matters which ought to be considered. It may be said that in determining the questions presented to it the court below adopted and applied a faulty rule, and that whether it did or did not is a question of law reviewable in this proceeding. If a faulty rule was adopted and applied, it is nevertheless certain that this court may not in the exercise of its appellate jurisdiction examine the evidence which was presented de novo, apply the proper rule, and make the proper order. We have concluded, the questions having been briefed and argued, to give, so far as it is important, our construction of the statute which is involved, with a statement of the true rule to be applied in such cases, and, without vacating or setting aside the order of the circuit court for the county of Wayne, to give the plaintiffs in certiorari leave to move that court to revise its order if such revision, in view of the rule announced, is thought to be proper.

The court may require a witness to answer any legal and pertinent question. The limiting words, legal and pertinent, are not found in section 10138 or in section 10139. Undoubtedly, the sections must be read together. The judge who made the order was of opinion that it was not his duty to inquire with detail into the merits of the controversy, and determine that the testimony proposed to be taken could not be material to the issue, but that the true rule to be followed in such cases is

"That unless the matter of the interrogatories cannot possibly enter into the merits of the case, the question should be answered, and the objection disposed of on the trial."

In support of this he refers, in his written opinion, to Covey v. Campbell, 52 Ind. 157; In re Merkle, 40 Kan. 27 (19 Pac. 401); Wilcox v. Dodge, 53 Hun (N. Y.), 565 (6 N. Y. Supp. 368); Fry v. Trust Co., 2 Misc. Rep. 520, 22 N. Y. Supp. 386; Matter of Randall, 90 App. Div. (N. Y.) 192 (85 N. Y. Supp. 1089). It is not objected that any of the questions proposed are not legal if they are pertinent. The question debated is whether within

the meaning of the statute they are pertinent. The words "legal" and "pertinent " employed in this statute mean the tests which the courts use in determining whether testimony is or is not admissible. Testimony which is relevant is not necessarily admissible, because some more or less arbitrary rule of the law of evidence, some privilege of the witness, constitutional or other, some rule of public policy, may require its exclusion. Testimony may be relevant, and be admissible, and yet have slight probative value. The court in ruling that certain testimony is admissible says, in effect, that it tends to prove the fact to which it is directed, is fit to be considered by the jury for that purpose, and is not excluded by any rule of the law of evidence or by any other governing rule.

"The judicial tests of relevancy have this peculiar quality, in contrast with that of proof or evidence in general or in any other department of investigation: (1) The required probative value is somewhat higher than it need otherwise have been, because the purpose is to select only such material as is worth laying before the jury; (2) the required probative value, on the other hand, is far shorter than full proof, because the judge merely puts upon the material its ticket of admission as relevant, and leaves the weight, or final persuasive effect, for the jury to determine." 1 Wigmore on Evidence, § 29.

"Pertinent" has been defined:

'Belonging or related to the subject or matter in hand; fit or appropriate in any way; adapted to the end proposed; apposite; material; relevant." Webster's International Dictionary.

Under the head of "General rules as to relevancy," Mr. Greenleaf (Law of Evidence [15th Ed.], vol. 1, § 50) says:

"The production of evidence to the jury is governed by certain principles. * *The first of these is, that the evidence must correspond with the allegations, and be confined to the point in issue."

"It is not necessary, however," he says (section 51a), "that the evidence should bear directly upon the issue.

It is admissible if it tends to prove the issue, or constitutes a link in the chain of proof, although, alone, it might not justify a verdict in accordance with it."

The following definition of "relevancy " is taken from 2 Bouvier's Law Dictionary (Rawle's Revision), p. 866:

"Applicability to the issue joined. That quality of evidence which renders it properly applicable in determining the truth and falsity of the matters in issue between the parties to a suit. See 1 Greenl. Ev. § 49. Two facts are said to be relevant to each other when so related 'that according to the common course of events, one either taken by itself or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other.' Steph. Dig. Ev. art. 1. This is relevancy in a logical sense. Legal relevancy requires a higher standard of evidentiary force. It includes logical relevancy, and demands a close connection between the fact to be proved and the fact offered to prove it. The fact, however, that it is logically relevant does not insure admissibility; it must also be legally relevant. [United States v. Ross] 92 U. S. 281; it is, however, the tendency of modern jurisprudence to admit most evidence logically relevant. Chamb. Best Ev. 251, note."

The difficulty in most cases will be not so much in applying the test here indicated when the issues are understood, but in ascertaining what the issues are, or may be, in chief, and in rebuttal, and whether it is likely that collateral issues may arise. If it can be seen that the testimony offered may be admissible as affecting any issue involved in the suit in which it is offered, the question calling for it should be answered. This is a workable rule which in its application preserves the rights of witnesses. It imposes, it is true, a considerable burden upon the court called upon to enforce it to become informed respecting the issues involved, or likely to become involved, in a suit prosecuted in a foreign tribunal, so that it may determine whether testimony which is offered is legal and pertinent; but our statute is in conformity with a general rule of State comity. The consequences of the refusal of a witness to answer interrogatories, when ordered to do so by

the court, are considerable and ought not to be visited upon the witness for anything less than a refusal to do what the statute requires him to do. As to the parties to the litigation, they can be affected by the testimony only if the trial court admits it.

The rule indicated differs somewhat from the one stated and applied by the court below, requiring more care in its application-a positive rather than a negative determination. The opinions and expressions of other courts upon the subject are not harmonious. Of those referred to in the opinion filed below, the one in the Matter of Randall, 90 App. Div. (N. Y.) 192 (85 N. Y. Supp. 1089), is fairly indicated by the following words taken from the majority opinion of the court:

"It is enough for us now to say that the testimony sought to be elicited and the identification of evidence, which may be used, may be competent and may be received upon the trial; beyond reaching this conclusion, we are not required to go.

In Wilcox v. Dodge, 53 Hun (N. Y), 565 (6 N. Y. Supp. 368), the objection made upon the settlement of interrogatories was that certain of them should not be asked under section 829 of the Code, and they were stricken out. What the statute provision referred to is does not appear. It is to be inferred that it creates a privilege of the witness. In ordering the interrogatories restored, the Supreme Court said:

"The witness is a competent witness and his evidence can be excluded only upon objection taken that the case comes within the purview of section 829. And there are circumstances where during the progress of the trial the party seeking to avail himself of section 829 may be precluded from the benefit of the protection granted by this section because of the introduction of evidence upon his own part. Now it is impossible for the court to say whether during the progress of the trial such circumstances may not arise as will authorize the defendant to introduce this evidence. Such being the fact, although it may appear that such evidence cannot be admitted if the objection is taken

under section 829, yet it is not absolutely certain but that it may become competent in consequence of something that takes place upon the trial. Under these circumstances, therefore, there seems to be no reason for anticipating that which may or may not happen upon the trial. No harm can possibly be done by allowing the defendant to put these interrogatories, and if the proper objections are raised upon the trial, the judge presiding can afford ample protection to the plaintiffs. We think, therefore, that the interrogatories should be allowed subject to legal objections to be taken at the trial."

The headnote to the Indiana case is:

"A question in a deposition, which may in the course of the trial become relevant, should not, before the trial, be suppressed for alleged irrelevancy."

In Fry v. Trust Co., reported, also, in 2 Misc. Rep. 520, 22 N. Y. Supp. 386, the opinion contains the following:

"If, as it is reasonable to believe from the statements of the learned counsel for the appellant, there is a conflict of testimony, and the credibility of witness is involved, the plaintiff is bound to prepare for that emergency, and to endeavor to show that the greater weight is with the plaintiff. It is in view of these considerations, and of others, that in settling interrogatories the courts have used the word 'pertinent.' There may be combinations of circumstances which convince one that now or hereafter a question is not, and will not be, pertinent. But the general object is not merely to ask, Does the question seem pertinent in the present? but also how it would seem upon the trial. Such is the result of the decision in Uline v. Railroad Co., 79 N. Y. 175 [53 Am. Rep. 123, note]."

The Kansas decision does not seem to be in point. As sustaining generally the rule announced are many decisions of Federal courts where the proceeding was at law; and see, also, Brown v. Clark, 14 Pa. 469; Interstate Commerce Commission v. Baird, 194 U. S. 25 (24 Sup. Ct. 563); Ex parte Peck, 3 Blatchf. (U. S.) 113 (Fed. Cas. No. 10,885); In re Judson, 3 Blatchf. (U. S.) 148 (Fed. Cas. No. 7,563); United States v. Railroad Ass'n, (C. C.) 154 Fed. 268. While the precise question was not