[ *524 ] recognition of the deposition, which is confirmed by the examiner's subscription as notary public. The court admitted the deposition of a witness who had been examined in chief, and had signed his deposition, but had died before he had been repeated or examined on the interrogatories of the adverse party; but it was said that the deposition must be read at the hearing of the cause, with some deductions, because it was possible that the cross-examination might have discredited the witness. (h) So a deposition, one step further from completion, not having been actually signed by the deceased witness, was admitted, subject to a similar abatement of credit.(i) Cross-examination of Witnesses.]-The cross-examination is conducted by interrogatories addressed to the adverse witnesses, and when the deposition is complete, the witness is examined upon the interrogatories delivered to the examiner by the adverse proctor, but not disclosed to the witness till after the examination in chief is concluded and signed, nor to the party producing him till publication passes; and each witness is enjoined not to disclose the interrogatories, nor any part of his evidence, till after publication: in order that the party addressing the interrogatories may be the better prepared, the proctor producing the witness delivers, as before stated, a designation or notice of the articles of the plea, of which it is intended to examine each witness produced.(k) The general rule of practice is that twenty-four hours' notice shall be given to the cross-examining party for the preparation of interrogatories; but it seems that on a proper case being laid before the court, the time may be extended or abridged.(1) But a list of witnesses will not be ordered long before the time, on the ground that the party applying lives voluntarily abroad.(m) But a witness has not necessarily a right to be dismissed, because the interrogatories were not ready, and twenty-four hours had elapsed after notice to the adverse party of the *produc[ *525 ] tion of the witness.(n) The cross-examination cannot extend to matter not bearing on the issue to be contradicted by other evidence in order to discredit the witness;(0) nor if a witness answers such irrelevant question before it is disallowed or withdrawn, can evidence afterwards be admitted to contradict his testimony on the collateral matter.(p) A party cannot except to a witness by contradicting answers to interrogatories, which go to incidental collateral matters not relevant.(q) The usual course of practice seems to be not to repeat the witness until after his cross-examination, but that he ought to sign his deposition as soon as his cross-examination in chief is finished, and not again to be allowed to see it, any material alterations made at the request of the witness should appear from the paper.(r) The interrogatories, by way of cross-examining the witnesses, are deposited in the registry of the court in which the suit is (h) Hill v. Bulkeley, 1 Phill. 280; see Copeland v. Stanton, 1 P. Wms. 414; Arundel v. Arundel, 1 Ch. R. 90; Vin. Abr. vol. xii. p. 108. (i) Evans v. Knight, 1 Addams, 240. (k) Rep. Eccl. Comm. 18. (1) Oughton, tit. 83, n. 3; 1 Hagg. Eccl. R. 97; 3 Ib. 610. (m) 2 Hagg. Eccl. R. 609. (n) Ingram v. Wyatt, 1 Hagg. Eccl. R. 94. (0) Spencely v. De Willett, 7 East, 108. (p) Harris v. Tippet, 2 Camp. 638; Rex v. Watson, 2 Stark. Cas. 151. (9) 3 Hagg. Eccl. R. 680; 1 Curteis, 442. 488.491. (r) Ingram v. Wyatt, 1 Hagg. Eccl. R. 97, n. MODE OF PROCEEDING IN ECCLESIASTICAL COURTS. pending by the examiner, to whom in the first instance they are delivered, and an office copy of them also can be obtained at the conclusion of the cause; but in general a private copy of such interrogatories is furnished by the proctor after publication of the evidence taken in the cause has been decreed. (s) Answer of Witness.]-If the answer of a witness be objected to for insufficiency, the court will decree a monition against him, to answer the interrogatories explicitly; and will compel him to do so.(t) A witness will be compelled to answer explicitly as to whether he is or is not responsible in some way for the party's expenses, on whose behalf he is examined.(u) So a witness upon cross-examination is compellable, if required, to produce all written communications made to the witness by the solicitor or agent of the producent, relative to his examination as a witness in the cause.(v) *Examination de Bene Esse.]-The ordinary practice [ *526 ] of the ecclesiastical court does not allow the examination of witnesses de bene esse.(x) In a suit for restitution of conjugal rights, and to establish a foreign marriage, the court allowed, on the ground of an attempt to delay the proceedings, the witnesses as to such marriage to be examined de bene esse during the long vacation, though the libel was not admitted, and the husband had appeared under protest.(y) Such evidence being admitted only provisionally, left it open to every legal objection, either by the party showing irregularities in the examination, or the inadmissibility of the libel; and also open to the court to suppress the depositions, and to direct a reexamination of the witnesses if an opportunity occurred.(z) Re-Examination.]-The re-examination of witnesses is not absolutely excluded, but allowed with great jealousy. The court refused to accede to such an application, made on the ground that the witness was so unwell at the examination that his memory failed him, and consequently that his conscience compelled him to wish to be reexamined, where it appeared that such witness had been very fully examined, and concluded his deposition in the strongest terms.(a) A witness, who had been repeated and dismissed two years before, was not permitted to be examined at the end of that time upon an article of the plea which she had not been designed to at the time of her production as a witness, and which consequently she had not been examined upon in the first instance.(b) After publication the court will not allow witnesses to be re-examined in the ordinary mode, on a suggestion that the examiner, from a misconstruction of the plea, has improperly rejected evidence, but if essential to justice it may direct a viva voce examination in open court.(c) The court refused to allow further interrogatories to two witnesses who had been (8) 4 Chitty's Pr. 166. (t) 1 Addams, 352; 2 Addams, 468. (u) Hudson v. Beauchamp, 1 Addams, 352. A person employed by one of the parties as solicitor, who retained the proctor in the suit, and thereby became legally liable to him for costs, was held to be incompetent as a witness for the parties employing him. Handley v. Edwards, 1 Curteis, 722. 1 (v) 2 Addams, 468. (x) 1 Lee, 558; 2 Lee, 149. 422. (y) Herbert v. Herbert, 2 Hagg. Cons. R. 264. See 3 Phill. 587. (z) Herbert v. Herbert, 2 Phill. R. 447. (b) Wilkinson v. Dalton, 1 Addams, 339. [ *527 ] examined in the cause, and said, that if the *fact sought to be proved was material, it should have been pleaded in an allegation; if it affected the character of a witness it should have been stated in an exceptive plea, if it could be alleged to be matter noviter ad notitiam perventa, the court could have judged how far the facts were or were not material.(d) Excepting to the Credit of Witnesses.]-Witnesses, to whose general character there is no exception, are not to be rejected on conjectures and suspicions; but where a witness is grossly perjured, no credit in law can be given to his testimony.(e) The examination and cross-examination of witnesses is kept secret until publication passes, after which either party is allowed to except to the credit of any witness upon matter contained in his deposition. The exception must be confined to such matter, and not made to general character, for that must be pleaded before publication, nor can the exception refer to matter before pleaded, for that should be contradicted also before publication. The exception must also tend to show that the witness has deposed falsely and corruptly. These exceptive allegations are proceeded upon, when admitted, in the same manner as other pleas. They are not frequently offered, and are always received with great caution and strictness, as they tend more commonly to protract the suit, and to increase expense, than to afford substantial information in the cause. It is always however in the power of the court to allow further pleading in a cause; and if new circumstances of importance are unexpectedly brought out by the interrogatories, the court will, in the exercise of its discretion, allow a further plea after publication. This may also be permitted in cases where facts have either occurred or come to the knowledge of the party subsequently to publication having passed.(f) There may also be exceptions to the testimony of a witness not examined on the principal issue in the cause, but examined only in support of an exception to the testimony of a witness.(g) It is a principle of all courts whose *proceed[*528 ]ings are regulated by the civil law, that all facts shall be pleaded and proved before the depositions of the witnesses are seen, from the danger which might arise from the fabrication of evidence to meet defects of the case. An exceptive allegation must not merely show slight variations in the testimony of witnesses, but it must show that the witnesses have wilfully sworn falsely; it must overturn their credit. But the court relies more on the evidence to be collected from the substance of the depositions than from any thing usually brought forward in an exceptive allegation.(h) Exceptive allegations, offered after publication, are stricti juris, because the proofs having been seen, there would be great danger of perjury, as well as of endless delays, if further evidence could at that period be loosely or lightly received. Facts which might have been pleaded in contradiction to the pleas before publication cannot be pleaded in contradiction to a witness. The true object of an exceptive allegation is the credit of the witness, and an exceptive plea must contain a clear and distinct contradiction to the deposition, and be capable of being proved by (d) Evans v. Knight, 3 Phill. R. 422–424. (g) Ball v. Ball, 3 Addams, 10. (h) Verelst v. Verelst, 2 Phill. R. 145. 147. 151. witnesses so as to show that the witness had deposed falsely and corruptly. The exceptions must arise out of the depositions, not out of the general character and conduct of the witness.(i) The general rule is, that the character of a witness may be gone into before but not after publication. The facts as to the general character ought to be pleaded to when the responsive allegation is given in.(k) Lord Stowell adopted the rule that an exceptive allegation offered after publication can be admitted only as introductory, and being so the examiner is not to examine upon it.() An exceptive allegation before publication stands on the same footing with any other facts in the case. The admission of an allegation exceptive to the general character of a witness, after publication, was suspended till the final hearing of the cause, in order that if the evidence in the cause should be then so nicely balanced, that the court should be in doubt, it might be allowed to go to proof.(m) [ *529 ] A witness may be contradicted after publication as to facts to which he has deposed, these facts being pertinent to the issue to be tried, unless the facts so deposed to shall not have been pleaded in such a manner as to have enabled the party to contradict them before publication. It is a general rule in the ecclesiastical court that facts contradicted in an exceptive allegation must have some, though not perhaps a very strong, bearing upon the principal question.(n) So specific facts cannot be pleaded in order to support the character of a witness's testimony who has been impeached on the ground of general bad conduct.(o) For although such an investigation might by possibility in a few particular instances lead to the elucidation of truth, courts of justice cannot adapt their system to a few extraordinary cases; the great object to be sought for, is that mode of administering the law which may produce justice in the great majority of cases without overwhelming it by extravagant expense or destructive delay. The court will not delay the hearing of a cause on an affidavit that a true bill has been found against a material witness for pérjury in her evidence in such cause; and it is doubtful whether even a conviction would be received in evidence.(p) The court will_not admit an exceptive plea that an indictment of witnesses for perjury in their depositions in the cause pending has been preferred, and a true bill found, nor delay the hearing till the indictment is tried.(q) A plea, alleging the conviction of a witness for perjury, may sometimes be admissible, but the court would require that the conviction should not have proceeded on the evidence of the party in the suit, or of the alleged particeps criminis.(r) Examination of Witnesses in India on Parliamentary Divorces.]*The speaker of either house of parliament may issue his warrant to the judges of the supreme courts of judicature [ *530 ] (0) Lambert v. Lambert, 1 Curteis, 7. (p) Kenrick v. Kenrick, 4 Hagg. Eccl. R. 133; Thurtell v. Beaumont, 1 Bing. 339; Attorney-General v. Woodhead, 2 Price, 3; Bartlett v. Pickersgill, 1 Cox, 15. (q) Maclean v. Maclean, 2 Hagg. Eccl. R. 601. (r) Ibid. in the East Indies for the examination of witnesses in India, in cases of bills of divorce. Such judges, on receipt of the warrant, are to examine witnesses. Two copies of such examinations, duly certified, are to be transmitted to the speaker of either house of parliament. The judges may ask such questions and require such further witnesses to be produced as shall be necessary. The proceedings upon any bill of divorce pending such examinations under the speaker's warrant, are not discontinued by the prorogation or dissolution of parliament.(s) Hearing of the Cause.]-The evidence on both sides being published, the cause is set down for hearing. All the papers, the pleas, exhibits, interrogatories and depositions, are delivered to the judge, who having them in his possession for some days before the cause is opened, has a full opportunity of perusing and carefully considering the whole evidence, and all the circumstances of the case, and of preparing himself for hearing it fully discussed by counsel. All causes are heard publicly in open court; and on the day appointed for the hearing, the cause is opened by counsel on both sides, who state the points of law and facts which they mean to maintain in argument; the evidence is then read, unless the judge signifies that he has already read it, and even then particular parts are read again, if necessary, and t..e whole case is argued and discussed by the counsel. Judgment.]—The judgment of the court is then pronounced upon the law and facts of the case, and in discharging this very responsible duty, the judge publicly in open court, assigns the reasons for his decisions, stating the principles and authorities on which he decides matters of law, and reciting or adverting to the various parts of the evidence from which he deduces his conclusions of facts; and thus the matter in controversy between the parties becomes adjudged. Execution.]-The execution of the sentence, in case there be no appeal interposed, is completed by the court itself, by signing a sen [ *531 ] tence of separation, or decreeing a marriage to be void, according to the nature of the case, or remains to be completed by the act of the party, in which cases execution is enforced by the compulsory process of contumacy, significavit, and attachment.(t) Taxation of Costs.]-The question of costs in these courts is, for the most part, a matter in the discretion of the judge, according to the nature and justice of the case; and the reasons for granting or refusing costs are publicly expressed at the time of giving the judgment. It is true, as a general principle, that the court may exercise a discretion with respect to the costs, but this must not be understood to mean that it is in the power of the court to give or withhold costs as it pleases, but it means that costs are in the legal discretion of the court, adhering to general rules and former precedents.(u) If either party be condemned in costs, the proctor of the other party brings in his bill. The bill is referred to the registrar, who is attended by the proctors on both sides, and after examining the bill item by item, he (s) 1 Geo. 4, c. 101, ss. 1-4. (t) Rep. Eccl. Comm. p. 19. See ante. (u) Goodall v. Whitmore, 2 Hagg. Eccl R. 374. See 2 Phill. R. 400. |