to lay down the limitation.' "142 It is deemed to be within the inherent power of all courts of justice to issue letters rogatory, for, by the law of nations, courts of justice of different countries are bound mutually to aid and assist each other for the furtherance of justice.143

§ 661. Form of letters rogatory.

State of New York-ss.

The People of the State of New York, to Any Judge or Tribunal Having Jurisdiction of Civil Causes at Havana, Greeting: Whereas, a certain suit is pending in our court of chancery, in which W. K. is plaintiff, and J. T., etc., are defendants, and it has been suggested to us that there are witnesses residing within your jurisdiction, without whose testimony justice cannot be completely done between the said parties, we therefore request you that, in furtherance of justice, you will, by the proper and usual process of your court, cause such witness or witnesses as shall be named or pointed out to you by the said parties, or either of them, to come before you, or some competent person by you for that purpose to be appointed and authorized, at a precise time and place, by you to be fixed, and there to answer, on their oaths and affirmations, to the several interrogatories hereto annexed; and that you will cause their depositions to be committed to writing, and returned to us under cover, duly closed and sealed up, together with these presents. And we shall be ready to do the same for you in a similar case when required.

Witness R. H. W., our chancellor at the city of New York, this day of

144

142 Kuehling v. Leberman, 9 Phila. (Pa.) 160-163, quoting Nelson v. United States, Pet. C. C. 237, Fed. Cas. No. 10,116.

143 State v. Bourne, 21 Or. 218, 27 Pac. 1048, citing 1 Greenleaf, Ev. § 320; Weeks, Depositions, § 128; Kuehling v. Leberman, 9 Phila. (Pa.) 160. For practice in taking such depositions, see Wharton, Conflict of Laws, § 722; Nelson v. United States, Pet. C. C. 235, Fed. Cas. No. 10,116; Kuehling v. Leberman, 9 Phila. (Pa.) 160; In re Jenckes, 6 R. I. 18; Union Square Bank of City of New York v. Reichmann, 9 App. Div. 596, 41 N. Y. Supp. 602; Kuhtman v. Brown, 4 Rich. Law (S. C.) 479.

144 The foregoing form is taken from 3 Hoffman, Ch. Pr. cxi. Other forms will be found in 2 Barbour, Ch. Pr. 446; State v. Bourne, 21 Or. 218, 27 Pac. 1048; Nelson v. United States, Pet. C. C. 236, Fed. Cas. No. 10,116. For form of order appointing a commissioner to take the desired depositions under such letters; of the summons to a witness; of the order to show cause based on an affidavit of disobedience by such

§ 662. Depositions.

A deposition is the testimony of a witness reduced to writing in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provisions of some statute law, to be used on a trial of some question of fact in a court of justice.145 Depositions were not, formerly, admitted in common-law courts of England, and were afterwards admitted from necessity, where the oral testimony of a witness could not be obtained. In the English court of chancery this was the means by which testimony was taken.146 Such practice has, however, been largely changed by statute or rule of court in most jurisdictions, and therefore it is not within the scope of this work to go into any specific consideration of the manner of taking evidence by deposition.147 In regard to the admissibility of depositions in equity, it is held that where depositions, not legally entitled to be read, are admitted by consent of parties, this consent is coextensive with the cause, and, under it, the depositions may be read at every future hearing of the same cause, whether it be in a higher court on appeal, or in the same court after the decree has been reversed in the appellate court, and the cause remanded for further proceedings. 148 Depositions read at the hearing are also admissible in evidence on the trial of the issue out of chancery.149 It is a general rule that a deposition, once taken, cannot be retaken

witness of such process; of the answer of such witness to the rule to show cause; and of an order committing such witness for contempt, see State v. Bourne, 21 Or. 218, 27 Pac. 1048.

145 Bouvier, Law Dict.; State v. Dayton, 23 N. J. Law, 49; Fuller v. Hodgdon, 25 Me. 247.

146 Flavell v. Flavell, 20 N. J. Eq. 211; Brown v. Southworth, 9 Paige (N. Y.) 351.

147 For a full consideration thereof, see 3 Greenleaf, Ev. §§ 319-326, 342, 343.

148 3 Greenleaf, Ev. § 326; Vattier v. Hinde, 7 Pet. (U. S.) 252. If they have once been read without objection in the court of appeal, it is evidence of consent. 3 Greenleaf, Ev. § 326.

149 3 Greenleaf, Ev. § 326; Austin's Adm'x v. Winston's Ex'x, 1 Hen. & M. (Va.) 33.

without leave of the court, which will always be granted whenever justice seems to require it.1

150

§ 663. Answers, depositions, and other proceedings in another

Upon special order, the court will permit the parties to read, at the hearing, any answers, depositions, or other proceedings taken in another cause; and this, without requiring the foundation first to be laid by proving the bill and answer in the cause in which the depositions or other proceedings were taken. Complete mutuality or identity of all the parties is not necessary. It is sufficient if the matters in issue were the same in both cases, and the party against whom the evidence is offered, or those under whom he claims, had full power to cross-examine the witnesses.151 It is not necessary to this end that the parties to the suit in which the proceedings in the other cause are desired to be used should have sustained the relations of plaintiff and defendant in the former suit. It is sufficient that they were parties to the suit, though on the same side.152 Depositions taken in a suit which is afterwards dismissed by the complainant may be read in a subsequent suit between the same parties, for the same cause, where the same witnesses cannot again be had.153

150 McKell v. Collins Colliery Co., 46 W. Va. 625, 33 S. E. 765; Fant v. Miller, 17 Grat. (Va.) 187; Van Hook v. Pendleton, 2 Blatchf. 85. Fed. Cas. No. 16,852; Booth v. McJilton, 82 Va. 827.

151 3 Greenleaf, Ev. § 341. See Eade v. Lingood, 1 Atk. 203; Coke v. Fountain, 1 Vern. 413; Nevil v. Johnson, 2 Vern. 447; Roberts v. Anderson, 3 Johns. Ch. (N. Y.) 371; Paynes v. Coles, 1 Munf. (Va.) 373.

152 3 Greenleaf, Ev. § 341; Askew v. Poulterers' Co., 2 Ves. Sr. 89. See Chamley v. Dunsany, 2 Schoales & L. 690. Depositions taken in another suit between the same parties or other parties may be read at the hearing after an order is obtained for that purpose. 3 Greenleaf, Ev. § 326; Brooks v. Cannon, 2 A. K. Marsh. (Ky.) 525. Evidence taken in the exchequer was allowed to be read between the same parties litigant in chancery. 3 Greenleaf, Ev. § 343; Magrath v. Veitch, 1 Hogan, 127. So of an examination in the admiralty court. 3 Greenleaf, Ev. § 343; Watkins v. Fursland, Toth. 193.

153 3 Greenleaf, Ev. § 343; Hopkins v. Stump, 2 Har. & J. (Md.) 301

If a bill in equity be dismissed merely as being in its substance unfit for a decree, the depositions, when offered as secondary evidence in another suit, will not on that account be rejected. But if it is dismissed for irregularity, as, if it came before the court by a bill of revivor, when it should have been by an original bill, so that, in truth, there was never regularly any such cause in court, and consequently no proofs, the depositions cannot be read; for the proofs cannot be exemplified without bill and answer, and they cannot be read at law, unless the bill on which they were taken can be read.154 But ancient depositions, given when it was not usual to enroll the pleadings, may be read without antecedent proof. They may also be read upon proof of the bill, but without proof of the answer, if the defendant is in contempt, or has had an opportunity of crossexamining, which he chose to forego. And no proof of the bill or answer is necessary, where the deposition is used against the deponent as his own declaration or admission, or for the purpose of contradicting him as a witness. So, where an issue is directed out of chancery, and an order is made there for the reading of the depositions upon the trial of the issue, the court of law will read them upon the order, without antecedent proof of the bill and answer, provided the witnesses themselves cannot be produced.155 In regard to depositions, it is to be observed that, though informally taken, yet, as mere declarations of the witness, under his hand, they are admissible against him, wherever he is a party, like any other admissions, or to contradict and impeach him, when he is afterwards examined as a witness; but as secondary evidence, or as a substitute for his testimony viva voce, it is essential that they be regularly taken, under legal proceedings duly pending, or in a case and manner provided by law. And though taken in a foreign state, yet, if

154 1 Greenleaf, Ev. § 552; Backhouse v. Middleton, 1 Ch. Cas. 173; Hall v. Hoddesdon, 2 P. Wms. 162; Vaughan v. Fitzgerald, 1 Schoales & L. 316. See, also, 1 Greenleaf, Ev. § 516.

155 1 Greenleaf, Ev. § 516; Bayley v. Wylie, 6 Esp. 85; Cazenove v. Vaughan, 1 Maule & S. 4; Carrington v. Cornock, 2 Sim. 567; Highfield Peake, 1 Moody & M. 109; Palmer v. Aylesbury, 15 Ves. 176.

taken to be used in a suit pending in another jurisdiction, the forms of the latter jurisdiction, and not of the foreign law, must be pursued; but if the deposition was taken in perpetuam, the forms of the law under which it was taken must have been strictly pursued, or it cannot be read in evidence.156

§ 664. Amendment of depositions.

In cases of clear mistake involving only a verbal alteration, the court, instead of ordering a re-examination of the witness, will sometimes permit the deposition to be amended in open court.157

§ 665. Depositions in cross causes.

158

In regard to depositions taken in cross causes, under the English chancery practice, it was requisite that the witnesses be examined before publication in the original cause was passed; otherwise, the depositions were liable to be suppressed.1 If the point in issue in both cases is the same, and the depositions in the cross cause were taken before either party had examined witnesses in the original cause, they might be read in the latter cause. Depositions taken in a cross cause to matters not put in issue in the original cause will be read, notwithstanding they were taken after publication had passed in the original cause. On the same principle, where depositions taken in the original cause were admitted to be read in a cross cause, such parts only were admissible as were pertinent to the issue in the original cause.160

159

158 Patterson v. Fagan, 38 Mo. 70. See Evans v. Eaton, 7 Wheat. (U. S. 426.

157 3 Greenleaf, Ev. § 347. For instances thereof, see Shaw v. Lindsey, 15 Ves. 381; Kirk v. Kirk, 13 Ves. 285; Rowley v. Ridley, 1 Cox, 281; Griells v. Gansell, 2 P. Wms. 646; Denton v. Jackson, 1 Johns. Ch. N. Y. 526; Curre v. Bowyer, 3 Swanst. 357; Darling v. Staniford, 1 Dickens, 358.

158 3 Greenleaf, Ev. § 342; Pascall v. Scott, 12 Sim. 550.

159 3 Greenleaf, Ev. § 342; Wilford v. Beaseley, 3 Atk. 501; Christian v. Wrenn, Bunb. 321.

160 3 Greenleaf. Ev. § 342; Underhill v. Van Cortlandt, 2 Johns. Ch