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Those of an infant not recognised.

Steward (Lord Camden), after “acknowledging the politeness of the surrender," continued, "but, my Lords, you will give me leave to make one short remark on this proceeding, and to hope that your Lordships, sitting in judgment on criminal cases, the highest and most important, that may affect the lives, liberties, and properties of your Lordships, will not think it befitting the dignity of this high Court of justice to be debating the etiquette of honour, at the same time that we are trying lives and liberties. My Lords, the laws of the land, I speak it boldly in this grave assembly, are to receive another answer from those who are called to depose at your Bar, than to be told that in point of honour and of conscience, they do not think that they acquit themselves like persons of that description, when they declare what they know." The witnesses were accordingly examined. (a) Thus, in a civil suit, Lord Hardwicke refused to let a wife be examined on behalf of her husband, though all parties were consenting. (b)

In equity, the vigilance of the Court in this respect is most frequently exercised when the counsel of an infant is willing to admit or to waive points in his behalf. But as we have seen that the answer of an infant cannot be read against him, so neither can admissions by agreement, or waivers of any description. (c) Thus where the bill stated that a defendant was out of the jurisdiction, and all the other defendants admitted the fact in their answers, yet some of them being infants the Court could not act upon the admission. (d) So on a motion

(a) Howell's St. Tr.

(b) In Barker v. Dixie, Rep. t. Hard. 264; and see Owen v. Thomas, 3 M. & K. 357. [As to incompetency of certain classes of persons to give evidence, vide infra. As to this particular incompetency, originating, no doubt, in most wise policy of the law, see Langley v. Fisher, 5 Beav. 443. It has been lately not only expressly recognised, but, amidst great alterations, continued, by the late " Act for improving the law of evidence," (6 & 7 Vict. c. 85,) set forth fully hereafter.

So the ordinary right of a defendant in Chancery to refuse to furnish matter of discovery of the principal fact,

or any one of a long series or chain of facts, which may contribute to establish a criminal charge against himself, he cannot waive by any agreement; Lee v. Read, 5 Beav. 381. Pending the proceedings in that cause, the plaintiff indicted the defendants, in respect of the same transactions; the time for answering was thereupon extended, until after the trial of the indictment; Ibid. But when only a mere liability to penalties would ensue, the rule does not seem to apply.]

(c) [Holden v. Hearn, 1 Beav. 445.] (d) Wilkinson v. Beal, 4 Mad. 408; and see Townsend v. Ives, 1 Wils. 216.

that depositions taken in a suit to perpetuate testimony, might be published, the witnesses being still living, Lord Eldon said, "When this motion was first made, it occurred to me that the difficulty from what was represented as settled practice, not to publish depositions taken in a cause to perpetuate testimony, while the witness who made those depositions was living, might be got over by the fact that the defendants did not appear to oppose the motion: but upon the pleadings it appears that one of them is an infant; which produces the same difficulty as if all were so (a); for if the depositions ought not to be published, as affecting the interest of that infant, it is impossible to publish them by consent." (b) In the Exchequer there was a still Practice in the Exchequer. greater strictness; "where an infant was a party and his interest was concerned, the Court did not allow of an order to examine a witness vivá voce to prove a deed or exhibit, but the witness had to be examined in the office upon interrogatories." (c)

infant, cause cannot be

and answer.

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One consequence of this is that where there is an infant Plaintiff an plaintiff the cause cannot be heard on bill and answer, but a replication must be filed and every point in the answer heard on bill proved (d) And the same principle applies where there is an infant a co-defendant, as far, at least, as his interest is affected. In practice, however, objections which the infant might take are often waived by an arrangement among the solicitors; and if the Court does not discover, or does not interfere with, such arrangement, the infant will be bound by the decree: but the next friend will be liable afterwards to an action for damages at the suit of the infant. Sir John Leach, V. C., would not allow an arrangement of this kind to be called in question, declaring that "generally speaking, infants were bound, as much as adults were, by the conduct of their solicitor." (e)

(a) [Semble, as if all opposed.] (b) Morrison v. Arnold, 19 Ves. 670; and see Perry v. Silvester, Jac. 83.

(c) Carleton v. Brightwell, 2 P. Wms. 463. [The Court of Exchequer, in one case, seems to have used like strictness where a married woman's separate estate was to be affected; Maber v. Hobbs, 1 Younge, 585.]

(d) It was so ruled by Lord Hardwicke, in Legard v. Sheffield, 2 Atk. 377; although in another case, Thurston v. Nutton, Sir J. Jekyll had decided otherwise," with some warmth;" see a note, 3 P. Wms. 237, where other cases respecting infants are cited.

(e) Tillotson v. Hargrave, 3 Mad. 494; [As to infant parties, see Dan. Pr. Ch. c. 4, s. 8, Haslam's Ed. p. 171, et seq.}

52

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Examination of Witnesses.

Ancient mode of examining.

CHAPTER III.

EVIDENCE BY WITNESSES. (a)

IF the plaintiff is unable to obtain sufficient proof of his case to obtain a decree, either from the answers of the defendants, or from admissions by agreement, or if a defendant requires evidence to strengthen his position, the next step will be to [file replication, according to the order of May, 1845, (b) and proceed to] examine witnesses. (c)

In ancient times the examinations in Chancery was in open Court before the Master of the Rolls,-in the Exchequer, before one of the Barons; and therefore it should seem, says Gilbert, C. B. that the examination might be upon the bill without interrogatories drawn and framed, as the examination with the canonists may be upon the libellus articulatus; but afterwards the Master of the Rolls having left the examination of the witnesses to his clerks, (d) as the Barons of the Exchequer did to theirs, from thenceforward the counsel for the party whose witnesses were to be examined, framed the interrogatories upon which the clerks examined. (e)

(a) [Some facts, at some stages of a
suit, admit of proof by affidavit; as to
which species of evidence by witnesses,
vide infra, Ch. “ Affidavit."]

(b) [No. 93; Sand. Ord. 1011.]
(c) [By an Order of 8th May, 1845,
No. 16, of times allowed in procedure,
s. 43, "After the replication is filed,
parties have two months to examine
their witnesses; and if such two months
expire in the long Vacation, (which, by
another of these Orders, No. 8, s. 3,
commences on the 18th of August, and
terminates on the 28th of October in
every year; Sand. Ord. 983,) the time
within which the parties are to examine
their witnesses is extended to the second
day of the ensuing Michaelmas Term;"
Sand. Ord. 993.

By another of these orders, No. 120.

Amongst matters to be allowed, in costs,
between party and party,
"Advising
with counsel on the pleadings, evidence,
and other proceedings in a cause;"
is mentioned; Sand. Ord. 1019.]

(d) [The two Examiners admitted by the M. R.; see Sand. Ord. 11, n ]

(e) For. Rom. 125. Sometimes, in important matters, learned Doctors of Law were appointed to take the examinations; R. and Hunsdon v. Arundell, Hob. 112. [By the civil and canon laws, the witnesses are examined secretly by the Judge, in the presence of a notary, a mode different altogether from that used by the common law of England, and somewhat from that prevailing in those Courts of England where some parts of the civil and canon laws are still used. It is not the practice in such

aminers and

These clerks have now become regular officers of the Courts, Modern by Exthe Examiners (a): through whom in London, as through Commissioners. commissioners elsewhere, written answers are procured to written interrogatories. Such is the ordinary and almost invariable course of proceeding. The chief exception is that papers and documents which come under the technical description of Exhibits, are, under certain rules, allowed to be proved, vivá voce at the hearing. (b)

the Court.

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Attempts have been sometimes made to produce witnesses Viva voce by at the hearing to be heard at large vivá voce by the Court, but it was peremptorily refused by Lord Hardwicke, (c) and the power has never been exercised of late years, except for the satisfaction of the Court itself as to particular points. This [power and the occasions when it is exercised] will fall more properly within the third part of this work. (d)

Courts for the Judge in person to take the examination of the witnesses; that office is confided to one called an Examiner, who examines secretly; see dictum of Sir Wm. Scott, (afterwards Lord Stowell,) in Herbert v. Herbert, 3 Phill. R. 36. And, it seems, witnesses cannot be examined vivá voce in those Courts; see Jones v. Yarnold, 2 Lus. R. 568, and see also Ingram . Wyatt, 1 Hagg. 101.]

(a) [See stat. 50 Geo. 3, c. 164, local and personal. See Sand. Ord. 696, and Turner v. Burleigh, 17 Ves. 355, n. (a). An examination by an Examiner is called an "examination in Court."] (b) [Or now, under an Order of 26th Aug. 1841, No. 43, by affidavit of the witness who would have been competent to prove the same viva voce at the hearing; Sand. Ord. 886, et vide infra.]

(c) In Graves v. Budgell Eustace, I

Atk. 444.

(d) [P. 3, ch. 5, § 1; and see Turner . Burleigh, 17 Ves. 355, and cases there cited. This power itself is notto-be-doubtedly inherent in the Court, as it is further recognised by the Orders of 8th May, 1845, whereby, after providing, by No. 24, "that all writs of subpœna in this Court are to be prepared as therein mentioned," and, by No. 25, (when need requires it,) to be corrected and resealed; Sand. Ord. 995; the following is furnished as the appointed form, referred to in those Orders, of a Subpoena to testify vivá voce in Court, or to testify before the Master."—

WE command you, [and every of
you, that, laying all other matters
aside, and notwithstanding any excuse,
you personally be and appear before
our Lord High Chancellor, [or before
his Lordship or Honor the Master of
the Rolls, or before Mr.
one of

the Masters of our High Court of
Chancery, or before E. F. or G. H.,
commissioners named in a commission
issued to them for that purpose,] at
such time and place as the bearer hereof
shall, by notice in writing, appoint, to
testify the truth according to your
knowledge, in a certain suit now de-
pending in our High Court of Chan-
cery, wherein A. B. [and others, or
another, are or] is plaintiff [or plaintiffs,]
and C. D. [and others, or another, are
or] is defendant [or defendants,]} on the
part of the
[In case of subpœna
duces tecum, add, and that you then and
there bring with you, &c.,'] and hereof
fail not at your peril.
Witness, &c.
-Sand. Ord. 1023.

"DEVON."

In which form of subpoena it may be noted, by the way, the word "commissioners" provides for the case of the great seal being in commission, and is not, as at first might appear, meant to fit the form for a subponu to testify, before commissioners in the country, of which hereafter, where see the form for that case.

It is intended here to consider first, the interrogatories themselves; next, the modes of Examination under them,-before the examiners of the Court, and before commissioners to examine witnesses; then, the publication of the evidence; and lastly, the proof of Exhibits.

To be signed by counsel.

SECTION I.

INTERROGATORIES. (a)

There is a general order that all interrogatories "shall be either drawn or perused by counsel (after due consideration had of the pleadings) and signed by them." (b) When a party