The Examiner, having read an interrogatory to the witness, takes down the answer in writing upon paper, concluding the answer to each interrogatory before the following one is put.

A witness may be permitted to use such short notes as he brings with him to refresh his memory, but not the substance of his depositions; nor may he transcribe such notes verbatim.1 The rule at law is, in this respect, the same; and in an anonymous case in Mr. Ambler's reports,2 Lord Hardwicke said, "that, at Law, a witness is allowed to refresh his memory by notes as to dates and names, because there is nothing to guide the memory as to them; but he never knew a Court of Law admit the whole evidence to be given from writing. There is no certain rule how far evidence may be given from notes; some Judges had thought, and he was (he said) inclined the same way, that the witness might speak from notes which were taken at the time of the transaction in question, but not if they were written afterwards." 3

In that case, a motion was made to suppress a deposition taken before Commissioners, because the attorney for the plaintiff had written down the whole in the exact form of the deposition before it was taken; and though it appeared that the witness had told him the facts and circumstances mentioned in it, yet his Lordship said it would be of dangerous tendency to permit it to be read; for in depositions, it is natural to state the evidence as given by the witnesses, but that, in the case in question, the attorney had methodized and worded it; and that it was, therefore, no more than an affidavit.1

In order to secure the statement of the evidence upon the depositions in the very words of the witness, the stat. 3 & 4 Will. IV. c. 94, s. 27, has enacted, that all depositions of witnesses examined in the High Court of Chancery are to be taken in the first person; formerly the practice was to take them in the third person.5

1 Curs. Canc. 260.

Anon. Amb. 252.

See Phil. & Amos, 891. See Hickok v. Farmers' and Mechanics' Bank, 35 Vermont, 476.

Ibid. See also Shaw v. Lindsey, 15 Ves. 380; Ferry v. Fisher, cited ib. 382; Phil. & Amos, 896; St. Catherine Dock Co. v. Mantzgu, 1 Col. 94. See Hickok v. Farmers' and Mechanics' Bank, 35 Vermont, 476.

By Chancery Rule XIII. § 11, in New Jersey, the Examiner shall number each page of the examination taken by him, and also every tenth line of the same, leaving sufficient margin for the purpose; and where more than one witness is examined, he shall annex a separate leaf to the examination, containing a list of

If a witness to be examined does not understand English, an order should be obtained to appoint an interpreter to interpret the interrogatories and depositions.1 The person so appointed must be sworn to interpret truly, and the depositions of the witnesses are to be taken down by the Examiner, from the interpretation, in English. It was Lord Nottingham who established the rule that "no alien should be examined as a witness without a motion first made in Court to swear an interpreter, that the other side might know him, and take exceptions to the interpreter."

When all the interrogatories, upon which the Examiner has been instructed to examine the witness, have been gone through, the Examiner carefully reads over the whole deposition to the witness, who, if he be satisfied with it, signs each sheet of it in the presence of the Examiner.

If the witness wishes to vary his testimony, or to make any alteration in or addition to it, he must do so before signing the deposition; for, by an order of the Court, when witnesses are examined in Court, they are to perfect and subscribe their deposition to such interrogatories as they have answered, before they depart from the Examiner or his deputy; and they are not to be permitted to make any alteration thereof at any time thereafter without leave of the Court, unless it be in some circumstance of time or the like, or for making perfect of a sum upon view of any deed, book, or writing, which the witness shall show to the Examiner before he permits such alteration.+

the names of the witnesses, and a reference to the pages on which their examination respectively commences; and no costs are to be taxed for any examination where this rule is not strictly complied with.

1 See Gilpins v. Consequa, 1 Peters C. C. 85; Amory v. Fellows, 5 Mass. 219.

2 Smith v. Kirkpatrick, 1 Dick. 103; see also Lord Belmore v. Anderson, 2 Cox, 288, and 4 Bro. C. C. 90, S. C.

32 Swanst. 261, n.

463.

* Beames's Ord. 74. A witness may explain or correct a mistake made by him, at any time before his examination is finally closed; but no part of his testimony, previously reduced to writing, can be erased or altered. 1 Hoff. Ch. Pr. Under the former practice in Chancery in New York, amendments of testimony were allowed in open Court, after publication and at the hearing, on an allegation of mistake in taking down the testimony. Denton v. Jackson, 1 John. Ch. 526. So a re-examination has been allowed on the affidavit of the witness that his testimony in material parts was not truly taken down. Trustees of Kingston v. Tappen, 1 John. Ch. 368. The existence of the mistake ought to be made out to the perfect satisfaction of the Chancellor. Gray v. Murray, 4 John.

It is to be noticed, that the signature of a witness to his examination is absolutely necessary, and that if a witness should die after his examination is completed, but before it is signed, the deposition cannot be made use of.1 It seems, however, that if a witness, having signed his examination in chief, dies before he is cross-examined, his depositions may be read as evidence; the Court, however, bearing in mind the fact that the cross-examination has not taken effect, especially if it should appear that the party had lost any material fact which was within the knowledge of the witness, and could not have been proved by other means.2 If a witness refuses to be cross-examined, his deposition cannot be read.s

By the 26th of the Orders of 1828, the Examiner who takes the examination in chief is at liberty to take his cross-examination also; before that time, the cross-examination of a witness was taken before a different Examiner from the one who examined him in chief; a practice which appears to have been sanctioned by the stat. 50 Geo. III. c. 8, by which it was directed, that the witnesses on different sides of the same cause, should (if the same was practicable) be examined by different Examiners.6

5

Ch. 413. See Hallock v. Smith, 4 John. Ch. 649; Newman v. Kendall, 2 A. K. Marsh. 236. A witness examined while incompetent, by reason of interest, may be re-examined after his competency is restored. Haddix v. Haddix, 5 Litt. 202. See Dunham v. Winans, 2 Paige, 24.

1

1 Copeland v. Stanton, 1 P. Wms. 414. The signature of the witness seems not to be held necessary to a deposition in many of the States. See Moulson v. Hargrave, 1 Serg. & R. 201; Mobley v. Hamit, 1 A. K. Marsh. 590; Rutherford v. Nelson, 1 Hayw. 105; Barnett v. Watson, 1 Wash. 372; Wiggins v. Pryer, 3 Porter, 430.

* O'Callaghan v. Murphy, 2 Sch. & Lef. 158. A witness became interested by a death while under examination. The death occurred during his cross, but before further direct, examination. The Court allowed the deposition to stand so as to embrace the direct and cross-examination, but struck out the further direct. Fream v. Dickinson, 3 Edw. Ch. 300.

Prac. Reg. The testimony of the witness is complete, so far as the party calling him is concerned, when the direct examination is finished and signed by the witness; but the party calling him is bound to keep the witness before the Examiner a sufficient length of time afterwards, to enable the adverse party to complete the examination, or the deposition may be suppressed. Trustees of Watertown v. Cowen, 5 Paige, 510.

• Ord. 1828.

'See Troup v. Haight, 6 John. Ch. 335

• Turner v. Burleigh, 17 Ves. 354.

We have seen before, that, previously to the examination of a witness, a notice in writing of the name and description of the witness is to be served upon the adverse solicitor. The object of this notice is, that in case the adverse party shall have occasion to cross-examine the witness, he may have an opportunity of doing so. The cross-interrogatories ought to be filed before the examination in chief is completed; and if they are so filed, the party producing the witness is obliged to procure him to stay or return to be examined.1

Where the interrogatories for cross-examining a witness are not filed, or the witness is not required to be cross-examined whilst he is under original examination, but is allowed to depart about his business, the party who intends to cross-examine that witness must procure his examination in the best manner he can the adverse party is not bound to produce him again; but as it is usual after the witness is sworn, if he be resident in London, for the Examiner to appoint some other day for him to attend to be examined,2 the party intending to cross-examine has generally sufficient opportunity to prepare and file his interrogatories. In the mean time, however, to prevent the examination being taken without the cross-examination, a note in writing may be stuck up in the Examiner's Office, that if such a person come to be examined in such a cause, let him be cross-examined.

In the case of Keymer v. Pering, it is stated that "the practice of the Examiner's Office is, that where a party produces a witness to be examined by one of the Examiners, the opposite party having notice, and intending to cross-examine the witness, makes an appointment with the other Examiner for that purpose, and then gives notice of the time appointed to the witness, and also to the solicitor of the party producing the witness." It appears from the case, that if the party intending to cross-examine neglects to make the appointment, he loses the right to cross-examine.

If a witness refuses to attend to be cross-examined, an application may be made to the Court, (it is presumed in the same manner already pointed out in the case of a witness refusing to be examined in chief,5) which will compel the witness to do what the party has a right to require of him.6

1 Hind. 323.

10 Sim. 181.

Ib. 323. The depositions, however, always bear date the day of the swearing. Ibid. 5 Ante, p. 916.

Courtenay v. Hoskins, 2 Russ. 253.

Some doubt appears to exist whether a subpoena will lie to compel a witness to attend for the purpose of being cross-examined.

If a party examining a witness does not allow a sufficient time for cross-examination before the time for passing publication expires, and cross-interrogatories are left, such party must either enlarge publication or the deposition will be suppressed.1

A witness who is cross-examined must be sworn to the cross-interrogatories as well as to the original interrogatories.

Under the practice, before the Orders of May, 1845, came into operation, where the Examiner was served with a copy of a rule to pass publication, he could not, after the day fixed by such rule for passing publication, examine any more witnesses, even though the witnesses had been already sworn,2 unless he was served with an order to enlarge publication; in which case either party might examine his witnesses as long as the publication continued enlarged.3 3 Where, however, a witness was examined, by mistake, two days after publication had passed, and was cross-examined by the defendant, the Court would not suppress the deposition.* Now, as we have seen, publication passes without rule at the expiration of two months after the filing of the replication, unless such time expires in the long vacation, or is enlarged by order. It is presumed, that, under the present practice, any examination of witnesses after the time for publication has arrived, will be irregular, whether notice be served upon the Examiner or not.5

1 1 Smith's Ch. Pr. 3d ed. 476; and see Keymer v. Pering, 10 Sim. 179; ante, 921, note.

In the case of Green v. Wheeler, decided New York Chancery, Aug. 16, 1842, Mr. Chancellor Walworth held, that where an examination of witnesses is commenced before the time for taking testimony expires, it may be continued by the Examiner, if necessary, after the expiration of such time; and until an order to close the proofs is actually entered.