of, how

Witnesses. upon this last citation, they may be proceeded against as conAttendance tumacious. Conset. 110; Oughton, tit. 76, 77, 78. But by modern practice it would seem, that a witness, upon whom a compelled. compulsory has been served, may be pronounced contumacious if he does not appear on the return of the first compulsory. 1 Hag. 34.

Examined

on a com

mission.

dum.

The attendance of witnesses being thus provided for by the service of the compulsory, which is somewhat in the nature of a subpoena, they are either brought to London, to be examined by an examiner of the court; or if by reason of distance or other causes they cannot conveniently attend in London, they are examined on a commission near their places of residence. The directions of the commission should be strictly followed. Thus, where it is directed that the witnesses should be sworn in the presence of a notary, his presence at the swearing cannot be dispensed with. 2 Phill. 241.

The proctor producing the witness delivers a designation, or notice, to the opposite proctors of the articles or parts of the plea on which it is intended to examine each witness produced.

Citation The opposite party is cited "ad audiendum testes," which ad audica- does not mean that he is cited to hear them examined, because both by the civil and canon law they ought to be examined in secret; but, that he may come and hear them sworn; and, that, after publication, he should come and hear their depositions read, or receive copies thereof; Ayliffe Parer. 536; it is said the admission of witnesses, made against a person not cited to see them produced and sworn, is null and void. Ayliffe, 539. The usual practice now is to give notice of the production of a witness to the opposite proctor who attends to see him sworn.

How examined.

The examination in chief does not take place upon written interrogatories previously prepared and known, but the allegation is delivered to the examiner, who, having made himself master of the facts pleaded, examines each witness by questions framed at the time, so as to obtain, upon each article of the allegation separately, the whole truth, as far as he possibly can. As a general principle regulating the mode of examining witnesses, the examiner should be guided by the form of the articles. Thus, where an article admitted by the court is in general form, the examinations taken upon it should be general also; in examining on a charge of general habits the examiner ought not to admit specification, but adhere to the general form of the plea; but where the form of the plea requires specification, or specification is allowed, the examination should be so exact as to time and place, and all other material circumstances, as to give the party charged full opportunity to answer.

If the examiner entertains a doubt as to whether he ought to receive any part of the evidence, it is safer for him not to reject

it. The court can do that at last, if it think proper, and there Witnesses. is no irreparable injury done by the admission of evidence as How exathere may be by a too hasty exclusion; but care should be taken, mined. in admitting specific facts in general inquiries, especially in cases of character, that the facts stated be plain and simple, and not such as will run into intricacy of discussion or ambiguity. 1 Hag. Con. 97; 1 Hag. 103.

The court has expressed an opinion that for proctors to set down a full statement of what each witness can say, called a designation of witnesses, to be given to the examiner to examine by, is a very irregular and dangerous practice; for, if a case depends upon special facts, those facts should be specially pleaded. The party may then object, if they are irrelevant, and the witnesses may be cross-examined to them. It is only by this mode of proceeding that true justice can be got at, and evidence be obtained on which the court can rely. Designations and evidence taken on them are little more than ex-parte affidavits. 2 Phill. 395.

Both the civil and canon law require that witnesses should be examined secretly. This is not only the practice of the ecclesiastical courts of our own country, but of the tribunals of all countries where the ancient civil and canon law has been received in practice. But the secrecy prescribed by the general rule is very much varied by local regulations. Strictly and originally the witness was examined by the judge himself, taking to his assistance a notary to reduce the deposition into writing, but no one else was present. But in the ecclesiastical courts of this country the examinations are taken by a practitioner, who is appointed examiner, and who represents the judge, and who reduces the deposition into writing, remaining quite alone with the witness. Oughton, tit. 85; Conset, 116; Ayliffe Parer. 536; 2 Hag. Con. 267; 3 Phill. 36.

As soon as the witness has given all the answers required, his deposition is read over to him, and he ought to sign it. It is afterwards repeated to him, which means, that he declares it to be true, in the presence of a surrogate, by virtue of the oath which he has taken; the rule of law stated by Oughton is "Si depositio non fuerit coram judice recognita et repetita "non valet." 85; Conset, 116; Phill. 281.

The cross-examination by the opposite party is conducted by interrogatories, which are delivered to the examiner by the proctor on the side cross-examining the witness. These How crossinterrogatories are not to be disclosed to the witness till after examined. the examination in chief is concluded and signed; nor to the party producing him till after publication passes, and each witness is usually enjoined not to disclose the interrogatories nor any part of his evidence till after publication. The rules and

C C

Witnesses. principles upon which a cross-examination is conducted in the ecclesiastical courts are the same as in the common law courts. 1 Curt. 5; 3 Hag. 682.

How crossexamined.

Rules when relaxed.

Re-producing to be

re-exa

mined.

It has been stated that, in order that the opposite party may be prepared to cross-examine, the proctor producing the witness delivers a designation, or notice of the articles of the plea on which it is intended to examine each witness produced. The general rule of practice is that twenty-four hours' notice shall be given to the cross-examining party for the preparation of interrogatories; but it seems that, if a proper case were laid before the court, that time might be extended or abridged. Oughton, tit. 80 n. 3; 1 Hag. 97; 3 Hag. 610. Nor will the court depart from its general practice and order a list of witnesses long before the time, on the ground that the party applying lives voluntarily abroad. 2 Hag. 609.

But although these are the strict rules upon which it would seem that every deposition ought to be conducted. Yet the court may, under circumstances, receive something short of a regular examination. Therefore, where a deposition had been read over and signed, but not repeated to the witness, and he died before the other party had an opportunity of cross-examination, yet it was admitted with allowance, on account of the want of cross-examination. Hill v. Bulkley, 1 Phill. 281;

12 Vin. Ab. 108, Evidence; Ch. Rep. 90; 1P. Wms. 414.

In a case somewhat similar in which, although the deposition was read over, it had been neither repeated nor signed, nor interrogatories administered, the court, acting on similar principles, admitted the deposition subject to allowance on the same ground; 1 Ad. 240. The only difference between the two cases being, that in the latter the deposition was not signed.

The usual course of practice seems to be, that the witness is not repeated till after he has been cross-examined, but that he ought to sign his deposition as soon as his examination in chief is finished, and not again to be allowed to see it. Upon this practice being brought under the notice of the court, the court said, such a course was quite satisfactory, and it would also be desirable, if any material alterations were made, at the request of the witness, that it should appear from the paper that such was the case. Ingram v. Wyatt, 1 Hag. 97, in notis.

With regard to the re-examination of a witness after he had been examined and dismissed; the court said, in Reeves v. Reeves, 3 Phill. 113, that it would accede to such a proposition with extreme jealousy, although there was no absolute rule excluding such a course under every possible circumstance. But where an application was made that a witness who had been examined should be re-examined, on the ground that his memory failed him from being unwell at the time of his exami

ге-еха

mined.

nation, and that now his conscience impelled him to wish to Witnesses. be re-examined; but the examiner said, on being applied to, Re-produ that he did not observe any incompetency during the examina- cing to be tion from illness or other cause, and that all the material points were accurately put to him; the court refused to allow such witness to be re-examined, ib.; nor were fresh interrogatories allowed to be administered to a witness who has been dismissed, in a case where the application was founded on the affidavit of a solicitor instead of the proctor. 3 Phill. 423. So also a witness, who had been repeated and dismissed two years before, was not permitted, though before publication, to be re-examined upon an article of a plea to which through inadvertance she had not been designed to at the time of her production as a witness; at least not without affidavits to explain how the witness came not to be designed to this article of the allegation originally, and the necessity of her To be crossbeing examined now. Wilkinson v. Dalton, 1 Add. 339. But examined. there seems not to be the same objection to re-produce a witness in order to be cross-examined: thus, a witness who had been examined in chief, under a commission, but had been prevented by illness from being examined on interrogatories before the close of the commission was allowed to be re-produced and examined on interrogatories at the expense of the party producing her. Lady Cookes Winford v. Hillier, 1 Lee 274; sed vid. 2 Hag.375; as to re-examining witnesses after publication, vid. post. 406.

Ayliffe, giving the opinions of the canonists on this subject, says, that a witness may correct himself and amend his depositions, before the judge or notary has perfected the examination, and before he leaves the presence of the judge, but not ex intervallo, or after distance of time, and the publication of his depositions; but that others seem to consider that he ought not even to be so allowed to do after he has subscribed his examination. But he adds, that a witness may correct himself after his examination is ended and finished, provided it be done before he has had any conversation with the party in the suit. Parer. 546.

Conset, 116; 2 Oughton, tit. 85, s. 6, 7, following him, lay down the rule generally as follows:

That a witness, on being repeated before the judge, may require that the whole of what he had previously deposed, and which had been taken down by the registrar, may be corrected and blotted out, or any part of it. But if the witness do then ratify and approve before the judge, all things so written and read by the registrar, the examination is said to be perfect and complete.

This, seems to be the present practice of the ecclesiastical courts in this country in ordinary cases. But there is no rule on the subject so inflexible as to limit or fetter the discretion of the judge; as against him no part of the proceedings are con

Re-produ cing.

Witnesses. cluded before final sentence; 3 Phill. 103. So in the courts of common law, a judge, armed with unlimited power in his search for truth, may himself recal, or permit counsel to recal a witness; may permit adverse witnesses to be cross-examined by the party calling them; or may permit witnesses to be examined who have staid in court after an express order to leave the court; if he thinks that in the particular case a departure from the ordinary rule is safe and expedient. Vid. 5 Tywrh. 425; R. & M. 127; 6 Bing. 683; 1 M. & M. 329.

Competency.

Although it seems that by the civil law, parents and children were incompetent to give evidence for or against each other, in the same way that a husband and wife were incompetent; and that the objection extended to ascendants and decendants ad infinitum, yet even in that law there were many exceptions. Ayliff Parer. 542. But no such objection exists now, indeed a father has been held competent in a suit brought by a son to annul his marriage, which suit, during the son's minority, had been commenced by the father. 2 Hag. Con. 419, ib. 414.

The law of evidence, as received in the ecclesiastical courts of this country, adopts generally the principle of the common law as respects the incompetency of witnesses. In the case of Saph v. Atkinson and Westcot, 1 Add. 184, Sir J. Nicholl thus lays down the principle with regard to the objection on the ground of interest." Who then, are the witnesses by whose immediate "testimony this instrument is to be sustained, and how do they "stand affected; and, first, as in point of general credit? "the witnesses upon the condidit are two of the sons and a daughter of Mrs. Saph, the party principally benefited "under the will propounded. They are competent witnesses, "as not having, themselves, a direct, pecuniary interest in the " event of the suit. At the same time they can, by no means, “be considered unbiassed ones. A direct interest, of the "smallest amount in value, would preclude them from being "witnesses at all; so jealous is the law of the purity of evi"dence. At the same time it is obvious, that these parties are "under much stronger inducements to support this transaction (and were, originally, to embark in it) than a trifling legacy "would have furnished; though this last, as I have just said, "would have destroyed their competency as witnesses, whereas "the stronger inducement' only goes to their credit.

But

though the law (which can only draw its line between interest, "and no interest) permits witnesses who are so circumstanced "as the present are, to be heard; yet it also requires them to "be heard (as indeed common sense does) with a very consi"derable deduction from the credit to which they might be "otherwise entitled." And in another case, that learned judge said, "Out of the seven witnesses produced to the testa