will, if a proper case is made, even grant a second commission to examine witnesses, upon being satisfied, by affidavit, that the party applying, and his solicitor, are ignorant of the contents of the depositions.1

The order for enlarging publication is signed and entered by the Master, and a copy of it must then be served, not only upon the other side, but upon the Examiner who took the depositions, and the Clerk of Records and Writs in whose custody the depositions, if taken by commission, are, on or before the day on which publication actually passes.3

This is necessary, as well to authorize the giving out copies of the depositions, and to preclude further examination after the period to which publication has been enlarged, as to authorize the examination of further witnesses.4

It is a fixed rule of the Court, that if one of the parties, after publication has passed, obtains an order to enlarge publication, upon the usual affidavit, the other party may not only cross-examine, but may examine at large, even though he has seen and read the former depositions.5

Where a cause has been set down for hearing, and publication is enlarged beyond the day on which the same is set down to be heard, the proper course, if the cause is likely to come on before the depositions are ready, is to apply to the Court for an order to adjourn the hearing for a certain time. An application for this purpose must be made to the Court upon motion, of which notice has been duly served, and the order made thereon should be served, in the usual manner, upon the adverse solicitor, before the day on which the cause is to be heard, otherwise the cause, when called on, will be struck out of the paper.7

6

Publication being passed, the Examiner or Clerk of Records and Writs, in whose custody the depositions are, is at liberty to permit them to be examined, and to deliver copies of them to the parties.

1 Turbot v.,

8 Ves. 315; see also Dingle v. Rowe, Wightw. 99; Cutler v. Cremer, Mad. & Geld. 254; but see Mineve v. Rowe, 1 Dick. 18.

* 24th Order, 1833.

* Hind. 381.

• Ibid.

Anon, 1 Vern. 253.

1 Smith's Ch. Pr. 388.

Hind. 385, 6.

When an office-copy of the depositions taken on behalf of an adverse party is delivered out, a copy of the interrogatories whereon such depositions were taken is always annexed.1

SECTION VII.

Re-examination of Witnesses.

THE Court is always desirous that the examination of witnesses should be completed, as much as possible, uno actu, and that, whenever it can be accomplished, no opportunity should be afforded, after a witness has once signed his deposition, and "turned his back upon the Examiner," of tampering with him, and inducing him to retract or contradict or explain away what he has stated in his first examination upon a second; but, notwithstanding this unwillingness to allow a second examination of the same witness, there are cases in which, if justice requires that a second examination of the same witnesses should take place, an order will be made to permit it.*

Thus, where the whole depositions of the witnesses in a cause are suppressed, on account of some irregularity in the conduct of the cause, or in the examination of the witnesses, the Court will, when it is satisfied that the irregularity has been accidental and

1 Hind. 395.

Beames's Ord. 74.

* Lord Abergavenny v. Powell, 1 Mer. 130.

The re-examination of a witness in Chancery rests in discretion, and though granted under peculiar circumstances, is against the ordinary practice of that Court. Beach v. Fulton Bank, 3 Wendell, 573; Phillips v. Thompson, 1 John. Ch. 140. A witness, examined while incompetent by reason of interest, may be re-examined after his competency is restored. Haddix v. Haddix, 5 Litt. 202. But a party will not be allowed to re-examine a witness whose memory has been refreshed since his examination closed, except as to documentary evidence. Noel v. Fitzgerald, 1 Hogan, 135. See Byrne v. Frese, 1 Moll. 396. Nor can a witness, after a hearing and final decree in a cause, be re-examined to explain or correct his testimony taken on his examination in chief, and read at the hearing, unless under very special circumstances. Gray v. Murray, 4 John. Ch. 412; Hallock v. Smith, 4 John. Ch. 649; Sterry v. Arden, 1 ib. 62; Newman v. Kendall, 2 A. K. Marsh. 236.

unintentional, direct the witnesses to be re-examined and cross-examined upon the original interrogatories.1

The cases, however, in which the Court will permit the re-examination of the same witnesses after publication, are not confined to those in which the original depositions have been suppressed for irregularity; it has, as we have seen, permitted it to be done in a special case, where the depositions had been suppressed, because the interrogatories upon which they were taken were leading.2

But, even where the original depositions have not been suppressed, the Court has frequently made an order, after publication, for the re-examination of witnesses, for the purpose of proving some fact which has been omitted to be proved upon the original deposition. This is frequently done upon inquiries in the Master's office, under decrees; and even before the cause has been heard, the Court will entertain applications for the purpose of allowing fresh interrogatories to be administered to witnesses who have been already examined in the cause.*

In a case before Lord Erskine,5 an order was made, on the application of the witness himself, after publication, for his reexamination as to a point, upon which it appeared, by his affidavit, he had made a mistake. The order, however, was confined to permit his re-examination as to that particular point only, and it directed that the other side should have an opportunity of crossexamining him.

It is to be remarked, that the Court will not only entertain an application for this purpose, after publication has taken place in the cause, but will even at the hearing, where the defect in the evidence of a particular witness has not been discovered before,

1 Fresh interrogatories and re-examination have been permitted after publication, where depositions have been suppressed from the interrogatories being leading, or for irregularity, or where it has been discovered that a proper release has not been given, to make a witness competent. Wood v. Mann, 2 Sumner, 316. See Healey v. Jagger, 3 Sim. 494; Chameau, 6 Beav. 419; Shaw v. Lindsey, 15 Ves. 380; Attorney-General v. Nethercote, 9 Sim. 311.

* See Spence v. Allen, Prec. in Chan. 493; 1 Eq. Ca. Ab. 232; Lord Arundel v. Pitt, Amb. 585; Hind. 398.

See post," proceedings in Master's Office.”

Cox v. Allingham, Jac. 337; Turner v. Trelawney, 9 Sim. 453; Byrne v. Frese, 1 Moll. 396; Potts v. Turts, Younge, 343; Bridge v. Bridge, 6 Sim. 352.

Kirk v. Kirk, 13 Ves. 286.

permit the cause to stand over, to enable the party to make an application to the Court for permission to re-examine the witness.1

Sometimes, in cases of this nature, the Court, instead of having the witness re-examined, will, if the mistake involves only a verbal alteration, permit the original deposition to be amended.2

It is, however, to be observed, that, before the Court makes an order, either for the re-examination of a witness, or for amending a deposition after publication, it will examine very strictly into the circumstances of the case; and if, upon such examination, it is not satisfied that the error has been wholly accidental, or the effect of mistake or omission, either on the part of the witness or of the Examiner, it will refuse the application. And, in general, before making an order for the amending of the deposition, it will, unless the case is very clear, examine both the witness and the Examiner.4

In all the cases where a correction has been permitted in the deposition itself, a direction that the witness should reswear his depositions after the alteration, has formed part of the order.

It was stated by Lord Hardwicke, in Bishop v. Church,5 that the Court had sometimes directed a witness to attend personally when it had a doubt; but in that case the witness, having spoken so generally in his depositions as to leave a doubt in his mind upon a particular point, he refused to proceed in the cause till the witness had been examined upon interrogatories before the Master.

It is to be noticed, that an order to re-examine a witness, for the purpose of supplying a defect in his former examination, will not, in general, be made before publication has passed in the cause; the reason of which is the difficulty the Court, without seeing the depositions, would have in coming to a correct conclusion as to the propriety of granting or refusing the application."

1 Cox v. Allingham, Jac. 337.

Rowley v. Ridley, 1 Cox, 281; 2 Dick. 687, S. C.; Griells v. Gansell, 2 P. Wms. 646. After publication passed and the cause set down for hearing, the deposition of a witness was allowed to be amended on examination of the witness by the Court, he being aged and very deaf, and a mistake made in taking down his testimony by the Examiner. Denton v. Jackson, 1 John. Ch. 526. 3 Ingram v. Mitchell, 5 Ves. 299.

Ibid. Griells v. Gansell, 2 P. Wms. 646; Darling v. Staniford, 1 Dick. 358; Penderel v. Penderel, Kel. 25.

5 2 Ves. 100.

• Lord Abergavenny v. Powell, 1 Mer. 131; Batt v. Birch, 5 Madr. 66; Asbee

The reader is reminded here, that where the examination of a witness is before an Examiner, either party may, up to the period of publication, exhibit new interrogatories for the further examination of the same or of other witnesses there, without an order to warrant it; but that when a commission is taken out, the practice has hitherto been different.1 It is, however, to be here observed, that the power of exhibiting additional interrogatories for the further examination of a witness already examined before the Examiner is confined to the period of a witness being under examination. If the examination of the witness has been closed, and he has perfected and signed his deposition, (although he may be permitted to perfect his deposition in some circumstances of time or the like, or by correcting a sum upon view of any deed, book, or writing, to be shown to the Examiner,2) he cannot be again examined on behalf of the party producing him without an order of the Court; and it seems that such order cannot be obtained, unless upon affidavit that the witness, if he has been cross-examined, has not communicated the effect of his cross-examination to the party examining in chief.3 Nor will such an order be made, at least before publication, for the purpose of permitting a witness to alter or explain what he has stated upon his first examination, although he may be re-examined as to different matter.1

But although a witness, after he has closed his examination, cannot be re-examined, on behalf of the party producing him, without an order, he may, if he has been examined before the Examiner, be examined again by the adverse party without an order. He is, in fact, in such case, a new witness for the other party proposing to re-examine him, and may not only be examined by such party, but may be cross-examined by the party originally producing him. The same rule will also apply to examinations under a commission, where a witness who has been examined by one party may afterwards be examined by the other party, in chief, as his witness, without an order, provided such examination be upon interrogatories which have been produced before the Comv. Shipley, ib. 467; Randall v. Richford, 1 Ch. Ca. 25. But see Kirk v. Kirk, 13 Ves. 280; Stanney v. Walmsley, 1 M. & C. 361.

1 Ante, p. 914. See also Andrews v. Brown, 1 Eq. Ca. Ab. 233. * Ante, p. 920.

* Cockerell v. Cholmeley, 3 Sim. 313.

Turner v. Trelawney, 9 Sim. 453. 'Vaughan v. Worrall, 2 Mad. 322.