to answer so as to subject himself to punishment; and as this principle is applicable as well to witnesses as to defendants, the rules which he will there find laid down with regard to its application to the latter case will be equally applicable to the former.

It was at one time a doubt whether a witness, not a party to the suit, could object to answer a question, on the ground that the answer might subject him to a civil suit.

2. To settle the law on this subject the statute 46 Geo. III. c. 37, was introduced, which declares, "That a witness cannot legally refuse to answer a question relevant to the matter in issue, (the answering of which has no tendency to accuse himself, or to expose him to a penalty or forfeiture of any nature whatever,) on the ground that the answering such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit."

Until recently this objection, though not valid to an ordinary witness, was valid to a party of the suit, but the recent Act has now made parties to the suit competent and compellable to give evidence.

3. The rules of exemption from discovery on the ground of professional confidence, proceed upon the same principles as are applicable to the case of defendants; and the reader is therefore referred for information upon this head to a former portion of this Treatise, where these rules have been discussed with reference to the protection of a defendant from answering the bill.2 It may, however, be noticed in this place that, when the objection on this ground does not proceed from the witness, but from the party aggrieved, the way in which the party must proceed to obtain relief is to move the Court to inquire which of the matters in the deposition came to the witness's knowledge as confidential attorney or solicitor, &c., and, upon the report, to suppress the depositions.3

It would appear, from the old practice, that where a witness is served with a subpœna duces tecum to produce a deed or other document, upon being asked viva voce to produce it, he objects to do so, either upon the ground of his having an interest in the deed, or upon any other ground, he may refuse to do so without a for

* Ante, pp. 598, 599. See also Parkhurst v. Lowten, 2 Swanst. 195.

Sandford v. Remington, 2 Ves. jr. 189.

Such as, that the production of it may prove him to be guilty of a crime. See Parkhurst v. Lowten, 2 Swanst. 213.

mal demurrer. The proper course to be adopted by the party in such case was, to move that the witness might attend and produce the deed, and pay the other party the costs occasioned by his previous refusal; upon the hearing of which motion, the Court decided whether the reasons alleged by the witness, for his refusal, were satisfactory or not.1

There does not appear ever to have been any particular form for a demurrer of this nature. It would appear to be sufficient that the witness should state clearly the grounds of his refusal to answer the question, and the examiner will report it to the Court.

Thus a witness, demurring on the ground that his answer would violate the confidence reposed in him as a solicitor, must name the party to whom he was solicitor. He must also swear that the facts, from the discovery of which he desires to be protected, came to him in his capacity of solicitor to a particular person;" for a solicitor, like any other witness, is bound to discover all secrets of his client which he did not come to the knowledge of in his relation of solicitor to his client."4 It must also appear, that the knowledge came to him in the character of a professional adviser, and in such character only; and therefore where a demurrer stated that the witness was the attorney or agent for a person, it was considered not to be sufficiently precise, for an agent may be only a steward or servant.5

So, where a witness demurred to an interrogatory, because she claimed an interest in the land; it was disallowed, because she did not answer to the interest, nor state what interest she claimed.R

In taking down a demurrer, the examiner ought to take the witness's statement upon oath. Where this is not done, the demurrer must be supported by affidavit, as it is necessary the Court should, in some way or other, have the sanction of an oath to the facts on which the objection is founded.8

1 Bradshaw v. Bradshaw, 1 R. & M. 358.

* Morris v. Williams, 2 Moll. 362.

Parkhurst v. Lowten, 2 Swanst. 201.

Morgan v. Shaw, 4 Mad. 54.

Vaillant v. Dodemead, 2 Atk. 525; Strathmore v. Strathmore, 11 Law J. Rep. (N. S.) Chan. 215.

• Jefferson v. Dawson, 2 Cha. Ca. 208. See also Herbert v. Mayn, 2 Swanst.

If the Court, upon argument, considers the demurrer to be bad, it will overrule it; in which case an order will be made that the witness, if the examination has been in town, may go before the Examiner, and be examined, or stand committed.1

The costs of a demurrer to interrogatories appear to have been governed by the same rules as those of demurrers to bills; and, formerly, if they were overruled, the same sum, viz. 5l., was allowed to the other party for costs, as in the case of ordinary demurrers.2 It has, therefore, been held, that the 32d Order of 1828,8 applies to demurrers of this nature. And in the case of Strathmore v. Strathmore,5 upon the overruling of a demurrer put in by a witness, Sir J. L. Knight Bruce, V. C., ordered the costs to be paid by the witness.

In Davis v. Reid, where a demurrer was partially allowed, Sir L. Shadwell directed, that half the costs should be paid by the witness, in analogy to the practice when two exceptions are taken, one of which succeeds and the other fails.

In former Treatises it has been usual to devote a considerable space to an explanation of the practice concerning the suppression of depositions. As, according to the present practice, the examination is conducted by the Examiner, and many of the objections formerly applicable to evidence are abolished, it can scarcely happen that cases for the suppression of depositions will occur hereafter, and therefore the subject will be very cursorily alluded to.

The ground upon which the Court suppressed depositions has been either that the interrogatories upon which they were taken were leading; or that the interrogatories and the depositions taken upon them, or the depositions alone, were scandalous; or else that some irregularity has occurred in relation to them. A deposition.

1 Parkhurst v. Lowten, 2 Swanst. 202.

6

Parkhurst v. Lowten, ubi supra; Shepherd v. Downing, 2 Swanst. 195, note; Vaillant v. Dodemead, 2 Atk. 592.

* Ante, p. 629.

⚫ Sawyer v. Birchmore, Law J. XIII. p. 249.

11 Law J. Rep. (N. S.) Chan. 215.

See 1 Hoff. Ch. Pr. 495; Underhill v. Van Cortlandt, 2 John. Ch. 345; Stubbs v. Burwell, 2 Hen. & Munf. 536; Pillow v. Shannon, 3 Yerger, 508; Gresley Eq. Ev. (Am. ed.) 147 to 154; Ringgold v. Jones, 1 Bland, 90; Perine v. Swaine, 2 John. Ch. 475; Hemphill v. Miller, 16 Ark. 271. It is a fatal defect, if the general interrogatory, "Do you know anything further," &c. does not appear to be answered. Richardson v. Golden, 3 Wash. C. C. 109; ante, 913,

may also be suppressed, because a witness has disclosed some matter which has come to his knowledge as solicitor or attorney for the party applying.1

The objection that the interrogatories are leading can scarcely now be taken, as the Examiner himself either puts the questions, or controls those by whom the witnesses are examined.

Formerly, when any valid objection could be taken to the depo

note. So if the deposition is taken before persons not named in the commission. Banert v. Day, ib. 243. So if all proper interrogatories do not appear to have been answered, on each side, substantially. Bell v. Davidson, ib. 328; Nelson v. United States, 1 Peters C. C. 235. A deposition was rejected because a witness refused to answer a proper question; also because it was in the handwriting of the plaintiff's attorney. Mosely v. Mosely, Cam. & Nor. 522. Depositions taken without notice will be rejected. Honore v. Colmesnil, 1 J. J. Marsh. 525. So a deposition taken after argument of the cause, without special order, will be suppressed. Dangerfield v. Claiborne, 4 Hen. & Munf. 397. Evidence of a fact not in issue, may, upon motion, before the hearing, be suppressed, or it may be rejected at the hearing. Trumbull v. Gibbons, Halst. Dig. 174. See Butman v. Ritchie, 6 Paige, 390. According to the practice pursued in New York by Chancellor Kent, motions to suppress depositions, although permitted to be made before the hearing, usually resulted, unless the point was very clear, in permitting the evidence to stand de bene esse, and reserving the question. 1 Hoff. Ch. Prac. 495. "The question, whether the deposition shall be suppressed," it was remarked by the Chancellor in Underhill v. Van Cortlandt, 2 John. Ch. 345, “is a matter of discretion; and in Hammond's Case, Dickens, 50, and in Debrox's Case, cited in 1 P. Wms. 414, the deposition of a witness examined after publication, was admitted in the one case, because the opposite party had cross-examined; and in the other, because the testimony would otherwise have been lost forever." A deposition having been taken after a cause was set down for hearing in the Superior Court of Chancery, and no objection having been made in that Court, the Court of Appeals will presume that good cause was shown for admitting it. Stubbs v. Burwell, 2 Hen. & Munf. 536; Pillow v. Shannon, 3 Yerger, 508. Exceptions to the reading of depositions taken by virtue of commissions issued after the cause in which they may be required is set down for hearing, may be made at any time before the cause is gone into, when called; after which such exceptions would come too late. Foster v. Sutton, 4 Hen. & Munf. 401. See further as to irregularities in taking, &c. depositions, and when they will or will not cause their rejection, Gresley Eq. Ev. (Am. ed.) 147 to 154; Cravens v. Harrison, 3 Litt. 92; Clarke v. Tinsley, Rand. 250; Stubbs v. Burwell, 2 Hen. & Munf. 536; Ringgold v. Jones, 1 Bland, 90; Perine & Swaine, 2 John. Ch. 475; Underhill v. Van Cortlandt, 2 John. Ch. 345. A party is too late to move to suppress a deposition for irregularity after having exhibited articles to discredit the witness. Malone v. Morris, 2 Moll. 324.

1 Sandford v. Remington, 2 Ves. jr. 189; Bernard v. Papineau, 3 De G. & Sm. 498; Attorney-General v. Dew, 3 De G. & Sm. 493.

sitions, it was the practice to move for a reference to the Master, and upon his report to move to suppress the depositions. Now that the Master's office is abolished, the proper course would be to ⚫ move the Court at once, if any such objection could be taken, for an order to suppress the depositions.

SECTION VI.

Publication.

PUBLICATION, in a legal sense, is the open showing of depositions, and giving copies of them to the parties, by the clerks or Examiners in whose custody they are.1

By the Orders of the Court the depositions of witnesses are not to be disclosed by any of the persons before whom they were taken, or by their clerks, but are to be closely kept, if taken in town, by the Examiners at their office; if by Commissioners in the country, by the sworn clerk to whom the commission, after its execution, was delivered, until publication passes.

We have seen that now, under the Orders of May, 1845, publication is to pass without rule or order on the expiration of two months after the filing of the replication, unless such time expires in the long vacation or is enlarged by order.2 And that if the 1 Prac. Reg. 353.

111th Order, May, 1845. In Massachusetts, the opening and filing, in the Clerk's office, a deposition taken in a suit in Chancery, is equivalent to a publication in the English practice. A particular rule for publication is not necessary. Charles River Bridge v. Warren Bridge, 7 Pick. 344. In Maryland there is no publication of depositions, but all objections are open, and may be taken at the hearing. Strike's Case, 1 Bland, 96. By Rule 69 of the Equity Rules of the Supreme Court of the United States, it is provided that, "immediately upon the return of the commissions and depositions containing the testimony, into the Clerk's office, publication thereof may be ordered in the Clerk's office by any Judge of the Court, upon due notice to the parties, or it may be enlarged, as he may deem reasonable under all the circumstances. But by consent of the parties, publication of the testimony may at any time pass in the Clerk's office, such consent being in writing, and a copy thereof entered in the order book, or indorsed upon the deposition or testimony." A commission may be opened by a Judge in vacation in New Jersey. Den v. Wood, 5 Halst. 62. It is a fatal objection to a deposition taken under the Judiciary Act of 1798, ch. 20, § 30, that it was opened out of Court. Beale v. Thompson, 8 Cranch, 70. A deposition opened