Those used at any interlocutory application need not be so (p); they must be expressed in the first person, divided into numbered paragraphs, and each statement must show the means of knowledge of the person making it (q). If containing irrelevant and scandalous matter or hearsay, they may be ordered to be taken off the file (r). The Record and Writ Clerks are at liberty to refuse to file any affidavit in which there is any knife erasure, or any affidavit which is blotted so as to obliterate any word, or which is improperly written or so altered as to cause any material disfigurement, or any affidavit in which there is any interlineation of any word or words, unless the person before whom the same is sworn duly authenticate such interlineation with his initials (s). Depositions taken exparte before an examiner, under the 6th rule of the Order of the 5th of February, 1861, and the answer of a defendant used upon motion for decree, are treated for all purposes as affidavits. EXAMINATION OF WITNESSES DE BENE ESSE. The Court of Chancery, following the practice of the civil law, will in any suit make an order to examine an important witness before the regular time for examination of witnesses, in order that, if the witness die or cannot be produced, his evidence may not be (p) Order of 16 May, 1862, r. 9. lost. This order may be applied for directly the bill. is filed; and the plaintiff or defendant may be ordered to be examined in this way. When a witness is seventy years of age or upwards, or is in a dangerous state of health (), or is about to go abroad, or when there is only one witness to a particular fact (u), or, indeed, wherever the justice of the case requires it, the order will be made. The application, which must be supported by an affidavit of the facts, is made either to the Court or to a judge in chambers on notice. The depositions of the witnesses are taken before an examiner in the manner prescribed by sections 31, 32 and 33 of 15 & 16 Vict. c. 86 (x), and filed. They are proved by office copies, but can only be used under an order of the Court, which will not be made unless it is impossible to re-examine the witness. BILLS TO PERPETUATE TESTIMONY. Where there is a danger that testimony may be lost before the question to which it relates can be made the subject of judicial investigation, the Court of Chancery, following the practice of the civil law, will lend its aid to preserve and perpetuate such testimony. A bill is filed, stating the matter respecting which the plaintiff desires to take evidence, showing that he has an interest in the matter which cannot be barred (t) Bellany v. Jones, 8 Ves. 31. (u) Shirley v. Earl Ferrers, 3 P. W. 77; Cf. Hope v. Hope, 3 Beav. 317. (x) Cook v. Hall, 9 Hare, App. xx. by the defendant; that the defendant claims an interest adverse to the plaintiff in the matter, and that the matter cannot be made the subject of present judicial investigation (y). An affidavit of the circumstances by which the evidence desired to be preserved is in danger of being lost, must be filed with the bill. The plaintiff can only require an answer from the defendant as to the facts and circumstances alleged by the bill as entitling him to examine the witnesses (z): nor can the bill be set down for hearing (a). The witnesses are examined before an examiner, according to the provisions of sections 31, 32 and 33 of 15 & 16 Vict. c. 86, by the defendant as well as by the plaintiff. An order may be obtained to use the depositions so taken, either after the death of the witness (b), or in case he is too infirm (c), or cannot be compelled to attend (d). A case for the perpetuation of testimony is not confined to aged and infirm witnesses, or to a single witness who can alone speak to the matter; but, in the words of Lord Romilly, M.R. (e), "you may examine everybody, and all the evidence is sealed up and only brought out when occasion requires it, and if the witnesses are alive it cannot be used, and the evidence must be taken all over again." (y) Earl Spencer v. Peek, L. R. 3 Eq. 415. (a) Con. Ord. Ix. 7. (b) Barnsdale v. Low, 2 R. & M. 142. (e) Earl Spencer v. Peek, ubi supra. APPENDIX. LORD DENMAN'S ACT. 6 & 7 VICT. c. 85. An Act for improving the Law of Evidence.-[22nd August, 1843.] I. Witnesses not to be excluded from giving evidence by incapacity from crime or interest-Proviso-Not to repeal any provision in 7 Will. 4 & 1 Vict. c. 26-In courts of equity defendant may be examined on behalf of the plaintiff or any co-defendant, &c.]-Whereas the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony: Now, therefore, be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present Parliament assembled, and by the authority of the same, that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest 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; but that every person so offered may and shall be admitted to give evidence on oath, or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury, or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence: provided that this act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff, 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 and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively provided also that this act shall not repeal any provision in a certain act passed in the session of Parliament holden in the seventh year of the reign of his late Majesty, and in the first year of the reign of her present Majesty, intituled An Act for the Amendment of the Laws with respect to Wills: provided that in courts of equity any defendant to any cause pending in any such court may be examined as a witness on the behalf of the plaintiff or of any co-defendant in any such cause, saving just exceptions; and that any interest which such defendant so to be examined may have in the matters or any of the matters in question in the cause shall not be deemed a just exception to the testimony of such defendant, but shall only be considered as affecting or tending to affect the credit of such defendant as a witness. DOCUMENTARY EVIDENCE ACT. An Act to facilitate the Admission in Evidence of certain official and other Documents.—[8th August, 1845.] I. Certain documents to be received in evidence without proof of seal or signature, &c., of person signing the same.]— |