§ 318. Co-defendants may also be witnesses for each other. The rule in Courts of Equity, on this subject, is founded on the same principle with the rule at Law, which has formerly been stated,1 namely, that it ought not to be in the plaintiff's power to deprive the real defendant of his witnesses by making them defendants. And this principle applies, and therefore the testimony of a co-defendant may be had, in all cases where he is either a merely nominal defendant, or has no beneficial interest in the matter to which he is to be examined; or his interest or liability is extinguished by release; or is balanced; or where the plaintiff cannot adduce some material evidence against him; or where no decree is sought, or none can be properly had against him.2 If the witness, who was competent at the time of his examination, is afterwards made a defendant, his deposition may still be read. And it makes no difference that relief is prayed against the defendant proposed to be examined as a witness, if the prayer be founded upon matters other than that to which he is to be interrogated, or, in other words, if his interest be not identical with that of the party who examines him. Regularly, a defendant cannot examine his co-defendant, without an order for that purpose; which will be granted of course, before the decree,

15; New Jersey, Rev. Stat. 1846, tit. 33, ch. 1, § 40; Wisconsin, Rev. Stat. 1849, ch. 84, § 30; Alabama, Code of 1852, § 2914.

1 Ante, Vol. 1, § 358.

2 Piddock v. Brown, 3 P. Wms. 288; Murray v. Strodwell, 2 V. & B. 401; Franklyn v. Colquhoun, 16 Ves. 218; Dixon v. Parker, 2 Vez. 219. And see Whipple v. Lansing, 3 Johns. Ch. 612; Neilson v. M'Donald, 6 Johns. Ch. 201; 2 Cowen, 139; Cotton v. Luttrell, 1 Atk. 451; Man v. Ward, 2 Atk. 228; Souverbye v. Arden, 1 Johns. Ch. 240; Kirk v. Hodgson, 2 Johns. Ch. 550; Bebee v. Bank N. York, 1 Johns. 577; Reimsdyk v. Kane, 1 Gall. 630; Clark v. Van Reimsdyck, 9 Cranch, 153; Butler v. Elliott, 15 Conn. 187; Hawkins v. Hawkins, 2 Car. Law R. 627; Douglass v. Holbert, 7 J. J. Marsh. 1; Hodges v. Mullikin, 1 Bland, 503; Ragan v. Echols, 5 Geo. R. 71.

3 Cope v. Parry, 1 Jac. & Walk. 583; Brown v. Greenly, 2 Dick. 504.; Bradley v. Root, 5 Paige, 632.

4 Ashton v. Parker, 9 Jur. 574; 14 Sim. 632, S. C. And see Daniell v. Daniell, 13 Jur. 164; Holman v. Bank of Norfold, 12 Ala. 369.

saving all just exceptions, upon suggestion that he is not interested, leaving the question of his admissibility to be determined at the hearing; but after a decree, it is not a motion of course, but is granted only on special circumstances, and upon notice to the plaintiff.1

$319. SECONDLY, as to the mode of taking testimony. It has already been seen, that in Chancery, the regular course is to receive no testimony orally, except in the mere formal proof of exhibits; and that in several of the State Courts this rule has been abolished, and evidence is received orally, in Equity cases, in the same manner as at Common Law; 2 while in others the old rule has been variously modified. In view of this state of things, Congress, at an early period, expressly empowered the Courts of the United States to regulate the practice therein, as may be fit and necessary for the advancement of justice; and particularly, in their discretion, and at the request of either party, to order the testimony of witnesses in cases in Equity to be taken by depositions, in the manner prescribed by law for the highest Courts of Equity in the States where the Courts of the United States may be holden; except in those States in which testimony in Chancery is not taken by deposition. And more recently, the Supreme Court of the United States has been empowered to prescribe, regulate and alter the forms of process in the Cir

1 2 Dan. Ch. Pr. 1044; Williams v. Maitland, 1 Ired. Eq. 93; Nevill v. Demeritt, 1 Green, Ch. 321; Bell v. Jasper, 2 Ired. Eq. 597; Hopkinton v. Hopkinton, 14 N. Hamp. 315; Paris v. Hughes, 1 Keen, 1. By the statute 6 & 7 Vict. c. 85, removing from witnesses the objection of incompetency by reason of interest or infamy, defendants in Chancery may be examined as witnesses for the plaintiff, and also for each other, "saving just exceptions." Whether, under this statute, co-defendants were entitled, of right, to examine each other as witnesses, in support of a common defence against the plaintiff, is a point upon which opposite opinions have been held. See Wood v. Rowcliffe, 11 Jur. 707, per Wigram, V. C., that they are. Monday v. Guyer, Id. 861, 1 De G. & S. 182, per Bruce, V. C. that they are not. 2 Supra, § 251, 308, 309.

3 U. S. Stat. 1802, ch. 31, § 25; Stat. 1793, ch. 22, § 7.

cuit and District Courts, the forms of pleading in suits at Common Law, in Admiralty and in Equity, and of taking testimony and of entering decrees, and, generally, to regulate the whole practice of the Courts. Pursuant to this authority, Rules of Practice have been made, by which, after the cause is at issue, commissions may be taken out either in vacation or term time, to take testimony upon interrogatories filed in the Clerk's office, ten days' notice thereof being given to the adverse party to file cross-interrogatories, on failure of which the commission may be issued ex parte; the commissioner to be appointed by the Court or by a Judge thereof. But if the parties agree, the testimony may be taken upon oral interrogatories, propounded by the parties at the time of taking the depositions.2 Testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress, the substance of which has been stated in a preceding volume. But in such case, if no notice has been given to the adverse party of the time and place of taking the deposition, he may be permitted to cross-examine the

1 U. S. Stat. 1842, ch. 188, § 7. In the Judiciary Act of 1789, ch. 20, § 30, it was enacted, that "the mode of proof, by oral testimony and examination of witnesses in open Court, shall be the same in all Courts of the United States, as well in the trial of causes in Equity and of Admiralty and Maritime Jurisdiction, as of actions at Common Law." By the subsequent statute of April 29, 1802, ch. 291, § 25, the imperative character of this provision. was removed, so far as regards suits in Equity, by leaving it "in the discretion of the Court, upon the request of either party, to order the testimony of the witnesses therein to be taken in conformity to the regulations prescribed by law for the Courts of the highest original jurisdiction in Equity, in cases of a similar nature, in that State in which the Court of the United States may be holden; provided, however, that nothing herein contained shall extend to the Circuit Courts which may be holden in those States in which testimony in Chancery is not taken by deposition." Conn v. Penn, 5 Wheat. 424. Provision is also made, by statute, for reducing oral testimony to writing, to be used in the Supreme Court on appeal, no other testimony being in such cases allowed." Stat. U. S. Sept. 24, 1789, ch. 20, § 19; Stat. U. S. March 3, 1803, ch. 93, § 2; The Boston, 1 Sumner, 332. 2 Rules for Circuit Courts in Equity, Reg. 67.

3 Ante, Vol. 1, § 322-324.

witness, either under a commission, or by a new deposition, in the discretion of the Court or Judge.1

§ 320. In the construction of these rules, it has been held, that in cases of disagreement between the parties as to the form of interrogatories and cross-interrogatories, it should be referred to a master to settle the proper form; subject to an appeal from his decision, which will be reviewed by the Court, at the hearing, upon a view of the whole testimony; and that when exceptions are intended to be taken to such interrogatories and cross-interrogatories, they should be propounded as objections, before the commission issues, or they will be deemed to be waived. All the interrogatories must be substantially answered. If the cross-interrogatories which were filed are not put to the witness, the deposition, ordinarily, cannot be read; but if the other party has unreasonably neglected to file any, it is at his own peril, and the deposition may, in the discretion of the Court, be admitted.3 If the commission is joint, it must be executed by all the commissioners; if joint and several, the commissioners are competent to take the depositions of each other; but in either case, if a person not named in the commission, appears to have assisted in taking the examination, it is fatal to the admissibility of the deposition.6

§ 321. By another Rule, the time ordinarily allowed for the taking of testimony, is three months, after the cause is at

1 Rules for Circuit Courts in Equity, Reg. 68.

2 Crocker v. Franklin Co. 1 Story, R. 169; United States v. Hair Pencils, 1 Paine, 400. And see Barker v. Birch, 7 Eng. L. & Eq. R. 46.

3 Ketland v. Bissett, 1 Wash. C. C. R. 144; Gilpins v. Consequa, 3 Wash. 184; Bell v. Davidson, Id. 328; Gass v. Stinson, 3 Sumn. 98. For the cases in which a deposition will be admitted in Equity, notwithstanding the want of a cross-examination, see ante, Vol. 1, § 554. See, also, infra, ch. 3, § 1. 4 Armstrong v. Brown, 1 Wash. C. C. R. 43.

5 Lonsdale v. Brown, 3 Wash. 404.

6 Willings v. Consequa, 1 Pet. C. C. R. 301.

7 Rules for Circuit Courts in Equity, Reg. 69.

issue; but it may be enlarged, for special cause shown. And immediately after the commissions and depositions are returned to the clerk's office, publication may be ordered by a Judge of the Court, or it may be enlarged, at his discretion. But publication may at any time pass, in the Clerk's office, by the written consent of the parties, duly entered in the order-book, or indorsed on the depositions or testimony.

§ 322. It is also ordered, by another Rule of the same Court,1 that after the filing of the bill, and before answer, upon affidavit that any of the plaintiff's witnesses are aged or infirm, or going out of the country, or that any of them is a single witness to a material fact, a commission may issue, as of course, to a commissioner appointed by a Judge of the Court, to take their examination de bene esse, upon due notice to the adverse party. These are the principal rules, adopted in the national tribunals, which affect the law of evidence in cases in Equity; except such as may hereafter be mentioned. But it is further ordered, that in all cases where the rules prescribed do not apply, "the practice of the Circuit Court shall be regulated by the [then] present practice of the High Court of Chancery in England, so far as the same may reasonably be applied consistently with the local circumstances and local convenience of the District where the Court is held; not as positive rules, but as furnishing just analogies to regulate the practice." 2 And it is to be noted, that it is the practice of the Court of Chancery, and not that of the Exchequer, which thus forms the basis of the Equity practice of the Courts of the United States. The same may be said of the course of practice in Equity in all the State Courts, so far as it has not been changed by express orders or immemorial usage, nor by statutes.

1 Rules for Circuit Courts in Equity, Reg. 70.

2 Idem. Reg. 90.

3 Smith v. Burnham, 2 Sumn. 612. In some of the United States, the practice in Equity, in cases not otherwise regulated, is expressly ordered to be in conformity to the Rules of Practice made by the Supreme Court of the United States. See Pennsylvania, Dunlop's Dig. ch. 525, § 13, p. 834.