abode of the witness, and of the day and place where the witness is intended to be examined, and on whose behalf, having been served upon the opposite party, in the manner before pointed out, two days previous to the day fixed for the examination of the witness, in order to give the other side an opportunity for cross-examining him.1

By the 14 & 15 Vict. c. 99, s. 16, Every court, judge, justice, officer, commissioner, arbitrator or other person, now or hereafter having, by law or by consent of parties, authority to hear, receive and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively.

Where the witness is a Christian, the oath is, in ordinary cases, administered upon the Holy Evangelists; 2 where the witness is a Quaker or Moravian, or comes within any other denomination of dissenters, who are allowed to give evidence upon their solemn affirmation instead of upon oath, an affirmation is substituted for the oath.3

Persons not professing the Christian religion may be sworn according to the peculiar ceremonies of their own religion.1 It is presumed, however, that a previous order will be necessary to warrant a departure from the ordinary practice.

It is to be notice, that a peer, although privileged to put in his answer upon his attestation of honor, must, when called upon to give evidence as a witness, do so upon oath.

1 Hind. 331.

? In Massachusetts, the oath is ordinarily administered, with the ceremony of holding up the hand. Genl. Sts. c. 131, § 8. But where the witness is a Roman Catholic, the oath is administered to him on the Holy Evangelists, on the ground that those who profess that faith, generally regard this to be the most solemn form of administering an oath. Commonwealth v. Buzzell, 16 Pick. 153. So in any case where the Court or magistrate before whom a person is to be sworn, is satisfied that such person has any peculiar mode of swearing which is in his opinion more solemn or obligatory than holding up the hand, they may adopt that mode of administering the oath. Genl. Sts. c. 131, § 9.

3 In Massachusetts, every person who declares that he has conscientious scruples against taking an oath, shall, when called upon for that purpose, be permitted to affirm in the manner prescribed for Quakers, if the Court or magistrate on inquiry is satisfied of the truth of such declaration. Genl. Sts. c. 131, § 10, 11. Conscientious scruples furnish ground for substituting an affirmation for an oath in the United States Courts. Rule 91, of the Equity Rules for U. S. Courts.

✦ Phil. & Amos, 10. Such is the law by statute of Massachusetts. Genl. Sts. c. 131, § 12.

By the 20th section of the Common Law Procedure Act,1 1854, "If any person called as a witness, or required or desiring to make an affidavit or deposition, shall refuse or be unwilling from alleged conscientious motives to be sworn, it shall be lawful for the Court or Judge or other presiding officer, or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following, that is to say: I, A. B., do solemnly, sincerely, and truly affirm and declare, that the taking of any oath is, according to my religious belief unlawful; and I do also solemnly, sincerely, and truly affirm and declare, &c. ; which solemn affirmation and declaration shall be of the same effect and force as if such person had taken an oath in the usual form." 2

We have seen that after the examination is over, the original depositions, authenticated by the signature of the examiner, are transmitted to the Record Office of the Court, to be there filed, and any party to the suit may obtain a copy of them. The fees and costs in the Examiner's Office will be found in the chapter on that subject. We have also seen the manner in which a witness may protect himself by demurrer, from answering any question to which he has a valid legal objection.

Until very recently the established rule of the Court of Chancery was, that evidence could not be given by affidavit on the hearing of a cause. This rule was subject to the trifling exceptions mentioned previously. It was otherwise upon interlocutory applications. Although questions of the greatest importance were often decided in that form, yet not only was evidence by affidavit always admissible, but it was the only species of evidence permitted. By the Chancery Amendment Act a material change was made, and it was permitted to the parties, on mutual consent, after notice given, to adduce their evidence by affidavit. The result has proved so satisfactory, that by recent Orders either side, without the consent of the other, may adduce the whole or any part of their evi

1 Ante, p. 898.

* In Massachusetts, "Every person not a believer in any religion shall be required to testify truly under the pains and penalties of perjury; and the evidence of such person's disbelief in the existence of God, may be received to affect his credibility as a witness." Genl. Sts. c. 131, § 12.

3 Ante, p. 877.

Ante, p. 893.

dence by affidavit. In a town cause, when all the witnesses can attend and give their evidence vivâ voce before the examiner, the diminution of expense will not be material, but in the great majority of cases it will be found far more convenient and less expensive that a part at least of the evidence should be by affidavit. With respect to the form of affidavits, little more need be said. They are entitled in the cause, are drawn up in the first person, and are divided into paragraphs. In practice they very often contain much that is not strictly legal evidence. It is not, however, the custom of the Courts to reject an affidavit because a part of it consists of mere hearsay or immaterial matter. They are generally left to the Court in confidence that the Judge will' only pay attention to that part which is legal evidence. This habit has produced considerable laxity in the framing of affidavits, but it cannot be said that this laxity has led to much, if any, practical inconvenience.1

Affidavits may be sworn in any part of the country, before persons regularly authorized for this purpose. A recent Act, 16 & 17 Vict. c. 78, has increased the number and defined the authorities of these persons. It will be convenient to set forth some of its provisions.

6

By the 1st section, "The persons now styled Masters Extraordinary in Chancery' shall cease to be so styled, and they and all persons hereafter appointed by the Lord Chanceller to execute like duties in England shall be designated Commissioners to administer Oaths in Chancery in England,' and shall possess and exercise all such powers and discharge all such duties as now appertain to the office of Master Extraordinary in Chancery by virtue of any statute or order of the Court of Chancery or of the Lord Chancellor, or usage in that behalf, or otherwise."

Moreover, with respect to the London districts, it is enacted by the 2d section, that "It shall be lawful for the Lord Chancellor, from time to time, to appoint any persons practising as solicitors within ten miles from Lincoln's-Inn Hall at their respective places of business, to administer oaths and take declarations, affirmations, and attestations of honor in Chancery, and to possess all such other powers and discharge all such other duties as aforesaid; and such persons shall be styled 'London Commissioners to administer Oaths in Chancery'; and they shall be entitled to charge and take a fee of one shilling and sixpence for every oath administered by 1 See, however, the recent Order as to the form of affidavits, ante, p. 894.

them, and for every declaration, affirmation, or attestation of honor taken by them, subject to any order of the Lord Chancellor varying or annulling the same."

By the 3d section, "It shall be lawful for the Lord Chancellor, from time to time, to appoint any persons practising as solicitors in the Isle of Man, in the Channel Islands, or any of them, to administer oaths and take declarations, affirmations, and attestations of honor in Chancery, and to possess all such other powers and discharge all such other duties as aforesaid; and such persons shall be styled Commissioners to administer Oaths in Chancery for the Channel Islands,' and they shall be entitled to charge and take the same fees as the said Commissioners to administer Oaths in Chancery.'" 1

6

By the 5th section, "Nothing herein contained shall abridge or lessen the power of the Lord Chancellor as it now exists to appoint fit persons to administer oaths and take declarations, affirmations, and attestations of honor in Chancery, or to regulate the fees to be taken by them; and where any Act of Parliament refers to the Masters Extraordinary in Chancery, or to their powers or duties, the reference shall be held to apply to and include the commissioners hereinbefore mentioned, or to their powers or duties, as the case may be."

Moreover, it will be recollected, that with respect to all places out of the jurisdiction of the Court but within the Queen's dominions, such affidavits may be sworn before "any judge, court, notary public, or person lawfully authorized to administer oaths in the place; and, with respect to places out of the Queen's dominions, they may be sworn before any consul or vice-consul." 2

We have also seen that witnesses deposing by affidavit are made, by the Act of Parliament, subject to regular oral cross-examination, and provisions are also made for their re-examination. The expenses attending such cross-examination or re-examination are also provided for by the Act of Parliament.

4

With respect to the closing of the evidence, we have seen that

1 Re Record and Writ Clerks, 3 De G., Mac. & Gor. 723. Neither the solicitor in the cause, nor his clerk, can act as a commissioner, Hopkin v. Hopkin, 10 Hare, Appx. p. 2.

* See 15 & 16 Vict. c. 86, § 22, ante, p. 753; Baillie v. Jackson, 3 De G., Mac. & Gor. 38.

* See ante, p. 893 et seq.

⚫ Ante, p. 892.

eight weeks after issue joined is the regular time for closing the evidence, and that a witness who has made an affidavit is subject to cross-examination within one month or twenty-eight days after the expiration of such eight weeks.1

The Court is, however, specially authorized to enlarge the time for closing evidence, if it shall think fit to do so.2 Such an application will be usually heard and settled in chambers, but if opposed may be adjourned to open Court.3

It may be here mentioned, that parties are now enabled, in most cases, to obtain copies of affidavits filed on behalf of other persons in the cause, without being at the expense of taking office copies. The Orders of October, 1852, under which this practice originated, will be set out at length in the Chapter on Costs and Fees; but it may be convenient here to mention, that by the second of those Orders, "The party or his solicitor requiring any copy, save as in the said Order before excepted, is to make a written application to be delivered to the party by whom the copy is to be furnished, or his solicitor, with an undertaking to pay the proper charges."

PART IV. METHOD OF EXAMINING WITNESSES BY INTERROGATORIES IN WRITING.

SECTION I. Of Interrogatories.

THE general mode of examining witnesses in Equity in England formerly was by interrogatories in writing, exhibited by the party, plaintiff or defendant, or directed by the Court to be proposed to or asked of the witness in a cause touching the merits thereof or some incidents therein. The practice is now however almost entirely abolished in that country; but, as it may still be resorted to with respect to any particular witness within the jurisdiction of the Court, and with respect to all witnesses in the cause out of the jurisdiction of the Court, and as it continues to prevail in some

1 See ante, 893, note.

2 Ante, p. 894; Hope v. Threlfall, 17 Jur. 1020.

3 See 15 & 16 Vict. c. 86, § 26.

✦ Ante, 887.