Cross Interrogatories.

Interrogatories to be propounded to the said E. F., by way of cross examination.

(State interrogatories as the circumstances of the case require.)

Form of Commission to take Deposition of non-resident Witness. STATE OF ILLINOIS,

SS.

The People of the State of Illinois to William Fairchild, Esq., a Justice of the Peace of the county of Oneida, in the State of New York. Whereas, it appears to Elisha P. Ferry, Esquire, one of the justices of the peace in and for the county of Lake, that E. F., of the town of Augusta, in the county of Oneida and State of New York, is a material witness in a certain cause now depending before the said justice, between A. B., plaintiff, and C. D., defendant,

Therefore we, in confidence of your prudence and fidelity, do, by these presents, appoint you to examine said witness, and authorize and employ you at a certain day and place to be by you for that purpose appointed, to examine on oath the said witness, on all the interrogatories hereto annexed, to be taken before you, and cause such examination to be reduced to writing and signed by such witness, and to certify and return the depositions annexed hereto to the said justice, under your seal, with the names of the parties endorsed thereon. And you will return also, with said deposition, a certificate of your official character, under the seal of the proper court of record in the county for which you are acting.

In witness whereof, the said justice has hereunto set his hand and seal, the

day of

-

A.D. 18-.

ELISHA P. FERRY, J. P. [SEAL.]

Form of Deposition taken in pursuance of the foregoing Commission.

Deposition of E. F., of Oneida county, in the State of New York, a witness, aged years, produced, sworn, and examined before William Fairchild, Esquire, a justice of the peace in and for the county and State aforesaid, on the day of 18, at the office of the said William Fairchild, Esq., in the town of Augusta, in said county, by virtue of a commission issued by Elisha P. Ferry, a justice of the peace of the county of Lake, in the State of Illinois, to me directed for

the examination of the said E. F., a witness in a suit depending before the said justice, between A. B., plaintiff, and C. D., defendant. First. To the first interrogatory this deponent says, &c.

Second. To the second interrogatory this deponent says, &c.

(The witness must make answer to each interrogatory separately. If there be any cross interrogatories, the witness will go on thus:) First. To the first cross interrogatory he says, &c.

Form of Certificate to be attached to the foregoing Deposition.

I, William Fairchild, a justice of the peace of said county, do certify that the foregoing deposition was taken by me at the time and place mentioned in the caption thereof; that the said witness was first duly sworn, and that the same was carefully read to said witness, and signed by him.

Dated this day of

A.D. 18-.

WILLIAM FAIRCHILD, J. P.

In sending out a commission to take the deposition of a non-resident witness, it would always be well to send also the form of the caption and certificate, as a guide for the Commissioner.

III. OF OATHS AND AFFIRMATIONS.

An Oath is a declaration made according to law before a competent tribunal or officer, to tell the truth; or it is the act of one, who, when lawfully required to tell the truth, takes God to witness that what he says is true. It is a religious act, by which the party invokes God not only to witness the truth and sincerity of his promise, but also to avenge his imposture or violated faith, or, in other words, to punish his perjury, if he shall be guilty of it. By a later definition, an oath has been briefly defined to be: "An outward pledge, given by the juror," (or person taking it) "that his attestation, or promise, is made under an immediate sense of his responsibility to God."2

(1) 2 Bouv. L. D. 233; 1 Stark. Ev. 23; See 1 Greenl. Ev. Sec. 328, where a somewhat different definition of an oath has been given. (2) Tyler on oaths, 12, 13.

Oaths are taken in various forms; the most usual is upon the gospel, by taking the book in the hand; the words commonly in use are : "You do swear that," &c., (and concluding)

(and then kissing the book.)1

66

so help you God,"

Another form is by the witness, or party promising, holding up his right hand; the words to be repeated by the officer, in this case, are: "You do swear by the ever living God that," &c.2

Another form of attestation, is by affirmation, which is defined to be, a solemn declaration and asseveration, which a witness makes before an officer competent to administer an oath in a like case, to tell the truth as if he had been sworn.3

Rev. Stat. 393, Section 1. "Whenever any person shall be required to take an oath before he enters upon the discharge of any office, place or business, or on any other lawful occasion, and such person shall declare that he or she has conscientious scruples about the present mode of administering oaths by laying the hand on and kissing the gospels, it shall be lawful for any person empowered to administer the oath, to administer it in the following form, to wit: The person swearing shall, with his or her hand uplifted, swear by the ever living God, and shall not be compelled to lay the hand on or kiss the gospels. And oaths so administered shall be equally effectual, and subject such persons to the like pains and penalties for willful and corrupt perjury, as oaths administered in the usual form.

Sec. 2. Whenever any person required to take or subscribe an oath, as aforesaid, and in all cases where an oath is upon any lawful occasion to be administered, and such persons shall have conscientious scruples against taking an oath, he or she shall be admitted, instead of taking an oath, to make his or her solemn affirmation, or declaration, in the following form, to wit: You do solemnly, sincerely, and truly declare and affirm,' which solemn affirmation, or declaration, shall be equally valid as if such person had taken an oath in the usual form, and every person guilty of falsely and corruptly declaring, as aforesaid, shall incur and suffer the like pains and penalties as are or shall be inflicted on persons convicted of willful and corrupt perjury.' Swearing the witness by the uplifted hand, is held to be a legal swearing, independent of the statute.*

(1) 2 Bouv. L. D. 233.

(2) 2 Bouv. L. D. 233; Rev. Stat. 393, Sec. 1. (3) 1 Bouv. L. D. 86; 1 Greenl. Ev. Sec. 371. (4) Breese, 28; 2 Gil. 540.

CHAPTER VIII.

OF THE TRIAL AND INCIDENTS THERETO.

I. OF INCIDENTS OCCURRING PREVIOUS TO THE TRIAL.

1. Of Continuance.

2. Of Change of Venue, or removing the Cause from one Justice to another.

II. OF TRIAL IN THE ABSENCE OF THE DEFENDANT.

III. OF TRIAL BEFORE THE JUSTICE WITHOUT A JURY.

IV. OF TRIAL BY JURY.

1. When the Jury shall be demanded and how obtained.

2. Who shall be competent to serve as Jurors.

3. Proceedings against defaulting Jurors.

4. Of Challenges.

5. Of Swearing the Jury.

V. OF PROCEEDINGS ON THE TRIAL.

VI. OF REFERRING THE DIFFERENCE BETWEEN TRE PARTIES TO

ARBITRATORS.

I.

OF INCIDENTS OCCURRING PREVIOUS TO THE COMMENCEMENT OF

THE TRIAL.

1. Of Continuance.

Revised Statutes 318, Sec. 27. Previous to the commencement

of any trial before a justice of the peace, either party may move to have such trial put off for a time not exceeding ten days, upon making proof, either upon his own oath or that of a credible witness, that the said party cannot safely proceed to trial, on account of the absence of a material witness, or on account of any other cause or disa

bility, which would prevent them from obtaining justice at such trial; and if the justice be satisfied that the party so applying cannot safely proceed to trial, and also that the party so applying has used due diligence to be ready at the time of trial first appointed, and that his not being ready is not the effect of such party's own neglect or inattention, then the said justice shall order the trial of said cause to be deferred to another day and hour within ten days, to be by him appointed; and the party praying such continuance shall pay all the costs occasioned thereby Provided, the justice may at any time continue any case without oath, if the parties consent; or if but one party be present and shall consent, or if he shall deem it essential to justice so to do for any good cause shown."

:

Form of Oath to be administered by the Justice upon application for the continuance of a Cause.

You do solemnly swear that you will true answers make to such questions as may be put to you, touching your present application for continuance of the cause now pending, in which you are plaintiff and C. D. is defendant, (or as the case may be), so help you God.

The justice will then interrogate the party, as to the grounds of his application for continuance, or may allow the opposite party to do so, as he may think proper.

A suit may also be continued, or adjourned for a time not more than six days, for the purpose of taking the deposition of a witness residing in the county, who is unable to attend a trial on account of age, sickness or other cause.1

A cause may also be continued by the justice for such a time as may be necessary, for the purpose of notifying the adverse party, who may not be present, that the party applying has a demand, discount or setoff, and that he knows of no witness by whom he can prove the same, except by his own oath or that of the adverse party.2

A case may likewise be continued any reasonable time, not exceeding one month, for the purpose of taking the deposition of any non-resident witness. 8

When a jury is demanded by either party, the justice may, if necessary, adjourn the cause to any time, not exceeding three days, for the purpose of empanneling a jury.*

(1) Rev. Stat. 319, Sec. 32. (4) Rev. Stat. 821, Sec. 44.

(2) Rev. Stat. 320, Sec. 40.

(3) Rev. Stat. 322, Sec. 52.