9. Oath to be administeredto witnusses. 10. Where the witness dies amination is signed. fendant, in superfluous examinations. No witness shail be examined by the examiner, without giving previous notice to the adverse party.(a) The following is a copy of the oath, to be administered to the witness, by the examiner or commissioners: "You shall true answer make, to all such questions as shall be asked of you on the interrogatories filed in this cause, pending in the court of Chancery of the state of New-York, wherein A. B. is complainant, and C. D. is defendant, without favor or affection to either party, and therein you shall speak the truth, the whole truth, and nothing but the truth, so help you God." After the witness is fully examined, the depositions are read over to him, and the witness is at liberty to amend or alter any thing, after which he signs them, and the jurata being added, the examination is then complete, and good evidence. Where the witness dies after examination, but bebefore the ex-fore such examination is signed by him, the depositions can not be made use of. (b) If the opposite solicitor thinks it necessary to cross examine the witness, then he prepares and files cross interrogatories, of which the opposite solicitor is to have a copy and notice-where the interrogatories for cross examining a witness are not filed, or the witness is not required to be cross examined whilst he is under original examination, but permitted to depart about his business, the party who intends to cross examine that witness must procure his examination in the best way he can. 11 Examiner not strictly The examiner is not strictly bound to the letter of bound to the the interrogatories. (c) letter of the interrogatories. (a) Hinde, 321. Ord. Chan. 103. (b) Ilinde, 323. 1 Will. 414. Copeland v. Stanton. (c) Hinde 325. 4 Inst. 278. depositions are It is the duty of the examiner, gravely, temperately and leisurely, to take the deposition of the witnesses without any menace, disturbance or interruption of them, in hindrance of the truth-And after the deposi- 12 After the tions are taken, the examiner ought to read the same taken to be distinctly to the witnesses, and suffer them to explain aminer. themselves for the manifestation of the whole truth. (ibid.) No re-examination of a witness upon the same interrogatories, on the ground that he spoke uncertainly on the first examination is to be without leave of the court.(a) A witness should go before an examiner free to answer all interrogatories, and not with a deposition already prepared.(b) Proof taken in a cause must be secundum allegata et probata.(c) If a cross bill contains a charge of fraudulent misconduct in arbitrators, but no such allegation is made in the answer to the original bill, though, by a general order of the court, the depositions taken in the original suit are allowed to be read in the cross suit, yet such parts of these depositions as relate to the fraudulent misconduct not charged in the original suit in which they were taken, will be suppressed.(d) Proofs taken in a cross suit will not be allowed to be read on the hearing in the original cause, unless the parties, by themselves, or by their privies, by representation, are the same in both causes.(e) It seems that the testimony of an arbitrator is not to be admitted to impeach his award.(ƒ) (4) Prac. Reg. 163. 165. (6) Underhill v. Van Cortlandt and others, 2 Johne. Ch. Rep. 389. (c) Ibid. (d) Ibid. (e) Perine v. Swain and others Johns. Ch. Rep. 475. (f) Underhill v. Van Cortland; and read by the ex 13 Where a witness refuses examined. A defendant who appears to have no interest in the cause, but is made a party, pro forma only, may be examined as a witness for his co-defendant, notwithstanding the plaintiff has filed a replication to the answer of such defendant. (a) An executor, against whom a bill has been taken pro confesso, in a suit by legatees, is a competent witness for the other defendants or devisees.(b) It seems that a guardian, ad litem, is a competent witness, he being, at most, liable only for costs, which are not of course, but discretionary, and according to circumstances.(c) Where a witness refuses to attend to be examined by an examiner, how to proceed. Where there is reason to suppose a witness will not to attend to be voluntarily attend to be examined, recourse must be had to compulsory process of subpoena, ad testificandum, which commands the witness to whom it is directed, laying aside all pretences and excuses, to appear before the examiner, to testify in behalf of the party requiring his testimony, agreeably to the 21st rule of court.(d) To obtain this writ let a præcipe be left in the clerk's office, in the following form: 14. Subpoena to testify be. fore the examiner. Subpoena T. K. to appear in chancery, before A. B. examiner, returnable immediately to testify in behalf of A. B.-Tested this day of March, 1818. F. G. Solicitor for Comp't. Subpana to testify before the examiner. The People of the state of New-York, by the (a) Kirk v. Hodgson and others, 2 and others, 2 Johns. Ch. Rep. 614 Johns. Ch. Rep. 550. (c) lbid. Grace of God, free and Independent. To Greeting: For certain causes offered before иs in Chancery; We command you, and strictly enjoin you, that laying aside, and notwithstanding any excuse, you personally be and appear immediately after the receipt of this writ, before A. B. Esq. one of the examiners of our court of Chancery, at his office, situate at No. in street, on the day of E. F. Sol'r. This subpoena may contain the names of all the witnesses, and be served upon each witness in the manner of serving an ordinary subpoena, to appear and answer by delivering a copy to the witness, and showing him at the same time the original. But the service should be personal upon the witness. When witnesses are to be examined by commissioners, the rule provides, That for the purpose of compelling the attendance of witnesses who reside in this state, a subpoena may issue under the seal of the court, with a blank for the name of the witnesses to be filled by the party procuring the same, as occasion may require, requiring the witnesses to attend before the commissioners in the commission named, at such 15. Service on the witness, 16. Certifi cate of the in time and place as the commissioners shall appoint, for the purpose of giving evidence in the cause therein described; and a memorandum in writing, subscribed by one or more of the commissioners, designating the time and place where the commissioners shall meet for that purpose, being left with the witness at the time the subpoena shall be served on him, shall be suffi cient to compel the attendance of such witness at the time and place designated, in like manner as if the time and place of the meeting of such commissioners had been specially designated in such subpoena, or to incur a contempt if he does not attend accordingly.(a) A witness thus served with a subpoena to testify and terrogatories notice as before stated, if he neglect or refuse to attend being filed and affidavit of the to be examined, a certificate of the interrogatories bevice of the sub-ing filed, and that the witness has not attended to be sworn to the interrogatories, must be obtained from the examiner, and an affidavit made of the personal service of the subpoena to testify. An application is next to be made by motion of course in court, that the witness do at his own expense attend and be sworn and examined in days, or be committed to prison; whereupon the court, upon hearing the certificate and affidavit of service read, will make an order upon the witness, that he attend the examiner and be examined to the interrogatories, filed in days after personal service of the order, or in default that he stand committed to prison. personal ser pœna. The certificate of the examiner in relation to the filing the interrogatories and the affidavit of the solicitor, in relation to the personal service of the subpoena, are in the usual form. Witnesses examined on direct and cross interrogato(a) Rule 21. |