wherein John G. Small is plaintiff, and Henry E. Little is defendant, on behalf of the said plaintiff, upon interrogatories to be propounded to said witness orally, pursuant to the notice attached to the said Commission and herewith also enclosed, and upon none others. The said... duly sworn by. being first witness in said cause, previous to the commencement of.... .examination, to testify the truth as well on the part of the plaintiff as of the defendant, in relation to the matters in controversy between the said plaintiff and defendant, so far should be interrogated, testified and de as... posed as follows: Then follows interrogatory first, etc. SECTION 81. INTERROGATORIES. The interrogatories may be either oral or written. In the event they are oral, the opposite party may appear in person or by counsel and cross-examine the witnesses. If the interrogatories are to be written, the party taking submits his interrogatories, and his opponent may submit cross-interrogatories. Interrogatories should not be leading, but it is no objection to cross-interrogatories that they are leading. SECTION 82. How TAKEN. Courts insist with great strictness upon depositions being taken at the time and place designated in the commission, and some statutes fix a penalty to be paid to opposite side for failure to do so. When the taking of the depositions is commenced but not completed the day specified in the commission, for good cause in the certificate shown, the further taking may Vol. XI.-14. be continued by adjournments from day to day, until completed. The attendance of witnesses is obtained by the subpoena of the commissioner or other officer before whom the depositions are to be taken. The fact that a witness has been furnished in advance with a copy of the interrogatories, or has heard them read, may be shown on cross-examination as affecting the credibility of his testimony. Where the witness had written out or prepared his answers in advance of the examination, the deposition should be suppressed. The answers should be given and taken down in the presence of the officer and objections thereto noted, but the commissioner should not attempt to rule upon the relevancy, competency, or materiality of questions or answers. The questions and answers should be read over to the witness after they are written down, and then the depositions should be signed by the witness in the presence of the officer, and the certificate should so state. a Comissioner duly appointed to take the deposition of the said .. a witness whose name is subscribed to the foregoing deposition, do hereby certify that previous to the commencement of the examination of the said.. as witness in the said suit between the said John G. Small, plaintiff, and the said Henry E. Little, defendant, he was duly sworn by a person i duly authorized to administer oaths in said County and State aforesaid, to testify the truth in relation to the matters in controversy between the said John G. Small, plaintiff, and the said Henry E. Little, defendant, so far should be interrogated concerning as the same; that the said deposition was taken at in the in the County of.. and State of day of .. on the of A. D. 19...; and that after said deposition was taken down by me as aforesaid, the interrogatories and answers thereto, as written down, were read over to said witness... and that thereupon the same were signed and sworn to by the said before me, the oath being administered by a person duly authorized by law to administer oaths in said county and state, at the place and on the day and year last aforesaid. IN WITNESS WHEREOF, I have hereunto affixed my hand and seal, this A. D. 19.... day of ... (SEAL) Commissioner. SECTION 84. RIGHT TO CROSS-EXAMINE. The rule that a party litigant shall have the right to confront and cross-examine the witnesses against him, applies with equal force to depositions. And it is a well-established principle that the deposition of no witness shall be read in evidence until it appears that there has been a reasonable opportunity afforded the opposite party to appear and cross-examine. A reasonable opportunity for cross-examination involves two essential elements: (1) Proper notice to the adversary, specifying the time and place of taking the deposition with certainty; (2) a sufficient length of time intervening between the giving of the notice and the taking of the deposition for the opposite side to prepare for the examination and to arrive at the place in the notice designated. These matters are generally regulated by statute, or by rules of court, in the various states. SECTION 85. EFFECT OF CROSS-EXAMINATION. By appearing and cross-examining the witnesses, or by filing cross-interrogatories under a commission, without objection thereto, a party waives all formal defects or irregularities, in the notice, or in the dedimus potestatum itself. Ordinarily, the only objection not waived by such procedure is the lack of a commission. SECTION 86. FAILURE TO ATTACH EXHIBITS. Exhibits admitted in evidence or rejected should be returned, attached to or enclosed with the dedimus potestatum or deposition, after being properly identified. Some courts have held the failure to so enclose or attach such exhibits was good ground for the suppression of the deposition, while other courts have asserted a contrary doctrine. SECTION 87. METHOD AND GROUNDS FOR SUPPRESSING DEPOSITIONS. The usual method of suppressing a deposition is by motion made in the manner required by statute. If no time is prescribed by statute, the motion to suppress should be made as soon as practicable after the defects have been discovered, and within a time before trial sufficient to enable the party taking the deposition to remedy the defect, or to take out a new 2 commission.1 A motion to suppress at the time of trial comes too late. However, a motion made two days before the trial has been allowed.3 While the decisions are not uniform, owing to different statutory provisions, the following have been held to be ground for suppression: the refusal of a witness to answer several cross-interrogatories material to the issue propounded to him by the opposing party,* even though he refused to answer under the advice of counsel; where the deposition disclosed confidential communications; where the officer before whom the depositions were taken improperly refused to allow one of the parties to the suit to cross-examine the witnesses; this may be remedied, however, through the issuance of a new commission which affords the wronged party the opportunity of cross-examining such witnesses; a fatal variance between the dedimus and the deposition in reference to the name of a witness; that the deposition was not sealed when delivered to the clerk of the court; where the depositions were taken before an official other than a commissioner,10 the failure to attach to, or accompany the deposition with a certificate from the clerk of a court of record in the place where the depositions 8 7 1 Toledo, etc., R. Co. vs. Brad- 9 |