in the form prescribed by the 32d Order, otherwise the deposition 'taken upon it may be suppressed upon motion.1 The interrogatories being drawn and signed by counsel, must be copied upon parchment, and, if intended for the examination of witnesses in London, or within twenty miles of it, they must be left with one of the Examiners of the Court, which is termed filing interrogatories; 2 but if any of the witnesses are to be examined by commission, the plaintiff should file, with the Examiner, such interrogatories only as apply to witnesses resident within the jurisdiction of the Examiner's Office. It is to be observed, that the practice is, to draw all the original interrogatories exhibited on behalf of one party in one set or schedule, leaving the selection of such as are proper for the particular witnesses to the solicitor, and where some of the witnesses of a party reside in London, and some in the country, it is necessary to have one set of interrogatories only drawn by counsel; and the solicitor, in procuring the same to be engrossed, distinguishes and copies those intended for the examination of town witnesses, separate from those intended for country witnesses. If the interrogatories are to be exhibited in the Examiner's Office, and witnesses are examined thereon, either party may, without application to the Court or order for the purpose, exhibit one or more interrogatories, or a new set of interrogatories for the further examination of the same or other witnesses.5 But when a commission is taken out, the practice has been different. In Campbell v. Scougal, it appears to have been represented at the bar, that the practice in country causes in England, is to feed the Commissioners from time to time with interrogatories for the examination, as they can be presented either for original or cross-examination, until the Commissioners find that the supply of witnesses is exhausted; and although Lord Eldon observes that there was no doubt, that of late, interrogatories had been sent down into the country, from time to time, as often as prudence required and were returned, and that the Court had acted upon examination so taken and returned, yet his Lordship said the practice was not so formerly; and that he had frequently, when at the bar, drawn inter21 Turn. & V. 191. See Beames's Ord. 71. 1 Gover v. Lucas, 8 Sim. 200. Ibid.; Hind. 320, n. 51 Smith Ch. Pr. Ed. 1838, p. 354. 619 Ves. 552. rogatories guessing at what any witness to be examined to any fact in issue, could possibly represent, and that the interrogatories, both for the cross-examination and for the original examination of the defendants' witnesses, were prepared before the commission was opened: and notwithstanding the representation made at the bar, the practice of the Court appears to have been in conformity with his Lordship's recollection. Indeed it obviously must have. been so, from the nature of the oath which was administered to the Commissioners, which was limited to the examination of witnesses upon the interrogatories" Now" (i. e. at the time of administering the oath) "produced and left with you." This word "Now" has been left out of the oath hereafter to be administered to the Commissioner, under the 104th Order, of May, 1845; whether, therefore, hereafter new interrogatories may be exhibited before a commission remains to be seen. Under the former practice, where additional interrogatories were required to be exhibited after the commission had been opened, an order for that purpose must have been obtained." It is to be observed, however, that notwithstanding a commission has been issued, and the parties have joined in it, and witnesses have been examined, new interrogatories may be exhibited into Court, (i. e. before the Examiner,) for the examination of new witnesses at any time before publication; but if a witness has been examined by Commissioners in the country, he cannot be examined again before the Examiner, without a special order.1 3 Interrogatories for the cross-examination of witnesses, differ very little in form from original interrogatories; they may be filed with the Examiner who examines in chief.5 Formerly this could not be done without a special order. 1 Post. 2 Carter v. Draper, 2 Sim. 53; King of Hanover v. Wheatley, 4 Beav. 78. * Lewis v. Owen, 1 Dick. 6; Beames's Ord. 96, S. C.; Hind. 333. • Hind. 333. * Ord. 26, 1833. • Turner v. Burleigh, 17 Ves. 354. SECTION II. Of the Examination of Witnesses by the Examiner on Interrogatories.1 WITNESSES in Chancery are examined either by an Examiner or by Commissioners specially appointed for that purpose by commission under the Great Seal.2 The first thing to be done by the party intending to examine witnesses before the Examiner, is to file his interrogatories, or such of them as apply to the witnesses to be examined, in the manner before pointed out. He must then procure the attendance of his witnesses at the Examiner's Office; for which purpose he ought to fix a day with the Examiner, when he will be able to examine them, and to give notice of such day to the witnesses.* If the witness be in prison, his situation must be represented to the Examiner, who will fix a day for attending at the prison to swear and examine the witness. The Examiner (with whom the interrogatories for the examination of such witness should have been previously left) will then proceed to the prison, taking the interrogatories with him, and, the witness being sworn thereto in the common form, the examination is taken in the usual manner, and the depositions and interrogatories are returned by the Examiner to the office, to be kept, as in ordinary cases, until publication pass in the cause.5 1 By rule of Chancery in New Jersey, when any cause shall be at issue, &c., it shall be the duty of the parties to proceed and examine their witnesses within a reasonable time thereafter; and on a notice for the examination of witnesses▾ given by either party, both parties may produce and examine their witnesses, but the examiner, if required so to do, shall first examine the witnesses of the party who first gave notice. Rule XIII. § 1. 2 In the United States Courts the Commissioner or Commissioners shall be named by the Court or a Judge thereof in all cases. Equity Rule 67. • Notice that witnesses will be examined at a particular tavern in a city named in the notice, without naming the christian name of the tavern-keeper, is good, unless it is shown that there were in the same city two tavern keepers of the same surname. Overstreet v. Thompson, 1 Litt. 120. An irregularity in the service of notice of examination will be considered as waived by a neglect to complain of it in due season. Skinner v. Dayton, 5 John. Ch. 191. Before the stat. 3 & 4 Will. IV. c. 94, it was necessary that the Master should go to the prison, as well as the Examiner, for the purpose of administering the oath. Hind. 330. In like manner, if a witness be incapable, by reason of sickness, of attending at the Examiner's Office to be examined, and it is not thought necessary to sue out a commission to take his examination, the Examiner may go to the place of the witness's residence. and administer the oath and take the deposition of the witness.1 In either of the above cases notice must be given in the usual manner to the other party of the time and place of examination The form of the oath administered to witnesses in Chancery is as follows: "You shall true answer make to all such questions as shall be asked of you on these interrogatories, without favor or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth: So help you God." After the witness has been sworn to the interrogatories, a jurat, stating the producing and swearing of the witness to the interrogatories, with his name and the day and year when sworn, is inscribed upon the interrogatories, and signed by the Examiner.2 If, after the witness has been sworn, any alteration is made in the title, or any part of the interrogatories, they must be re-sworn, but not re-produced.3 When new interrogatories are added, the witness must be sworn to them in the same form. Before the witnesses are examined, the Examiner ought to be, and generally is, furnished with instructions as to which of the interrogatories each witness is to be examined upon. The solicitor also supplies a minute of the evidence he expects his witness to give; but of such minute no use can be made in the examination.4 After the examination is begun, the Examiner ought not to confer with either party touching the examination, or take new instructions respecting the same.5 With respect to the method of examining a witness, Lord ClarAn order for this purpose seems to be necessary. See anon. 4 Mad. 463. Sed quære, if the Examiner is willing to go without an order? 2 Hind. 322. * See Mr. Plumer's return of the duties of Examiners to the Chancery Commission, Chan. Rep. Appx. B. No. 22, p. 542. Mr. Plumer's statement, ubi supra. Hind. 325; 4 Inst. 278. In the United States Courts, these examinations may now be conducted orally, and the testimony taken down in writing by the Examiner, the examina endon's Orders, which have been before referred to, direct, that "the Examiner is to examine the deponent to the interrogatories directed seriatim and not to permit him to read over, or hear read, any other interrogatories, until that in hand be fully finished; much less.is, he to suffer the deponent to have the interrogatories, and peit his own depositions, or depart, after he hath heard an interrogatory read over, until he hath perfected his examination thereto. And if any witness shall refuse so to conform himself, the Examiner is thereof to give notice to the clerk of the other side, and to proceed no further in his examination without the consent of the said clerk or order made in Court to warrant his so doing." The same Orders afterwards direct, that "the Examiners, in whom the Court reposeth great confidence, are themselves in person to be diligent in the examination of witnesses, and not to intrust the same to mean and inferior clerks, and are to take care and hold the witness to the point interrogated, and not to run into extravagances and not pertinent to the question." 2 "Moreover, they are not to use any idle repetitions or needless circumstances, nor to set down any answer to a question to which the examinant cannot depose other than thus, to such an interrogatory this examinant cannot depose'; and in case such impertinencies be observed by the Court, the Examiner is to recompense the charge thereof to the party grieved, as the Court shall direct.3 The Examiner is not strictly bound to the letter of the interrogatories, but ought to explain every matter or thing which ariseth necessarily thereupon; and forasmuch as the witness, by his oath, which is so sacred, calleth Almighty God (who is truth itself, and cannot be deceived, and hath knowledge of the secrets of the heart) to witness that which he shall depose, it is the duty of the Examiner gravely, temperately, and leisurely to take the depositions of witnesses, without any menace, disturbance, or interruption of them in hinderance of the truth.5 tion and cross-examination to be conducted in the mode pursued in common law courts. Ante, 889, 890; U. States Court Equity Rule, 67, and the amendment thereof, March 17, 1862, 24 Law Rep. 380, 381. In Massachusetts, see Pingree v. Coffin, 12 Cushing, 600. 1 Beames's Ord. 187. See Hickok v. Farmers' and Mechanics' Bank, 35 Vermont, 476. 2 Ibid. 188. 3 Ibid. 190. Hind. 325; 4 Inst. 278. See also Peacock's Case, 9 Rep. 70. |