of long standing, so that the commission may be presumed to have been lost, in which case they are evidence by themselves; but, in either case, whether the depositions are of a recent or ancient date, there is no occasion to produce the bill and answer.1

4. It has been before stated, that the Court of Chancery pays attention to its own proceedings, although they are not actually recorded.2 In illustration of which it may be stated, that all the proceedings of the Court which are required as evidence in the cause, may be used as such, without further testimony to establish them than the production of the proceeding itself, or of an office copy of it, signed by the officer in whose custody such proceeding properly is, according to the practice of the Court.

But although it is the general rule of the Court to pay attention to its own proceedings, it will not in all cases permit them to be read at the hearing of a cause, without an order specifically authorizing the party to read them. The cases in which the proceedings of the Court may be read without an order are confined to those in which they have taken place in the cause itself, and to acts of the Court, such as decrees or orders made in another cause, between the same parties.8

To entitle a party to read, at the hearing, the answers or depositions, or any other proceedings taken in another cause, an order is necessary, even though the suit be between the same parties.* This distinction appears to have arisen from the former practice of the Court, which, in conformity with the practice of Courts of Law, required that when any proceedings in one cause were to be given in evidence in another, the foundation for the production of them should be laid by proving the bill and answer in the cause in which they were taken; gradually, however, this rule has been relaxed, and as the Court will now, as we shall hereafter see, in directing an issue to be tried at Law, order the depositions in the cause to be read at the trial of the issue, so as to dispense with the strict proof which would otherwise be required of the bill and answer, so in the case of reading its own proceedings in another

1 Phil. & Amos, 629.

Ante, p. 710. The final decree of a Court of Equity may be given in evidence in another suit, although such decree has not been formally enrolled. Bates v. Delavan, 5 Paige, 299.

• Hand. 114. See 1 Phil. Ev. (Cowen & Hill's ed. 1839) 363, 364, note, 656 in 2 ib. 934; Green v. Green, 5 Ham. (Ohio,) 278.

suit, it will dispense with the necessity of laying the regular foundation for such proof by the production of the bill and answer, by making an order, that the party shall be at liberty, at the hearing, to read the depositions or other proceedings in the former cause: such an order is not necessary to entitle a party to read a decree or order, because, formerly, decrees and orders recited the pleadings upon which they were founded; and, even at Common Law, no further proof of them was required.1

It is to be observed, that a decree or order of the Court of Chancery, determining a matter of right, is good evidence as to that right, not only against the party against whom the decree was made, but against all those claiming under him.2 But although a decree between other parties cannot be read as evidence, yet it may be read as a precedent. And it is not in any case necessary, in order that it should be admissible as evidence, that the parties to it should have filled the relative situations of plaintiff and defendant; if the present plaintiff and the defendant were co-defendants in the former cause, the decree in that cause may be read, though not as conclusive evidence. "It frequently happens," observes Lord Hardwicke, "that there are several defendants, all claiming against the plaintiff, and having also different rights and claims. among one another: the Court then makes a decree settling the rights of all the parties; but a declaration for that purpose could not be made, if this objection (viz. to receiving the decree as evidence, because made between co-defendants) holds, which would be very fatal, as it would occasion the splitting one cause into several." 5

The depositions of witnesses, which have been taken in another cause between the same parties,6 may, as well as other proceedings 1 Phil. & Amos, 619.

* Borough v. Whichcote, 3 Bro. P. C. 595. See 1 Greenl. Ev. § 522, 523, 536; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 358, note, 639 in 2 ib. 915 et seq. For the mode of proving decrees and answers in Chancery, see 1 Greenl. Ev. § 511, 512. A decree in Chancery, being the act of a Court of a sister State, must be authenticated according to the statute of the United States, 1790, May 26, 1 U. S. Stat. at Large, 122 (1 Greenl. Ev. § 504), to be admissible in evidence. Barbour v. Watts, 2 A. K. Marsh. 290.

* Austen v. Nicholas, 7 Bro. P. C. 9.

• Poulterer's Company v. Askew, 2 Ves. 89.

Poulterer's Company v. Askew, 2 Ves. 89. See also Chamley v. Lord Dunsany, 2 Sch. & Lef. 710; Farquharson v. Seton, 5 Russ. 45.

in another cause, be read at the hearing by order. Thus evidence which has been taken in a cross cause may, by order, be read at the hearing of the original cause; and vice versa, provided the point in issue is the same in each case. Where the matter in issue is not the same, the depositions taken in one cause cannot be read in the other.

Moreover, in order to entitle a party to read the depositions taken in another cause, it is necessary that the person against whom they are offered in evidence, or the person under whom he claims, should have been a party to such other cause. Where the person against whom the evidence was offered was neither a party to such other cause, nor privy to a person who was a party, the depositions taken in that cause cannot be read. Thus, where a father is tenant for life only, depositions taken in a cause to which he was a party cannot be read against his son who claims as tenant in tail.3

It appears, however, that when one legatee has brought his bill against an executor, and proves assets, and afterwards another legatee brings his bill, then the last-named legatee may have the benefit of the depositions in the former suit, though not a party to it. In fact, the suit is for the same object, and the plaintiff in the second suit stands in the same relation to the defendant as the plaintiff in the first suit.4

It seems not to be important what character the individual, against whom the depositions in the former suit are offered, filled in that suit, whether that of plaintiff or defendant, provided he had, in such character, an opportunity of cross-examining the witness. If he was a party to the first suit as a co-defendant, and be1 Lubiere v. Genou, 2 Ves. 579; Holcombe v. Holcombe, 2 Stockt. Ch. (N. J.)

284.

Mackworth v. Penrose, 1 Dick. 50; Eade v. Lingood, 1 Atk. 204; Humphreys v. Pensam, 1 M. & C. 580; Gresley Eq. Ev. (Am. ed.) 185, 186; 1 Phil. Ev. (Cowen & Hill's ed. 1839,) 364, and notes in 2 ib. 934, 935; Harrington v. Harrington, 2 Howard, 701; Payne v. Coles, 1 Munf. 373; Dale v. Rosevelt, 1 Paige, 36; Roberts v. Anderson, 3 John. Ch. 376.

3

Peterborough v. Norfolk, Prec. in Cha. 212; Coke v. Fountain, 1 Vern. 413; and see Gilbert on Ev: 28; Bull. N. P. 232; Rushworth v. Countess of Pembroke, Hardr. 472; for the reason, why a verdict is not evidence for or against a person who was not a party to it, see Phil. & Amos, 514.

* Coke v. Fountain, 1 Vern. 413, and see Lady Dartmouth v. Roberts, 16 East, 336; Travis v. Challenor, 3 Gwill. 1237; Ashby v. Power, ib. 1239; Benson v. Olive, 2 Gwill. 701; Earl of Sussex v. Temple, 1 Lord Raym. 360.

comes a plaintiff in the second suit, making his co-defendant in the first suit a defendant, he may, if such co-defendant sets up the same defence that he did in the original suit, read the evidence taken in that suit against such co-defendant. Thus, in an old case, where the creditors of a testator filed their bill against the residuary legatees, and also against a purchaser from the testator, praying to have their debts paid, and the conveyances, alleged to have been executed by the testator to the purchaser, set aside for fraud, and obtained a decree accordingly; and afterwards the residuary legatees filed another bill against the purchaser, praying for an account of the residue and to set aside the conveyances, upon the question arising, whether the depositions taken in the former cause as to the fraud, in obtaining the conveyances, could be read in the second cause, for the legatees against the purchasers, who were co-defendants in the former cause, it was held, that as there was the same question and the same defence in both the causes, the depositions ought to be read.1

It may be stated here, that where the depositions of witnesses in another suit are offered to be read at the hearing against persons who were parties to such other suit, or those claiming under them, it does not appear to be necessary that the witnesses, whose depositions were offered to be read, should be proved to be dead. This appears to have been the effect of the determination of the House of Lords in the City of London v. Perkins,2 and of Sir John Leach, V. C., in Williams v. Broadhead. In a subsequent case, however, (Carrington v. Carnock,4) Sir L. Shadwell seems to have entertained a different opinion from that expressed by Sir J. Leach, in Williams v. Broadhead; and it is to be remarked, that at Law, the depositions of a witness, taken in a suit in Chancery, cannot be read if the witness is alive, even though he is unable to attend by reason of sickness.5 It is, however, to be observed, that the personal examination in Court, to which a witness is subjected at Law, renders it much more important that he should be examined again, than it is in Equity, where the depositions until recently were taken in all cases in secret.

1 Nevil v. Johnson, 2 Vern. 447; and see Poulterers' Company v. Askew, 2 Ves. 89, 90; Phil. & Amos, 575.

3 Bro. P. C. 602.

1 Sim. 151.

* 2 Sim. 567.

'Phil. & Amos on Evid. 577; Gresley Eq. Ev. (Am. ed.) 186, 187.

Some doubt seems to have been, at one time, entertained whether the depositions of witnesses, taken in a cause where the bill had been subsequently dismissed, could be read at the hearing of another cause, and the rule appears to have been laid down, that if the dismissal was upon merits, yet evidence of the facts which have been proved in the cause may be used as evidence of the same facts in another cause between the same parties;1 but where a cause has been dismissed, not upon merits, but upon the ground of irregularity, (as, for instance, because it comes on by revivor, where it ought to have come on by original bill,) so that regularly there was no cause in Court, and consequently no proofs properly taken, such proofs cannot be used.2 If, however, upon a bill to perpetuate testimony, the cause should be set down for hearing, and the bill dismissed because it ought not to have been set down, the plaintiff may, notwithstanding the dismissal, have the benefit of the depositions.3

An order for leave to read, at the hearing, the depositions or proceedings in another cause, is granted upon motion or petition at the Rolls without notice, and must be served upon the adverse party, who may, if there is any irregularity in it, or in the mode in which it has been obtained, apply by motion to discharge it. As, however, it is possible that the irregularity of such an order may、 not appear till it is acted upon at the hearing, when it would be too late to discharge it, the order is always made with a "saving of just exceptions," the effect of which is to leave it open to the party against whom the evidence is offered, to make any objection to the reading of evidence under it which the nature of the case will admit, in the same manner that he might have done had no such order been made.

By the general Orders of the Court it is directed, that, where either party, plaintiff or defendant, obtains an order to use the depositions of witnesses taken in another cause, the adverse party may likewise use the same without further order, unless he be, upon special reason shown to the Court by the party first desiring the same, inhibited, by the same order, so to do."

1 Lubiere v. Genou, 2 Ves. 579.

2 Backhouse v. Middleton, 1 Cha. Ca. 173-175; 3 Cha. Rep. 33; 9 Freem. 132; Gresley Eq. Ev. (Am. ed.) 187; Hopkins v. Strump, 2 Harr. & John. 301. * Hall v. Hoddesdon, 2 P. Wms. 162. See also Vaughan v. Fitzgerald, 1 Sch.

& Lef. 316.

* Hand. 114, 115.

5 Beames's Ord. 194.