Page images
PDF
EPUB

c. 86.

affidavit to

examination,

examination.

enlarge the same as it may see fit (r); and after the 15& 16 Vict. time fixed for closing the evidence no further evidence, whether oral or by affidavit, shall be receivable, without special leave of the court previously obtained for that purpose: provided always, that Witnesses by any witness who has made an affidavit filed by any be subject to party to a cause shall be subject to oral cross-exa-oral crossmination within such time after the time fixed for and afterclosing the evidence as shall be prescribed in that wards to rebehalf by any order of the Lord Chancellor, by or before an examiner, in the same manner as if the evidence given by him in his affidavit had been given by him orally before the examiner, and after such cross-examination may be re-examined orally by or on the part of the party by whom such affidavit was filed (s); and such witness shall be bound Witnesses to attend before such examiner to be so cross-ex- attend. mined and re-examined, upon receiving due and proper notice, and payment of his reasonable expenses, in like manner as if he had been duly served with a writ of subpoena ad testificandum before such examiner (t); and the expenses attending such As to excross-examination and re-examination shall be paid fending by the parties respectively, in like manner as if the cross-examiwitness so to be cross-examined were the witness of the party cross-examining, and shall be deemed costs in the cause of such parties respectively, unless the court shall think fit otherwise to direct.

(r) See 32nd Order, 7th August, 1852.

(s) See 34th and 35th Orders, 7th August, 1852. (t). See s. 40, n. (u).

bound to

penses at

nations, &c.

require the

examination

XXXIX. Upon the hearing of any cause de- Court may pending in the said court, whether commenced by production bill or by claim, the court, if it shall see fit so to and oral do, may require the production and oral examin- before itself ation before itself of any witness or party in the of any witcause, and may direct the costs of and attending and deterthe production and examination of such witness or ment of the party, to be paid by such of the parties to the suit costs. or in such manner as it may think fit.

XL. Any party in any cause or matter depending in the said court may, by a writ of subpoena

ness, &c.

mine pay

Any party in by subpœna

a cause may

c. 86.

require at

any witness before an examiner.

158 16Vict. ad testificandum or duces tecum, require the attendance of any witness before an examiner of the said court, or before an examiner specially aptendance of pointed for the purpose, and examine such witness orally, for the purpose of using his evidence upon any claim, motion, petition, or other proceeding before the court, in like manner as such witness would be bound to attend and be examined with a view to the hearing of a cause (u); and any party having made an affidavit to be used or which shall be used on any claim, motion, petition, or other proceeding before the court shall be bound on being served with such writ to attend before an examiner, for the purpose of being cross-examined: provided always, that the court shall always have a discretionary power of acting upon such evidence as may be before it at the time, and of making such interim orders, or otherwise, as may appear necessary to meet the justice of the case.

Subpoena ad testificandum.

Subpoena duces tecum.

(u) See 36th and 37th Orders, 7th August, 1852. Where there is reason to suppose a witness will not voluntarily attend to be examined, recourse must be had to the compulsory process of a writ of subpoena ad testificandum, which commands the witness to whom it is directed to appear before the examiner, to testify on behalf of the party requiring his testimony. (Hind. 326.) The form of this writ is prescribed by the Orders of May, 1845, Form No. VII., issued with those Orders. In case the witness is required to bring with him any written document in his possession, then the writ must be a subpoena duces tecum, which is in the same form as the ordinary subpoena, except that, before the words, "and hereof fail not at your peril," the words, "and that you then and there bring with you and produce" [the documents required], are inserted. The documents must be described with sufficient certainty. (Attorney-General v. Wilson, 9 Sim. 526.) A witness served with a subpoena duces tecum to produce deeds may refuse such production at his own peril; and if, when the matter is brought before the court by an application against him, he fails in justifying the course he has pursued, he must abide the consequences; but if he succeeds in establishing such an interest in the deeds as entitles him to withhold them, the Court will protect his right. (Bradshaw v. Subpoena to Bradshaw, 1 Russ. & M. 358; 3 Sim. 285.) Every subpoena, contain three other than a subpoena duces tecum, must contain three names, names where where necessary or required (5th Order, 1833); and no more than three persons can be included in one subpœna duces tecum ; duces tecum. but the party suing out the same is at liberty to sue a subpœna

necessary,

except a

So.

for each person, if it shall be deemed necessary or desirable to do 15 & 16 Vict. (6th Order, 1833.) It is to be observed that, in case of a c. 86. subpæna of this nature, husband and wife are considered as two Husband and distinct persons, and that her christian and surname must be in- wife distinct serted accordingly. (Hind. 327.) The name or firm, and the persons. place of business or residence, of the solicitor or solicitors Indorsement. issuing the subpana, must be indorsed in manner before stated with respect to other writs. (See ante, p. 2, n. (d).) The service of this subpæna must in all cases be personal (Hind. 327), and is effected by delivering a copy of the writ and of the indorsement thereon to the witness, and showing him the original writ. (4th Order, 1833). At the same time that he is served with the writ, the witness should be served with a notice in writing, specifying the time when he is to attend the examiner in pursuance of it. The time fixed by this notice Notice of should be a reasonable one; and it is to be observed, that no time for atwitness is bound to attend, unless his reasonable expenses are paid or tendered to him, except he reside within the bills of sonable. mortality, and is summoned to give evidence within the same; nor, if he appears, is he bound to give evidence until such charges are actually paid him. (Hind. 328, vide Phil. on Ev.)

tendance must be rea

be examined.

It is said, that if the witness whose attendance is required be Tender of exa married woman, it will be necessary to serve the subpana penses. upon her personally, and that the tender of the expenses should be made to her, and not to her husband. (Phil. on Ev. 732.) To compel the attendance of witnesses to be crossexamined no subpana is requisite; but the party desirous of cross-examining any witness makes an appointment with the examiner, and serves the witness with notice thereof, and the solicitor of the party producing the witness. (Keymer v. Pering, 10 Sim. 181.) If, at the time fixed, a witness who Witness rehas been served with a subpoena and a notice does not attend, fusing to be the party serving him may move the court upon an affidavit sworn or to of the personal service of the subpana, and of the notice, and of the non-attendance of the witness, that the witness do attend within a given time, or stand committed, and that he may pay the costs of the application. This notice is served personally on the witness. The order is drawn up, and is served personally, and, upon the examiner's certificate of non-attendance, and an affidavit of service, an order is made upon a motion, as of course, for the committal of the witness to the Queen's Prison. The Lord Chancellor issues a warrant on the order, and the witness is taken by the deputy warden to the Queen's Prison. No person offered as a wit- Witnesses ness shall hereafter be excluded by reason of incapacity from not excluded crime or interest from giving evidence, either in person or by evidence by from giving deposition, according to the practice of the court, on the trial incapacity of any issue joined, or of any matter or question, or on any from crime or 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

interest.

15& 16 Vict. of parties, authority to hear, receive, and examine evidence; c. 86. 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 (a) the husband or wife of such persons respectively: provided also, that this act shall not repeal any provision in the act 7 Will. 4 & 1 Vict. c. 26: provided that in courts of equity any defendant to any equity defen- cause pending in any such court may be examined as a witexamined for less on the behalf of the plaintiff, or of any co-defendant in plaintiff or co- any such cause, saving just exceptions; and that any interest

In courts of

dant may be

defendant.

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. (6 & 7 Vict. c. 85, s. 1.) Under this act it was held that one defendant in a suit is a competent witness in the same cause on behalf of another defendant, and that it was not a just exception to his evidence, that the title of the plaintiff to sustain the suit against both defendants depended upon the same issue; that fact can only be considered as affecting, or tending to affect, the credit of such defendant as a witness. (Wood v. Rowcliffe, 6 Hare, 183. See Munday v. Guyer, 1 De G. & S. 182; Richmond's Executors' case, 3 De G. & S. 97.) In a suit where one of three defendants had been examined by the plaintiff, and the bill on that account dismissed as against him, a decree was nevertheless made against the other two defendants, the court holding that, in order to obtain the relief prayed against the two, a decree against the third also was not necessary. It was questioned whether, since the act 6 & 7 Vict. c. 87, a decree can be made against a defendant who has been examined as a witness by the plaintiffs. (Rowland v. Parties to be Witherden, 3 Mac. & G. 568.) On the trial of any issue joined, or of matter or question, or on any inquiry arising in any suit, action, or other proceeding in any court of justice,

admissible witnesses.

any

(a) The words in italics are repealed by 14 & 15 Vict. c. 99, s. 1.

c. 86.

or before any person having by law, or by consent of par. 15& 16Vict. ties, authority to hear, receive and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either vivá voce or by deposition, according to the practice of the court, on behalf of either or any of the parties to the said suit, action or other proceeding. (14 & 15 Vict. c. 99, s. 2.) But nothing herein contained shall render Nothing any person who in any criminal proceeding is charged with herein to the commission of any indictable offence, or any offence compel person charged punishable on summary conviction, competent or compellable with criminal to give evidence for or against himself or herself, or shall offence to render any person compellable to answer any question tending give evidence tending to to criminate himself or herself, or shall in any criminal pro- criminate ceeding render any husband competent or compellable to give himself, &c. evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband. (Ibid. s. 3.) The act 14 & 15 Vict. c. 99, does not render a husband or wife competent witnesses for or against each other in civil proceedings. (Burbat v. Allen, 16 Jur. 339; Stapleton v. Croft, Ibid. 408.) The act 14 & 15 Vict. c. 99, does not render a married woman who is party to a suit competent or compellable to give evidence for or against her husband, although the suit is a civil proceeding, and not of the kind mentioned in the 4th section. (Alcock v. Alcock, 16 Jur. 653.) The statute 14 & 15 Vict. c. 99, has rendered it unnecessary to obtain the common order under the old practice, giving liberty to the party to examine another party, saving just exceptions. (Swann v. Wortley, 9 Hare, 460.)

subsequent
to hearing to

same as prior

XLI. In cases where it shall be necessary for Evidence any party to any cause depending in the said court to go into evidence subsequently to the hearing of be taken the such cause, such evidence shall be taken as nearly to hearing. as may be in the manner hereinbefore provided with reference to the taking of evidence with a view to such hearing.

objection for

parties in any

XLII. It shall not be competent to any defend- Defendant ant in any suit in the said court to take any ob- not to take jection for want of parties to such suit, in any case want of to which the rules next hereinafter set forth ex- case to which tend (r); and such rules shall be deemed and taken rules herein as part of the law and practice of the said court, extend. and any law or practice of the said court inconsistent therewith shall be and is hereby abrogated and annulled.

set forth shall

« EelmineJätka »