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C. 86.

158 16Vict. cross-examination and re-examination; and such

examination, cross-examination, and re-examination shall be conducted as nearly as may be in the mode now in use in courts of common law with respect to a witness about to go abroad, and not expected to be present at the trial of a cause.

(1) There are two examiners of the Court of Chancery, who examine all witnesses in London, or within twenty miles of it.

Depositions to be taken down in

who shall


may, and

cial matter


XXXII. The depositions taken upon any such

oral examination as aforesaid shall be taken down writing and in writing by the examiner, not ordinarily by questhe witness. tion and answer, but in the form of a narrative (m),

and when completed shall be read over to the witsign the same in presence of ness, and signed by him in the presence of the parthe parties, ties, or such of them as may think fit to attend: fuse to sign, provided always, that in case the witness shall re

fuse to sign the said depositions, then the examiner state any spe- shall sign the same, and such examiner may, upon he may think

all examinations, state any special matter to the court as he shall think fit: provided also, that it shall be in the discretion of the examiner to put down any particular question or answer, if there should appear any special reason for doing so; and any question or questions which may be objected to shall be noticed or referred to by the examiner in or upon the depositions, and he shall state his opinion thereon to the counsel, solicitors, or parties, and shall refer to such statement on the face of the depositions, but he shall not have power to decide upon the materiality or relevancy of any question or questions; and the court shall have power to deal with the costs of immaterial or irrelevant depositions as may be just.

(m) All depositions of witnesses in the Court of Chancery are to be taken in the first person. (3 & 4 Will. 4, c. 94, s. 27; 107th Order, May, 1845.)

XXXIII. If any person produced before any such examiner as a witness shall refuse to be sworn, or to answer any lawful question put to him by the

examiner, or by either of the parties, or by his or same course their counsel, solicitor, or agent, the same course

If parties refuse to be sworn or to answer any lawful questions, the

Proviso as to

shall be adopted with respect to such witness as is 158 16Vict. now pursued in the case of a witness produced for c. 86. examination before an examiner of the said court, to be pursued upon written interrogatories, and refusing to be as is now sworn, or to answer some lawful question (n): pro

adopted. vided always, that if any witness shall demur or witness deobject to any question or questions which may be murring to

questions. put to him, the question or questions so put, and the demurrer or objection of the witness thereto, shall be taken down by the examiner, and transmitted by him to the record office of the said court, to be there filed; and the validity of such demurrer or objection shall be decided by the court (o); and the costs of and occasioned by such demurrer or objection shall be in the discretion of the court.

(n) If a witness attends before the examiner under a sub- Examination репа, , but refuses to be sworn, he will be ordered to attend of witnesses. and be examined or stand committed. (Hennegal v. Evance, 12 Ves. 201.) A witness who had answered some of the interrogatories, but refused to answer the others, was ordered upon the examiner's certificate to answer those interrogatories within four days, or stand comiņitted. (Austin v. Prince, 1 Sim. 348.) A witness, after once coming under examination, cannot refuse to give his evidence as to a particular document on the ground of irregularity in the service of the subpæna duces tecum. (Tippins v. Coates, 6 Hare, 16.) An attorney, examined as a witness, must not disclose private confidential conversations with his client, or the depositions may be suppressed (Sandford v. Remington, 2 Ves. 189; Lodge v. Pritchard, 15 Jur.1147); but he is only protected from divulging those secrets of his client which come to his knowledge in his relation of solicitor and client. (Morgan v. Shaw, 4 Madd. 58; Sawyer v. Birchmore, 3 M. & K. 572.) Where an attorney is employed by a client professionally, to transact professional business, all the communications which pass between them in the course and for the purpose of that business, and not those only which relate to litigation commenced, or in contemplation, are privileged communications. The privilege is that of the client and not of the attorney. (Herring v. Člobery, 1 Phill. C. C. 91; Desborough v. Rawlins, 3 My. & C. 515; Penruddock v. Hammond, 11 Beav. 59 ; Beadon v. King, 17 Sim. 34. See Dan. Ch. Pr. 526-532, 2nd ed.) Communications between a solicitor and his client through the medium of an agent are protected to the same extent with communications had directly with the principal. (Russell v. Jackson, 9 Hare, 387.) The privilege of communications between solicitor and client extends to all matters within the scope of the ordinary duties of a solicitor, and

158 16Vict, the sale of estates being one of such matters, it was held that C. 86.

the solicitor was not at liberty to disclose what had passed in conversations which he had had either with the client or the agent of the client, relative to the amount of the bidding to be reserved upon the sale of an estate in which he had been concerned for him, and to the other matters connected with the sale. (Curpmael v. Powis, 1 Phill. C. C. 687.) The rule as to confidential communications does not apply to all which passes between a client and his solicitor, but only to what passes between them in professional confidence; but where a solicitor is party to a fraud, no privilege attaches to the communications with him upon the subject, because the contriving a fraud is no part of his duty. (Follett v. Jeffreys, 1 Sim. N. S. 1; Russell v. Jackson, 9 Hare, 387.) The rule of protecting confidential communications does not extend to the communications between the solicitors of the opposite parties. (Gore v. Bowser, 3 De G. & S. 30.) Confidential communications made by a party to his attorney or counsel do not cease to be privileged by the fact that the attorney or counsel afterwards becomes interested as devisee of the property, and the title to which such communications related. (Chunt v. Brown, 7 Hare, 79.) A witness is not bound to answer questions to criminate himself. (Paiton v. Douglas, 16 Ves. 239.) A defendant or witness, if interrogated as to matters tending to criminate him, may decline to answer at any time, notwithstanding what he has disclosed may be sufficient to convict him. (The King of Two Sicilies v. Willcor, 1 Sim. N. S. 301 ; 15 Jur. 214; 20 Law J. Ch. 417 ; Reg. v.

Gurbett, 2 Carr. & K. 474.) Demurrer by

(n) If a witness objects to answer an interrogatory, or any witness to part of it, he must state his objection in the form of a deanswer interrogatories.

murrer. (Bowmun v. Rodwell, Madd. 266; Parkhurst v. Lowten, 2 Swanst. 194; Langley v. Fisher, 5 Beav. 443.) The demurrer is not prepared by counsel, but is taken down by the examiner from the mouth of the witness. In the case of a solicitor the demurrer was as follows: To the second interrogatory—I. A. B. depose as follows, (that is to say) I have looked at the paper writing now produced, and shown to me at this the time of my examination, and marked with the letter z, and purporting to be, &c.; but further to this interrogatory as far as I am able to depose to the same, I demur to make answer ; and for cause of demurrer say, that the said interrogatory inquires respecting matters about which I have only obtained information by means of my agency for my client, (numing him,) during the period that I was so acting for him in this cause in my capacity as a solicitor. (Gore v. Bowser, 5 De G. & S. 30.) Where a witness demurs to answering an interrogatory, and the examination is in London, the course is for the examiner to give notice of such demurrer to the opposite party, and to furnish him, if required, with a copy of the demurrer. (Tippins v. Coates,

C. 86.

6 Hare, 18.) An office copy of the demurrer, and of the 158 16Vict. interrogatory or interrogatories is furnished to the solicitor of the party by the clerk of records and writs. This office copy contains the title of the cause, the interrogatory, or so much as is demurred to, and so much of the depositions as comprises the demurrer. The record and writ clerk certifies, "The above is a copy of a demurrer of and of the interrogatory, or of so much of the interrogatory as relates to the said demurrer, made pursuant to an order made in this cause, dated, &c.” An order is obtained to set down the demurrer, which is served on the witness, but not on the parties to the suit, and the demurrer is set down to be argued next after the pleas and demurrers already set down. The party examining, and the witness, furnish their respective counsel with a copy of the interrogatory or interrogatories, and of the demurrer, and the question is argued before the court. A witness cannot demur, because the questions asked him are immaterial to the matter in issue. (Tippins v. Coates, 6 Hare, 21 ; Ashton v. Ashton, 1 Vern. 165.) If a demurrer is overruled as being too general, the court will sometimes give liberty to put in a further demurrer on re-examination. (Morgun v. Shaw, 4 Madd. 54.) A party demurring to the discovery of a question tending to criminate himself is no inference of the truth of the fact. (Lloyd v. Passinghum, 16 Ves. 59.) A demurrer by a witness to answer interrogatories on the ground that he might subject himself to penalties was allowed. Such a demurrer may be allowed partially. A demurrer by a witness to two interrogatories was allowed as to one, and overruled as to the other. The court gave the witness half the costs of the demurrer. (Davis v. Reid, 5 Sim. 443.) A witness on the overruling of his demurrer is liable to pay the same costs as a defendant by analogy to the 32nd Order of the Orders of April, 1828. (Sawyer v. Birchmore, 3 My. & C. 572; Langley v. Fisher, 5 Beav. 443.) If the question raised by the demurrer of a witness to interrogatories be one which the court can dispose of in that shape it is bound to do so, and not to reserve the objection to the hearing. (Carpmael v. Powis, 1 Phill. C. C. 687.)

XXXIV. When the examination of witnesses Original debefore any examiner shall have been concluded, bestrings the original depositions, authenticated by the sig- mitted to the nature of such examiner, shall be transmitted by office, and him to the record office of the said court, to be filed. there filed, and any party to the suit may have a copy thereof or of any part or portion thereof upon payment for the same in such manner as shall be provided by any general order of the Lord Chancellor in that behalf.

c. 86.


tion of witnesses dis


15816 Vict. XXXV. It shall not be necessary to sue out any commission for the examination of


witnesses within the jurisdiction of the said court (p); and for examina- any examiner appointed by any order of the court

shall have the like power of administering oaths as pensed with, commissioners now have under commissions issued empowered by the court for the examination of witnesses (9). to administer

(p) As to the examination of witnesses by commission, see Dan. Ch. Pr. 872–894, 2nd ed.

(9) The examiners of the Court of Chancery are authorized and empowered to administer the usual and accustomed oaths, and to take the usual affirmations of the witnesses examined before them. (3 & 4 Will. 4, c. 94, s. 27.) Quakers and Moravians may, in lieu of an oath, make affirmation or declaration in a prescribed form. (3 & 4 Will. 4, c. 49 ; 9 Geo. 4, c. 32, s. 1.) Persons who have been Quakers or Moravians may make an affirmation and declaration in lieu of an oath. (1 & 2 Vict. c. 77.) Separatists, instead of an oath, may make a declaration or affirmation in the form prescribed by the act. (3 & 4 Will. 4, c. 82.) As to the power of the chief clerk of judges of the Court of Chancery to administer oaths, to take affidavits, and to receive affirmations, and to examine parties and witnesses, see 15 & 16 Vict. c. 80, s. 30, post.

Affidavits as

XXXVI. Notwithstanding that the plaintiff or to particular facts, &c. the defendant in any suit in the said court may have may be used. elected that the evidence in the cause should be taken

orally, affidavits by particular witnesses, or affidavits as to particular facts or circumstances, may, by consent, or by leave of the court obtained upon notice, be used on the hearing of any cause, and such consent, with the approbation of the court, may be given by or on the part of married women or infants or other persons under disability.

XXXVII. Every affidavit to be used in the said

court shall be divided into paragraphs, and every graphs num. paragraph shall be numbered consecutively, and, bered.

as nearly as may be, shall be confined to a distinct

portion of the subject. Evidence, XXXVIII. The evidence on both sides in any oral or by affidavit, on

suit in the said court, whether taken orally or both sides, to upon affidavit, shall be closed within such time or within time respective times after issue joined as shall in that prescribed by behalf be prescribed by any general order of the

Lord Chancellor, but with power to the court to

Affidavits to be divided

into para

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