truth and veracity; as has been stated, in a preceding volume.1

color of an examination to credit, from procuring testimony to overcome the testimony already taken in the cause, and published, in violation of the fundamental principle of the Court, which does not allow any new evidence of the facts in issue after publication. The rule and the reasons of it are fully expounded in Purcell v. McNamara, (8 Ves. R. 324, 326); Wood v. Hammerton, (9 Ves. R. 145); Carlos v. Brock, (10 Ves. R. 49, 50), and White v. Fussell, (1 Ves. & Beam. R. 151.) It was recognized and enforced by Mr. Chancellor Kent, in Troup v. Sherwood, (3 Johns. Ch. R. 558, 562-563.) When the examination is to general credit, the course, in England is, to ask the question of the witnesses, whether they would believe the party sought to be discredited upon his oath. With us the more usual course is to discredit the party by an inquiry, what his general reputation for truth is, whether it is good or whether it is bad." 2 Sumn. 608-610. And see Piggott v. Coxhall, 1 Sim. & Stu. 467. This course, in its strictness, is conceived to apply only in those Courts whose practice is similar to that formerly in use in the High Court of Chancery in England.

1 See ante, Vol. 1, § 461, and cases there cited.

CHAPTER III.

OF THE EXCLUSION OF EVIDENCE.

1. SUPPRESSION OF DEPOSITIONS BEFORE THE HEARING.

§ 349. In the course of proceedings in the Courts of Common Law, objections to the competency of testimony can be made only at the trial, when the testimony is offered; there being no existing rule, by which the question of its admissibility can be heard by the Court at any earlier stage of the cause. But in Chancery, the objection may be heard and the point settled, either at or before the hearing of the cause. Ordinarily, the time to apply for the suppression of depositions, is after publication has passed; for until that time, it is seldom that it can be known whether any cause for their suppression exists. But is not necessary to wait until publication; for if the ground of objection is previously apparent, in any manner whatever, the Court, on motion and proof of the fact, will make an order for suppressing the testimony. Thus, where it was shown, before publication, that the deposition of the witness, who was also the agent of the party producing him, was brought, already written, to the commissioners, and taken by them in that form, it was suppressed.1 So, where the deposition was prepared beforehand by the attorney of the party, it was suppressed before publication.2

§ 350. The usual grounds on which depositions are suppressed, are, either that the interrogatories are leading; or,

1 Shaw v. Lindsey, 15 Ves. 380.

2 Anon. Ambl. 252, n. 4, Blunt's ed.; 2 Dan. Ch. Pr. 1147.

that the interrogatories and the answers to them are scandalous, and impertinent; or, that the witness was incompetent; or, that some irregularity has occurred in relation to the depositions. When the objection is for either of the two former causes, it is referred to a master, to ascertain and report the fact, and the question is presented to the Court upon exceptions to his report. If the exceptions are sustained, the deposition will be suppressed; totally, if the objection goes to the whole, otherwise, only as to the objectionable part. Thus, if one interrogatory alone is reported as leading, the deposition as to that interrogatory only, will be suppressed; and if part only of the interrogatory be leading, then that part, and so much of the answer as is responsive to it, will be suppressed.2 And where depositions are suppressed because the interrogatories are leading, it is not usual to grant leave to re-examine the witnesses; though it will sometimes be permitted under special circumstances; as, for example, where the interrogatories were improperly framed through inadvertence, and with no improper design.3 But no reference is ordinarily made for impertinence alone, not coupled with scandal; unless it be on special application at the hearing of the cause; or where the impertinence consists in the examination of witnesses to discredit other witnesses, without a special order for that purpose; in which latter case there may be a reference either before or after publication. And where exceptions are taken after publication and before the hearing, for the incompetency of a witness, a special application is made to the Court for leave to exhibit articles, stating the facts, and praying leave to examine other witnesses to establish the truth of them; and if the facts were not known until after publica

12 Dan. Ch. Pr. 1141, 1143.

2 Id. 1143.

3 Ibid.; Ld. Arundell v. Pitt, Ambl. 585.

4 White v. Fussell, 19 Ves. 113. And see Cocks v. Worthington, 2 Atk. 235, 236; Pyncent v. Pyncent, 3 Atk. 557; 2 Dan. Ch. Pr. 1049, 1144. 5 2 Dan. Ch. Pr. 1144; Osmond v. Tindall, Jac. 627.

6 Mill v. Mill, 12 Ves. 407.

tion, the application will be granted. The causes which render a witness incompetent have been considered in a preceding volume.2

§ 351. In regard to irregularities in the manner of taking depositions, when it is recollected that the mode in which they are to be taken is distinctly prescribed either in statutes or in rules of Court or in both, it is evident that any departure from the rules so prescribed must vitiate the entire proceeding; and accordingly, in such cases, the deposition will be suppressed. The irregularities, when not apparent upon the face of the proceedings, should be shown to the Court by affidavit. But there are other irregularities, occasioned by a departure from rules not expressed in formal orders, but long recognised in chancery practice, for which also depositions will be liable to be suppressed. Thus, it is a cause of suppression, if the general interrogatory be not answered; if the deposition be taken before persons, some of whom are not named in the commission;5 if a joint commission be not executed by all the commissioners; if the cross interrogatories be not put; if all proper interrogatories on either side.

1 Callaghan v. Rochfort, 3 Atk. 643; Gass v. Stinson, 2 Sumn. 608. Objections to the competency of a witness, if known, and not made at the time of taking a deposition under the act of Congress, will be deemed to have been waived. U. States v. Hairpencils, 1 Paine, 400. So, where a witness, known to be incompetent, was cross-examined, this is a waiver of the objection, on the part of the party by whom he was cross-examined. Charitable Corp. v. Sutton, 2 Atk. 403; Corp. of Sutton v. Wilson, 1 Vern.

254.

2 See ante, Vol. 1, Part 3, ch. 2, § 326-430.

3 See ante, Vol. 1, § 320 – 324, for the manner in which depositions, in general are to be taken. The peculiarities of local practice in the State. Courts are foreign from the design of this work.

4 Richardson v. Golden, 3 Wash. 109; Dodge v. Israel, 4 Wash. 323. 5 Willings v. Consequa, 1 Pet. C. C. R. 301; Banert v. Day, 3 Wash. 243. So, where it appeared that the evidence had been taken by a clerk to the commissioners, and the effect of some of the depositions had been communicated to the agent of the other side. Lennox v. Munnings, 2 Y. & J. 483. 6 Armstrong v. Brown, 1 Wash. C. C. R. 43.

7 Gilpins v. Consequa, 3 Wash. 184; Bell v. Davidson, Id. 328. And

do not appear to have been substantially answered;1 if the deposition is in the handwriting of the party, or his agent, or

see Davis v. Allen, 14 Pick. 213 ; Bailis v. Cochran, 2 Johns. 417. But see, for a qualification of this rule, ante, Vol. 1, § 554. The refusal of the witness to be cross-examined is no cause for suppressing the deposition; but is punishable as a contempt. Courtenay v. Hoskins, 2 Russ. 253. The effect of the want of a cross-examination, upon the admissibility of the deposition, was fully considered by Story, J., in Gass v. Stinson, 3 Sumn. 98. That case, being before a master, and the plaintiffs being desirous of the testimony of a witness who was dangerously ill, a commissioner was agreed on by the parties, to take his answers to interrogatories; and they were accordingly taken to the interrogatories filed by the plaintiff; no objection being made to the commissioner's proceeding immediately, upon those interrogatories alone, until others could be filed, saving to the defendant all other benefit of exception. The witness lived several months afterwards, during which the commissioner proceeded with the examination from time to time, as the witness was able to bear it; but before the filing of any cross-interrogatories, and after answering, on oath, all the direct interrogatories, the witness died. The defendant objected to the admission of the deposition, for the want of a cross-examination; but the master admitted it; and for this cause, among others, his report was excepted to. The learned Judge, on this point, delivered his opinion as follows: ;- "The general rule at law seems to be, that no evidence shall be admitted, but what is or might be under the examination of both parties. So the doctrine was laid down by Lord Ellenborough, in Cazenove v. Vaughan, (1 Maule & Selw. R. 4, 6,) and his Lordship on that occasion added: 'And it is agreeable to common sense, that what is imperfect, and, if I may so say, but half an examination, shall not be used in the same way, as if it were complete. The same principle seems recognised in Attorney-General v. Davison, (1 McClel. & Younge, R. 160.) But neither of these cases called for an explicit declaration as to what would be the effect of a regular, direct examination, where the party had died before any cross-examination. In v. Brown, (Hardres, R. 315,) in the case of an ejectment at law, the question occurred, whether the examination of a witness, taken de bene esse to preserve his testimony upon a bill preferred and before answer, upon an order of Court, where the witness died before he could be examined again, and he being sick all the mean time, so that he could not go to be examined, was admissible on the trial of the ejectment;

1 Bell v. Davidson, supra. And see Moseley v. Moseley, Cam. & Nor. 522. But if substantially answered, it is sufficient. Nelson v. U. States, 1 Pet. C. C. R. 235, 237. Misbehavior of the witness, in giving his testimony, may also be cause for suppressing it. Phillips v. Thompson, 1 Johns. Ch. 139, 140.