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

§ 664. Amendment of depositions.

156

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.

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.158 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.159 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

156 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;

v. Wrenn, Bunb. 321.

Wilford v. Beaseley, 3 Atk. 501; Christian

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

$666. Admissibility of depositions without cross-examination. The rule at common law is that no evidence shall be admitted but what is or might be under the examination of both parties.161 It seems, however, that, in equity, a deposition is not, of course, inadmissible in evidence because there has been no cross-examination, and no waiver of the right; for if the witness, after his examination on the direct interrogatories, should refuse to answer the cross interrogatories, the party producing the witness will not be deprived of his testimony, for, upon application of the other party, the court would have compelled him to answer. So, after a witness was examined for the complainant, but, before he could be cross-examined, he died, the court ordered his deposition to stand, though the want of the cross-examination ought to abate the force of his testimony.162 "In

(N. Y.) 339. The English practice was thus stated by Mr. Gresley: "Upon the same principle, the evidence taken in cross suit is constantly ordered to be read in the original suit, and vice versa. As Sir John Leach, when vice-chancellor, expressed himself: "Where there is cause and cross cause, there the order is extremely useful, because it saves the necessity of examining the witnesses in both causes, and the depoitions are read without more, if taken in both causes.' And a motion to this effect was allowed, even although the cross bill had been dismissed; but it is far from being a motion of course. Depositions in an original cause cannot be read in the cross cause if the point in issue is varied; and the depositions in a cross cause taken after publication of those in the principal cause are not admissible at the hearing of the latter." Gresley, Eq. Ev. 131. See Williams v. Bloodhead, 1 Sim. 152; Lubiere v. Genou, 2 Ves. Sr. 579; Christian v. Wrenn, Bunb. 321; Wilford v. Beaseley, 3 Atk. 501.

161 Scott v. McCann, 76 Md. 47, 24 Atl. 536, citing Cazenove v. Vaughan, 1 Maule & S. 4; Kissam v. Forrest, 25 Wend. (N. Y.) 651; 1 Greenleaf, Ev. § 554.

162 1 Greenleaf, Ev. § 554, and § 445, note, quoted approvingly in Scott v. McCann, 76 Md. 47, 24 Atl. 536. See, also, 2 Taylor, Ev. § 1323, pp. 1271-1272, citing Davies v. Otty, 35 Beav. 208; Abadom v. Abadom, 24 Beav. 243. By strong preponderance of authority, it seems to be admis sible in equity cases to receive the testimony of a witness whose crossexamination has been prevented or cut off by death, where such cross-examination has not, in any way, been prevented by the fault of the party producing the witness, or of the witness himself. Scott v. McCann, 76 Md. 47, 24 Atl. 536. "So, where the direct examination of an infirm

equity, a deposition is not, of course, inadmissible in evidence, even if there has been no cross-examination, and no waiver of the right. Thus, if a witness, after being examined on the direct interrogatories, should refuse to answer the cross-interrogatories, the party producing the witness will not be deprived of the benefit of his direct testimony; for, upon application to the court, the witness would have been compelled to answer. * * *163 But if the witness should secrete himself to avoid a cross-examination, there the court would, or at least might, suppress the direct examination.164 In such a case, a cross-examination is still possible; and the very conduct of the witness in secreting himself has a just tendency to render his direct examination suspicious."165 No deposition will be admitted to be read against a party brought in after it was taken, or too late to exercise the right of cross-examination.166

§ 667. Suppressing depositions.

Under the English practice, immediately after publication had passed, it was the duty of the solicitor to examine carefully the evidence of the adverse party, and to ascertain whether any

witness was taken by consent of parties, but no cross interrogatories were ever filed, though the witness lived several months afterwards, and there was no proof that they might not have been answered if they had been filed, it was held that the omission to file them was at the peril of the party, and that the deposition was admissible. A new commission may be granted to cross-examine the plaintiff's witnesses abroad, upon subsequent discovery of matter for such examination. But where the deposition of a witness, since deceased, was taken, and the direct examination was duly signed by the magistrate, but the cross-examination, which was taken on a subsequent day, was not signed, the whole was held inadmissible." 1 Greenleaf, Ev. § 554; Gass v. Stinson, 3 Sumn, 98, Fed. Cas. No. 5,262; King of Hanover v. Wheatley, 4 Beav. 78; Reg. v. France, 2 Moody & R. 207.

163 Courtenay v. Hoskins, 2 Russ. 253.

164 Flowerday v. Collet, 1 Dickens, 288.

165 Story, J., in Gass v. Stinson, 3 Sumn. 98, Fed. Cas. No. 5,262, cited approvingly in Scott v. McCann, 76 Md. 47, 24 Atl. 536. See, also, Arun. del v. Arundel, 1 Ch. Rep. 90; O'Callaghan v. Murphy, 2 Schoales & L. 158; Nolan v. Shannon, 1 Moll. 157; Copeland v. Stantor, 1 P. Wms. 414. 166 3 Greenleaf, Ev. § 326; Clary v. Grimes, 12 Gill & J. (Md.) 31.