Act of January 10, 1818-1anuary 1, 1820. R. C. ch. 131. be void. Oct. 1777, c. 17, 9 Stat. Larg. 410; 1792, c. 141; Jan. 6, 1800, c. 256, R. C. See 1 Wm. 4, c. 22, § 4; and Grinnell v. Cobbold, 1 Sim. 546. 12. § 19. If any party in a suit at common law or in chancery, shall make oath that he verily believes his claim or defence, (as the case may be,) or a material point thereof, depends on a single witness, the court, or the clerk in vacation, may award a commission to take the deposition of such witness de bene esse, although he or she be not about to depart the country, nor under any disability;(k) the party in such case, giving reasonable notice, of the time and place of taking such deposition, to the adverse party. Oct. 1777, c. 17; 1792, c. 141, R. C. 13. § 17. Whenever any party to a suit depending in any court of law shall swers, contained in a deposition offered by the plaintiff, to questions of a leading character:-the court rejected the motion. By the court of appeals: the court is of opinion, that although the questions were leading questions, calculated to inform the witness of the answers expected by the party propounding them, and therefore improper; yet, after the jury were sworn, it would have been irregular to suppress the depositions, there being no objection to the competency of the witness. Before the jury were sworn, on motion, the questions and answers objected to ought to have been suppressed by the court. Afterwards, and upon the trial, the objections could only go to the credit of the witness. See Sheeler v. Speer, 3 Binney, 130, and Lessee of Snyder et al. v. Snyder, 6 Binney, 483. "I wish that objections to questions as leading, might be a little better considered before they are made. It is necessary, to a certain extent, to lead the mind of the witness to the subject of inquiry. If questions are asked, to which the answer yes or no would be conclusive, they would certainly be objectionable, but in general no objections are more frivolous than those which are made to questions, as leading ones." Pr. Ld. C. J. Ellenborough, in Nichols v. Dowding et al. 1 Stark. 81. A commission directed to five persons, any three of whom to act, if the whole cannot, cannot be executed by one; and a return by one, that three others were present, when the commission was executed, will not be a sufficient authentication. The return should be certified by three at least. Marshall v. Frisbie, 1 Munf. 247; and see Willings & F. v. Consequa, 1 Pat. 309. 'Tis not essential to the validity of a deposition, that it be signed by the deponent. Barnett et al. v. Watson et al. 1 Wash. 380; Moulson v. Hargrave, 1 Serg. & Raw. 201. Under what circumstances a commission may be presumed to have issued, though none appear in the papers. See Givens et al. v. Manns, 6 Munf. 193; and for other liberal intendments, in support of the execution and return thereof, see S. C. Notice to the adverse party of the time and place of taking the deposition, should appear to have been duly given, whether the deposition be de bene esse, or in chief; and the fact should appear by the record of the court, in which the deposition was read. Collins v. Lowry et al. 2 Wash. 76. To authorize the reading of depositions, it should appear in the record in what suit, and by what authority they were taken, and that the witnesses could not attend at the trial. Butts v. Blunt et al. 1 Randolph, 255, 257-8. Though the record of the court below does not shew that a commission issued, or that notice was given; the court of appeals will presume that the deposition was properly taken, there being no objection stated in the bill of exceptions touching the regu larity. Thompson & Co. v. Wiley, 6 Rand. 242. And if the bill of exceptions does not state that the deposition was objected to for want of notice of the time of taking it, that objection will not be regarded on the appeal, and in such case, all papers referred to by the deposition will be considered as part of the record. Mandeville v. Perry, 6 Call, 78. Where a witness has given evidence in a suit, in which a new trial is granted, and the witness dies before the second trial, the substance of his testimony may be proved on the second trial, 'tis not essential that his very words be proved. Caton et al. v. Lenox et al. 5 Rand. 31; Cornell et al. v. Green, adm'r, 10 Serg. & Raw. 14, and Mr. Starkie in his Treat. on Evid. P. 2d, p. 280; see Wilbur v. Selden, 6 Cowen, 162. In civil cases, what a witness swore to on a former trial of the same issue, between the same parties, may be given in evidence, if the witness die before the second trial. It seems that this rule does not apply to a witness who has removed beyond the jurisdiction of the court. Wilbur v. Selden, 6 Cowen, 162. This rule does not extend to criminal cases. William R. Finn's case. Error to judgment of sup. court, Kanhawa, gen. ct. November T. 1827, 5 Rand. 701, 708. See Wood's case, 3 Wash. C. C. R. 440. (k) See Shirley v. Ferrers, 3 Peere Wms. [77]; Pearson v. Ward, 1 Cox's Cas. in Eq. 177, and the remarks of Roane, J. in Minnis v. Echols, 2 H. & M. 35-6; Angell v.. Angell, 1 Sim. & Stew. 83, 92-3. Act of January 10, 1818-January 1, 1820. R. C. ch. 131. desire to take the deposition of any witness, in the United States, or in the territories thereof, or in the district of Columbia, who resides out of this commonwealth, or who is engaged in military service, or about to go into military service, or who from any other cause cannot be compelled, by the proper process, to attend the court, and give evidence in person, it shall be lawful for the clerk, at his office, on affidavit of the fact, to issue a commission to take the deposition of such witness. In case of a witness residing out of the commonwealth, the commission shall be directed to any two justices of the peace of the state, territory or district in which the witness may be, who will certify themselves to be such; and the deposition taken in pursuance thereof, upon reasonable notice to the adverse party, shall be read in chief, as evidence in the cause. In the case of a witness within the commonwealth, the commission shall issue in the usual form; and the deposition taken in pursuance thereof, upon reasonable notice to the adverse party, shall be read in evidence, if the personal attendance of the witness cannot be had. Dec. 27, 1814, c. 31. 14. § 18. Upon affidavit that any witness resides beyond sea, or in any foreign country, the court wherein the suit is depending may, on request of either party, direct a commission to issue from the clerk's office directed to such commissioners, not exceeding five, as shall be nominated and agreed upon by the parties litigant; for which purpose, the party applying for a commission in such cases shall give the adverse party, his attorney() or agent, ten days previous notice of the day of his intended application to the court; (m) without which, no commission shall issue; and if the adverse party, his attorney or agent, shall not attend for the purpose, in that case the party praying the commission may nominate the commissioners himself; any three of whom in either case may proceed to execute the said commission: Provided nevertheless, That reasonable notice shall be given to the party, of the time and place of taking such depositions. The costs of giving notices, as aforesaid, as well as of taking any deposition or depositions, in any or either of the United States, or territories, or district thereof, or beyond sea, or in any foreign country, may be taxed by the court against the party who in their opinion ought in justice to pay the 1792, c. 141, R. C. See 1 Wm. 4, c. 22. same. Act of December 21, 1818-January 1, 1820. R. C. ch. 66. 15. § 104. If any party to a suit depending in equity, shall desire to take the deposition of any witness residing out of the commonwealth, it shall be lawful for the clerk of the court, in which such suit shall be depending, upon application of the party, to issue a commission to any two justices of the peace, in the state, territory, or dominion, in which the witness may reside; and a deposition taken in pursuance thereof, upon reasonable notice to the adverse party, shall be read as evidence in the cause. If the justices taking such deposition reside within the United States, or any territory thereof, their own certificates, that they are justices, shall be sufficient evidence of the fact; and if they reside in a foreign country, their official character shall be verified by such testimonials, as the court, in which the deposition is offered, shall have prescribed. Feb. 26, 1816, c. 8. Act of April 16, 1831, ch. 11, Ses. Acts 1830-31. Also Sup. R. C. ch. 109, p. 161. 151. 68. Any party, plaintiff or defendant, in any action at law, pending in any county or corporation court, or circuit superior court, wishing a dission, will not cure the omission. See Blincoe v. Berkeley, 1 Call, 405, 411, and Clay v. Williams, 2 Munf. 123. (1) See note (i). (m) These preliminary steps must be taken, and even the appearance of the adverse party at the execution of the commis Act of April 16, 1831, ch. 11, Ses. Acts 1830-31. Also Sup. R. C. ch. 109, p. 161. covery from the adverse party, to be used in evidence at the trial of such action, may file written interrogatories to such party, and call upon him to answer the same in solemn form, on his oath or affirmation; and if upon such interrogatories being filed, it shall appear to the court by the oath of the party filing the same, or otherwise, that answers to such interrogatories will be material evidence in the cause, and that the interrogatories themselves are pertinent, and such as the adverse party would be bound to answer unto upon a bill of discovery in a court of chancery, the court shall allow such interrogatories, and shall make an order requiring the adverse party to answer the same in writing, and in solemn form, on his oath or affirmation; and the answers to such interrogatories, being so given and filed, shall be evidence at the trial of the cause, in the same manner, and to the same purpose and extent, and upon the same conditions, in all respects, as if they had been procured upon a bill in chancery for discovery, but no further or otherwise. And if the party to whom interrogatories shall be so propounded, and who shall be so required by the court to answer the same, shall, after reasonable notice, and a copy thereof served on him, fail to make answers to the same in manner aforesaid, or shall answer the same evasively, the court may attach him, and compel him to answer in open court; or it may continue the cause, and require more explicit and direct answers; or, if the party to whom such interrogatories shall be propounded, be defendant in the action, it may set aside his plea or pleas, and give judgment against him as by default; or if he be plaintiff, may order his suit to be dismissed with costs; as shall, in the discretion of the court, seem most just and proper: Provided, That nothing herein contained shall preclude any party to such action from exhibiting his bill in chancery for a discovery, against any adverse party as heretofore, if he shall elect so to do; but any party having elected to file such interrogatories, shall not be allowed afterwards to exhibit a bill in equity for discovery touching the same matters. (d) 152. § 69. If any party, plaintiff or defendant, in any action at law, pend (d) This section has been judicially construed. "Bill in chancery for discovery," means the pure bill of discovery, as understood in equity practice. Therefore, the party making the discovery, be he plaintiff or defendant at law, cannot, at the trial, introduce his answers in evidence to the jury, though they have been drawn from him by interrogatories; for a defendant to a bill of discovery can never introduce his answer to that bill as evidence on a trial at law. The party obtaining answers to interrogatories, may waive introducing them to the jury; and, if he does introduce them, they have the effect only of a confession-they must all go to the jury, but not as conclusive evidence as to the points of the interrogatories to which they are responsive; they are to be considered by the jury, in connexion with the countervailing testimony, which may be adduced by the interrogating party, and such weight given to them as the jury may think them entitled to. This is the true construction of this section as solemnly settled by a full court of appeals, after two elaborate arguments, in a case of which the following is the reporter's abstract: A defendant in an action at law, wishing a discovery from the plaintiff, files written interrogatories under this section, (68,) to which answers are given. The an- Lord Wynford, (C. J. Best,) introduced a 4 See M Farland of Hlender & Seigh 492 to the The dis very here pure bill of discovery" of Equity to which no oath Carr Jus.. Act of April 16, 1831, ch. 11, Ses. Acts 1830-31. Also Sup. R. C. ch. 109, p. 161. ing in any county or corporation court, or in any circuit superior court, shall make oath, that he verily believes that there is any instrument of writing, or any book of accounts, or other written evidence, in possession of the adverse party, containing material evidence for him, touching the matters in controversy in such action, and that he hath no means of proving the contents of such instrument of writing, or of such book of accounts, or of supplying such written evidence, so alleged to be in possession of such adverse party, but by the discovery and production of the same by such adverse party; and shall specify with reasonable certainty the instrument of writing, or the part of such book of accounts, or the other written evidence, which he so believes to contain material evidence for him, touching the matter in controversy in such action; the court shall thereupon make an order, requiring such adverse party to answer and say upon his oath or affirmation, in solemn form, whether he hath in his possession any such instrument of writing, or book of accounts, or other written evidence in such affidavit specified, or any of the like import; and if any such he hath in his possession, to produce such original instrument of writing, or an exact and fair transcript of the part of the book of accounts, or the original of such other written evidence called for, as the case may be; and if such adverse party, after reasonable notice, and a copy of such affidavit and order requiring him so to answer, being served upon him, fail or refuse so to answer, or shall answer the enquiry so propounded to him evasively, or acknowledging that he hath in his possession the instrument of writing, or the books of accounts, or other written evidence specified in the said affidavit, or any written evidence of the like import, shall fail or refuse to produce the same, the court may thereupon attach him, and compel him to make such answer, or to produce such written evidence admitted to be in his possession; or it may continue the cause and require a more explicit answer, and the production of the written evidence in his possession so called for; or if the party so required to produce such written evidence be defendant in the action, it may set aside his plea or pleas, and give judgment against him as by default; or if he be plaintiff, it may order his suit to be dismissed with costs, as shall in the discretion of the court seem most just and proper: Provided, That nothing herein contained shall preclude any party to such action from exhibiting his bill in chancery for a discovery, and to compel the production of such written evidence in the possession of the adverse party, and for relief in equity, if he shall elect so to do, or if, having called for such evidence in the court of law in manner aforesaid, the adverse party shall deny that such written evidence is in his possession, and the party requiring the production thereof shall be thereby precluded from obtaining the same. Act of January 10, 1818-January 1, 1820. R. C. ch. 131. 16. § 21. When any commission shall be obtained to take the deposition. of a witness in a suit depending in any of the courts of this commonwealth, where the plaintiff or defendant in such suit doth not reside within the same, or hath not an attorney (n) within the same, to whom notice of the time and place of taking such deposition can be given, then the person obtaining such commission, having published in some public newspaper printed within this commonwealth, four weeks successively, the time and place, when and where the witness is to be examined, and the name of the witness, together with the names of the parties to the suit in which such witness is to be examined, it shall and may be lawful for any plaintiff or defendant, as aforesaid, to proceed to take any deposition authorized by the commission issuing from the court, (n) See note (i). Act of January 10, 1818-January 1, 1820. R. C. ch. 131. agreeably to law, where the suit depends as aforesaid; and such deposition, when taken and returned to the clerk's office, agreeably to the rules of the court from whence the commission issued, shall there be filed, and allowed to be read in evidence, in the same manner and under the like restrictions, as if notice had been duly given to the opposite party; any law, usage or custom, to the contrary in any wise, notwithstanding. And the printer may demand and receive the sum of two dollars for publishing such advertisement four weeks, which shall be taxed in the bill of costs, if the party chargeable therewith shall prevail in the suit. Oct. 1783, c. 26, 11 Stat. Larg. 342; 1792, c. 141, R. C. 17. § 9. Every witness so summoned, [ante, No. 8, § 7,] to appear at any county court, or superior court of law, or to attend commissioners, referees, or other persons, for the purpose of giving testimony, or upon any survey of lands, and being an inhabitant of the same county, shall be paid by the person or persons at whose suit the summons issued, fifty-three cents, for every day's attendance upon such summons, and ferriages; and every person residing in, and summoned out of, another county, shall have the said allowance of fiftythree cents per day for attendance, and be paid for travelling to the places of attendance, four cents per mile, and the same for returning, and also their ferriages. 1786, c. 14, 12 Stat. Larg. 267; 1792, c. 141, R. C.; Feb. 10, 1808-Mar. 1, 1809, c. 121, ed. 1808. 18. § 10. In all cases, when any person or persons shall be summoned as a witness or witnesses, in any prosecution for a crime or misdemeanour, to attend any court out of the county or counties in which he, she, or they may reside, the same allowance shall be made him, her or them, for such attendance, as is allowed by law to witnesses attending the superior courts of law. (Jan. 21, 1801, c. 275, R. C.) [Where witnesses may hereafter attend in behalf of the commonwealth, in cases of misdemeanour, or prosecutions for breaches of penal laws, and it shall appear that the defendant is acquitted, or by reason of insolvency, or other cause, no costs are recovered, it shall be lawful for the auditor to issue his warrant for, and on account of, the attendance of such witnesses, the same being duly certified by the clerks of the respective courts. Feb. 17, 1823, c. 9, § 5.] [By act of January 18, 1827, c. 25, it is enacted, "That hereafter any person residing out of this commonwealth, and who shall attend any court in this commonwealth, as a witness on any plea of the commonwealth, may, at the discretion of such court, be allowed the same compensation for attendance, travelling and ferriages, as if he had resided within this commonwealth, to be paid as other witnesses are paid.” By act of February 12, 1829, c. 16, it is enacted, "That no person summoned as a witness for the commonwealth, in any prosecution for a misdemeanour, where there shall have been a prosecutor, shall be paid out of the treasury for his or her attendance, whether the prosecutor or defendant be insolvent or not, unless the court, at the term in which the same may be tried, shall certify that such prosecution was required by a due regard to the laws or interests of the commonwealth." By act of April 6, 1838, c. 86, it is enacted, "That witnesses in commonwealth's prosecutions, either on behalf of the commonwealth or of the person or persons accused, who travel over and above fifty miles to attend the court before which they shall hereafter be summoned, or be recognized to appear, may, in lieu of the compensation now allowed by law, be allowed by order of the court, the sum of one dollar per day for attendance, and be paid for travelling to the place of attendance six cents per mile, and the same for returning, to be paid by the party or parties on whose behalf the summons issued, or |