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PART IV.

CLASS X.

EVIDENCE.

[No. 1.] 1W. IV. c. 22.-An Act to enable Courts of Law

to order the Examination of Witnesses upon Interrogatories and otherwise.

[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 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 13 G. 3, c. 63. 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 proPowers of the visions : Be it therefore enacted, &c. That all and every the powers, recited act, as authorities, provisions, and matters contained in the said recited act, to the examina- relating to the examination of witnesses in India (1), shall be and the tion of wit

same are hereby extended to all colonies, islands, plantations, and places nesses in India, extended to the

under the dominion of his Majesty in foreign parts (2), and to the judges colonies, &c.

of the several courts therein, and to all actions (3) depending in any of and to all ac

his Majesty's courts of law at Westminster, in what place or county tions in the soever the cause of action may have arisen, and whether the same may courts at West- have arisen within the jurisdiction of the court to the judges whereof the minster, when writ or commission may be directed, or elsewhere, when it shall appear examination by that the examination of witnesses under a writ or commission issued in commission

pursuance of the authority hereby given will be necessary or conducive

to the due administration of justice in the matter wherein such writ shall necessary.

be applied for (4). Judges to whom II. When any writ or commission shall issue under the authority of the commission the said recited act, or of the power herein-before given by this act, the is directed em- judge or judges to whom the same shall be directed shall have the like powered to en- power to compel and enforce the attendance and examination of witnesses

as the court whereof they are judges does or may possess for that purtendance of witnesses.

pose in suits or causes depending in such court.

shall appear

(1) Under this act the court has power to issue a mandamus for the examination of witnesses in India, wherever the cause of action arose ; Bain v. De Vetry, 3 Dowl. 516.

(2) A mandamus can not be issued into Scotland for the examination of witnesses there under this section, but a commission may be issued under sect. 4; Wainwright v. Bland, 3 Doul. 654.

(3) Where a witness resides abroad at so great a distance that a commission sent out to examine him would necessarily create great delay, it is not a matter of course to grant such commission on the defendant's application, but it must be made out to the satisfaction of the court that the witness's evidence would be admissible, and of service, when obtained; Lloyd v. Key, 3 Dowl. 253.

This statute does not apply to indictments; Rer v. Briscoe, 1 Dowl. 520.

(4) It is still discretionary with the court whether they will allow the expences of foreign witnesses brought over for the purpose of a cause, or only the costs of a commission ; M'Alpine v. Coles, 2 Dowl. 299.

III. That the costs of every writ or commission to be issued under No. I. the authority of the said recited act, or of the power herein-before given 1 W.4, c. 22. by this act, in any action at law depending in either of the said courts at Westminster, and of the proceedings thereon, shall be in the discretion Costs of writs of the court issuing the same (1).

to be in the disIV. That it shall be lawful to and for each of the said courts at West- cretion of the minster, and also the court of common pleas of the county palatine of court. Lancaster, and the court of pleas of the county palatine of Durham, and Courts at Westthe several judges thereof, in every action depending in such court, upon minster, Lanthe application of any of the parties to such suit, to order the examina- caster, and

Durham may tion on oath, upon interrogatories or otherwise, before the master or

order the exaprothonotary of the said court, or other person or persons to be named

mination of witin such order (2), of any witnesses within the jurisdiction of the court

nesses within where the action shall be depending (3), or to order a commission to issue their jurisdic. for the examination of witnesses on oath at any place or places out of tion by an offisuch jurisdiction (4), by interrogatories or otherwise, and by the same cer of the court; or any subsequent order or orders to give all such directions touching or may order a the time, place, and manner of such examination, as well within the commission for jurisdiction of the court wherein the action shall be depending as with that purpose out, and all other matters and circumstances connected with such exa- out of their ju

risdiction. minations, as may appear reasonable and just.

V. That when any rule or order shall be made for the examination of Compelling atwitnesses within the jurisdiction of the court wherein the action shall be tendance of depending, by authority of this act, it shall be lawful for the court, or any

witnesses, or judge thereof, in and by the first rule or order to be made in the matter,

production of

documents. or any subsequent rule or order, to command the attendance of any person to be named in such rule or order for the purpose of being examined, or the production of any writings or other documents to be mentioned in such rule or order, and to direct the attendance of any such person to be at his own place of abode, or elsewhere, if necessary or convenient so to do; and the wilful disobedience of any such rule or order shall be Disobedience deemed a contempt of court, and proceedings may be thereupon had by to be deemed a attachment (the judge's order being made a rule of court before or at the contempt of time of the application for an attachment), if, in addition to the service court.

(1) Where the defendant obtains depositions from India under this act, the plaintiff is entitled to copies at his own expence; Davis v. Nicholson, 7 Bing. 358 ; 5 M. & P. 185; 1 Dowl. 220 : and if the plaintiff gains the cause he is entitled to the costs of cross-examining these witnesses ; Whytt v. M'Intosh. 8 B. & C.317; 2 M. & R. 133.

(2) An action having been brought against the plaintiffs, whose witnesses were about to leave England for New York, they applied to the chief justice of the king's bench under this act for a commission to examine their witnesses before the trial. His lordship, however, ordered them to be examined vivá voce before a gentleman of the bar, with liberty to the defendants to attend and crossexamine them. The plaintiffs took no proceedings under that order, but their witnesses having shortly after gone to New York, they filed a bill in the court of chancery, and afterwards moved for a commission to examine them at New York. The motion was granted, as that court retains its jurisdiction to grant commissions, and will exercise its own discretion on applications ; Gunnell v. Cobbold, 4 Simons, 546.

(3) Where it is sworn that the witness is in a precarious state of health, and cannot attend the trial without danger, he may be examined before the officer of the court under this section ; Pond v. Dimes, 2 Dowl. 730; and where illness is the ground of the application, it must appear that the illness is likely to exist at the time of the trial; 1 Dowl. 266; 1 M. & S. 384; 8 Bing..143.

In certain cases the court will make the rule absolute in the first instance, unless cause be shown on the morrow; Pirie v. Iron, 1 Dowl. 252 ; 1 M. & S. 223 ; 8 Bing. 143.

(4) An application for the examination of a witness out of the jurisdiction of the court must be made as early as possible after issue joined ; Brydges v. Fisher, 3 M. & S. 458.

A commission may be granted under this section to examine witnesses in France; 1 Tyr. 502, 505 n.

On an application to have a witness within the jurisdiction of the court examined under this section, the naine of the person before whom the person is to be examined must be mentioned upon the motion ; Doe d. Thorne v. Phillips, 1 Doul. 56.

cause.

Vo. I. of the rule or order, an appointment of the time and place of attendance 1 W.4, c. 22. in obedience thereto, signed by the person or persons appointed to take

the examination, or by one or more of such persons, shall be also served Payment of together with or after the service of such rule or order : Provided always, expences. that every person whose attendance shall be so required shall be entitled

to the like conduct money and payment for expences and loss of time as Proviso as to

upon attendance at a trial: Provided also, that no person shall be comproduction of

pelled to produce, under any such rule or order, any writing or other documents.

document that he would not be compellable to produce at a trial of the Prisoners may

VI. That it shall be lawful for any sheriff, gaoler, or other officer be removed by having the custody of any prisoner, to take such prisoner for examinahabeas corpus tion under the authority of this act, by virtue of a writ of habeas corpus for examina

to be issued for that purpose, which writ shall and may be issued by any tion.

court or judge under such circumstances and in such manner as such court or judge may now by law issue the writ commonly called a writ of

habeas corpus ad testificandum. Examinations VII. That it shall be lawful for all and every person authorized to take of witnesses to the examination of witnesses by any rule, order, writ, or commission be taken upon made or issued in pursuance of this act, and he and they are hereby oath.

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 Persons giving by any judge of the court wherein the action shall be depending; and if false evidence upon such oath or affirmation any person making the same shall wilfully to be deemed and corruptly give any false evidence, every person so offending shall be guilty of per- deemed and taken to be guilty of perjury, and shall and may be indicted jury.

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.

VIII. That it shall and may be lawful for the master, prothonotary, pointed for tak- or any other persons to be named in any such rule or order as aforesaid ing examina

for taking any examination in pursuance thereof, and he and they are tions to report hereby required, to make, if need be, a special report to the court touchto the court

ing such examination, and the conduct or absence of any witness or upon the con other person thereon or relating thereto; and the court is hereby authoduct or absence of witnesses, if

rized to institute such proceedings and make such order and orders upon necessary.

such report as justice may require, and as may be instituted and made

in any case of contempt of the court. Costs of the IX, That the costs of every rule or order to be made for the examina. order for exa- tion of witnesses under any commission or otherwise by virtue of this

act, and of the proceedings thereupon, shall (except in the case hereinbe made costs

before provided for) be costs in the cause, unless otherwise directed in the cause.

either by the judge making such rule or order, or by the judge before

whom the cause may be tried, or by the court. Restriction as X. That no examination or deposition to be taken by virtue of this act to the reading shall be read in evidence at any trial without the consent of the party of examinations against whom the same may be offered, unless it shall appear to the or depositions satisfaction of the judge that the examinant or deponent is beyond the without consent

jurisdiction of the court, or dead, or unable from permanent sickness or other permanent infirmity to attend the trial; in all or any of which cases the examinations and depositions certified under the hand of the commissioners, master, prothonotary, or other person taking the same, shall and may, without proof of the signature to such certificate, be received and read in evidence, saving all just exceptions (1).

Persons ap

mination may

of the party.

(1) A witness for the defendant was examined on a commission granted under sect. 4, on his cross-examination, a paper signed by him was produced to him, and a portion of the cross-examination and re-examination was founded on it. It was held that this paper was not to be read as part of the cross-examination, but that if the plaintiff's counsel wished it to be read before the crossXI. Provided always, That no order shall be made in pursuance of No. I. this act by a single judge of the court of pleas of the said county pala- 1 W.4, c. 22. tine of Durham, who shall not also be a judge of one of the said courts at Westminster.

Proviso as to judges of Durham.

[No. II.] 3 & 4 W. IV. c. 42.-An Act for the further Amendment of the Law, and the better Advancement of Justice.

[14th August 1833.] XV. And whereas it is expedient to lessen the expence of the proof Power to the of written or printed documents, or copies thereof, on the trial of causes; judges to make be it further enacted, That it shall and may be lawful for the said judges, regulations as or any such eight or more of them as aforesaid, at any time within five to the admisyears after this act shall take effect, to make regulations by general sion of written rules or orders, from time to time, in term or in vacation, touching the documents (1). voluntary admission, upon an application for that purpose at a reasonable time before the trial, of one party to the other of all such written or printed documents or copies of documents as are intended to be offered in evidence on the said trial by the party requiring such admission, and touching the inspection thereof before such admission is made, and touching the costs which may be incurred by the proof of such documents or copies on the trial of the cause in case of the omitting to apply for such admission, or the not producing of such document or copies for the purpose of obtaining admission thereof, or of the refusal to make such admission, as the case may be, and as to the said judges shall seem meet; and all such rules and orders shall be binding and obligatory in all courts of common law, and of the like force as if the provisions therein contained had been expressly enacted by parliament.

XXVI. And order to render the rejection of witnesses on the Witnesses inground of interest less frequent, be it further enacted, That if any wit- terested solely

examination was read, it must be read as his evidence, so as to entitle the defendant's counsel to olserve upon it; Stephens v. Foster, 6 Curr. & P. 289.

(1) In pursuance of this clause two rules relating to the admission of written documents in evidence were made in Hilary term 2 W. IV; but these were superseded by the following rule of llilary term 4 W. IV.

Either party, after plea pleaded and a reasonable time before trial, may give notice to the other, either in town or country, in the form hereto annexed marked A., or to the like effect, of his intention to adduce in evidence certain written or printed documents, and unless the adverse party shall consent indorsement on such notice, within forty-eight hours to make the admission specitied, the party requiring such admission may call on ihe party required by summons, to show cause before a judge why he should not consent to such admission; or in case of refusal, be subject to pay the costs of proof. And unless the party required shall expressly consent to make such admission, the judge shall, if he think the application reasonable, make an order that the costs of proving any document specified in the notice which shall be proved at the trial to the satisfaction of the judge or other presiding officer, certified by his indorsement thereon, shall be paid by the party so required, whatever may be the result of the cause.

Provided that, if the judge shall think the application unreasonable, he shall indorse the summons accordingly.

Provided also, that the judge may give such time for inquiry or examination of the documents intended to be offered in evidence, and give such directions for inspection and examination, and impose such terms upon the party requiring the admission as he shall think fit.

If the party shall consent to admission, the judge shall order the same to be made.

No costs of proving any written or printed document shall be allowed to any party who shall have adduced the same in evidence in any trial, unless he shall have given such notice as aforesaid, and the adverse party shall have refused or neglected to make such admission, or the judge shall have indorsed upon the summons that he does not think it reasonable to require it.

A judge may make such order as he may think fit respecting the costs of the application and the costs of the production and inspection : and in the absence of a special order, the same shall be costs in the cause."

K K

No. II. ness shall be objected to as incompetent on the ground that the verdiet 3 & 4 W. 4, or judgment in the action on which it shall be proposed to examine him c. 42. would be admissible in evidence for or against him such witness shall

nevertheless be examined, but in that case a verdict or judgment in that on account of action in favour of the party on whose behalf he shall have been exathe verdict to mined shall not be admissible in evidence for him or any one claiming be admissible. under him, nor shall a verdict or judgment against the party on whose

behalf he shall have been examined be admissible in evidence against him or any one claiming un

him (1). Direction to XXVII. That the name of every witness objected to as incompetent indorse the on the ground that such verdict or judgment would be admissible in name of the

evidence for or against him shall at the trial be indorsed on the record witness on the

or document on which the trial shall be had, together with the name of record.

the party on whose behalf he was examined, by some officer of the court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such indorsement or entry shall be sufficient evidence that such witness was examined in any subsequent proceeding in which the verdict or judgment shall be offered in evidence.

(For the clause of the above act giving arbitrators appointed under a rule of court power to compel the attendance of witnesses, see ante, Part IV., Class I.]

[No. III.] 3 & 4 W. 4. c. 49.-An Act to allow Quakers

and Moravians to make Affirmation in all Cases where an Oath is or shall be required.

[28th August 1833.] Quakers and WHEREAS it is expedient and reasonable that the solemn affirmation Moravians per

of persons of the persuasion of the people called Quakers, and of mitted to make Moravians, should be allowed in all cases where an oath is or shall be rea solemn af quired; be it therefore enacted, &c., That every person of the persuasion firmation or of the people called Quakers, and every Moravian, be permitted to make declaration in- his or her solemn affirmation or declaration, instead of taking an oath, stead of an

in all places and for all purposes whatsoever where an oath is or shall be oath.

required either by the common law or by any act of parliament already made or hereafter to be made, which said affirmation or declaration shall be of the same force and effect as if he or she had taken an oath in the usual form; and if any such person making such solemn affirmation or declaration shall be lawfully convicted wilfully, falsely, and corruptly to have affirmed or declared any matter or thing, which if the same had been in the usual form would have amounted to wilful and corrupt perjury, he or she shall incur the same penalties and forfeitures as by the

(1) The above section does not make the drawer of an accommodation bill a competent witness for the defendant in an action by the indorsee against the acceptor; Burgess v. Cuttili, 6 Car. & P. 282. So in an action against a carrier for negligence in carrying a parcel, the carrier's servant is not made a competent witness for the defendant by the above statute ; Harrington v. Caswell, 6 Car. & P.352 ; and see Mitchell v. Hunt, ib. 351 ; and a party who is directly interested in the event of an action or suit, by being liable for the costs, cannot be rendered a competent witness under this clause ; Jesus College v. Gibbs, 1 Young & Collyer, 145. But in an action against executors for a debt of a testator, a person entitled to an annuity under the will is a competent witness for the defendants ; Nowell v. Davies, 5 B. & Ad, 368 ; 2 Nev. & M. 745. So in an action on the warranty of a horse, the vendor of the horse to the defendant, who gave a similar warranty on that sale, is a competent witness for the defendant; Baldwin v. Nixon, (Lord Tenterden) 1 Moo. & R. 59; and an owner of lands in a parish is a good witness to prove the custody of old receipts for moduses, alleged to be payable for his lands, notwithstanding he has agreed to contribute to the costs of the suit; Tomlinson v. Lymer, 4 Simons, 473. The evidence of a witness in support of a modus for milk and calves is receivable, notwithstanding he occupies a cottage and garden in the parish ; Id. 469.

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