said copy is in the proper handwriting of Mr. B. M., the [manager] of the said bank.

3. With the exception only of the said entries referred to in paragraph [2] hereof, the said account does not contain any entries or entry whatever relating in any way to the matters or any matter in question in this action. Sworn [&c., as usual].

This affidavit is filed [&c., as usual].

[The above form must be carefully adapted, in so far as the facts of the case permit, to meet the allegations of the affidavit in support of the application.]

4. Order for Inspection.

[Title, &c., as usual.]

Upon hearing [the solicitor for the, or counsel on both sides], and

upon reading the affidavit of

It is ordered that the

day of 19-:

[and his solicitor] be at liberty to inspect

and take copies for the purposes of this action of all entries in the books bank relating to the account of the with the said bank

of the

[in the year account relates to

or between

and -, 19-] [so far as the said -], and that the costs of and incidental to the application and this order, and of the inspection and copies taken thereunder, be [costs in the cause].

Dated

5. Affidavit verifying Copy of Entries in Bankers' Book (e).

I, B. M., of

[or for the

[Title, &c., as usual.]

the manager [or as the case may be] for Messieurs Bank, Limited, or as the case may be] of the bank and business of bankers carried on by the said firm [or company] at [their chief (or branch) office at] make oath and say as follows :—

1. I am [&c., stating that deponent is the manager or some other officer, or one of the partners, in some specified bank].

2. The paper writing now produced and shown to me, and marked is a true copy of all the entries [or of certain entries] in

[specify the book from which the entries are copied] relating to [specify the account to which the entries relate.]

3. The said [book] was at the times of the making of the said entries therein one of the ordinary books of the said [name of bank], and the said entries were made in the said [book] in the usual and ordinary

(e) Proof of Entry by Copy.]—The Bankers' Books Evidence Act, 1879, s. 3, provides that, subject to the provisions of the Act, "a copy of any entry in a banker's book shall in all legal proceedings be received as primâ facie evidence of such entry, and of the matters, transactions and accounts therein recorded."

course of business, and the said book is now in the custody and control of the said [name of bank] (f).

4. I have examined the said copy of the said entries with the original entries in the said [book], and the said copy is correct (g).

5. [The document now produced and shown to me, and marked is a true copy of the return made on the

day of

19-, by the

said [name of bank] to the Commissioners of Inland Revenue (h)].

Sworn [&c., as usual].

This affidavit is filed [&c., as usual].

CHAPTER X.

INSPECTION OF REAL AND PERSONAL PROPERTY.

See ante, pp. 224 et seq.

(f) Proof that Book is a Banker's Book.]-By sect. 4, "A copy of an entry in a banker's book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank; and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any commissioner or person authorized to take affidavits."

(g) Verification of Copy.]-By sect. 5, "A copy of an entry in a banker's book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct. Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner or person authorized to take affidavits."

In the case

(h) As to proof that the Act of 1879 applies to the bank, see sect. 9. of a banking company to which the Companies Acts apply, see 45 & 46 Vict. c. 72, & 11 (2).

CHAPTER XI.

EXAMINATION OF WITNESSES AND PARTIES WITHIN THE JURISDICTION OF THE COURT (a).

1. Application for Order for Examination of Witness (b).

[Formal parts as usual in application to Master] for an order that W. W., a witness on behalf of the plaintiff [or defendant], be examined vivâ voce (on oath or affirmation) before one of the examiners of the Court or such other examiner or person and on such terms as shall be directed, and that the costs of this application be [costs in the cause].

Dated [&c., conclude as usual].

2. Affidavit in Support of Application, where Witness is going abroad.

[Title, &c., as in writ of summons.]

I, A. B., [of ——————], the above-named plaintiff [or defendant, or solicitor in this action to the above-named -, or managing clerk to Mr., of

the same place, solicitor herein to and say as follows :

or as the case may be], make oath

1. This action is brought for [&c., concisely stating the cause of action].

(a) By R. S. C., Ord. XXXVII., r. 1, "In the absence of any agreement in writing between the solicitors of all parties, and subject to these Rules, the witnesses at the trial of any action or at any assessment of damages shall be examined vivâ voce and in open Court, but the Court or a Judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or Judge may think reasonable, or that any witness whose attendance in Court ought for some sufficient cause to be dispensed with be examined by interrogatories or otherwise before a commissioner or examiner; provided that, where it appears to the Court or Judge that the other party bona fide desires the production of a witness for cross-examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit."

(b) By Ord. XXXVII., r. 5, "The Court or a Judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the Court or Judge or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a Judge may direct."

By r. 39, "The examination of any witness or person ordered to be taken under Rules 1 and 5 of this Order shall, in any cause or matter in any Division of the High Court, unless the Court or a Judge shall otherwise direct, be taken before one of the examiners of the Court; provided that nothing in this Rule shall interfere with the practice as to examinations in Admiralty actions."

not been joined, the affidavit should contain a clear statement of the reasons for making the application before joinder of issue.]

4. W. W., of

is a material and necessary witness for [me] to support [my] claim in [or defence to] this action, as I am advised and verily believe; and [I] cannot safely proceed to the trial thereof or properly support such claim [or defence] at the trial without his evidence.

5. [Here state shortly any facts particularly relied upon as showing that the evidence of the witness is material and necessary.]

6. The said W. W., as he has informed me, and as I verily believe, is about to leave this kingdom in a few days [or on the day of next] for ———, in parts beyond the seas, and is not expected to return during the next months [or before the day of 19-].

7. [Here state shortly any facts, or exhibit any documents, particularly relied upon as supporting the statements in the last preceding paragraph.]

8. [If the application is not made promptly after joinder of issue, the affidavit should, if possible, give a satisfactory explanation of the delay, e.g., that the need of the witness to go abroad has only recently arisen or become known.] 9. [If the affidavit be by the defendant, add] I am advised and verily believe that I have a good defence to this action on the merits. This application is made bona fide and not for the purposes of delay [but neither of these statements is in general absolutely necessary].

Sworn [&c., as usual; see post, "Affidavits "]. This affidavit is filed [&c., as usual].

3. Affidavit in support of Application where Witness is ill.

[The preceding form No. 2 may be followed, except as regards paragraphs 6, 7, and 8; instead of which say as follows :-]

6. I am informed by and I verily believe that [or To my own knowledge] the said W. W. is dangerously [or seriously] ill, and is suffering from [here state the nature of the illness] and is not expected to recover from such illness [or by reason of such illness is not expected to be able to attend the trial of this action, &c., according to the facts].

7. [The certificate of a competent medical man who is attending the witness and who certifies his opinion in accordance with the facts deposed to in paragraph 6, may be here exhibited. This will suffice, where the other side does not dispute the facts or does not oppose the application; otherwise it is advisable to produce an affidavit by the medical man himself.]

8. [If there has apparently been any delay in making the application, a satisfactory explanation should be given, if possible.]

C.F.

19

4. Order for Examination vivâ voce (c).

Upon hearing [the solicitors on both sides], and upon reading the affidavit of filed herein the day of 19-, [and -]: It is ordered that a witness on behalf of the plaintiff [or defendant], be examined vivâ voce (on oath or affirmation) before one of the examiners of the Court [or before Master, or before, Esquire, special examiner, or before an examiner to be agreed upon]; the plaintiff's [or defendant's] solicitor or agent giving to the defendant's [or plaintiff's] solicitor or agent days' notice in writing of the time and place where the examination is to take place [or state the time and place if fixed by the order]. And it is further ordered that the examination so taken be filed in the Central Office of the Supreme Court of Judicature, and that an office copy or copies thereof may be read and given in evidence on the trial of this cause, saving all just exceptions, without any further proof of the absence of the said witness than the affidavit of the solicitor or agent of the party using the same, as to his belief, and that the costs of this application [and of the said examination] be costs in the cause.

5. Order for Examination upon Interrogatories (d). [Formal parts as usual.] It is ordered that W. W. [of -], a witness on behalf of the plaintiff [or defendant] be examined (on oath or affirmation) before E. E., Esquire, special examiner (or as the case may be), upon interrogaties to be exhibited by the plaintiff [or defendant] to the said witness at [place of examination] on day, the day of — 19—, at o'clock in the -noon, or at such other place or time as the said E. E. shall think fit to appoint and cause to be notified to the parties days at least before the holding of the said examination; and further, that days before the time appointed for the said examination the plaintiff's [or defendant's] solicitor deliver to the defendant's [or plaintiff's] solicitor a copy of the interrogatories so to be exhibited as aforesaid and that the defendant [or plaintiff] be at liberty to crossexamine the said witness upon cross-interrogatories to be exhibited in like manner; and further, that the said witness may be further examined vivâ voce before the said E. E., if the said E. E. shall think fit; and that the said interrogatories, cross-interrogatories, if any, depositions, examinations, and other proceedings had before the said E. E., shall be returned to and filed in the Central Office of the Supreme Court of Judicature, certified under the hand [and seal] of the said E. E., on or before the

:

day of 19—; and that an office copy or office copies of the same may be

read [&c., as in the preceding form No. 4].

Dated

(c) The above form is framed from that given in R. S. C., App. K., No. 35. (d) An order for the examination of witnesses within the jurisdiction is generally for an examination riva voce, and rarely for an examination on written interrogatories.