CAP. XXXII. An Act respecting Witnesses and Evidence. ER Majesty, by and with the advice and consent of the follows: QUAKERS, MENONISTS AND TUNKERS MAY AFFIRM IN CASES, mitted to make 1. In any case, criminal or civil, in which an oath, declara- Menonists and tion or affirmation is required by law, or upon any lawful Tunkers peroccasion whatever on which the oath of any person is by law affirmation. admissible, a Quaker, Menonist or Tunker, or a member of the church known as the "Unitas Fratrum, or the United Brethren, sometimes called the Moravian Church, having first made the following declaration or affirmation, viz: "I, A. B., do solemnly, sincerely and truly declare and affirm that I am one of the Society called Quakers, Menonists, Tunkers or Unitas Fratrum or Moravians," (as the case may be,) may make his affirmation or declaration in the form following, that is to say: "I, A. B., do solemnly, sincerely and truly declare and affirm, &c. ;" and such affirmation or declaration shall have the same force and effect to all intents and purposes in all Courts of law and Equity and all other places, as an oath taken in the usual form. 49 G. 3, c. 6,-10 G. 4, c. 1. 2. Every person authorized or required to administer an Persons authooath for any purpose, may administer such affirmation or de- rized to admiclaration. 49 G. 3, c. 6, ss. 1, 2, 3,---10 G. 4, c. 1,—22 V. c. may administer 100, s. 101. nister oaths affirmation. COMPETENCY OF WITNESSES. admitted as witnesses. 3. No person offered as a witness shall, by reason of Who may be incapacity from crime or interest, be excluded from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any Matter or Question, or on any Inquiry arising in any Suit, Action or Proceeding, Civil or Criminal, in any Court, or before any Judge, Jury, Sheriff, Coroner, Magistrate, Officer or Person having by Law, or by consent of parties, authority to hear, receive and examine evidence. 16 V. c. 19, s. 1. 4. Every person so offered shall be admitted and be com- An interest in pellable to give Evidence on Oath, or solemn affirmation where the question not to disqualify. an affirmation is receivable, notwithstanding that such person. has or may have an interest in the matter in question or in the event of the trial of some Issue, Matter, Question or Inquiry, or of the Suit, Action or Proceeding in which he is offered as a witness, and notwithstanding that such person so offered as a Exception. Copies of public books or documents admissible in evidence. And if required, copies to be delivered. Copies thereof may be certified. In action concerning real estate, Probate, &c., to be pri mâ facie evi dence of will, &c., after certain notice, witness, had been previously convicted of a crime or offence. 16 V. c. 19, s. 1. 5. This Act shall not render competent or authorize or permit any party to any suit or proceeding, individually named in the Record, or any Claimant or Tenant of premises sought to be recovered in Ejectment, or the Landlord or other person in whose right any Defendant in replevin may make cognizance, or any person in whose immediate or individual behalf any Action may be brought or defended either wholly or in part, or the husband or wife of any such party, to be called as a witness on behalf of such party, but such party may in any Civil proceeding be called and examined as a witness in any suit or action at the instance of the opposite party; Provided always, that the wife of the party to any or proceeding named in the Record, shall not be liable to be examined as a witness by or at the instance of the opposite party. 16 V. c. 19, s. 1. suit 6. Whenever any book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Statute exists which renders its contents proveable by means of a copy, a copy thereof or extract there from shall be admissible in evidence in any Court of Justice, or before any person having by law or by consent of parties, authority to hear, receive and examine evidence, provided it be proved that it is an examined copy or extract, or that it purports to be signed and certified as a true copy or extract by the Officer to whose custody the original has been entrusted. 16 V. c. 19, s. 9. 7. Such Officer shall furnish such certified copy or extract to any person applying for the same at a reasonable time upon his paying therefor a sum, not exceeding ten cents, for every folio of one hundred words. 16 V. c. 19, s. 9. 8. If any Officer authorized or required by this Act, or by any law or usage in force in Upper Canada, to furnish any certified copies or extracts, wilfully certifies any document to be a true copy or extract, knowing that the same is not a true copy or extract, he is guilty of a misdemeanor, and shall upon conviction be imprisoned for any term not exceeding eighteen months. 16 V. c. 19, s. 10. PROOF OF WILLS. 9. In any Action at Law or suit in Equity where, according to the existing law exclusive of the provisions contained in this Act, it would be necessary to produce and prove an original will in order to establish a Devise or other testamentary dispo sition of or affecting real estate, the party intending to establish in proof such Devise or other testamentary disposition, may in issue. give notice to the opposite party ten days at least before the trial save where its or other proceeding in which the said proof is intended to be validity is put adduced, that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition, the probate of the will or letters of administration with the will annexed, or a copy thereof, stamped with the seal of the Surrogate Court granting the same; and in every such case Probate or Letters of Administration or copy thereof, respectively stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents notwithstanding the same may not have been proved in solemn form, or have been otherwise declared valid, in a contentious cause or matter, unless the party receiving such notice does within four days after such receipt, give notice that he disputes the va lidity of such devise or other testamentary disposition. 22 V. c. 93, s. 33. in any action, 10. In every case in which in any such action or suit the ori- As to costs of ginal will is produced and proved, the Court or Judge before proving a will whom such evidence is given may direct by which of the par- &c. ties the costs thereof shall be paid. 22 V. c. 93, s. 34. Real Estate 11. In case of the death of any person in any of Her Majes- Proof in the ty's possessions out of Upper Canada, after having made a will case of Will of sufficient to pass real estate in Upper Canada, and whereby filed in foreign any such estate has been devised, charged or affected, and Courts. in case such Will be duly proved in any Court having the proof and issuing probate of wills in any of such possessions, and remains filed in such Court, then in case notice of the intention to use such Probate or Certificate in the place of the original Will, be given to the opposite party in any such proceeding one month before the same is to be so used, the production of the Probate of the Will, or a certificate of the Judge, Registrar or Clerk of such Court, that the original is filed and remains in the Court, and purports to have been executed before two witnesses, shall, in any proceeding in any Court of Law or Equity in Upper Canada concerning such Real Estate, be sufficient prima facie evidence of such Will and the contents thereof, and of the same having been executed so as to pass Real Estate, without the production of the original Will; but such Probate or Certificate shall not be used if, upon cause shewn before any such Court, or any Judge thereof, such Court or Judge finds any reason to doubt the sufficiency of the execution of such Will to pass such Real Estate as aforesaid, and makes a rule or order disallowing the production of such Probate. 16 V. c. 19, s. 5. evidence. 12 The production of the certificate, in the last preceding Certificate to section mentioned, shall be sufficient prima facie evidence of be prima facie the facts herein stated, and of the authority of the Judge, Registrar or Clerk, without any proof of his appointment, authority or signature. 16 V. c. 19, s. 6. z2 SUBPOENAS How to proceed if a party resides abroad. If he refuses to attend. Persons accused of offences, not competent or SUBPOENAS IN COUNTY COURT. 13. The several County Courts may issue Writs of Subpan ad Testificandum to enforce the attendance of any witnesse resident within Upper Canada, and also Writs of Subper Duces Tecum to enforce the attendance of and the production o deeds and papers by any such witnesses, and may procee against persons who having been duly served with a subpend disregard or disobey the same, with the same powers, in like manner and by the same mode of proceeding as belong to and is practised in the Superior Courts of Common Law 20 V. c. 58, s. 7,---13, 14 V. c. 52, s. 3. 14. Such Witnesses shall be entitled to the same allowance as if attending under subpæna from either of the said Superion Courts of Common Law. 20 V. c. 58, s. 7,-13, 14 V. c. 52, s. 3. 15. Whenever any party in such proceeding desires to call the opposite party as a witness, he shall either Subpoena sre party or give to him or his Attorney at least eight days' notic of the intention to examine him as a witness in the cause, and if such party does not attend on such notice or Subpana, such non-attendance shall be taken as an admission pro confesso against him in any such suit or action, unless otherwise or dered by the Court or Judge in which or before whom such examination is pending, and a general finding or Judgment may be had against the party thereon, or the Plaintiff may be non-suit or the proceedings in the action or such suit may postponed by the Court or Judge, on such terms as the Court or Judge sees fit to impose. 16 V. c. 19, s. 2. be 16. In case a party to any such suit or action be resident not of Upper Canada, and in case the opposite party requires Commission and states by affidavit the facts intended to be proved before such Commission, and in case the Court or Judge is satisfied that such Commission is applied for in good faith and not for purposes of delay, the Court in which the suit or action has been brought, or any Judge thereof, may, at the instance of the opposite party, issue a Commission for the examination of such non-resident party in the same manner as a Commission may be issued for the Examination of Witnesses 16 V. c. 19, s. 3. 17. If such party refuses to attend before the Commissioners, such refusal, being proved by affidavit or otherwise, to the satis faction of a Judge of the Court in which the suit or the trial is pending, shall authorize a verdict or judgment to pass against the party, or he shall become non-suit. 16 V. c. 19, s. . 18. Nothing herein contained shall render any person, who, in any proceeding, is charged with the commission of an indic table offence, or any offence punishable on summary conviction competen for or against competent or compellable to give evidence for or against him- compellable to self, or shall, in any such proceeding, render any husband give evidence competent or compellable to give evidence for or against themselves. his wife, or any wife competent or compellable to give evidence. for or against her husband, or shall, in any civil proceeding, render any person compellable to answer any question tending to criminate himself or to subject him to a prosecution for any penalty. 16 V. c. 19, s. 4. COMMISSIONERS TO EXAMINE WITNESSES. may issue to infirm or ab 19. In case the Plaintiff or Defendant in any action in either Commissions of the Superior Courts of Common Law or in any County Court, examine peris desirous of having at the trial thereof, the testimony of any sons aged, aged or infirm person resident within Upper Canada, or of any sent from Upperson who is about to withdraw therefrom, or who is residing per Canada. without the limits thereof, the Superior Court in which the action is pending, or a Judge of either of such Courts, or the County Court in which the action is pending, or a Judge thereof, may, upon the motion of such Plaintiff or Defendant, and upon hearing the parties, order the issue of one or more commission or commissions under the seal of the Court in which the action is pending, to one or more Commissioner or Commissioners, to take the examination of such person or persons respectively. 2 G. 4, c. 1, s. 17,-20 V. c. 58, s. 5. given to the 20. Due notice of every such commission shall be given to the Notice to be adverse party to the end that he may cause the witnesses to be adverse party. cross-examined. 20 V. c. 58, s. 5. abroad are to 21. In case the examination of any witness or witnesses How commistaken without the limits of Upper Canada, pursuant to any such sions executed commission, be proved by an Affidavit of the due taking of such be proved. examination sworn before and certified by the Mayor or Chief Magistrate of the City or place where the same has been taken, and in case such commission with such examination and affidavit thereto annexed be returned to the Court from which such Commission issued close under the hand and seal of one or more of the Commissioners, the same shall primá facie be deemed to have been duly taken, executed and returned, and shall be received as evidence in the cause, unless it is made to appear to the Court in which such examination is returned and published, or before which the same is offered in evidence, that the same was not duly taken; or that the Deponent is of sound mind, memory and understanding, and living within the jurisdiction of the Court at the time such examination is offered in evidence to such Court. 2 G. c. 1, s. 18,-20 V. c. 58, s. 6. 4, |