rogatories, as well those intended for cross-examination as those for examination in chief. For the reason which has been before stated, these interrogatories should be produced to the Commissioner before he is sworn; after the Commissioner has been sworn, it seems doubtful whether new interrogatories can be exhibited without an order of the Court.1

Formerly, upon the opening of the commission, the Commissioners used to administer the oath to one another, and also to the clerk. But now the acting Commissioner takes the oath before any Master in ordinary, or any Master extraordinary in Chancery, but the clerk is still sworn by the acting Commissioner. It has formerly been permitted for a Commissioner to be examined as a witness under the commission, but the other Commissioners had no power to enforce his attendance for that purpose. If a Commissioner was so examined, his examination was taken by the other Commissioners before he was sworn as Commissioner, or any other witness had been examined in his presence, otherwise his examination would have been irregular, and his deposition might have been suppressed.*

If, from any circumstance, the examination of a Commissioner became necessary, after he had been present at the examination of the other witnesses, application was made to the Court for leave to examine him.5

It seems that the same rule now applies to the clerk of the Commissioners; therefore, if it be necessary to examine him as a witness, he must be examined before he is sworn as clerk, or at least before any other witness has been examined.

The circumstance of a Commissioner or a clerk having been examined as a witness, did not prevent him from afterwards acting in the commission.

There was a rule formerly, which seems still applicable, that, after the examination is begun the Commissioners ought not to confer with either party, touching the examination, or to take new instructions concerning the same; and if they do so, it will be a great misdemeanor, and punishable by fine and imprisonment."

1 Ante, p. 914.

2 Roll. Rep. 90.

Grubb v. Grubb, 1 Y. & J. 36.

• 1 Harr. ed. Newl. 274-5.

2 Hind. 344.

Prac. Reg. 125.

'Hind. 348, cited 4 Inst. 278; 9 Rep. 70; Cro. Jac. 65; Yelv. 62.

The following rules concerning the method of examining witnesses, by commission, are taken from the practice previous to the Orders of 1845, but they seem still applicable to the present practice.

The oaths having been administered, the Commissioner subscribes his name to the foot of each schedule of interrogatories respectively.1

The title of the depositions, preparatory to the examination of witnesses, is then written upon paper thus:

Depositions of witness, produced, sworn, and examined, on

the

day of

in the

year of Queen Victoria, and in the year of our Lord 18 at the house called or known by the name of the

of

in

of

in the by virtue of a commission issuing out of her Majesty's High Court of Chancery, to us A. B., and C. D., and others directed, for the examination of witnesses, in a cause there depending between John Doe complainant, and Richard Roe defendant; we the acting Commissioners, under the said commission, and also the respective clerks by us employed in taking, writing, transcribing, and engrossing the said depositions, having first duly taken the oaths annexed to the said commission, according to the tenor and effect thereof, and as thereby directed, on the part and behalf of the complainant John Doe." 2

The Commissioner calls a witness before him, all other persons being ordered to withdraw during the examination, so that the Commissioner or clerk, and the witnesses to be examined, may be left together in one room; 3 the Commissioner producing the interrogatories, takes them in his hand, and reads the title of them to the witness to be examined, and then administers the oath to him. The form of the oath is the same as that administered by the Examiner; but it may be varied as the case may require, and the substance turned into an affirmation for a witness who is a Quaker, or otherwise entitled to give evidence upon affirmation, instead of oath.6

1 Hind. 345.

* Shaw v. Lindsey, 15 Ves. 280. Ante, p. 904.

• Hind. 345.

Hind. 346.

* 7 & 8 Will. III. c. 34; 3 & 4 Will. IV. c. 49; 1 & 2 Vict. c. 77. A deposition, to which the witness is not sworn till his testimony is reduced to writing, is irregular. Armstrong v. Burrows, 6 Watts, 266.

A witness must first be examined upon the interrogatories of the party who produces him, and then, forthwith without suffering him to go abroad, upon the cross-interrogatories, on the other side.1 — These interrogatories, like the interrogatories in chief, ought, in strictness, to have been delivered before the Commissioner was sworn; but, as we have seen, a party who has omitted to deliver cross-interrogatories in proper time, may procure an order for liberty to add interrogatories to those already exhibited by him.2

The course of proceeding, with regard to the examination of a witness who does not understand the English language, is the same as that to be pursued where the witness is to be examined before an Examiner.3

The party suing out the commission has a right to examine the first witness. Previously to the examination of each witness, the solicitor for the party for whom he is to be examined prepares a note containing the name, rank, or occupation, age, and place of abode of the witness, and of the several interrogatories to which he is to be examined. This notice is to be delivered to the Commissioner; at the same time that the witness is sent in to him, a similar note is usually sent to the solicitors for the other parties, that they may have the witness cross-examined if they think proper.4

The witness being sworn, his name, description, address, and age, are written under the title of the depositions, thus: E. F., of

in the

of

Esq., aged

years, a wit

1 Hind. 346. By the 67th Equity Rule of the United States Courts, if the parties agreed, the testimony might be taken upon oral interrogatories by the parties or their agents, without filing any written interrogatories. But since the amendment of this rule, March 17, 1862, either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the Court, or an examiner specially appointed, in the mode now used in common law courts. See ante, 888, and note.

Ante, p. 914; Carter v. Draper, 2 Sim. 52. It is not necessary in Alabama, that previous to the issuing of a commission to take the deposition of a non-resident witness, the interrogatories should be filed in the Clerk's office. The party may examine the witness before the Commissioners. Wiggins v. Pryor, 3 Porter,

430.

Ante, p. 920. Fellows, 5 Mass. 219.

See Willings v. Consequa, 1 Peters C. C. 85; Amory v.

1 Newl. Ch. Pr. 267.

ness produced, sworn and examined on the part and behalf of the complainant John Doe, deposeth and saith as follows.

The answer given by the witness to each interrogatory is reduced into writing; and we have seen that now, under the 107th Order, all depositions of witnesses are to be taken and expressed in the first person of the deponent.1

If a witness, upon being produced before the Commissioner, demurs or objects to be examined, the Commissioner may return the objection with the commission, which will be disposed of in the manner pointed out in the following section.

The Commissioner should himself examine the witnesses, and not leave so weighty an affair to his clerk or others.2 The same rules and regulations which have been before pointed out as proper to be observed in conducting the examination of witnesses before the Examiner, should be observed by the Commissioner at the execution of a commission to examine witnesses. In addition to which, it may be stated, that the Commissioner is bound only to examine witnesses to those interrogatories or parts of interrogatories to which he is called upon to examine them; he is not, however, to judge what interrogatories are pertinent and what are not, but to examine upon the interrogatories as he finds them;5 he is at liberty, however, to exercise some discretion as to what is, or is not, legal evidence, but in doing so he must be very careful that, in rejecting anything, he does not incur the danger of rejecting too much. He must also be careful not to take down from a witness matters reflecting upon the character of any of the parties, unless the interrogatory leads to it. And where a witness, examined under the last general interrogatory, had deposed several things, reflecting upon an individual, which the Commissioner took down, Lord Hardwicke discharged an order, by which the witness was directed to pay the costs because it was the Commis

Prac. Reg. 124; Hind. 348; Cappeau v. Baker, 1 Harr. & Gill. 154.

See ante, 917, 918 et seq.

• Whitelocke v. Baker, 13 Ves. 511.

Baker v. Cole, 2 Swanst. 207, n.

• Whitelocke v. Baker, 13 Ves. 511. The magistrate, who takes a deposition, is to judge of the mental capacity of the witness. Hough v. Lawrence, 5 Vermont, 299.

sioner's fault to take down any deposition that was scandalous and impertinent.1

The deposition of each witness, after it has been taken down, should be carefully read over to him, or he should be permitted to peruse and consider what he has deposed; and if, upon such revision, any errors appear, or the witness, upon recollection, objects to the statement or penning of the depositions, the same must be rectified. A witness, while he is before the Commissioners, may correct his testimony in the same manner as a witness before the Examiner; but after he has left the Commissioners, he cannot come again for that purpose.1

The witnesses must severally subscribe their christian and surnames or marks to the paper drafts of their respective depositions, and where a witness dies after he has been examined, but before he has signed his depositions, they cannot, as we have seen, be read.5

If the day appointed for the return of the commission should arrive before the examination of all the witnesses has been completed, the commission, &c., must be closed and sealed up: and it seems that the party wanting a renewed commission, should apply to the Master for leave to sue it out.

After the paper drafts of the depositions have all been signed the whole are engrossed or copied upon parchment by the clerks attending, each witness subscribing his name to his own deposi

3

1 Anon. 2 P. Wms. 406.

Hind. 349; Prac. Reg. 125.

A witness may, by the practice of the Court of Chancery in New York, explain or correct any mistake made by him, at any time before his examination is finally closed; but no part of his testimony, previously reduced to writing, can be erased or altered. Rule 84; 1 Hoff. Ch. Pr. 363.

Lord Abergavenny v. Powell, 1 Mer. 130.

5 Ante, p. 921. In Pennsylvania, a deposition taken under a commission need not be subscribed by the witness. Moulson v. Hargrave, 1 Serg. & R. 201. In Kentucky, it is no objection to a deposition that the witness omitted to subscribe his name. Mobley v. Hamit, 1 A. K. Marsh. 590. So in North Carolina. Rutherford v. Nelson, 1 Hayw. 105; Murphy v. Work, 1 Hayw. 105. So in Virginia. Barrett v. Watson, 1 Wash. 372. So in Alabama. Wiggins v. Pryor, 3 Porter, 430. A deposition taken under a commission to take the deposition of John Priestly, may be read in evidence, though signed John G. Priestly. Brooks v. M'Kean, Cooke, 162. See Breyfogle v. Beckley, 16 Serg. & R. 264.