N. S. 598 ; 32 L. J. C. P. 97 ; 9 Jur. N. S. 822 ; 7 L. T. 710; 11 W. R. 267 ; Jewell v. Parr, 17 C. B. 636; 25 L. J. C. P. 179. USING THE DEPOSITIONS AT THE TRIAL. 201 the discretion of the master in allowing the costs occasioned by sending out counsel to act as commissioner abroad, but it used to be held that special circumstances should be shown ; so, also, to entitle a party to the costs of counsel's attendance on a commission abroad, it used to be held that special circumstances should be shown [q). Such is not now the practice (r). {q) Yglesias v. Royal Exchange Assurance Corp. L. R. 5 C. P. 141 ; 39 L. J. C. P. 173 ; 22 L. T. 269 ; 18 W. R. 381 ; Lecocq v. S. E. My. Co., 7 B. & S. 415 ; 14 L. T. 401 ; 14 W. R. 649. For the office of special examiner, a barrister was, and is, usually selected [Henderson v. Fhilipson, 17 Jur. 615) ; and now barristers usually attend as counsel on commis- sions and at special examinations abroad, unless the examination is one of little difficulty. As to allowing costs of a solicitor to attend an examination abroad, see Cornet v. Bempsey, 1 D. N. S. 422 ; 6 Jur. 86 ; Potter V. Mankin, L. R. 4 C. P. 76 ; 38 L. J. C. P. 130 ; 19 L. T. 383. (r) In Baddeley v. Bailey (W. N., (93) 56), Kekewich, J., said it was not the duty of solicitors to take examinations. In that case the applica- tion was to appoint a solicitor as special examiner to take the evidence of witnesses within the jurisdiction out of Court. One of the examiners of the Court was appointed. The expenses of only one counsel on each side will be allowed [Ealloivs v. Fernie, 16 W. R. 175). 203 APPENDIX A. STATUTES. 13 Geo. 3, c. 63, All Act for estalUshing certain Regulations for the letter Management of the Affairs of the East India Company, as well in India as in Europe. 40. And wLereas the provisions made by former laws for tlie Manner of hearing and determining in England offences committed in India procedure in have been found ineffectual, by reason of the difficulty of proving cases of in this kingdom matters done there : Be it further enacted by the indictments authority aforesaid that in all cases of indictments or informations ^."'^ informa- laid or exhibited in the said Court of King's Bench for mis- tions laid^m demeanour's or offences committed in India, it shall and may be t, ^ -^^^ ^ lawful for his Majesty's said Com-t, upon motion to be made on behalf of the prosecutor, or of the defendant or defendants, to award a writ or writs of mandamus, requiring the chief justice and judges of the said Supreme Court of Judicature for the time being, or judges of the Mayor's Court at Madras, Bombay or Bencoolen, as the case may require, who are hereby respectively authorized and required accordingly to hold a Coiu't with all convenient sj)eed for the examination of witnesses and receiving other proofs concerning the matters charged in such indictments or informations respectively ; and in the meantime to cause such public notice to be given of the holding of the said Court, and to issue such summons or other pro- cess as may be requisite for the attendance of witnesses, and of the agents or counsel of all or any of the j)arties respectively, and to adjourn from time to time as occasion may require ; and such examinations as aforesaid shall be then and there openly and publicly taken viva, voce in the said Court, upon the respective oaths of witnesses and the oaths of skilful interpreters, adminis- tered according to the forms of their several religions ; and shall, by some sworn officer of such Court, be reduced into one or more writing or writings on parchment, in case any duplicate or dupli- cates should be required by or on behalf of any of the parties interested, and shall be sent to his Majesty, in his Court of King's Bench, closed up, and under the seal of two or more of the judges of the said Court, and one or more of the said judges shall deliver the same to the agent or agents of the party or parties requiring the same ; which said agent or agents (or, in case of his or their 204 APPENDIX A. Writs of maudamus may be aTvarded by the Covirts'at Westminster "when the company commences suits in Law or equity, there for examinations of witnesses in India. deatli the person into whose hands the same shall come), shall deliver the same to one of the clerks in Court of his Majesty's Court of King's Bench, in the public office, and make oath that he received the same from the hands of one or more of the judges of such Court in India (or if such agent be dead, in what manner the same came into his hands) ; and that the same has not been ojiened or altered since he so received it (which said oath such clerk in Court is hereby authorized and required to administer) : And such depositions being duly taken and returned according to the true intent and meaning of this Act, shall be allowed and read, and shall be deemed as good and competent evidence as if such witness had been present and sworn and examined viva voce at any trial for such crimes or misdemeanours as aforesaid in his Majesty's said Court of King's Bench, any law or usage to the contrary not- withstanding ; and all parties concerned shall be entitled to take copies of such depositions at their own costs and charges. 44. And whereas his Majesty's subjects are liable to be defeated of their several rights, titles, debts, dues, demands, or suits for which they have cause arising in India against other subjects of his Majesty: now for i:)reventing such failure of justice, be it further enacted by the authoiity aforesaid, that when and as often as the said united company, or any person or persons whatsoever, shall commence and prosecute any action or suit in law or equity, for which cause hath arisen, or shall hereafter arise in India against any other person or persons whatever, in any of his Majesty's Courts at Westminster, it shall and may be lawful for such Coiu't respectively, upon motion there to be made, to provide and award such wiit or writs in the nature of a mandamus or commission as aforesaid to the chief justice and judges of the said Supreme Court of Judicature for the time being, or the judges of the Mayor's Court at Madras, Bombay, or Bencoolen, as the case may require, for the examination of witnesses as aforesaid ; and such examination, being duly returned, shall be allowed and read, and shall be deemed good and competent evidence at any trial or hearing between the parties in such cause or action, in the same manner in all respects as if the several directions hereinbefore prescribed and enacted in that behalf were again repeated (a). 1 Will. 4, c. 22. An Act to enahle Courts of Latv to order the exami'nattoti of Witnesses upon Interrogatories mid otherivise. [30th March 1831.] Whereas great difficulties and delays are often experienced, and sometimes a failure of justice takes place, in actions depending in Courts of law, by reason of the want of a competent power and authority in the said Coiu'ts to order and enforce the examination («) As to mandamus in cases where an offence has been committed by a person in the public service, and evidence is reqiiired, see 42 Geo. 3, c. 85, s. 2 ; R. v. Jones, 8 East, 31. STATUTES. ^05 of witnesses, wlien tlie same may be required, before tbe trial of a cause : And whereas by an act passed in tlie thirteenth year of the reign of his late Majesty king Greorge the third, intituled " xin Act 13 Geo. 3, for the establishing certain regulations for the better management c. 63. of the affaii's of the East India Comi^any, as well in India as in Europe," certain powers are given and pro\dsions made for the examination of witnesses in India in the cases therein mentioned ; and it is expedient to extend such powers and provisions : Be it therefore enacted hy the King's most excellent Majesty, hy and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present p)arliament assembled, and hy the authority of the same, that all and every the powers, authorities, j^rovisions, and matters Powers of the contained in the said recited Act, relating to the examination of recited Act, witnesses in India, shall be and the same are hereby extended to as to the ex- all colonies, islands, plantations, and jjlaces under the dominion of amination of his Majesty in foreign parts, and to the judges of the several fitnesses m Courts therein, and to all actions de25ending in any of his Majesty's f l^'i ^''^"j.r, Courts of law at Westminster, in what place or country soever the ^^ ea to the cause of action may have arisen, and whether the same may have -i ^^^\] "' arisen within the jiuisdiction of the Court to the judges whereof the actions in the writ or commission may be directed, or elsewhere, when it shaU. Courts at appear that the examination of witnesses under a writ or commis- ^Yestminste^ sion issued in pursuance of the authoritj' hereby given will be when ex- necessary or conducive to the due administration of justice in the amination by matter wherein such writ shall be apj^lied for. comniission 2. And be it further enacted, when any writ or commission shall ^^^^h appear issue under the authority of the said recited Act, or of the power necessary. herein-before given by this Act, the judge or judges to whom the Judges to same shall be directed shall have the like 2:)0wer to compel and en- whom the force the attendance and examination of witnesses as the Court commission whereof they are j udges does or may possess for that purpose in ^^ directed suits or causes depending in such Court. enipowered to 3. And be it further enacted, that the costs of every writ or com- ®^*o^';6 the mission to he issued under the authority of the said recited Act, or of ^^ en ance the power herein-before given by this Act, in any action at law depend- "' ing in either of the said Courts at Westminster, and of the proceedings Costs of writs thereon, shall he in the discretion of the Court issuing the same. ^. ^^ ^ 4. And he it further enacted, that it shall he lawful to and for each the^Cou^ of the said Courts at Westminster, and also the Court of Common Pleas ^^ °"'^ ' of the County Falatine of Lancaster, and the Court of Pleas of the Courts at County Palatine of Durham, and the several judges thereof, in every Westminster, action depending in such Court, upon the application of any of the -L'^^caster, parties to such suit, to order the examination on oath, upon interroga- ^ ^\ ^f^ tories or otherwise, before the master or the yrothonotary of the said examination^ Court, or other persori or persons to be named in such order, of any of mtnesses luitnesses luithin the jurisdiction of the Court luhere the action shall be within their depending, or to order a commission to issue for the examination of jurisdiction witnesses on oath at any pdace or places out of such jurisdiction, hy by an officer interrogatories or otherivise, and by the same or ariy subsequent order of the Court ; or orders to give all such directions touching the time, place, and or may order man7ier of such examination, as well luithin the jurisdiction of the ^ commission Court tuherein the action shall be depending as without, and all other matters and circumstances connected with such examinations, as may Pi^^P°?° o"^' appear reasonable and just, j'urisdStion. 206 APPENDIX A. Compelling attendance of witnesses, or production of documents. Disobedience to be deemed :i contempt of Court. Payment of expenses. Proviso as to production of documents. Prisoners may be removed by habeas corpus for examination. Examinations of witnesses to be taken upon oath. Persons giving false evidence to be deemed guilty of perjury. Persons ap- pointed for taking ex- aminations to report to the Court upon the conduct or absence of witnesses, if necessary. 5. And he it further enacted, that ivhen any rule or order shall he made fur the examination of tvitncsses within the jurisdiction of the Court ivherein the action shall he depending, hy authority of this Act, it shall be lawful for the Court, or any judge thereof, in and hy the first rule or order to he made in the matter, or any suhseq^uent rule or order, to command the attendance of any person to he named in such ride or order for the p)urpose of heing examined, or the production of any ivritings or other documents to he mentioned in such rule or order, and to direct the attendance of any such person to he at his own place of abode, or elsewhere, if necessary or convenient so to do; and the toilful disobedience of any such rule or order shcdl be deemed a con- tempt of Court, and proceedings may be thereupon had hy attachment [the judge' s order heing made a rule of Court before or at the time of the application for an attachment), if, in addition to the service of the rule or order, an apj^ointmeyit of the time and place of attendance in obedience thereto, signed hy the person or persons appointed to take the examination, or by one or more of such persons, shall he also served together ivith or after the service of such rule or order : Provided always, that every person tvhose attendance shall he so required shall be entitled to the like conduct money and payment for expenses and loss of time as upon attendance at a trial : Provided also, that no person, shall be compelled to jjroduce, under any such rule or order, any luriting or other document that he would not be compellable to produce at a trial of the cause. 6. And be it fixrther enacted, that it shall be lawful for any sheriff, gaoler, or other officer having the custody of any prisoner, to take such prisoner for examination under the authority of this Act, by virtue of a wiit of habeas corpus to be issued for that pur- pose, which writ shall and may be issued by any Coiu-t or judge under such circumstances and in such manner as such Coiu-t or judge may now by law issue the writ commonly called a wi'it of habeas corpus ad testificandum. 7. And be it further enacted, that it shall be lawful for all and every person authorized to take the examination of witnesses by any rule, order, writ, or commission made or issued in pursuance of "this Act, and he and they are hereby authorized and required, to take all such examinations upon the oath of the witnesses, or affirmation in cases where affirmation is allowed by law instead of oath, to be administered by the person so authorized, or by any judge of the Coiu't wherein the action shall be depending; and if upon such oath or affii-mation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall and may be indicted and prosecuted for such offence in the county wherein such evidence shall be given, or in the county of Middlesex if the evidence be given out of England. 8. And he it further enacted, that it shall and may he lawful for the 7naster, prothonotary , or any other pjersons to he named in any such rule or order as aforesaid for taking any examination in pursuance thereof, and he and they are hereby required, to make, if need be, a special report to the Court touching such examination, and the conduct or absence of any ivitnrss or other person thereon or relating thereto ; and the Court is herihy authorized to institute such proceedings and make such order and orders upon such report as justice may require^ STATUTES. 207 and as may he instituted and made in any case of contempt of the Court. 9. And be it further enacted, that the costs of every rule or order to Costs of the he made for the examination of ivitnesses tinder any commission or order for ^ othenuise hy virtue of this Act, and of the. proceedings thereupon, shall examination {except in the case hereinhefore provided for) he costs in the cause, ^^J V® rnade tinJess othenuise directed either hy the judge making such rule or order, ^^^ ^^^ ® or hy the judge hefore whom the cause may he tried, or hy the Court, 10. And he it further enacted, that no examination or deposition, to Restriction he taken hy virtue of this Act shall he read in evidence at any trial as to the tuithout the consent of the party against ivhom the same may he offered, reading of unless it shall appear to the satisfaction of the judge that the examinant examinations or deponent is heyond the jurisdiction of the Court, or dead, or unable or depositions from permanent sickness or other permanent infirmity to attend the ^^ .^^ .? ^' trial ; in all or any of ivhich cases the examinations and dep)ositions „,,f _. certified under the hand of the commissioners, master, prothonotary , or other person taking the same, shall and may, loithout proof of the signature to such certificate, he received and read in evidence, saving all just exceptions. 11. Provided always, and he it further enacted, that no order shall Proviso as he made in pursuance of this Act hy a single judge of the Court of to judges of Pleas of the said County Palatine of Durham, ivho shall not also be a Durham. judge of one of the said Courts at Westminster. [Note. — The repealed sections are printed in italics. They have been included because many of the earlier authorities cited are decided upon them, and it is therefore necessary to refer to the j)recise words.] 3 & 4 Vict. c. 65. An Act to improve the Practice and extend the Jurisdiction of the High Court of Admiralty of England. 7. In any suit depending in tlie said High. Court of Admiralty, Evidence may the Court (if it shall think fit) may summon before it and examine he taken viva or cause to be examined witnesses by word of mouth, and either ^"^'^ '^^ o^&a. before or after examination by deposition, or before a commissioner, Court. as hereinafter mentioned ; and notes of such evidence shall be taken down in writing by the judge or registrar, or by such other person or persons, and in such manner, as the judge of the said Court shall direct. 8. The said Court may, if it shall think fit, in any such suit issue Evidence may one or more special commissions to some j^erson, being an advocate ^c taken viva of the said High Court of Admiralty of not less than seven years' *'"''* before a standing, or a barrister-at-law of not less than seven years' standing, commissioner, to take evidence by word of mouth upon oath, which every such commissioner is hereby empowered to administer at such time or times, and in such manner, order and course, and under such limitations and restrictions, and to transmit the same to the registry of the said Court in such form and manner as in and by the commis- sion shall be directed; and such commissioner shall be attended, and 208 APPENDIX A. Attendance of ■witnesses, and production of papers, may be compelled by subpoena. the witnesses shall be examined, cross-examined and re-examined by the parties, their counsel, proctors, or agents, if such parties or either of them shall think fit so to do ; and such commission shall, if need be, make a sjiecial report to the Coui't touching such examination, and the conduct or absence of any witness or other person thereon or relating thereto ; and the said High Coui't of Admiralty is hereby authorized to institute such proceedings and make such order or orders iijion such report as justice may require, and as may be instituted or made in any case of contem23t of the said Court. [Note.— By virtue of Ord. XXXYII. r. 5 of the R. S. C. 1883, the commission m.ay now be directed to any person the Court may think fit to appoint.] 9. It shall be lawful in any suit depending in the said Court of Admiralty for the judge of the said Court, or for any such com- missioner appointed in piu-suance of this Act, to require the attendance of any witnesses, and the production of any deeds, evidences, books, or writings, by "WTit to be issued by such judge or commissioner, in such and the same form, or as nearly as may be, as that in which a writ of suhpcena ad testificandum, or of subpoena duces tecum, is now issued by her Majesty's Court of Queen's Bench at Westminster ; and every person disobeying any such wiit so to be issued by the said judge or commissioner shall be considered as in contempt of the said High Coui't of Admiralty, and may be punished for such contempt in the said Court. Powers of 13 Geo. 3, c. 63, ex- tended to all actions in the Courts at; Dublin when examination of witnesses by commission sball appear necessary. 3 & 4 Vict. c. 105. All Act . . . for extending the Remedies of Creditors against the Property of Debtors, and for the further Amendment of the Law and the better Advancement of Justice in Ireland. [Recital of 13 Geo. 3, c. 63; 1 Will. 4, c. 22.] 66. All and every the powers, authorities, provisions and matters contained in the said recited Act of the thirteenth year of the reign of his said late Majesty King George the Third, relating to the examination of ■witnesses in India, shall be and the same are, with reference to all actions in any of her Majesty's Courts of law at Dublin, hereby extended to all Colonies, islands, plantations and places under the dominion of her Majesty in foreign parts, and to the judges of the several Courts therein, and to all actions depending in any of her Majesty's Courts of law at Dublin, in what place or county soever the cause of action may have arisen, and whether the same may have arisen ■within the jurisdiction of the Court to the judges whereof the -wiit or commission may be directed, or elsewhere, when it shall appear that the examination of -witnesses under a writ or commission issued in pursuance of the authority hereby given will be necessary or conducive to the due administration of justice in the matter wherein such writ shall be applied for. STATUTES. 209 6 & 7 Vict. c. 82. An Act for extending to Scotland and Ireland the Power of the Lord High Chancellor to grant Commissions to enable Persons to take and receive Affidavits ; and for amending the Law relating to Commissions for the Examination of Witnesses. [22nd August 1843. J 5. And whereas there are at present no means of compelling the For corn- attendance of persons to be examined under any commission for pcUiug' the the examination of witnesses issued by the Courts of law or equity attendance in England or Ireland, or by the Courts of law in Scotland, to be of witnesses, executed in a part of the realm subject to different laws from that in which such commissions are issued, and great inconvenience may arise by reason thereof ; be it therefore enacted. That if any person, after being served with a written notice to attend any commissioner or commissioners apj^ointed to execute any such commission for the examination of witnesses as aforesaid (such notice being signed by the commissioner or commissioners, and sjjecifying the time and place of attendance), shall refuse or fail to appear and be examined under such commission, such refusal or failui-e to appear shall be certified by such commissioner or commissioners, and it shall there- upon be competent, to or on behalf of any party suing out such commission, to apply to any of the superior Courts of law in that part of the kingdom within which such commission is to be exe- cuted, or any one of the judges of such Courts, for a rule or order to compel the person or persons so refusing or failing as aforesaid to appear before such commissioner or commissioners, and to be examined under such commission, and it shall be lawful for the Coui't or judge to whom such application shall be made by rule or order to command the attendance and examination of any jjerson to be named or the production of any writings or documents to be mentioned in such rule or order. 6. And be it enacted, that upon the service of such rule or order Punishment upon the person named therein, if he or she shall not appear before of persons such commissioner or commissioners as aforesaid for examination, disobeying or to produce the writings or documents mentioned in such rule or rule or order order, the disobedience to such rule or order shall, if the same shall to ajjpear or happen in England or in Ireland, render the person disobeying subj ect ^^ produce and liable to such pains and penalties as he or she would be subj ect ^rit^^^oS or and liable to by reason of disobedience to a writ of subpoena in '^o'^^V^^?'''"'^ England or in Ireland, and if such disobedience shall haj^pen in ^®1^^^'® • Scotland it shall be competent to the Lord Ordinary on the bills, upon an application made to him by or on behalf of any party suing out such commission, and upon proof of such disobedience made before him, to direct the issue of letters of second diligence, according to the forms of the law of Scotland, to be used against the person disobeying such rule or order. 7. Provided always, and be enacted, That every person whose For payment attendance shall be so required shall be entitled to the like conduct of witnesses, money and payment of expences and for loss of time as for and &c. upon attendance at any trial in a Court of law ; and that no person shall be compelled to produce under such rule or order any writing W. V 210 APPENDIX A. or otlier dociiment that he or she would not be compellable to pro- duce at a trial, nor to attend on more than two consecutive days, to be named in such rule or order. Commission dispensed with, and examiners empowered to administer oaths. 17 & 18 Vict. c. 78. An Act to appoint Persons to administer Oaths, and to substitute Stamps i7i lieu of Fees, and for other Purposes, in the High Court of Admiralty of Encjland. 6. It shall not be necessary to sue out any commission for the examination of any witnesses in any matter, suit or proceeding in the said Cotu-t ; and any examiner appointed by any order of the said Court shall have the like power of administering oaths as commissioners now have under commissions issued by the Coui't for the examination of witnesses. Court may isi^ue commis- sions or give orders for examination of witnesses abroad, or who are nuable to attend. 20 & 21 Vict. c. 77. An Act to amend the Law relating to Prohate and Letters of Administration in England. 32. Provided, that where a witness in any such matter is out of the jurisdiction of the Coiu't, or where, by reason of his illness or otherwise, the Court shall not think fit to enforce the attendance of the witness in open Coiu-t, it shall b"e lawful for the Court to order a commission to issue for the examination of such witness on oath upon interrogatories or otherwise, or if the witness be within the jurisdiction of the Court, to order the examination of such witness on oath upon interrogatories or otherwise before any officer of the said Court, or other person to be named in such order for the purpose, and all the jsowers given to the Courts of law at West- minster by the Acts of the thirteenth year of King George the Third, chapter 63, and of the first year of King William the Foui'th, chapter 22, for enabling the Courts of law at Westminster to issue commissions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such examination, and all the provisions of the said Acts, and of any other Acts for enforcing or otherwise applicable to such examination, and the witnesses examined shall extend and be applicable to the said Court of Probate and to the examination of witnesses under the commissions and orders of the said Court, and to the witnesses examined, as if such Court were one of the Courts of law at Westminster, and the matter before it were an action pending in such Court. STATUTES. 211 20 & 21 Vict. c. 85. An Act to amend the Laio relating to Divorce and Matrimonial Causes iii England. 47. Provided that wliere a witness is out of tlie jiuisdiction of Court may tlie Court, or wliere, by reason of liis illness or from other circum- issue commis- stances, tlie Court shall not think fit to enforce the attendance of sions or give the witness in open Court, it shall bo lawful for the Court to order orders for a commission to issue for the examination of such witness on oath examination upon interrogatories or otherwise, or if the witness be within the ^^ witnesses jurisdiction of the Court, to order the examination of such witness abroad, or on oath upon interrogatories or otherwise, before any officer of the ^Ji^ ^ ° said Court, or other person to be named in such order for the puri^ose ; and all the powers given to the Courts of law at West- minster by the Acts of the thirteenth year of King George the Third, chapter sixty-three, and of the first year of King WUHani the Fourth, chapter twenty-two, for enabling the Courts of law at West- minster to issue commissions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such examination, and all the provisions of the said Acts, and of any other Acts for enforcing or otherwise applicable to such examination and the witnesses examined, shall extend and be applicable to the Court and to the examination of witnesses under the commissions and orders of the said Court, and to the witnesses examined as if such Court were one of the Courts of law at West- minster, and the matter before it were an action pending in such Court. 48. The rules of evidence observed in the superior Courts of Rules of common law at Westminster shall be applicable to and observed evidence La in the trial of all questions of fact in the Coui't. Common Law Courts to be observed. 22 Vict. o. 20. An Act to provide for taking Evidence in Sttits and Proceedings pending before Tribunals in Her Majestif s Dominions in places out of the Jurisdiction of such Tribunals. [19tli April 1859.] Whereas it is expedient that facilities be afforded for taking evidence in or in relation to actions, suits, and proceedings pending before tribunals in her Majesty's dominions in places in such dominions out of the jurisdiction of such tribunals : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. Where upon an application for this purpose it is made to Order for appear to any Court or judge having authority under this Act that examination any Court or tribunal of competent jurisdiction in her Majesty's of witnesses domimons has duly authorized, by commission, order, or other out of the 2 jurisdiction. 212. APPENDIX A. in relation to any suit pending before any tribunal in her Majesty's possessions. Penalty on persons giving false evidence. Payment of expenses. Power to persons to refuse to answer questions to criminate himself, or to produce documents. Certain Courts and judges to have autho- rity under this Act. Power to judges to frame rules, &c. for giving effect to i^ro- visions of this Act. process, the obtaining the testimony in or in relation to any action, suit, or proceeding pending in or before such Court or tribunal of any witness or witnesses out of the jurisdiction of such Court or tribunal, and within the jurisdiction of such first-mentioned Court, or of the Court to which such judge belongs, or of such judge, it shall be lawful for such Court or jtidge to order the examination before the person or persons appointed, and in manner and form directed by such commission, order, or other process as aforesaid, of such witness or witnesses accordingly ; and it shall be lawful for the said Court or judge by the same order, or for such Court or judge, or any other judge having authority under this Act, by any subsequent order, to command the attendance of any person to be named in such order for the purpose of being examined, or the production of any writings or other documents to be mentioned in such order, and to give all such dii'ections as to the time, place, and manner of such examination, and all other matters connected therewith, as may appear reasonable and just, and any such order may be enforced, and any disobedience thereof punished, in like manner as in case of an order made by such Court or judge in a cause depending in such Court or before such judge. 2. Every person examined as a witness under any such commis- sion, order, or other process as aforesaid, who shall upon such examination wilfully and corruptly give any false evidence, shall be deemed and taken to be guilty of jDerjury. 3. Provided always, that every person whose attendance shall be so ordered shall be entitled to the like conduct money, and payment for expenses and loss of time, as upon attendance at a trial. 4. Provided also, that every person examined under any such commission, order, or other j)rocess as aforesaid, shall have the like right to refuse to answer questions tending to criminate himself, and other questions which a witness in any cause pending in the Court by which, or by a judge whereof, or before the judge by whom the order for examination was made, would be entitled to ; and that no person shall be compelled to produ.ce under any such order as aforesaid any writing or other document that he would not be compellable to produce at a trial of such a cause. 5. Her Majesty's Superior Coiuis of Common Law at West- minster and in Dublin respectively, the Court of Session in Scot- land, and any Supreme Court in any of her Majesty's colonies or possessions abroad, and any judge of any such Court, and every judge in any such colony or possession who, by any order of her Majesty in Council, may be appointed for this piu-pose, shall respectively be Courts and judges having authority under this Act. 6. It shall be lawful for the Lord Chancellor of Great Britain, with the assistance of two of the judges of the Courts of Common Law at Westminster, so far as relates to England, and for the Lord Chancellor of L'eland, with the assistance of two of the judges of the Courts of Common Law at Dublin, so far as relates to Ireland, and for two of the judges of the Court of Session, so far as relates to Scotland, and for the chief or only judge of the Supreme Court in any of her Majesty's colonies or possessions abroad, so far as relates to such colony or possession, to frame such rules and orders as shall be necessary or proper for giving effect to the jirovisions of this Act, and regulating the procedure under the same. STATUTES. 213 22 & 23 Vict. c. 21, s. 16. 16. All the poiuers, autlwrities and provisions contained in an Act Powers of passed in the first year of the reign of King William the Fourth, 1 Will. 4, intituled "An Act to enable Courts of law to order the examination of c. 22, «S:c., as witnesses upon inter rogato7-ies" and of the Act of the thirteenth year of *? examina- King George the Third, recited therein, as to the examination of tuit- ^^""^ °^ '"'^*" nesses luithin and out of the jurisdiction of the superior Courts of com- ^|^'^S'''> ^^^ mon law at Westminster, and as to the attendance of witnesses, produc- 47 ^o j'aq tion of documents, costs thereof, and other matters relating to such ^^ '-^- (^°g examinations, and all the powers, authorities, and provisions contained Yid c 76 in the forty-sixth, forty -seventh, forty-eigldh, and forty -ninth sections extended to of the Common Law Procedure Act, 1854, are hereby extended to all revenue pro- suits and proceedings on the revenue side of the said Court of Exchequer; ceedings. and if upon any examination under this enactment any person wilfully Persons and corruptly give any false evidence, he shall he deemed and taken to giving false be guilty of perjury, and shall and may be indicted and prosecuted for evidence such offence in the county where such evidence is given, or in the county guilty of of Middlesex if the evidence he given out of England. perjury. [Note. — This section is repealed by the Statute Law Eevision Act, 1892.] 22 & 23 Vict. c. 63. An Act to afford facilities for the more certain ascertat7ime)it of the Law administered in one part of her Majesty'' s dominions tvhen pleaded in the Courts of another j^art thereof. [13tli August 1859.] Whereas great improvement in the administration of the laiu would ensue if facilities ivere afforded for more certainly ascertaining the law administered in one part of her Majesty'' s dominions when pleaded in the Courts of another part thereof : Be it therefore enacted by the Queen^s most excellent Majesty, by and with the advice and consent of the Lords spiritual and tempioral, and Com7nons, in this present parliament assembled, and by the authority of the same, as folloivs : [Note. — The preamble is repealed.] 1. If in any action depending in any Court within her Majesty's Courts in dominions, it shall be the opinion of such Court that it is necessary one part of or expedient for the proper disposal of such action to ascertain the her Majesty's law api^licable to the facts of the case as administered in any other dominions part of her Majesty's dominions on any point on which the law of ™^y remit a such other part of her Majesty's dominions is different from that case for the in which the Court is situate, it shall be competent to the Court opinion in law in which such action may depend to direct a case to be jirepared ° ''*' .?"^ ^'^ setting forth the facts, as these may be ascertained by verdict of -nart thereof a jury or other mode competent, or may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the Court for that purpose in the event of the jiarties not agreeing, and upon such case being approved of by such Court or a judge thereof, they shall settle the questions of law arising 214 APPENDIX A. Opinion to be authenticated and certified copy given. Opinion to be applied by the Court making the remit. Her Majesty in Council or House of Lords on appeal may adopt or re- ject opinion. Interpretation of teims. out of tlie same on •wMcli they desire to have tlie opinion of another Court, and shall pronounce an order remitting the same, together ■with the case, to the Coiu-t in such other part of her Majesty's dominions, being one of the supeiior Courts thereof, whose opinion is desired upon the law administered by them as applicable to the facts set forth in such case, and desiring them to pronounce their opinion on the questions submitted to them in the terms of the Act ; and it shall be competent to any of the parties to the action to present a petition to the Court whose opinion is to be obtained, jDraying such last-mentioned Court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their oj^inion without hearing parties or counsel ; and the Court to which such petition shall be presented shall, if they think fit, ai^i^oint an early day for hearing parties or theii' cormsel on such case, and shall thereafter pronounce their opinion upon the ques- tions of law as administered by them which are submitted to them by the Court ; and in order to theu' pronouncing such opinion they shall be entitled to take such further procedure thereupon as to them shall seem proper. 2. Upon such opinion being jironounced, a copy thereof, certified by an oiBcer of such Coiu-t, shall be given to each of the parties to the action by whom the same shall be required, and shall be deemed and held to contain a correct record of such opinion. 3. It shall be competent to any of the parties to the action, after having obtained such certified copy of such opinion, to lodge the same Tvith an officer of the Court in which -the action may be depending, who may have the official charge thereof, together with a notice of motion, setting forth that the party will, on a certain day named in such notice, move the Coiu't to apply the opinion contained in such certified copy thereof to the facts set forth in the case herein-before specified, and the said Coiu't shall thereupon apply such opinion to such facts, in the same manner as if the same had been pronounced by such Court itself upon a case reserved for opinion of the Court, or upon special verdict of a jiuy : or the said last-mentioned Court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be submitted to the JTuy with the other facts of the case as evidence, or con- clusive evidence as the Court may think fit, of the foreign law therein stated, and the said opinion shall be so submitted to the 4. In the event of an appeal to her Majesty in Council or to the House of Lords in any such action, it shall be competent to bring under the review of her Majesty in Council or of the House of Lords the opinion pronormced as aforesaid by any Court whose judgments are reviewable by her Majesty in Council or by the House of Lords, and her Majesty in Council or that House may respectively adopt or reject such opinion of any Court whose judgments are respectively reviewable by them, as the same shall ajDjaear to them to be well founded or not in law. 5. In the construction of this Act, the word "action" shall include every judicial jiroceediug instituted in any Court, civil, criminal, or ecclesiastical; and the words " suj^erior Courts " shall include, in England, the superior Courts of law at Westminster, the Lord Chancellor, the Lords Justices, the Master of the EoUs or any STATUTES. 215 Vice Chancellor, the judge of the Court of Admii-alty, the judge ordinary of the Court for Divorce and Matrimonial Causes, and the judge of the Court of Probate; in Scotland, the High Court of Justiciary, and the Court of Session acting by either of its divi- sions ; in Ireland, the siiperior Courts of law at Dublin, the Master of the Rolls, and the judge of the Admiralty Coiu't; and in any other part of her Majesty's dominions, the superior Coui'ts of law or equity therein. The Judicature Act, 1873, s. 23. 23. The jurisdiction by this Act transferred to the said High Rules as to Coui-t of Justice and the said Coiu't of Appeal respectively shall be exercise of exercised (so far as regards procedure and practice) in the manner jurisdiction, provided by this Act, or by such rules and orders of Court as may be made pursuant to this Act ; and where no special jirovision is contained in this Act or in any such rules or orders of Court with reference thereto, it shall be exercised as nearly as may be in the same manner as the same might have been exercised by the respective Courts from which such jurisdiction shall have been transferred, or by any of such Courts. [Note.— See also Jud. Act, 1875, s. 21, infra; Ord. LXXII. r. 2, post, p. 226. As to the effect of the section upon the practice in the Probate, Divorce and Admiralty Division, see ante, Part I. Ch. 3.] The Judicature Act, 1875, s. 21. 21. Save as by the principal Act or this Act, or by any Eules of Provision for Court, may be otherwise provided, all forms and methods of pro- saving of cedure which at the commencement of this Act were in force in any existing of the Courts whose jurisdiction is by the pirincipal Act or this Act procedure of transferred to the said High Court and to the said Court of Appeal Courts when respectively, under or by virtue of any law, custom, general order, ^.°* ^°f °°'.'-i or rules whatsoever, and which are not inconsistent with the fjf- ^a ^ principal Act or this Act or with any Rules of Court, may continue j,,,iL ^t °^ to be used and practised, in the said High Court of Justice and the Court —in said Court of Appeal respectively, in such and the like cases, and substitution for such and the like purposes, as those to which they would have for 36 & 37 been apiplicable in the respective Courts of which the jurisdiction is Vict. c. 66, 60 transferred, if the principal Act and this Act had not passed. s. 73. [Note.— See also Jud. Act, 1873, s. 23, sujn-a ; Ord. LXXII. r. 2, post, p. 226. As to the effect of the section upon the practice in the Probate, Divorce and Admiralty Division, see ante, Part I. Ch. 3.] 216 APPENDIX A. Short title. Power to Courts to nominate examiner in civil proceeding Power in criminal proceedings to nominate judge or magistrate to take deposi- tions. Application of 22 Vict. c. 20, as to conduct money, &c., to proceedings under this Act. Ajnendment of 22 Vict. c. 20, as to costs. 48 & 49 Vict. c. 74. An Act to amend the Laio relating to taking Evideiice hy Com- mission in India and the Colonies, and elsewhere in Her Majesty^ s Dominions. [14th August 1885.] Be it enacted by the Queen's most excellent Majesty, by and with, the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Evidence by Commission Act, 1885. 2. Where in any civil proceeding in any Court of competent jurisdiction an order for the examination of any witness or person has been made, and a commission, mandamus, order, or request for the examination of such witness or person is addressed to any Court, or to any judge of a Court, in India or the Colonies, or elsewhere in Her Majesty's dominions, beyond the jurisdiction of the Court ordering the examination, it shall be lawful for such Coiirt, or the chief judge thereof, or such judge, to nominate some fit person to take such examination, and any deposition or examination taken before an examiner so nominated shall be admissible in evidence to the same extent as if it had been taken by or before such Court or judge. 3. "WTaere in any criminal proceeding a mandamus or order for the examination of any witness or person is addi-essed to any Court, or to any judge of a Court, in India or the Colonies, or elsewhere in her Majesty's dominions, beyond the jurisdiction of the Court ordering the examination, it shall be lawful for such Court, or the chief judge thereof, or such judge, to nominate any judge of such Court, or any judge of an inferior Coiu't, or magistrate within the jurisdiction of such first-mentioned Court, to take the examination of such witness or person, and any deposition or examination so taken shall bo admissible in evidence to the same extent as if it had been taken by or before the Court or judge to whom the mandamus or order was addressed. 4. The pro\'isions of the Act passed in the twenty-second year of her Majesty, chajjter twenty, intituled "An Act to provide for taking evidence in suits and proceedings pending before tribunals in her Majesty's dominions in i^laces out of the jurisdiction of such tribunals" (which may be cited as the Evidence by Commission Act, 1859), as amended by this Act, shall apply to proceedings under this Act. 5. The power to make rules conferred by section six of the Evidence by Commission Act, 1859, shall be deemed to include a power to make rules with regard to all costs of or incidental to the examination of any witness or person, including the remuneration of the examiner, if any, whether the examination be ordered pur- suant to that Act or under this or any other Act for the time being in force relating to the examination of witnesses beyond the jurisdiction of the Coiu't ordering the examination. STATUTES. 217 6. When pursuant to any such, commission, mandamus, order, Oath or or request as in this Act referred to any witness or person is to be affirmation examined in anyplace beyond the jurisdiction of the Court ordering of witness, the examination, such witness or jierson may be examined on oath, affirmation, or otherwise, according to the law in force in the place where the examination is taken, and any deposition or examination so taken shall be as effectual for all purposes as if the witness or person had been examined on oath before a person duly authorized to administer an oath in the Court ordering the examination. 218 APPENDIX B, KULES AND ORDERS. EULES OF THE SUPEEME COUET, 1883. InTKODUCTION to EuLES of SUPREIME CoURT, 1883. The following Orders and Eules may be cited as "The Rules of tlie Supreme Coui-t, 1883"; they shall come into operation on the twenty-fourth day of October, 1883, and shall also apply, so far as may be practicable (unless otherwise expressly provided) to all proceedings on or after that day in all causes and matters then l^ending. The Orders and Pailes in Appendix 0. hereto are hereby annulled, and the following Orders and Eules shall stand in lieu thereof. [Note. — For App. O., see post, p. 226. Ord. LXXII. r. 2, provides : "Where no other provision is made by the Acts or these Eules, the present procedure and practice remain in force." See Jud. Act, 1873, s. 23, ante, p. 215 ; and Jud. Act, 1875, s. 21, ante, p. 215.] Order II. 8. Every writ of summons, and also (unless by any statute or by these Eules it is otherwise pro'\4ded) every other writ, shall bear date on the day on which the same shall be issued, and shall be tested in the name of the Lord Chancellor, or, if the office of Lord Chancellor shall be vacant, in the name of the Lord Chief Justice of England. Order XXXVII. I. Evidence Generally. 1. In the absence of any agreement in writing between the solicitors of all parties, and subject to these Eules, the witnesses at the trial of any action or at any assessment of damages shall be examined viva voce and in ojien Court, but the Coiu-t or a judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any RULES AND ORDERS. 219 •witness may be read at the hearing or trial, on such conditions as the Court or judge may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner ; provided that, where it appears to the Court or judge that the other party bond fide, desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not bo made authorizing the evidence of such witness to be given by affidavit. 2. In default actions in rem, and in references in Admiralty actions, evidence may be given by affidavit. 3. An order to read evidence taken in another cause or matter shall not be necessary, but such evidence may, saving all just excejitions, be read on ex imrte applications by leave of the Court or a judge, to be obtained at the time of making any such apjilica- tion, and in any other case upon the party desiring to use such evidence giving two days' previous notice to the other parties of his intention to read such evidence. 4. Office copies of all writs, records, pleadings, and documents filed in the High Coiu't of Justice shall be admissible in evidence in all causes and matters and between all persons or parties, to the same extent as the original would be admissible. II. Examination of Witnesses. 5. The Court or a judge may, in any cause or matter where it shall appear necessary for the pui'poses of justice, make any order for the examination upon oath before the Court or judge or any officer of the Court, or any other person and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct. 6. An order for a commission to examine witnesses shall be in the Form No. 36, in Appendix K., and the writ of commission shall be in the Form No. 13 in Appendix J., with such variations as circumstances may require. 6a. If in any case the Court or a judge shall so order, there shall be issued a request to examine witnesses in Keu of a commission. The Forms 1 and 2 in the Appendix hereto shall be used for such order and request respectively, with such variation as circum- stances may require, and may be cited as Forms 37a and 37b in the Appendix. 7. The Court or a judge may in any cause or matter at any stage of the proceedings order the attendance of any person for the pur- l^ose of producing any writings or other documents named in the order which the Court or jiidge may think fit to be jJi'oduced : Provided that no person shall be compelled to introduce under any such order any wiiting or other document which he could not be compelled to produce at the hearing or trial. 8. Any person wilfully disobepng any oi'der requiring his attendance for the purpose of being examined or jDroducing any document shall be deemed guilty of contemi^t of Court, and may bo dealt with accordingly. 9. Any person required to attend for the pui'posc of being 220 APPENDIX B. examined or of producing any document, shall be entitled to tlie like conduct money and payment for expenses and loss of time as upon attendance at a trial in Court. 10. Where any witness or person is ordered to be examined before any officer of the Court, or before any person appointed for the purpose, the person taking the examination shall be fui'nished by the J^arty on whose application the order was made with a copy of the writ and pleadings, if any, or with a copy of the documents necessary to infomi the person taking the examination of the questions at issue between the parties. 11. The examination shall take place in the presence of the parties, their counsel, soHcitors, or agents, and the witnesses shall be subject to cross-examination and re-examination. 12. The depositions taken before an officer of the Court, or before any other person appointed to take the examination, shall be taken down in writing by or in the presence of the examiner, not ordinarily by question and answer, but so as to represent as nearly as maybe the statement of the witness, and when completed shall be read over to the witness and signed by him in the presence of the parties, or such of them as may think fit to attend. If the witness shall refuse to sign the depositions, the examiner shall sign the same. The examiner may put down any particular question or answer if there should appear any special reason for doing so, and may put any question to the witness as to the meaning of any answer, or as to any matter arising in the course of the examina- tion. Any questions which may be objected to shall be taken down by the examiner in the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement in the depositions, but he shall not have power to decide upon the materiality or relevancy of any question. 13. If any i^erson duly summoned by sithpcena to attend for examination shall refuse to attend, or if, having attended, he shall refuse to be sworn or to answer any lawful question, a certificate of such refusal, signed by the examiner, shall be filed at the Central Office, and thereupon the party requiring the attendance of the witness may apply to the Court or a judge ex parte or on notice for an order directing the witness to attend, or to be sworn, or to answer any question, as the case may be. 14. If any witness shall object to any question which may be pt;t to him before an examiner, the question so jiut, and the objection of the witness thereto, shall be taken down by the examiner, and transmitted bj' him to the Central Office to be there filed, and the validity of the objection shall be decided by the Court or a judge. 15. In any case under the two last preceding Eules, the Court or a judge shall have power to order the witness to pay any costs occasioned by his refusal or objection. 16. When the examination of any witness before any examiner shall have been concluded, the original depositions, authenticated by the signatuie of the examiner, shall be transmitted by him to the Central Office, and there filed. 17. The person taking the examination of a witness imder these Kules may, and if need bo shall, make a special report to the Court touching such examination and the conduct or absence of any RULES AND OEDERS. 221 witness or other person thereon, and the Court or a judge may clirect sucli proceedings and make such order as upon the report they or he may think just. 18. Except where by this order otherwise provided, or directed by the Court or a judge, no deiDosition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may be offered, unless the Court or judge is satisfied that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the dejoositions certified under the hand of the person taking the examination shall be admissible in evidence saving all j ust exceptions without proof of the signature to such certificate. 19. Any officer of the Court, or other person directed to take the examination of any witness or person, may administer oaths. 20. Any party in any cause or matter may by subpoena ad tesiificandum or duces tecum require the attendance of any witness before an officer of the Court, or other person a2:)pointed to take the examination, for the purj)ose of using his evidence upon any proceeding in the cause or matter in like manner as such witness would be bound to attend and be examined at the hearing or trial ; and any party or witness having made an affidavit to be used or which shall be used on any proceeding in the cause or matter shall be bound on being served with such subpoena to attend before such oHicer or person for cross-examination. 21. Evidence taken subsequently to the hearing or trial of any cause or matter shall be taken as nearly as may be in the same manner as evidence taken at or with a view to a trial. 22. The practice with reference to the examination, cross- examination, and re-examination of witnesses at a trial shall extend and be applicable to evidence taken in any cause or matter at any stage. 23. The practice of the Court with respect to evidence at a trial, when applied to evidence to be taken before an officer of the Court or other person in any cause or matter after the hearing or trial, shall be subject to any special directions which may be given in any case. 24. No aflB.davit or deposition filed or made before issue joined in any cause or matter shall without special leave of the Court or a judge bo received at the hearing or trial thereof, unless within one month after issue joined, or within such longer time as may be allowed by special leave of the Court or a judge, notice in writing shall have been given by the party intending to use the same to the opposite party of his intention in that behalf. 25. All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter. III. Subpoena. 26. Where it is intended to sue out a subpoena, a prcecipe for that purpose, in the Form No. 21, in Appendix G., and containing the name or firm and the place of business or residence of the 222 APPENDIX B. solicitor intending to sue out tlie same, and, where such solicitor is agent only, then also the name or firm and place of business or residence of the principal solicitor, shall in all cases be delivered and filed at the Central Office. 27. A writ of suhpmna shall be in one of the Forms 1 to 7 in Appendix J. , with such variations as circumstances may require. 28. Where a suhpmna is required for the attendance of a witness for the purpose of proceedings in chambers, such suhjxxna shall issue from the Central Office upon a note from the judge. 29. Every siihpcena other than a suhpoena duces tecum shall contain three names where necessary or required, but may contain any larger number of names. 30. No more than three persons shall be included in one suhpcena duces tecum, and the party suing out the same shall be at liberty to sue out a suhpoena for each person if it shall be deemed necessary or desirable. 31. In the interval between the suing out and service of any suhpoena the party siiing out the same may correct any error in the names of parties or witnesses, and may have the wi'it re-sealed upon leaving a corrected pjrcecipe of such suhpoena marked with the words "altered and re-sealed," and signed with the name and addi'ess of the solicitor suing out the same. 32. The service of a suhpoena shall be effected by delivering a copy of the writ, and of the indorsement thereon, and at the same time producing the original wiit. 33. Affidavits filed for the purpose of proving the service of a suhjjoena upon any defendant must state when, where, and how, and by whom, such service was effected. 34. The service of any suhp)oena shall be of no validity if not made within twelve weeks after the teste of the writ. rV". Perpetuating Testimony, 35. Any person who would under the cii'cumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the hajipening of such event, may commence an action to perpetuate any testimony wliich may be material for establishing such right or claim. 36. In all actions to perpetuate testimony touching any honour, title, dignity, or office, or any other matter or thing in which the Crown may have any estate or interest, the Attorney- General may be made a defendant, and in all proceedings in which the deposi- tions taken in any such action, in which the Attorney- General was so made a defendant, may be offered in evidence, such depositions shall be admissible notwithstanding any objection to such deposi- tions upon the ground that the Crown was not a party to the action in which such depositions were taken. 37. "Witnesses shall not be examined to perpetuate testimony unless an action has been commenced for the purpose. 38. No action to perpetuate the testimony of witnesses shall bo Bet down for trial. RULES AND ORDERS. 223 V. Examiners of the Court. 39. The examination of any witness or person ordered to be taken under Rules 1 and 5 of tliis Order shall, in any cause or matter in any Di\dsion of the High Court, imless the Court or a judge other- wise du'ect, be taken before one of the examiners of the Court ; provided that nothing in this Rule shall interfere with the practice as to examinations in Admii-alty actions. 40. A sufficient number of barristers-at-law, of not less than three years' standing, shall be from time to time appointed by the Lord Chancellor to act as examiners of the Court for a period not exceeding five years, and shall be at any time removable by the same authority. 41. The examinations to be taken before the examiners of the Court shall be distributed among them in rotation by the first clerk to the registrars of the Chancer j' Division, and in his absence by the second clerk, and in the absence of the first and second clerks by such of the other clerks to the registrars as the senior registrar may determine. 42. The clerk in the preceding rule mentioned shall be responsible for making the distribution according to regular and just rotation and in such manner as to keep secret from all persons the rota or succession of examiners of the Court ; and it shall be his duty to keep a record thereof with proper indexes and dates. 43. The party prosecuting the order or his solicitor shall produce such order or a duplicate thereof to the clerk in Rule 41 mentioned, who shall, except in the case provided for in Rule 49, add at the foot thereof a memorandum specifying the name of the examiner of the Court in rotation before whom the examination is appointed to be taken ; and the order or duplicate shall be left by the party prosecutiag the same, or his solicitor, with the examiner so ap- pointed, and shall be a sufficient authority for him to proceed with the examination. 44. Upon production of the order indorsed with his name the examiner of the Court shall give an appointment in writing speci- fying the place and time (within not more than seven days) at which, subject to any application from the parties, the examination shall be taken ; and the party j^rosecutuig the order or his solicitor shall within tweuty-foiu' hours, or such shorter time (if any) as may be mentioned in the order, give notice of the appointment to all parties. 45. In determining the place and time at which an examination shall be taken, the examiner shall have regard to the convenience of the witnesses or persons to be examined and all the circiimstances of the case ; and he shall proceed with such examination at the place and time appointed, and subject to such adjoiu'nment as he shall think necessary or just, continue the same de die in diem. 46. The examiner may, with the consent in writing of all parties, take the examination of any witnesses or persons in addition to those named or provided for in the order, and shall annex such consent to the original depositions. 47. Upon the completion of an examination taken before an examiner of the Court, he shall indorse the original depositions with a note, authenticated by his signature, certifying the number 224 APPENDIX B. of hours or days (as th.e case may be) exclusively employed there- upon, and the fees received in respect thereof. 48. In case any examiner of the Court before whom according to the rotation any examuiation is to be taken, shall be engaged as counsel in the cause or matter to which such examination relates, or shall fi'om Ulness or any other cause be unable or decline to take such examination, the same shall be assigned by the clerk in Eule 41 mentioned to another examiner of the Court according to the rotation aforesaid : Provided that it shall be the duty of any examiner before whom any examination is pending to decline any other examination in any case where the acceptance thereof is likely to create delay or inconvenience in the taking of any exami- nation before him. 49. The Court or a judge may, if they or he think fit, direct or transfer an examination to any one in particular of the examiners of the Court. 50. The Coui-t or a judge may, on the application of an examiner, order the payment to him by the party prosecuting the order of the fees and expenses payable to him on account of any examination, but without prejudice to any question on the taxation of costs as to the party by whom the costs of such examination should eventually be borne. 51. The examiners of the Coiirt shall be entitled to charge the fees mentioned in the Appendix hereto, in substitution for the fees heretofore allowed (a). 52. Every examiner of the Court, and every other person ap- pointed to take an examination under this Order, shall indorse on the depositions, when he transmits them to the Central Office, a statement of the hours within which the examination began and ended. Order XXXYin. 1. Upon any motion, petition, or summons evidence may be given by affidavit ; but the Court or a judge may, on the appli- cation of either party, order the attendance for cross-examination of the person making any such affidavit. («) The Appendix of the Rules of the Supreme Court contains the following provision as to fees : — Examiners' Fees. £ g^ ^, 1 . Upon giving an appointment to take an examination 1 1 2. For the examiner's clerk 2 6 3. For each hour or part of an hour occupied in an examination within three miles from the principal entrance of the Royal Courts of Justice 10 6 4. For each day of six hours or part of a day occupied in an examination beyond three miles from the principal entrance of the Royal Courts of Justice 5 5 5. For the examiner's clerk, where an examination occupies more than three hoiu-s (in addition to fee No. 2) per day 2 6 EULES AND OKDERS. 225 3. Affidavits sliall be confined to sucli facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. Order LIV. 12. In the Queen's Bench Division a master, and in the Probate Divorce and Admiralty Division a registrar, may transact all such business and exercise all such authority and jimsdiction in respect of the same, as under the Acts or these Eules may be transacted or exercised by a j udge at chambers, except in respect of the following proceedings and matters ; that is to say, — (a.) All matters relating to criminal proceedings or to the liberty of the subj ect : (6.) Granting leave for service out of the jui'isdiction of a writ, or notice of a writ, of summons : (c.) The removal of actions from one division or judge to another division or judge : (d.) The settlement of issues, except by consent : (e.) Inspection and other orders under Order L., Eules 1 to 5 : If.) Appeals from district registrars : (g.) Prohibitions : {h.) Injunctions and other orders under sub-section 8 of section 25 of the Principal Act : (i.) Awarding of costs, other than the costs of or relating to any proceeding before a master, or registrar, and other than any costs which by these Rules, or by the Order of the Court or a judge, he is authorized to award : (A'.) Reviewing taxation of costs : {I.) Orders absolute for charging stocks, funds, annuities, or share of dividends, or annual proceeds thereof : (m.) Acknowledgments of married women. 12a. A master of the Supreme Court may exercise all the juris- diction and powers conferred upon the Court or a judge by the Arbitration Act, 1889. Order LXVIII. 1. Subject to the provisions of this Order, nothing in these Rules, save as expressly provided, shall affect the procedure or practice in any of the following causes or matters : — (a.) Criminal proceedings ; {b. ) Proceedings on the Crown side of the Queen's Bench Division ; (c.) Proceedings on the Revenue side of the Queen's Bench Division ; {(1.) Proceedings for Divorce or other Matrimonial Causes. \V. Q 226 APPENDIX B. Oeder LXXII. 2. "Wien no other provision is made by the Acts or these Eules, the present procedui'e and practice remain in force. [Note.— See Jud. Act, 1873, s. 23, ante, p. 215 ; Jud. Act, 1875, s. 21, ante, p. 215 ; Introduction to Rules of the Supreme Com-t, 1883, ante, p. 218 ; Appendix 0. to Rules of the Suj)reme Court, 1883, infra. See also Part I., Chap. III. as to the effect of this Rule on the practice in Admiralty actions.] APPENDIX 0. TO EULES OF SUPEEME COUET, 1883. (1.) The several Eules, Orders, and Forms contained in the Schedule and Appendix to the Supreme Court of Judica- ture Act (1873) Amendment Act. (2.) The additional Eules to the Judicature Act, 1875. (3.) The Eules of the Supreme Coiu-t, December 1875. (4.) The Eules of the Supreme Coui't, February 1876. (5.) The Eules of the Supreme Court, June 1876. f6.) The Eules of the Sui)reme Court, December 1876. (7.) The Eules of the Supreme Court, May 1877. (8.) The Eules of the Suin-eme Court (Costs). (9.) The Eules of the Supreme Court, June 1877. (10.) The Eules of the Supreme Court, November 1878. (11.) The Eules of the Supreme Court, March 1879. (12.) The Eules of the Supreme Court, December 1879. (13.) The Eules of the Supreme Cornet, April 1880. n4.) The Eules of the Supreme Coiirt, May 1880. (15.) Eules of the Supreme Court, May 1883. (16.) The Eegulas Generales of Hilary Term 1853, dated 11th January 1853 (except the Eules as to juries). (17.) Eegulre Generales, as to Pleading made by the Judges in pui'suance of the Common Law Procedui-e Act, 1852, dated the 10th of May 1853. (18.) The Eules under the Gth section of the Debtors Act, 1869. (19.) The Chancery Consolidated General Orders of 1860. (20.) The Chancery Orders dated — March 6th, 1860. March 20th, 1860. February 1st, 1861. February 5th, 1861. July 13th, 1861. January 1st, 1862. May 16th, 1862. May 27th, 1865. May 7th, 1866. November 22nd, 1866. April 17th, 1867. RULES AND ORDERS. 287 (21.) The Chancery Eegulations dated August 8th, 1857, and March 15th, 1860, (22.) The Rules, Orders, and Regulations for the High Court of Admiralty of England, 1859 and 1871. (Signed) Selborne, C. Coleridge, C.J. W. B. Brett, M.E. James Hajstnen. Nath. Lixdley, L.J. Edw. Fry, L.J. Henry Cotton, L.J. C. E. Pollock, B. (Signed in respect of Rules as to H. Manisty, J. sittings of Court of Ajjpeal.) [Note. — See Introduction to Rules of the Supreme Court, 1883, ante, p. 218 ; Ord. LXXII. Rule 2, siqjra.] EULES OF THE SUPEEME COUET, 1893. Order XXX. 1. In every cause or matter, not specially assigned to the Chancery Division, one general summons for dii'ections may be taken out at any time by any party, and shall be returnable in not less than foui- days. The summons shall be in the Form No. 3 (a). Appendix K., with such variations as circumstances may require, and shall be addressed to and served upon all such parties to the cause or matter as may be affected thereby. [Note.— For Eorm No. 3 (a) of App. K., see post, p. 234.] 2. Upon the hearing of the summons the Court or a judge shall, so far as practicable, make such order as may be just with respect to all the interlocutory proceedings to be taken in the action before the trial, and as to the costs thereof, and more particularly with respect to the following matters : — Pleading, particulars, admis- sions, discovery, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, place and mode of trial. Such order shall be in the Form No. 4 (a), Appendix K., with such variations as circiunstances may require. 3. No affidavit shall be made or used on the hearing of the said summons except by special order of the Court or a judge. 4. On the hearing of the summons any party to whom the sum- mons is addressed shall, so far as practicable, apply for any order or directions as to any interlocutory matter or thing in the action which he may desire. [Note. — For the Rule 7 of this Order, added August, 1894, see post, p. 233.} q2 APPENDIX B. CENTEAL OFFICE PEACTICE EULES. Letters of Bequest. 13a. Before any letter of request is sealed in tlie-writ department the solicitor applj'ing for such, letter of request must file a written undertaking in the words and to the effect following : — \_Title of cause or matter.'] "I [or we] hereby undertake to be responsible for all expenses incurred by her Majesty's Secretary of State for [Foreign Affairs, or the Colonies, as the case may he] in respect of the execution of the letter of request issued herein on the day of , 18 — , and on receiving due notification of the amount of such expenses I undertake to pay the same to the senior master." (Approved by the Lord Chief Justice and the President of the Probate, Divorce, and Admiralty Division. ) EULES AND OEDEES/or Her Majestifs Court of Probate, made under 20 ^- 21 Vict. c. 11, a7id 21 ^ 22 Vict. c. 95, in respect of Contentious Business. Order for the immediate Examination of a Witness. E. 116. Application for an order for the immediate examination of a witness who is within the j urisdiction of the Court is to be made to the judge, or to one of the registrars in his absence, by summons, or if on behalf of a plaintiff proceeding in default of appearance of the parties cited or warned in the cause without summons, before one of the registi'ars, who will direct the order to issue, or refer the application to the judge, as he may think fit. E. 117. Such witness shall be examined vied voce, unless other- wise dii'ected, before a person to be agreed upon by the parties in the cause, or to be nominated by the judge or by the registrar to whom the application for the order is made. E. 118. The parties entitled to cross-examine the witness to be examined under such an order, shall have four clear days' notice of the time and place appointed for the examination, unless the judge or the registrar to whom the application is made for the order shall dii'ect a shorter notice to be given. Commissions and Requisitions for Examination of Witnesses. E. 119. Application for a commission or requisition to examine witnesses who are out of the jurisdiction of the Court, is to be made by summons, or if on behalf of a plaintiff proceeding in default of appearance without summons, before one of the registrars, who will order such commission or requisition to issue, or refer the applica- tion to the judge, as he may think fit. E. 120. A commission or requisition for examination of witnesses EULES AND ORDERS. 229 may be addressed to any j^erson to be nominated and agreed upon by the parties in the cause, and approved of by one of the registrars, or for want of agreement to be nominated by the registrar to whom the api^lication is made. !R. 121. The commission or requisition is to be cb-awn up and pre- pared by the party applying for the same, and a copy thereof shall be delivered to the parties entitled to cross-examine the witnesses to be examined thereunder two clear days before such commission or requisition shall issue, under seal of the Coui-t, and they or either of them may apply to one of the registrars by summons to alter or amend the commission or requisition, or to insert any special provision therein, and the registrar shall make an order on such application, or refer the matter to the judge. E. 122. Any of the parties to the cause may apjily to one of the registrars by summons for leave to j oin in a commission or requisi- tion, and to examine witnesses thereunder; and the registrar to whom the application is made may direct the necessary alterations to be made in the commission or requisition for that pui'pose, and settle the same, or refer the application to the judge. R. 123. After the issuing of a summons to show cause why a party to the cause should not have leave to join in a commission or requisition, such commission or requisition shall not issue under seal without the direction of one of the registrars. EULES AND EEGULATIONS, 26M December, 1865, /or Her Majesty's Court for Divorce and Matrimonial Causes. Order for the immediate Examination of a Witness, E. 129. Api^lication for an order for the immediate examination of a witness who is within the jurisdiction of the Coiu't is to be made to the judge ordinary, or to one of the registrars in his absence, by summons, or if on behalf of a petitioner i:)roceeding in default of appearance of the parties cited in the cause without summons, before one of the registrars, who will direct the order to issue, or refer the application to the judge ordinary, as he may think fit. [See also Rules 181 to 184, j^oit, p. 231.] E. 130. Such witness shall be examined viva voce, unless other- wise directed, before a person to be agreed upon by the parties in the cause, or to be nominated by the judge ordinary or by the registrars to whom the application for the order is made. E. 131. The parties entitled to cross-examine the witness to be examined under such an order shall have four clear days' notice of the time and place appointed for the examination, unless the judge ordinary or the registrars to whom the application is made for the order shall direct a shorter notice to be given. APPENDIX B. Commissions and Eequisitions for Examination of Witnesses. E. 132. Application for a commission or requisition to exam^ine witnesses •n'lio are out of the jurisdiction of the Court is to be made by summons, or if on behalf of a petitioner proceeding in default of appearance ^nthout summons, before one of the registrars, who will order such commission or requisition to issue, or refer the applica- tion to the judge ordinary, as he may think fit. E. 133. A commission or requisition for examination of witnesses may be addressed to any person to be nominated and agreed upon by the parties in the cause, and approved of by the registrar, or for want of agreement to be nominated by the registrar to whom the application is made. E. 134. The commission or requisition is to be di'awn up and pre- pared by the party applying for the same, and a copy thereof shall be delivered to the parties entitled to cross-examine the witnesses to be examined thereunder two clear days before such commission or requisition shall issue, under seal of the Coru't, and they or either of them may apply to one of the registrars by summons to alter or amend the commission or requisition, or to insert any special provision therein, and the registrar shall make an order on such application, or refer the matter to the judge ordinary. E. 135. Any of the parties to the cause may apply to one of the registrars by summons for leave to join in a commission or requisi- tion, and to examine witnesses thereunder ; and the registrar to whom the ajsplication is made may direct the necessary alterations to be made in the commission or requisition for that purpose, and settle the same, or refer the application to the judge ordinary. E. 136. After the issuing of a summons to show cause why a party to the cause should not have leave to join in a commission or requisition, such commission or requisition shall not issue under seal without the direction of one of the registrars. E. 137. In case husband or wife shall apply for and obtain an order or a commission or requisition for the examination of wit- nesses, the wife shall be at liberty, without any special order for that purpose, to apply by summons to one of the registrars to ascertain and report to the Court what is a sufficient sum of money to be paid or secured to the wife to cover her expenses in attending at the examination of such witnesses in pursuance of such order, or in virtue of such commission or requisition, and such sum of money shall be paid or secured before such order or such commis- sion or requisition shall issue fi'om the registry, unless the judge ordinary or one of the registrars in his absence shall otherwise direct. [See Eule 198, ««/;•«.] Summonses. E. 160. A summons may be taken out by any person in any matter or suit depending in the Court of Divorce or Matrimonial Causes, provided there is no rule or j^ractice requiiing a different mode of proceeding. E. 161. The name of the cause or matter, and of the agent taking out the summons is to be entered in the summons book, and a true RULES AND ORDERS. 231 copy of the summons is to be served on the party summoned one clear day at least before the summons is retiu'nable and before seven o'clock p.m. On Satui'days the copy of the summons is to be served before two o'clock p.m. E. 162. On the day and at the hour named in the summons the party taking out the same is to present himself with the original summons at the judge's chambers, or elsewhere appointed for hearing the same. E. 163. Both parties will be heard by the judge ordinary, who wUl make such order as he may think fit, and a minute of such order will be made by one of the registrars in the summons book. [See Rules 181 to 184, infra.'] E. 164. If the party summoned do not appear after the lapse of half-an-hour from the time named in the summons, the party taking out the summons shall be at liberty to go before the judge ordinary, who will thereupon make such order as he may think fit. E. 165. An attendance on behalf of the l^arty summoned for the space of half-an-hour, if the party taking out the summons do not during such time appear, will be deemed sufficient, and bar the party taking out the summons from the right to go before the judge ordinary on that occasion. E. 166. If a formal order is desired, the same may be had on the application of either party, and for that purpose the original sum- mons, or the copy served on the party summoned, must be filed in the registry. An order will thereupon be drawn up, and delivered to the person filing such summons or co])j. E. 167. If a summons is brought to the registry, with consent to an order indorsed thereon, signed by the party summoned, or by his proctor, solicitor, or attorney, an order will be di'awn up with- out the necessity of going before the judge ordinary ; provided that the order sought is in the opinion of the registrar one which, under the cii'cumstances, would be made by the judge ordinary. E. 168. The same rules and regulations shall, so far as applicable, be observed in resj^ect to a summons which may be heard and dis- posed of by the registrars. ADDITIONAL AND AMENDED EULES. 23rd Februari/, 1875. E. 181. All summonses heretofore heard by the registrars of the principal registry of the Court of Probate, in the absence of the judge ordinary, shall hereafter be heard before one or more of the registrars at the principal registry of that Court during the period appointed for the sittings of the Coru't at Westminster, as well as in the judge's absence. E. 182. All rules and regulations in respect to summonses now heard before the judge ordinary in chambers at Westminster shall, so far as the same arc aiiiilicablc, bo observed in respect of the APPENDIX B. summonses heard before one or more of the registrars at the principal registry. [See Rules 160 to 168, supra.'] E. 183. The registrar before whom the summons is heard "will direct such order to issue as he shall think fit, or refer the matter at once to the judge ordinary. E. 184. Any person heard on the summons objecting to the order so issued under the direction of the registrar may, subject to any order as to costs, apj^ly to the judge ordinary on summons to rescind or vary the same. ADDITIONAI. EULE. Uth July, 1875. E. 198. The registrar to whom a commission or requisition for examination of witnesses is referred for settlement, on application on behalf of the wife, may proceed at once and without summons to ascertain what is a sufficient sum to be paid or secured to her to cover her expenses in attending at the examination of such witnesses, and shall thereupon issue an order upon the husband to pay or secure the said sum withia a time to be fixed in such order. [See Eule 137, supra.'] THE ADMIEALTY COUET EULES, 1859(a). 'Written Depositions. 87. Written depositions may he taJcen either before an examiner of the Court, or before a commissioner appointtd under a commission, 88. Witnesses may he p>roduc€d for examination hefore an examiner within three miles of the General Post Office, London; hut the proctor producing him shall, twenty-four hours at least before the tuitness is examined, serve a notice upon the adverse proctor, stating the title and number of the cause, the name and address of the ivitness, the articles of the pleadings to rvhich he is to he examined, the name of the examiner, the name of the interpreter, if any, and the day, hour, and place appointed for the examination. {a) Repealed by the Rules of the Supreme Court, 1883. See App. 0., p. 226. These Rules, however, though repealed, embody the former Adm^iralty practice, which still exists, except in so far as it is inconsistent with the Rules of the Supreme Court. See ante, Part I., Chap. III., p. 83. RULES AND OEDEES. 233 ' 89. No ivitness shall be produced either before an examiner, or before a commissioner, at a greater distance than three miles from the Oeneral Post Office, London, sane by order of the Court, 90. The examination-in-chief, cross-examination, and re-exami- nation of tvitnesses examined before an examiner or a commissioner, shall be conducted either by counsel or by the proctors or the substitutes ; or the examination-in-chief may, on the application of the proctor producing the witnesses, be conducted by the examiner or commissioner himself. In any case the examiner or commissioner may put any questions to the tvitnesses for the purpose of eliciting the truth as to him shall seem ft. 91. The fees of one counsel may be allowed by the registrar on taxation for attending the examination of witnesses before an examiner or commissioner. 92. When the examination of any witness is completed, the examiner or commissioner shall read over the deposition to the ivitness, ivho shall thereupon sign the same ; and the examiner or coynmissioner shall certify at the foot thereof that the depositions have been read over audibly and distinctly to the ivitness, and that he has acknowledged the same to be true. 93. If a ivitness refuse to sign his deposition, the examiner or the commissioner shall certify at the foot of the depiosition that the witness has so refused, and that the deposition is in accordance with the evidence given by the ivitness ; and the deposition of the ivitness may thereupon be used at the hearing of the cause. 94. The judge may, on the application of either proctor in the cause, but at the expense in the first instance of the party on whose behalf the appjlication is made, direct the evidence of the witnesses to be taken down by a shorthand writer or reporter appointed by the Court, who shall be previously sworn faithfully to report the evidence ; and a transcrijit of the shorthand writer^s or reporter's notes, certified by him to be correct, shall be admitted to prove the oral evidence of the witnesses. 95. When the examinations of the witnesses have been completed, the examiner or commissioner shall file the depositions of the witnesses in the registry, with a special return setting forth the whole of his proceedings. EULES OF THE SUPEEME COUET OF AUGUST, 1894. Order XXX. 7. On the hearing of the summons, the Court or a judge may- order that evidence of any particular fact, to be specified in the order, shall be given by statement on oath of information and belief, or by production of documents or entries in books, or by copies of documents or entries or otherwise as the Coiu't or judge may direct. 234 APPENDIX C. FORMS AND PRECEDENTS. 1. — Summons in the Q,. B. D. for Leave to take Evidence on Commission or before a Special Examiner. [7/ the "applicant is desirous of including other matters in the smmnons, he must employ the Form 3a in Appendix K. to the B. 8. C, 1893. Similarly, if such a summons has once been issued, and the necessity for a commission becomes subsequently appjurent, he micst apply under the original summons " by two clear days' notice to the other party, stating the grounds of the appMcation " (o). \_Tlie Form 3a in Appendix K. to the R. S. €'., 1893, is as folloivs : — ] 189—. A. No. . In tlie High Court of Justice, Division. Between A. B. . . . Plaintiff, and CD.. . . Defendant. Let all the parties concerned attend Master in Chambers at the Central Office, Royal Courts of Justice, Strand, London, on day the day of 18 , at o'clock in the noon, on the hearing of an application on the part of to show cause why an order for directions should not be made in this action as foUows : — Pleadings . Particulars . Admissions . Discovery . Interrogatories . Inspection of documents . Inspection of real or personal property . Commissions . {a) Ord. XXX. r. 5, E. S. C. 1893. FORMS AND PRECEDENTS. 235 Examination of witnesses . Place of trial . Mode of trial . Any other interlocutory matter or thing . Dated the day of This summons was taken out by , solicitor for To [Note. — As the application sJiould not he made till after issue joined, this Form will probably be seldom used.'] [If no summons for directions has been issued or is desired^ the following Form may he used: — ] \_Heading as before.'] Let all parties concerned attend the Master in Chambers, Central Office, Eoyal Courts of Justice, Strand, London, on day the day of 18 , at o'clock in the noon, on the hearing of an application on the part of the for an order that a commission do issue for the examination of witnesses ujDon interrogatories at [or that letters of request do issue for the examination of witnesses at ujjon interrogatories (or viva voce)] l_or that a special examiner be appointed and the examination of witnesses at be taken before him viva voce] on behalf of the , and that the trial of this action be stayed until the dejiosi tions of the said witnesses be filed. Dated the day of 18 . This summons was taken out by of , solicitor for the To the and to Messrs. , his solicitors or agents. 2. — Summons for Leave to take Evidence on Commission in Divorce and Matrimonial Causes. 189—. No. . In the High Court of Justice, Probate, Divorce and Admiralty Division. IDivorce.] A. B. against C. B. Let the petitioner A. B. or her solicitor attend the Registrar in Chambers at the Divorce Eegistry of the High Court of Justice, Somerset House, Strand, on day the day of at o'clock in the noon, to show cause why a commission should not issue [directed to D. E. of {h)] for the examina- tion of [F. G. and others as (6)] witnesses to be produced on the (b) It is not imperative that these words should be inserted in the Bximinons. 236 APPENDIX C. part of C. B., tlie respondent, and the hearing of tlie cause stayed till its return. [Judged Signature.'] [Stamps.] Dated the day of 18 . This summons was taken out by H. I., of , solicitor for , the respondent. To J. E. &c. 3.— The like in the Mayor's Court. In the Mayor's Court, London. Between A. B. . . . Plaintiff, and CD. . . . Defendant. Take notice, I shall apply at the Mayor's Coiu-t on day the day of 18 , at o'clock in the noon, for an order that a commission do issue for the examination of witnesses at upon inteiTogatories \_or viva vocel [_or that letters of request do issue for the examination of witnesses at upon interrogatories {or viva voce)'] on behalf of the , and that the trial of this action be stayed until the depositions of the said witnesses be filed. Dated this day of 18 . Yours, &c., A. B., Plaintiff's [or Defendant's] solicitor. To Mr. Defendant's [or Plaintiff's] solicitor (c). 4. — Affidavit in support of Application to Examine "Witnesses out of the Jurisdiction. In the High Court of Justice, 189 — . No. . Division. Between A. B. . . . Plaintiff, and CD.. . . Defendant. I make oath and say as follows : — 1. I am a clerk in the employment of Messrs. , who are the solicitors to the in this action [or I am the plaintiff or the defendant or the solicitor to the plaintiff or defendant] and I have the management thereof. (c) There is no time fixed within which this summons must be made returnable. As, however, it must be supported by affidavit, it is well to name a time reasonably sufficient to enable the other party to have answered the affidavit by the hearing. FOKMS AND PRECEDENTS. 237 2. The action is brought for and the main issues between the parties are [Jiere state the issues shortly, or, if there are pleadings, let'the ivhole parugraiih run : I refer to the pleadings for a statement of the issues to be tried herein]. 3. Issue was joined in the action on . [//" issue has not been joined, state reasons ^vhtj the ordinary rule is to he departed from and the order made earlier.'] 4. I am advised and verily believe that the following, among others, are material and necessary witnesses on behalf of the , namely, E. F., Q-. H., and I. J. [or if the names are not known : I am advised . . . that there are material and necessary witnesses on behalf of the now resident at whose names I do not at present know and cannot at present ascertain, because . . .] (d). 5. The evidence of the witnesses in the last jDaragraph mentioned is material for the following reasons [state tliem shortly, as : E. F. was present at a material conversation between the parties ; G. H. was present when the matters complained of in the action occurred ; I. J. was in the employment of the plaintiff in and has knowledge of the matters in dispute]. I am advised and verily believe that there are also other material and necessary witnesses resident in whose names I am at present unable to give. [^N. B. — This last sentence is only necessary ivhere some of the proposed tuitnesses have already been mentioned hy name.'] 6. The said E. F., G. H., I. J., and the further witnesses men- tioned in the last paragraph hereof, are at present residing at and it is practically imjjossible [see ante, p. 37] for the to produce them at the trial, for the following reasons [state them, such as : that the witnesses have been asked to attend and have refused, or that they reside at a great distance and that the expense of bringing them over would be unduly heavy, or that they are over seventy years of age, or that they are too ill to attend. In the latter cases the affidavit of a medical man will also be required] (e). 7. I am advised and verily beheve that the cannot safely proceed to trial without these witnesses, and that it is necessary, for the piu'poses of justice, that their evidence should be taken on commission [or before a special examiner], 8. It is intended to take the examination [add "upon interro- gatories," if such be the case] before of (/), or failing him, before of , and the Court is asked to appoint the said persons to act in the alternative. Sworn, &c. {cl) If it is impracticable to give the names, they may be dispensed with, but the fact must be made clear and the order will probably direct them to be furnished within a reasonable time : ante, p. 27. {c) If a plaintiff desires to have his own evidence taken on commission, the reasons set out in this paragraph must be very strong : ante, pp. 23 and 37. (/) It is not unusual to appoint as special examiner or commissioner the English consul or vice-consul residing in the place where the examination is to take place. These gentlemen are now permitted by the Foreign Office to accept the position. 238 APPENDIX C. 5.— Affidavit in support of Application where tlie proposed Evidence is purely formal. \_The affidavit luill he the same ivith the exception of paragraphs 5 and 6, which luill run as follows : — ] 5. The evidence of tlie said witness is required for the purpose of . . . Instate the purpose as "proving the receipt of a notice, dated the day of , a copy of which is now produced to me and marked ," or "proving the handwiiting of to the document of mentioned in the pleadings herein." If necessary, add the reason why the witness is in a position to give the proposed evidence]. 6. The said witness resides at . If the is obliged to bring the said to England for the purposes of the trial the expense incurred will be considerable, and great inconvenience will also be caused to the said witness (/). 6. — Affidavit where the Application is to take Evidence de bene esse and is made Ex parte. \_The affidavit will he the same as in Form 4 except that, if issue has not heen joined, paragraph 3 may he omitted entirely, and that paragraph 6 luill run as follows : — ] 6. The said witnesses are at present at . I am informed by a letter now produced to me and marked [o?- by one who is intimately acquainted with the said E. F. and G. H.] and I verily believe that the said E. F. and G. H. are dangerously ill, that there is no chance of their being able to attend the trial, and that unless their evidence is taken within the next hours the said E. P. and G. H. will not be in a condition in which they can give evidence intelligibly [_or without grave danger to health], [or I am informed by , who is the of the said E. F. and G. H., and intimately acquainted with them, and I verily believe, that thej' are over seventy years of age, that they cannot in any event be brought over to attend the trial, and that there is grave danger, owing to the state of health of the said E. F. and G. H., that their evidence cannot be taken at all unless within the next hours {g). (/) As to the distinction between the evidence necessary to support an application for formal evidence and that necessary to support other applications, see ante, at p. 37. As to the power of obtaining such evidence without a commission, see Ord. XXX. r. 7, ante, p. 233. (ff) See ante, p. 62. The aflBdavit must state not only "behef," but grounds for the belief. If the behef is founded on information received from a third person, the appUcation must be supported by an affidavit of the third person. If there is time to produce the affidavit of a medical man, it should be forthcoming. FORMS AND PEECEDENTS. 7. — Order for Examination of Witnesses within the Jurisdiction. ' {_This is the Form No. 35 in Appendix K. to the E. S. C, 1883.] IHeading as in Form 1.] Upon hearing the solicitors on both sides, and upon reading the affidavit of , filed herein [the day of > 18 , and] It is ordered that a witness on behalf of the be ex- amined viva voce [on oath or affirmation] before one of the examiners of the Court or before a master [or before , esquire, special examiner], the . solicitor or agent giving to the solicitor or agent notice in writing of the time and jDlace where the examination is to take place. And it is further ordered that the examination so taken be filed in the Central Office of the Supreme Court of Judicature, and that an office copy or copies thereof may be read and given in evidence on the trial of this cause, saving all just exceptions, without any fm'ther proof of the absence of the said witness than the affidavit of the solicitor or agent of the party using the same, as to his beUef , and that the costs of this ai^plication be costs in the action. Dated the day of , 18 . ^^39 8. — Order for the Appointment of a Special Examiner to take Evidence abroad. IThis is the Form No. 37c in Appendix K. to the R. S. C, 1883, and has heen framed in pursuance of Ord. XLII. r. 33, which gives to the masters power to prescribe modified or additional forms for the purpose of the Central Office.'] [^Heading as in Form 1.] Upon hearing the solicitors on both sides, and upon reading the affidavit of , It is ordered that , [o7' failing him (/;)], be aijpointed [h) These words are not in the Foi-m No. 37c. Alternative examiners may, however, be appointed (see London Bank of Mexico v. Hart, L. E. 6 Eq. p. 467), and it is generally wise to make such an appointment. The form of Order in that case was as follows : — " Form of Order made in London Bank of Mexico v. Kart (6 Eq. 467). " Upon motion this day made, &c., it is ordered that A. B. and C. D., of Bogota, in the United States of Colombia; E. P. (Englishman), Her Majesty's Charge d'Aflfaires to the United States of Colombia ; G. H. and I. K., and L. M. (an Englishman), all of Bogota, be appointed examiners for taking the examination of witnesses residing at Bogota, or elsewhere, in the United States of Colombia ; and it is ordered that A. B. and E. E. do alone act as such examiners, unless they or either of them is by illness or other sufficient cause incapacitated from acting ; and in case the said A. B. is so incapacitated from acting, C. D. is to act in his place as one 240 APPENDIX C. as sjiecial examiner for the pui'pose of taking the examination, cross-examination, and re-exam^ination viva voce, on oath or affir- mation, of ■witnesses on the part of the at afore- said : The solicitors to give to the solicitors days' notice in writing of the date on which they propose to send out this order to for execution, and that days after the service of such notice the solicitors for the plaintiffs and defendants re- spectively do exchange the names of their agents at , to whom notice relating to the examination of the said witnesses may be sent : And that days (exclusive of Sunday) prior to the ex- amination of any witness hereunder notice of such examination shall be given by the agent of the party on whose behalf such vdtness is to be examined to the agent of the other party (unless such notice be dispensed with) : And that the depositions when so taken, together with any documents referred to therein, or certified copies of such documents, or of extracts therefrom, be transmitted by the examiner, under seal, to the senior master of the Supreme Coui-t of Judicature, Eoyal Courts of Justice, London, on or before the day of next, or such further or other day as may be ordered, there to be filed in the proper office : And that either party be at liberty to read and give such depositions in evidence on the trial of this action, saving all just exceptions : And that the trial of this action be stayed until the filing of such depositions : And that the costs of and incident to this application and such examination be costs in the action ( 7; ). Dated the day of , 18 . 9. — Another Form of Order for a Special Examination (i). \_Htading as in Form 1.] Upon hearing counsel for the parties, and upon reading the affidavits of and of , this Coui-t doth hereby appoint of such examiners ; but if the said C. D. is so incapacitated as aforesaid, then the said G. H. is to act as one of such examiners ; and if the said G. H. is so incapacitated as aforesaid, then the said I. K. is to act as one of such examiners ; and in case the said E. E. is so incapacitated as afore- said, then the said L. M. is to act as one of such examiners." (A) A clause similar to that in the previous order, providing what shall be sufficient proof of a witness's absence, may be added if desired. In Admiralty and Probate causes the heading' should be as in Form 15, post, p. 249, and for the words, " to the senior master . . . London," the words, " to the Kegistry of the said Division of the said Court" should be substituted. (t) This form of order was settled, in 1891, by a leading member of the Chancery bar, and was adopted by Mr. Justice Stirling in an action then pending before him. It has been frequently used since both in the Chancery and Queen's Bench Divisions, and is inserted here by the kind permission of the firm of solicitors upon whose instructions it was settled. FORMS AND PRECEDENTS. 241 A. B. and C. D. (A-) of in the province of , and E. F. and O. H., both of in the dominion of , examiners for the .purpose of taking the examination, cross-examination, and re- examination viva voce on oath or affirmation or otherwise (in accord- ance with the religion of each witness) of M. N. and 0. P. and other witnesses on behalf of the plaintiffs and defendants in this action in or elsewhere in the dominion of : And it is ordered that the solicitors of the defendants give to the solicitors of the plaintiffs seven days' notice in writing of the date upon which they propose to send out this order to for execution, and that ten days after the service of such notice the solicitors for the plaintiffs and the solicitors for the defendants respectively do exchange the names of their agents in to whom notice relating to the examination of witnesses hereunder may be sent : And that within ten days from the date of the entry of this order the solicitors or agents of the said plaintiffs and defendants do give notice which of the documents in the schedules of any of the affidavits of documents in these actions respectively they will respectively require to be produced before the said examiners : And it is ordered that seven days, exclusive of Sunday, prior to the examination of any witness hereunder, notice of such examination shall be given by the agent of the party on whose behalf such witness is to be examined to the agent of the other parties (unless such notice be dispensed with) stating the time and place of the intended examination and the names of the witnesses intended to be examined : And in the event of any witness, on his examination, cross-examination, or re- examination, producing any book, document, letter, paper, or writing, and refusing for good cause to be stated in his deposition to part with the original thereof, then a copy thereof or extract therefrom shall be certified by the examiner before whom such examination is being taken : And it is ordered that the examina- tion, cross-examination, and re-examination of any witness may be taken before any one of the said special examiners; and it shall not be necessaiy for more than one special examiner to be present at any one time (/), and that the depositions when so taken, together with any document referred to therein or certified copies thereof or extracts therefrom, shall be sent by the examiner, before whom the same may be taken, under seal to the senior master of the Supreme Court of Judicature, Eoyal Courts of Jiistice, London, on or before the day of 1 8 , or such further or other day as may be ordered, there to be filed in the proper office, and all parties to either action are to be at liberty to read and give such depositions in evidence on the trial of the above-mentioned actions respectively and saving all just exceptions : And it is ordered that the trial of these actions be stayed until the filing of the said depositions : And it is ordered that the costs of and incident to this application and of such examination are to be costs in the above-mentioned action. Dated {k) This paragraph may with advantage be altered, so as to run as follows : — "... doth hereby appoint A. B., and failing him, C. D., respectively special cxaminer.s for the purpose," &c. ((1 Or better, ' ' provided that only one special examiner shall be present at any one tune." W. R 242 APPENDIX C. 10. — Suggested Order for the Appointment of a Special Examiner to take Evidence abroad de bene esse when the application has been made Ex parte. [Heading as in Form 1.] Upon hearing for the , and upon reading the affi- davits of , It is ordered that A. B. of , be appoiated siiecial examiner for the purpose of taking the examination, cross-examination, and re- examination viva voce on oath or affirmation of "witnesses on the part of the at . The examination to be held at [_set out the address in sufficient detail^, at o'clock on , or at any later hour on the same or the next day, or at any different place which the special examiner may, at the first-named time and place, in waiting, appoint, and that the solicitors for the give notice to-day by telegram to [or to Messrs. , his sohcitors], of the fact that this order has been made, and of the name and address of the sisecial examiner hereby appointed, and of the names of the witnesses to be examined, and of the time and place hereby appointed for theii' examination, and send a copy of this order to-day by post to the said : And that if at the time and place herein named the special examiner do, in writing, appoint any other time and place for holding the examination, notice thereof be forthwith given by the , his solicitor or agent, by telegram and by letter to the , or his solicitor or agent : And that the [defendant, if the order is obtained by the jplaintiff, or vice versa'], be at Hberty to attend the said examination and cross-examine the said witnesses : And that the deposition when so taken, together with any documents referred to therein, or certified copies of such documents, or of extracts therefrom, be transmitted by the examiner, under seal, to the senior master of the Supreme Coui't of Judicatiu-e, Eoyal Courts of Justice, London, on or before the day of next, or such fui'ther or other day as may be ordered, there to be filed in the proper office : And that either party be at Hberty to read and give such depositions in evidence on the trial of this action, saving all just exceptions : And that the trial of this action be stayed until the filing of such depositions : And that the costs of and incident to this application and such examination be : And that the [defendant, (/ the order is obtained by the jiilaintiff, or vice versa] have liberty to apply. Dated the day of 18 . FORMS AND PRECEDENTS. 243 11.— Short Order for the issue of a Commission to Examine Witnesses upon Interrogatories and Viva voce. \_This is the Form No. 36 in Apj^endix K, to the R. S. C, 1883. The editors of the Annual Practice have a note to the effect that the U'ords ivithin brackets are sometimes omitted in the Chancery Division, and the lurit of commission drawn up direct from this order, luithout a " long order" being used. As to this, see ante, pp. 92, 93.] \_IIeading as in Form 1.] Ul^on hearing and upon reading the affidavit of , filed the day of , 18 , and It is ordered that the be at Hberty to issue a commission for the examination of witnesses on behalf at And it is further ordered that the trial of this action be stayed until the return of the said commission, [the usual long order to be drawn up, and unless agreed upon by the parties within one week, to be settled by the master {or us the case may &e)], and that the costs of this application be ' . Dated the day of , 18 . 12.— Long Order for Commission to Examine Witnesses upon Interrogatories and Viva voce ((). {_This is the Form No. 37 in Appendix K. to the R. S. C, 1883.] [^Heading as in Form 1.] Upon hearing and upon reading the affidavit of , filed the day of , 18 , and It is ordered as follows : — 1. A commission may issue dii'ected to of and of commissioners named by and on behalf of the and to of and of commissioners named by and on behalf of the for the examination upon interrogatories and viva voce of witnesses on behalf of the said and respec- tively at aforesaid before the said commissioners, or any two of them, so that one commissioner only on each side be present and act at the examination. 2. Both the said and shall be at liberty to examine upon interrogatories and viva voce upon the subj ect-matter thereof (t) This form provides for the appointment of two commissioners, each to act. The expense of executing a commission so framed is necessarily heavy, and it is more advisable to provide, as in Form 8, that the com- missioners should be appointed in the alternative, i.e., so that one only csan. take the evidence. r2 244 APPENDIX C. or arising out of the answers thereto such witnesses as may be produced on their behalf, with liberty to the other party to cross- examine the said witnesses upon cross-interrogatories and v/m voce, the party jiroducing the witness for examination being at liberty to re-examine him viva voce ; and all such additional viva voce questions, whether on examination, cross-examination, or re- examination, shall be reduced into writing, and, with the answers thereto, returned with the said commission. 3. Within days from the date of this order the solicitors or agents of the said and shall exchange the interro- gatories they propose to administer to their respective witnesses, and shall also, within days from the exchange of such in- terrogatories, exchange copies of the cross-interrogatoiies intended to be administered to the said witnesses. 4. days previoiisly to the sending out of the said commis- sion, the solicitor of the said shall give to the solicitor of the said notice in writing of the mail or other conveyance by which the commission is to be sent out. 5. days previously to the examination of any witness on behalf of the said or respectively, notice in writing signed by any one of the commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination, and the names of the witnesses intended to be examined, shall be given to the commissioners of the other party by delivering the notice to them personally, or by leaving it at their usual place of abode or business, and if the com- missioners of that party neglect to attend pui'suant to the notice, then one of the commissioners of the party on whose behalf the notice is given shall be at liberty to proceed with and take the examination of the witness or witnesses ex parte, and adjourn any meeting or meetings, or continue the same, from day to day until all the witnesses intended to be examined by virtue of the notice have been examined, without giving any further or other notice of the subsequent meeting or meetings. 6. In the event of any witness on his examination, cross-exami- nation, or re-examination producing any book, document, letter, paper, or writing, and refusing, for good cause to be stated in his deposition, to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commis- sioner present to be a true and correct copy or extract, shall be annexed to the witness's deposition. 7. Each witness to be examined under the commission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the said commissioners or commissioner. 8. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and viva voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an interpreter or interpreters, to be nominated by the commissioners or commissioner, and to be previously sworn according to his or theii" several religions by or before the said commissioners or com- missioner truly to interpret the questions to be j^ut to the witness or witnesses, and his and their answers thereto. FORMS AND PRECEDENTS. 246 9. The depositions to be taken under and by virtue of the said commission shall be subscribed by the witness or witnesses, and by the commissioners or commissioner who shall have taken such depositions. 10. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified copies thereof or extracts therefrom, shall bo sent to the senior master of the Supreme Court of Judicatui'e on or before the day of , or such further or other day as may be ordered, enclosed in a cover under the seal or seals of the said commissioners or commissioner, and office coj^ies thereof may be given in evidence on the trial of this action by and on behalf of the said and respec- tively, saving all just exceptions, without any other proof of the absence from this country of the witness or witnesses therein named, than an affidavit of the solicitor or agent of the said or respectively, as to his belief of the 11. The trial of this cause is to be stayed until the retiu-n of the said commission. 12. The costs of this order, and of the commission to be issued in pursuance hereof, and of the interrogatories, cross-interrogatories, and depositions to be taken thereunder, together with any such document, copy, or extract as aforesaid, and official copies thereof, and all other costs incidental thereto, shall be Dated the day of , 18 . 13.— Order for Issue of Request for Commission. ITMs is the Form No. 37a mi Appendix K. to the R. S. C. 1883.] [^Heading as in Form 1.] It is ordered that a letter of request do issue directed to the proper tribunal for the examination of the following witnesses, that is to say : — E. F., of G. H., of and I. J., of And it is ordered that the depositions taken pursuant thereto when received be filed at the central office, and be given in evidence on the trial of this action, saving all just exceptions. And it is further ordered that the trial of this action be stayed until the said depositions have been filed {j). [j) This last clause is added by the editors of the Annual Practice in the form as given in theii' Appendix. It was not in the form as originally settled by the framera of the Rules. 246 APPENDIX C. 13a. — Order for Issue of Request for Commission, with, suggested additions to the terms contained in the preceding Form {k). \_neadiinj as in Form 1.] Upon hearing and upon reading the affidavits of , filed herein the day of > 18 , It is ordered that a letter of request do issue directed to the proper tribunal for the examination of the following witnesses, that is to say : — E. P., of a. H., of and I. J., of , and such other witnesses as the foreign Court may be pleased after request made to summon and to examine. And it is also ordered as follows : — 1. Within days hereof the solicitors for the plaintiffs and defendants resj)ectively shall exchange the names of theii' agents at to whom notices relating to the examination of the said witnesses may be sent. 2. Before applying to the foreign Court to summon any witnesses other than E. F., Gr. H., or I. J., the party so applying, or his agent, shall give days' notice in writing to the agent of the other party, of the said intended application, and of the names and addresses of the witnesses whom the foreign Court is to be asked to summon. 3. If the foreign Court consents to summon and examine wit- nesses other than E. F., G. H., and I. J., the party at whose instance the application is made (Z), or his agent, shall ascertain from the foreign Court the time when and the place at which the said witnesses are to attend, and shall give to the agent of the other party daj's' notice in writing thereof. 4. Within days from tlie date of this order, the solicitors or afje7its of the parties shall fxchangc the interrogatories they propose to ask the foreign Court to administer to their respective ivitnesses, and shall also within days from the exchange of such interrogatories exchange copies of the cross-interrogatories intended to he administered to the said loitnesses [m). [k) See ante, p. 58. By Ord. XXXVII. r. 6a, the forms given in Appendix K. are to be used ' ' with such variations as chcumstances may require." [l] The official form of the ' ' Request for Commission ' ' leaves it in some doubt as to whether the application to summon additional witnesses may be made by either agent or must be concurred in by both. If the apphcation is made by both, it, of course, becomes unnecessary to comply with clause 2 of this order, but as there is a possibility of its being made by one, the clause may ■well be left in. {m) The request for commission contemplates the possibility of an examination by interrogatories. If they are to be used, this term may FOEMS AND PRECEDENTS. 247 5. The depositions taken pursuant to the letter of request shall, when received, be filed at the central office, and may be given in evidence on the trial of this action saving all just exceptions. 6. The trial of this action is to be stayed until the said depo- sitions have been filed. 7. The costs of and incident to this application and to the issuing of the letter of request and to the examination shall be costs in the action. 14. — Writ of Commission to Examine Witnesses on Interrogatories and Viva voce. [This is the Form No. 13 in Appeyidix J. to the R. S. C, 1883. The writ is issued in pursuance of the order set out in the Form No. 11, or of that set out in the Form No. 12 herein [n).'] \_Headin(j as in Form 1.] Victoria, by the grace of God, &c., to , of , and of , commissioners named by and on behalf of the , and to , of , and , of , commissioners named by and on behalf of the , greeting : Know ye that We in con- fidence of your prudence and fidelity have appointed you and by these presents give you power and authority to examine on inteiTO- gatoiies and viva voce as hereinafter mentioned witnesses on behalf of the said and respectively at , before you or any two of you, so that one commissioner only on each side be present and act at the examination. — And we command you as follows : — 1. Both the said and the said shall be at liberty to examine on interrogatories and viva voce on the subject-matter thereof or arising out of the answers thereto such witnesses as shall be i^roduced on their behalf with Kberty to the other party to cross- examine the said witnesses on cross-interrogatories and viva voce, the party producing any witness for examination being at liberty to re-examine him viva voce ; and all such additional viva voce questions, whether on examination, cross-examination, or re- examination, shall be reduced into writing, and with the answers thereto shall be returned with the said commission. 2. Not less than days before the examination of any witness on behalf of either of the said parties, notice in wi'iting, signed by any one of you, the commissioners of the party on whose behalf the witness is to be examined, and stating the time and place of the intended examination and the names of the witnesses to be examined, shall bo given to the commissioners of the other party well be inserted. It is taken from the ordinary long orders for a com- mission. (w) If the commissioners have been appointed to act in the alternative (as suggested in the note to Form 12) this writ will require slight alteration accordingly. APPENDIX C. by delivering tlie notice to them, or by leaving it at their usual place of abode or business, and if the commissioners or commis- sioner of that party neglect to attend pursuant to the notice, then one of you, the commissioners of the party on whose behalf the notice is given, shall be at liberty to proceed with and take the examination of the witness or witnesses ex parte, and adjourn any meeting or meetings, or continue the same from day to day until all the witnesses intended to be examined by vii'tue of the notice have been examined, without giving any further or other notice of the subsequent meeting or meetings. 3. In the event of any witness on his examination, cross-exami- nation, or re-examination producing any book, document, letter, paper, or writing, and refusing for good cause to be stated in his deposition to part with the original thereof, then a copy thereof, or extract therefrom, certified by the commissioners or commissioner present and acting to be a true and correct copy or extract, shall be annexed to the witness's deposition. 4. Each witness to be examined under this commission shall be examined on oath, affirmation, or otherwise in accordance with his religion by or before the commissioners or commissioner present at the examination. 5. If any one or more of the witnesses do not understand the English language (the interrogatories, cross-interrogatories, and viva voce questions, if any, being previously translated into the language with which he or they is or are conversant), then the examination shall be taken in English through the medium of an interpreter or interpreters to be nominated by the commissioners or commissioner present at the examination, and to be previously sworn according to his or their several religions by or before the said commissioners or commissioner truly to interpret the questions to be put to the witness and his answers thereto. 6. The depositions to be taken under this commission shall be subscribed by the witness or witnesses, and by the commissioners or commissioner who shall have taken the depositions. 7. The interrogatories, cross-interrogatories, and depositions, together with any documents referred to therein, or certified copies thereof or extracts therefrom, shall be sent to the senior master of the Supreme Court of Judicature on or before the day of enclosed in a cover under the seals or seal of the commissioners or commissioner. 8. Before you or any of you in any manner act in the execution hereof, you shall severally take the oath hereon indorsed on the Holy EvangeHsts or otherwise in such other manner as is sanc- tioned by the form of your several religions and is considered by you respectively to be binding on your respective consciences. In the absence of any other commissioner a commissioner may himself take the oath. And we give you or any one of you authority to administer such oath to the other or others of you. Witness, &c. FORMS AND PRECEDENTS. 15.__'^rit of Commission for use in the Probate, Divorce and Admiralty Division (w)- [This is the Form No. 14 in Appendix J. to the R. S. C, 1883.] 18 — . l_llereput the letter and number.'} In the High Court of Justice, Probate, Divorce and Admiralty Division. Between A. B. Plaintiff, and The Owners of the Victoria, by the grace of God, &c. to \_state name and address of examiner or commissioner appointed'], greeting: Whereas in an action of , commenced in our said High Coui't of Justice on behalf of against , [and against intervening], the judge has ordered a commission to be issued for the examination of witnesses concerning the truth of the matters at issue in the said cause. We therefore hereby authorize you, upon the day of ,18 , at , in the presence of the solicitors in the said action, or in the presence of their or either of their lawfully appointed substitutes, or otherwise notwithstanding the absence of either of them, to swear the witnesses who shall be produced before you for examination in the said cause, and cause them to be examined, and their depositions to be reduced into writing: We further authorize you to adjourn (if necessary) the said examina- tions from time to time and from place to place, as you may find expedient : And we command you, upon the examinations being completed, to transmit the depositions and the whole proceedings had and done before you, together with this commission, to the Eegistry of the said Division of our said Court. Witness, &c. E. F., Eegistrar. Commission to examine witnesses. Taken out by 249 16. — Commission or Requisition (o) for an Examination of Witnesses in Divorce and Matrimonial Causes. (Rules 131—137, and 198.) [This Form is No. 20 in the official forms appended to the Divorce Rules.l In the High Court of Justice, Probate, Divorce and Admiralty Division. \_Divorce.'] Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to [here set forth the name and proper description of the commissioner], greeting : Whereas a certain cause is now depending in the Probate, Divorce («) This form does not apply to divorce causes : see next form, (o) See note (o) on following page. 250 APPENDIX C. and Admiralty Division of lier Majesty's High Court of Justice (Divorce), between A. B., petitioner, and G. B., respondent, and 11. S., co-respondent, wherein the said A. B. has filed his petition praying for a dissolution of his marriage with the said C. B. [or otherwise as in the prayer of the petitioii] : And whereas, by an order made in the said cause on the day of , 18 , on the application of the said A. B., it was ordered that a commission [or requisition] should issue under seal of our said Court for the examination of [Jiere insert name and address of one of the persons to he examined'], and others as witnesses to be produced on the part of the said A. B., the petitioner, in support of his said petition (saving all just exceptions) : Now know ye that we do, by virtue of this commission [_or requisition] to you directed, authorise [or request] you within thirty days after the receipt of this commission [or requisition], at a certain time and place to be by you appointed for that purpose, with power of adjournment to such other time and place as to you shall seem convenient, to caiise the said witnesses to come before you and to administer to the said witnesses respec- tively an oath truly to answer such questions as shall be put to them by you touching the matters set forth in the said petition (a true and authentic cojjy whereof sealed with the seal of our said Court is hereunto annexed), and such oath being administered we do hereby authorise [or request] and empower you to take the examination of the said witnesses, touching the matters set forth in the said petition, and to reduce the said examination or cause the same to be reduced into writing: And that for the purpose aforesaid you do assume to yourself some notary public or other lawful scribe as and for your actuary in that behalf if to you it should seem meet and convenient so to do : And the said exami- nation being so taken and reduced into wi'iting as aforesaid and subscribed by you, we do require [or request] you forthwith to transmit the said examination, closely sealed up, to the registry of our said Court in Somerset House, Strand, in the county of Middlesex, together with these presents : And we do hereby give you full power and authority to do all such acts, matters, and things as may be necessary, lawful, and expedient for the due execution of this our commission [or requisition]. Dated at London the day of , in the year of oiu' Lord one thousand eight hundred and , and in the year of our reign. (Signed) X. Y. (o), Eegistrar. (o) Letters of request are signed by the President of the Division, and after having been sealed will be left at the Divorce Registry with the pleadings and other necessary papers for transmission through the Foreign Office to the Foreign Court. They will be returned to the Foreign Office for transmission to the Registry. FORMS AND PRECEDENTS. " 251 17. — Form of Writ of Commission for use in the Mayor's Court when an Examination is to be taken upon Interrogatories {p). Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to \jmme of commissioners'] greeting: Know ye that we in confi- dence of your prudence and fidelity have appointed you, and by these presents do give unto you, any two or more of you, full power and authority diligently to examine the witnesses upon certain interrogatories to be exhibited to them as well ou the part of , plaintiff, as on the part of , defen- dant, in an action now depending between them in our Court holden before the mayor and aldermen of the city of London, in the Chamber of Guildhall of the same city : and therefore we com- mand you, any two or more of you, that on or before the day of now next ensuing, at a certain day and place [or certain days and places] to be appointed by you for that purpose, you cause the said witnesses to come before you at , and then and there examine each of them apart upon the said interrogatories on their respective corporal oath, first taken before any two or more of you, according to the form of theii* several rehgions, and that you do take such their examinations and reduce them into writing on j^aper or parchment, and when you shall have so taken them you are to send the same without delay to the registrar of our said Coiu-t, closed up under your seals, or the seals of any two or more of you, distinctly and plainly set, together with the said interro- gatories, and this wi'it to be filed of record in the ofiice of oiu' said Court : And we further command you, and every of you, that before you act in or be present at the swearing or examination of any witness or witnesses, you take an oath according to the form of your several religions, that you will according to the best of your skill and knowledge truly and faithfully, and without par- tiality to any or either of the parties take the examination and deposition of all and every witness and witnesses produced and examined by virtue of this wiit upon the interrogatories produced and left with you ; and we give you, any two or more of you, full power and authority, jointly or severally to administer such oath to the rest or any other of you : And we further command that all and every the clerk or clerks employed in taking, "miting, tran- scribing, or engrossing the deposition or depositions of witnesses to be examined by virtue hereof, shall, before he or they be permitted to act as clerk or clerks as aforesaid, severally take an oath truly and faithfully, and without partiality to any or either of the parties in the cause, to take and write down, transcribe, and engross the deposition of all and every witness and witnesses produced before and examined by you the said commissioners, or any of you, as far forth as he or they are directed or employed by you the said com- missioners, or any of you, to take down, write, or engross the said depositions, which oath any two or more of you are herebj' em- {p) For form of commission to examine vivd voce, see Form No. 14, ante, p. 247. 252 APPENDIX C. powered to administer to such clerk or clerks, according to his or their several religions : And we further command you, that pre- vious to the execution of this commission which is granted by our said Court at the instance of the said plaintiff [_or defendant], and by him prosecuted, the said commissioners, who have been named, apj^roved and appointed on behalf of the said plaintiff [or defendant], shall give or cause to be given two days' notice in writing of such execution of this commission under their respective hands to the said respectively commissioners who have been named, approved of, and appointed on behalf of the said defendant [or plaintiff], by delivering such notice to the said personally, or by leaving the same for them or him at their or his then respec- tive place or places of abode, and in and by such notice shall state the place, day, and hour whereat and wherein this commission shall be executed. [If the opposite j^c^'ty refuse to name commissioners or join in the commission, the latter clause should be omitted.'] Witness , Recorder of the said city, the day of , in the year of our reign. [Name of Registrar.] 18.— Order for the Appointment by consent of a Special Examiner instead of a Commissioner in the Mayor's Court. [Heading as in Form 3.] Upon hearing the solicitors on both sides, and upon reading the affidavits of , it is by consent ordered that , or failing him. , be appointed as special examiner for the purpose, &c. [follow on, mutatis mutandis, as in Form 8]. 19. — Request for Commission. [This is the Form No. 37b in Appendix K. to the R. S. C, 1883.] Heading : — To the President and Judges of, &c., &c., or as the case may be. Whereas an action is now pending in the Division of the High Court of Justice in England, in which A. B. is plaintiff and C. D. is defendant. And in the said action the plaintiff claims (endorsement upon u-rit.) And whereas it has been represented to the said Court that it is necessary for the purposes of justice and for the due determination of the matters in dispute between the parties, that the following persons should be examined as witnesses upon oath touching such matters, that is to say : E. F., of G. H., of and I. J., of And it appearing that such witnesses are resident within the jurisdiction of your honoui'able Coui't. Now I as the President of the said Division of the High Court of Justice have the honour to request, and do hereby FORMS AND PEECEDENTS. 253 request, that for the reasons aforesaid and for the assistance of the High Court of Justice, you as the president and judges of the said or some one or more of you, will be pleased to summon the said witnesses (and such other witnesses as the agents of the said plaintiff and defendant shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before some one or more of you, or such other person as according to the procedure of your Court is competent to take the exami- nation of witnesses, and that you will cause such witnesses to be examined upon the interrogatories which accompany this letter of request {or viva voce) touching the said matters in question in the presence of the agents of the plaintiff and defendant, or such of them as shall, on due notice given, attend such examination. And I further have the honour to request that you will be pleased to cause the answers of the said witnesses to be reduced into writing, and all books, letters, papers, and documents i^ro- duced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such exami- nation by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same, together with such request in writing, if any, for the examination of other witnesses, through Her Majesty's Secretary of State for [Foreign Affairs], for transmission to the said High Court of- Justice in England (j:i). 20.— Interrogatories for the Examination of a Witness on Commission or pursuant to a Letter of Request. \_Head'ing as in Form 1.] Interrogatories to be administered to A. B., a witness who, pur- suant to the order of , dated , is to be produced and examined on behalf of the above-named , before , at , [^or a witness whom the President of the Supreme Court at has been requested to summon and cause to be examined upon interrogatories] in l_or for the purposes of] an action now pending between the above-named plaintiff and the above-named defendant in the Division of the High Court of Justice in England. 1. What ai'e you, and where do you live ? 2. Look at the exhibited hereto and marked A. Was the said document signed in your presence ? If so, when, where, and by whom ? Who else was present at the time ? \_FoUow on with any necessary questions, taking care not to put them in a leading form, and e«cZ :] Do you know of any other matters connected with and material to those forming the subject of the above interrogatories which are [p) As to the heading and the various matters connected with the execution of letters of request, see ante, at p. 56. 254 APPENDIX C. of advantage to tlie ? If so, set the same out in detail , with all necessary particulars as to times, places, and persons. Do you know of any person or persons who can give material evidence on any of the matters covered by these interrogatories ? If so, set out the names and addresses of such persons and the nature of the evidence luhich in your opnnion they can give {q). 21.— Form of Cross-Interrogatories. [^Heading as in the previous Form, substituting " Cross-Interroga- tories " for " Interrogatories." 1 . State as to each of the facts deposed to by you in answer to the interrogatories in chief how you ascertained the same, from whom, or fi'om what document, and when. If you obtained your information, or any of it, from documents, state in each instance the circumstances under which you saw the document, and the name of the person in whose possession it then was, describe the docimient and state in whose possession you believe the same to now be, and give the grounds of your belief. 2. If any of the documents mentioned in your last answer are now in your possession produce the same. "Where are the persons from whom you obtained your information ? 3. If you say that the signature to the document marked A. and annexed to the interrogatories in chief is in the handwriting of , then state — (a.) How often you have seen the said write his name ? (b.) When last before the date of the said document you saw the said sign his name ? (c.) Whether it is not the fact that the habitual signatiu-e of the said was as follows , or whether you have not known the said to sign as last stated, and, if so, how often ? 4. If you say that the price of at , was per , then state — (a.) "\i\Tiether you sold any, and if so, how much, and at what price on the said day P (b.) "Wiiat the price was on and on ? (c.) Did you seU on in the open market, or by private contract ? In either case, give the name and address of yoiu- buyer. 5. Is it not the fact that, &c., &c., &c. N.B. — The defendant will also put viva voce questions if it should appear necessary (r). [q) The clause in italics may be useful in cases where the party interrogating has taken power in the order to examine witnesses other than those specifically named therein, and when he has reason to behave that such further evidence can be obtained. (>•) See also Chitty's Forms, 12th ed. p. 320. FORMS AND PRECEDENTS. 255 22.— Praecipe of Commission to Examine Witnesses. (0. 37, r. 6.) \_Tme.2 Seal in pursuance of order dated , a writ in the nature of a mandamus or commission to examine witnesses directed to . Dated, &c. 23. — Form of Notice to be sent by the Party having pro- cured the Order for an Examination, to the other Party or his Agent, specifying the time and place fixed by the Examiner (or Commissioner) for the holding of the Examination. [^Heading as in Form 1.] Take notice, that A. B., Esquire, the examiner [or commis- sioner) appointed herein by the order of , dated , has fixed day the instant, at o'clock in the noon for the holding [or the continuing) of the examination herein, and that the said examiner [or commissioner) will attend accordingly at the house No. in this city {or other sufficient description) on the said day and at the said time, when E. F. and Gr. H., witnesses on behalf of the will be produced and examined before (or by) him in pursuance of the said order. Dated (Signed) X. Y. Z., of Agents for the To the and to Messrs. his solicitors {or agents) (s). 24.— Forms of Oaths. \_These are the Forms given in Appendix J. to R. S. C, 1883.] Witnesses Oath. You are true answer to make to all such questions as shall be asked you, without favour or affection to either party, and therein you shall speak the truth, the whole truth, ancl nothing but the truth. So helj) you God. (s) If the order provides that notice is to be given setting out the name of each witness a specified number of days before he is called, and the witnesses cannot be all examined on one day, this notice must be repeated accordingly. If, however, the order provides that ' ' not less ' ' than so many days' notice is to be given, and the examiner proposes to sit de die in diem, insert the names of all the witnesses in this order, and after the word "instant" add the words " and following days." 256 APPENDIX C. Clerk's Oath. You shall truly, faitkfuUy, and without partiality to any or either of the parties in this cause, take, write down, transcribe, and engross all and every the questions which shall be exhibited or put to all and every witness or witnesses, and also the depositions of all and every such witness and witnesses produced before and examined by the said commissioners named in the commission within written, as far forth as you are directed and employed by the commissioners to take, write down, transcribe or engross the said questions and depositions. So help you God. Commissioner's Oath. You [or I] shall, according to the best of your [or my] skill and knowledge, truly and faithfully, and without partiality to any or either of the parties in this cause, take the examinations and depositions of all and every witness and witnesses produced and examined by vii'tue of the commission within written. So help you [or me] God. Inferjjreter's Oath. You shall truly and faithfully, and without partiality to any or either of the parties in this cause, and to the best of yoiu- ability, interpret and translate the oath or oaths, affirmation or affirmations which he shall administer to, and all and every the questions which shall be exhibited or put to, all and every witness and witnesses produced before and examined bj'' the commissioners named in the commission within written, as far forth as you are directed and employed by the said commissioners, to interpret and translate the same out of the English into the language of such witness or wit- nesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesses into the English language. So help you God. 25.— Declaration in pursuance of the Act 51 & 52 Vict, c. 46. [That is a declaration to be made hy a person ^' ohjeding to being sivorn, and stating as the ground of such objection, either that he has no religious belief or that the taking of an oath is contrary to his religious belief."^ I, A. B., do solemnly, sincerely, and truly declare, that I will true answer make to all such questions as shall be asked me with- out favour or aifection to either party, and therein I will speak the truth, the whole truth, and nothing but the truth. FOKMS AND PRECEDENTS. 257 26.— Aflarmation of a Witness. I, A. B., do solemnly, sincerely, and truly affii-m and declare that the taking of any oath is, according to my religious belief, unlawful. And I do also solemnly, sincerely, and triily affirm and declare, that I shall true answer make to all such questions as shall be asked me, without favoiu- or affection to either party; and therein I shall epeak the truth, the whole truth, and nothing but the truth. 27. — Form of Affirmation to be made by a Quaker. I, A. B., being one of the i^eople called Quakers, do solemnly, sincerely, and truly declare and affirm, that I shall true answer m.ake to all such questions as shall be asked me, without favour or affection to either party ; and therein I shall speak the truth, the whole truth, and nothing but the truth. 28. — Form for use by Examiner or Commissioner in taking Evidence. In the High Court of Justice, 18 . Division. Between A. B. . . . Plaintiff, and CD. . . . Defendant. Depositions Of Witnesses examined in the above Action at before me, the Special Examiner [or one of the Commissioners^ appointed by an Order in this Action dated On day, the of , IS , the examination was commenced at a.m., I, the said , having first administered the oath as prescribed by the Eules of the Supreme Court, 1883, to myself \_if a commissioner, but not if a special exanfiiner'\, to , as clerk, and to , as interjireter. Mr. appeared as for the plaintiffs. Mr. appeared as for the defendants. John Jones, of , having been duly sworn by me, was John Jones examined by IVIi'. , on behalf of the plaintiff, and said as examined, follows : — [Or, John Jones, of , having been duly sworn by me, said, in answer to the interrogatories for his examination annexed to the commission herein and which were administered to him by me {or by Mr. , on behalf of the plaintiff), as follows: — ] In , I was in the employment of the plaintiff as clerk, &c. I produce a document, being (marked JJ'). w. s 258 APPENDIX C. John Jones cross- examined. John Jone3 re-examined. lOr, I produce a document, being , but refuse to part with, tbe original for the following reasons : — I, however, produce a copy. {Note hy examiner. — I certify the copy to be true and correct, and mark it JJ'. A. B., examiner)]. Cross-examined by Mr. , on behalf of the defendants, the witness said as follows : — \_0r, In answer to the cross-interrogatories administered to the witness by Mr. , on behalf of the defendants, he said as follows : — ] Ee-examined by Mr. , on behalf of the plaintiffs, the witness said as follows : — (Signed) John Jones. Note hy the examiner. — The above depositions of John Jones were first read over to him by me, and were then signed by him in the jaresence of Mr. , representing the plaintilfs, and of Mr. , representing the defendants. The examination con- cluded at p.m. (Signed) A. B., examiner. [_0r, The above depositions were read over by me to the witness John Jones, who refused to sign the same, whereupon the said depositions have been signed by me. (Signed) A. B., examiner. The examination concluded at p.m. A. B.] Matters to he incorporated, if necessarij, hy the Examiner in the Depositions. (a.) — Question objected to : Question : What did X. Y. tell you ? (This question was objected to by Mi". , on behalf of the I stated that in my opinion the question was inadmissible. A. B.) Answer : He told me, &c. (b.) — Question not ohjeded to hy either of the parties, hut put down hy the examiner for a " special reaso7i" (t) : Question : What was the purport of the communication ? (The witness stated that the information was acquired by him in his capacity as solicitor to the jDlaintiff, or the witness stated that the answer to this question would incriminate himself, whereupon I stated that, in my opinion, the question should be withdrawn. This was, however, not done. A. B.) AnsLuer : The communication was as follows : (C.) — Question put hy the examiner as to the meaning of an answer, or as to any mcitter arising in the course of an examination. In answer to a question by me as to the meaning of the witness's last answer, he stated as follows : — Answer: In saying I mean . A. B., examiner. {t) See Ord. XXXVII. r. 12, ante, p. 220. rOEMS AND PRECEDENTS. 259 Or (In answer to questions put by me as to , a matter wliich has arisen in the course of this examination, the witness stated as follows : — A. B.) (d-) — Special report hy the examiner as to the conduct of a luitness or of any other person in the examination, made in pursuance of Ord. XXXVII. r. 17. (The demeanoui- of this witness was such as to lead me to the conclusion that his evidence is unreliable, and I report accordingly to the Court. A. B.) Or (The demeanom- of this witness was such that I allowed him to be treated by Mr. as a hostile witness, and I report accordingly to the Coxu't. A. B.) Or (This witness was obviously ill and in pain, and was, in my opinion, not in a fit condition to give reliable evidence. I report accordingly to the Court. A. B.) Or (The cross-examination of this witness was, in my opinion, carried to an unreasonable length, and included much which, if I had the power, I should have disallowed. I report accordingly to the Court. A. B.) (e.) — When examination adjourned. The examination was here adjourned. (f.) — When examination continued. The examination (or cross-examination) of John Jones was continued before me on day the ,18 , at a.m., when the witness said : — (g.) — Summary of time occupied ly the examination, which the examiner should add to the depositions xvhen the examination is concluded. The examination of the witnesses herein occupied the following times : — John Jones : from a.m. to on day the from a.m. to on day the Eobert Smith : from a.m. to on day the (Signed) A. B., examiner. 29.— Certificate to be >nnexed by the Commissioners to a Commission in accordance with, the req,uirements of the Writ («). To her Majesty's High Coui-t of Justice in England. We whose names and seals are hereunto subscribed certify that we are the commissioners named in the commission hereunto annexed, and that we have [here follow the directions given in the (m) See al80 Dauiell'a Chancery Forms. t>2 260 APPENDIX C. writ of commission'], and that the depositions taken by [or before] us are those hereunto annexed. In witness whereof we have hereunto set our seals and signatures this day of , 18 , at , in the kingdom of A. B. CD. (O. Seal.) Commissionera. (0. Seal.) 30. — Direction of Envelope in which, the Documents are to be returned. To the Senior Master of the Supreme Cpurt of Judicature, {Or, The Senior Registrar of the Probate, Divorce, and Admiralty Division of the Supreme Court of Judicature (Probate, or Divorce, or Admiralty)), Boyal Courts of Justice (or Somerset House), London. \_Note. — If posted in England the envelope need not be stamped. It must be sent to Somerset House in probate and divorce matters.] 31. — Notice of intention to read Depositions at Trial when they have been made before Issue joined. (See Ord. XXXVII. r. 24. This Notice must be given within one month after issue joined.) [Heading as in Form 1.] Take notice that the intends to read at the trial of this action the following depositions made before issue joined herein : that is to say : — The depositions of A. B. taken on and filed the day of , 18 . (Signed) Solicitor to the . To the and to Messrs. , his solicitors or agents. I 261 APPENDIX D. I. A FEW PEINCIPLES OF THE ENGLISH LAWS OF EVIDENCE. {Intended for the Guidance of Foreign Advocates when taking Evidence for use in an English Court.) The cardinal rule of evidence is that primary or best evidence should be adduced in all cases, and in considering the meaning and application of this rule it will be found convenient to divide evidence into ^a) documentary and (b) parol. (a) I. The general rule in this case is that, when the contents of a document have to be proved the original document must be produced, and a copy is never admissible in evidence where the original can be produced. II. It follows from this rule that in cases where the parties to a contract have reduced the terms of it to wiiting, such document or documents must be produced to prove the contract, and parol evidence is not admissible to add to or vary the contract in writing, and the parties are bound by the terms of the written instruments or instrument. It is, however, otherwise where the writing is merely evidence of a contract having been made, e.;/., a note, memorandum or receipt. In that case parol evidence will be admitted to prove the making of the contract of which such note, memorandum or receipt is evidence. To these rules there are, however, some important exceptions which it will be convenient to notice here. The contents of docu- ments may be proved by secondary or parol evidence in the follow- ing cases, viz. : — (i) Where sufficient proof has been given that the original document, whose contents it is sought to prove, has been lost or destroyed ; or (ii) where the original is shown or aj)pears to be in the possession of the opposite party who, after notice, has failed to produce it; (iii) where the document is a jjublic record, such as a register of births; (iv) where the original document forms part of a banker's books, such banker not being a party to the action ; (v) where it is physically impossible to produce the original, as 262 APPENDIX D. in tlie case of an inscription on a wall ; (vi) "wliere the original is in the power of a stranger not legally compelled to produce it, and who refuses to produce it. Parol evidence is, however, always admissible to show the exist- ence of some condition precedent, subject to which a contract in writing or other written instrument has been made. In the case of a written contract, parol evidence is also admissible to show that the written instrument does not contain the whole of the contract (except where the contract is one which is requii'ed by statute to be in V5a-iting), and terms not inconsistent with the written instrument may be added by parol evidence. Parol evidence is also admissible to show that there was a verbal agreement collateral to and not inconsistent with the one in writing. (b) Farol Evidence. — It is difficult to lay down very definite rules about this branch of the subject. The main test as to the ad- missibility of parol evidence is its relevancy. Admissions by parties to an action are evidence against them, and, speaking generally, the test of the relevancy of the evidence adduced depends upon whether it can be brought home directly to the parties to the action. It follows from this rule, that conversations or communications between third parties and either of the parties to the suit, are admissible in e\ddence, though conversations or communications between third parties not in the presence of the litigants would be irrelevant. So again, letters written by either party to the action are admissible in evidence ; but letters written by third parties are only evidence when written to one of the parties and answered, in which case both letter and answer must be put in. The principal rule of evidence to be observed by a party examin- ing a witness is this : a question must never by its form suggest the answer which it is desired that the witness should give. This rule is not applicable to a cross-examination. PRINCIPLES OF THE ENGLISH LAWS OF EVIDENCE. 263 II. THE SAME PEINCIPLES SET OUT IN GERMAN. 33ci ber ®eivct§fiUn-mui ift bte ^auvtreijet bie, ba^ in jobeni Jyafie immittclbarcr ofcv natiuiiclier 3?euHi3 evtn-act}t ivcvtiou foil, iint> cS muffen bie bcftcu ^iBeirci'omittcl gcliofevt U'cvben, bie ^iir '^cit i^ortjaiibeit flat). Qux -&n«ovt}c[nini"( bcv i^eticutuiu^ unb -^Imvcnt'inig bicfcr Ote^^el ift bie (i"intl}eihtiu3 bco i^eivcifeS iii (a) tm '^^nxdQ burcl] llvhmiM-n, unb (/?) ben '4?eivei'3 burd} B^i'iilf" evljebHcb. (a) Urn ben 3nt;alt eincr Urfunbe ju Oeu-eifen, inu§ bie Urfunbe in Uvfct}vift iior^ele^t iverben ; ift beven •^erbeifcl^affung iiberl;aupt jiiocjlicl), fo ift cine '^Ibfctnift alcS ^^Beiveiei unjuldfftij. ^t^ fell.}! t>arau8, ba^ bei cinem fcl)iiftlict)=a(H]ofapten ^^evtia^e iMcfev fclbft »oi\]elegt icerbeu iiuifj, ivenn bie ©liftenj unb ber 3nt)alt beffelben Oen.nefeu ivcrtieu foil, unb e§ ift ber 3fi'0'^"''f^^'*^i^ ''•''^^^ Sul'^lU^ mil i» bie fct}rift(icl)en 5j?efttninuuujen ivovan bie JtontiiU;enten gebuntien [tub, 3ufd|e ober 'illenbevuugen einjufiujen. 5lnbera yert;dlt eg ftrl) jetiort^ wo baS (Scl}vtftftuc£ nur ba,;^u junt 93euHnfe bienen foil, bnf? cin ^iHUtracj ivivflicl} gefcl^loffen irorben ift; U-'ie, ^. 93., bei einem 2)iemDvanbum ober eincr Ouittung. 3n fold^eni g-allc ift bie i5crnct)muiu3 »on SfUflf" SU^^lTtfl/ "•» bie Griftcn^ unb ben 3nt)alt beg 25ertragc8 ^^u bcircifen. ^on biefen JHegeIn gibt eg jcbocl) folgenbe unc(;tige 5Uignal)men. 2)er Snljalt einer Urfunbe Eann unter ben folgenbcn llmftdnbcn burc^ mi'inblicl^cg SfUflnip crunefcn iverbcn : (i.) 9Bo genugcnbcr 5Bciveig beg 53erluftcg ober ber U^ernid^tung bcv Urfunbe erbrad)t anrb; (ii.) QBo bem ©nrcife gemd^, ober bem 5lnfd)cine nadj), bie Urfunbe ftd) in ben •^dnben beg ©cgnerg beftnbct, unb bicfcr ber QUifforberung bie Urfunbe i^orjjulcgcn nid}t nad;gefonimen ift; (iii.) SBo bie Urfunbe cine ii>ffcntlid)e ift, unb fid) in eincni offent* Iid}en 5lrd)ii)e befinbct ; ivic, ^. S., in einem (Seburtgrcgifter ; (iv.) SBo bie Urfunbe ftd; in ben ^anbelgbiid^ern eineg 3?anficr3 befinbct, unb ber SBanfier an bem ^roceffc nid;t bct^ciligt ift; (v.) SBo bie Urfunbe i^rer 0tatur nac^ nic^t ijorgelegt raerbcn fann ; nnc, J. 33., bei einem Denfmal; (vi.) 5ffio fid) bie Urfunbe in ber ®cu\ilt eineg Written teftnbet, unb bicfcr jur ^orlegung berfelben nid^t rcd^tUd; iter^flid)tet ifl unb beren ^orlegung yenveigcrt. APPENDIX D. 5)aci inunblidH' 3c»fViif5 ifi inbe§ ftet§ jutciffig ircnn, im g^atle cineg fdiriftUcl)=aK3cfafUcn 9i>cvtvaiica, bie (Jriftcnj eincr SBebinflinu3 envicfen unntcn [otl, von bcrcu ©rfiitlung tie ^sertnnfcUci^feit be6 33ertra9c§ a6= t)aiu3ig cgcnuidjt unnbe. 3?ci cincm fri^riftlicfe^afgefaf ten a^crtrage ijl bn§ nuinblicl^e 3f»gi"§ '"1"^) j^nlafftg, ivcnn enricfcn ircrben [otl, ba^ in bev -i^ertvagSmfunbe bie inntnigf^Ocftimmungen nirf^t alk cntt)alten ftnb (fofcrnc nici)t fiir ben in S^etvart^t fommenben aSertrag bie fc(}rift=» Iicl)e (Srric()tnng bnrd} ©tatnt iiorgefcl^rieben ift). Qliict) fonnen ®cftimnutngen ivelcl^e bem [c()viftlict)en 3nl)alt nid}t anbevf^JvedKn bnrd; mltnbiidieg 3fi'g»'f! I)'"s"fl^i"9^ unnbcn. Werner ift baf^ mi'inbs lid)c 3fiigttiiJ ^^iiI'MlU] i^'*-'"" bie (Sriftcn,;; eine§, bem fdiriftlid^^abgefaf ten J)ain.iti.Hntrage nidn iviberfpred^enbcn, nuinbtid;en i)ic6eni.->evtragc6 ha iinefen irevben fed. (/3) 9Ji ii n b ( i d) c S Qtn g n i ]1. giiv biefe Q(vt bet^ 9Ben:eifc3 ift CO nidit Icid?t Oeftinnntc 3fJcgeln anf^^uftelien. Die 3iil''ifugffit be3 miinblidien Q?civeife6 hingt v»or -ililem i^on feiner Cfvbeblid)feit 06. 3)ie ©eftanbniffe einer ^sivtei gelten a(§ SBeuetg gegen jene iveld^e fie ablegt. Sm "^Ulgemeinen ftnb bicjenige ^(uefagen al^^ i\ivei6 suldfftg, jreld]e anf ^anthmgcn luovan bie 'C'arteien fcltft betl;eiligt, ober auf 5;(iatfad)en nnt) 3iiftrtiibe iveld)e ©egenftanb ber 3Bal}rnetMnung ber ^avteien felbft geiuefcn, gerid]tet ftnb. ^ievnuS fotgt, ba^ Unter* rebungen ober aiiittl^eilnngcn, unb jnmr fd)vift(id)e ober nuinb(id}e, iveldu^ juiifdjen 2)ritten nnb einev ber ^i-'arteien ftattfanben, aU 23eivei§ juliifftg ftnb ; ircitirenb Untevvcbungen obev iliittlicilnngcn iveld^c ^^ivifdHMt S)rittcn, jebod; ntd)t in (sJegenuMvt ber ^ntrteien, ftattfanben, au«gefd)loffen ftnb. 5^ie von einer ber ^4-Hirteien ge(d)riebenen -^riefe ftnb al6 3?eiiHn§ jnlaffig ; aitd; 3?riefe, ivekbe von Written berriil^ven, jci^od^ niir bar.n, ivenn fte an eine ber i|>arteien gefdjrieben unirben nnb von btefer bavaiif ■^Intu'cvt erfoigte. ?ni lelUeren Salle ift bie i^or^ legnng h-tberfcitigcr edniftftiirfe erforberlidn iCnvS bie -^Infnalnne rey 3^'i'gfii'^''''^'fiK'-' anh'trifft, fo ift vor -^lllcni l^ervor^uteten, bafj bie Srage iveldie bent 3fitgfii geftellt ivirt' nie biircl; i^^rc S'orin bie gcuninfdUe Qlntivort in ben iliunb beg 3fi'g'^ii ^^'g*-'" barf. 5litf bag ©egenverl^or (cross-examinatiou) fontmt biefe 93orfc^rift nid)t jur -^Unvenbitng. PRINCIPLES OF THE ENGLISH LAWS OF EVIDENCE. 265 III. THE SAME IN FRENCH. La regie principale du temoignage est qu'on doit produire dans tous les cas le temoignage du premier degre, et, pour etudier le sena et I'application de cette regie, nous trouvons commode de divisor le sujet de la preuve en, (a) preuve par ecrit et, (b) preuve par temoins. (a) I. La regie generale dans ce cas est que, lorsqu'on veut prouver le contenu d'un document, il faut produii'e le document origirial ; une cojiie ne j^eut pas etre admise en temoignage quand le titre original subsiste. II. II suit de cette regie, que dans les cas ou des parties con- tractantes ont mis par ecrit les termes du contrat, ce document ou ces documents doivent etre produits pour prouver le contrat, et aucune preuve par temoins n'est recevable jsour aj outer ou changer quelque cbose au contrat ecrit : les parties sont liees par les termes des documents. Cependant il en est autrement quand I'ecrit ne dorine lui-meme que la preuve d'un contrat qui aurait ete fait, par exeniple, une note, un memorandum, ou un re^u. En ce cas la preuve par temoins sera recevable pour prouver qu'a ete fait le contrat dont temoignent la note, le memoiandum ou le re(;u. A ces regies il y a cependant quelques exceptions importantes qu'il sera commode d'indiquer ici. Le contenu d'un document pent etre j^rouve par le temoignage du second degre — c'est-a-dire moyennaut la preuve par temoins, dans les cas suivants, a savoii-: — (i) Quand on a donne des preuves suffisantes que le document original dont on cherche a prouver le contenu a ete perdu ou detruit; ou (ii) quand il est prouve que I'original est entre les mains do la partie adverse, laquelle, apres avis, ne le produit pas ; (iii) quand le document est une archive publique, par exemple, le registre des naissances ; (iv) quand le document original fait partie des livres d'un banquier, et que le banquier n'est pas une partie au proces ; (v) quand il est physiquement impossible de produire I'original, comme dans le cas d'une inscription sur un mur ; (vi) quand I'original est au pouvoir d'un etranger, qui n'est pas legalement oblige de le produire, et qui refuse de le produire. Cependant la preuve jiar temoins est toujours recevable poiu" prouver qu'un contrat par ecrit, ou tout autre document ecrit, a ete fait soumis a quelque stipulation orale. Dans le cas d'un contrat ecrit, la preuve par temoins est aussi recevable pour etablir que le document ecrit ne contient pas la totalite du contrat, (excepte 266 APPENDIX D. quand c'est defendu par les statuts), et des termes ne contredisant pas le document ecrit, peuvent etre ajoutes parle temoignage oral. La preuve par temoins est aussi recevable pour etablir qu'il y a eu entente verbale coexistante avec le contrat ecrit. (b) La preuve par temoins. — II est difficile de poser des regies bien definies sur cette partie du sujet. Le critere principal de la recevabilite de la preuve par temoins c'est sa pertinence. Les aveux des parties d'un proces peuvent temoigner contre eux, et en general le critere de la pertinence du temoignage produit depend de savoii", si on peut etablir un rapport direct avec les parties du proces. II suit de cette regie, que des conversations ou des commu- nications entre des tiers et I'une ou I'autre des parties du proces sont recevables en temoignage, quoique des conversations ou des communications entre des tiers en 1' absence des plaideurs ne soient pas pertineutes. De meme des lettres ecrites par I'une ou I'autre des parties au proces sont recevables en temoignage, mais des lettres ecrites par des tiers ne sont revues que lorsqu'elles ont ete adressees a une des parties, laquelle a envoye une reponse. En ce cas la lettre et la reponse sont ensemble recevables. La regie principale de la preuve par temoins que doit observer une partie qui examine un temoin est celle-ci : une question ne doit jamais suggerer par sa forme la reponse que Ton desire que le temoin fasse. Cette regie ne s'applique pas a un interrogatoire contradictoire (cross-examination). INDEX. ABROAD, cross-examinatiun, of affidaTit witness, 44 — 46. See Affidavit EVIDEXCE. defendant resident, 24. plaintiff resident, 24. sending, articles or documents for identification, 49, 104, 105. taking e^ddence, in placesnotwithinQueea'sdoroinions, Parti., 1 — 148. (a) by commission, 7 et seq., 22 et seq. (b) by special examination, 7 et seq., 22 et seq. (c) tinder letter of request, 7, 17, 53 et seq. in places within Queen'sdominions,Part II., 148 — 161 . (a) by commission, 148 et seq. (b) by mandamus, 148, 163. (c) by special examination, 148 e< seq. (d) under letter of request, 148, 158. ■witness about to go, 167, 168. ACTION TO PEEPETUATE TESTIMONY, evidence in, before vs^hom taken, 171. rules as to, 222. ADMIRALTY, affidavit evidence in default actions in rem, 21. in references, 21. alternative commissioners, 113. commission more usual than special examination, 87. commissioner, duties and powers of, 137. See Commissionees. nominee of, 113. only one usually appointed, 113. Court Acts, 84, 207, 208. Court Rules, 1859.. 83, 84, 88, 146, 232, 233. former practice, 83. forms, appointment of special examiner, 240. commission, 113, 137, 249. order for commission, 113. praecipe, 113, 255. return of commission, 260. interrogatories, commission to take evidence on, not ordered, 90. Order XXXVII. of R. S. C, 83, 90, 111. practice in, 83 e< seq. former, 83. present, 84, 8&, 268 INDEX. ADMIILAIjTY— continued. registrar, 27, 90, 225. registry, 138, 145. R. S. C. 1883, effect of, 83, 84, 111. special examination, 87, 114. examiner, duties and powers of, 137, 138. See SpeciaIi Examinee. summons, 27, 90. taking evidence out of jurisdiction, 83—91, 111—114, 134—138, 145— 147. (a) proceedings up to order, 83 — 91. Admiralty rules, repealed, 83, 88, 89. effect of repeal, 83, 84. application, before whom, 90. for commission or special examination, how made, 90. for letter of request, 91. how supported, 90, 91. Order XXXVII. of R. S. C. 1883.. 83. See Applica- tion ; Affidavit. (b) proceedings from order to examination. 111 — 114. common law practice, 112. forms, 113, 240, 249, 255, 260. stamps, 113. what governs the procedure, 112, 113. (c) the examination, 134 — 138. See Exajonation ; Deposi- tions. adjournment, 137. commissioner, duties of, 137. See CoaanssiONEBS. depositions, taking down, 135, 136. interrogatories, 134, 135. no special Admiralty rules governing, 134. practice, 134. shorthand notes, 135 et seq. writer, certificate of, 136. oath of, 136. special examiner, duties of, 137, 138. See Special Examines. viva voce evidence, 134, 135. (d) proceedings after examination up to trial, 145 — 147- practice governing, 145. transmission of depositions, 138, 145. under commissions, 145, 146. special examination, 147. taking evidence within jurisdiction but out of Court, 185. Admiralty Court Rules, 84, 88, 185. effect of R. S. C. 1883, on former practice, 185. INDEX. 269 ABMIRAJJTY— continued. taking evidence within jurisdiction but out of Court — continued. Order XXXVII. r. 39.. 185, 186. practice governing, 185. See Examination ; Examinee of Couet ; Witness. trial, using depositions at, 192 et seq. See Teial. AEFIDAVIT, business books, on application to inspect, 53. cross-examination of witness on his. See Affidavit Evidence. evidence, use of, at trial. See Affidavit Evidence. ex parte applications, in support of, 61, 63, 164 — 168. forms, 236 et seq. information and belief, stating grounds of, 62. of medical man as to illness or pregnancy, 36, 195. of solicitor as to absence of witness, 193. on application to take evidence out of the jurisdiction. See Applica- tion. contents of, 27, 29. names of commissioners, 28. special examiner, 28. witnesses, 27, 28. ahould show that, (a) action involves real issue for Court to try, 29. (b) application is bondjlde, 30, 31. defendant need not swear application is not for delay, 31. neither party need swear to merits, 31. where witness is defendant, 23 — 25, 31. plaintiff, 23—25, 30, 31. (c) examination will be effective, 31 — 33. French Court, 32. terms where efficacy of examination doubted, 25, 32. under letters of request, S3. (d) witnesses are material, 33 — 36. admissibility to be shown, 35. materiality, how shown, 34, 35. must be specifically proved, 33. (e) vdtness for good reason cannot be examined here, 35 — 39. inability to produce witness at trial, 36. must show examination is ' ' necessary for purposes of justice," 35. must specifically prove that, 35. unless evidence of witness merely formal, 37. what are good reasons for witness not coming to trial, 36. where witness is party to action, 37 — 39. foreign defendant in better position than foreign plaintiff, 38, 39. 270 INDEX. AFFID AYn—eontinued. on application to take evidence out of the jurisdiction — contimied. under commission, 27 et seq. letters of request, 33, 53. mandamus to Indian or Colonial Court, 157. order for special examination, 11 et seq. where application made ex parte, 61, 63. on application to take evidence within the jurisdiction but out of Court, 164 — 168. See Application. applications with notice, 164 — 168. ex parte applications, 61 — 63, 164 — 168. what is and is not good reason for non-attendance at trial, 165—168. age of witness, 165. illness, 36, 165—167, 195. pregnancy, 36, 165 — 167, 195. witness about to go abroad, 167, 168. trial, using at. See Affidavit Evidence. witness, cross-examination of. See Affidavit Evidence. AFEIDAVrr EVIDENCE, at trial, 19 e< seq. agreement as to, 19, 20. application to use, time for making, 21. in Admiralty actions, 21. in Chancery Division, 19. in Queen's Bench Division, 19. Ord. XXXVII. r. 1, effect of, 19. parties may agree to give whole evidence thus, 19. in such case, no jury, 19. Court may annul agreement to use, 20. decline to accept affidavits, 20. and order attendance of witness in Court, 20. but not out of Court, 20. dispense with attendance of witness, 20. order evidence of witness residing abroad to be taken upon affidavit, 21. but cannot enforce attendance in foreign country, 46. order particular facts to be proved by affidavit, 20. power exercised rarely except in formal matters, 20. not exercised when cross - examinatioa desired, 20, 21. I INDEX. 271 AFFIDAVIT ^VWEliTS—contimied. order for stranger to attend for purpose of producing — continued. does not oblige him to produce documents he would not be ordered to produce at trial, 5 1 . how di'awn up, 51. in what proceedings, 50. may be made ex parte, 51. original, must be produced at examination, 104, 105, 199. eflPect of non-production of, where no objection made at exami- nation, 199. secondary evidence, 104, 105, 199. to be furnished to commissioners or examiners before examination, 120, 121, 175. transmission of, after examination, 132, 133, 138. See Depositions. witness at examination refusing to part with original, 127. EVIDENCE, Admiralty, 134 — 138. &e Admiealty. affidavit, using at trial, 19 ef seq. See Affidavit Evidence. affidavit witness, cross-examination of, abroad, 44 — 46. within the jurisdiction, 169 et seq. See Affidavit Evidence. affirmation, 121. *See Affiemation. Bankers' Books Evidence Act, 52. See Bankees' Books Evidencb Act. bankruptcy, 69 etseq., 186, 200. certified copies of documents vrith which witness refuses to part, 127. commissioners, duties and powers of, as to taking. See Commis- SIONEES. common law rules of evidence govern procedure at examination, 125, 128, 261—266. County Court, 70 et seq., 190. cross-examination, 3, 14, 31, 32, 40, 97, 104, 116, 125, 198, 200. of affidavit witness, 44—46, 169 et seq. cross interrogatories, 3, 98. form of, 254. de bene esse, ex parte application to take. &e Evidence de Bene Esse. demeanour of witness, 126, 130. depositions, how to take the. See Depositions ; Commissionees ; Special Examinee ; Examinee of Coitet. using at trial, 192 et seq. See Teiad. directions as to taking, 16, 105, 117, 118, 197, 198. &e Dieections. divorce, 79, 132—134. &e Ditoece. documents. See Documents. certified copies of, 127. marking, put in at examination, 130. INDEX. 293 'EVIDE'NC'E— continued. doctunents, original, must be produced at examination, 104, 105, 199. effect of non-production of, where no objection made at the time, 199. English, rules of, govern procedure at examinations abroad, 125, 128, 261—266. examination, procedure at the, 116 et seq. See Depositions; Comhts- sioNEB ; Special Examiner ; Examinee of the Couet. examiner of the Court, duties and powers of, as to taking. See Examinee of Couet. experts, 122. foreign law as to, 39, 40, 122. hostile witness, 126. interpreters, 122, 123, 143, 144, 256. interrogatories, 3, 12, 18, 90, 96 — 99. /Si^e Inteerogatoeies. irregularities, 118, 121, 122, 125, 129, 143, 144, 197, 198. letter of request, taken under, 53 — 61, 132. See Lettee of Request. mandamus, taken under, 153 et seq. See Mandamus. Mayor's Court, 64 et seq., 187 et seq. See Matoe's Couet. notice of intention to use, filed before issue joined, 143. oaths, 119— 123, 255— 257. See Oatk. objections by witness, 127. objections to questions, 124. waiver of, 199. printing, 142. probate, 134. See Peobate. questions and answers, taking down, 123, 124. reading over, to witness, 129. re-examination, 14, 129. report of examiner, 129, 130. return of depositions, 43, 132, 139, 140, 142. See Retuen op Depositions. secondary evidence, 104, 105, 199, 261—266. shorthand notes, 124, 131, 135. special examiner, duties and powers of, as to taking the. See Special Examinee. suppressing, for iiTegularity, 118, 143, 197. «%■« Ieeegulaeity. taken without authority, 118. taking, abroad, in places not within the Queen's dominions, Part I., 1—148. in places within the Queen's dominions. Part II., 148 ct seq. within the jurisdiction, but out of Court, 162 ct seq. See Appointment. taking down the, 123 et seq. form for guide of examiners in, 257 — 260, 294 INDEX. EVIDENCE —continued. translations, 143, 144. transmission of, 132, 139, 140. &c Retuen of Depositions. trial, using depositions at, 192 ct seq. See Teial. vim voce, 14, 18, 125, 261—266. witness. See Witness. EVIDENCE BE BENE ESSE, power to order examination to take, abroad, on e.f jt)«7' 32, 192, 103. See AFeu.QA.TiON. INDEX. 313 TRlAJj— continued. evidence of due return of commission, 196. examined copies of depositions, 196. exclusion of improper questions, 198. not at instance of party putting the question, 199. imless no objection taken before examiner, 199. foreign law, proving, at, 39, 40. grounds for refusing to admit depositions at, 100, 198, 199. waiver, 100, 101, 199. illness or infirmity of deponent, 165, 166, 194, 195, how proved, 195. interrogatories, using at, 200. See Inteeeogatoeies. putting in answers to, where interrogatories lost, 200. whole of answers to, as well as answers to cross-interrogatories (by way of cross-examination) , mixst be read or abandoned, 200. irregularities, in mode of taking depositions, 117, 118, 197. See DiEECTioNS ; Ieeeqtjlaeity. waiver, 101, 199. medical witness, affidavit of, 195. oath of deponent, 121. objections to evidence, 198, 199. office copies of depositions, 196. Ord. XXXVII. r. 5.. 8, 10, 11. r. 18. .11, 192. pi'egnancy of deponent, 166, 195. reading depositions at, 192. return of commission, evidence of due, 196, 197. See Ketxten of Depositions. secondary evidence, 104, 199. shorthand notes, 124, 131, 135. stay of, 2, 43, 142, 235, 243. terms as to use of depositions, at, 8, 10, 11, 192, 193. ■who may use depositions, at, 199. whole of deposition must be read or abandoned, 200. VIVA VOCE EVIDENCE, cross-examination, 14, 31, 32, 116, 125, 198, 221. of affidavit witness, 44 — 46, 169 et seq. examination in chief, 14, 18, 125. principles of the EngUsh Rules of Evidence, 104, 125, 128, 198, 199. table of the, in English, 261. in French, 265. in German, 263. re-examination, 14, 128, 129. See CoMMissioNEE ; Special Examinee ; Examinee of Cottet ; Depositions ; Witness. W. Y 314 INDEX. WITNESS. /See Application ; Affidavit; Affidavit Evidence; Com- mission ; CoMMissio.vEE ; Documents ; Depositions ; Examina- tion ; Examinee of Court ; Evidence. about to go abroad, examination out of Court of, 61, 167, 168. See Application; Affidavit; Trial. absence of, at examination, 129, 130. (S^e Attendance, infra. deponent at trial, 193. affidavit of solicitor as to, 193. how proved, 193, 194. action to perpetuate testimony, 170, 171. adjournment of examination of, 128. Admiralty. 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