of the civil law, the examination of witnesses is taken in writing; it is probable this used to be done in open court; but these courts have found it necessary to rid themselves of so burthensome a duty, and, at present, the examination of witnesses in the court of Chancery is taken before officers appointed for that purpose. There are certain facts, which from their nature may seem to admit of little controversy, that may be proved by witnesses examined viva voce, in open court, at the hearing of a cause; such as the execution of a deed, where a defendant neither admits nor denies the execution in his answer, but leaves the party to make proof thereof, (to use the technical phrase,) as he shall be advised. For it is presumed, that if the execution of the deed was to be controverted in the pleadings, as if one party was to allege that a deed was genuine, and the other that it was forged, the court would not, permit this question to be examined at the hearing. This kind of examination, never can take place, but by the special permission of the court, obtained in due form.

Of the examination of witnesses. Before whom, and how taken.

1. Before whom, andhow

The cause being at issue, by the filing of the replication, the parties proceed to maintain the allegations taken. contained in their respective pleadings, by, the examination of witnesses.

This examination, is either before an examiner, or before special commissioners, nominated by the parties, and authorized by a commission of dedimus potestatem, issuing out of the court, to take the deposition of the witnesses.

Though there seems to be no rule in this state to

2. Form of interrogatories in equity.

determine when the testimony shall be taken before an examiner, or when it shall be taken by commission, still it is but reasonable to suppose, that this must depend much upon the situation of the witnesses, as well as the officers, who are duly authorized to take examinations, to be read in the court of Chancery.

If the witnesses reside in this state, a commission to examine them issues of course, and is made out by the clerk, in behalf of the party procuring the same, upon his application for that purpose. (a) But, if the witnesses are in another state, or in foreign parts, then the commission never issues, but by order of the court, founded on the special application, of which we shall treat hereafter.

Of taking testimony before an examiner.

When the cause is at issue, interrogatories, properly engrossed, are to be left with an examiner, at his office, which is termed filing interrogatories, on which, for the purpose of compelling the attendance of witnesses who reside in this state, a subpoena may issue by the twenty first rule of court.(b) The form of the interrogatories are as follow:

Interrogatories exhibited in equity.

Interrogatories, to be administered to witnesses, to be produced, sworn, and examined, in a certain cause depending and at issue in the court of Chancery, of the state of New-York, wherein A. B. is complain -ant, and C. D. is defendant, on the part and behalf of the said complainant.

1st Interrogatory. What is your name, age and oc

cupation, or profession? Do you know the parties, complainant and defendant, in the title of these interrogatories named, or any, and which of them, and how long, &c. &c. &c. declare the truth, and your knowledge therein. 2d Interrogatory. Did, or did not, G. H. in the foregoing interrogatory named, and when, and where, in your sight, or presence, or in the presence of any, and what other person, or persons, to your knowledge, sign, seal, publish, or declare, his last will and testament, in writing, or any, or what writing, as and for, or purporting to be his last will, &c. Declare.

3d Interrogatory. Do you know of any application, or applications, which have been made by, or on the behalf of the above named complainant, to the defendants above named, or either, and which of them, for the payment of a legacy of $800, in the pleadings in this cause mentioned to have been bequeathed to, or for the benefit of the said complainant, &c. if yea, set forth when, or about what time, or times respectively, and by whom, by name, and to whom and where, such application, or applications, was, or were so made, and whether the same was, or were so made, and whether the same was, or were, in any and what manner complied with, or assented to, or referred and rejected to, and by whom, and for any, and for what reasons? Declare, &c.

Lastly. Do you know of any other matter, or thing, and have you heard, or can you say any thing touching the matters in question in this canse, that may tend to the benefit and advantage of the complainant in this cause, besides what you have been interrogated unto: if aye, declare the same as if particularly interrogated thereto.

E. F. Sol'r. for Comp❜t

G. H. of Counsel.

S. How ta ken before an examiner.

Depositions in equity before an examiner.

After filing the interrogatories with the examiner, the solicitor of the party, in whose behalf the witnesses are to be examined, is to give notice to the opposite solicitor of the same, and furnish him with copies of the interrogatories to be administered to the witnesses, which copies of the interrogatories if direct, shall be 4. Time of furnished six days before the day assigned for the expies of the in- amination of the witnesses by the examiner, and if the interrogatories are cross, then they shall be furnished two days before the examination. (a)

furnishing co

terrogatories.

5. Rule for plaintiff to pro

Rule for the plaintiff to produce witnesses.
Before the cause is in a state to be noticed for hear-

duce witnesses. ing, each of the parties must enter a rule, requiring the opposite party to produce his witnesses, which is a rule of three weeks ;(b) at any time after the expiration of that rule, another rule must be entered to pass publication, which is also a rule of three weeks, (c) which means, that the examiner make public the examinations of the witnesses taken before him, by delivering copies thereof to the parties; and, after publication passed, neither party can examine other witnesses, except by leave obtained on special motion.

Let the following præcipe be given to the clerk in court:

In Chancery.

-6. Præcipe

to the clerk in

court,

April

1818. A day is given to the complainant

to produce witnesses, in three weeks.

(a) Rule 68,

(6) Rule 20.

(c) Rule 20.

the oppositeso

being given to

Please to take notice, that a day is given to the 7. Notice to complainant in the above cause, to produce witnesses licitor of a day in three weeks; and that a rule has been entered by produce the clerk in court for that purpose, of which the an

nesses,

wit

A day is given to the complainant to produce witnesses, in three weeks.

April

1818.

Elmendorf, clerk.

Interrogatories to be administered to witnesses.

Vide Interrogatories, ante, page 132.

rogatories to be

to witnesses:

The parties being at issue, proceed to the examina- s. How intertion of the witnesses, and the interrogatories being pe-administered rused with care, that the same be pertinent, and only to the points necessary, the witnesses are to be sorted and examined on those interrogatories only, that their testimony doth extend unto, without the needless interrogatories of matters unnecessary or immaterial, as well as to avoid the charge of both parties, plaintiff and de