Absence of material witness.] In some cases an application on affidavit may be made to put off the trial on account of the absence of a material witness. An application to put off the trial beyond the existing sittings, or from sittings to sittings, was not generally allowed on the part of the plaintiff; because he might at any time withdraw the record if he was not prepared to try. Per Ld. Ellenborough, Ansley v. Birch, 3 Camp. 333. As now, however, by Rules, 1883, O. xxvi. r. 1, a plaintiff cannot withdraw the record without the leave of the court or a judge, this reason fails, and these applications on the part of plaintiffs are more frequent than they were prior to that rule. And where, from the sudden indisposition of a witness who might be able to attend in the course of a day or two, or for other temporary reason, the plaintiff was prevented from trying his cause in its order in the paper, yet had ground to believe he should be able to try it before the sittings were over, a judge at Nisi Prius would make an order for the trial to stand over till the witness was likely to attend. And a similar order was made if it appeared that the absence of the witness was owing to the conduct of the defendant's attorney. Turquand v. Dawson, 1 C. M. & R. 709. When a motion is about to be made to a judge at Nisi Prius for putting off the trial on account of the absence of a witness, notice should first be given to the opposite solicitor, with a copy of the affidavit intended to be used in support thereof. Where expenses have been incurred by the other party in bringing up witnesses, the application will only be granted on the terms of paying them. No affidavit of merits is required. Att.-Gen. v. Hull, 2 Dowl. 111; Hill v. Prosser, 3 Dowl. 704. The affidavit may be made by the party, or by his solicitor; Duberly v. Gunning, Peake, 97; or by the solicitor's clerk, if he have the management of the cause. Sullivan v. Magill, 1 H. Bl. 637. A common form of affidavit for this purpose will be found in the APPENDIX.

Production of documents under subpoena duces tecum.] A witness served with a subpoena duces is bound to bring into court any document proved to be in his possession, though he may have a valid excuse for not showing it in evidence; and the validity of the excuse is matter for the judgment of the court, and not of the witness. Amey v. Long, 9 East, 473.

The court will excuse production if the disclosure would subject the party to a criminal charge or penalty; Whitaker v. Izod, 2 Taunt. 115; but not unless the party from whom disclosure is sought will pledge his oath that to the best of his belief the production would tend to criminate him. Webb v. East, 5 Ex. D. 108, C. A. It seems, however, that production will not be enforced in an action for penalties. Hunnings v. Williamson, 10 Q. B. D. 459, 462. An action for liquidated sums, recoverable for infringement of dramatic copyright, is not within this exception. See Adams v. Batley; Cole v. Francis, 18 Q. B. D. 625, C. A. With the above exceptions, no document relevant to the issue, not being a title deed (as to which vide post, p. 155), is privileged from disclosure, unless it be a confidential communication professionally made between counsel or solicitor and client, or information obtained by the solicitor, or an agent employed by him, or by the client on his recommendation. Bustros v. White, 1 Q. B. D. 423, C. A.; Anderson v. Bank of British Columbia, 2 Ch. D. 664, C. A.; M'Corquodale v. Bell, 1 C. P. D. 471; Friend v. L. Chatham & Dover Ry. Co., 2 Ex. D. 437, C. A.; Lyell v. Kennedy, 27 Ch. D. 1, C. A, Information voluntarily given by a third person to the solicitor is privileged. Young v. Holloway, 12 P. D. 167, C. A. So it seems is the proof of a witness's evidence which the solicitor

has prepared for insertion in counsel's brief. Per Bovill, C. J., Tichborne v. Lushington, 28 Feb., 1872, shorthand notes, pp. 5101, 5102, cited Taylor Ev., § 932, n. So, information obtained by the client for the purpose of obtaining the opinion of the solicitor thereon, and although the purpose was not carried out. Southwark & Vauxhall Water Co. v. Quick, 3 Q. B. D. 315, C. A. See also Bristol, Mayor, &c. of v. Cox, 26 Ch. D. 678. The privilege is not confined to the action in respect of which the communication was made. Bullock v. Corrie, 3 Q. B. D. 356; Pearce v. Foster, 15 Q. B. D. 114. See also The Palermo, 9 P. D. 6, C. A. Confidential communications between solicitor and client are privileged, though made before any litigation was in contemplation; Minet v. Morgan, infra; but communications obtained by the solicitor from third persons are not privileged unless prepared confidentially after a dispute had arisen, for the purpose of obtaining information, evidence, or legal advice with reference to litigation existing or contemplated between the parties. Wheeler v. Le Marchant, 17 Ch. D. 675, C. A. The transcript of a shorthand note of evidence and arguments taken at a reference (Rawstone v. Preston Cor., 30 Ch. D. 116) or of proceedings in open court (Nicholls v. Jones, 2 H. & M. 588; Robson v. Worswick, 38 Ch. D. 370) is not privileged, even although the note be taken by the party's solicitor. Id. 373, per North, J. In Nordon v. Defries, 8 Q. B. D. 508, where such transcript was held privileged, Nicholls v. Jones, supra, was not cited. Vide, 38 Ch. D. 372, 373. See further, post, pp. 168 et seq.

A party will not be compelled to produce his title deeds. Pickering v. Noyes, 1 B. & C. 263. But he must pledge his oath that they do not to the best of his belief contain anything impeaching his case or material to the case of the other party, or the deeds will not be privileged. Minet v. Morgan, L. R., 8 Ch. 361. A solicitor will not be compelled to produce his client's title-deed. Harris v. Hill, 3 Stark. 140. So a defendant cannot compel the production of deeds of the plaintiff by serving a subpoena on his steward in whose possession they are; for his possession is that of his employer; Falmouth, El. of v. Moss, 11 Price, 455; and see Crowther v. Appleby, L. R., 9 C. P. 23; nor can a clerk in a public office be compelled to bring official papers without leave of the principal; Austin v. Evans, 2 M. & Gr. 430. An attorney was not obliged by subpoena to disclose a deed of the defendant, his client, though he had been improperly compelled by commissioners of bankrupt (under whom the plaintiff claimed) to undertake to produce it. Nixon v. Mayoh, 1 M. & Rob. 76.

The solicitor must produce the documents of a client in his possession which the client would himself be bound to produce. Doe d. Courtail v. Thomas, 9 B. & C. 288; Bursill v. Tanner, 16 Q. B. D. 1, C. A. So in an action by a cestui que trust against her trustee, a communication made by the defendant to an attorney relating to the matter of the trust was, on the ground that the real interest was in the plaintiff, held to be not privileged. Shean v. Philips, 1 F. & F. 449, Erle, J. See also Mason v. Cattley, 22 Ch. D. 609; Postlethwaite v. Rickman, 35 Ch. D. 722. Where an attorney had received from his client, a former rector (who was also patron), a book to collect tithes by and also a map of the glebe, with a view to a sale of the advowson: in an action by the succeeding incumbent (who was presentee of the purchaser of the advowson), for land claimed as glebe, it was held that the attorney might be called upon to produce both, as evidence against him. Doe d. Marriott v. Hertford, Ms. of, 19 L. J., Q. B. 526. Where an attorney, employed by a client, B., to negotiate an exchange of land with A., which went off, obtained an abstract of title from A., he might produce it in a suit by A., for recovery of the

land from a defendant claiming under A.'s ancestor, as secondary evidence against the plaintiff of the original deeds, although he had not had B.'s permission. Doe d. Ld. Egremont v. Langdon, 12 Q. B. 711. The attorney and steward of the lord of a borough was held bound to produce certain presentments and precepts touching the appointment of officers in the borough, as being of a public nature. R. v. Woodley, 1 M. & Rob. 390. In an action by a reversioner to recover the land, the executor of the previous tenant for life is bound to produce a steward's book of his testator showing receipt of rent for the land, in order to prove the plaintiff's title; and it is immaterial that the witness is interested in defeating the action. Doe d. El. of Egremont v. Date, 3 Q. B. 609. A mortgagor could not, after the mortgage had become absolute, compel the production, by the mortgagee, of the title-deeds of the mortgaged property, without payment of principal, interest, and costs. Chichester, El. of v. Donegall, Ms. of, L. R., 5 Ch. 497. But this rule would seem now to be altered as to mortgages made after 31st December, 1881, by the Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 16, which entitles a mortgagor to inspect and make copies of the deeds, so long as his right to redeem exists.

Per

Where the witness declines to produce an instrument on the ground of professional confidence, the judge should not inspect it to see whether it was one which he ought to withhold; Doe d. Carter v. James, 2 M. & Rob. 47; Volant v. Soyer, 13 C. B. 231; 22 L. J., C. P. 83; and it seems that the mere assertion on oath by the solicitor that it is a title-deed or other privileged document, is conclusive. S. C. And if the document be brought into court by a witness, who says that he is instructed by the owner to object to the production of it, this is enough to justify secondary proof without subpoenaing the owner himself to make the objection in person. Phelps v. Prew, 3 E. & B. 430; 23 L. J., Q. B. 140. It seems to be sufficient if one only of several interested parties object. Maule, J., Newton v. Chaplin, 19 L. J., C. P. 374. See also Kearsley v. Philips, 10 Q. B. D. 465, C. A. When the production is excused, secondary evidence is admissible. Marston v. Downes, 1 Ad. & E. 31; Doe d. Gilbert v. Ross, 7 M. & W. 102. An attorney who was allowed to withhold a title-deed of his client, was obliged to show another witness, who produced a copy of a deed which he believed to be the deed withheld, the indorsement on the outside of the original, so as to enable him to identify it with the one copied. Phelps v. Prew, supra. If the solicitor produce his client's deed without objection, the evidence is admissible; see Hibberd v. Knight, 2 Exch. 11. And the verdict will not, it seems, be endangered by the reception of it; for it is the privilege of the witness, and not of the party in the action, to withhold it. Phelps v. Prew, supra. The witness is not entitled to have his liability to produce argued by counsel. Doe d. Rowcliffe v. Egremont, El. of, 2 M. & Rob. 386.

A person merely subpoenaed to produce, and not to testify, need not be sworn. Perry v. Gibson, 1 Ad. & E. 48. And if sworn by mistake, he is not liable to cross-examination. Rush v. Smith, 1 C. M. & R. 94.

By Rules, 1883, O. lxi. r. 28, "No affidavit or record of the court shall be taken out of the central office without the order of a judge or master, and no subpoena for the production of any such document shall be issued." Nor in any action to which the bank is not a party, can a banker, except by judge's order, be compelled to produce any of his books the contents of which can be proved under the Bankers' Books Evidence Act, 1879 (42 & 43 Vict. c. 11), ante, pp. 122, 123; sect. 6.

EXAMINATION OF WITNESSES.

Ordering witnesses out of court.] During a trial the court will, on the application of either of the parties, order all the witnesses in the cause, except the one under examination, to go out of court. But if the solicitor in the cause be a witness, he will, in general, be suffered to remain, his assistance being necessary to the proper conduct of the cause. Pomeroy v. Baddeley, Ry. & M. 430. This, however, is a matter entirely for the discretion of the judge. If the witness remain after being ordered to withdraw, it will not necessarily prevent his being examined; Parker v. M William, 6 Bing. 683; R. v. Colley, M. & M. 329; and the better opinion is that, although the witness may be fined for disobedience, the judge cannot refuse to hear him under such circumstances; Chandler v. Horne, 2 M. & Rob. 423; Cobbett v. Hudson, 1 E. & B. 14; except in Exchequer causes, where the witness is peremptorily excluded on trials between the Crown and a subject. Att.-Gen v. Bulpit, 9 Price, 4; Parker v. M William, supra. It is not the practice to order either of the parties out of court so long as their conduct there is unobjectionable. Charnock v. Dewings, 3 Car. & K. 378. But as a party can now be a witness, as such he is perhaps liable to be ordered out of court. See Outram v. Outram, W. N. 1877, p. 75, M. V.-C. As, however, a party may conduct his own cause in court, examine his witnesses, and give evidence as one himself (Cobbett v. Hudson, 1 E. & B. 11; 22 L. J., Q. B. 11), it follows that the party in such a case has a right to remain in court.

Oath of witness.] By the common law of England every witness must be sworn according to some religious ceremony or other, and if it be dispensed with, it can only be by the authority of an Act of Parliament. Maden v. Catanach, 7 H. & N. 360; 31 L. J., Ex. 118, per Pollock, C. B. There is, however, no prescribed form of oath; it is to be that which the witness himself declares to be binding upon his conscience, and he is always allowed to adopt the ceremonies of his own religion. Phill. Ev., 9th ed., p. 9; Omichund v. Barker, Willes, 547; 1 Smith's Lead. Cas. Atcheson v. Everitt, Cowp. 382; Miller v. Salomons, 7 Exch. 534, 558; 21 L. J., Ex. 186, 196, per Alderson, B., and Pollock, C. B.

The usual ceremony of swearing a Christian witness is as follows: He takes a copy of the Holy Gospels or of the whole of the New Testament into his naked right hand, and the officer of the court whose duty it is to administer the oath addresses him thus: "The evidence which you shall give between the parties shall be the truth, the whole truth, and nothing but the truth, so help you God;" and the witness then kisses the book.

A Jew is sworn upon the Pentateuch, with his head covered. 2 Hale, P. C. 279; Omichund v. Barker, Willes, 543. But a Jew who stated that he professed Christianity, but had never been baptized, nor had even formally renounced the Jewish faith, was allowed to be sworn on the New Testament. R. v. Gilham, 1 Esp. 285. A witness who stated that he believed both the Old and New Testament to be the word of God, yet, as the latter prohibited, and the former countenanced, swearing, he wished to be sworn on the former, was permitted to be so sworn. Edmonds v. Rowe, Ry. & M. 77. So, where a witness refused to be sworn in the usual form by taking the book in his right hand and afterwards kissing it, but desired to be sworn by having the book laid open before him and holding up his right hand, he was sworn accordingly. Dalton v. Colt, 2 Sid. 6; Willes, 553. And where, on a trial for high treason, one of the witnesses refused to be sworn in the usual manner, but put his hands to his buttons, and in reply to a question whether he was sworn, stated that he was sworn and was under oath, it was held sufficient. R. v. Love,

5 How. St. Tr. 113. A Scottish witness has been allowed to be sworn by holding up the hand, without touching the book or kissing it, and the form of the oath administered was: "You swear according to the custom of your country and of the religion you profess, that the evidence," &c., &c. R. v. Mildrone, 1 Leach, C. C. 412; R. v. Walker, Id. 498; Mee v. Reid, Peake, 23. Ld. George Gordon, before he turned Jew, was sworn in the same manner, upon exhibiting articles of the peace in the King's Bench. MS.; M'Nally Ev. 97. The following is also given as the form of a Scottish Covenanter's oath: "I, A. B., do swear by God himself, as I shall answer to him at the great day of judgment, that the evidence I shall give to the court and jury touching the matter in question is the truth, &c. So help me God." 1 Leach, C. C. 412, n. And now by the Oaths Act, 1888 (51 & 52 Vict. c. 46), s. 5, "If any person to whom an oath is administered desires to swear with uplifted hand, in the form and manner in which an oath is usually administered in Scotland, he shall be permitted so to do, and the oath shall be administered to him in such form and manner without further question." In Ireland it is the practice to swear Roman Catholic witnesses upon a New Testament with a crucifix or cross on it. MS.; M'Nally Ev. 97. A Mahomedan is sworn on the Koran. The form in R. v. Morgan, 1 Leach, C. C. 54, was as follows: The witness first placed his right hand flat upon the book, put the other hand to his forehead, and brought the top of his forehead down to the book, and touched it with his head. He then looked for some time upon it, and being asked what effect that ceremony was to produce, he answered that he was bound by it to speak the truth. The deposition of a Gentoo has been received, who touched with his hand the foot of a Brahmin. Omichund v. Barker, 1 Atk. 21. The following is given in one case as the form of swearing a Chinaman. On entering the box the witness immediately knelt down, and a china saucer having been placed in his hand, he struck it against the brass rail in front of the box and broke it. The officer of the court then, through an interpreter, addressed him thus: "You shall tell the truth, and the whole truth; the saucer is cracked, and if you do not tell the truth, your soul will be cracked like the saucer." R. v. Entrehman, 1 Car. & M. 248. If the witness do not understand the English language he must of course be addressed through an interpreter.

By stat. 1 & 2 Vict. c. 105, s. 1, in all cases in which an oath may lawfully be and shall have been administered to any person, either as a juryman or a witness, or a deponent in any proceeding, civil or criminal, in any court of law or equity in the United Kingdom, or on any occasion whatever, such person is bound by the oath administered, provided the same shall have been administered in such form and with such ceremonies as such person may declare to be binding."

A witness may be asked whether he considers the form of administering the oath to be such as will be binding on his conscience. The proper time for asking him this question is before the oath is administered; but as it may happen that the oath may be administered in the usual form, by the officer, before the attention of the court, or party, or counsel, is directed to it, the objection is not, in such a case, to be precluded; but the witness may nevertheless be afterwards asked whether he considers the oath he has taken as binding upon his conscience. If he answer in the affirmative, he cannot then be further asked whether there be any other mode of swearing more binding upon his conscience. The Queen's case, 2 B. & B. 284. So, where a Jew was sworn on the Gospels as a Christian, it was held that the oath, as taken, was binding on the witness, both as a religious and moral obligation. Sells v. Hoare, 3 B. & B. 232; S. C., 7 B. Moore, 36.