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favors his cause, from whatever witnesses it proceeds. Hence, a party cannot be permitted to address interrogatories to the opposite party, and then decline to read his answers, and thereby deprive the party answering of the right to read the answers in evidence. However, part of a deposition may be admitted in evidence, and the rest excluded, when such parts are wholly independent of each other. It is palpable error, of course, if the court allows part of the deposition to be excluded so that the remaining testimony conveys a different meaning from what it would have if read with the excluded part. Where a deposition has been excluded on the ground of irrelevancy it may be again offered in evidence later on, if subsequent evidence reveals its competency. If the deposition is not offered a second time, the court is justified in sustaining the motion to suppress, provided the deposition as first offered was in fact inadmissible. It is not necessary that the evidence should be responsive to the interrogatories propounded, but only that it should be of such matter as pertains to the issue to be tried,10 for a deposition is admissible where all the interrogatories are substantially answered in the course of it.11

37. Weight and Effect of Testimony Admitted.-As to the weight of testimony given in answer to interrogatories, there appears to be no reason why its effect should be different in any respect from testimony given orally. The weight of evidence so given is no greater and no less than oral testimony. Testimony given in a deposition is in character parol, not written testimony. Hence, in cases which require written evidence, as when it is required to show a condition imposed upon a written acceptance of a bill of exchange, this form of testimony, upon objection, is inadmissible.12 Since depositions might not be regarded by the jury as having the weight of testimony given by witnesses in their presence, it is perfectly proper to submit to the jury an instruction that they are to give the same fair consideration to the testimony in depositions as they would give to said testimony if it had been given by witnesses in open court.18 As to how far the party putting the answers to interrogatories in evidence is bound by such answers, it must be remembered that answers to inter

6. Calhoun v. Hays, 8 Watts & S. (Pa.) 127, 42 Am. Dec. 275, and note. 7. Hadley v. Upshaw, 27 Tex. 547, 86 Am. Dec. 654 and note.

8. Chappell v. John, 45 Colo. 45, 99 Pac. 44, 132 A. S. R. 134, 15 Ann. Cas. $54; Blight v. Banks, 6 T. B. Mon. (Ky.) 192, 17 Am. Dec. 136; Birely v. Staley, 5 Gill & J. (Md.) 432, 25 Am. Dec. 303; Miles v. Stevens, 3 Pa. St. 21, 45 Am. Dec. 621.

9. Jones v. St. Louis, etc., R. Co.,

53 Ark. 27, 13 S. W. 416, 22 A. S. R. 175.

10. Sparks v. Taylor, 99 Tex. 411, 90 S. W. 485, 6 L.R.A. (N.S.) 381.

11. Louden v. Blythe, 16 Pa. St. 532, 55 Am. Dec. 527.

12. Heaverin v. Donnell, 7 Smedes & M. (Miss.) 244, 45 Am. Dec. 302.

13. Coburn v. Moline, etc., R. Co., 243 Ill. 448, 90 N. E. 741, 134 A. S. R. 377.

rogatories are in general to be treated as admissions. Where the answers contain matter which is adverse to the interest of the party producing the testimony it is clear that the latter is not conclusively bound by such replies. While the party calling for them may put them in evidence for the admissions they contain, he is no more bound by their statements against his interest than he is bound by the statements of a witness he may call, and who may testify in part against his interest. He can still introduce evidence contradictory of such statements, and leave it to the jury to determine wherein the truth lies. 14

38. General Principles of Evidence as Applied to Depositions.-To be admissible, depositions must be taken in the regular course of judicial examination, and only such evidence will be admitted at the trial as the witness could have given if he himself had been on the stand. Thus, hearsay evidence can no more be given in a deposition than while testifying as a witness in open court.16 And secondary evidence thus given is inadmissible, unless proper explanation for the lack of primary evidence is furnished, and suitable foundation laid for the introduction of this inferior class of evidence.17 While leading questions should not be asked,18 yet, if asked during the taking of the deposition and answered without objection, the answer cannot be excluded at the trial.19 Moreover, evidence drawn out by leading interrogatories will not be rejected where the same evidence is elicited by other interrogatories not objectionable on that ground; and where the law of evidence permits the opinion of the witness to be given on the stand, it is evident that, under like circumstances, his opinion is admissible although expressed in a deposition.20 Under the general rule that a party is not permitted to impeach or discredit his own witness,1 a defendant who offers in evidence a deposition taken on the plaintiff's commission cannot complain of the exclusion of questions asked the witness on cross-interrogatories affecting his credi

14. Sawdey v. Spokane Falls, etc., R. Co., 30 Wash. 349, 70 Pac. 972, 94 A. S. R. 880.

15. Rogers v. Wilson, Minor (Ala.) 407, 12 Am. Dec. 61; Younce v. Broad River Lumber Co., 155 N. C. 239, 71 S. E. 329, Ann. Cas. 1912C 107; Cunningham v. Irwin, 7 Serg. & R. (Pa.) 247, 10 Am. Dec. 458; Fisk v. Tank, 12 Wis. 276, 78 Am. Dec. 737.

16. Smith v. Cooke, 31 Md. 174, 100 Am. Dec. 58; Strickler v. Todd, 10 Serg. & R. (Pa.) 63, 13 Am. Dec. 649; Sayre v. Woodyard, 66 W. Va. 288, 66 S. E. 320, 28 L.R.A. (N.S.) 388.

17. Stafford v. King, 30 Tex. 257, 94 Am. Dec. 304; Eborn v. Zimpelman,

47 Tex. 503, 26 Am. Rep. 315.

18. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Gordon v. Little, 8 Serg. & R. (Pa.) 533, 11 Am. Dec. 632, overruled on another point by Coxe v. Heisley, 19 Pa. St. 243.

See generally, EVIDENCE.

19. Donnell v. Jones, 13 Ala. 490, 48 Am. Dec. 59; Strickler v. Todd, 10 Serg. & R. (Pa.) 63, 13 Am. Dec. 649. See supra, par. 29, as to time for making objections.

20. Nelson v. Iverson, 24 Ala. 9, 60 Am. Dec. 442; Moody v. Rowell, 17 Pick. (Mass.) 490, 28 Am. Dec. 317. 1. See EVIDENCE; WITNESSES.

bility, since by offering the deposition he makes the deponent his own witness.

39. Proof of Authority to Take as Affecting Admissibility.—It is a well-established rule that a deposition taken in a foreign jurisdiction cannot be admitted in evidence without some proof that the party taking the deposition had authority so to act. The question as to the sufficiency of evidence to show such authority is one upon which there is considerable conflict owing to the divergent laws on the subject in the various jurisdictions. Most states that have made provision for the taking of depositions in a foreign jurisdiction have adopted the rule that the certificate, or, in some instances, the certificate and seal together of the person designated in the commission, to the effect that he is such an official as by his certificate or seal he describes himself to be, is sufficient. Some jurisdictions require the certificate of another officer than the person designated in the commission in proof of his authority. But the more general rule obtains that the commission itself embodies proof of authority sufficient for the purpose indicated, and the authority of the officer is generally presumed.5

40. Agreements as to Admissibility.-While, generally speaking, it is an imperative rule that a deposition, in order to be admissible in evidence, must be taken and returned in accordance with the express provisions of the statute, the parties to an action may, however, by agreement waive the statutory formalities. In some jurisdictions such agreements must be in writing, but usually an oral agreement to that effect is sufficient. Likewise, agreements may be made by the parties as to the admissibility of depositions taken either in a present case or in a former suit. But an agreement or stipulation to take the deposition of a witness with the same effect as if his deposition were taken regularly under a commission on the chancellor's order, does not constitute a waiver of objection to the competency of such witness; and where the agreement as to the taking is made subject to objection as to the propriety, relevancy, and materiality of the interrogatories contained therein, this, it has been held, is not a waiver of an objection thereto on the ground that the testimony given is of facts occurring prior to the death of a decedent to whose estate it relates and where the statute precludes witnesses from testifying to any fact occurring before the death of such decedent."

2. People's Nat. Bank of Pensacola v. Hazard, 231 Pa. St. 552, 80 Atl. 1094, Ann. Cas. 1914B 1115.

3. Note: Ann. Cas. 1914B 161 et seq. 4. Note: Ann. Cas. 1914B 161 et seq. 5. Crane v. Thayer, 18 Vt. 162, 46 Am. Dec. 142.

6. See supra, par. 1.

7. St. Louis, etc., R. Co. v. Webster, 99 Ark. 265, 137 S. W. 1103, 1199, Ann. Cas. 1913B 141.

8. Chambers v. Chalmers, 4 Gill & J. (Md.) 420, 23 Am. Dec. 572.

9. Fox v. Tay, 89 Cal. 339, 24 Pac. 855, 26 Pac. 897, 23 A. S. R. 474.

INDEX

The numbers in this Index refer to pages.

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Administrator's fees as reachable by
creditor's bill, 17
Ancillary remedies, 35
Annuities as reachable by creditor's
bill, 8

Assigned property as subject to cred-
itor's bill, 9-10

Basis of equity jurisdiction, 3
Board of trade membership as reach-
able by creditor's bill, 6

Choses in action as reachable by
creditor's bill, 14–19

Clerk's fees as reachable by creditor's
bill, 17
Constructive trusts as subject to
creditor's bill, 10

Contract for support as reachable by
creditor's bill, 12

Copyrights as reachable by credit-
or's bill, 14
Corporations-

Funds in hand of officers as reach-
able by creditor's bill, 15
Property standing in name of offi-
cer as subject to creditor's bill,
10

Shares of and subscriptions to
stock as reachable by creditor's
bill, 17-18

Cotenants' interests in common
property as reachable by credit-
or's bill, 11

Counterclaim as affecting remedy by
creditor's bill, 15

Death of debtor as affecting right to
creditor's bill, 29

Decedents' estates as subject to
creditor's bill, 12

Decree, 36-37

CREDITORS' BILLS

Defenses, 32

Definition, 2

continued
Demurrer for multifariousness, 29
Distributee's interest as reachable by
creditor's bill, 12

Dower rights as reachable by cred-
itor's bill, 13

Equitable assets as reachable by
creditor's bill, 6-11

Equity jurisdiction generally, 3
Equity of redemption as reachable
by creditor's bill, 7, 11
Exchange membership as reachable
by creditor's bill, 6
Executions -

Aider by creditors' bills, 3
Return of execution unsatisfied as
prerequisite to creditor's bill,
23-25

Supplementary proceedings as af-
fecting remedy by creditor's bill,
4

Executors and administrators
Decedent's estate as subject to
creditor's bill, 12

Executor's fees as reachable by
creditor's bill, 17

Exempt property as subject to
creditor's bill, 6, 10-11
Exhaustion of legal remedies-

Blending of law and equity juris-

diction as affecting rule, 25-26
Exceptions to general rule, 25-27
Execution returned unsatisfied, 23–
25

Insolvency of debtor as affecting
rule, 26

Necessity, 19-27

Nonresidence of debtor, as affect-
ing rule, 26

Recovery of judgment, 20-23
Expectancy as reachable by credit-
or's bill, 12.

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