PERPETUATING TESTIMONY.

Where there was a danger that testimony might be lost before the question to which it related could be made the subject of judicial investigation, the Court of Chancery, following the practice of the civil law, lent its aid to preserve and perpetuate such testimony. A bill was filed, stating the matter respecting which the plaintiff desired to take evidence, and showing that he had an interest in the matter which could not be barred by the defendant, that the defendant claimed an interest adverse to the plaintiff in the matter, and that the matter could not be made the subject of present judicial investigation (r). An affidavit of the circumstances by which the evidence desired to be preserved was in danger of being lost, was filed with the bill. The plaintiff could only require an answer from the defendant as to the facts and circumstances alleged by the bill as entitling him to examine the witnesses (s); and the bill could not be set down for hearing. The witnesses were examined before an examiner, according to the provisions of sections 31, 32 and 33 of 15 & 16 Vict. c. 86, and by the defendant as well as by the plaintiff (t). An order might be obtained to use the depositions so taken, either after the death of the witness (u), or in case he were too infirm (x), or could

(r) Earl Spencer v. Peek, L. R., 3 Eq. 415; 15 W. R. 478.

(s) Ellice v. Roupell, 32 Beav. 308.

(t) Earl of Abergavenny v. Powell, 1 Merivale, 434.

(u) Barnsdale v. Low, 2 R. & M. 142.

(x) Biddulph v. Lord Camoys, 20 Beav. 402.

not be compelled, to attend (y). A case for the perpetuation of testimony was not confined to aged and infirm witnesses, or to a single witness who can alone speak to the matter; but Lord Romilly said (~), "You may examine everybody, and all the evidence is sealed up and only brought out when occasion requires it, and if the witnesses are alive it cannot be used, and the evidence must be taken all over again."

Actions to perpetuate testimony are now governed by Order 37, rr. 35—38, of the R. S. C. 1883. They are as follows:

"35. Any person who would, under the circumstances 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 happening of such event, may commence an action to perpetuate any testimony which 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 depositions 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

(y) Biddulph v. Lord Camoys, 20 Beav. 402.

(*) Earl Spencer v. Peek, L. R., 3 Eq. 415; 15 W. R. 478.

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 be set down for trial."

The practice under these rules will be, it is assumed, this-the plaintiff having commenced his action in the ordinary way, and having in his statement of claim set out the facts which entitle him to commence the action under Rule 35, the witnesses will be examined before an examiner of the court, and the depositions will be filed in the ordinary way. These depositions will not be sealed up, as was the former practice, but copies will be obtainable in the ordinary way as soon as they are filed; and they will be admissible in evidence in any subsequent action against the parties to the original action or their privies if the attendance of the witnesses themselves cannot be procured. A defendant can, as stated above, examine witnesses in an action to perpetuate testimony, as well as the plaintiff.

APPENDIX.

LORD DENMAN'S ACT.

6 & 7 VICT. c. 85.

An Act for improving the Law of Evidence.

[22nd August, 1843.]

I. Whereas the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony: Now, therefore, 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, that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest from giving evidence, either in person or by deposition, according to the practice of the court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any court, or before any judge, jury, sheriff, coroner, magistrate, officer or person having, by law or by consent of parties, authority to hear, receive and examine evidence; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question