When are witnesses to be examined before the contestation of the controversy, or issue joining.

It is to be considered whether the proof by witnesses ought to be made in the principal cause, or in the accessory or happening cause that falleth out upon the matter. If it be to be done in the incident or accessory cause (as those causes are that rise /of/ exceptions, restrictings and declinings of judgment, and also of [232r] certain peremptory exceptions, as exceptions of transaction, of a thing judged, the ending of controversy by an oath), it is not needful that in these cases the joining of issue be looked for, because such controversies are a let that judgment cannot be given of the principal cause, except the others be known before, the which cannot appear except the proofs be offered. It is necessary therefore that the witnesses be admitted to prove such exceptions before the issue contested in the principal cause. But the proof of witnesses commonly is not admitted in the principal cause, except the issue be contested. For before the joining of issue, it is cannot be determined what is the chief controversy betwixt the parties that do contend. Foolish therefore were that judge who would admitted proof to be made of that thing whereof he did not yet know the controversy. And yet sometimes witnesses are received even of the principal cause, before issue joining, but this is done for certain causes only, and for an especial benefit of the laws. As for example, if a man do fear the long absence or death of them unto whom the matter is well known, that is like to come in law, he may provide that for an eternal memory, their testimony may be written in a public instrument, or if the matter be commenced, he may make suit to have the witnesses examined of the judge, although the issue be not yet contested. But wheresoever this thing shall be done, it is necessary that the deposition of witnesses be consigned, and as soon as maybe, showed unto them, whom a man feareth will be his adversaries, and not published, till a year be past after the receipt of such witnesses, or that issue be contested, lest it be a hurt to them to be ignorant that witnesses were taken upon that matter.