By whom made out, and proceedings there on. Examination of witnesses to be case, where the defendant had obtained a rule for issuing a commission to take interrogatories in France, Lord Tenterden said that it would be limiting the commission too much, to make it part of the order, that it should be returned in three weeks; and observed, that if it were not returned in proper time, the plaintiff might apply that the cause should proceeda: The witnesses intended to be examined in this case, and the time, place, and manner of examining them, were mentioned in the order a. A rule of court for the examination of witnesses on interrogatories in a foreign country is not an absolute stay of proceedings, but only a limited one. And, on an application by the defendant for a commission to examine witnesses abroad, the court refused to make it a part of the rule, to call upon the plaintiff to produce a bill of exchange in his possession, at the time of executing the commission . So, the court will not stay the issuing of a commission to examine witnesses abroad, merely on the ground that some costs are due from the plaintiff to the defendant in equity d. And the costs of executing a commission in a foreign country are costs in the cause, unless some special ground be laid for ordering otherwise. The commission for the examination of witnesses out of the jurisdiction of the court, must be made out by the party obtaining the rule and the interrogatories being prepared, engrossed on parchment, and signed by counsel, should be annexed to the commission, with the cross interrogatories, if any; after which the same should be forwarded, with full instructions, to an agent, to be delivered to the commissioners, the time and place for examination being appointed, and notices thereof given, as directed by the commission; And the examinations having been taken in pursuance thereof, the commission and interrogatories, with the depositions annexed, are returned to the court in which the action is pending, certified under the seals of the commissioners; and either party will be entitled to a copy thereoff. As to the mode of examining witnesses on interrogatories, it is declared by the act 8 to be "lawful for all and every person author a Reynard v. Cope, 1 Tyr. Rep. 505. (a.) b Forbes v. Wells, 3 Dowl. Rep. 318. Cunliffe v. Whitehead, Dowl. Rep. 10 Leg. Obs. 505, 6. S. C. e Prince v. Samo, 4 Dowl. Rep. 5. 10 Leg. Obs. 238. S. C. per Coleridge, J.; and see Clay v. Stephenson, 5 Nev. & M. 318. 3 Ad. & E. 807. 1 Har. & W. 409. S. C. Chapm. Prac. K. B. 2 Ed. 242. 246. "ized to take the examination of witnesses by any rule, order, writ, taken upon oath, 66 66 66 66 or commission, made or issued in pursuance of that act, and he "and they are thereby 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 "court wherein the action shall be depending: And if, upon such "oath or affirmation, 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: And that it shall and may be "lawful for the master, prothonotary, or any other person to be "named in any such rule or order as aforesaid, for taking any ex"amination in pursuance thereof, and he and they are thereby re'quired to make, if need be, a special report to the court, touch 66 or affirmation. Persons giving false evidence, to be deemed guilty of perjury. Persons appointed for taking examinations to report to the court, upon the conduct or absence of witnesses, if thereon. "ing such examination, and the conduct or absence of any wit- necessary. ness or other person thereon, or relating thereto; and the court Proceedings "is thereby 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 the "court."a The party succeeding in the action was not formerly entitled to Costs of examinthe costs of examining his witnesses on interrogatories, or taking on interrogaing witnesses office copies of depositions; but the party whose witnesses were tories. examined paid his own expense, unless it were otherwise expressed in the rule b: and this held, as well with regard to witnesses examined abroad, as in this country: The reason was, that by the practice of the court of Chancery, a party applying for a commission to examine witnesses on his behalf, must pay the expenses; and unless the courts of law had adopted the same rule, with respect to the party applying for leave to examine witnesses abroad on depositions, which could not be done without the other party's consent, such consent would never have been given, but the applicant would have been driven to the expense of applying for a commission d. But, in the Common Pleas, where the rule of court for examining witnesses by commission expressed that the depositions of witnesses at Hamburgh and Lubeck were to be taken, and a Stat. 1 W. IV. c. 22. § 8. b Stephens v. Crichton, 2 East, 259; and see Hul. Costs, 2 Ed. 439. с Taylor v. Royal Exchange Assurance d Same v. Same, id. 393, 4. By stat. 1 W. Restriction, as to the reading of examinations or depositions, without consent of the party. 66 the commission was directed to persons at Hamburgh, and the costs were ordered to abide the event of the trial, the expenses of bringing witnesses from Lubeck to Hamburgh were allowed on taxation. And now, by the statute 1 W. IV. c. 22, "the costs of every rule "or order to be made for the examination of witnesses, under any "commission or otherwise, by virtue of that act, and of the proceed"ings thereupon, shall, except in the case thereinbefore provided "for, be costs in the cause, unless otherwise directed, either by the "judge making such rule or order, or by the judge before whom the cause may be tried, or by the court." Since the making of this statute, it is discretionary with the court, whether they will allow the expenses of foreign witnesses brought over for the purposes of a cause, or only the costs of a commission d. And the costs of a commission to examine a witness abroad, are not allowed to the party who obtains the commission, although successful in the action, where the examination is more peculiarly for his benefit. But in order to review a taxation by the master, for disallowing the expenses of detention of a foreign witness in this country, it should be shewn that the master did not exercise his discretion on the subject, after special grounds for the allowance had been laid before him. 66 As the depositions on interrogatories, however, are only taken de bene esse, it is enacted by the above statute 8, that " no examination or deposition, to be taken by virtue of that act, shall be read in "evidence at any trial, without the consent of the party against "whom the same may be offered, unless it shall appear to the satis"faction of the judge, that the examinant, or deponent, is beyond "the 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 sig"nature to such certificate, be received and read in evidence, saving all "just exceptions." And it has been holden, that witnesses examined under a judge's order, in expectation of their going abroad, are ex Muller. Hartshorne, 3 Bos. & P. Ante, 487. d M'Alpine v. Poles, (Powles, or Coles,) 1 Cromp. & M. 795. 3 Tyr. Rep. 871. 2 Bridges (or Brydges) v. Fisher, 1 Bing. N. R. 510. 1 Scott, 485. 1 Hodges, 36. S. C. f White v. Mayor, 5 Tyr. Rep. 487. Stat. 1 W. IV. c. 22. § 10; and as to giving depositions in evidence, sce Tidd Prac. 9 Ed. 811, &c. amined as much for one side as the other; and either party may use their evidence at the trial, if it be shewn that the witnesses are abroad: but this must be proved; and the statement in their depositions, that they are going abroad, is not sufficient for this purpose a Proctor v. Lainson, 7 Car. & P. 629. CHAP. XXXVI. Power of arbirevocable by the trators formerly parties. Cannot now be revoked, without leave of court, or judge. Of ARBITRATION. IT was formerly holden, that the power of arbitrators might be determined by the revocation of the parties; respecting which it was laid down, that although a man were bound in a bond to stand to the arbitrament of another, yet he might countermand or revoke the power of the arbitrator; for a man could not, by his own act, make an authority, power, or warrant, not countermandable, which by the law, and of its own nature, might be countermanded. But now, by the act for the further amendment of the law b, &c. reciting that it is expedient to render references to arbitration more effectual; it is enacted, that" the power and authority of any arbitrator or umpire, appointed by or in pursuance of any rule of court, or judge's or"der, or order of nisi prius, in any action now brought, or which "shall be hereafter brought, or by or in pursuance of any submission "to reference, containing an agreement that such submission shall "be made a rule of any of his majesty's courts of record, shall not "be revocable by any party to such reference, without the leave of "the court by which such rule or order shall be made, or which "shall be mentioned in such submission, or by leave of a judge; "and the arbitrator or umpire shall and may, and is thereby required "to proceed with the reference, notwithstanding any such revoca❝tion, and to make such award, although the person making such "revocation shall not afterwards attend the reference; and that the court, or any judge thereof, may from time to time enlarge the 66 a Vynior's case, 8 Co. 82; and see Skee v. Coxon, 10 Barn. & C. 483. Tidd Prac. b Stat. 3 & 4 W. IV. c. 42. § 39; and see 2 Rep. C. L. Com. 27. 79. As to submissions to arbitration in general, see Tidd Prac. 9 Ed. 819, &c.; and in what cases, and by what means, they might have been determined or revoked, with the consequences of revocation, previously to the above enactment, see id. 822, 3, 4. and Supplement thereto, 1830, p. 142, 3. |