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taken, and then the cause on the hearing is dismissed, be cause a devisee, claiming as a purchaser and not by representation, cannot bring a bill of revivor, the devisee will not be allowed, on exhibiting a new original bill, to use the former depositions; for, in the first cause, in which the complainant mistook his remedy, there was no complaint regularly before the court, and consequently there could not regularly be any depositions (5). For the same reason, such depositions would not be admitted as evidence, in a fresh suit at law.

*If the witness after being examined de bene esse should die before the defendant puts in his answer, his deposition cannot be read (1), because the opposite party had not the power of cross-examination; and the rule of common law is strict, that no evidence shall be admitted, but what is or might have been under the examination of both parties. "In such a case," says Ch. B. Gilbert (2), “the course is to move the court of chancery, that the deposition of the deceased witness should be read; and, if the court see cause, they will order it, and this order will bind the parties to assent to the reading of such depositions, though it does not bind the court of nisi prius." It is the common practice in the court of Chancery, when an issue or trial at law is directed, to make an order that the depositions of witnesses shall be read in evidence, if it be satisfactorily proved at the time of the trial, that they are unable to attend in person (3). But this order is not made, for the purpose of making that admissible in evidence, which is not strictly admissible in courts of common law, but for the convenience of the parties. For if depositions are offered at the trial without such an order, the whole record, bill, answer, &c. must be proved; but, if there is an

(5) Backhouse v. Middleton and
others, Chan. Cas. 175. Gilb. Ev.
56. Smith v. Veale, 1 Ld. Ray. 735.

(1). - v. Browne, Hardr. 315.
Dutton v. Colt, Sir T. Ray. 335. n.
Ford v. Guy, cited in Howard v.
Tremaine, I Show. 363. Piercy v.

2 Jon. 165. Bull. N. P. 240.

(2) Gilb. Ev. 57, 58. Bull. N. P. 240. And see Masden v. Bound, 1 Vern. 331.

(3) Corbet v. Corbet, 1 Ves. and Beam. 340.

order for reading the depositions, the court of law will read them without going through the regular and strict course, which is generally necessary for the purpose of making them evidence (4).

The reason why depositions are not read in evidence, before the defendant has put in his answer, has been be fore mentioned to be, because it does not otherwise appear that the adverse party had liberty to cross-examine. This reason will not apply, where the defendant is in contempt for refusing to answer. If the adverse party, says Ch: B. Gilbert, had been in contempt, then the depositions of *the witnesses shall be admitted, for then it is the fault of the objector that he did not cross-examine the witnesses, since he would not join the examination (1).

There has been, however, some difference of opinion on this subject. It is said to have been held in one case (2), that if witnesses are examined de bene esse before answer, upon a contempt, such depositions cannot be made use of in any other court, but in that court only, where they are taken. The reason, adds the reporter, seems to be because there was no issue joined, so as there could be a legal examination; and they were only taken to be read in the court in which they were taken, upon a contempt to that particular court. In another case, the case of Howard v. Tremaine (3), which was an action of ejectment by a devisee against an heir at law, a question was reserved for the opinion of the court of King's Bench, whether depositions could be given in evidence for the plaintiff under the following circumstances: a bill having been exhibited in chancery by the plaintiff to perpetuate testimony, the defendant stood in contempt and would not answer; upon which the plaintiff had a commission, and examined wit nesses to the matter of his bill de bene esse, and the defendant joined in the commission, and cross-examined some of the witnesses produced for the plaintiff, and, before the

(4) Palmer v. Ld. Aylesbury, 15 Ves. jun. 176. (1) Gilb. Ev. 56.

(2) Watt's case, Hardr. 331.
(3) 1 Show. 363. 1 Salk. 278. S.
C. Carth. 265. S. C.

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* 272

answer came in, the witnesses died. After an argument on
the point, Lord Holt, according to the report in Shower,
said, "Quære, if any court by course of law can examine
witnesses till issue be joined, and therefore I much doubt,
if these depositions can be evidence. We cannot take no-
tice of what the Chancery allows as evidence, and their
practice is no rule to us." Dolben, J. also doubted. But
Gregory, J. thought the depositions good evidence, as the
defendant had joined in the commission, and cross-examin-
ed. And Eyre, J., according to the report in Salkeld,
was clearly of opinion, that they ought to be admitted.
"It would be very inconvenient," he said, "if such evi-
dence were not allowed. For the heir at law will not an-
swer the plaintiff's bill, and will not call in question the
title of the devisee, as long as the devisee has witnesses
alive to prove
the will; but as soon as they are dead, he
will commence his suit." The report in Shower adds, that
in consequence of the doubt expressed by Lord Holt, the
case was adjourned. But in Carthew's report of the same
case, it is stated, that, "after much debate, the court was
of the same opinion, that the depositions might be given in
evidence; otherwise, a bill in equity to perpetuate the tes-
timony of witnesses would be to very little or no purpose."

This subject came before the court of King's Bench in the late case of Cazenove. v. Vaughan (1); from which it now appears to be clearly settled, that depositions are not allowed to be read in evidence, before answer put in or before the party is in contempt, unless he has had an opportunity of cross-examining; but if he has had such an opportunity, and has omitted to avail himself of it, he cannot afterwards make that a ground for objecting to the depositions as evidence.

(1) 1 Maule & Sel. 4.

SECT. II.

Of Depositions, Examinations, Inquisitions, &c. &c.

* 273

DEPOSITIONS are frequently taken with the consent of Depositions the parties to a suit, when a material witness is about to by consent. leave the kingdom, or resides abroad (2). And these depositions may be given in evidence, if at the time of the trial the witness has quitted the country (3). But if the trial comes on before his departure, or after his return, *the depositions cannot be read. This rule; however, is not to be taken so strictly, as to make it absolutely necessary, that a witness, who is about to go abroad, should be on his voyage, when the trial comes on. If the ship has. sailed, though it may have put back, or if the witness be on board, and the ship ready to sail, though prevented by contrary winds, that seems to be sufficient (1)`(a). .

(2) See ante, p. 10.

(1) Fonsick v. Agar, 6 Esp. N. P. (3) Anon. case, 2 Salk. 691. Fal- C. 92. coner v. Hanson, 1 Campb. 172.

(a) In the state of New-York depositions of witnesses may in certain cases be taken de bene esse under a judge's order, without the consent of the opposite party; but it is necessary that the party obtaining the order should give notice of the time and place of the examination. The most common ground for examining a witness in this manner is his expected departure from the state, but it will be allowed in the case of a witness who is so aged and infirm as not to be able to attend court. The examination may be taken at any time after the commencement of the suit, even before issue joined. Concklin v. Hart, 1. Johns. Cas. 103. Mumford v. Church, Ibid. 147.

Except in the few instances mentioned in the text, the courts of common law in England do not admit the depositions of witnesses taken in a foreign country, in evidence. But a contrary practice prevails in this country, and the courts of the United States as well as the superior courts of the several states permit a party in a

Where an indictment or information is exhibited in the King's Bench for an offence committed in India, or where a suit has been commenced in any court in this country for a cause of action arising in India (2), the depositions of (2) Francisco v. Gilmore, 1 Bos. & Pull. 177.

suit to take the examinations of witnesses, not amenable to the process of the court, to be read in evidence in the cause, certain forms calculated to prevent surprise and the introduction of false or partial testimony, being observed. It is obvious that in a country, the intercourse between the different parts of which is so extensive, under one general government, and yet consisting of so many local, independent jurisdictions, if such a practice were not authorized there would in many cases be a total failure of justice. Yet it is also obvious, that the examination of witnesses otherwise than in open court, is, not only inadequate to the due investigation of truth, but unless exercised with great caution, and placed under every restriction which may tend to prevent one party from gaining an undue advantage over the other, would be productive of greater inconvenience than, without it, could arise from the occasional failure of right through defect of proof; therefore the party at whose instance the examination is taken should give notice of his intention, that his adversary may have an opportunity to introduce a cross examination, or in any other manner protect his rights. However, these cautions, necessary as they may appear to be, have not been universally regarded, and in many of the states depositions taken in the loosest manner are allowed as testimony. Thus, in Connecticut, depositions taken before a justice of the peace in another state, frequently without notice, the necessity of which depends altogether on the proximity of the residence of the parties or their attorneys are admissible, with no other security than that they shall not be written by a person interested, or an attorney in his client's cause. Swift's Ev. 112, 113. The practice of the courts of the United States, although better guarded, is in some respects similar to that of Connecticut. See Act of Congress of Sept. 24, 1789, s. 30.

The act for the amendment of the law, Laws of N. Y. sess. 36. c. 56. s. 11. authorizes courts of record to issue commissions for the examination of witnesses not resident in the state. For this purpose application must be made to the court by motion, supported by affidavit, and after due notice to the opposite attorney; and it