rr. 14-17 which the Court or Judge may think fit to be produced: 9. XXXVI, Provided that no person shall be compelled to produce under any such order any writing or other document which he could not be compelled to produce at the hearing or trial. 0. 37, r. 7, (E); C. S. 1903, c. 112, s. 93, am.; C. S. 1903, c. 111, 8. 236, am. 394 to order for produce, etc. 14. Any person wilfully disobeying any order requiring Disobedience his attendance for the purpose of being examined or producing attendance to any document, or refusing to be sworn or to answer any lawful question, shall be deemed guilty of contempt of Court, and may be dealt with accordingly. O. 37, rr. 8, 13, (E). See C. S. 1903, c. 112, s. 94. 395 15. If a witness produces a book, document, letter, paper copies as or writing, and refuses, for good cause, to be stated in his evidence. deposition, to part with the original, then a copy or extract, certified by the commissioner to be a true and correct copy or extract, shall be annexed to the deposition of the witness. R. 508, (O). a 396 examination of witness make aft refusing to davit. 16.—(1) A party to a cause or matter requiring the affidavit vira voce of a person who refuses to make an affidavit, may apply to the Court or a Judge by summons for an order to such person to appear and be examined upon oath before the Court or Judge or a person to whom it may be most convenient to refer such examination, as to the matters concerning which he has refused to make an affidavit, and the Court or Judge may make an order for the attendance of such person for the purpose of such examination and for the production of any writings or documents to be mentioned in such order, and may therein impose such terms as to such examination and the costs of the application and proceedings thereon as shall be thought fit. Such order shall be proceeded upon in like manner as other orders are proceeded on, and the examination thereon shall be conducted and depositions taken down and returned, as nearly as may be, in the mode in use in viva voce examinations. C. S. 1903, c. 111, ss. 238, 239, am. nation of (2) A person who has made an affidavit to be used in any Cross-examiaction or proceeding, may be ordered by the Court or Judge deponent to to attend and be cross-examined thereon. R. 490, (O); O. 37, r. 20, (E). affidavit. 397 corpus to 17. It shall be lawful for any Sheriff, gaoler, or other Habeas officer having the custody of any prisoner, to take such bring up prisoner for examination under the authority hereof, by virtue witness. rr. 18-22. o. XXXVI, of a writ of habeas corpus to be issued for that purpose; which writ shall and may be issued by the Court or a Judge under such circumstances and in such manner as such Court or Judge may now by law issue the writ commonly called a writ of habeas corpus ad testificandum. C. S. 1903, c. 111, 8. 267, am. 398 Depositions to be under oath, etc. [Cf. O. 37, r. 19, (E)]. 399 Depositions may be taken in shorthand. 400 Who may take evidence in shorthand. 401 Depositions, when to be signed. 402 Transmission of depositions 18. It shall be lawful to all and every person authorized to take examination of witnesses by any rule, order, or commission made or issued in pursuance hereof, and he and they are hereby authorized and required to take all such examinations upon the oath of the witnesses, or affirmation in cases where affirmation is allowed by law instead of oath, or otherwise in accordance with their religion. C. S. 1903, c. 111, 8. 268, am.; R. 505, (O). 19. The depositions may be taken in shorthand if so provided by the order or the parties so agree. R. 509, (O). 20. If the examination is to be taken in shorthand, the commissioner may take the same in shorthand or employ a shorthand writer, to be duly sworn. R. 510, (O). 21.-(1) Unless the examination is taken in shorthand, the depositions shall be subscribed by the witness and by the commissioner. (2) Where taken in shorthand it shall not be necessary that the depositions be read over or signed by the person examined unless any of the parties so desire. (3) A copy of the depositions, if taken in shorthand by the commissioner and certified by him, or, if taken in shorthand by a shorthand writer employed for the purpose as aforesaid, certified by him and signed by the commissioner, shall for all purposes have the same effect as original depositions. R. 511, (O). 22. The examinations or depositions taken under and by to Court, etc. virtue of any such order or commission shall be certified under the hand of the Judge, commissioner or person taking the same, and shall be closed up under the seal of the Judge, commissioner or other person taking the same, and addressed to the Court and indorsed with the title of the cause or matter in which the same were taken, rr. 23-25. of depositions. and shall without proof of the signature to such certifi- 0, XXXVI, cate be received and read in evidence on the hearing of [R. 486, (0)]. the cause, or before the Referee or officer appointed, if used on a reference, or whenever the same may be required, saving all just exceptions; provided, however, that no such examina- Admissibility tion or deposition so taken and certified shall be read in evidence without the consent of the party against whom the same may be offered unless it shall appear to the Court, Judge, Referee or officer before whom the cause or reference on which the said examination or deposition is offered is being heard, on proof by affidavit, or viva voce, that the examinant or deponent is out of the Province, or dead, or unable from sickness or other infirmity to attend on such hearing or reference. In the case of a witness examined out of the Province, an affidavit by the solicitor of the party on whose behalf such evidence is tendered as to his belief of the absence of such witness from the Province shall be sufficient proof. C. S. 1903, c. 112, s. 86, am.; O. 37, r. 18, (E), am.; R. 512, (O), am. 403 objections to of evidence. 23. No objection shall be allowed to prevail against the Formal admissibility of any evidence taken under any such commis- admissibility sion if it appears to the Court or a Judge that the objection taken is merely technical, or is to mere matter of form, and that the evidence required to be taken has been substantially taken by the commissioner or commissioners to whom the commission is directed, or by such of them as have power to execute the same. C. S. 1903, c. 111, s. 270; C. S. 1903, c. 112, s. 87, 24. The costs of every rule or order to be made for the costs. examination of witnesses under any commission or otherwise by virtue hereof, and of the proceedings thereupon, shall be costs in the cause, unless otherwise directed, either by the Court or Judge making such rule or order, or by the Judge before whom the cause may be tried or by the Court. C. S. 1903, c. 111, s. 271, um.; R. 513, (1), (O). 404 405 not to be trial without sent. 25. No examinations or depositions taken under and by Depositions virtue of any order or commission shall be opened except by opened before the order of the Court or a Judge, or by consent of the order or conparties; but it shall be lawful for any party to any cause or matter, by order of the Court or a Judge, to inspect such examinations or depositions and take copies thereof; such rr. 26--31. 0. XXXVI, order to be made upon summons, and the Court or Judge may, in such order give such directions touching the time. place and manner of inspecting such examinations and depositions, and taking copies thereof, and the attendance of the opposite party, as he may deem expedient, but in no case shall such order authorize the taking of such examinations or depositions out of the office where the same are deposited. C. S. 1903, c. 112, s. 88. 406 Service of order for inspection. 407 Special report by commissioner. 408 Date and issue of subpoena. 26. The service of such order upon the proper officer or officer having the custody of the said examinations or depositions, shall be sufficient authority for him to open the same and to allow inspection thereof to be had and copies thereof to be taken. C. S. 1903, c. 112, s. 89. 27. The person taking the examination of a witness under these Rules may, and if need be, shall, make a special report to the Court touching such examination, and the conduct or absence of any witness or other person thereon, and the Court or a Judge may direct such proceedings and make such order as upon the report they or he may think just. O. 37, r. 17, (E); C. S. 1903, c. 111, s. 269, am. III.-Subpæna. 28. Writs of subpoena shall bear date upon the day when [Cf. R. 478. (O)). the same are issued, and shall be prepared and issued by the 409 Form of subpoena. 410 Any number of names may one subpoena. solicitors of the parties. 29. A writ of subpoena shall be in one of the Forms 1 to 5 in Appendix J., with such variations as circumstances may require. O. 37, r. 27, (E). 30. Any number of names may be included in one subpoena, be included in and no more than one subpoena shall be allowed on taxation [Cf. R. 480, (O)]. of costs, unless for sufficient reason to the satisfaction of the taxing officer. 411 Service. 31. The service of the subpoena shall be effected by delivering a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ. O. 37, r. 32, (E). 0. XXXVI, rr. 32-35. 32. Affidavits filed for the purpose of proving the service of a subpoena upon any defendant must state when, where, 412 and how, and by whom, such service was effected. O. 37, service. r. 33, (E). 33. Affidavit of 413 time subpoena The service of any subpoena shall be of no validity if Within what not made within three months after the teste of the writ, to be served, O. 37, r. 34, (E), am. 414 34. (1) Upon proof, to the satisfaction of the Judge Bench presiding at the sittings of any Court, of the service of a warrant. subpoena upon any witness who fails to attend or to remain in attendance in accordance with the requirements of the subpoena, and that a sufficient sum for his fees as a witness had been duly paid or tendered to him, and that the presence of such witness is material to the ends of justice, the said Judge may, by his warrant, directed to any sheriff or other officer of the Court, or to any constable, cause such witness to be apprehended, and forthwith brought before him or any other Judge who may thereafter preside at such sittings to give evidence, and in order to secure his presence as a witness, such witness may be taken on such warrant before the presiding Judge and detained in the custody of the person to whom the warrant is directed, or otherwise, as the presiding Judge may order, until his presence, as such witness, is required, or, in the discretion of the said Judge, he may be released on a recognizance (with or without sureties) conditioned for his appearance to give evider.ce. warrant. (2) The warrant may be according to Form No. 6, Appen- Form of bench dix J., and may be executed in any part of New Brunswick. R. 482, (O). IV.-Perpetuating Testimony. 415 perpetuate 35. Any person who would, under the circumstances Action to alleged by him to exist, become entitled, upon the happening testimony. of any future event, to any honour, title, dignity, or office, or to any estate or interest in any property, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testimony which may be material for establishing such right or claim. O. 37, r. 35, (E). |