the trial (a). The order may be made ex parte, but in such a case it is liable to be discharged if it can be shewn to be improper as not being necessary for the purposes of justice (b). When the ground for the application is the age of the witnesses, those above seventy-five will be examined as a matter of course; as to those between seventy and seventy-five, it will depend on the nature of the evidence they can give, and the number of other witnesses who can give similar evidence (c), but age alone is not a sufficient ground where the witness is under seventy. If there is only one witness who can depose to an important fact, an order will, following the practice of the Court of Chancery, be made to examine such witness (d). It should be observed, that the 5th rule of Order 37 does not apply to cases in which the parties have agreed that the evidence in an action shall be taken by affidavit, and it afterwards transpires that one of the proposed witnesses will not make an affidavit (e).

Rule 18 is as follows: "Except where by this order otherwise provided or directed by the court or a judge, no deposition shall be given in evidence at the hearing or trial of the cause or matter without the consent of the party against whom the same may

(a) Per Jessel, M. R., Warner v. Mosses, L. R., 16 Ch. D. 103; 50 L. J., Ch. 29; 29 W. R. 202.

(b) Bidder v. Bridges, L. R., 26 Ch. D. 1; 53 L. J., Ch. 479; 32 W. R. 445.

(c) Ibid.

(d) Shirley v. Earl Ferrers, 3 P. Wms. 77.

(e) Nadin v. Bassett, L. R., 25 Ch. D. 21; 53 L. J., Ch. 253; 32 W. R. 70.

be offered unless the court or judge is satisfied that the deponent is dead or beyond the jurisdiction of the court, or unable from sickness or other infirmity to attend the hearing or trial, in any of which cases the depositions certified under the hand of the person taking the examination shall be admissible in evidence, saving all just exceptions, without proof of the signature to such certificate." It may be anticipated that the very extensive power of ordering depositions to be given in evidence without the consent of the party against whom they are to be used conferred by this rule, will seldom, if ever, be exercised, except in the cases specially mentioned, viz., where the deponent is dead or out of the jurisdiction or unable from sickness or other infirmity to attend at the trial. Still there are possible cases in which it might properly be exercised, e. g., where the deposition is that of a witness to prove pro formâ a relevant fact, and also when the consent of the opposite party is withheld mala fide. It will be noticed that the sickness or infirmity mentioned in the rule is not necessarily 66 permanent," as it was in the 10th section of 1 Will. IV. c. 22.

Where the witness is in England it is by Rule 39 of Order 37, provided that his examination "shall, in any cause or matter in the Chancery Division, unless the court or a jury shall otherwise direct, be taken before one of the examiners of the court; and may in any cause or matter in the Queen's Bench, and Probate, Divorce and Admiralty Divisions, if the court or a judge shall so direct, be taken before one of such examiners."

In cases where the witness is not examined before one of the examiners of the court, a special examiner has to be appointed, who is usually, though not necessarily, a barrister. All persons interested have a right to be heard on the question who shall be appointed special examiner, and if they cannot agree the judge appoints (ƒ). A mere witness, however, has no voice in the matter (g).

When the witness is to be examined abroad a special examiner has of course to be appointed (h); and such special examiner need not be a barrister. In one case the British Minister at Teheran was appointed (i), and, as previously stated, a commission may issue to the judges of a foreign court, if willing to act. But the practice now is to issue a letter of request to the judges of a foreign court, under Rule 6a of Order 37, which is as follows: "If in any case the court or a judge shall so order there shall be issued a request to examine witnesses in lieu of a commission. The forms 1 and 2 in the Appendix hereto shall be used for such order or request respectively, with such variation as circumstances may require, and may be cited as forms 37a and 37b in Appendix K.” These forms will be found in the Appendix hereto. An application for a commission to take evidence abroad will be refused where there has been undue

(f) In re Smith, Knight & Co., L. R., 8 Eq. 23; 17 W. R. 758. (g) In re Contract Corporation, L. R., 13 Eq. 27; 41 L. J., Ch.

225.

(h) Ongley v. Hill, W. N., 1874, 157.

(i) Banque Franco-Egyptienne v. Lütscher, 28 W. R. 133.

delay (k), or where it is not made bonâ fide; and therefore, where the court was satisfied that the reason alleged for the plaintiff not coming to England was a pretence, and that the real reason was that he desired to avoid cross-examination in court, a commission to take his evidence abroad was refused (1). In a later case, however, where the Court of Appeal was of opinion that it was not necessary for the purposes of justice that the plaintiffs should be examined in court, a commission was granted to examine them in America, where they resided (m). In a subsequent case the Court of Appeal qualified an order appointing a commission to take the plaintiff's evidence in New Zealand, where he resided, by inserting a proviso that "the depositions of the plaintiff are not to be read if the defendant requires him to appear at the trial to be examined and cross-examined (n). general rule can be extracted from these cases, but it seems that the court will in each case be guided by the nature of the action, the importance to be attached to the plaintiff's cross-examination, and the circumstances under which it is asked to dispense with the plaintiff's personal attendance in court, in deciding whether it will or will not grant a commission to take his evidence abroad.

No

(k) Steuart v. Gladstone, L. R., 7 Ch. D. 394; 47 L. J., Ch. 154; 26 W. R. 277.

(1) Berdan v. Greenwood, L. R., 20 Ch. D. 764, n.

(m) Armour v. Walker, L. R., 25 Ch. D. 673; 53 L. J., Ch. 413; 32 W. R. 214.

(n) Nadin v. Bassett, L. R., 25 Ch. D. 21; 53 L. J., Ch. 253; 32 W. R. 70.

With regard to a proposed witness who is abroad, the court must in all cases be satisfied that he can give material evidence before it will issue a commission (o). Subject to this the rule is that a commission will issue if the applicant satisfies the court that it is impracticable or unreasonable to bring the witness to England for the trial. In a recent case the Court of Appeal affirmed a decision refusing a commission to examine a witness in America, on the ground that there was not enough to show that the witness could not be brought or would not come to England (p), Cotton, L.J., observing: "This is not the case of a plaintiff but of a witness, and undoubtedly a most material witness-a witness who is coming to give evidence on the part of the plaintiff to assist the plaintiff in upsetting for fraud a scheme in which the witness had himself been one of the principal actors. It is most desirable that such a witness should be examined in open court. If, however, it could be shown that he could not be induced to come here, or that the plaintiff could not reasonably be expected to bring him here, I think it would be right to give leave to examine him abroad, and it would be for the court or the jury at the trial to determine how far the weight of his evidence was affected by their not having seen or heard him; but I think that in a case of this sort, where it is important that the witness should be examined in court,

(0) Langen v. Tate, L. R., 24 Ch. D. 522; 32 W. R. 189.

(p) Lawson v. Vacuum Brake Co., L. R., 27 Ch. D. 137; 54 L. J., Ch. 16; 33 W. R. 186.