seeks discovery, and shall in such order require the party interrogated to answer the questions in writing by affidavit, and file such answers within such time to be appointed by the registrar, as shall enable the party making the application to use the answers so returned as evidence at the trial."

§ 540. Rule 7 provides, that "where a party served with the order shall object to answer the interrogatories, he shall file an affidavit stating his grounds for objecting, and that he will be prepared to show cause to the court at the return-day against his being required to answer them, but where it is only some of the interrogatories he objects to answer, he may include in his affidavit both his replies and his objections."

§ 541. Independent of these rules, the County Court, by virtue of 53 of the Common Law Procedure Act, 1854,1 may, in case any party omits to answer sufficiently any written interrogatories, direct him to be orally examined either before itself or the registrar, as to such points as it may direct; and it may also command the attendance of the party for the purposes of the examination, and the production of documents, and may impose such terms as to costs or otherwise as shall seem just. In the event of the registrar being directed to take the examination, either he or his clerk must transcribe the answers given by the party, he must himself read over the answers so transcribed, the party must then sign his name at the foot thereof, and finally the document must be filed by the registrar as the deposition of the party.2

§ 542. Rule 8 of Order XIII. further provides, that "where the party required to answer interrogatories shall successfully show cause against an order requiring him to answer them, the judge may direct the action to proceed, or to be adjourned if he thinks fit, and upon terms as to costs; but if the party objecting shall not show sufficient cause for his objection, the judge may order the interrogatories to be then and there answered vivâ voce in Court, or may

1 17 & 18 V., c. 125, § 53, extended to the Cy. Cts. by ord. of Council, 18 Nov. 1867. See W. N. of 1867, p. 631.

2 Ord. xiv. of Cy. Ct. Rules, 1875, r. 7.

adjourn the action, and make an order for the answering of the interrogatories by such time, and for the payment of such costs as may have been incurred through the delay, as he may think fit."

§ 543. Before courts of law were empowered to issue commis- § 488 sions for themselves, it was often necessary to institute proceedings in Chancery as auxiliary to an action at law; and even now, it is occasionally expedient to do so with respect to matters which cannot immediately be investigated in a Common Law Division of the High Court, when the testimony of a material witness is likely to be lost by his death or departure from the realm. In such cases as these, recourse is had to what is called "an action for perpetuating testimony," Courts of Equity having for centuries enjoyed the right of entertaining suits for the purpose of preserving evidence in perpetuam rei memoriam.1 As the object of this jurisdiction is to prevent litigation by preserving evidence, the Chancery Division will seldom decline to exercise it ; provided only,—and this is a material proviso,-that the evidence sought to be obtained is required to be used, not in proceedings already pending, but in some future suit.3

2

§ 544. The Legislature, considering that the benefits derivable § 489 from this mode of proceeding might with advantage be extended, enacted, in the year 1842, that "any person who would, under the circumstances alleged by him to exist, become entitled, upon the happening 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, shall be entitled to file a bill in the High Court of Chancery [now, to commence an action in the Chancery Division of the High Court] to perpetuate any testimony which may be material for establishing such claim or right." In

1 Mitf. Pl. 62; 1 Smith's Ch. Pr. 765; Gresl. Ev. 129, et seq.

2 Mitf. Pl. 172, 173.

3 Andrews v. Brooke, 43 L. J., Pr. & Mat. 39; 3 Law Rep., P. & D. 181, S. C., nom. Andrew v. Brooke.

✦ 5 & 6 V., c. 69. Proceedings under this Act should be jealously watched, Campbell v. E. of Dalhousie, 1 Law Rep., H. L. Sc. 462.

1858, Parliament again interposed; and by "The Legitimacy Declaration Act" of that year, empowered the Court for Divorce and Matrimonial Causes [now the Divorce Division of the High Court], on the petition of certain persons specially interested, to make decrees declaratory of the legitimacy or illegitimacy of any such petitioner, or of the validity or invalidity of the marriage of his parents, or grandparents, or of his own marriage, or of his right to be deemed a natural-born subject.

§ 545. In entertaining suits to perpetuate testimony, the court will compel the defendant to appear and answer, provided he be shown to have an interest in contesting the plaintiff's claim in the subject of the proposed evidence ;3 and the cause being brought to issue, the witnesses will, it is presumed, though the matter is left in doubt by the Judicature Acts,-be examined orally before one of the examiners of the court, not, indeed, in accordance with the practice established for ordinary suits, but according to the practice existing prior to the 5th February, 1861, that is, they will be examined" in the presence of the parties, their counsel, solicitors, or agents, ; they will be subject to cross-examination and reexamination; and the whole proceeding will be conducted in the mode in use in the old courts of common law, with respect to a witness about to go abroad. The depositions will then be taken down, signed, authenticated, and transmitted to the Record Office, in the same manner as in other cases, though, no relief being prayed, the suit is never brought to a hearing.8 The court will not, in general, permit the publication of the depositions, except in support of an action, nor then, unless it be proved that the witnesses are dead, or otherwise incapable of attending to be ex

1 21 & 22 V., c. 93, §§ 1, 2; extended to Ireland by 31 & 32 V., c. 20, Ir. 2 See Ellice v. Roupell, 2 New R. 3, per Romilly, M. R.; id. 150, S. C.; and 32 Beav. 299, 308, & 318, on other points. 3 Mitf. PL. 63. See Gen. Ord. rr. vi., xix. See, also, 30 & 31 V., c. 44, § 92, Ir. 5 Gen. Ord. r. xvi. See, also, 30 & 31 V., c. 44, § 98, Ir., which specially enacts, that, in Irish suits to perpetuate testimony, "evidence shall continue to be taken according to the now existing practice in cases of bills filed to perpetuate testimony." 6 15 & 16 V., c. 86, § 31.

7 15 & 16 V., c. 86, §§ 32, 34.

8 1 Smith's Ch. Pr. 768.

amined.1 So, if a witness in imminent danger of death has been examined de bene esse, under the authority of the ecclesiastical courts, the deposition cannot be read, unless proof be given that the witness has since died, or is too ill to be again examined at the hearing of the cause.

6

§ 546. It was stated in the last chapter, that if a witness, besides § 491 being examined on interrogatories, should testify at the trial of a cause, either party, on any subsequent trial respecting the same subject, provided the witness be then incapable of attending, may rely, at his option, either on the deposition, or on the previous vivâ voce testimony ;3 and it may be here observed, that what such witness has orally testified may be proved, either by any person, who will swear from his own memory,5 or by notes taken at the time by any person, who will swear to their accuracy, or possibly, from the necessity of the case, by the judge's notes. This last mode of proof, however, is open to very grave, if not insuperable, objections, as such notes form no part of the record, nor is it the duty of the judge to take them, nor have they the sanction of his oath to their accuracy or completeness.8 How far it may be necessary to prove the precise words spoken, does not clearly appear. Lord Kenyon mentions a case, where the evidence of a witness was rejected, "as he could not undertake to give the words, but merely to swear to the effect of them;" and the same precision has, on several occasions, been deemed requisite in America; 10 but on the

1 1 Smith's Ch. Pr. 769; Morrison v. Arnold, 19 Ves. 670. See Att.-Gen. v. Ray, 2 Hare, 518. 2 Wequelin v. Wequelin, 2 Curt. 263.

3 Tod v. E. of Winchelsea, 3 C. & P. 387, per Ld. Tenterden, ante, § 400. Gr. Ev. § 166, in part.

5 Strutt v. Bovingdon, 5 Esp. 56, per Ld. Ellenborough; May. of Doncaster

v. Day, 3 Taunt. 262; R. v. Jolliffe, 4 T. R. 290, per Ld. Kenyon.

May. of Doncaster v. Day, 3 Taunt. 262.

7 Id. 262, per Sir J. Mansfield.

8 Conradi v. Conradi, 1 Law Rep., P. & D. 514, per Wilde, J. O.; Miles v. O'Hara, 4 Binn. 108; Foster v. Shaw, 7 Serg. & R. 156; Ex parte Learmouth, 6 Madd. 113.

9 R. v. Jolliffe, 4 T. R. 290.

10 U. S. v. Wood, 3 Wash. 440; Foster . Shaw, 7 Serg. & R. 163; Wilbur v. Selden, 6 Cowen, 165; Com. v. Richards, 18 Pick. 434.

other hand, it has been urged, with much force,1 that to insist upon strict accuracy, goes, in effect, to exclude this sort of evidence altogether, or to admit it only in cases, where the particularity and minuteness of the witness's narrative, and the exactness with which he undertakes to repeat every word of the deceased's testimony, ought to excite just doubts of his own honesty, and of the truth of his evidence.2

§ 547. Perhaps, therefore, on occasions when nothing of import- § ance turns on the precise expressions used, it will be considered sufficient if the witness can speak with certainty to the substance of what was sworn on the former trial. Even on indictments for perjury it is not necessary to state the entire examination, but it will suffice to narrate, with accuracy, the whole of that portion of the evidence which relates to the point on which the perjury is assigned, provided the witness can further swear that he heard the whole examination, and that nothing was subsequently said to qualify the original statement. Unless he can do this his evidence cannot be received; and as the same rule must apply to the proof of the testimony of a deceased witness, it follows that if the person who heard him give his evidence can only state what was said on the examination in chief, without also giving the substance of his answers in cross-examination, or, at least, positively swearing that nothing escaped the witness which could vary or qualify the first statement, his evidence will be inadmissible.5

§ 548. When depositions are tendered in evidence as secondary § 493 proof of oral testimony, they are, of course, open to all the objections which might have been raised, had the witness himself been personally present at the trial. Leading and other illegal questions are therefore constantly suppressed, together with the answers to them; and this, too, whether the testimony has been taken vivâ

1 Gr. Ev. § 165.

2 See Cornell v. Green, 10 Serg. & R. 14, 16; Miles v. O'Hara, 4 Binn. 108; Caton v. Lenox, 5 Rand. 31, 36; Jackson v. Bailey, 2 Johns. 17.

3 R. v. Rowley, 1 Moo. C. C. 111; R. v. Dowlin, Pea. R. 170. 4 R. v. Jones, Pea. R. 38.

5 Wolf v. Wyeth, 11 Serg. & R. 149.