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of it was objectionable. Between publication and a rehearing, if proved to be necessary, the court would grant time to examine whether there was anything irregular in the depositions.167 chancery, the objection to the competency of evidence may be heard and the point settled either at or before the hearing of the cause.168 The usual grounds on which depositions are suppressed are either that the interrogatories are leading, or 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.169

In the manner of taking depositions, any departure from the rules prescribed by statute or rule of court will vitiate the entire proceedings, and in such case the deposition will be suppressed.170 Such irregularities must be shown by affidavit when not apparent upon the face of the proceedings.171 The ancient

167 Gresley, Eq. Ev. 213; Gordon v. Gordon, 1 Swanst. 171; 1 Grant, Ch. Pr. 110.

168 3 Greenleaf, Ev. § 349; Anonymous, 1 Amb. 252; Shaw v. Lindsey, 15 Ves. 380.

169 3 Greenleaf, Ev. § 350. See Arundel v. Pitt, Amb. 585; White v. Fussell, 19 Ves. 113; Cocks v. Worthington, 2 Atk. 235; Pyncent v. Pyncent, 3 Atk. 557; Osmond v. Tindall, Jac. 627; Mill v. Mill, 12 Ves. 407. "He may find some parts which he would not wish to remain on record, for other reasons besides [objecting to] their use in the suit,-containing, for instance, scandalous matter. He may discover that to other parts, or even to the whole of it, some latent objection applies which might be brought before the court on affidavits; as in many cases of irregularity in taking the examination. And even when, on the face of the proceedings, he sees an objection which might be raised when the cause is heard, it may be such a one as would only induce the court to give time for filing new interrogatories, and it may be better to have the point determined before labor and expense have been incurred in preparing the cause for the hearing. In either of these cases, his course will be to apply to the court [by motion] for an order to suppress the depositions." Gresley, Eq. Ev. 213. See, also, Gresley, Eq. Ev. 214-226, for English practice where objection is made on ground of scandal or impertinence and irregularity in taking depositions. See 3 Greenleaf, Ev. § 350.

170 3 Greenleaf, Ev. § 351.

171 3 Greenleaf, Ev. § 351. For enumeration of irregularities held to

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forms of interrogatories included the question whether the witness was or was not interested in the event of the suit, but that practice has been superseded by filing a cross interrogatory. Under the modern practice, it is said that the proper time for examination as to competency is before publication, interrogatories to credit alone being allowed after publication; yet, where an objection to the competency is discovered after publication, it may be taken even at the hearing, if it be taken as soon as it is discovered, and before the deposition is read.172 Cross-examination, with knowledge of incompetency, waives the objection.173 "A motion to suppress testimony is, under ordinary circumstances, addressed wholly to the discretion of the chancellor, and is one of those incidental questions in practice which must rest mainly in discretion."174

§ 668. Attendance of witnesses.

Every court having power definitely to hear and determine any suit has inherent power to call for all adequate proofs of the facts in controversy, and, to that end, to summon and compel the attendance of witnesses before it. The ordinary summons is a writ of subpoena, which is a judicial writ, directed to the witness, commanding him to appear at the court to testify what he knows in the cause therein described, pending in such court, under a certain penalty mentioned in the writ. If the witness is expected to produce any books or papers in his possession, a clause to that effect is inserted in the writ, which is then called a subpoena duces tecum. A writ of subpoena then suffices for only one sitting, or term, of the court, and, if the cause is post

be cause for suppression, see 3 Greenleaf, Ev. §§ 351, 352, and the nu merous authorities there cited.

172 3 Greenleaf, Ev. § 369; Perigal v. Nicholson, Wightw. 63; Callaghan v. Rochfort, 3 Atk. 643; Purcell v. McNamara, 8 Ves. 324; Mill v. Mill, 12 Ves. 406. See Rogers v. Dibble, 3 Paige (N. Y.) 238; Stokes v. McKerral, 3 Brown Ch. 228.

178 3 Greenleaf, Ev. § 369. For practice concerning suppression of depositions in equity causes, see 3 Greenleaf, Ev. §§ 349-353.

174 Partridge v. Stocker, 36 Vt. 110.

poned or adjourned to another term or session, the witness must be summoned anew. The manner of serving the subpoena being, in general, regulated by statutes or rules of court, which in the different jurisdictions are practically similar, no further consideration thereof will be made.175 The service of a subpoena upon a witness ought always to be made in a reasonable time before the trial or hearing, to enable him to put his affairs in such order that his attendance before the tribunal may be as little detrimental as possible to his interests.176 On this principle, a summons in the morning to attend in the afternoon of the same day has been held insufficient, although the witness lived in the same town, and very near to the place of trial. In the United States, the reasonableness of the time is generally fixed by statute requiring an allowance of one day for every certain number of miles distance from the witness' residence to the place of trial, and this is usually twenty miles; but at least one day's notice is deemed necessary, however inconsiderable the distance may be.177 As to the manner of service, in order to compel the attendance of a witness, it should be personal, since otherwise he cannot be chargeable with contempt in not appearing upon the summons.178 Witnesses as well as parties are protected from civil arrest while going to the place of trial, while attending there for the purpose of testifying in the cause, and while returning home.179 Where a witness has been duly summoned, and his fees are tendered, or the payment or tender

175 1 Greenleaf, Ev. § 309; Wharton, Ev. (3d Ed.) §§ 376, 377. If the witness is a prisoner, or in the naval or military service, his attendance is secured by the writ of habeas corpus ad testificandum. 3 Bl. Comm. 130; 1 Greenleaf, Ev. § 312.

176 1 Greenleaf, Ev. § 314; Barber v. Wood, 2 Moody & R. 172; Hammond v. Stewart, 1 Strange, 510.

1771 Greenleaf, Ev. § 314. See Alexander v. Dixon, 8 Eng. Com. Law, 551.

178 1 Greenleaf, Ev. § 315.

179 1 Greenleaf, Ev. § 316; Larned v. Griffin, 12 Fed. 590; Ex parte Hall, 1 Tyler (Vt.) 274; Ballinger v. Elliott, 72 N. C. 596; Smythe v. Banks, 4 Dall. 329, Fed. Cas. No. 13,134. See, where witness was not summoned, Rogers v. Bullock, 3 N. J. Law, 109; Ex parte McNeil, 6 Mass. 264; May v. Shumway, 16 Gray (Mass.) 86, 77 Am. Dec. 401.

waived, if he willfully neglects to appear, he is guilty of a contempt of the process of the court, and may be proceeded against by an attachment.180 To make the service complete in a civil cause, a witness' lawful fees must be paid or tendered him.181 In a subpoena duces tecum, the documents required to be produced by the witnesses are to be specified with that degree of certainty which is practicable, considering all the circumstances, so that the witness may be able to know what is wanted of him, and to have the papers on the trial, so that they can be used if the court shall then determine that they are competent and relevant evidence.182

The People of the State of Illinois, to G. H., Greeting:

We command you that, all business and excuses being laid aside, you attend before the circuit court of said county on the first day of July, A. D. 1902, at ten o'clock a. m., before Judge M. F. T., in the court house in Chicago, to testify and the truth to speak in a certain cause now pending and undetermined in said court, wherein A. B. is complainant and C. D. is defendant, on the part of the said A. B.; and this you shall in no wise omit, under penalty of the law. And have you then and there this writ.

Witness John A. Cooke, clerk of our said court, and the seal thereof, at Chicago, this 20th day of June, A. D. 1902.

(Seal.]

John A. Cooke,

Clerk.

180 1 Greenleaf, Ev. § 319; Norris v. Hassler, 23 Fed. 581; Ex parte Humphrey, 2 Blatchf. 228, Fed. Cas. No. 6,867.

181 1 Wharton, Ev. § 381; Fuller v. Prentice, 1 H. Bl. 49; Bowles v. Johnson, 1 W. Bl. 36.

182 United States v. Babcock, 3 Dill. 566, Fed. Cas. No. 14,484. See Lee v. Angas, L. R. 2 Eq. 59; Ex parte Brown, 72 Mo. 83, 37 Am. Rep. 426.

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The People of the State of Illinois, to G. H., Greeting:

We command you that, all business and excuses laid aside, you attend before the Honorable M. F. T., one of the judges of our circuit court of Cook county, on the first day of July, A. D. 1902, at ten o'clock in the forenoon, at his court room, in the county building, in Chicago, in said county, to testify and give evidence in a certain cause now pending and undetermined in said court, wherein A. B. is complainant and C. D. is defendant, on the part of the said C. D., and that you also diligently search for, inquire after, and bring with you a certain contract entered into on or about January 1, 1899, by and between L. M. and M. N. relative to the construction of a certain building at No. 550 State street, in the city of Chicago, together with all copies, drafts, and vouchers relating to the said document, and all other documents and paper writings whatsoever that can or may afford any information or evidence in said cause; and this you shall in no wise omit, under the penalty of the law. And have you then and there this writ.

Witness John A. Cooke, clerk of our said court, and the seal thereof, at Chicago, in said county, this 20th day of June, A. D. 1902.

[Seal.]

John A. Cooke,

Clerk.

§ 671. Compelling the attendance of witnesses out of the jurisdiction of the court.

No compulsory process can be issued to compel the attendance of witnesses to be examined who are resident out of the jurisdiction of the court. Therefore, no subpoena can be issued for that purpose. If the witness will not attend voluntarily, he cannot be examined, unless there is some statute of the state in which the witness resides compelling him to appear and tes

tify upon a foreign commission.183 Such statutory provisions

respecting commissions from other states are quite common.1

184

1831 Barbour, Ch. Pr. 301; Martin v. People, 77 Ill. App. 311; In re Bushnell, 19 Misc. Rep. 307, 44 N. Y. Supp. 257; Wharton, Conflict of Laws, § 723; In re Searls, 22 App. Div. 140, 48 N. Y. Supp. 61.

184 In Illinois, such a statute existed, but it was held to be unconstitutional, and that, therefore, attendance is voluntary. Puterbaugh v. Smith, 131 Ill. 199, 23 N. E. 428.