11. Pracipe for Habeas Corpus ad Testificandum. to wit. Habeas corpus to testify, between A. B. plaintiff and C. D. defendant, on the part of the plaintiff [or "defendant."] 1839. P. A. attorney. 12. Habeas Corpus ad Testificandum. the Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland queen, defender of the faith, to the marshal of our prison of the Marshalsea, [or "warden of our prison of the Fleet," or "to the sheriff of or other officer in whose custody the prisoner is,] greeting: We command you, that you have the body of W. W. detained in our prison, under your custody, as it is said, under safe and secure conduct,* before our right trusty and well-beloved (name of chief justice,) our chief justice assigned to hold pleas in our court before us, [or in C. P. "before our right trusty and well-beloved (name of chief justice), our chief justice assigned to hold pleas in our court of the Bench," or in the Exch. "before our right trusty and well-beloved (name of chief baron), our lord chief baron of our court of Exchequer at Westminster"] at the Guildhall, [&c. as in the subpana, ante, 55, No. 7,] on day of next, by of the clock in the forenoon of the same day, then and there to testify the truth, according to his knowledge, in a certain cause now depending in our court before us, [or in C. P. "before our justices of the Bench aforesaid," or in the Exch. "before the barons of our said Exchequer,"] and then and there to be tried, between A. B. plaintiff and C. D. defendant, in an action on promises, [or "of debt," &c. as the action is,] on the part of the said A. B. [or "the said C. D."]; and immediately after the said W. W. shall then and there have given his testimony before our said chief justice, [or “chief baron," if in town; and if in the country, “before our said justices,"] that you return him the said W. W. to our said prison, under safe and secure conduct; and have there then [or in C. P. or Exch." have there,"] this writ. Witness, (name of chief justice or chief baron), at Westminster, the year of our reign. [See 1 Chit. Ar. Pr. 233.] day of in the 13. Affidavit, for Rule or Order to examine Witness on Interrogatories or otherwise (a). In the Q. B. [or "C. P." or "Exch. of Pleas."] A. B. of Between A. B. plaintiff and C. D. defendant. the above-named plaintiff, maketh oath and saith, that this action is brought for, &c. [stating the cause of action concisely,] and that issue was joined in this cause on the day of last, and notice of trial given for the sittings within [or "sittings after"] term last: And this deponent further saith, that W. W. (b) is a material and necessary witness for this deponent in the said cause, as he this deponent is advised and verily believes; and that he this deponent cannot safely proceed to the trial thereof without the testimony of the said W.W. And this deponent further saith, that the said W. W. is about to leave (a) See a form, Tidd's Supp. 315. (b) The affidavit should in general state the name of the witness or witnesses, or otherwise describe them. See 1 Chit. Ar. Pr. 243. The examiners may be named at the time of showing cause; Fearon v. White, 5 Dowl. 713. this kingdom, in a few days, for ——, in parts beyond the seas, and is not expected to return for a considerable time, as he hath informed this deponent, and as this deponent verily believes; [or "that the said W. W. is now resident at in parts beyond the seas," or "is dangerously ill, and not expected to recover," or " is not expected to be able to attend the trial of the said catise," &c. according to the fact.] Sworn [&c. (a).] A. B. [See 1 Chit. Ar. Pr. 57.] 14. The like, in another form. In the Q. B. [or "C. P.," or " Exch. of Pleas."] Between A. B. plaintiff and C. D. defendant. A. B. of &c., and W. W. of &c., make oath and say, and first he the said A. B. for himself saith, that this action hath been brought and is depending for the recovery of [here state the cause of action concisely] and that issue was joined in this cause on last. And this deponent further saith, that the said W. W. is a material and necessary witness for and on the behalf of the said plaintiff in support of this action, and that with the evidence of the said W. W. this deponent is advised and verily believes the said plaintiff will obtain a verdict on the trial of this cause; but without the evidence of the said W. W. the said plaintiff cannot safely proceed to the trial of this cause. And this deponent further saith, that since the commencement of this action, as this deponent hath been informed and verily believes, the said W. W. hath been required immediately to proceed to, in on very urgent business, and must remain there for upwards of two years. And the said W. W. for himself saith, that he is well acquainted with the facts and circumstances relative to this action, and that it hath become and is necessary for this deponent immediately to proceed to in, on very urgent business of this deponent, in which he is deeply and personally interested, and that he expects and verily believes that he will be detained at aforesaid, on the said business, for two years or upwards, and if this deponent doth not immediately, and before the end of this month, proceed to aforesaid, the pecuniary interests of this deponent will be materially injured, and this deponent will sustain great loss. Sworn [&c. (a).] V. [See 1 Chit. Ar. Pr. 57.] A. B. 15. Judge's Order to examine a Witness on Interrogatories before Commissioners in the Country (b). B. Upon hearing the attornies or agents on both sides, and by virtue and authority of the statute in this behalf made and provided, I D. order that W. W., a witness on behalf of the plaintiff, and now within the jurisdiction of this court, shall and may be examined upon interrogatories, to be exhibited to him at -, in the county of - on the day of, or at such other time or place as shall be previously agreed upon between the parties, before I. K. and L. M., of, gentlemen, commissioners on behalf of the plaintiff, and N. O. and P. Q., of gentlemen, commissioners on behalf of the defendant, or any three of them: And I further order that days before the time appointed for such intended examination, the plaintiff's attorney shall deliver to the (a) See Index, title "Jurat." (b) See a form, Tidd's Supp. 315. defendant's attorney a copy of the interrogatories so intended to be exhibited as aforesaid; and that the defendant shall be at liberty to crossexamine the said witness upon cross-interrogatories to be exhibited in like manner; and that the costs of such examination and cross-examination be costs in the cause; and I do further order, that the proceedings in this cause be stayed until the day of next. Dated the day (Judge's signature.) 16. The like, for Examination of Witness vivá voce, without a Com B. V. D. mission directing a Special Report (a). Upon hearing the attornies or agents on both sides, and by their consent, and by virtue and authority of the statute made and provided in this behalf, I do order that E. F. and G. H., witnesses on behalf of the above-named plaintiff, and now within the jurisdiction of this court, shall and may be respectively examined upon oath, before Mr. Serjeant [or -, esquire, barrister at law," or -, gent."] &c.] And I do further order and direct, that the said witnesses may be examined in chief by counsel, or by the attorney for and on the behalf of the said plaintiff, and may be examined by counsel, or by the attorney for and on behalf of the said defendant, and may be examined by the said 66 66 (examiner's name), as he shall think fit; and that such examination shall be had and taken vivà voce, and not upon interrogatories; the said several witnesses being severally sworn, or making affirmation, in cases where such affirmation is allowed by law instead of oath, before me, or some other judge of this court: And by the like consent and authority I do further order, that it shall and may be lawful for the said · (examiner's name), and I do hereby require him to make, if need shall be, a special report touching the examinations hereby directed, and the conduct or absence of all or any of the said several witnesses: And lastly, by the like consent and authority, I do further order and direct, that the said examinations shall be without delay returned to my chambers, certified under the band and seal of the said (examiner's name), on or before day of A. D. 1839. (Judge's signature.) the day of next. Dated the 17. Rule of Court for a Commission, where the Witness is ill or abroad, In the Q. B. [or " C. P." or "Exch. of Pleas."] V. On the day of A.D. 1839. upon hearof counsel B. Upon reading the affidavit of A. B. and another, and ing Mr. of counsel for the plaintiff, and Mr.D. for the defendant, [and with their consent,] it is ordered, by virtue of the statute in this behalf made and provided, that a commission at the instance of the [plaintiff'] in this cause, to be settled and approved of by one of the masters of this court, be issued, directed to [two] commissioners to be named on the part of the plaintiff, and to [two] other commissioners to be named on the part of the defendant, respectively, for the examination de bene esse before the said commissioners upon such commission, of W. W. one of the said [plaintiff's] witnesses, who is now ["dangerously ill," or "resident beyond the seas at, as it is said,”] upon interrogatories to be exhibited to him under such commission; and that the [defendant] be at liberty to exhibit cross-interrogatories for the cross-examination of such witnesses before the said commissioners under («) See a form, Tidd's Supp. 316. the said commission; and that the attornies or agents of the said plaintiff and defendant, within a reasonable time (a) before the execution of the said commission, shall respectively deliver to each other correct copies of their respective interrogatories. And it is further ordered, that the said commission shall be executed by or in the presence of [two] at least, of the commissioners so to be appointed as aforesaid; and that previously to the execution thereof, the time and place for executing the same shall be appointed by the said commissioners, or by any [two] or more of them, and they shall cause a notice of such appointment to be duly served upon each of the others of the said commissioners, and upon the attornies or agents of the said parties respectively [two] days, at least, before the execution of the said commission. And it is further ordered, that the said commission shall be returnable on the day of, and that the said commission, and the interrogatories and cross-interrogatories to be exhibited, and the depositions and cross examinations taken in manner aforesaid, be without delay transmitted, under the respective seals of such of the said commissioners as shall so take the same, to esquire, one of the masters of this court, and that the same be admitted to be read and given in evidence at the trial of this cause, saving all just exceptions. [See 1 Chit. Ar. Pr. 242, 243.] By the Court. 18. Judge's Order for a Commission, where the Witness is ill or abroad. In the Q. B. [or "C. P." or "Exch."] A. B. Upon hearing the attornies or agents on both sides, I do order V. that a commission issue to examine the witnesses in this cause, C. D. Supon interrogatories, and that the said commission be executed in any one or two places in [Ireland] to be named by the [defendant's attorney] within [three] days from the present time, and that the said commission be executed before the last day of next -term, [or ""] and I further order that the names and descriptions of the witnesses be given by each party to the other (that is to say,) the defendant to give the names and descriptions of his witnesses to the plaintiff [ten days] before the examination of such witnesses, and the plaintiff to give the same notice to the defendant or his attorney of the names and descriptions of his witnesses, and that the plaintiff join in this commission. And I further order that the commissioners' names (one on each side) be furnished by each party to the other within three days from the date hereof, and that each party be at liberty to cross-examine on interrogatories, and that such cross-interrogatories be handed to the other party within [five] days after the receipt of the interrogatories in chief, and that the examination and cross-examination shall not proceed without the presence of both commissioners. And I further order that the said interrogatories and the depositions taken therewith be returned to my chambers in Rolls' Garden, under the hands and seal of the said commissioners, and that either party may be at liberty to take an office copy or copies, and that the same may be read in evidence at the trial of this cause, saving all just exceptions. Dated the day of 1839. [See 1 Chit. Ar. Pr. 382.] (a) For the sake of avoiding disputes as to the reasonableness of the time, it may be as well to state in the rule the respective times for delivery (Judge's signature.) of interrogatories and cross-interrogatories, allowing a few days to elapse between them. 19. Commission thereon. Victoria, by the grace of God, of the united kingdom of Great Britain and Ireland queen, defender of the faith, to ·(name the commissioners) greeting: Know ye, that we, in confidence of your prudence and fidelity, have appointed you, and by these presents do give unto you, any two or more of you, full power and authority diligently to examine the witnesses, upon certain interrogatories to be exhibited to them, as well on the part of A. B. plaintiff as on the part of C. D. defendant, in an action on promises [or "debt," &c. as the case may be,] now depending between them in our court before us [or in C. P. "before our justices," or in Exch. "before the barons of our Exchequer,"] at Westminster: And therefore we command you, any two or more of you, that on or before the - day of now next ensuing, at a certain day and place, [or "certain days and places"] to be appointed by you for that purpose, you cause the said witnesses to come before you at [Paris,] and then and there examine each of them apart, upon the said interrogatories, on their respective corporal oath first taken before any two or more of you, according to the form of their several religions; and that you do take such their examinations, and reduce them into writing, on paper or parchment; and when you shall have so taken them, you are to send the same, without delay, to our said court before us, [or in C. P. "before our said justices," or in the Exch. "before the barons of our said Exchequer,"] at Westminster, closed up, under your seals, or the seals of any two or more of you, distinctly and plainly set, together with the said interrogatories, and this writ, to be filed of record in the office of, esq., one of the masters of the same court. And we further command you and every of you, that before you act in or be present at the swearing or examining of any witness or witnesses, you take an oath, according to the form of your several religions, that you will, according to the best of your skill and knowledge, truly and faithfully, and without partiality to any or either of the parties, take the examination and deposition of all and every witness and witnesses produced and examined by virtue of this writ, upon the interrogatories produced and left with you; and we give you, any two or more of you, full power and authority, jointly or severally, to administer such oath to the rest, or any other of you. And we further command, that all and every the clerk or clerks employed in taking, writing, transcribing, or engrossing the deposition or depositions of witnesses to be examined by virtue hereof, shall, before he or they be permitted to act as clerk or clerks as aforesaid, severally take an oath, truly, faithfully, and without partiality to any or either of the parties in the cause, to take and write down, transcribe, and ingross the deposition of all and every witness and witnesses produced before and examined by you the said commissioners, or any of you, as far forth as he or they are directed and employed by you the said commissioners, or any of you, to take down, write, or ingross the said depositions; which oath any two or more of you are hereby empowered to administer to such clerk or clerks, according to his or their several religions. And we further command, that previous to the execution of this commission, which is granted by us at the instance of the said plaintiff [or "defendant,”] and by him prosecuted, the said and, commissioners who have been named, approved, and appointed, on behalf of the plaintiff [or "defendant,"] shall give, or cause to be given, two days' notice in writing of such execution of this commission, under their respective hands, to the said and —, respectively, commissioners who have been named, approved of, and appointed, on behalf of the defendant, [or "plaintiff"] by delivering such notice to the said -and |