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accurate record, for the use, if needed, of the higher tribunal, should the case be carried thither by appeal,-a proceeding, though unknown to the common law, yet of familiar use in courts of equity, admiralty, and ecclesiastical jurisdictions.114 For this reason it was required in equity that all witnesses should be examined before the hearing, and their answers taken down in writing. The protracted nature of a written examination necessarily involved the risk that defects of evidence might be discovered in the course of taking it, and also testimony procured to remedy them. In order to avoid this risk, the witnesses were examined privately by an officer of the court, and it was an imperative rule that, until the examination had been completed, and the entire depositions given out, which was technically termed "passing publication," neither party should be made acquainted with his adversary's interrogatories, nor with any part of the answers on either side, and that, after publication, no further witnesses could be examined without special leave. The mode of examination was by written interrogatories, signed by counsel, framed as a series of questions, directed successively to the several facts in issue, and numbered, "First Interrogatory," "Second Interrogatory," etc. In framing interrogatories, the same rule was required to be observed as in putting the questions to a witness at law,—that is, they must not be leading or suggestive on material points. Before the witnesses were examined, the examining officer was generally instructed as to the interrogatories applying to each witness. During the actual examination, the examining officers and the witness were the only persons present, all third persons being strictly excluded. The witness was then examined on each interrogatory in order, his answers being taken down on paper, and he was not permitted to read, or hear read, any other interrogatory until that in hand was fully answered. When all the interrogatories had been gone through, the deposition was read over to the witness, who, after correcting any error or omission, signed it. The affixing of his signature completed his ex

114 Adams, Eq. 365, 366; 3 Greenleaf, Ev. § 251.

amination, and he could not be again examined on behalf of the same party. If any of the interrogatories were such as the witness was not bound to answer,-for example, if they tended to expose him to a penalty or forfeiture, he might decline to answer them, stating at the same time, on oath, his reasons for so doing,-a proceeding which was called a "demurrer to interrogatories." The witnesses examined in chief by either party might be cross-examined by his opponent, and the interrogatories filed for this purpose, which were termed "cross interrogatories," were in all respects similar to the interrogatories in chief, except that they were not subject to objection on the ground of leading the witness. It was, however, very seldom that any good result was effected by a crossexamination in equity, for it was conducted in ignorance of the questions in chief, and therefore, as applied to the adversary's case, was uncertain and often dangerous, and it could not be applied, as at nisi prius, to the proof of an independent case. If the evidence of the witness was required for that purpose, he might be examined on original interrogatories; but his cross-examination was confined to those points on which he had already been examined in chief. The time for publishing the depositions was fixed by the general orders of the court. If either party desired to delay this step in order to complete the examination of his witnesses, he might apply to enlarge the publication for a further time. After the depositions had been published and read, no further evidence was admissible, without special leave, except evidence to discredit a witness, either by impeaching his general credibility, or by showing him to have sworn falsely in a part of his evidence not material to the issue in the cause. With respect to the material parts of his evidence, such discrediting evidence was not admissible, lest, under the pretense of impeaching his credibility, new evidence should be introduced. The rule excluding evidence after publication passed was subject to the discretion of Permission was sometimes granted to examine witnesses after publication. The regular mode of obtaining per

the court.

mission to examine witnesses after publication was by a distinct motion before the hearing. The only exceptions to the system of taking evidence on written interrogatories, and before publication, were in the case of documents in the custody of a public officer, which were proved by the officer's testimony to that fact, and of documents, the authenticity of which was not impeached, and which only required the proof of handwriting, or the evidence of an attesting witness. In these cases, interrogatories might be dispensed with, and the evidence given by affidavit at the hearing.115 The secrecy thus observed involved the possibility, not only of false evidence being given, but of true evidence being given in an imperfect form, where a party, in the absence of his opponent, so framed his interrogatories as to elicit testimony respecting part only of a transaction.116 This protracted mode of taking testimony was open to serious objections, and fell into disrepute.117 In England, the rules for taking testimony were materially changed from time to time, and gradually the former practice was abolished, and a new system substituted in its place.118 In most of the states of the Union it is either expressly enacted or implied from existing enactments, and therefore always permitted, that the trials of fact in chancery cases shall or may be by witnesses orally examined in court, or by depositions taken in the same manner, and for the same causes, as at law. By force of these provisions and of this course of practice, all that portion of the law of evidence in equity which related to the mode of taking

115 Adams, Eq. 366-373, from which the foregoing statement of the English practice is taken. See, also, 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 887 et seq.; 3 Greenleaf, Ev. §§ 324, 325; City of London v. Dorset, 1 Ch. Cas. 228; Whitelock v. Baker, 13 Ves. 511; Kensington v. Pugh, 3 Younge & J. 378; Bott v. Birch, 5 Madd. 66; Kirk v. Kirk, 13 Ves. 280; Hamersly v. Lambert, 2 Johns. Ch. (N. Y.) 434; Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953, where Mr. Justice Story exhaustively reviews the practice. See post, § 691, note 67.

116 Adams, Eq. 366.

117 3 Greenleaf, Ev. § 252.

118 1 Daniell, Ch. Pl & Pr. (4th Ed.) 887.

testimony, and required it to be secret and by depositions, is rendered obsolete in most jurisdictions.119

§ 658. Examinations de bene esse.

The examination of a witness de bene esse takes place where there is danger of losing the testimony of an important witness from death by reason of old age (as where the witness is seventy years old and upwards), or dangerous illness, or where he is the only witness to an important fact. In such cases, the court, to prevent the party from being deprived of the benefit of his evidence, will permit his depositions to be taken before the cause is at issue, in order that, if the witness die, or be not forthcoming to be examined after issue joined, the deposition so taken may be used at the hearing.120 Such an examina

119 3 Greenleaf, Ev. § 259. The practice in the federal courts relative to taking testimony is regulated by rules prescribed by the supreme court of the United States, which is authorized by statute to prescribe rules of proof in equity cases. Rev. St. U. S. §§ 862, 863. See Stevens v. Missouri, K. & T. Ry. Co., 104 Fed. 935. United States Equity Rules 67-71 provide for the mode of taking testimony in equity causes in the federal courts. The court may, in its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing. United States Equity Rule 67; Sickles v. Gloucester Co., 3 Wall. Jr. 186, Fed. Cas. No. 12,840; Blease v. Garlington, 92 U. S. 1; In re Clark, 9 Blatchf. 372, Fed. Cas. No. 2,801; Mears v. Lockhart, 94 Fed. 274. By statute in Illinois it is provided that, on the trial of every suit in chancery, oral testimony shall be taken, when desired by either party. Rev. St. Ill. c. 51, § 38. For rules relative to the taking of depositions in chancery cases in Illinois, see Rev. St. Ill. c. 51. Owing to the fact that the manner of taking evidence in the various jurisdictions where equity practice obtains differs, and is governed largely by statute, no good end will be subserved by a consideration of the local practice in any one jurisdiction, and the scope of this work renders it impracticable to treat of the local practice on this subject obtaining in all such jurisdictions.

120 1 Barbour, Ch. Pr. 270; Rowe v. — 13 Ves. 261; Bellamy v. Jones, 8 Ves. 31; Shirley v. Ferrers, 3 P. Wms. 77. Instances where such orders have been granted will appear from the following cases: Bown v. Child, 3 Sim. 457; Fitzhugh v. Lee, 1 Amb. 65; Jepson v. Greenaway, 2 Fowler, Exch. Pr. 122; Botts v. Verelst, 2 Dickens, 454; Byrne v. Byrne, 2 Moll. 440; East India Co. v. Naish, Bunb. 320; Shelley v. 13 Ves. 56; Wilson v. Wilson, 1 Newland, Ch. Pr. 287;

tion is incidental to every suit in chancery. It may even be incidental to a suit to perpetuate testimony, where there is danger that the evidence of a witness whose testimony is to be perpetuated will be lost before the suit for perpetuating will be ripe for a regular examination.121 Wherever the testimony

of a witness is required to be used, either in support of, or in defense to, an action at law, a hill must first be filed with the proper affidavit annexed to it, praying specifically that the witness may be examined de bene esse.122

The court will grant an order for the examination of witnesses de bene esse, not only in the cases above enumerated, but wherever the justice of the case appears to require it.123 The rule that the examination of a witness de bene esse will be permitted where the person proposed to be examined is the only witness will not be extended to cases where there is more than one witness to the same fact, unless upon the ground of the age or infirmity of the witness.124 The court will grant an order allowing the complainant to examine a witness de bene esse before an answer has been put in, provided the necessity for taking his deposition is satisfactorily shown by affidavit.125 Where the defendant has not appeared, he must have notice of the examination.126 In order to examine a witness de bene esse, the defendant must have put in his answer. 127 Under the English practice, application for leave to examine a wit

Dew v. Clark, 1 Sim. & S. 108; Coveny v. Athill, 1 Dickens, 355; Prichard v. Gee, 5 Madd. 364.

121 1 Barbour, Ch. Pr. 270; Frere v. Green, 19 Ves. 319.

122 1 Barbour, Ch. Pr. 270; Philips v. Carew, 1 P. Wms. 117; Andrews v. Palmer, 1 Ves. & B. 21; Atkins v. Palmer, 5 Madd. 19. 123 1 Barbour, Ch. Pr. 271; Tomkins v. Harrison, 6 Madd. 315. 124 1 Barbour, Ch. Pr. 271; Anonymous, 19 Ves. 321. But see Cholmondely v. Orford, 4 Brown Ch. 157, where two witnesses, being the only persons who knew the material facts, were examined.

125 1 Barbour, Ch. Pr. 271; Fort v. Ragusin, 2 Johns. Ch. (N. Y.) 146, citing Harrison v. Gardner, 2 Madd. 202; Bagnold v. Green, 1 Dickens, 2, Cary, 68; Shelley v. — 13 Ves. 56.

126 1 Barbour, Ch. Pr. 272; Tomkins v. Harrison, 6 Madd. 315. 1271 Barbour, Ch. Pr. 272; Williams v. Williams, 1 Dickens, 92; Woodmas v. Warner, 2 Fowler, Exch. Pr. 131.

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