in equity. (a) It was, however, sparingly done;-it was refused in a case where a witness to a bond was confined by sickness; the Court preferring to leave matters to their usual course, namely, proof of the handwriting in case the witness should continue ill at the time of the trial. (b) But the stat. 1 Wm. 4, c. 22, enacts, by s. 4, " that it shall be lawful to and "for each of the Courts of Law at Westminster, and also the "Courts of Common Pleas of the County Palatine of Lancaster, " and the Court of Pleas of the County Palatine of Durham, "and the several Judges thereof, in every action depending "in such Court, upon the application of any of the parties to such suit to order the examination on oath, upon inter"rogatories or otherwise, before the Master or Prothonotary " of the said Court, or other person or persons to be named in "such order, of any witnesses within the jurisdiction of the "Court where the action shall be depending, or to order a commission to issue for the examination of witnesses on 'oath at any place or places out of their jurisdiction, by "interrogatories or otherwise, and by the same or any subse quent order or orders to give all such directions touching "the time, place, and manner of such examination, as well "within the jurisdiction of the Court wherein the action shall "be depending as without, and all other matters and circum 66 stances connected with such examinations, as may appear "reasonable and just." And by s. 8, the person taking such examination is "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 thereto;" &c. The same statute, referring to stat. 13 Geo. 3, c. 63, (which gave a power to the Court of King's Bench to order, by a writ of mandamus, depositions to be taken by the Judges of the Courts in India,) extends the provisions of that act to "all colonies, “islands, plantations and places under the dominion of His (a) See 2 Tidd's Prac. 854. [Et vide Davis v. Lowndes, ut supra, p. 121, n. (d). On this subject, see also Starkie on Evid., 3rd ed. p. 320.] St. 1 Wm. 4, c. 22, as to India and all colonies, &c. [ 93 ] Stat. 3 G. 3, c. 63. Majesty in foreign parts." (a) The Court of Chancery received a similar power by stat. 13 Geo. 3, c. 63, sec. 44, but finds its own commissions more convenient for the same purpose. (b) [The depositions taken de bene esse, no less than other depositions, are subject to suppression, in case of any sufficient irregularity in their taking. (c)] (a) [Where certain accounts had been given in evidence at Madras, (a mandamus having been issued by the Court of Queen's Bench, under stat. 13 Geo. 3, c. 63, s. 40, for the examination of witnesses), it was held that, at the trial here, copies could not be received in evidence; Reg. v. Douglas, 1 Car. & K. 670; S. C. 2 Dowl. N. S. 416; 7 Jur. 305. As to mode of proceeding at law, under a Judge's order for a commission to examine witnesses abroad, see M'Combie v. Nuton, 6 Scott, N. R. 923, and Scott v. Vansandau, 8 Jur. 114. As to interrogatories at law, see Steinkeller v. Newton, 9 C. & P. 313; S. C. 2 Moo. & R. 372; see also Robinson v. Markes, ibid. 375. (b) [As to India, &c., vide supra, p. 115, n. (b), and p. 116, n. (h).] (c) [Vide infra, P. II. ch. 1.] [COMMISSIONS EXECUTED IN SCOTLAND OR IRELAND.] [Part of the stat. 6 & 7 Vict. c. 82, "For amending the Law relating to Commissions for the examination of witnesses," (a) is as follows: s. 5. "And whereas there are at present no means of compelling the attendance of persons to be examined under any commission for the 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, and great inconvenience may arise by reason thereof; be it therefore enacted,-That if any person, after having been served with a written notice to attend any commissioner or commissioners appointed to execute any such commission for the examination of witnesses as aforesaid, (such notice being signed by the commissioner or commissioners, and specifying the time and place of attendance,) shall refuse or fail to appear and be examined under such commission, such refusal or failure to appear shall be certified by such commissioner or commissioners, and it shall be, thereupon 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 executed, or any 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 Court or Judge to whom such application shall be made by Rule or Order to command the attendance and examination of any person to be named, or the production of any writings or documents to be mentioned, in such Rule or Order." (a) [The remaining part of this statute will be found below, P. III. ch. VII. As to Affidavits, to which that part more Means of persons to compelling attend and be examined and produce documents. Pains and penalties on default. Conduct money, &c. Privilege as to the production of any writing or document. Attendance. s. 6. "That upon the service of such Rule or Order upon the person named therein, if he or she shall not appear before such commissioner or commissioners as aforesaid for examination, or to produce the writings or documents mentioned in such Rule or Order, the disobedience to such Rule or Order shall, if the same shall happen in England or in Ireland, render the person disobeying subject to and liable to such pains and penalties as he or she would be subject and liable to by reason of disobedience to a writ of subpœnd in England or Ireland, (a) and if such disobedience shall happen in 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." s. 7. "Provided always, &c."-" That every person whose attendance shall be so required shall be entitled to the like conduct money and payment of expenses, and for loss of time as for and upon attendance at any trial in a Court of Law; (b) And that no person shall be compelled to produce under such Rule or Order any writing or document that he or she would not be compellable to produce at a trial, (c) nor to attend on more than two consecutive days, to be named in such Rule or Order." (d)] (a) [Ut vide supra, p. 101-2.] protected from arrest; as to which, vide (c) Ut vide supra, p. 64, n. (a).] NEW COMMISSIONS, OR ADDITIONAL COMMISSIONS. By an Order of 13 Car. 2, May, 1661, Clarendon, C. Old practice. "He at whose instance a commission to examine after a former commission executed and returned is once renewed, and he by whose default, or by the default of his commissioners, a former commission was not executed, and thereupon it is renewed, shall, at his peril, examine all his witnesses by that renewed commission, or examine them in Court, by the end of the Term wherein the renewed commission is returnable, without any more or further delay." (a) (a) [Sand. Ord. 304. As to commissions prior to the Orders of May, 1845. Feme sole, having sued out a commission to examine witnesses, marries before any were examined; the commission not thereby abated or discharged, but the deposition ordered to stand; Winter v. Dancie, Tothill. 99. A commission having been granted to examine witnesses at Algiers, the plaintiff died, by which, in strictness, the suit abated; but the witnesses having been examined there, before notice of the death, the examination was held to be regular, though one witness still living; Thompson's case, 3 P. W. 195. A commission to examine abroad having been executed and returned, the defendant (who had not his interrogatories prepared) not having had the opportunity of cross-examining, a new commission was granted for that purpose, the defendant to state whom he wishes to undertake to cross-examine; but the plaintiff's depositions not suppressed; Campbell v. Scougall, 19 Ves. 452. Where a party had a commissioner present upon the first examination, he must not examine upon new interrogatories, by another commission, as to the merits of the cause; Richardson v. Lowther, 1 Ch. Ca. 274. A defendant who has joined in commission cannot obtain a new commission except upon a special application, and with notice; Bond v. Bond, 4 Sim. 518, and in 8 Ves. 315, Anon. 1 Vern. 334; Depositions under a commission having |