requires that the "deposition shall be taken in conformity to the manner of taking and returning depositions of non-resident witnesses in the circuit court of this state."

By the 1st sec. of An act regulating the mode of taking depositions," Gale's Stat., 244, it is provided "That when the testimony of any non-resident witness or witnesses shall be necessary in any civil cause depending in any court of law or equity in this state, it shall be lawful for the party wishing to use the same, on giving to the adverse party or his attorney ten days' previous notice, together with a copy of the interrogatories intended to be put to such witness or witnesses, to sue out from the proper clerk's office a dedimus potestatem, or commission under the seal of the court, directed to any number of persons, not exceeding three, as commissioners, or to any judge or justice of the peace of the county or city in which such witness or witnesses may reside, authorizing and requiring him or them to cause such witness or witnesses to come before him or them at such time or place as he or they may designate and appoint, and faithfully to take his, her, or their deposition or depositions upon all such interrogatories as may be inclosed with, or attached to said. commission, both on the part of the plaintiff and defendant, and none others; and to certify the same when thus taken, together with the said commission and interrogatories into the court in which such cause shall be depending, with the least possible delay."

By a necessary implication, it seems that a justice of the peace before whom a cause is depending, is empowered to issue a commission, upon the application of either party, for the purpose of taking the testimony of a non-resident wit

ness.

It would certainly be proper, if not necessary, that the party desiring to sue out a commission, should notify the opposite party of his intention, and of the time when he will make the application. On appearing before the justice pursuant to his notice, the party applying should make proof, either by his own oath or that of a credible witness, that the absent witness whose testimony is desired, does not reside in this state, and that his testimony is material to the prosection. (or defence) of the action, as the case may be, and without which he cannot safely proceed to trial. If the justice be satisfied that the party so applying cannot safely proceed to trial without such testimony, he should allow the commission and order a continuance for its execution and return to any reasonable time not exceeding one month. In case the party asking for the commission states the facts which he expects to prove by the absent witness, which facts are admitted by the opposite party, there would be no necessity for issuing the commission, and the justice should refuse it.

The time and manner of submitting interrogatories and crossinterrogatories, is not regulated by the statute.

The party desiring to obtain the testimony of the absent witness, should perhaps present his interrogatories at the time of applying for a commission, so that the opposite party may have an opportunity of inspecting them and submitting cross-interrogatories. This would appear to be the most convenient course to pursue.

The opposite party should undoubtedly be apprised in some way of the interrogatories; for the depositions of a witness, although made under the sanction of an oath, are, in general, not evidence as to the facts which they contain, unless the party to be affected by them has cross-examined the deponent, or has been legally called upon and had the opportunity to do so; for, otherwise, one of the great and ordinary tests of truth would be wanting. 1 Starkie Ev., 264.

The form of the interrogatories ought, of course, to embrace the subject of inquiry, and, in doing so, should be governed by the rules applicable to oral examinations. The parties are, however, authorized to insert a general interrogatory, whether the witness knows of any other matter or thing material to the party beside what he has been particularly interrogated unto; under which the witness may state facts not previously called for under the particular interrogatories. 18 Johns. Rep., 257. And, if this interrogatory be not answered, the deposition cannot be read, it being an undoubted principle, that the witness must answer substantially all interrogatories, as it is otherwise impossible to say that he has told the whole truth. 4 Wash. C. C. Rep., 324. It is not an objection to a deposition that a material part of the evidence comes out under the general interrogatory. 4 Wash. C. C. Rep., 716.

The interrogatories and cross-interrogatories should be inclosed with or annexed to the commission, which is a writ, giving authority to the person or persons to whom it is directed to examine the witness named therein, and to certify the same to the justice who issued it, which writ is sued out by the party desiring the testimony of the witness, and to whom it belongs to transmit it to the commissioners, judge, or justice to whom it is directed, and to do whatever else is requisite to obtain an examination of the witness and return of the commission.

Gale's Stat., 245. "SEC. 3. Previous to the examination of any witness whose deposition is about to be taken as aforesaid, he or she shall be sworn (or affirmed) by the person or persons authorized to take the same, to testisfy the truth in relation to the matter in controversy, so far as he or she may be interrogated; whereupon, the said commissioner or commissioners, judge, justice of the peace or clerk, (as the case may be,) shall proceed to examine such witness upon all such interrogatories as may be inclosed with, or attached to

any such commission as aforesaid, and which are directed to be put to such witness. After which it shall be the duty of the person or persons taking such deposition, to annex at the foot thereof, a certificate subscribed by himself, or themselves, stating that it was sworn to and signed by the deponent; and the time and place, when and where the same was taken. And every such deposition, when thus taken and subscribed, and all exhibits produced to the said commissioner or commissioners, judge, justice of the peace, or clerk as aforesaid, or which shall be proved or referred to by any witness, together with the commission and interrogatories, if any, shall be inclosed, sealed up, and directed to the clerk of the court in which the action shall be pending, with the names of the parties litigant endorsed thereon: Provided, that when any deposition shall be taken as aforesaid, by any judge or justice of the peace out of this state, such return shall be accompanied by a certificate of his official character under the great seal of the state, or under the seal of the proper court of record of the county or city wherein such deposition shall be

taken."

The statute authorizing the taking of depositions of nonresident witnesses to be used in justices' courts, does not seem to provide the manner of certifying and returning the same. Undoubtedly, however, it should appear from the certificate that the requirements of the statute have been complied with in the taking of the deposition.

The manner of executing the commission ought not to be left to inference, but should be plainly and explicitly stated. In the return, the commissioners, judge, or justice to whom the commission is directed, ought to certify the time and place when and where the depositions were taken, and that the witness was examined by them or him upon oath upon all the interrogatories inclosed with or attached to the commission, and that the deposition was sworn to and subscribed by the witness.

After the depositions have been taken and certified, they should be inclosed and sealed up by the commissioners, judge, or justice, together with the commission and interrogatories, and directed to the justice of the peace who issued the com

mission.

CHAPTER VII.

OF THE TRIAL OF ISSUE OF FACT AND THE INCIDENTS THERETO.

TRIAL is the examination of a cause before a judge who has jurisdiction of it, according to the laws of the land. It is the examination of the points in issue and of the questions between the parties whereupon judgment may be given. Jac. Law Dic., (tit. Trial.) 3 Bl. Com., 330. And it is also taken. for the manner and order of proceeding in the hearing and determining of matters in difference, being diversely used, according to the nature of the cause to be tried. Ibid.

I. Of removing the trial from one justice to another.
II. Of trials in the absence of the defendant.

III. Of trials before a justice without a jury.

IV. Of trial by jury.

1. Of the venire, the service, and return thereof.
2. Of attachments against defaulting jurors.

3. Of challenges.

4. Of swearing the jury.

5. Of proceedings on trial.

6. Of the deliberations of the jury, receiving and entering their verdict, and discharging them.

V. Of referring the cause to arbitrators.

I. OF REMOVING THE TRIAL FROM ONE JUSTICE TO ANOTHER.

Gale's Stat., 408. "SEC. 25. Previous to the commencement of any trial before a justice of the peace, the defendant, or his or her agent, may make oath that it is the belief of such deponent that the defendant cannot have an impartial trial before such justice; whereupon, it shall be the duty of the justice immediately to transmit all the papers and documents belonging to the suit, to the nearest justice of the peace, who shall proceed as if the said suit had been instituted before him."

II. TRIAL IN THE ABSENCE OF THE DEFENDANT.

Gale's Stat., 404. "SEC. 5. If the defendant shall not appear at the time of trial, after giving bail as aforesaid, or after being served with a summons, as described in the third section of this act, and no sufficient reason be assigned to the justice, why he or she does not appear, then the justice shall proceed to hear and determine the cause, in the absence of said de

fendant, but shall not give judgment in favor of the plaintiff, unless the said plaintiff shall fully prove his demand in the same manner as if the defendant had been present and denied the same."

The omission of the defendant to appear and plead is not considered as an admission of the plaintiff's demand, but he must establish it by testimony in the same manner as though an issue had been joined. The justice is bound to hear the merits in all cases before judgment against the defendant. Strictly speaking, there is no such a thing before a justice of the peace as a judgment by default, but always a trial, or a hearing in the nature of a trial. 8 Cowen's Rep., 133.

When a suit is commenced by attachment, which shall have been returned personally served on the defendant; or in case it shall not have been personally served and the suit shall have been continued ten days, and notices have been posted up as required by the 3d sec. of" An act to regulate proceedings by attachment before a justice of the peace," and the defendant shall not then appear, the justice shall, on the return of the attachment, personally served, or on the day to which the suit shall be continued, if it shall not have been personally served, proceed to hear and determine the cause as in cases of proceeding by summons.

III. OF TRIAL BY WITNESSES BEFORE THE JUSTICE WITHOUT A JURY.

This is a method of trial which was but rarely used in courts proceeding according to the course of the common Jaw.

Gale's Stat., 405. "SEC. 9. When the parties shall appear and be ready for trial, the justice shall proceed to hear and examine their respective allegations and proof, and shall thereon give judgment against the party who shall be proved to be indebted to the other, for so much money in dollars and cents as shall appear to be due, with costs of suit; but if neither party shall appear to be indebted to the other, then the judgment shall be against the plaintiff for the costs of suit only; and if such judgment be rendered upon any note or bond, or for the balance due upon a settled account, the justice shall allow interest from the time when the same became due, and include the same in the said judgment; and in all cases the judgment shall bear interest at the rate of six per cent. per annum until paid."

If neither party calls a jury, the justice must try the cause himself. He must hear and examine the proofs and allegations of the parties, and he is then left to form, in his own mind, his judgment upon the credit of the witnesses examined and the evidence adduced, according to the rules of law and as the justice of the case may appear.

In doing this, the justice ought ever to keep in mind that he is